Coastwide Civil Pty Ltd v Bleimuth
[2024] NSWPICMP 486
•19 July 2024
| 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) Dr Courtenay’s supplementary report should be admitted on appeal because it could not reasonably have been obtained prior to assessment by the Medical Assessor. It was obtained after that assessment, for the purposes of appeal, and comments on the meaning of ‘extension lag’ used by the Medical Assessor in his reasons.
(b) Table 17-10 provides for assessment of impairment by reference to ranges of motion with respect to ‘flexion’ and ‘flexion contracture’. It makes no such provision with respect to ‘extension lag’. As the assessment of the knees was based on extension lag rather than flexion or flexion contracture, it is not in accordance with the Table, and is based on the application of incorrect criteria.
(c) In any event, the Medical Assessor recorded that there was flexion to 120 degrees in each knee. That compels an assessment of 0% whole person impairment in each case.
In summary, the respondent worker submits as follows:
(a) Dr Courtenay’s supplementary report should not be admitted on appeal because:
(i)his opinion could reasonably have been obtained prior to assessment by the Medical Assessor, because the worker was on notice that the assessment of both knees was in issue, as the knees formed part of his claim for whole person impairment compensation, and
(ii)in any event, admission of Dr Courtenay’s report would not change the outcome of the appeal: Ross v Zürich Workers Compensation Insurance [2002] NSWWCCPD 7.
(b) It is based on speculation because, as he admits, he did not examine the knees, or attempt to assess them.
(c) In his assessment (which appears to be a reference to his second assessment of 5 June 2023) Dr Bodel used the term ‘flexion contraction’ interchangeably with ‘extensor lag’ and assessed a 10% LEI for each knee applying Table 17-10, on the basis that each had less than 5 degrees of extension. Admittedly, the Medical Assessor used the term ‘extension lag’.
Reasons of the Medical Assessor – ‘extension lag’
Initially, the Medical Assessor assessed 10% whole person impairment in respect of the left lower extremity (ankle, foot, knee) and 4% whole person impairment in respect of the right lower extremity (knee). From these, he deducted one-tenth for pre-existing conditions to arrive at 9% (left lower extremity) and 4% (right lower extremity).
With respect to the left knee, he explained his calculations as follows at [10b] – emphasis added:
“For the knee[s], both have 10° of extension lag based on Table 17-10 which will give rise to 10% lower limb impairment on both knees. All these lower limb impairments combined together will give rise to impairment on the left leg which means 7% for the ankle, 10% for the subtalar joint fusion, while for the knee, I think at least 1/10 should be deducted for pre-existing condition which will leave behind 9%. Altogether this will give rise to 24% on the left side which will be equal to 10% whole person impairment.”
With respect to the right knee, he explained:
“On the right knee, once again it is 10%, deducting 1/10, leaving behind 9% which will give rise to 4% whole person impairment.”
In his findings on physical examination at [5], he had observed:
“Both knees have reasonable extension lag of at least 10°, both knees flex to
120° and are symmetrical …”
Reading these passages together, we interpret him to mean that he has applied Table 17-10 by assessing 10% LEI in respect of each knee for ‘extension lag’. He does not define what he means by extension lag.
Table 17-10
Table 17-10 provides for an assessment of 10% LEI where, among other things, ‘flexion’ is less than 110 degrees, or ‘flexion contracture’ is between 5 and 9 degrees. It makes no allowance for ‘extension’ or ‘extension lag’.
By using ‘extension lag’ as a measure of impairment under Table 17-10, the Medical Assessor has failed to apply the correct criteria, and applied incorrect criteria, unless we can be satisfied that he meant ‘flexion’ or ‘flexion contracture’ when he used the term ‘extension lag’. It is not submitted that he was referring to varus or valgus, which are also referred to in the Table.
It is unlikely that he meant ‘flexion contracture’, because that is a fixed condition of the limb, and he made no clinical finding that such a condition existed.
The worker points to the report of Dr Bodel, who he says used the terms ‘flexion contraction’ interchangeably with ‘extensor lag’. We interpret him to be submit that, as Dr Bodel used them interchangeably, they amount to the same thing, and the Medical Assessor should be interpreted as having meant ‘flexion’ or ‘flexion contracture’ as that term is used in Table 17-10.
Dr Bodel does not use those terms interchangeably, in his reports of either 16 August 2021 or of 5 June 2023. In each, he provides a table setting out the range of motion in each knee. He measures flexion and extension separately, clearly distinguishing between the two. In the latest of these reports, he said at page 2:
“He has the restricted range of knee movement in both knees. The -5 degrees of knee extension in each knee attracts a 10% Lower Extremity Impairment for each knee using Table 17-10 on Page 537. In the Right Lower Extremity, there is no other rateable impairment and therefore he is left with a 4% Whole Person Impairment for the Right Lower Extremity using Table 17-3 on Page 537.”
Dr Bodel measured flexion of 0 degrees on the right, and less than 5 degrees on the left. Table 17-10 permitted an assessment of 10% LEI for flexion of less than 110 degrees. His assessment of 10% LEI represented a correct interpretation of the Table. He made no mention of ‘extension lag’ or ‘flexion contracture’. So far as we can tell from his reasons, he did not assess the knees with respect to either of these things.
A review of his reports does not support the appellant’s assertion that he used the terms ‘extension lag’ interchangeably with ‘flexion’ or ‘flexion contracture’. We are not satisfied that he did. Still less can we be satisfied that the Medical Assessor meant ‘flexion’ or ‘flexion contracture’ when he said ‘extension lag’.
For those reasons, we are not satisfied that the Medical Assessor applied the criteria in Table 17-10. Failure to apply the correct criteria demonstrates error. He appears to have applied some other criterion, which he referred to as ‘extension lag’. That amounts to the application of incorrect criteria, which also necessitates that the Medical Assessment Certificate be revoked.
In reaching this conclusion, it has been unnecessary to consider the opinions of
Dr Courtenay expressed in his supplementary report, or to admit it into evidence. Were it necessary to do so, we would be inclined to admit it only the extent that he opines on the meaning of ‘extension lag’, as that is an opinion which was not reasonably able to be obtained until it became clear that the Medical Assessor would use that expression to justify the application of Table 17-10. It is no answer to say that the worker was on notice that his knees would be assessed. He could not anticipate that the Medical Assessor would use a measure not referred to in Table 17-10. Were we to admit the report, we would only admit that part which opines on the meaning of ‘extension lag’. His observations on examination, to the limited extent he made them, are evidence that could have been obtained before examination and are therefore not admissible. They would have made no difference to the outcome, having regard to the fact that he did not examine the knees.
Flexion
Table 17-10 provides for an assessment of 4% whole person impairment where flexion is less than 110 degrees. In this case, the Medical Assessor measured flexion of 120 degrees bilaterally. It followed that the worker was not entitled to be assessed on the basis of flexion. So far as the reasons disclose, he was not assessed on that basis.
The submission, if it is made, that 120 degrees of flexion disqualified the worker from assessment on any other basis under Table 17-10 – for instance, on the basis of flexion contracture, varus or vulgus – must be rejected. Table 17-10 expressly provides for those alternative methods of assessment.
Re-examination
The worker requests re-examination by a member of the Panel. In the absence of knowing what exactly the Medical Assessor meant by ‘extension lag’, and in the absence of any finding as to whether contracture was present or not, it is appropriate that the Panel refer the worker for examination of the knees to one of its members.
The worker was referred for examination to Medical Assessor Sher, who is a member of the Panel. His report follows:
“Mr Bleimuth appeared to be in some pain or discomfort through the interview.
His standing alignment was 5 degrees varus bilaterally although this angle cannot be considered accurate as he was unable to achieve full extension of either knee.
He walked with a slight flexed knee gait, some of which he attributed to stiffness in his left great toe.
All angles were measured with a goniometer and repeated for consistency.
Lying flat on the bed he had a fixed flexion deformity of 10 degrees on the left side and 5 degrees on the right side. This was not passively correctable and there was no extensor lag.
He flexed to 110 degrees on the left and 115 degrees on the right with discomfort at the end of his range of motion.
There was patellofemoral crepitus bilaterally and his joint margins were mildly irritable.
The thigh circumference measured 10cm above the patella was 55cm on the left and 55.5cm on the right.
Calf circumference was symmetrical.
There was no ligamentous laxity in either knee.”
Assessment of the Appeal Panel
Having regard to his specialist expertise and experience, the Appeal Panel accepts the clinical findings of Medical Assessor Sher. They include the findings that there was a fixed flexion deformity of 10 degrees on the left side and 5 degrees on the right side, that neither was passively correctable, that there was no extensor lag, and that flexion was 110 degrees on the left and 115 degrees on the right.
For the right knee, a flexion contracture of 5 degrees, according to Table 17.10, yields 10% LEI. That converts to 4% whole person impairment (right lower extremity).
For the left knee, 10 degrees of flexion contracture, according to Table 17.10, equates to 20% LEI. This must be combined with the impairment for the left ankle and subtalar joints. The latter impairment is calculated by adding 7% LEI (left ankle) to 10% LEI (subtalar joint) to obtain 17% LEI. This figure is combined with 20% for the left knee to yield 34% LEI, which converts to 14% WPI.
The Medical Assessment Certificate of Medical Assessor Ho is revoked and replaced with the attached Medical Assessment Certificate. There being no allegation of error with respect to the deduction of one-tenth made by Medical Assessor Ho in respect of each body system, that deduction appears in the Table.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W8823/23 |
Applicant: | Rudiger Otto Bleimuth |
Respondent: | Coastwide Civil Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ho 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 | Table 17-10 | 4% | 1/10 | 4% | ||
| Left lower extremity | Table 17-10, 11, 12 | 14% | 1/10 | 13% | ||
| Lumbar spine | Table 15-3 | 6% | 1/10 | 5% | ||
| Skin - scarring | TEMSKI | 2% | 1/10 | 2% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
1
0