Coghlan v NSW Trains
[2023] NSWPICMP 609
•23 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coghlan v NSW Trains [2023] NSWPICMP 609 |
APPELLANT: | Craig John Coghlan |
RESPONDENT: | NSW Trains |
| APPEAL PANEL | |
| MEMBER: | Richard J Perrignon |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Greg McGroder |
| DATE OF DECISION: | 23 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment (right hip); whether the assessor erred in deducting one third for pre-existing degeneration; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Coghlan, appeals from the Medical Assessment Certificate of Medical Assessor Gothelf dated 4 July 2023. He examined the worker on 22 June 2023, and assessed a 13% whole person impairment (13% right lower extremity – hip; 0% scarring) as a result of injury on 3 August 2019.
On that occasion, Mr Coghlan had experienced sudden pain in the right hip joint while descending steps on the side of a train at work. He came to total right hip replacement surgery at the hands of Dr Limbers on 28 May 2020.
Medical Assessor Gothelf diagnosed aggravation of pre-existing, and previously asymptomatic, arthritis in the right hip, demonstrated by MRI scan dated 19 August 2019. He assessed a 20% whole person impairment (right lower extremity – hip), from which he deducted one third for the pre-existing arthritis pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998.
The appellant submits that the Medical Assessor erred in making the deduction of one third. He says that there should have been either no deduction, or a deduction of one-tenth as the extent of the deduction was difficult or costly to determine.
No error is alleged in respect of the assessment of 20% whole person impairment (right hip), or of scarring.
The appellant accepts that the injury consisted in the aggravation of a pre-existing condition, be it arthritis diagnosed by the Medical Assessor and Dr Poplawski who was qualified by the appellant, or hip dysplasia diagnosed by Dr Vote who was qualified by the insurer.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (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 worker submits as follows:
(a) Prior to injury, the right hip was asymptomatic. Symptoms were caused by injury. In the absence of injury, the worker would either not have needed total hip replacement, or needed it at a later stage in his life.
(b) Impairment is measured by the effects of the surgery – in this case, being a “fair result”.
(c) As the surgery resulted from aggravation of the pre-existing condition, it follows that impairment ‘would not have been as great as a result of the arthritic condition’.
(d) Impairment results from the work injury, because injury rendered symptomatic a previously asymptomatic arthritis condition, which then required surgery.
(e) Because the Medical Assessor had limited information on which to base any deduction, he “was left with making an arbitrary deduction”. The deduction of one-third is flawed.
(f) The pre-existing arthritis was mild. Any deduction is difficult or costly to determine. A deduction of one-tenth “should be applied”.
(g) Alternatively, there should be no deduction.
NSW Trains (the respondent employer)) submits as follows:
(a) A deduction of one-third was plainly open on the evidence.
(b) Reasons for it were given “in considerable detail:.
(c) Medical Assessor Gothelf determined that, absent the pre-existing arthritis, hip surgery would not have been required. It follows that the pre-existing condition contributes to assessed impairment.
(d) Having regard to the one-half deduction made by Dr Vote, it cannot be argued that a deduction of one third is excessive.
(e) The only expert evidence supporting a lesser deduction than one third is that of Dr Poplawski, who was qualified by the worker. He reasoned that no deduction was required because the condition was previously asymptomatic. His conclusion carries no weight, as the deficiency in his reasoning is “obvious and fatal”, and the reasoning itself is contrary to law: Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 254.
(f) A mere difference of opinion as the appropriate deduction does not amount to error: Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324.
(g) It cannot be argued that there was “no information or material to support the finding made”.
(h) The question for the Medical Assessor is whether the pre-existing condition contributes to impairment. Without the pre-existing arthritis, the arthritis would not have been aggravated by injury, and surgery would not have been required. The condition contributes to impairment.
(i) The “real complaint” is that the one third deduction was excessive. Dr Poplawski, Dr Vote and the Medical Assessor all considered that arthritis would eventually have led to hip replacement surgery even without injury, as it is progressive. The Medical Assessor has applied the correct test for a deduction, and provided adequate reasons to support his assessment of one third.
Consideration
The first task of the Medical Assessor was to determine whether there was a pre-existing condition. The second was to determine whether it contributes to current impairment. The third was to determine the extent of the contribution.
Having regard to an MRI scan of 19 August 2019, and to the clinical observations of treating surgeon Dr Limbers, the Medical Assessor found that there was arthritis of the right hip prior to the date of the frank injury, which was pleaded as having occurred on 3 August 2019. That finding is not challenged.
At [10b], he gave the following reasons for assessing a deduction of one-third – emphasis added:
“In this case the following factors are considered in determining the deductible portion:
· Was there a pre-existing condition prior to the subject injury?
oThere was evidence of pre-existing hip arthritis on the MRI of the right hip 19 August 2019. The MRI indicated there were features of early hip joint degenerative changes, with tearing of the superior labrum and cam-shaped femoral head/neck junction. The comments here support that the presence of arthritis was mild and does not support that advanced arthritis existed. Dr Limbers indicated his letter 28 August 2019 the presence of early osteoarthritis of the right hip.
· Where [sic, were] there any symptoms due to the right hip condition prior to the subject injury?
oThere was no evidence of pre-existing symptoms of the right hip prior to the subject injury. Mr Coughlan denied any previous right hip pain, and he was capable of working full duties.
· Did the injury result in any underling [sic, underlying] pathology resulting in the need for treatment?
oThe injury sustained 3 August 2019 did not likely cause the underlying arthritis of the right hip, but likely aggravated the underlying asymptomatic condition. The mechanism of injury was stepping down resulting in symptoms. The history supports that the injury resulted in the symptoms and need for this treatment as this time in his life.
The above factors support that there was a pre-existing condition of right hip arthritis which [w]as asymptomatic and in the early stages at the time of the subject injury 3 August 2019. The subject injury, while minor in its mechanism, resulted in persistent significant pain and resulted in the need for treatment. The treatment proposed of a total hip replacement was due to the underlying pre-existing pathology of hip arthritis. However, based upon the evidence, Mr Coughlan [sic, Coghlan] would not likely have required this surgery at this stage in his life but for the subject injury. Based upon the above evidence, I consider that 2/3 of the impairment is due to the work place injury, as the subject injury resulted in symptoms and the need for surgery. I consider 1/3 due to the pre-existing condition, as the condition was mild in its early stages and asymptomatic prior to the subject injury.”
We interpret this passage to mean that the pre-existing arthritis contributed to the need for surgery because, even though it was rendered symptomatic by injury and might otherwise have remained asymptomatic, the surgery was made necessary by the symptoms, which resulted from both the pre-existing arthritis and injury itself.
This establishes a causal connection between the pre-existing condition and surgery, which in turn caused the assessed impairment.
However, as the appellant submits, before concluding that the pre-existing arthritis contributed to impairment, the Medical Assessor was obliged to consider whether the test in Ryder was satisfied – namely that, but for the pre-existing arthritis, current impairment would not be as great – for instance, because hip replacement surgery would not have been required at this stage.
The Medical Assessor did not consider or apply this test. He applied a different test; namely that, “based upon the evidence, Mr Coughlan would not likely have required this surgery at this stage in his life but for the subject injury” - emphasis added.
The omission to apply the test in Ryder demonstrates error, but that error is curable without further examination, by applying the test as follows.
If there had been no pre-existing arthritis in the right hip, and Mr Coghlan had descended the stairs of the train as he did, it is highly unlikely that his hip would have become as symptomatic as it did, and unlikely that he would have required hip replacement surgery by May 2020 as he did, or even by the date of assessment in June 2023. It follows that, but for the arthritis, assessed impairment would not be as great it is, because hip replacement surgery would not have been necessary by now. The test in Ryder is satisfied. We find that the pre-existing arthritis contributes to impairment.
We turn to consider the extent of the deduction. In his report on the MRI scan of 19 August 2019, radiologist Dr Lucas noted “early hip joint degenerative change with tearing of the superior labrum and cam-shaped femoral head/neck junction”. In his operation report of 28 May 2020, Dr Limbers diagnosed osteoarthritis of the right hip.
Even though the degenerative change revealed by the MRI scan was described by the radiologist as “early”, the condition was sufficiently serious to require total hip replacement surgery after being rendered symptomatic by a relatively minor physical event which would not have caused the need for surgery in a healthy joint. In our view, the arthritis cannot be dismissed as being a minor contributor to the need for surgery. Even if it can be said that the extent of the deduction is difficult to ascertain, a deduction of one-tenth is, in our view, at odds with the available evidence.
We consider that the pre-existing arthritis contributed significantly to the need for surgery, as it took only a minor event to render it sufficiently symptomatic and disabling to require total replacement surgery. Accepting that it is not possible to identify with precision the amount of the deduction, it is nevertheless possible to estimate the extent of the contribution by the pre-existing condition, having regard to the observations above. We consider a one-third deduction to be a reasonably accurate reflection of the extent of the contribution by the pre-existing condition to the need for surgery, and therefore to current impairment.
Though we have identified error in the omission to apply the rest in Ryder, when that test is applied, the outcome is the same – that is, a deduction of one third to take account of pre-existing degenerative change in the right hip joint.
The Medical Assessment Certificate of Medical Assessor Gothelf is confirmed.
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