Blyton v State of New South Wales (Murrumbidgee Local Health District)
[2022] NSWPICMP 352
•8 September 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Blyton v State of New South Wales (Murrumbidgee Local Health District) [2022] NSWPICMP 352 |
| APPELLANT: | Annette Blyton |
| RESPONDENT: | State of New South Wales (Murrumbidgee Local Health District) |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| MEDICAL ASSESSOR: | Dr Margaret Gibson |
| DATE OF DECISION: | 8 September 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION- The appellant appealed the deductions pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 made by the Medical Assessor (MA); Panel accepted the deductions made by the MA were inconsistent with all the evidence; no adequate reasons given by MA; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 May 2022 Annette Blyton (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Long, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 5 April 2022.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 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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.
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 one was requested, we consider that we have sufficient evidence before us to enable us to determine the appeal for reasons that will be outlined in due course.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
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 MA erred in the deduction he made pursuant to s 323 of the 1998 Act, and further erred in questioning the validity of the findings made about injury.
In reply, State of New South Wales (Murrumbidgee Local Health District) (the respondent) submits that no errors were made.
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 appellant was referred to the MA for an assessment of losses and whole person impairment (WPI) resulting from an injury on 25 August 2001. The body part referred for assessment under the Table of Disabilities was the back. With respect to WPI the body systems to be assessed were the “lumbar spine, the left lower extremity (knee), and the right lower extremity (knee) – consequential injury.”
The MA assessed the permanent impairment of the back under the Table of Disabilities as 35%. The appellant does not challenge this primary assessment.
The lumbar spine was assessed as 23% WPI, the right lower extremity at 15% WPI and the left lower extremity at 20% WPI. Again, the appellant does not challenge this assessment.
The appellant however challenges the deductions made by the MA pursuant to s 323.
The MA obtained the following history:
“The injury occurred at work on 25 August 2001 when Ms Blyton was assisting a patient. She injured her left knee and jarred her lumbar back. The injury was reported to a supervisor who signed the ‘Staff Incident Report Form’ on 27 August 2001 and the form was further signed by the manager on 7 September 2001. See attachment. No witnesses to the injury were recorded. The injury to left knee and lower back was recorded as ‘minor injury, treatment required. Panadol for pain.’ Annette Blyton continued working that day but had to take analgesics.
She returned to work but the pain in her knee increased and she attended her general practitioner, Dr Mary Ross, on 11 September 2001. Dr Ross did not record any clinical findings other than ‘letter written re KNEE. Letter written to Dr Vinny Mamo (orthopaedic surgeon)-re knee’. However in spite of the lack of recorded clinical data at consultation 11 September 2001 in a letter dated 9 November 2007 to Mr T Hogno, Maurice Blackburn Cashman, Dr Ross was able to state: ‘I consulted Annette Blyton shortly after the incident... her left knee was tender along the lateral aspect. Her flexion was limited by pain. There was no marked swelling and the knee joint was stable…I have prescribed simple analgesia...’ (the records indicate prescriptions for Fentanyl patches and Panadeine Forte)...Mrs Blyton states low back pain is worsening …’
On 25 September 2001, Dr Vinny Mamo, Orthopaedic Surgeon, in a letter to GIO indicated, following consultation with the worker on 20 September 2001 (26 days following the injury) ‘X-rays from 15 October 1997 show advanced tri-compartmental osteoarthritis in her knee and repeat x-rays on 30 October 1998 and 06 September 2001 show a slightly worsening degree of arthritis in all three compartments of the knee (left knee) …’ In conclusion, Dr Mamo indicated, ‘This lady has had pre-existing tri-compartmental osteoarthritis in her left knee, which has been rendered more symptomatic by the recent incident …I've alerted this lady that she will need total knee replacement because of her pre-existing osteoarthritic changes, which has been rendered more symptomatic (by the injury of 25 August 2001) but in view of her youth, this should be avoided as long as possible…’ She was provided with symptomatic treatment in the left knee and this included Synvisc injections left knee, which provided only temporary relief.
She had been placed off work for about six weeks before returning to modified duties. She began to develop similar symptoms in her right knee although there was no history of injury to that joint. 19 June 2003 Dr Ross first recorded ‘now complaining right knee pain…’ She was walking with a limp and had been placing more weight on the right knee and believed that this had led to the symptoms in the right knee. 24 January 2007 Andrea Arragon, physiotherapist in a report to Maurice Blackburn Cashman indicated ‘Mrs Blyton initially attended my practice on 25/09/2001 following a work place incident on 25/08/2001. She reported severe left knee pain since the incident. She did not report lower back pain in her past or current history to me. However it is noted on the staff incident report form dated 25//08/2001… Mrs Blyton reported to me on 10/08/2005 that she was experiencing lower back pain and had done so for the previous 2 weeks…’
Conservative treatment for her knees failed.
On 19 October 2005, operation- bilateral knee replacement surgery. Subsequently the symptoms in her knees decreased but she noted increasing pain in her lumbar back associated with her different gait following bilateral total knee replacements. 10 October 2006 Dr Ross recorded ‘patient states that she has low grade back pain for 8 years (i.e since 1998, on my calculation)- Dull ache in saddle area no radiation to buttock. Charted in diary since surgery. Low back pain intensified and changed in nature. Now radiates to right buttock. Less severe left buttock…’ The back pain began to radiate into her legs. She received physiotherapy and was advised to lose weight. In a report by Dr Bentivoglio, Neurosurgeon, dated 02 February 2007 indicated the following:
‘A C T dated 2 March 2010 ‘shows grade I spondylitic spondylolisthesis secondary to bilateral PARS defects which is something she has been born with. Ms Bly/on suffered an exacerbation of spondylitic spondylolisthesis secondary to lifting injury in 2001…As usual, it (spondylolisthesis) starts to present in the fourth or fifth decades of life and this is exactly. what its doing with her and she has considerable mechanical back pain which is preventing her from really getting back into the appropriate workforce. She needs to lose a considerable amount of weight. This will take the stress off her lower back and if any operative intervention is necessary will certainly decrease the morbidity associated with such surgery.’
In February 2009, gastric sleeve surgery was performed and she lost approximately 30 kg in weight to 74 kg. Weight loss increased her back pain.
From 2011, she began having a series of falls which she has documented in her statements of 16 August 2019, 27 October 2021 and sustained various injuries to her shoulders, back, knees and left ankle. These numerous falls she believed were due to her knees, particularly the left knee ‘giving way’. There were 25 or more of these falls but in only two was the incident reported and recorded by medical/paramedical personnel. She records that on 18 February 2014, ‘I felt severe pain in the legs which caused me to fall … I felt pain in my left side, my wrist, arm, shoulder and knee. My left eye was bleeding. I was taken to the doctor and given pain relief …’. Another incident on 06 June 2016 involved a fall when a dog became entangled in her crutches. This followed right hip replacement and caused pain and bruising in her back and right hip. She was taken by ambulance to the Bega Hospital and analgesics prescribed. Apart from soft tissue injury with bruising no other injury was sustained. The recent right hip surgery was not compromised. With another fall she injured her left ankle and both shoulders but again, did not seek medical attention.
On 06 May 2016, operation right total hip replacement.
On 27 October 2016, operation L5/S1 laminectomy – microdiscectomy – posterior interbody fusion. Postoperatively, her back pain and radicular symptoms were much improved and less analgesic was required.”
After setting out details of the appellant’s present treatment, the MA noted present symptoms as follows:
“• Lumbar Back: Intermittent pain low lumbar back aggravated by physical activity, walking and standing. The pain spreads to the buttocks and posteriorly to the knees-more so the left knee. The pain is more intense in the left buttock. With activity the pain reaches 9/10 in severity. The pain is aggravated by coughing and sneezing. Panadeine Forte provides some relief.
• There is numbness involving the entire left foot, more pronounced when she is standing.
• Left Knee: Pain in her back seems to radiate to the left knee. She is aware of intermittent swelling in the left knee. Pain in the left knee subsides when she is able to elevate her leg. She has a sense of instability in the left knee which she associates with her frequent falls.
• Right knee: Few symptoms.
• Urinary Symptoms: Stress urinary incontinence in the past.
• Bowel Symptoms: Nil.
• Sleep: Interrupted by pain in her back and left knee and she frequently arises at 3:00 am because of pain. Overall, her pains are relieved when she can lie flat.
• Gastrointestinal Symptoms: Nil.
• Emotional Factors: Depression has been a feature and is being treated by her general practitioner. Efexor has been prescribed. She has not attended a psychologist or psychiatrist. Details of any previous or subsequent accidents, injuries or condition:
• In 1966 following a sporting injury left knee, left open medial meniscectomy.
• In 1982, because of ongoing symptoms in the left knee, operation. Patellar realignment – lateral release. Subsequently, Ms Blyton indicated she had occasional aching in the left knee but no pain in her right knee.
• It is noted in general practitioner consultations prior to the injury of 25 September 2001, particularly throughout 2000, the worker was prescribed Fentanyl 50 mcg patches to apply weekly. Celebrex anti inflammatory drug was also prescribed from time-to-time. The general practitioner summary notes indicate simply ‘osteoarthritis 14 September 2000’ but do indicate where the osteoarthritis was situated, nor the reason for repeatedly prescribing Fentanyl patches with the dose throughout 2000 being increased from 50 mcg/24 hours to 100mcg/24 hours. Comment: It is probable, based on the past history of injury and surgery to the left knee; the imaging study reports and the probable (but not proven with the documents provided) use of Fentanyl pain patches prior to the work injury on 25 August 2001, that the worker had significant symptomatic osteoarthritis affecting her left knee before the work injury. These symptoms would have been sufficient to have imaging studies left knee undertaken on 15 October 1997, 30 October 1998 and following the work injury of 25 August 2001, on 06 September 2001. The X ray report dated 2 November 1998 (but undertaken 30 October 1998) indicated the referral was made by Dr John McAlpine. I was unable to ascertain whether this doctor, at that time, was part of Connection Medical Centre or separate and whether his medical records or summary were incorporated into those of Connection Medical Centre.
• In her statement of 16 August 2019, Annette Blyton indicated previous work injuries:
▪ 10 December 1978, ‘I felt back pain when lifting a patient into bed …’.
▪ 04 August 1979, ‘I bruised my forearm when I was struck by a patient …’
▪ 06 April 1982, ‘I jarred my lower right side of my abdomen when I was lifting a patient from a chair to the bed …’
▪ 23 August 1999, ‘I injured my shoulder, neck and back after lifting a patient …’.
Ms Blyton could not explain why throughout 2000 she required Femtran 50 patch (Fentanyl 50 mcg/24 hours) – applied weekly and how in April 2000 this was increased to Femtran 100 patch (100 mcg/24 hours). It was noted that Femtran 100 patches continued to be prescribed, from time to time, following the work injury of 25 August 2001.
Dr Mamo in a letter to Maurice Blackburn Lawyers dated 26 June 2009 noted with regard to previous injury ‘symptoms left knee prior to the work injury of 25 August 2001. In the 12 months prior to the injury she did have pain in the left knee and this would occur about once every three months and would last for about I hour. Once the pain subsided she was able to return to normal duties. At the time of initial consultation this lady weighed 114kgs and stood with bilateral varus deformities of her knees… ‘
I did not obtain this history of 12 months previous pain left knee although the worker had explained that she did have occasional discomfort in her left knee from time to time since the second left knee operation.”
The MA then commented on Ms Blyton’s general health before her injury and her background and work history, before setting out details of the effects of her injuries on her activities of daily living.
The MA then set out his findings on physical examination which, due to the issue on appeal it is not necessary to set out in detail here.
The MA then documented the radiological material he had before him, emphasising the reports that indicated any “longstanding” findings to which we will refer more fully below.
In summarising the injuries and diagnoses, the MA said:
“Ms Annette Blyton who is now 67 years of age sustained an injury to her left knee and back at work on 25 August 2001. This was reported to her supervisor who signed the Staff Incident Report Form 2 days later on 27 August 2001. It was not until 11 September 2001, 17 days following the injury that the worker consulted her general practitioner, Dr Mary Ross, who did not document the injury but under ‘actions’ indicated: The worker's diary ‘Letter written – re knee. Letter written to Dr Vinny Mamo (Orthopaedic Surgeon) re knee …’. These referral letters were not found in the provided documents.
This injury was accepted as a work injury under workers compensation.
It was not until 19 June 2003 that Dr Mary Ross indicated, ‘Now complaining right knee pain … degenerative arthritis right knee was confirmed on imaging studies.’ On 10 August 2005 Ms Blyton first mentioned back pain to the physiotherapist who had been treating he left knee since the work injury On 20 October 2005 bilateral total knee replacement surgery was undertaken with improvement of knee symptoms. Dr Mary Ross in consultation on 10 October 2006 records, ‘Patient states that she has had low back pain for eight years (that is since 1998 and before the work injury of 25 August 2001) dull ache in saddle area. No radiation to buttocks. Charted in diary since surgery (knee replacement surgery) low back pain intensified and changed in nature. Now radiates to right buttock less severe left buttock …’
Congenital spondylolisthesis at L5/S1 was confirmed on imaging studies. She developed evidence of radiculopathy and this was initially treated conservatively and she was advised to lose weight.
February 2009, bariatric surgery was undertaken and subsequently she lost 30 kg of weight.
She was developing pain in the right hip which was aggravated when she attended a physiotherapist (06 June 2009 quoting the claimant’s statement 16 August 2019)-and probably as a result of one of her many falls since 2011.
On 06 May 2016, right total hip replacement surgery was undertaken.
On 27 October 2016, spinal surgery at L5/S1 laminectomy, microdiscectomy and posterior interbody fusion was undertaken.
Ms Blyton continues to have significant ongoing pain with physical activity in the lumbar spine and some radiation into her legs, particularly the left leg, extending to the left knee, and sensory changes mainly left lower leg and feet. However, there was no clinical evidence of radiculopathy on the present examination as defined in the Guidelines… She has ongoing pain in the left knee with intermittent swelling. The right knee has few symptoms.
Because of mostly, (not reported), recurrent falls she has sustained a variety of injuries to her shoulders, lumbar back, right hip, knees and left ankle. The majority of these injuries were not confirmed by medical examination. Ms Blyton indicated they occurred because her left knee gave way. However, on clinical examination no evidence of instability in the left or right knee was identified…
In spite of documented evidence of extensive pre-existing changes in her left and right knees and lumbar back these have been poorly recorded by her general practitioners. Further, the original injury described as ‘minor’ by the hospital and most inadequately by her general practitioner on 11 September 2001, has resulted in many subsequent compensation claims, many of which have been accepted and as noted, to be included in the present assessment.
Pre-existing changes (symptoms, signs, appropriate investigations) prior to the work injury are regarded as very significant in this case. Unfortunately they have been poorly documented. Annette Blyton had sufficient symptoms left knee to warrant X ray left knee 15 October 1997 and 2 October 1998 however her medical history for that period was not provided. Copy of Patient Health Summary, Connection Medical Centre was provided 3 February 2000 - 7June 2011. From a medical point of view the copy of this record up to and following the work injury is regarded as inadequate in recording symptoms and signs. Significantly these records do not explain the reason for the regular prescribing of Fentanyl patches (a narcotic) up until the consultation on 1 May 2001, prior to the work injury on 25 August 2001.”
The MA added:
“Ms Annette Blyton was co-operative and pleasant throughout the consultation but for a nurse had a poor recollection of details including her present drug regimen. She denied any significant symptoms with regard to her back, left knee or right knee prior to 25 August 2001, although the provided, limited documentation suggests otherwise…”
The MA confirmed that the left knee. the right knee and the lumbar spine were “affected by the previous injury, pre-existing condition or abnormality.” He also referred to “subsequent injuries” being the various falls Ms Blyton had mentioned.
After setting out details of his assessments, the MA then turned to consider the other medical opinions stating:
“14 April 2009, Dr James Bodel, Orthopaedic Surgeon, report: Dr Bodel indicated:
‘This lady has suffered an aggravation to pre-existing arthritic changes in both knees as a result of the injury on 25 August 2001. She has also suffered an aggravation of an underlying spondylolisthesis with some associated disc pathology at the time of that injury on 25 August 2001… this lady has suffered a material aggravation of longstanding pre-existing degenerative change in both knees as a result of the injury on 25 August 2001. She has probably suffered a disc rupture at L5/S1 level in a vulnerable spine associated with the pars interarticularis defects and the spondylolisthesis which also occurred at that time …’
Dr Bodel further states:
‘This lady’s clinical arthritic pathology in both knees was not caused by the accident on 25 August 2001. There was however a material aggravation of the longstanding preexisting pathology as a result of that injury. The disc injury at the L5/S1 level, however, probably was caused by that accident.’
Dr Bodel, referring to her injury and acknowledging the pre-injury changes indicated: ‘But her clinical condition rapidly deteriorated after that injury. Had it not been for that event her symptoms may have been manageable for a lot longer than has been the case.’
Dr Bodel also pointed out that the worker ‘was a very active person outside the workplace prior to this injury. She had been playing netball up until 1997 and coaching and umpiring after that.’”
The MA then set out the assessments made by Dr Bodel before adding:
“Comment: Although injury to her left knee and the consequential injury to her right knee and injury to her lumbar spine on 25 August 2001 have been accepted, thorough examination of the extensive documentation does not soundly establish causation in this case. The injury was signed by hospital staff, two days following the injury, described as ‘minor’ and she was not seen by a medical practitioner following the injury until 11 September 2001, where the doctor has not recorded the injury and simply stated, ‘letter written to Dr Vinny Mamo (Orthopaedic Surgeon) re knee …’
The symptoms in the right knee, which had not sustained any recorded injury, are claimed as a consequential injury, were not recorded by her general practitioner until 19 June 2003.
It was not until 10 August 2005 that her regular physiotherapist, since the work injury, first recorded ‘she was experiencing lower back pain.’ 10 October 2006 her general practitioner recorded low-grade back pain which had been present for eight years (i.e since 1998). The delay in reporting her back symptoms following the injury suggests that no significant injury to her back was sustained on 25 August 2001.
An X- Ray lumbar spine 30 November 2006 revealed a significant, congenital, ‘bilateral L5 pars interarticular defects with 0.5cm anterolisthesis of L5 on S1’…
The deductible proportions indicated by Dr Bodel as pre-existing, cannot be justified on the evidence provided above.,,
In Summary, regarding Dr Bodel's deductions: Back: ‘Two thirds of this is due to the injury that occurred on 25 August 2001…The worker only sustained a minor injury to her back…
17 September 2018, Dr James Bodel, Orthopaedic surgeon, report in which he determined and overall impairment of 55% WPI as a result of the injury of August 2001 to both shoulders; cervical spine; lumbar spine; right hip and right and left knees. This included a 22 % WPI, lumbar spine from which he deducted a nominal 1/10th for the pre- existing spondylolisthesis…
Dr Bodel determined an impairment 15%WPI respectively for each the right and left knee from which no deduction has been made. Combining Dr Bodel's impairment for lumbar spine and right and left knees results, on my calculation, as 44%WPI-due to the poorly documented work injury of 25 August 2001…
25 November 2019, Dr James Bodel, Orthopaedic Surgeon, further report: in which he relates a number of non-medically documented falls and injuries. Dr Bodel indicated: ‘I am still satisfied that there is a causal link between all the areas of injury and the original injury that occurred at work on 25 August 2001 …’ These injuries included shoulders and right hip as well as the alleged injuries to the lumbar back, left knee, left ankle and consequential injury right knee were mostly not medically documented nor any permanent injury form them recorded.
10 September 2009 Dr Richard Powell, Orthopaedic Surgeon, report: indicated: ‘I believe Ms Blyton is suffering from the following: 1. Permanent impairment of the back of 15%. This is entirely constitutional in nature and in my opinion not related to her employment with the Greater Southern Area Health Service. 2. Permanent loss of efficient use of the left leg of 30%. I would attribute two-thirds of this to the presence of the significant pre-existing pathology, and the remaining one-third as a result of permanent aggravation provided by the workplace incident in 2001. 3. Permanent loss of efficient use of the right leg of 30%. This is entirely related to pre-existing pathology and I do not believe there is any permanent impairment as a result of the employment with Greater Southern Area Health Service…’
31 March 2021, Dr Richard Powell, Orthopaedic Surgeon, report: noted that liability had been accepted for both knee injuries and subsequently both knee replacements; and that liability had not been accepted for her lumbar spinal condition…Dr Powell did not provide an impairment for lumbar spine. His ultimate impairment right knee 15%, left knee 5% and scarring 1% giving a 20% WPI.
I am in agreement with the reasoning in this assessment…Dr Powell applied no deduction for the right knee. However, it is considered a deduction should apply to the right knee based on the degenerative changes pointed out by Dr Bodel when interpreting X rays right and left knees of 6 September 2001, 12 days following the work injury. It could be argued that as the right knee is a consequential Injury to injury of her left knee that the deducible proportion for the left knee should apply to the right knee. However in this assessment a half deduction based on pre-existing degenerative change right knee will be applied.
With regards to the deducible proportion left knee, based on the pre-existing imaging studies; the probable ongoing symptoms left knee - probably requiring repeated narcotic pain relief; the paucity of medical information about the injury, a greater deduction than indicated by Dr Powell applies, and this is determined in the present assessment as 4/5.”
The MA assessed 35% impairment of the back (Table of Disabilities) from which he deducted 4/5ths, leaving a total impairment of 7%.
He assessed 23% WPI for the lumbar spine from which he again deducted 4/5ths, leaving a total (rounded) of 5% WPI.
He assessed 20% WPI for the left lower extremity and again deducted 4/5ths, leaving a total of 4% WPI.
He assessed 15% WPI for the right lower extremity from which he deducted one-half, leaving a total (rounded) of 8% WPI.
The appellant commenced her submissions by helpfully summarising the principles relating to the application of s323 with which we agree. We will refer to them more fully in the body of our decision where applicable.
The appellant makes the following submissions:
“When assessing the lumbar spine the MA said ‘Lumbar spine: Congenital bilateral L5 pars interarticular defects spondylosis at L5/S1 with documented pain in the lumbar back since about 1998 prior to the said work injury and before as indicated by the worker to her doctor on 10 October 2006. It is acknowledged that this pain would increase through aggravation with her abnormal gait following right and left knee replacement surgery. However, it is known that symptoms from spondylosis at this level tends to increase spontaneously with age.’
The MA does not appear to accept the finding that there had been injury to the lumbar spine on 25 August 2001. The MA only considered the lumbar spine as a consequential injury. This is further apparent from his observation in the summary that the Appellant first mentioned back pain to the physiotherapist on 10 August 2005.
The MA said:’ In retrospect, causation of the injury of 25 August 2001has been based on minimal documented medical evidence. However, injuries to the left knee, right knee and lumbar back in the injury of 21 August 2001 have been accepted for compensation. Therefore, the deductible proportion of each injury in this case is regarded as very significant.’
The MA has exposed the real basis for his deductions. The deductions are made because he questions the validity of the findings about injury. He has proceeded on the basis that he questions those findings and has reduced the assessment because of his doubts.
The MA has gone beyond his jurisdiction. The question of injury had been determined and he was required to accept that determination. The MA’s views about the correctness of that determination are not only irrelevant but disclose an error in the approach adopted when making the assessment. The strength of the evidence establishing injury is not a relevant factor when considering section 323.
The MA also did not appear to consider the causal connection between the accepted back injury and the lumbar surgery. He makes no mention of the surgery when considering the deduction although it is the surgery that forms the basis for the assessment of impairment.
It is also apparent that the MA did not properly consider the evidence about any prior condition in the lumbar spine. He did not have any investigations into the lumbar spine that pre-dated the injury. The earliest imaging referred to is the CT scan of 30 November 2006 (5 years after the injury) which disclosed some spondylosis. The MA does not explain how that imaging or any of the later imaging demonstrates a medical condition that existed prior to August 2001…
Rather than properly consider the extent to which there may have been a pre-existing condition the MA has proceeded on the basis that there is a condition of spondylosis present at the time of assessment and has made a deduction on the basis of that condition. By adopting that approach he has made the error of making a deduction for a concurrent condition. Section 323 only authorises deductions for conditions that pre-date the work injury. There is no basis for making a deduction because there are other factors contributing to the impairment at the current time. Absent section 323 the entire impairment results from any injury that materially contributes to it. (Murphyv Allity Management Services Pty Ltd [2015] NSWWCCPD 49)…
The only evidence of a pre-existing condition in the lumbar spine referred to by the MA was reference to a history taken in October 2006 that the Appellant had back pain for 8 years. The MA also referred to a history of a back injury in December 1978 but without documentation of subsequent events. He did not try and reconcile this history with his other observation that there was no complaint of back pain to her treating therapists until August 2005. The MA considered that the lack of complaint indicated there was little wrong with the Appellant’s back at that time but thought that there must have been a significant pre-existing back condition based upon one history. The materials before him did not disclose any treatment to the back in the years leading up to August 2001. The MA was required to explain why he was drawing these apparently conflicting conclusions.
In any event the MA has failed to consider whether the underlying spondylosis in fact contributes to the impairment.
His reasons say no more than there is a congenital spondylosis that had been productive of pain since 1998. Pain is not one of the factors that is considered when assessing impairment of the lumbar spine. The assessment was based on the surgery and its outcome. The MA has not explained how the pre-existing condition… has contributed to the impairment. He has certainly given no consideration to the important question of whether the spondylosis… meant that the impairment is greater than would have otherwise been the case.
The only evidence of pre-existing problems in the lumbar spine is a single history that suggests that the Appellant had some back pain prior to 2001. The level of that pain was insufficient to require any treatment…The MA did not make any enquiry with the Appellant to determine the accuracy of the one clinical note and made no enquiry about the nature of any back pain prior to 2001.
When the evidence is properly considered there is no evidence to establish whether there was pre-existing condition in the lumbar spine in the relevant sense. The first evidence of spondylosis is 5 years after the injury and accordingly could be the result of the injury. The MA gave no reasons for his view that the spondylosis was congenital (i.e. present from birth). Even if it is accepted that there would have been some pre-existing spondylosis there is no evidence of its extent prior to August 2001…
Properly considered the conclusion should be that there is no basis for a section 323 deduction in respect of the lumbar spine.
In the alternative the extent cannot be determined and the evidence is not inconsistent with a deduction of 10%.”
We agree in general with the appellant’s submissions for reasons that follow.
To begin with, lumbar spondylosis is a very common condition, and it is thus not surprising that the appellant suffered from this condition.
Importantly, as the appellant points out, it was this condition, made symptomatic by the injury, which led to the surgery. The assessment was required to be based on the surgery and its outcome.
Moreover, the MA has not explained how the pre-existing condition has contributed to the impairment.
We agree with the appellant’s primary submission that the MA exceeded his jurisdiction by clearly questioning the causation of the injury of 25 August 2001 which he said “has been based on minimal documented medical evidence.”
As the appellant correctly pointed out, “the question is the extent to which any spondylosis that existed in August 2001 contributed to the impairment.”
The pre-existing condition must contribute to the impairment being assessed. (Cole vWenaline Pty Ltd [2010] NSWSC 78 and Elcheikh v Diamond Formwork (NSW) PtyLtd [2013] NSWSC 365). In order to make a deduction the pre-existing condition must mean that the degree of impairment is greater than it otherwise would have been (Ryder v Sundance Bakehouse) [2015] NSWSC 526.
Having said that, cl 1.28 of the Guidelines provides that, the deductible proportion which pertains to a pre-existing condition or abnormality “is 1/10th of the assessed impairment, unless that is at odds with the available evidence”.
In our view, the available evidence certainly confirms a pre-existing condition which we consider has contributed to some extent to the overall impairment. And equally all the available evidence suggests to us that a deduction of one-tenth is appropriate.
Turning now to the assessment of the right lower extremity, the appellant submits as follows:
“The MA said ‘x-rays of both knees on 12 May 2005 reveals similar tri compartmental degenerative changes in both knees, indicating major changes in the medial compartment and patellofemoral. The radiologist indicated marked wearing of the medial joint compartments bilaterally but more marked on the left side…These degenerative changes were present prior to the injury on 25 August 2001. However, it is acknowledged that her subsequent abnormal gait would be responsible for some aggravation of these pre-existing changes right knee. The deductible portion right knee is determined as one half.’
The reasons do not disclose any explanation that actually compares or explains any contribution of the pre-existing degeneration to the current impairment. The MA’s statement is in reality no more than a statement that because there is a pre-existing condition there must be a deduction. That approach is wrong and has regularly been rejected by the Courts.
The current impairment was assessed on the basis of a good outcome following knee replacement surgery. It is not apparent how a degree of pre-existing degenerative change is contributing to the current impairment. The consequence of the knee replacement is that the degenerative change is no longer present. There is no evidence that the outcome of the surgery has resulted in a greater impairment because of the degenerative change. 15% is the minimum impairment after knee replacement surgery. Logically the pre-existing degenerative change could not have resulted in a greater impairment. In the circumstances there is no basis for any deduction.
In the alternative the evidence does not establish to what extent the pre-existing degeneration contributes to the current impairment if it contributes at all. As with the lumbar spine when the extent is unknown it cannot be said that the assumption of 10% deduction is inconsistent with the medical evidence. Accordingly any deduction can be no greater than 10%.”
Again, we agree with the thrust of the appellant’s submissions.
The MA has fallen into error by assuming that because there is a pre-existing condition there must be a deduction. His statement that “The deductible portion right knee is determined as one half” is without explanation.
Having said that, the evidence and the radiological material in particular demonstrates that there were moderately significant degenerative changes in the right knee.
We accept the appellant’s statement that she had no prior symptoms in her right knee.
In all these circumstances, we agree that a deduction of one-tenth is appropriate and consistent with the totality of the evidence.
Turning now to the to the left lower extremity, the appellant submits:
“The MA said ‘with regards to the deductible proportion left knee, based on the pre-existing imaging studies; the probable ongoing symptoms left knee – probably requiring repeated narcotic pain relief; the paucity of medical information about the injury, a greater deduction than indicated by Dr Powell applies, and this is determined in the present assessment as 4/5.’
The MA refers to the evidence of pre-existing arthritis and the fact that in September 2001 Dr Mamo alerted the Appellant that she will probably need a total knee replacement but this should be avoided as long as possible. Dr Mamo was saying nothing more than she would need a replacement at some time in the future. The assessor considered that without the work injury the knee replacement surgery would have been necessary. He does not address the question of when the surgery would have been necessary and whether the work injury has accelerated that process.
Again the MA has not addressed the proper question. He has done no more than identified a pre-existing condition and assumed that because there is such a condition there must be a significant deduction. Again there is no explanation about how the pre-existing degenerative change contributes to an impairment that is based on the fact that there had been knee replacement surgery albeit with a fair result. There is no analysis about whether the pre-existing degenerative change has affected the outcome of the surgery. It is not obvious why the extent of the degeneration would affect the outcome. The surgery removes the degenerated knee and replaces it. After the surgery the degeneration has been removed and cannot be contributing to the current impairment. This is because it is no longer present.
In any event the MA did not give any explanation as to why the current impairment is greater because of the pre-existing condition. Again he has by necessary implication accepted that the surgery results from the work injury. For the pre-existing condition to give rise to a deduction it has to be shown that the impairment is greater than it otherwise would have been. There is no evidence that this is the case and the MA has not addressed that question.
Furthermore the MA has taken into account an irrelevant consideration. He has in part justified his deduction because there is a paucity of information about the injury. The quality of the evidence is not a relevant consideration.
The only relevance of the paucity of information is that it makes it difficult to determine the extent of the injury. Accordingly it is difficult to conclude whether the initial effects of the injury are severe or not. In the absence of that material the extent of the deduction cannot be determined. it also cannot be determined that a deduction of 1/10 is inconsistent with the medical material.
In any event the MA did not address the question of whether a 1/10th deduction was inconsistent with the medical evidence in respect of any of the body parts. This was also a failure to give reasons. It is also consistent with the fact that the Assessor never addressed the proper question which is how does any pre-existing condition contribute to the current impairment…”
Many of the appellant’s submissions on this issue have weight, but we point out the following.
As the MA noted, the appellant had a left open medial meniscectomy following a sporting injury. In 1982, because of ongoing symptoms in the left knee, she underwent a patellar realignment – lateral release, following which she “indicated she had occasional aching in the left knee…”
An open meniscectomy exposes the joint surfaces which inevitably leads to the onset of arthritis. The evidence discloses well-advanced arthritic changes in the left knee which ultimately led to the need for the knee replacement.
We do not agree with the appellant’s submission that a one-tenth deduction was consistent with the medical evidence because of the extent of the pre-existing condition.
We agree that the MA failed to give adequate reasons for the deduction he made and also fell into error regarding the “paucity” of evidence which, as the appellant correctly points out, is not a relevant consideration with respect to the assessment of impairment.
Having carefully considered all of the evidence we have determined that a one-half deduction is appropriate and consistent with all of the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 April 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
MEDICAL ASSESSMENT CERTIFICATE
Table 1 - Assessment in accordance with the Table of Disabilities for injuries received before 01 January 2002.
This Certificate is issued pursuant to s 325 of the Workplace Injury Management and Workers Compensation Act 1998
Matter Number: W4290/21
Applicant: Annette BLYTON
Date of Assessment: 24 February 2022.
This Certificate is issued pursuant to s 325 of the Workplace Injury Management and Workers Compensation Act1998.
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition (expressed as a fraction) | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| Back | 25.08.21 | 35% | 1/10 | 32% |
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W4290/21 |
Applicant: | Annette BLYTON |
Respondent: | State of New South Wales (Murrumbidgee Local Health District) |
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 Michael Long 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) |
| 1. Lumbar Spine | 25/8/2001 | Chapter 4: pages 24-30. Page 29. 4.37. Table 4.2 | Table 15-4: page 384; DRE Lumbar Category IV | 23% | 1/10th | 21% |
| 2. Right lower extremity (knee) | 25/8/2021 | Chapter 3: pages 13-23 Page 21, 3.30 modification Table17-35 in AMA 5, Page 549 | Page 547, Table 17-33 | 15% | 1/10th | 14% |
| 3. Left lower extremity (knee) | 25/8/2001 | Chapter 3: | Page 544, Table 17-31 | 20% | 1/2 | 10% |
| Total % WPI (the Combined Table values of all sub-totals) | 39% | |||||
0
5
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