Baker v Myall Vale Pastoral Co Pty Ltd
[2023] NSWPICMP 527
•20 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Baker v Myall Vale Pastoral Co Pty Ltd [2023] NSWPICMP 527 |
| APPELLANT: | Gregory George Baker |
| RESPONDENT: | Myall Vale Pastoral Co Pty Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 20 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against one half deduction for consequential injury to right knee; whether Medical Assessor (MA) correct to consider section 323 at the time of the subject left knee surgery, some 11 years later; whether MA applied wrong test; Held – contemporaneous evidence demonstrated no pre-existing condition in the right knee at the time of the subject injury to the left knee in 2004; right knee condition accepted as a consequential condition, left knee total replacement occurred in February 2015 and X-Ray of right knee in July 2016 showed advanced degeneration; MA applied wrong test in assessing section 323 deduction as at February 2015; relevant date was that referred of September 2004; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 April 2023, Gregory George Baker, the appellant worker, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 March 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (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 7 December 2022 an amended referral was made by the President’s delegate for a WPI assessment caused to the right lower extremity (knee), left lower extremity (knee), and scarring (TEMSKI) by injury on 15 September 2004.
Mr Baker was employed as a farm manager when on 15 September 2004 he slipped on a muddy bank and injured his left knee. He further injured his knee on 2 October 2004 when he slipped whilst climbing onto a tractor and fell, predominantly on his left leg.
He came to surgery on 4 February 2005 in the form of a left knee arthroscopy and he resigned from work on 8 March 2005.
Mr Baker had ongoing pain in both knees and came to a left knee replacement on 27 February 2015.
He underwent a right knee replacement on 6 September 2016 with revision surgery on the right knee occurring on 7 February 2017. The right knee also underwent two revision surgeries, the last being on 10 December 2018.
The Medical Assessor issued a certificate stating that the WPI caused to the right and left knees was 15% respectively, and that the scarring was 1%.
In relation to the right knee, the Medical Assessor deducted one half pursuant to s 323 of the 1998 Act, giving a combined total of 23% WPI.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because, although such a re-examination was requested by Mr Baker, the issue for determination concerned whether the evidence justified a deduction pursuant to s 323 of the 1998 Act. A re-examination would accordingly not have assisted the 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.
Mr Baker appealed against the one-half deduction made with regard to the injury to his right knee.
The MAC
As indicated the history taken by the Medical Assessor was of two frank incidents. The first was when Mr Baker fell on the muddy bank and felt pain in his left knee, and the second when he slipped off a tractor and landed “heavily on the ground predominantly on his left leg.”
The Medical Assessor noted that there had been no problems with either the left or right knee prior to the injury of 15 September 2004.
The Medical Assessor noted that Mr Baker had been a worker on properties for some of his employment. (In his statement of 19 February 2010 Mr Baker said that he had worked constantly in the agricultural industry since the age of 16 years).[1]
[1] Appeal papers page 43.
The Medical Assessor noted the investigations at [6] of the MAC that on 12 July 2006 some osteoarthritis was seen in the medial compartment of the left knee with some compartmental narrowing and a little varus angulation on weight bearing. The right knee was completely normal.
Mr Baker came to a left total knee replacement on 27 February 2015.
On 9 May 2016 an MRI of the right knee demonstrated extensive pathology in the nature of degenerative changes, and an X-ray of the right knee of 21 February 2017 showed that a total revision of the total knee arthroplasty had occurred.
In his summary at [7] of the MAC, the Medical Assessor diagnosed:[2]
“Left knee medial meniscal tear, aggravation of arthritis. Mr Baker underwent surgery 4 February 2005 for a left knee arthroscopy, medial partial meniscectomy, and underwent surgery 27 February 2015 for a left knee replacement.
Right Knee arthritis, consequential to left knee condition. Mr Baker underwent surgery 6 September 2016 for a right knee replacement. He had revision surgery 7 February 2017 and 10 December 2018.”
[2] Appeal papers page 22.
In giving his reasons for assessment at [10] in relation to the right knee, he found there was a 15% WPI entitlement.
At [10b] of the MAC the Medical Assessor gave the following explanation for deducting the one-half from that amount:
“Deductions
The following factors were considered when determining a deduction for a pre-existing condition.
• The history provided regarding the right knee condition is that symptoms occurred shortly after the left knee surgery. There was no history of a significant injury.
• An x-ray 12 July 2006 revealed a completely normal right knee. X-rays were reviewed of the right knee dated 27 July 2016 on the day of assessment which revealed bone-on-bone arthritis of the medial tibiofemoral compartment.
• Mr Baker worked for Myall Vale Pastoral Co Pty Limited from May 2004 until 8 March 2005.
Thus his employment with Myall Vale was one year and therefore likely contributed little to the development of right knee arthritis relative to his other work experiences.
• The cause of the right knee condition is considered to be an aggravation of underlying and pre-existing knee arthritis.
Considering the above factors, I consider that the pre-existing condition of right knee arthritis significantly contributed to the current condition and need for surgery. The consequential condition and aggravation of the underlying condition may have brought forward the need for surgery. However, a significant deduction is warranted due to the pre-existing condition. I consider a ½ deduction is reasonable. 15% - 7.5% = 7.5% which rounds to 8% WPI.”
The Medical Assessor also assessed a 15% WPI for the left knee but made no deduction, as the X-ray of the left knee one month after the injury on 13 October 2004 showed a normal pathological condition.
The Medical Assessor said:[3]
“Considering the above factors, I consider that the main cause of left knee arthritis was the workplace injury. The meniscectomy was the main cause of the development of arthritis and need for surgery. There was no evidence of a pre-existing condition and therefore no deductions were made.”
[3] Appeal papers page 23.
At [10c] the Medical Assessor considered the other medical opinions without relevant comment as to the deduction he made for the right knee.
At [11] there is a templated question regarding the deductions made above which the Medical Assessor simply indicated that he had made one half deduction for the presence of right knee arthritis.
SUBMISSIONS
The appellant
The appellant submitted that the one-half deduction made in relation to the right knee was firstly contrary to the available evidence before the Medical Assessor, and secondly that an inference that there was a pre-existing asymptomatic condition was not available. Alternatively, if it was, then the appropriate deduction should have been pursuant to s 323 (2) of the 1998 Act.
The appellant submitted that the X-ray of the right knee dated 12 July 2006, taken some 18 months after the injury, revealed a completely normal knee, but that 10 years later on
27 July 2016 there was bone on bone arthritis.
The respondent
The respondent submitted that the Medical Assessor set out his reasoning, which included the history that Mr Baker’s right knee symptoms occurred as a consequence of the left knee surgery of 27 February 2015, and an observation that the July 2016 X-ray demonstrated bone-on-bone arthritis of the medial tibiofemoral compartment.
That short timeframe, it was submitted, showed that there was a pre-existing condition that was asymptomatic until Mr Baker underwent surgery to the left knee.
We were referred to Vitaz v Westform (NSW) Pty Ltd[4] in support of the well accepted principle that a deduction is permissible where there is an asymptomatic pre-existing condition if the Medical Assessor is satisfied that that condition was nonetheless a contributing factor to the impairment caused by the subject incident.
[4] [2011] NSWCA 254.
We were referred to Glenn William Parker v Select Civil Pty Limited[5] and Ferguson v State of New South Wales[6] which both adopted the findings of a Medical Appeal Panel in NSW Police Force v Daniel Wark[7] that the pre-eminence of the clinical observations cannot be understated.
[5] [2018] NSWSC 140.
[6] [2017] NSWSC 887.
[7] [2012] NSW WCCMA 36.
DISCUSSION
With regard to the respondent’s reliance on Glenn Willam Parker, Ferguson and Wark, we point out that those comments were made in relation to the task undertaken by a Medical Assessor in psychiatric cases. We would observe that clinical observations are just part of the evidence in orthopaedic cases and those authorities need to be seen in that light. In the subject case, the investigations form a significant body of evidence.
In these circumstances, where there was no radiological evidence of any arthritis in the
12 July 2006 right knee X-ray, some 18 months after the second accident of 2 October 2004, we have some reservations as to whether the pre-existing asymptomatic arthritic condition of the right knee was causing any impairment. Whilst the Medical Assessor acknowledged that the surgery to the left knee on 27 February 2015 resulted in the onset of symptoms in the right knee shortly thereafter, and a subsequent X-ray of 27 July 2016 demonstrated the presence of arthritis in the medial tibiofemoral compartment, the Medical Assessor, with respect, then applied the wrong test in the application of s 323.Section 323 of the 1998 Act provides relevantly:
“323 Deduction for previous injury or pre-existing condition or abnormality
(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.”
It is settled law that in applying the provisions of s 323, a Medical Assessor must be satisfied that there was, relevantly, a pre-existing condition, and that it actually contributed to the impairment caused by the subject injury. That decision is not to be based on assumption or hypothesis.[8]
[8] Cole v Wenaline Pty Ltd [2010] NSWSC 78; Elcheikh v Diamond Formwork (NSW) PtyLtd [2013] NSWSC 365; Fire & Rescue NSW v Clinen [2013] NSWSC 609.
It can be seen that the relevant time a condition can “pre-exist” has to be the date of the injury – in this case 15 September 2004. In the right knee there was no pre-existing condition at that time – and indeed no pre-existing condition was shown some two years later in the
X-ray of 12 July 2006. The Medical Assessor appears to have assumed that the surgery to the left knee of 27 February 2015 caused an injury to the right knee in the form of the aggravation of a then pre-existing arthritic condition, which was evident in the X-ray of
27 July 2016. This in itself was an error. The right knee condition was accepted as a consequential condition to the subject injury to the left knee, and the right knee condition occurred we assume as a result of his altered gait following the surgery to the left knee. Because the right knee condition arose as a consequence of the surgical treatment for the left knee, the date of injury remained 15 September 2004, as referred to the Medical Assessor.For the same reason, the Medical Assessor made his findings of fact on a false assumption -that he was to consider the pre-existing condition as of the date of surgery,
27 February 2015, and in doing so applied an incorrect test.Accordingly the MAC will be revoked. The X-ray of 12 July 2006 showed that Mr Baker had no arthritis in his right knee, and is evidence that he accordingly was not suffering from any pre-existing condition at that time, and therefore not on the date of injury,
15 September 2004. The available evidence demonstrates that no deduction should have been made.For these reasons, the Appeal Panel has determined that the MAC issued on 20 March 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7417/22 |
Applicant: | Gregory George Baker |
Respondent: | Myall Vale Pastoral Co Pty Limited |
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 Medical Assessor Todd Gothelf 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) |
| Right Lower Extremity (knee) | 15.9.04 | Chapter 3 p.13 Table 17-35 | Chapter 17, p 523 | 15% | Nil | 15% |
| Left Lower Extremity (knee) | 15.9.04 | Chapter 3 p 13, Table 17-35 | Chapter 17, p 523 | 15% | Nil | 15% |
| TEMSKI scarring | 15.9.04 | Chapter 14 p.73 Table 14.1 | 1% | Nil | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 29% | |||||
0
7
0