Cobcroft v Mushroom Composters Pty Ltd
[2024] NSWPICMP 196
•4 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cobcroft v Mushroom Composters Pty Ltd [2024] NSWPICMP 196 |
| APPELLANT: | Anthony Cobcroft |
| RESPONDENT: | Mushroom Composters Pty ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 4 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor (MA) erred by making a deduction of 4/10th under section 232(1) for proportion of appellant’s permanent impairment that was due to a pre-existing condition; Appeal Panel held MA did not make any error; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 December 2023 Anthony Cobcroft, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Lewington, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
7 December 2023.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 assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for 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 for which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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 suffered an injury to his right hip while working for Mushroom Composters Pty Ltd, the respondent, on 9 February 2022. That occurred as a consequence of a Toyota Hilux vehicle reversing into him, hitting him on his right-hand side and knocking him forcefully to the ground on his left side. An ambulance attended and he was administered morphine and other pain relieving medication and conveyed to Maitland Hospital.
The appellant’s general practitioner subsequently referred him for an MRI scan of his right hip, which was done on 7 March 2022. Dr Rohan Sabharwal reported on that and advised that the findings from it included severe osteoarthritis in the appellant’s right hip joint with full thickness chondral loss at the weight bearing surface associated with underlying subchondral sclerosis, cystic change and marginal osteophytic lipping.
Following that scan the appellant’s general practitioner referred the appellant to orthopaedic surgeon Dr John Estens, whom the appellant had previously consulted for rheumatoid arthritis. On 22 March 2022 Dr Estens, following a consultation with the appellant, wrote to both the appellant’s general practitioner and to the respondent’s insurer. In his correspondence to the insurer Dr Estens advised his “diagnosis is that he has had step wise worsening of his osteoarthritis in his hip caused by the blow from the vehicle and perhaps more so, the way it twisted and knocked him to the ground”. Dr Estens indicated that conservative treatment would not have much likelihood of him improving the appellant’s symptoms given the state of his hip joint as revealed on the X-ray and MRI scan that had been done. Dr Estens advised that the appellant “is a candidate for a right sided total hip replacement”. The insurer agreed to the hip replacement and it was done on 25 May 2022.
The appellant was examined on 9 May 2023 by occupational physician Dr Andrew Porteos at the request of the appellant’s solicitors. In a report dated 9 May 2023 Dr Porteos advised the appellant’s solicitors that he diagnosed the appellant’s injury was an aggravation or deterioration of pre-existing severe osteoarthritis in the appellant’s right hip joint. Dr Porteos also advised in a supplementary report of the same date that he assessed the appellant had 19% whole person impairment (WPI) from his injury. Dr Porteos advised that this was because the appellant had achieved a fair result from his right hip replacement, which, based on the criteria of Table 17-34 of AMA5, allowed for a rating of 20% WPI under Table 13-33. Dr Porteos deducted 10% from that rating assessment because he considered pre-existing degenerative changes in the appellant’s right hip joint contributed to his permanent impairment from his injury. Dr Porteos explained that he assessed the appellant had 1% WPI for scaring from the surgery for his injury, and when that was combined with the 18% WPI, 19% WPI was obtained.
On 15 May 2023 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% WPI from his injury. The appellant provided the insurer with a copy of
Dr Porteos’ report dated 9 May 2023 to support the appellant’s claim.The respondent’s insurer then organised for the appellant to be examined by occupational physician Dr Farhan Shahzad on 21 July 2023. In a report of 15 August 2023 Dr Shahzad advised that he assessed the appellant had 2% WPI from his injury. Dr Shahzad also considered the appellant had a fair result from his hip replacement which allowed for a rating of 20% WPI. He considered that the pre-existing osteoarthritis in the appellant’s right hip was such that a deduction of 9/10th ought to be made for the contribution it made to the appellant’s permanent impairment and hence his assessment that the appellant had 2% WPI only from his injury. Dr Shahzad did not address whether the appellant had any permanent impairment relating to scaring from his surgery.
The Appeal Panel notes that the respondent’s solicitors had earlier arranged for orthopaedic surgeon to examine the appellant on 19 April 2023. In a report dated 25 May 2023 Dr Kleinman had advised that he assessed the appellant had a fair result from his right hip replacement which equated with 20% WPI. Dr Kleinman also advised that he considered 9/10th of the appellant’s impairment relating to his right hip was due to the pre-existing osteoarthritis and hence he assessed the appellant had 2% WPI from the injury to his right hip. Dr Kleinman, similar to Dr Shahzad, did not address whether the appellant’s scaring from his surgery resulted in any permanent impairment.
On 21 September 2023 the insurer wrote to the appellant notifying him in accordance with
s 78 of the 1998 Act that it denied liability for his claim for compensation for permanent impairment from his injury. It advised him this was because it was of the view, based on
Dr Shahzad report, that his permanent impairment was not more than 10%, which it was required to exceed under s 66(1) of the 1987 Act for him to be entitled to compensation for permanent impairment from his injury.The appellant then commenced proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. The matter found its way to the Medical Assessor by means of a referral dated 1 November 2023, that was amended on 29 November 2023.
The Medical Assessor examined the appellant on 27 November 2023 to assess the medical disputes had been referred to him by the Commission for assessment. As mentioned earlier, the Medical Assessor issued the MAC on 29 November 2023. In that he advised he assessed the appellant’s impairment with respect to his right hip based on the criteria of Table 17-34 of the AMA5, which relates to hip replacements. His scores with respect to the criteria specified in that table added to 73, which equated to a fair result which, in accordance with Table 17-33, allowed for a rating of 20% WPI. The Medical Assessor also said that the appellant had a prior condition of severe osteoarthritis in his right hip that directly contributed to the appellant’s need for a joint replacement. The Medical Assessor diagnosed the appellant’s injury was an aggravation of his severe pre-existing osteoarthritis on a background of rheumatoid arthritis. The Medical Assessor noted the findings of the MRI the appellant had done on 7 March 2022, an X-ray done on 10 May 2022, and also an X-ray that was done immediately upon his hip replacement on 25 May 2022.
The Medical Assessor considered the pre-existing condition in the appellant’s right hip contributed to the appellant’s permanent impairment relating to his right hip to the extent of 40%, and made a deduction of that order in accordance with s 323(1) of the 1998 Act. The reasons he provided in the MAC for his opinion that the appellant’s pre-existing osteoarthritis contributed to 40% of his permanent impairment relating to his right hip were as follows:
“In this case there is both clinical and imaging evidence of pre-existing osteoarthritis involving the right hip. Clinically, this was symptomatic as noted by the treating orthopaedic surgeon. Today, the patient gave a history of intermittent right hip pain prior to the subject injury but which did not interfere with his work or other activities. The pain was also considerably milder compared to after the subject injury and subsequent hip replacement. Imaging investigations revealed full thickness chondral loss as of 7 March 2022 and this must necessarily pre dated the subject injury. A 1/10 deduction under Section 323 would be at odds with the available evidence and I have assessed 4/10th deduction.”
The Medical Assessor also compared his assessment with the assessments that Dr Porteos, Dr Shahzad and Dr Kleinman had respectively made. The Medical Assessor commented with respect to Dr Porteos’ deduction of 1/10th for the extent to which the appellant’s pre-existing osteoarthritis contributed to his permanent impairment relating to his right hip that that deduction “inadequately reflects the contribution of the pre-existing osteoarthritis to the need of total joint replacement, and therefore contribution to current impairment”. With respect to the deduction of 90% that both Dr Kleinman and Dr Shahzad had made, the Medical Assessor commented that he considered “a 9/10 deductible portion to be excessive given there was a significant aggravation to the right hip condition contributing to the need for joint replacement and therefore contribution to impairment”.
The Medical Assessor also assessed the appellant had 2% WPI relating to his scaring from his surgery. Hence, the Medical Assessor assessed and certified the appellant had 14% WPI from the injury to his right hip on 9 February 2022.
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 did not require the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by incorrectly applying s 323(1) of the 1998 Act by making a deduction of 4/10th for the proportion of his permanent impairment from his injury that was due to a pre-existing condition in his right hip. The appellant submitted that the Medical Assessor did not provide adequate reason for finding that his pre-existing condition contributed to his impairment. The appellant submitted that the Medical Assessor did not comment on how his pre-existing degenerative changes contribute to his current impairment.
The appellant submitted that whilst the Medical Assessor said that there were significant pre-existing degenerative changes in his right hip the Medical Assessor did not in his reasoning take account that those changes had not interfered with his work or other activities. The appellant submitted that the Medical Assessor did not reference any radiological scans done prior to his injury that demonstrated the degenerative changes.
The appellant submitted that the Medical Assessor could not assume that the contribution of his pre-existing condition to his permanent impairment was 4/10th, but had to explain how his pre-existing condition caused or contributed to his current level of impairment. The appellant submitted that the Medical Assessor did not say in the MAC that there was a difference in outcome due to his pre-existing condition nor did he explain how his pre-existing degenerative changes in his right hip made a difference in terms of the degree of permanent impairment he had resulting from his injury.
The appellant submitted that given the nature of his injury, which occurred due to the force of a motor vehicle hitting him, it is difficult to determine what proportion of the percentage of his permanent impairment is due to his pre-existing right hip osteoarthritis and, in that circumstance, the Medical Assessor ought to have adopted the approach of Dr Porteos and assumed in accordance with s 323(2) of the 1998 Act that the deductible proportion for the purposes of s 323(1) was 1/10th.
In reply, the respondent highlighted that the Medical Assessor had noted the severe pre-existing osteoarthritis in the appellant’s right hip and that this was clinically symptomatic prior to the appellant’s suffering injury. The respondent also highlighted that the Medical Assessor had also noted that the pre-existing osteoarthritis did not interfere with the appellant’s work or other activities and that the appellant’s pain was considerably milder prior to him suffering injury. The respondent noted that the Medical Assessor took account of the MRI of the appellant’s right hip done on 7 March 2022, which revealed a full thickness chondral loss in the appellant’s right hip and that the Medical Assessor concluded that this pre-dated the appellant’s injury. The respondent highlighted that the Medical Assessor found that he could not assume in accordance with s 323 (2) of the 1998 Act that the deductible portion for s 323 (1) was 1/10th because that would be at odds with that evidence.
The respondent submitted that the Medical Assessor referred to all the relevant evidence with respect to the deduction he made. The respondent submitted that because the appellant’s permanent impairment was “assessed by the results of the hip replacement it is clear that a pre-existing condition that contributes to the necessity of the hip replacement would require an appropriate deduction such as 40%”.
The respondent submitted that making an assumption under s 323(2) that the deductible proportion for s 323(1) is 10% was negated by the available evidence. The respondent referred to an x-ray of the appellant’s right hip on 12 August 2020 which pre-dated his injury and which shows significant osteoarthritis in both hips.
For completeness the Appeal Panel notes that Dr Kleinman in his report of 25 May 2023 referred to a report of radiologist Dr John Lewis’ dated 12 August 2020 relating to an X-ray the appellant had done of his hips. Dr Kleinman had viewed the report of that X-ray online. A copy of that report was not before the Appeal Panel, but Dr Kleinman in his report has repeated the content of what he viewed online. According to Dr Kleinman the findings of the radiologist included that there was advanced osteophytic changes in the appellant’s hip with the right being greater than the left and that the appellant’s joint spaces were completely lost with diffuse subchondral sclerosis and marginal osteophytic lipping.
The respondent highlighted that the Medical Assessor explained that the appellant’s pre-existing hip osteoarthritic contributed to the need for his right hip replacement and that a deduction was appropriate given that pre-existing osteoarthritis. The respondent submitted that the appellant has not established that the Medical Assessor made an error or based his assessment on incorrect criteria.
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.
The Appeal Panel considers that the Medical Assessor provided adequate reason for the deduction he made under s 323(1) of the 1998 Act for the proportion of the appellant’s permanent impairment from his right hip injury that was due to the pre-existing osteoarthritis the appellant had in his right hip. The Medical Assessor reasons are adequate because they expose his reasoning process for why he made the deduction. That is, it is apparent from his explanation why he made a deduction of 40%.
The evidence that was before the Medical Assessor demonstrated that the appellant had extensive and symptomatic osteoarthritis in his right hip at the time he suffered the injury to his right hip. That evidence is in the form of the report of Dr Kleinman wherein Dr Kleinman repeated the content of the report of Dr Lewis of 2 August 2020 on the X-ray the appellant had done of his right hip on that date, which preceded his injury, and the report on the MRI scan done on 7 March 2022, which was shortly after his injury. The earlier X-ray revealed severe osteoarthritis in the appellant’s right hip. It also revealed the joint spaces were completely lost and that there was diffuse subchondral sclerosis and marginal osteophytic lipping. The MRI scan also revealed severe osteoarthritis and full thickness chondral loss at the weight bearing surface associated with an underlying subchondral sclerosis, cystic change and marginal osteophytic lipping.
It is apparent from those investigations that the appellant had extensive degenerative changes in his right hip at the time of injury. That disease in the appellant’s right hip prior to his injury had been manifesting in symptoms but not such that it prevented the appellant from undertaking his arduous work. The injury he suffered on 9 February 2022 worsened his symptoms substantially such that he was unable to work and ultimately shortly thereafter required a hip replacement.
As the respondent submitted the appellant’s permanent impairment from his injury is as a consequence of his now having an artificial right hip. His permanent impairment has been rated by reference to the result he has achieved from his right hip replacement.
The Appeal Panel, which is an expert panel, considers that in all likelihood, given the extent of the osteoarthritis in the appellant’s right hip at the time he suffered injury and the fact that it was then symptomatic, although to a much lesser degree than what it was following his injury, the appellant would have required a right hip replacement within a reasonable time after 9 February 2022 irrespective of the injury he suffered on that date. Simply put, as a respondent has submitted, and as the Medical Assessor explained, the need the appellant’s right hip replacement was due both to his having symptomatic disease immediately preceding the date of his injury and to the worsening of his symptoms as a consequence of his injury.
The worsening of his symptoms made it necessary that the appellant have the surgery sooner than what would otherwise have been the case. But irrespective of that, had he not had the severe osteoarthritic in his right hip as of the date of his injury, he would not have needed a hip replacement and consequently he would not have had the permanent impairment of his right hip that he now has. Consequently his pre-existing condition did make a difference in terms of the outcome for him. Had he not had the extensive disease in his right hip at the time of the injury his permanent impairment from his injury would not have nearly been as severe as it is now, because he would not have had a right hip replacement.
The Appeal Panel considers that the Medical Assessor has explained all that in a cogent way in the MAC.
Further, the Medical Assessor has also explained why he could not assume in accordance with s 323(2) of the 1998 Act that the proportion of the appellant’s impairment that was due to his pre-existing condition was 10% and that is because to make such an assumption would be at odds with the evidence. That evidence was the extent of the osteoarthritis in his right hip at the time of injury and also the fact that it was symptomatic at that time. Had he not had such extensive degeneration in his right hip at the time of injury he would not have needed a hip replacement. In other words, his permanent impairment would have been considerably less than 20% WPI if he did not have such extensive osteoarthritis in his right hip, because he would not have needed a right hip replacement.
Whenever the assumption under s 323(2) cannot be made, then necessarily there will be some arbitrariness in the deduction that the Medical Assessor does make. This is because it will almost invariably be the case, in that circumstance, that the proportion can be measured precisely. In the Appeal Panel’s view the deduction of 40% the Medical Assessor made is appropriate. Other examiners may have lent to a greater deduction, such as Dr Kleinman and Dr Shahzad. The Appeal Panel considers, the same as the Medical Assessor, that the 90% deduction they made was too extreme, given the increase in symptoms that the appellant experienced following his injury. In the Appeal Panel’s view it was open to the Medical Assessor to make the deduction he made. He took account of all relevant matters and, in the Appeal Panel’s view, there is no flaw in his reasoning for making a 40% deduction.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 December 2023 should be confirmed.
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