Beatty v Health Management & Administrative Solutions Pty Ltd
[2025] NSWPICMP 39
•20 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Beatty v Health Management & Administrative Solutions Pty Ltd [2025] NSWPICMP 39 |
| APPELLANT: | Katherine Anne Beatty |
| RESPONDENT: | Health Management & Administrative Solutions Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 20 January 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application of deductions to assessable whole person impairment (WPI) pursuant to section 323; the appellant suffered bilateral knee injuries in the course of his employment with the respondent; the matter was referred for medical assessment, at which time the Medical Assessor (MA) applied a 25% deduction for the left knee and a 50% deduction for the right knee; Held – MA erred in failing to provide adequate reasons for making the deductions pursuant to section; the evidence disclosed the appellant was asymptomatic in both knees before the injury at issue; the mere presence of osteoarthritis and mild degenerative changes in the joint spaces is not of itself sufficient reason to make a deduction: Southwell v Qantas Airways Limited; there were no reasons provided as to why, in the MA’s view, the preexisting pathology was the primary indicator for the left total knee replacement surgery; rather, the evidence disclosed the symptomology brought about by the injury was the primary indicator; in the circumstances, a deduction of 1/10th was appropriate for each affected body system; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 November 2024, Katherine Anne Beatty (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 October 2024.
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.
On 10 December 2024, the respondent, Health Management & Administration Solutions Pty Ltd, lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5)
RELEVANT FACTUAL BACKGROUND
The appellant sustained injury to her bilateral lower extremities (knees) in the course of her employment with the respondent on 26 October 2017. She commenced proceedings seeking payment of permanent impairment compensation on 15 July 2024. On 12 August 2024, the Personal Injury Commission (Commission) issued Consent Orders remitting the matter to the President for referral to a Medical Assessor.
Medical Assessor Kuru examined the appellant on 5 September 2024. Medical Assessor Kuru’s MAC was issued on 23 October 2024. Medical Assessor Kuru assessed the appellant as suffering 20% whole person impairment (WPI) to the left lower extremity and 4% WPI to the right lower extremity. For the left knee, the Medical Assessor deducted 25% pursuant to s 323 of the 1998 Act for pre-existing osteoarthritis. For the right knee, the Medical Assessor deducted 50%. It is these deductions which the appellant challenges in her submissions.
The appellant’s left knee injury was caused by an acute twisting mechanism. Radiological investigation on 7 November 2017 revealed grade 2 to 3 PF chondromalacia – chondral fissuring and subchondral cysts and marginal bone spurring. A small knee joint effusion was also noted.
Changes noted at left knee arthroscopy in January 2018 were grade II fibrillation of PF and MFC cartilage, tear in the post horn medial meniscus debrided. Grade 3 lateral tibial plateau change.
An X-ray on 27 April 2018 revealed no tibiofemoral or PF joint space narrowing. Moderate osteophyte formations at the margins of the tibiofemoral and PF margins.
On 13 September 2018, the appellant had a corticosteroid injection to the left knee. Her symptoms continued and in November 2020 an MRI of the left knee revealed progressive tricompartmental osteoarthritis. Three years later she underwent a left total knee replacement to manage her chronic knee pain.
In relation to her right knee, the appellant’s physiotherapist noted she had an antalgic gait in March 2018. Despite her significant knee symptoms, the appellant continued in full time employment. The first imaging of the appellant’s right knee occurred on 13 October 2020.
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 the matters in issue can be determined without the requirement for a further examination, in that they relate to pre-existing changes to the relevant body systems rather than the current pathology.
Fresh evidence
No fresh evidence was sought to be led by the parties to the appeal.
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.
The Medical Assessor set out an uncontroversial history in relation to the mechanism of injury and the treatment thereof. At [4] of the MAC, the Medical Assessor said:
“On the date of injury, Ms Beatty was leaving a residence in her work as a community
nurse. She was walking down a wet driveway when she slipped, twisting her knee
between a car and a gutter. She had immediate pain and swelling in her knee. She was
able to make it home but the next day her knee was sore and more swollen. She
presented to her general practitioner, who referred her for an x-ray. The original clinical
letter by Dr Hanslow, Orthopaedic Surgeon dated 24 November 2017 records the history. She referred Ms Beatty for an MRI scan, which unfortunately she was not able to tolerate. She subsequently recommended proceeding with left knee arthroscopy. This was undertaken on 12 January 2018. The arthroscopy demonstrated significant degenerative disease, particularly in the medial compartment of the knee in association with a meniscal tear. Debridement of the knee and partial medial meniscectomy was undertaken.
Unfortunately, she did not get any sustained benefit from the procedure. Dr Hanslow
recommended proceeding with nonoperative treatment.
She went on to be reviewed by Dr Morton, another Orthopaedic Surgeon. Ultimately, Dr Morton elected to proceed with a total knee replacement. This was undertaken on 2
March 2021. Ms Beatty reports some improvement subsequent to the surgery and says
the pain is not as bad, although she is still limited by pain and stiffness in her knee. Over time she has noted increasing pain in her left knee, which she now describes as being just as stiff and painful as her right.”
The Medical Assessor noted the appellant was not undertaking any active treatment for either knee and that her right knee experiences intermittent sensations of instability together with medial and lateral joint line pain. He recorded the left knee as suffering from intermittent pain and swelling with a feeling of stiffness, although it rarely locks or feels unstable.
The Medical Assessor noted the presence of preexisting bilateral knee osteoarthritis. He made the following comments at [11] of the MAC in relation to applicable s 323 deductions:
“a) In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:
(i) Osteoarthritis left knee.
(ii) Osteoarthritis right knee.
b) The previous injury, pre-existing condition or abnormality directly contributes to the
following matters that were taken into account when assessing the whole person
impairment that results from the injury, being the matters taken into account in 10a,
and in the following ways:
(i) In the absence of pre-existing osteoarthritis in the knee, it is unlikely the injury
sustained would have led to any ongoing impairment in the left knee. In the absence of pre-existing osteoarthritis in the right knee, impairment would be assessable for the right knee.
(c) Left Knee: Whilst the extent of the deduction is difficult or costly to determine the
available evidence is that the deductible proportion is large and a deduction of one
tenth is at odds with the available evidence. In my opinion the deductible proportion is
one-quarter for the following reasons:
(i) Impairment assessable in the left knee is a consequence of having had a total knee replacement. The indication to undergo knee replacement was pre-existing
osteoarthritis in the knee rather than any acute injury sustained at work.
Right Knee: Whilst the extent of the deduction is difficult or costly to determine the
available evidence is that the deductible proportion is large and a deduction of one
tenth is at odds with the available evidence. In my opinion the deductible proportion is
one-half for the following reasons:
(i)Osteoarthritis in the right knee is indicative of a constitutional process unrelated to work or injury. It is likely the right knee would have become symptomatic in the absence of injury to the left knee.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in the degree of the s 323 deduction applied, given the evidence before them disclosed the appellant was asymptomatic in the relevant body systems prior to the work injury on 26 October 2017. She submitted the Medical Assessor’s finding the preexisting arthritis was the reason for needing a knee replacement was unsupported by the evidence and contrary to the radiological material before him. Additionally, the appellant submitted the Medical Assessor failed to provide adequate reasons for making the s 323 deductions which he applied.
In reply, the respondent submits there was no demonstrable error or use of incorrect criteria by the Medical Assessor as those terms have been defined in the authorities, sufficient to enliven an appeal point. The respondent also submitted the s 323 deductions were open to the Medical Assessor based on his clinical findings on examination, and a mere difference of opinion between doctors is no sufficient to ground a finding of error. The respondent also submitted the Medical Assessor provided sufficient reasons for his decision by providing sufficient detail to determine the clinical and factual rationale for the Medical Assessor’s assessment.
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.
There is no issue the appellant had preexisting osteoarthritis in her knees. The Medical Assessor found with respect to both knees that the “the deductible proportion is large and a deduction of one-tenth is at odds with the available evidence.” However, the Medical Assessor does not set out what constitutes that available evidence or why it is the indication for the left total knee replacement was the previously asymptomatic osteoarthritis as opposed to the injury which rendered the knee symptomatic.
The mere presence of preexisting pathology is not a sufficient reason to make a deduction pursuant to s 323 of the 1998 Act. In Southwell v QANTAS Airways Limited [2024] NSWSC 497, Wright J noted that to enliven s 323, a Medical Assessor:
“… is required to conclude that a part or portion was due to the pre-existing condition and not the workplace injury and a part or portion of the level of impairment was due to the workplace injury (along or together with the pre-existing condition). If the only finding was that no level of impairment would have been suffered but for both the pre-existing condition and the workplace injury, it follows that no part or portion of the level of impairment was due to the pre-existing condition and not the workplace injury and, thus, s 323(1) was not engaged and no deduction was required under that section.”
The Appeal Panel is of the view the Medical Assessor erred in not providing sufficient reasons as to why the preexisting, but asymptomatic condition was the primary indicator for the left total knee replacement, or for why a deduction beyond 1/10th is appropriate in the circumstances.
The radiological evidence in the left knee taken in the months and years post-injury but before the total knee replacement reveals the preexisting pathology in the left knee was mild. An X-ray taken six months post-injury demonstrated no joint space narrowing and only “slight to moderate” degenerative change of the tibiofemoral and patellofemoral joints. Additionally, treating surgeon Dr Morton noted the chronicity of the appellant’s post-injury symptoms, including after an arthroscopy in 2018 was the precipitating factor for the total knee replacement surgery.
Having established the error in relation to the left knee, it is necessary to determine what, if any, deduction pursuant to s 323 is appropriate.
On balance, the Appeal Panel is of the view the preexisting impairment to the left knee warrants a 1/10th deduction pursuant to s 323(2) of the 1998 Act. Although the evidence establishes the knee was asymptomatic before the injury at issue, there was plainly relevant pathology present, albeit pathology best described as mild, and which was made symptomatic by the injury which aggravated it. Such a deduction is not at odds with the available evidence, which confirms the appellant had no left knee symptoms before the relevant injury.
In this matter, there was no history of prior knee injury, congenital deformity, malalignment or other predisposing medical factor which indicates there would have been accelerated osteoarthritis of the left knee had there been no injury. The lack of history of prior knee complaint is, in the opinion of the Appeal Panel, significant in that the appellant as a community nurse and disability support worker, would have been on her feet for much of her working day.
The meniscus tear suffered in the injury at issue and the requirement for partial meniscectomy is accepted by the Appeal Panel as a factor which accelerated the degenerative changes and contributed to the progression of those changes by 2021 when the decision was made to pursue knee replacement surgery. Having considered all of the available evidence, the Appeal Panel is therefore of the view that the appropriate s 323 deduction is 10%.
Having so found, the left knee will therefore have an impairment of 18% WPI.
In relation to the right knee, the evidence also discloses error on the part of the Medical Assessor in assessing a 50% deduction. There is also no issue the right knee was asymptomatic before the injury at issue, and the radiological evidence does not warrant a deduction of such magnitude. An X-ray taken in March 2022 revealed no joint space narrowing and only small marginal osteophytes described as being “in keeping with early osteoarthritis.”
There is no evidence sufficient to support a deduction of 50% in relation to the right knee. As such, the Medical Assessor erred in assessing so large a deduction. Additionally, the Medical Assessor provided insufficient reasons for finding a 50% deduction was warranted.
The right knee injury was in the nature of a consequential condition which aggravated previously asymptomatic arthritis through a chronic antalgic gait first identified by the appellant’s physiotherapist in 2018. The appellant continued to work for approximately three years after the identification of the antalgic gait, however, the right knee was not investigated until 13 October 2020, some three years post-injury.
The Appeal Panel considers it reasonable to assume the degree of degeneration in the right knee, absent preinjury complaint, would have been commensurate at the date of injury with that of the left knee.
In circumstances where there is no evidence of complaint of right knee symptoms pre-accident, there is no evidence, contrary to the views of the Medical Assessor, that the appellant would have developed the relevant pathological changes in her right knee absent the injury and subsequent three-year history of walking with an antalgic gait.
The Appeal Panel is also of the view a 10% deduction is warranted in relation to the right knee owing to the presence of mild pathology in the relevant body system at the date of injury. As such, the deduction of 0.4% would lead to a 3.6% WPI rating, rounded up to 4% WPI, such that the assessment of 4% WPI for the right lower extremity will be assessed in its entirety.
Using the combined charts, AMA5 Pages 604-606, the appellant’s WPI will therefore be assessed at 21%.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 October 2024 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: | W23713/24 |
Applicant: | Katherine Anne Beatty |
Respondent: | Health Management & Administrative Solutions Pty Ltd |
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 Kuru 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 NSW workers compensation guidelines | 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) |
| 1.Left lower extremity (knee) | 26/10/2017 | P 21 T 17.35 | P 547 17.33 | 20% | 1/10th | 18% |
| 2. Right lower extremity (knee) | 26/10/2017 | P 536 17.10 | 4% | 1/10th | 4% | |
| Total % WPI (the Combined Table values of all sub-totals) | 21% | |||||
0
2
0