Coles v Willshear Shearing Services Pty Ltd
[2025] NSWPICMP 279
•23 April 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coles v Willshear Shearing Services Pty Ltd [2025] NSWPICMP 279 |
| APPELLANT: | Michael Coles |
| RESPONDENT: | Willshear Shearing Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Todd Gothelf |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 23 April 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); the date on which a condition must exist for section 323(1) to apply; whether Medical Assessor (MA) correctly applied section 323(1); whether MA ought to have assessed the appellant had permanent impairment of the left hip where left hip was not mentioned in referral; whether MA correctly applied scoring criteria of modified Table 17-35 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); Held – MA correctly applied section 323(1); MA ought to have assessed appellant’s permanent impairment of the left hip; MA incorrectly applied scoring criteria of Table 17-35 of the AMA 5; MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 January 2025 Michael Coles, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 January 2025.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against); and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of 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 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
The appellant commenced employment as a shearer in 2002 with Willshear Shearing Services Pty Limited, the respondent. In a statement the appellant signed on 4 October 2024 he reveals that he is a principal of the respondent. He also reveals that he commenced work as a shearer in 1985, but was not employed as such until he commenced employment with the respondent. In other words, based on his statement, it seems that between 1985 and 2002 he contracted with others either as a sole trader or as a partner of a partnership to perform services as a shearer.
The appellant has not worked as a shearer since December 2021. He continued however performing services as a managing director for the respondent until March 2024.
On 9 April 2024 the appellant’s solicitors wrote to the respondent’s workers compensation insurer providing it with a report of orthopaedic surgeon Associate Professor John Ireland dated 5 March 2024 and advising it, in substance, that based on that report the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment of the order of 56% whole person impairment (WPI) that the appellant contended resulted from injuries caused by the work he undertook for the respondent. The appellant’s solicitors also notified the insurer that the appellant intended to claim work injury damages for his injury.
Associate Professor Ireland had examined the appellant on the date of his report. He detailed in his report the following history relating to symptoms that the appellant experienced in his hips and knees:
“This gentleman, who is a sheep-shearer by trade began to experience pain in hips and knees. Due to the nature of his work which involved frequent heavy lifting, carrying, pulling, pushing, frequent bending, stooping, crouching, kneeling, twisting, prolonged standing and walking, prolonged manual loads on the lower limbs, repetitive and forceful exertion whilst restraining sheep, repetitive and sustained awkward postures, frequent falls, trips, slips and knocks by animals, he has an accepted claim for his knees and hips. These began to gradually deteriorate and on or about October or November 2021 while at work the symptoms in his hips and knees became unbearable. He was unable to continue working and has been off work since that time. Liability has been accepted by the insurers.
On 17 December 2021 an x-ray was taken of his pelvis which revealed the extent of the arthritis and he was referred to Dr Ashton, an orthopaedic surgeon. On 2 May 2022 Mr Coles underwent a right total hip replacement. Due to his ongoing problems with his knees, he underwent bilateral total knee replacements by Dr Ashton on 23 January 2023. He continues to get symptoms in both his hips and knees, and has mild symptoms currently in his left hip. He was receiving regular physiotherapy but this has now ceased.”
Associate Professor Ireland recorded making the following findings from his clinical examination of the appellant:
“He is 185cm tall and weighs 120kg. He has two well-healed scars at the front of both knees and a well-healed scar over the posterior aspect of his right hip, The overall alignment of the legs appears to be anatomical.
On examination of the hip flexion is to about 80° as opposed to close to 100° on the opposite side. External rotation is 45o compared to 45o on the opposite side. Internal rotation is to 10° as opposed to 45o. Adduction is 20° as opposed to 40°. Abduction is 0° as opposed to 45°. He is marginally shorter on the right side by approximately 1cm.
The overall alignment of both legs as noted is largely anatomical. On the right he has a range of motion from 10° through to 95° and on the Ieft 10° through to 110°. The knees appear to be grossly stable with some mild flexion laxity.”
Associate Professor Ireland briefly summarised the reports on several investigations the appellant had on his hips and knees. It is not obvious from Associate Professor Ireland’s report that he viewed the actual films to which these reports related. Indeed, it seems to the Appeal Panel that in all likelihood he only had access to the reports on them.
Associate Professor Ireland diagnosed that the appellant had osteoarthritis of his right and left hips and right and left knees. He noted that the appellant had a right total hip replacement and bilateral knee replacements as treatment for that condition.
Associate Professor Ireland said that “based on the information I have available yes I do believe that your client’s employment was a substantial contributing factor to his injury both in terms of his hips and his knees”. Associate Professor Ireland said that “I can only assume that the nature of this gentleman’s work, which is extremely heavy, has put enormous strain on his joints over a 35-year history and would in my opinion be the main contributing factor to the acceleration and deterioration of that arthritic condition”.
Associate Professor Ireland assessed the degree of the appellant’s permanent impairment as 56% WPI, which comprised of 30% WPI relating to his left knee (on the basis that the appellant had a poor result from his knee replacement surgery), 20% WPI relating to his right knee (on the basis that the appellant had a fair result from his right knee replacement), 20% WPI relating to his left hip (on the basis that the appellant had a fair result from his right hip replacement), and 1% WPI due to scarring from his right knee and left knee replacements.
The Appeal Panel observes that Associate Professor Ireland did not assess the appellant had any impairment relating to his left hip, notwithstanding that Associate Professor Ireland identified in his report that the appellant’s osteoarthritic left hip was due to his work as a shearer over the course of 35 years. The fact that Associate Professor Ireland did not assess the appellant to have an impairment relating to his left hip was due, it seems to the Appeal Panel, that at the time Associate Professor Ireland examined the appellant, the appellant had a normal range of movement of his left hip along all planes and also because there was no film available to him of any of the investigations the appellant had done of his left hip that would enable the Medical Assessor to measure the cartilage interval in the appellant’s left hip so as to enable a rating to be made under Table 17-31 of AMA5.
Following the appellant making his claim for compensation the solicitors for the respondent organised for the appellant to be examined by orthopaedic surgeon Dr Frank Machart on
10 July 2024. Dr Machart produced a report dated 17 July 2024 relating to that examination. Dr Machart assessed the appellant had 40% WPI, being a combination of 25% WPI relating to the right lower extremity (which in turn was a combination of 45% lower extremity impairment relating to the appellant’s right knee replacement and 33% lower extremity impairment relating to the appellant’s right hip replacement), 20% WPI relating to the left lower extremity, and 1% WPI relating to scarring. Dr Machart’s assessment of the left lower extremity did not include any component for the appellant’s left hip, and indeed it is apparent from Dr Machart’s report that he did not examine the appellant’s left hip.Dr Machart noted in his report that Associate Professor Ireland in his report of 5 March 2024 had diagnosed the appellant had osteoarthritis in hips and knees. Dr Machart also said that Associate Professor Ireland “did not comment on causation”, which is incorrect.
On 10 September 2024 the respondent’s solicitors wrote to the appellant advising him that the respondent’s insurer would pay him compensation for 40% WPI, based on Dr Machart’s assessment. On 25 September 2024 the appellant’s solicitors replied on the appellant’s behalf to that offer advising the respondent’s solicitors the appellant rejected it. The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation for permanent impairment. The documents attached to his application included Associate Professor Ireland’s report and the appellant’s statement dated 4 October 2024. The appellant in his statement described symptoms he had been suffering in both hips and both knees.
Following a reply to the appellant’s application, a delegate of the President of the Commission issued a referral to the Medical Assessor that was in the following terms:
“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
o the degree of permanent impairment of the worker as a result of an injury (s319(c))
o whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
o whether impairment is permanent (s319(f))
o whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 3 December 2021
Body part/s referred: Left lower extremity
Right lower extremity
Scarring – TEMSKI
Method of assessment: Whole person impairment
2. BRIEF
The brief provided to the Medical Assessor includes:
1. the Application and attached documents
2. the Reply and attached documents”.
The Medical Assessor examined the appellant on 19 December 2024 and, as said, issued the MAC on 9 January 2025 in response to the referral. The Medical Assessor found, with respect to the movement of the appellant’s knees, that the appellant had 0° extension bilaterally and 90° flexion. The Medical Assessor found that the appellant’s knees were sagittaly stable and that there was less than 5°of collateral ligament laxity of the left knee. The Medical Assessor found the appellant had 5°of valgus alignment. The Medical Assessor noted that the appellant had 21cm scars anteriorly over both knees.
The Medical Assessor found the appellant had the following range of motion of his hips:
MOVEMENT
LEFT
RIGHT
Flexion
90°
80°
Extension
0°
0°
Abduction
40°
40°
Adduction
20°
20°
Internal rotation
10°
10°
External rotation
20°
20°
The Medical Assessor recorded the appellant had a 18cm scar over his right hip. He noted that the appellant did not have any significant leg length discrepancy.
The Medical Assessor noted that he did not have any imaging to review. He was however provided within the brief of documents the Commission forwarded to him the reports of several investigations that the appellant had undergone.
Using the criteria of Table 17.34 of AMA5, the Medical Assessor scored the appellant’s right total hip replacement at 88 points which, in accordance with Table 17.33, equated to a good result providing for a rating of 37% lower extremity impairment.
The Medical Assessor, using Table 17.35 of AMA 5, provided the following scores for the appellant’s knee replacements:
FACTOR
POINTS
LEFT
RIGHT
Pain
30
30
Range of motion
20
18
Stability
25
25
Deductions
Flexion contraction
0
0
Extension lag
0
0
Tibiofemoral alignment
0
0
The Medical Assessor noted that the appellant’s total score for his left knee is 75 points and 73 points for his right knee which the Medical Assessor observed equated, in accordance with Table 17.33 of AMA 5 to a fair result for both knees which in turn equate to 50% lower extremity impairment for each knee.
The Medical Assessor noted that the 50% lower extremity impairment he assessed the appellant had relating to his right knee replacement when combined with the 30% lower extremity impairment he assessed the appellant had relating to his right hip replacement amounted to 69% lower extremity impairment, which converted to 28% WPI.
The Medical Assessor noted that the 50% lower extremity impairment he assessed the appellant had relating to his left knee replacement converted to 20% WPI.
The Medical Assessor also assessed the appellant to have 1% WPI relating to scarring. Hence, the Medical Assessor’s assessment of the appellant’s overall impairment was 28% relating to his right lower extremity, 20% relating to his left lower extremity and 1% relating to his scarring.
The Medical Assessor did not assess the appellant for any impairment relating to his left hip.
The Medical Assessor considered that a proportion of the appellant’s permanent impairment related to pre-existing conditions, specifically osteoarthritis in his right hip, osteoarthritis in his right knee and osteoarthritis in his left knee. He explained his reasons for that as being that the “injury to each joint represents aggravation of a pre-existing constitutional process and, in the absence of this process, joint replacement would not have been required”. He explained that the “deduction was difficult and costly to determine so in applying the provisions of s323(2) the deductible proportion is one-tenth”. Hence, the final outcome was that the Medical Assessor assessed the degree of the appellant’s permanent impairment relating to his right lower extremity was 25% WPI, to his left lower extremity was 18% WPI, and 1% WPI for scarring, which combined to 40% WPI. That is what the Medical Assessor certified he had assessed the degree of the appellant’s permanent impairment is resulting from his injury.
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 was not necessary for the worker to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient to deal with the appeal. Basically, the matters raised in the appellant’s appeal can be corrected based on the findings the Medical Assessor made from his examination of the appellant and by reference to the information within the documents before the Appeal Panel.
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 could only make a deduction for a pre-existing condition if there is evidence that the condition existed before 2002, which is when he commenced his employment with the respondent. The appellant submitted that there is no evidence he had arthritis at that time and that “any suggestion that he did is pure speculation”. The appellant submitted that consequently no deduction should have been made for “any arthritis condition, conditional or otherwise”.
The appellant submitted that the Medical Assessor recorded he had a range of movement of his left knee of 90°, which was the same as his right knee. The appellant submitted that
90° of movement is worth 18 points under the Guidelines and not 20 points as the Medical Assessor scored it.The appellant submitted that the Medical Assessor found he had 5° of valgus alignment in each knee and that in accordance with the Guidelines a deduction is to be made of three points for each degree of valgus up to 4°, “with no addition for 5°”. The appellant submitted that the Medical Assessor erred by failing “to make any deduction for valgus deformity in each knee”.
The appellant submitted that the findings of the Medical Assessor from the examination relating to the range of movement of his left hip provided “additional relevant information” that was not available to him before the Medical Assessor’s assessment or could not reasonably have been obtained by him before the assessment. The appellant submitted that the restricted range of movement the Medical Assessor found him to have of his left hip equates to 15% left lower extremity impairment. The appellant submitted that that impairment results from his employment with the respondent and should be combined with his left knee impairment.
In reply, the respondent submitted that the evidence before the Medical Assessor revealed that the appellant had severe osteoarthritis in both his knees and right hip. The respondent submitted that evidence comprised reports from the appellant’s treating orthopaedic surgeon and the reports on the various radiological investigations. The respondent submitted that the Medical Assessor identified a pre-existing condition of osteoarthritis in the appellant’s right hip, right knee and left knee. The respondent submitted that the deduction the Medical Assessor made under s 323 is reasonable and in accordance with the evidence.
The respondent agreed with the appellant’s submission that the Medical Assessor’s score of 20 points for the range of movement the appellant has in his left knee was wrong and it ought to have been scored as 18 points.
The respondent submitted that the appellant’s submission regarding the Medical Assessor failing to make a deduction for valgus alignment in each knee “appears to be correct”.
The respondent submitted that the appellant’s submission that the Medical Assessor ought to have combined any impairment the appellant had due to restricted range of movement in his left hip with the impairment the Medical Assessor assessed the appellant had relating to the appellant’s left knee replacement “is misconceived”. The respondent submitted that the appellant never made “a claim of injury” with respect to his left hip. The respondent noted that the appellant’s claim for compensation for permanent impairment relied on the report of Associate Professor Ireland dated 5 March 2024 and said that “the nominated injury resulting in impairment” were the right hip, right knee and left knee, and that the appellant did not make a “claim of injury or impairment resulting from left hip injury”. The respondent submitted that “the Medical Assessor has not contemplated making an assessment related to the left hip as he is limited to the terms of the appellant’s referral of the dispute”.
The respondent submitted that the appellant’s, “claim, which is crystallised in the letter of claim and the documents attached to that letter of claim, did not relate to any injury or impairment to the left hip resulting from employment with the respondent”.
The respondent noted in its written submissions other errors it contended were in the MAC. Firstly, the respondent submitted that the Medical Assessor’s scoring for the appellant’s range of motion of his right hip was incorrect. The respondent also noted there were typographical errors in the MAC.
With respect to these other errors the respondent identified, a Delegate of the President, in a direction dated 26 February 2025, noted that in accordance with Cl 26 of Procedural Direction PIC7 grounds for appeal should not be raised in a notice of opposition and that if the respondent wished to rely on a ground for appeal, it should lodge an application to appeal against the Medical Assessor’s assessment of the medical dispute. The Delegate directed that the respondent was to lodge an application to appeal against the decision of the Medical Assessor by 5pm on 5 March 2025. On 3 March 2025 the respondent’s solicitors wrote to the Commission advising the Commission that “at no stage did we purport to appeal against the Medical Assessor’s decision as contained in the MAC; rather we simply agreed with the appellant worker that the MAC contained demonstrable errors including typographical errors”. The respondent’s solicitors advised that the respondent did not intend to appeal against the MAC.
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.
Section 323
The appellant’s injury was a consequence of the work he did as a shearer for the respondent over the course of approximately 20 years. He commenced his employment with the respondent when he was of an age of either 40 or 41 years.
In such circumstance, the pre-existing condition for which a deduction can be made under
s 323(1) of the 1998 Act, must be a condition that the appellant had at the start of his employment with the respondent.[1][1] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (Cullen) at [47]-[58]; Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1211; Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586 at [85]-[92].
For clarity the Appeal Panel notes that the appellant at paragraph four of the statement he signed on 4 October 2024 said that he commenced shearing in 1985 and went into partnership in 2000 and then “transitioned” in 2002 to the respondent of which he was a managing director. The Appeal Panel infers from that, that although the appellant worked as a shearer from 1985, he did not do so as an employee until 2002, and that prior to 2002 he contracted with others as either a sole trader or in partnership with another shearer to perform services as a shearer. In other words, before 2002 he was not in employment as a shearer. The relevance of that is that had he been in employment as a shearer from 1985 then the point of time to consider whether he had a pre-existing condition would have been 1985 rather than 2002. To repeat, the evidenced, as it is, does not enable a finding to be made or an inference to be drawn that the appellant commenced employment as a shearer earlier than 2002.
The Appeal Panel does not agree with the appellant’s submission that there is no evidence to enable a finding that he had a pre-existing condition of osteoarthritis at the time he commenced his employment with the respondent in 2002. The Appeal Panel does not agree with the appellant’s submission to the effect that the Medical Assessor assumed he had osteoarthritis as of 2002.
As said, the appellant would have been 40 or 41 years of age when he commenced his employment with the respondent. By that time, he had worked as a shearer, although to stress not in employment, for 17 years. He would have commenced his employment as a shearer at the age of either 23 or 24. The work would have been arduous, and as Associate Professor Ireland has indicated, would have placed significant load on his hips and knees.
The history provided in a report of an ultrasound done of the appellant’s left knee on 28 October 2014 was that the appellant had “pain and tenderness”. That investigation revealed degeneration in the appellant’s knees. An X-ray done on 20 June 2014 revealed minimal arthritic change in the appellant’s knees.
It would seem that no further investigation was done of the appellant’s knees until 2021. The investigations into his hips also commenced at that time. Those investigations that were then done relating to his knees revealed that the osteoarthritis in his knees had advanced significantly. The investigations on his pelvis and hips also revealed that he had substantial degeneration in those joints.
Bearing in mind the age of the appellant when he commenced employment with the respondent and the fact that he had for the preceding 17 years engaged in work that placed heavy load on his hips and knees, and bearing in mind too that an investigation some 12 years after he commenced his employment revealed arthritic change in his knees, the Appeal Panel, which is an expert panel of which two of its three members are specialist doctors, considers that the degenerative process of the appellant’s osteoarthritis in his hips and knees had initiated some time prior to the date on which he commenced employment with the respondent. That is, the disease of osteoarthritis was existing at the time he commenced his employment with the respondent, and hence was a pre-existing condition.
The need for the appellant’s surgery was both a consequence of that condition as it existed at the time he commenced employment and the aggravation and acceleration of it as a consequence of his work with the respondent. His permanent impairment with respect to his right hip, and bilateral knees has been assessed by reference to the criteria for joint replacements, that is by reference to the criteria of Table 17-34 and 17-35 of AMA 5, as modified by the Guidelines. Given that, the Appeal Panel considers that a proportion of the appellant’s present permanent impairment is due to the degenerative disease he had in his joints at the time he commenced employment with the respondent. Hence, the Medical Assessor was consequently correct to make a deduction under s 323(1) for the proportion of the appellant’s permanent impairment relating to that pre-existing condition.
The Appeal Panel also considers that the Medical Assessor was correct to assume in accordance with s 323(2) of the 1998 Act that the deductible proportion was one-tenth. This is because the evidence does not enable a precise finding to be made of how extensive his arthritic disease was prior to his commencing his employment with the respondent.
He was at the time he commenced employment not experiencing symptoms from the disease, notwithstanding it would have been present. The evidence does not reveal the exact extent of the load he would have placed on his joints prior to 2002, compared to after that date, such that an inference could be drawn based on that regarding the extent to the disease in his joints as of 2002. Probably after 2002 the load would have been less due to advancements in machinery and technology, but that is simply speculation because nothing within the evidence enables such a finding to be made.
Put simply the medical experts on the Appeal Panel consider the clinical evidence before the Appeal Panel reveals that the degenerative disease of osteoarthritis would have initiated before the appellant commenced his employment with the respondent, notwithstanding that he was at that point without symptoms. It contributes to his current permanent impairment. It is difficult to determine exactly what proportion of the appellant’s current permanent impairment relates to that pre-existing condition. It is not at odds with the evidence to assume that the deductible proportion is 10%, that evidence being that at the time the appellant commenced his employment with the respondent he was asymptomatic and the extent of disease obviously worsened after that point.
Left hip
The appellant’s submission that the MAC amounts to additional relevant information so as to substantiate the ground for appeal provided in s 327(3)(b) is incorrect. That is contrary to the authority of Secretary, New South Wales Department of Education v Connolly.[2] Hence, the MAC cannot be relied on to substantiate that ground for appeal.
[2] [2023] NSWPICPD 38 at [80]-[81], [84]-[85]
Nevertheless, as the Appeal Panel reads the appellant’s submissions, he contended that the Medical Assessor made an error by not assessing the degree of permanent impairment he had relating to his left hip given that the Medical Assessor’s findings from his examination of his left hip revealed that he had an impairment due to the restricted range of movement in that joint. That is the appellant was contending that the MAC contained a demonstrable error because of the Medical Assessor’s failure to assess his left hip impairment.
The respondent’s submission to the effect that the medical dispute between the parties was, “crystalised in the letter of claim and the documents attached to that letter of claim”, is correct.[3] However, the Appeal Panel does not agree with the respondent’s submission that the medical dispute between the parties did not extend to any impairment the appellant had relating to his left hip.
[3] Skates v Hills Industries Ltd [2021] NSWCA 142 at [44]-[50]; Sakr v Merrylands Christians Pre-school Association Inc [2022] NSWSC 768 at [40]-[45]; Klement v Bull’N’Bush Nurseries Pty Ltd [2024] NSWSC 466 (Klement) at [9]
The appellant’s claim for compensation for permanent impairment was made by the letter his solicitors forwarded to the respondent’s insurer on 9 April 2024, to which was attached the report of Associate Professor Ireland dated 5 March 2024. Associate Professor Ireland in his report clearly identified that the appellant had been suffering symptoms in both hips and both knees which had become unbearable for the appellant by October or November 2021. Associate Professor Ireland diagnosed these symptoms as being due to osteoarthritis. Associate Professor Ireland noted that following the appellant’s surgery he was continuing with symptoms in both hips and knees but having mild symptoms only in his left hip. Associate Professor Ireland noted he was receiving physiotherapy for his symptoms. Associate Professor Ireland expressed his view that the appellant’s employment with the respondent was the main contributing factor to acceleration and deterioration of the appellant’s arthritic condition. He also said it was “a substantial contributing factor to his injuries both in terms of his hips and his knees”.
Associate Professor Ireland’s examination of the appellant’s left hip revealed unimpeded motion. Accordingly, notwithstanding that Associate Professor Ireland was of the view that the appellant had suffered an injury to his left hip he could not rate an impairment by reference to restricted range of movement. Further, whilst Associate Professor Ireland diagnosed the appellant had suffered an aggravation and acceleration of osteoarthritis in his left hip due to his employment with the respondent, and whilst he had a report on an investigation of the appellant’s hips that revealed hip joint narrowing in the appellant’s left hip of 50%, there was no film of any investigation of the appellant’s left hip that was made available to Associate Professor Ireland that would have enabled him to rate the appellant’s permanent impairment by reference to arthritis in accordance with the criteria of Table 17-31 of AMA5.
Simply put, although Associate Professor Ireland identified the appellant had suffered an injury to his left hip, at the time Associate Professor Ireland assessed the appellant that injury did not result in an assessable impairment.
Section 66(1)(A) of the 1987 Act limits a worker to making one claim only for compensation for permanent impairment resulting from an injury. As was the case in Klement, it was not open to the appellant to delay seeking compensation for the injury to his left hip notwithstanding that Associate Professor Ireland had not found on examination any resulting impairment from that injury. Given that Associate Professor Ireland had identified an injury to the appellant’s left hip, the appellant was entitled to be compensated for that if, on examination by a Medical Assessor to resolve a medical dispute between the parties, the Medical Assessor found impairment from that injury.[4]
[4] Klement at [48]-[49], [57]-[76]
The Medical Assessor’s findings from his examination of the appellant’s left hip revealed the appellant had restricted range of motion along the planes of flexion, internal rotation and external rotation. The restricted range of movement the Medical Assessor found the appellant had with respect of flexion correlates, in accordance with Table 17-9 of AMA5, with 5% lower extremity impairment. The restricted range of movement the Medical Assessor found that appellant had with internal rotation correlates with 5% lower extremity impairment, and the limited range of movement the Medical Assessor found the appellant had with external rotation also correlates with 5% lower extremity impairment. Those combine to 15% lower extremity impairment.
The Medical Assessor ought to have combined that impairment with the lower extremity impairment he found the appellant had relating to his left knee and was wrong not to do so. Had he done so the combined result would have been 58% lower extremity impairment, which correlates with 23% WPI.
It is the case that, as with the appellant’s right hip and right and left knees, the appellant had osteoarthritis in his left hip at the time he commenced employment with the respondent. Although that was not as extensive as what it progressed to by the time he ceased his employment, the pre-existing disease nevertheless is a factor in the restricted range of movement the appellant currently has in his left. It consequently contributes a proportion of his permanent impairment that he has relating to his left hip. It is far too difficult to determine exactly the extent of that proportion and consequently the Appeal Panel assumes in accordance with s 323(2) it is 10%. That assumption is not at odds with the evidence, that evidence being again that the appellant was at the time he commenced employment asymptomatic and the extent of his osteoarthritis would not then have been nearly as severe as what it progressed to be.
Table 17-35 scores
The Medical Assessor found that the appellant had 90° of movement on flexion of his right knee. The points that the Medical Assessor ought to have scored for that in accordance with Table 17-35 of AMA5 is, as both parties submitted, 18. Hence, the Medical Assessor erred by providing a score of 20.
Both parties are incorrect with respect to their submissions regarding the Medical Assessor scoring 12 points deduction for the 5° of valgus alignment he found the appellant to have. AMA5 Table 17-35 has been modified by the Guidelines such that the points to be scored for a 5-10° valgus is 0.
Summary and outcome
In summary, the degree of the appellant’s permanent impairment that the Medical Assessor assessed the appellant has with respect to his right lower extremity is correct and that is also the case with respect to the appellant’s scarring (about which neither party raised an issue in the appeal), but the Medical Assessor’s assessment of the appellant’s permanent impairment relating to the left lower extremity is incorrect in that he did not include the impairment the appellant had at the time of examination relating to his left hip. When that is done, as noted above, the appellant’s permanent impairment with respect to his left lower extremity is
21% WPI. When his impairments relating to his right lower extremity, left lower extremity and scarring are combined it amounts to 42% WPI.The Medical Assessor’s error with respect to the points he scored for the appellant’s restricted range of motion of his left knee does not affect the outcome in this matter.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 January 2025 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: | W27953/24 |
Applicant: | Michael Coles |
Respondent: | Willshear Shearing Services Pty Ltd |
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 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 | 3/12/2021 | Chapter 3 Page 21 Table 17.35 | Pages 546 and 547 Table 17.33 Page 548 Table 17.34 | 28% | 1/10 | 25% |
| Left lower extremity | Chapter 3 Page 21 Table 17.35 | Page 547 Table 17.33 Figures 17-1, 17-2, 17-3, Table 17-9 | 23% | 1/10 | 21% | |
| Scarring | Table 14.1 | 1% | - | 1% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 42% | |||||
0
8
0