Davis v Polbuild Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Davis v Polbuild Pty Ltd [2024] NSWPICMP 226
APPELLANT:	Gustaw Davis
RESPONDENT:	Polbuild Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Alan Home
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	17 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant suffered injury to right knee, the treatment for which included a total knee replacement; appellant had pre-existing osteoarthritis in right knee; Medical Assessor (MA) made a deduction under section 323(1) of 50%; whether that deduction was an error; whether the MA provided sufficient explanation for the deduction; Appeal Panel held the deduction MA made was not supported by the evidence and was an error; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 November 2023 Gustaw Davis, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 October 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) for appeal on 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, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment as a plasterer with Polbuild Pty Ltd, the respondent, in 2015. On 17 May 2019 he was descending a stepladder when he misplaced his right foot on the final step causing him to place all his weight on his right knee and twist it. He experienced immediate and severe pain. His general practitioner referred him for an MRI scan of his right knee, which was done on 6 June 2019. The radiologist who reported on that scan provided the following comment on what it revealed:
“Complete tear of the anterior cruciate ligament. Complex tear in the entire medial meniscus. Small joint effusion and a complex Baker's cyst. Bone marrow oedema in the medial aspect of the joint and chondral defect. There are chondral defects in the patella as well. The lateral collateral ligament is unremarkable. There is partial thickness tear in the medial collateral ligament distally.”
Following that scan the appellant’s general practitioner referred the appellant to orthopaedic surgeon Dr Simon Coffey, who referred the appellant for an X-ray of his hips and knees that was done on 12 August 2019. The radiologist who reviewed the images from that X-ray provided the following report:
“Degenerative change in the medial tibiofemoral compartment on the right. There is moderate asymmetrical joint space narrowing and osteophyte lipping. Subchondral sclerosis, in the medial tibia. This was seen on previous film performed in 2008. The degenerative change has progressed since the previous film. Mechanical axis on the right is 175 degrees and mechanical axis on the left is 176 degrees. There is degenerative cyst formation seen within the medial femur. There is degenerative change in the patellofemoral joint with asymmetrical joint space narrowing and osteophytosis.
The hip joint spaces are preserved. The joint space in the left knee is relatively preserved.”
On 4 July 2022 the appellant had a total right knee replacement done by Dr Coffey.
On 29 March 2023 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from it under s66 of the Workers Compensation Act 1987 (the 1987 Act) for 20% whole person impairment (WPI). They indicated to the insurer that the appellant relied on a report of rehabilitation specialist Dr Mohammed Assem dated 10 February 2023. Dr Assem advised in his report he had assessed the appellant’s permanent impairment by reference to Table 17-35 of AMA5, as modified by the Guidelines. He advised that based on the points he awarded for the several criteria within that table the appellant had a fair result from his total knee replacement, which correlated, in accordance with Table 17-33 of AMA5, with 20% WPI. Dr Assem advised that because there was radiological evidence of the appellant having pre-existing degenerative changes in his right knee that were symptomatic prior to the appellant suffering injury, a deduction was to be made and he consequently made a deduction of one-tenth. Dr Assem also advised that he assessed the appellant had 1% WPI for scarring.
On 26 May 2023 the appellant was examined by orthopaedic surgeon Dr Richard Powell, at the request of the respondent’s solicitors. In a report dated 1 June 2023 Dr Powell advised he assessed the appellant had 6% WPI from his injury. Dr Powell also rated the appellant’s impairment by reference to the modified Table 17-35 and assessed the appellant had a fair result from his knee replacement and hence he assessed that the degree of permanent impairment the appellant had due to his knee replacement was 20% WPI. Dr Powell however made a deduction of three-quarters “to reflect the pre-existing pathology and minor workplace incident”. Dr Powell also assessed the appellant had 1% WPI due to scarring.
The insurer on 22 June 2023 notified the appellant, in accordance with s 78 of the 1998 Act, that it disputed his claim for compensation for permanent impairment from his injury. It advised him, in substance, that its decision to deny liability was on the basis of Dr Powell’s report.
The appellant then commenced proceedings in the Personal Injury Commission (Commission). A delegate of the President of the Commission referred the matter to the Medical Assessor on 27 July 2023, and the Medical Assessor examined the appellant on 5 October 2023 in order to assess the medical dispute between the parties that had been referred to him.
The Medical Assessor assessed the appellant’s degree of permanent impairment relating to his right knee by reference to Table 17-35 of AMA5 as amended by the Guidelines. He too also assessed, based upon the scores he awarded the appellant for the several criteria in that table, that the appellant had a fair result from his total knee replacement, which the Medical Assessor noted, based on Table 17-33, correlates to 20% WPI. No issue is taken with that in this appeal. Further the Medical Assessor assessed the appellant’s permanent impairment relating to scarring as 1% WPI, and again no issue is taken with that in the appeal.
What is in issue in this appeal is the deduction that the Medical Assessor made under s 323(1) of the 1998 Act for a proportion of the appellant’s permanent impairment from his injury that the Medical Assessor considered was due to a pre-existing condition.
Relevant to that matter, the Medical Assessor repeated in the MAC the comment of the radiologist on the MRI scan done of the appellant’s right knee on 6 June 2019 and also the report of the radiologist on the X-ray of the appellant’s knees and hips done on 12 August 2019. The Medical Assessor also commented that the injury the appellant suffered on 17 May 2019 was an aggravation of significant pre-existing osteoarthritis involving his right knee that subsequently led to a total knee replacement. The Medical Assessor identified the pre-existing condition as significant osteoarthritis involving the appellant’s right knee with a chronic ACL injury. The Medical Assessor said that were it not for that pre-existing condition in the appellant’s right knee the appellant would not have required a knee replacement immediately after his injury. The Medical Assessor considered that one-half of the 20% WPI he assessed the appellant had relating to his right knee was due to that pre-existing condition and he provided the following reasons for his opinion on that matter:
“The contemporaneous evidence outlines Mr Davis having problems with his knee dating back to 2008 and the injuries have clearly been responsible for the degenerative changes that were present in the knee at the time of the accident that was referred for this assessment.”
The Medical Assessor accordingly, when assessing the appellant’s permanent impairment from his injury to his right knee, made a deduction under s 323(1) of the 1998 Act of one-half for the proportion he considered was due to the pre-existing condition. That reduced the appellant’s permanent impairment relating to his right knee from his injury to 10% WPI, which when combined with the 1% WPI the Medical Assessor assessed the appellant had for scarring, produced 11% WPI, which the Medical Assessor certified is the degree of permanent impairment the appellant had from his injury on 17 May 2019.

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 appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient to enable the Appeal Panel to determine the appeal.

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 s 323(1) of the 1998 Act required the Medical Assessor to determine whether and to what extent his permanent impairment resulting from his work injury would not have been as great if he did not have a pre-existing condition. The appellant referred to Ryder v Sundance Bakehouse[1] at [45] as authority to support this submission.
[1] [2015] NSWSC 526 (Ryder).
The appellant submitted that this required the Medical Assessor to undertake an evaluative task having regard to all the evidence before him. The appellant submitted that the Medical Assessor did not have proper regard to the fact that he had been carrying out heavy manual work using ladders without symptoms or complaint of symptoms to his general practitioner between February 2014 and May 2019. The appellant submitted that the Medical Assessor failed to have regard to the fact that he suffered persistent pain following that injury.
The appellant submitted that his injury made it necessary for him to have a total knee replacement and his injury had accelerated his need for this surgery.
The appellant submitted that the Medical Assessor picked a “figure out of the air” to determine the deduction that should be made under s 323(1) and that was “not sufficient to discharge the obligation to carry out the evaluative exercise”.
The appellant submitted that the Medical Assessor’s explanation for making a one-half deduction, which was that if the appellant did not have pre-existing degenerative changes in his right knee he would not have required a knee replacement immediately after his injury, did not explain why the Medical Assessor considered that the proportion of his permanent impairment due to his pre-existing condition was one-half. The appellant submitted that the Medical Assessor did not identify the evidence that was at odds with the assumption required under s 323(2) of the 1998 Act that the deduction to be made under s 323(1) was one-tenth.
The appellant submitted that if all relevant evidence is considered properly, including the evidence that he had not been impeded in any way from carrying out his work for many years, the deduction under s 323(1) should be “the statutory one-tenth”.
In reply, the respondent submitted that the Medical Assessor clearly concluded that it was neither too difficult nor too costly to assess the deduction to be made under s 323(1) of the 1998 Act and consequently s 323(2) could not be engaged. The respondent submitted that it is evident from the MAC that the Medical Assessor conducted a thorough examination of the appellant. The respondent submitted that there was no failure of the Medical Assessor to apply properly the provisions of s 323 and there is no failure on the Medical Assessor’s part to provide adequate reasons.
The respondent submitted that the Medical Assessor was able to give pre-eminence to his own observations and findings and that he exercised clinical judgment as to the significance of the matters that had been reported to him. The respondent submitted that there was an abundance of evidence before the Medical Assessor to justify the deduction he made.

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 time at which a Medical Assessor must assess the extent to which a worker’s permanent impairment from an injury is due to a pre-existing condition is the time the assessment is done.[2] Further, in accordance with what the appellant submitted, relying on Ryder, it is only if, at that time, the impairment that a worker has from a work injury is greater because of the pre-existing condition, that the pre-existing condition can be found to have made a difference to the outcome of the worker and a proportion of the worker’s permanent impairment from his injury will be due to that pre-existing condition. To the extent that there has been a difference, a deduction is to be made. The extent of the deduction to be made cannot be based on assumption, unless s 323(2) is engaged. That subsection can only be engaged if to ascertain the extent of the deduction would be difficult or costly and the assumption to be made is not at odds with the evidence.
[2] State of New South Wales (Central Coast Local Health District) v Page [2023] NSWSC 935 at [64]-[74] (Page).
It is uncontroversial in this matter that the appellant did have a pre-existing condition at the time of his injury in the form of substantial osteoarthritis in his right knee. The evidence reveals however that notwithstanding this extensive disease in his right knee, the appellant was able to undertake an arduous job with no evident disability. Further, whilst there is evidence that on occasion in the preceding years, the appellant was briefly troubled by symptoms in his right knee, he did not require any treatment nor had he been prescribed any anti-inflammatory or analgesic medication. The injury he suffered on 17 May 2019. as a consequence of twisting and landing heavily on his right knee whilst descending a stepladder, which resulted in a tear of his meniscus and caused him substantial pain in his knee such that he was unable to work, made it necessary for him to have a total knee replacement.
Notwithstanding the appellant had extensive degeneration in his right knee at the time of injury, given that he had been able to work and had not preceding his injury been troubled in any significant way by symptoms from that degeneration in his knee, it seems to the Appeal Panel that, in all likelihood, he would have been able to continue for several years without needing a total knee replacement. In other words, as the appellant submitted, the injury he suffered on 17 May 2019 accelerated, by a substantial order, the need for that surgery.
Further, as a consequence of his having that knee replacement the osteoarthritic disease in his knee has now been completely or largely removed.
The appellant’s case on appeal is that a deduction should be made under s 323(1) of the 1998 Act on account of a proportion of his permanent impairment from his injury being due to his pre-existing osteoarthritis in his knee, but that in accordance with s 323(2) of the 1998 Act that proportion should be assumed to be 10%. The Appeal Panel is of the view that, arguably, a case could be made, similar to what the situation was in Page, that because the osteoarthritis in the appellant’s right knee has now been completely or largely removed as a consequence of the surgery he had as treatment of his injury, that disease no longer contributes to his permanent impairment, and consequently at the time the appellant’s permanent impairment from his injury was assessed, no proportion of his permanent impairment is due to the pre-existing condition because it either no longer exists or has been largely removed.
That however, is not the case the appellant makes in his appeal. Rather the substance of his contention is, and to repeat, that his pre-existing condition does contribute to his permanent impairment from his injury but it is difficult or costly to determine precisely what that contribution is and hence it should be assumed to be 10% in accordance with s 323(2) because that is not at odds with the evidence.
The Appeal Panel accepts that submission. The evidence indicates that the osteoarthritis is either largely removed from or is no longer in his knee. The osteoarthritis was a factor in his need for surgery but it was the appellant’s injury that made it necessary that he have the surgery immediately. Given the appellant has contended that a deduction is to be made, the Appeal Panel considers that it is difficult and costly to determine precisely what the deduction should be and assumes it is 10% because it is not at odds with the evidence. That evidence is that it was the appellant’s injury that precipitated the immediate need for surgery, and without his suffering injury it may have been years before he required the surgery, and the pre-existing condition is now removed or is largely removed from his knee.
The Appeal Panel therefore finds that the Medical Assessor did make an error by not assuming the deduction to be made under s 323(1) was 10%.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 October 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W4704/23
Applicant:	Gustaw Davis
Respondent:	Polbuild 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 Gregory McGroder 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 WorkCover Guides	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 (knee)	17/05/2019	Chapter 3	Chapter 17	20%	1/10	18%
Scarring	17/05/2019	Table 14.1	-	1%	-	1%
Total % WPI (the Combined Table values of all sub-totals)					19%

[2024] NSWPICMP 226

17 April 2024