Aquilina v Secretary, Department of Transport
[2021] NSWPICMP 165
•10 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Aquilina v Secretary, Department of Transport [2021] NSWPICMP 165 |
| APPELLANT: | David Aquilina |
| RESPONDENT: | Secretary, Department of Transport |
| APPEAL PANEL: | Member John Wynyard Dr Gregory McGroder |
| Dr Brian Noll | |
| DATE OF DECISION: | 10 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by worker against finding of 13% whole person impairment; whether section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction was excessive; whether adequate reasons given for the deduction; Held – Medical Assessor (MA) erred in failing to give adequate reasons for a deduction of 50% of one part of the lower extremity assessment; Drosd v Workers Compensation Nominal Insurer applied; the deduction was not properly particularised in the Table 2 certificate; the MA had included a 20% lower extremity assessment for a condition that the appellant had not suffered; Medical Assessment Certificate revoked, but new certificate issued in the same amount. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 June 2021 David Aquilina, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Damodaran Prem Kumar, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 14 May 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 9 March 2021 following the issue of a Certificate of Determination (COD) on 5 March 2021 this matter was referred to the MA for an assessment of WPI caused by injury to the left lower extremity (ankle/foot/knee), lumbar spine on 16 August 2017.
Mr Aquilina was employed by Secretary, Department of Transport (the respondent) as an electrician on Sydney Trains.
On 16 August 2017 whilst stepping onto a train his foot slipped down one step, twisting it and his ankle. Treatment consisted of two bouts of surgery with Dr John Negrine, Orthopaedic Surgeon on 28 November 2017 and 1 May 2019. Mr Aquilina’s symptoms continued and he was referred for management by a Pain Specialist Dr James Yu.
Mr Aquilina’s employment was terminated in December 2019 as there were no further suitable duties for him.
As a result of his ankle injury the Commission determined that Mr Aquilina had suffered consequential conditions to his left knee and lower back.
The MA award 13% WPI being 6% of the left lower extremity and 7% with respect to the lumbar spine.
In the Table 2 Certificate regarding “WPI deductions pursuant to s 323..,” the MA wrote “See explanation of my calculations above”.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not seek to be re-examined by a MA who is a member of the Appeal Panel.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The ground of appeal related to the comment by the MA in his certificate saying “see explanations of my calculations above”. That comment related to a deduction the MA made within the body of his reasons which reduced the WPI awarded for the left lower extremity.
The MAC
In his summary the MA said:[1]
“On 16/8/17[Mr Aquilina] twisted his ankle on the steps of a train while at work. Subsequent imaging studies confirmed he had an osteochondral lesion on the dome of the left talar. This injury must have ruptured some of the cysts that he had here and should be considered as an articular fracture of the talar dome. However, this osteochondral lesion would have been pre-existing, either acquired or congenital, but not caused by the accident. The fracture of this was caused by the accident. If the osteochondral lesion was not there he would not have sustained a fracture of the dome of the talar. There should therefore be a preexisting component in the assessment of this fracture.”
[1] MAC page 5.
The investigations before the MA were as follows:[2]
“1. MRI Left Foot dated 22/8/17
There is a chronic osteochondral lesion of the medial talar dome, 6 x 12mm in width and 4mm deep, characterised by a central region of subchondral bone cystic change, erosion of the subchondral bone plate, mild sclerotic changes around the cystic component and beyond this diffuse bone oedema/fibrosis in the medial talus. Presumably relates to an old osteochondral injury to the talus. Other parts of the talar dome are intact apart from mild Grade 1 chondromalacia overlying the above lesion.
The main finding is a chronic osteochondral lesion of the medial talar dome associated with cystic change, sclerosis, bone oedema/fibrosis in the talus.
2. MRI Left Ankle dated 9/5/18.
There is a superomedial talar dome lesion measuring 17 x 8mm in axial dimension with a 3mm deep crater. There is evidence of some fibrocartilaginous filling within the defect.
Surrounding marrow oedema is present. No evidence of instability is present and there is no intra-articular body. The AFTL is mildly attenuated and hyperintense suggestive of previous injury and partial scar remodelling. There is mild midsubstance Achilles tendinosis without any tear. No other tendon abnormality is demonstrated.”
[2] MAC page 4.
The MA explained further the reasons for finding a pre-existing component at paragraph 8f. He said:[3]
“Pre-existing osteochondral lesion of the left talar dome. The left ankle fracture is
considered to be affected by the previous pre-existing condition in the form of a preexisting osteochondral lesion of the left talar dome. I feel this is significant as if he did not have this lesion, he would not have sustained the fracture. Using clinical judgement I consider this pre-existing lesion to be worth 50% of the injury of fracture of the left talar dome.”[3] MAC page 5.
In giving his explanation of his calculations regarding the proposed deduction, he said:[4]
“The left ankle is assessed using limitation in range of movement as shown in Table 17-11 and 17-12, page 537, AMA5. Using these tables this works out to a 14% lower extremity impairment for the left ankle and a 4% lower extremity impairment for the left subtalar joint.
The intra-articular fracture of the talar dome is considered on Table 17-33, page 547,
AMA5. This works out to a 20% lower extremity impairment for the ankle joint.However, the fracture has a pre-existing component which would be considered to be half of this. This equates to a 10% lower extremity impairment for the ankle joint.”[4] MAC page 6.
In considering the opinions of the other medical specialists before him, the MA agreed with the opinion of Dr James Bodel, except that he thought that the deduction should be made as he explained. He said:[5]
“……I agree with his assessment, except that I feel there should be a
deduction for the presence of the osteochondral lesion which fractured. This osteochondral lesion pre-existing the injury and does play a part in the injury he sustained…..”
[5] MAC page 6.
The MA finally discussed his deduction in paragraph 11. The MA found that the osteochondral lesion of the talar dome left ankle was a pre-existing condition in respect of which there should be a 50% deduction. He said “as this preexisted prior to the injury. The reasons have been given earlier”.
SUBMISSIONS
The appellant’s submissions were prepared by Mr Luke Morgan of counsel. Mr Morgan submitted that the MA had erred in making a deduction under s 323 of the 1998 Act, alleging that the MA had incorrectly applied its provisions.
Mr Morgan submitted that although a history of a car accident some 42 years earlier was taken, the MA did not take any history of pre-existing difficulties with the left lower extremity.
Mr Morgan referred to the report of the MRI scan of 22 August 2017. He noted that the pathology therein found presumably related to an old osteochondral injury to the talus. He also noted MA’s subsequent comment that if the osteochondral lesion had not been present, there would not have been a fracture at the dome of the talar caused by the injury.
Mr Morgan submitted that neither Dr Bodel nor Dr Negrine thought that a deduction pursuant to s 323 of the 1998 Act was appropriate. Dr Negrine noted the long standing osteochondral lesion. He thought it had been there for many years, but that the injury had aggravated it. Mr Morgan noted that Mr Aquilina had told Dr Negrine that he had never previously injured his ankle in the past.
Mr Morgan referred to Mr Aquilina’s history of working as an electrician on Sydney Trains since 2015. He submitted that there was no suggestion that he had any compromise in the use of his left lower extremity prior to the injury.
The error made by the MA, Mr Morgan submitted, was the arbitrary figure of 50% being applied without any reasoning.
We were referred to Cole v Wenaline Pty Ltd[6] to the well known principle that for a deduction to be made under s 323 there must be evidence that a previous injury or a pre-existing condition or abnormality was contributing to the impairment caused by the subject injury.
[6] (2010) NSWSC 78, (Cole).
We were referred to a series of other cases that confirmed that basic principle.[7]
[7] D’Aelo v Ambulance Service (NSW) (1996-1997) 14 NSWCCR 139, Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365 (Elcheikh) and Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder).
Mr Morgan submitted that there was no evidence that the osteochondral lesion had been symptomatic prior to the injury and he submitted that the mere existence of degenerative change or previous abnormality was not sufficient to warrant a deduction.
Mr Morgan conceded that the MRI scan was probative of a pre-existing condition, but it did not follow Mr Morgan argued, using the above authorities, that the presence of a pre-existing condition should result in a deduction under s 323. He submitted that in this case there was no justification for any deduction being made under s 323 “let alone that posited by the AMS”.
Respondent’s submissions
The respondent submitted that a pre-existing condition had been shown to exist and that the MA had made “clear and concise findings” which were supported by the medical evidence as to the existence of the pre-existing condition.
We were referred to the evidence upon which Mr Morgan made his concession that there was a pre-existing condition. We were then referred to Chapter 1.47 of the Guides, which relates to the use to be made of investigations by an MA. It was submitted that it followed that the MA had made a finding as to the existence of a pre-existing condition that was based on the evidence before him.
The respondent submitted that although that condition may have been asymptomatic and rendered symptomatic by the subject injury, it did not follow that no deduction could be made.
We were referred to a medical appeal case of Monica Cook v Rail Corporation of NSW[8] which did no more than give an example of the application of dicta in Vitaz v Westform NSW Pty Ltd.[9] Vitaz held that pre-existing conditions, even if asymptomatic, can still be the subject of a deduction if the evidence justified a finding that they contributed to the impairment that was caused by the subject injury.
[8] [2013] NSWWCCMA 43 (Cook).
[9] [2011] NSWCA 254 (Vitaz).
The respondent submitted that it was significant that Mr Aquilina had undergone two surgical procedures on 28 November 2017 and 1 May 2019. It was submitted that the reason the procedures had to be undertaken related to the underlying osteochondral lesion rather than the fracture of the talar dome itself. Thus it was reasonable to attribute to the pre-existing condition an impairment that contributed to the WPI caused by the subject injury.
It was submitted that the degree of Mr Aquilina’s impairment as a result of the subject injury would have been minimal if not for the underlying condition. The greater part of Mr Aquilina’s WPI was due in “far larger part,” to the pre-existing osteochondral condition.
The respondent submitted that the MA gave adequate reasons for his opinion and that, as we understood the submission, the amount of the deduction was appropriate.
DISCUSSION
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
We are grateful for the assistance of the parties in the comprehensive review of the authorities pertaining to s 323. In the context of the present case, the relevant principles are unremarkable. A deduction cannot be made on the basis of hypothesis or speculation, and a deduction may be appropriate in circumstances where the pre-existing condition was asymptomatic.
The evidence shows that Mr Aquilina indeed suffered a pre-existing condition. The MRI scans of 22 August 2017 and 9 May 2018 demonstrate the presence of a chronic osteochondral lesion of the medial talar dome. On 22 August 2017 it measured 6 x 12mm in width and 4mm deep. On 9 May 2018 it measured 17 x 8mm in width and 3mm in depth.
The appellant conceded that the investigations demonstrated a pre-existing condition, but he submitted that the MA had fallen into error by making a deduction when that pre-existing condition had been asymptomatic. The appellant’s position was said to be similar to that outlined by Campbell J in Ryder where his Honour said at [54]:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.” (As written).
We did not understand Mr Morgan’s submission to advance the proposition that an asymptomatic pre-existing condition was not amenable to the provisions of s 323, but rather that the MA had failed to consider the “necessary condition” inherent in its application - that the proportion of the WPI that has been caused by the pre-existing condition be identified.
It is uncontroversial that a deduction may be made where the pre-existing condition was asymptomatic. In Vitaz the following appears at [43]:
“The …principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
The contest relevant in these circumstances is as to what proportion of the WPI assessed by the MA was due to the pre-existing asymptomatic condition. Whilst the presence of a pre-existing condition was not in contest, the degree of its contribution to the WPI caused by the subject injury is.
As noted at the outset of these reasons, there is an obligation on an MA to explain his reasoning where more than one conclusion is open. The MA simply has chosen a 50% assessment without explaining why he came to that conclusion. Moreover the manner in which he has calculated the deduction is not reflected in his Table 2 certificate. His calculation was that, after deducting one half of the applicable lower extremity impairment applicable under Table 17-33,[10] a lower extremity impairment of 14% should be allowed, when the proper calculation would have been 24% lower extremity impairment. This meant that, when applying Table 17-3[11] the WPI should have been calculated at 10% and not the 6% that he certified. When the deduction calculated at 50% was applied, the result would have been an entitlement of 5% WPI.
[10] AMA5, page 547.
[11] Ibid page 527.
Further, whilst at paragraph 11 the MA gave his reasons for making the deduction, that is, the presence of an osteochondral lesion of the talar dome in the left ankle, the reasons he was invited to give at paragraph 11c simply indicated, as we indicated above, that there was a 50% deduction for that lesion “as this preexisted prior to the injury. The reasons have been given earlier.”
Those reasons were, firstly that is Mr Aquilina would not have sustained his fracture but for the pre-existing lesion, and that, using his clinical judgement the lesion was “worth 50% of the injury of fracture of the left talar dome.”
We do not, with respect, regard those reasons as being adequate. Firstly, whilst clinical judgement is essential to the assessment by an MA, it is of such generality that it does not explain why the MA chose a deduction of 50%. He did not for example point to any part of the MRI reports that indicated such a high degree of contribution, nor did he engage with the evidence that Mr Aquilina, who was 58 years old when he suffered his injury, and who had worked in the same capacity since 2005, had been symptom-free. We find Mr Aquilina’s case to be similar to the facts of Elcheikh, where a similar deduction had been made for an asymptomatic condition where the applicant had been engaged in heavy work for many years. The assessment was overturned because, amongst other things, the Approved Medical Specialist (as MAs were then called) had not considered all the evidence, particularly that Mr Elcheikh had been able to work for many years without symptoms.
We accordingly find that adequate reasons were not given and accordingly a demonstrable error has occurred. We will consider the appropriate deduction once we have considered the second ground for finding the reasons inadequate.
In Drosd v Workers Compensation Nominal Insurer[12] Garling J held that a Medical Appeal Panel had a statutory obligation to apply the Guides once it had determined to set aside the MAC, and regardless of whether the point had been raised on appeal.
[12] [2016] NSWSC 1053 @ [59]-[61].
The medical specialists on the Panel note it that appears to have been accepted by the MA, and indeed by the medico-legal specialists in the case that Mr Aquilina had suffered an inter-articular fracture with displacement which, pursuant to Table 17-33 of AMA 5, gives an entitlement of 20% lower extremity impairment.
We note that the treating practitioners did not share that view. In all his reports, Dr Negrine referred to an osteochondral lesion, but never a fracture, and certainly no displacement. We note further that Dr Negrine referred to the condition as “acute” or “chronic.” We also have some doubt as to whether the imaging relied on demonstrates a fracture of the talar dome, but more significantly there is no suggestion within the evidence that there has been any displacement, which is a requirement under Table 17-33.
Accordingly, the appropriate methodology is to use the range of motion measurements to which we have referred, of 14% lower extremity impairment as found by the MA, which added to the 4% left lower extremity impairment for the left subtalar joint amounts to 18%, which itself converts pursuant to Table 17.3 to 7% WPI. There is no entitlement under Table 17-33.
The imaging shows the presence of an osteochondral lesion in the left ankle which had been asymptomatic until Mr Aquilina’s injury. The chronicity of Mr Aquilina’s condition since his injury suggests that the pre-existing condition did have a part to play, but the only supporting evidence is the MRI scans. We note that there has been a change in the size of the lesions between the first MRI scan of 22 August 2017 and 9 May 2018 which the medical experts on the panel are satisfied is probably as a result of Mr Aquilina’s surgical procedures.
The lesion having been asymptomatic, there is a dearth of evidence as to how long it has been present. The description by Dr Negrine of the condition as being acute or chronic satisfies us that a deduction is warranted, notwithstanding that it was asymptomatic. The extent of the deduction is thus difficult or costly to determine. Under these circumstances the statutory 1/10th should be applied.
The result is that the new certificate will reflect the same entitlement , but will reflect these reasons.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 May 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Damodaran Prem Kumar, and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Left lower extremity | 16/8/17 | Chapter 3 Page 13 | Table 17-2, page 526 Table 17-3, page 527 Table 17-11, Table 17-12 page 537 | 7 | 1/10th | 6 |
| Lumbar spine | 16/8/17 | Item 4.35 Page 28 Chapter 4 | 7 | 0 | 7 | |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
John Wynyard
Member
Dr Gregory McGroder
Medical Assessor
Dr Brian Noll
Medical Assessor
10 September 2021
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