Coastwide Civil Pty Ltd v Bleimuth - [2024] NSWPICMP 486

DETERMINATION OF APPEAL PANEL
CITATION:	Coastwide Civil Pty Ltd v Bleimuth [2024] NSWPICMP 486
APPELLANT:	Coastwide Civil Pty Limited
RESPONDENT:	Rudiger Otto Bleimuth
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	19 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of permanent impairment with respect to both knees; fresh evidence by way of a supplementary medical report; whether Medical Assessor erred in assessing ‘extension lag’ under Table 17-10 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition); whether the measured 120 degrees of flexion in respect of each knee compelled a nil assessment of permanent impairment; Held – Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Ho dated 8 March 2024.
On 17 June 2017, the respondent worker, Mr Bleimuth, injured his left ankle and foot while climbing onto a truck in the course of his duties as a truck driver. He suffered consequential conditions to both knees and the lumbar spine, each of which were referred to the Medical Assessor for assessment together with the left ankle and foot.
The Medical Assessor assessed a 19% whole person impairment as a result of injury on
17 June 2017, made up as follows:
·        right lower extremity (knee):  4%
·        left lower extremity (ankle, foot, knee):     9%
·        lumbar spine:   5%
·        skin (TEMSKI):  2%
Before making these assessments, he deducted one-tenth for pre-existing conditions in respect of each body system. No allegation of error is made in respect of the deduction of one-tenth for each body system.
The appellant submits that the Medical Assessor applied incorrect criteria when assessing the knees, for essentially two reasons:
(a) in respect of each knee, he assessed a 10% lower extremity impairment (LEI) for an observed 10 degrees of ‘extension lag’, purporting to apply Table 17-10 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) (AMA5). In fact, the employer submits, Table 17-10 does not support such an assessment, because it refers to flexion or flexion contracture rather than extension lag, and the two are distinct, and
(b) he recorded extension of 120 degrees in respect of each knee, which compels an assessment of 0% whole person impairment.
It seeks leave to rely on expert opinion expressed by orthopaedic surgeon, Dr Courtenay, in his supplementary report of 2 April 2024, to the effect that a fixed flexion deformity is distinct from extension lag, and that the latter is not relevant to (‘reflected in’) the assessment of permanent impairment. Leave is opposed.
No other error is alleged.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the Guidelines.

Submissions

The parties made written submissions which have been taken into account. They are not repeated in full, but are summarised briefly below.
The appellant submits as follows:
(a)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPICMP 486
Decision Date: 19 July 2024

CaseChat Overview and Summary

The case of Coastwide Civil Pty Ltd v Bleimuth was heard in the Queensland Civil and Administrative Tribunal. The dispute involved an appeal against the assessment of permanent impairment, specifically regarding both knees of the appellant, Mr Bleimuth. The Tribunal was tasked with determining whether the Medical Assessor had erred in evaluating the appellant's condition according to the relevant guidelines.

The primary legal issue revolved around the interpretation and application of Table 17-10 of the American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) by the Medical Assessor. Specifically, the Tribunal examined whether the Medical Assessor had correctly assessed the appellant's 'extension lag' and whether the recorded 120 degrees of flexion in each knee necessitated a nil assessment of permanent impairment. This required careful analysis of the medical evidence and the applicable legislative framework.

In reaching its decision, the Tribunal reviewed the supplementary medical report submitted by the appellant, which provided new information regarding the assessment of his condition. The Tribunal found that the Medical Assessor had indeed erred in applying the guidelines and that the appellant's 120 degrees of flexion did not automatically result in a nil assessment of permanent impairment. Consequently, the Tribunal revoked the original Medical Assessment Certificate and replaced it with a new assessment that more accurately reflected the appellant's condition.

The final orders of the Tribunal mandated that the original Medical Assessment Certificate be revoked and a new certificate issued, reflecting the corrected assessment of the appellant's permanent impairment. This decision underscored the importance of precise application of the relevant guidelines and the need for thorough consideration of all available medical evidence.

Orders