Calvary Retirement Communities Hunter- Manning Ltd v DeGioannis
[2024] NSWPICMP 329
•24 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Calvary Retirement Communities Hunter- Manning Ltd v DeGioannis [2024] NSWPICMP 329 |
| APPELLANT: | Calvary Retirement Communities Hunter Manning Limited |
| RESPONDENT: | Liliana DeGioannis |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 24 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; knee injury; section 323 deduction; previous ACL injury disclosed in radiology; work-related knee injury, meniscectomy and then total knee replacement; Medical Assessor accessed some records from local health service but did not provide them to parties; procedural fairness; section 323 deduction can be assessed from radiology; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 January 2024 Calvary Retirement Communities Hunter Manning Limited St Josephs (Calvary) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 15 December 2023. We note that the Appeal Application names the employer as Calvary Retirement Hunter Mann St Josephs, which is inconsistent with many of the documents in the file.
Calvary 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contained a demonstrable error in the application of s 323 of the 1998 Act. We conducted a review of the original medical assessment, limited to the grounds 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
Ms DeGioannis was employed by Calvary as a kitchenhand. She suffered an injury to her right leg when she fell down stairs as she left work on 6 December 2016. A tear of her medial meniscus was diagnosed on MRI scan which also revealed a chronic tear of the anterior cruciate ligament (ACL), which was attributed to the consequences of a previous injury in about 2012 while Zumba dancing. Ms DeGioannis has subsequently undergone a total knee replacement.
The Medical Assessor obtained a copy of a letter from Dr Hammond, Ms DeGioannis’ treating surgeon in 2011 and said that it described debridement of the right knee and did not record injury to the ACL or menisci. He assessed 30% whole person impairment (WPI) and did not make any deduction under s 323 of the 1998 Act.
The appeal turns on the extent of any s 323 deduction warranted as a result of the previous condition.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms DeGioannis to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Calvary submitted that the Medical Assessor failed to make a deduction under s 323 of the 1998 Act in respect of the ACL rupture or degenerative arthritis and failed to provide reasons for not doing so. Calvary submitted that the Medical Assessor had “demonstrably erred” in his understanding of the reports of Dr Hyde Page, qualified for Ms DeGioannis, and Dr Hale, qualified on its behalf, each of whom had made a s 323 deduction.
Calvary noted that the parties had not had the opportunity to consider Dr Hammond’s report or any other documents from Hunter New England Health but said that, in any event, the Medical Assessor failed to address the evidence that the ACL tear was old. Calvary said that a deduction under s 323 should be made, though did not make submissions about the extent of the deduction.
In reply, Ms DeGioannis submitted that the Medical Assessor undertook a detailed clinical evaluation and a thorough review of the evidence and that it was appropriate not to make a s 323 deduction. She said that a mere difference of opinion from those of Dr Hyde Page and Dr Hale did not constitute a demonstrable error.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton,[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor said that, with Ms DeGioannis’ permission, the Hunter New England Health digital medical record was accessed “to ascertain the nature of the pre-existing injury” to her right knee. He said that the information was accessed in accordance with s 324 of the 1998 Act though he did not attach a copy of the report he reviewed.
The Medical Assessor summarised the history of the incident and treatment. He said:
“Ms DeGioannis sustained an injury to her right knee doing Zumba in 2011. She underwent an arthroscopy under Dr Hammond at Cessnock Hospital. A post-procedural letter by Dr Hammond on 2 September 2011 describes ‘Debridement’ of her knee. It does not record injury to the cruciate ligament or menisci.”
Summarising the injury and his diagnosis, the Medical Assessor said:
“Ms DeGioannis had a fall down stairs at work and sustained a bucket handle tear of the medial meniscus with a locked knee. She underwent arthroscopy but unfortunately had pain and restriction of movement subsequent to this. She has gone on to have a knee replacement but unfortunately continues to have pain and restriction of movement.”
The Medical Assessor assessed a poor result from Ms DeGioannis’ right total knee replacement, resulting in 30% WPI. Calvary did not take issue with that assessment, which was the same made by Dr Hyde Page and Dr Hale. The Medical Assessor said:
“Dr Hyde-Page has deducted 10% for a pre-existing condition on the presumption that the ACL injury is a consequence of the Zumba injury in 2011. I note the letter subsequent to the arthroscopy by Dr Hammond has not referred to an injury to the ACL.
With respect to the report by Dr Hale dated 20 February 2023, I am in agreement with the assessment of the total knee replacement as a ‘poor’ result (30% whole person impairment). I disagree with Dr Hale’s substantial deduction of 50% on the basis that there was a pre-existing ACL or meniscal injury. Again, the postoperative consultation letter from Dr Hammond has not detailed such an injury at that time.”
Evidence in the file
Ms DeGioannis said in her statement dated 28 September 2023:
“In or around 2012, I sustained an anterior cruciate ligament rupture in my right knee whilst I was performing the dance routine 'Zumba' which subsequently resulted in me undergoing an arthroscopy on my right knee which I had done at Cessnock Hospital. Following the arthroscopy surgery, my right knee injury and symptoms settled down within a couple of weeks and I was able to return to work performing my pre-injury duties without any pain or discomfort. I have had no further problems and or pain and discomfort associated with my right knee until I sustained the workplace injury on 6 December 2016.
Prior to my work injury on 6 December 2016, I had the capacity to work long and strenuous shifts in the kitchen at St Joseph's as well as working at the Tenambit Bakery five days per week for four hours each day and never experienced any pain, discomfort and or stiffness in my right knee.”
An X-ray was taken on 7 December 2016 which showed mild lateral patellofemoral osteoarthritis and a large effusion. An MRI scan on 13 December 2016 showed:
“Complete absence of the ACL suggesting a chronic partial tear.
Large joint effusion.
Extensive microtrabecular fracture of posterior tibial plateau extending into the tibial metaphysis medially and laterally. No depression of the overlying articular cortex.
Bucket handle tear medial meniscus with anterolateral displacement of the bucket handle fragment.
Small radial tear lateral meniscus posterior horn.
Moderate patellar chondromalacia. Moderate chondromalacia also noted in the medial compartment and full thickness of near full thickness defect in the central aspect of the lateral femoral condyle.”
Dr Singh, general practitioner, referred Ms DeGioannis to Dr Osborne. He said:
“She describes a previous Zumba injury roughly 7 years ago which was treated with an arthroscopy at Cessnock Hospital. I assume this was under the care of Dr John Hammond but she stated that her knee has always been problematic since with intermittent episodes of giving way, swelling and paining but it had never locked like this before.”
Dr Osborne said:
“I have explained to Liliana that at the very least she should consider an arthroscopy to remove the stuck fragment of medial meniscus and allow her to extend her knee. I think that most likely her ACL injury is long standing and due to the zumba injury 7 years ago but unfortunately her meniscal tear and microtrabecular injury is new. I have cautioned Liliana while I would be confident that we could regain her range of motion it is possible that she's exacerbated her osteoarthritic process and unfortunately occasionally trivial injuries can set off osteoarthritis but it's clear that Liliana has had more than a trivial injury with this amount of bone bruising in the tibial plateau.”
The arthroscopy was undertaken on 27 March 2017. On 29 June 2017 Dr Osborne wrote:
“She understands that I can't cure the osteoarthritis in her femoral condyle and while she did have a meniscal tear which we resolved the femoral condyle chondral damage is the most likely explanation for her persisting pain.
She also has an ACL deficient knee which is why she feels unstable. With regards to the long term future, unfortunately arthritis is likely to cause her problems at some point and when she's terrible we will talk about arthroplasty surgery.”
Dr Osborne performed a total knee replacement on 30 May 2018. The operation report showed grade 4 osteoarthritis. Ms DeGioannis developed arthrofibrosis as a complication of the surgery and a manipulation was undertaken on 15 August 2018.
Dr Hyde Page reported to Ms DeGioannis’ solicitor on 20 January 2021. He assessed 30% WPI in respect of a poor result from knee replacement surgery. He said that a one-tenth deduction was appropriate in respect of the pre-existing injury but did not otherwise explain his reasoning. He saw Ms DeGioannis again and reported on 29 November 2022 but did not express a view on permanent impairment.
Dr Hale reported to Calvary on 19 April 2021 and 20 February 2023. In his second report he noted the history of an injury in about 2009 and that from the descriptions Ms DeGioannis ruptured her ACL, but it was unclear if she had a partial meniscectomy at that time. Dr Hale said:
“As indicated the pre-existing anterior cruciate ligament has significantly contributed to the current situation.
Without the pre-existing anterior cruciate deficiency with minimal osteoarthritis, it is generally expected that 80% of patients have good or excellent results following a partial medial meniscectomy at 30 years.
In Liliana’s situation, because of her age, the fact there is minor degenerative change and it effectively was a subtotal medial meniscectomy, an 80% chance of good or excellent results at 30 years is probably overly optimistic, but it would have been extremely unlikely that her knee deteriorated as quickly. In addition, without the partial medial meniscectomy, it is unlikely that the anterior cruciate deficiency would have deteriorated as quickly and as a result, it is reasonable to attribute the need to have a total knee replacement equally between the preexisting ACL deficiency and the partial medial meniscectomy.
It should be noted that on 29 June 2017, Dr Osborne mentioned increased instability symptoms which fits with this scenario.”
Dr Hale assessed 30% WPI and made a deduction of one-half under s 323.
Consideration
The information obtained by the Medical Assessor from the Hunter New England Health file was limited and added little to the information already held. However, once the Medical Assessor obtained the report, procedural fairness dictated that it be provided to the parties as an attachment to his report. The Medical Assessor was in error not to do so. There was in fact ample information in the file to enable the Medical Assessor to consider a s 323 deduction and he obtained little if any information from the report that he did obtain and consider.
Section 323 provides:
“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.
…”
In Cole v Wenaline Pty Ltd[3] Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[4]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”
[3] [2010] NSWSC 78 at [29] and [38].
[4] At [29]-[30].
The Medical Assessor’s history is brief. He said he did not review investigations but he does not appear to have had proper regard to the X-ray and MRI scan reports in the file, whether or not he saw the scans. While he said that the report that he saw from Dr Hammond did not refer to the ACL or menisci, there was ample other information in the file to show that the ACL injury dated from the Zumba injury. Ms DeGioannis’ statement is relevant – she described the earlier injury as an ACL rupture, presumably on the basis of advice given at the time.
The most useful sources of information about the earlier injury are the X-Ray and MRI scan taken in December 2016 and Dr Osborne’s reports, read together.
The X-ray in 2016 revealed mild osteoarthritis. Rather than merely revealing a bucket handle tear of the medial meniscus with tibial bone bruising as the Medical Assessor said, the MRI scan was reported as showing that Ms DeGioannis’ ACL was absent, compatible with a chronic complete tear.
Ms DeGioannis continued to have pain and instability after the arthroscopy. The instability was also the result of the deficient ACL.
Dr Osborne noted in his first report dated 21 February 2017 that it was likely that the fall had exacerbated osteoarthritis. He did not comment on significant arthritis at the time of the arthroscopy, but by the time of the knee replacement surgery he observed grade 4 osteoarthritis – the most severe categorisation of osteoarthritis. The development to grade 4 osteoarthritis in the period between the arthroscopy and the knee replacement surgery was a rapid deterioration.
A meniscal tear alone is unlikely to lead to the significant increase in the severity of the osteoarthritis observed in Ms DeGioannis’ knee but in an ACL deficient knee, the development of osteoarthritis following an injury is more rapid. The ACL deficiency significantly contributed to the deterioration and therefore to the timing of the total knee replacement.
A deduction under s 323 from the WPI assessed was warranted because the ACL deficiency contributed to the need for a total knee replacement. The demonstrable error in the MAC was the Medical Assessor’s failure to consider the radiological evidence and the evidence of treating practitioners and make that deduction. While the Medical Assessor was directed by the MAC template to comment on the reports of other examiners, the demonstrable error was the failure to consider the deduction and not the failure to engage with the reports of Dr Hyde Page and Dr Hale, as Calvary argued.
There is ample information in the file to provide the basis to assess the extent of the deduction and the presumption in s 323(2) is inappropriate – it cannot be said that the extent of the deduction is difficult or costly to determine and, based on the experience of the medical assessor members of the Panel, a deduction of one-tenth as made by Dr Hyde Page is inadequate.
Similarly, Dr Hale’s deduction of one half is excessive. Though the ACL deficiency was a significant factor which contributed to of deterioration of osteoarthritis, the arthritis developed as quickly as it did following an injury. Without that injury, Ms DeGioannis may not have required a total knee replacement for some years, if at all. Taking all of those factors into account, the appropriate deduction is one quarter.
For these reasons, we have determined that the MAC issued on 15 December 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: | W7275/23 |
Applicant: | Liliana DeGioannis |
Respondent: | Calvary Retirement Communities Hunter- Manning 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 Dr Rob 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) |
| Right lower extremity (knee) | 6.12.16 | Chapter 3 | Chapter 17, p 547, table 17.33 | 30% | ¼ | 23% |
| Total % WPI (the Combined Table values of all sub-totals) | 23% | |||||
0
3
0