Dengate v Coles Group Supply Chain Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Dengate v Coles Group Supply Chain Pty Ltd [2022] NSWPICMP 45
APPELLANT:	Michael Dengate
RESPONDENT:	Coles Group Supply Chain Pty Ltd
APPEAL PANEL:	Member Deborah Moore Dr Mark Burns Dr J Brian Stephenson
DATE OF DECISION:	10 March 2022
CATCHWORDS:	WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in the deduction he made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; fresh evidence in the form of a further medical report commenting on the Medical Assessment Certificate (MAC) rejected; no claim for a deemed date of injury; evidence disclosed significant pre-existing conditions consistent with the MA’s deduction; Held- MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 December 2021 Michael Dengate (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr SK Cyril Wong, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 25 November 2021.
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 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 WorkCover Medical Assessment Guidelines 2006.
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 because none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appeal was filed on 14 December 2021.
The appellant did not identify the availability of fresh evidence as a ground of appeal, but has sought to include a supplementary report of Dr Bodel dated 26 November 2021 which essentially comments on the assessment by the MA.
This report is not ‘additional relevant information’. It does not comply with the requirements of s 328(3) in that it was clearly obtained after the MA’s assessment purely in response to that. Moreover, additional relevant information does not include matters going to the process whereby the MA makes his or her assessment.
As the respondent correctly points out, “a supplementary report addressing any deduction under section 323 of the 1998 Act could have been more than reasonably obtained prior to the medical assessment”.
For these reasons, the “fresh evidence” sought to be admitted by the appellant is rejected.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA 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.
The appellant submits that the MA erred in the deduction he made pursuant to s 323 of the 1998 Act.
In reply, the respondent submits that no errors were 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. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the right lower extremity and scarring (TEMSKI) resulting from an injury on 9 February 2009.
The MA obtained the following history:
“On 9 February 2009, Mr Dengate injured his right knee when he was 'pick packing' for Coles. He was placing products on a pallet and felt his right knee twisted. This knee was injured in a prior incident about 2003 when he lifted a large mattress for a queen sized bed and he slipped on a piece of wet plastic on the floor. He felt a sudden severe pain in his right knee. He consulted a general practitioner and Xrays were ordered and he received no specific treatment. He had possibly a day off work and he returned to full duties. He reported the incidence to work and heard nothing more from work. He subsequent had constant variable pain with intermittent swelling at the right knee.
After the 2009 incident, Mr Dengate left work and consulted a general practitioner
Dr Dutt at Ludenham who referred him to orthopaedic surgeon Dr Ray Wallace. On 23 June 2009, Dr Ray Wallace carried out a right knee arthroscopy with a partial medial meniscectomy and a chondroplasty. Dr Wallace suggested a total knee replacement would be necessary sometime in the future as he was too young to have the operation at the time. Mr Dengate had a right total knee replacement by Professor Warwick Bruce on 14 December 2017. He was off work for some six months following that operation. He returned to his pre-injury duties from about May 2018.”
Present treatment was described: “Mr Dengate is at present having no treatment for his right knee. Mr Dengate now takes no medication from the injury”.
Present symptoms were noted as follows: “Mr Dengate complains of intermittent mild to moderate pain at the right knee depending on physical activities”.
In commenting on “Details of any previous or subsequent accidents, injuries or condition” the MA said:
“Mr Dengate injured his right knee on 23 December 2003 when he was loading the furniture removal truck for country deliveries. His claim for Worker Compensation was successful. He compensated for 2003 injury in 2019 two years after his right total knee replacement.”
After setting out details of Mr Dengate’s work history and activities of daily living, the MA then described his findings on physical examination.
He assessed 15% WPI in respect of the right lower extremity and 1% for scarring. He then deducted one-third pursuant to s 323 leaving a total WPI of 11%.
He set out details of the various radiological reports he had before him, adding:
“4 March 2009 MRI right knee - The main finding is essentially tricompartmental osteoarthrosis with the medial compartment most affected where there is full-thickness chondral loss and moderate subchondral sclerosis and mild oedema particularly on the femoral side of the joint. There is extensive tricompartmental joint line osteophytosis with a lesser degree of chondral thinning and fissuring particularly about the lateral facet of the patella and the adjacent trochlea. The body of the medial meniscus is markedly degenerate and peripherally extruded. There is grade 1 /2 injury of the mid portion of the MCL.
4 September 2017 X-rays right lower limb - There is varus deformity of the right knee joint. There is marked medial femorotibial joint space loss associated with subchondral sclerosis and medial marginal osteophytic lipping. There is a small ossification adjacent to the lateral aspect of the superior acetabulum. Linear soft tissue calcification adjacent to the medial aspect of the mid shaft of the right femur is noted.
1 November 2017 X-rays right knee - Narrowing of the medial tibia-femoral joint space, sclerotic reaction in the joint surfaces, irregularity and osteophytes noted; fairly marked degenerative changes in the patella-femoral joint with some prominent osteophytes.
4 November 2017 - MRI right knee - Scans were performed for the purposes of pre-operative planning…
30 January 2018 X-rays right knee with full length film - Bicompartmental knee replacement with resurfacing of the patella. Components in satisfactory position. No complicating features seen…”
The MA concluded:
“The right total knee replacement was assessed in accordance with AMA5 T17-35 as modified in section SIRA 4 section p21. It was a good result at 15% WPI reduced to 10% after 1/3 apportionment. Scarring was rated at 1% WPI.”
The MA then turned to comment on the other medical opinions and said:
“25 August 2020 Dr Allan Meares rated the scarring at TEMSKI 1% WPI. I agree with his assessment on scarring. Dr Meares described the scars at the right knee…
20 April 2020 Dr James G Bodel rated the right total knee replacement at 89 point with good results with 0% apportionment.
18 February 2021 Dr Paul Miniter cited an arthroscopy by Dr Wallace in 2009 and arthroscopic findings at that stage were of grade 4 disease and thus the arthroscopic surgical treatment could in no way be regarded as the cause of the osteoarthritic change which was already evident in an advanced form in 2009. Following the surgery in December 2017, he has gone back to work doing two jobs. Therefore, there was good result. Dr Paul Miniter noted left knee had features of moderate to advanced osteoarthritic change. Dr Miniter rated the right total knee replacement at 94 points indicating good result at 15% WPI reduced to 10% after 1/3 apportionment.
I agree with Dr Paul Miniter in that there was of grade 4 disease before the incident on 9 February 2009 both on the arthroscopic findings by Dr Wallace and on the MRI findings on 4 March 2009. I agree with the 1/3 apportionment as assessed by
Dr Miniter.”
In commenting on the deduction, the MA said:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Grade 4 osteoarthritis right knee…
(ii) The pre-existing condition contributes directly to the need for the right knee total knee replacement.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 1/3 for the following reasons:
(i) The pre-existing condition contributes directly to the need for the right knee total knee replacement.”
The appellant makes the following submissions:
(a)    The appellant's deemed date of injury is 9 February 2009. The MA notes that the treating orthopaedic surgeon, Dr Wallace, opined on 23 June 2009 that the appellant would require a total knee replacement sometime in the future. The appellant is now assessed by the MA having had that surgery.
(b)     The MA has not referred to the report of Dr Wallace dated 6 August 2010 wherein he assesses pre-existing degenerative osteoarthritis of the right knee at 1/10th. This assessment is accepted by the respondent and a s 66A Agreement is agreed with the appellant in the amount of 7% WPI. It is unclear whether the MA has considered the opinion of Dr Wallace, but ii appears he has not done so.
(c)     In his report of 22 January 2013 Dr Wallace affirms a proportion being due to pre-existing degenerative osteoarthritis.
(d)     The MA refers to the assessment made by Associate Professor Miniter and comments that the arthroscopic surgical treatment in 2009 could in no way be regarded as the cause of the osteoarthritic change evident in 2009. It is respectfully submitted that this was not the assessment required to be made by the MA.
(e)     The MA was required to undertake the following assessments:
(i)assess the extent of the appellant's permanent impairment in respect of his right lower extremity (right knee), and
(ii)in making that assessment determine the extent of any relevant deduction for pre-existing injury, condition or abnormality pursuant to the provisions of s 323 of the 1998 Act.
(f) The MA makes no comment in relation to the opinion of Dr Wallace as treating surgeon with respect to the s 323 deduction as set out in the report of 6 August 2010 at paragraph 5 above.
This leads to an inference that the MA has considered the extent of the deduction based upon deterioration in the appellant's right knee subsequent to the injury in 2009 and has treated this deterioration as the pre-existing condition.
(g) The relevant consideration for the purposes of s 323 deduction is the pre-existing condition as at 2009. This is assessed by Dr Wallace, the treating surgeon, at 1/10th and this assessment is made with the benefit of conducting the arthroscopic surgery upon the appellant in 2009.
(h)     It is respectfully submitted that the MA is required to provide reasons for either having not considered this assessment by Dr Wallace, or for rejecting that assessment. The MA provides reasons as to why he agrees with the opinion of Associate Professor Miniter in February 2021 but provides no reasons with regard to the opinion of Dr Wallace and indeed makes no reference to the opinion of Dr Wallace.
(i)     The future need for the right total knee replacement was identified in 2009. For that reason the contemporaneous assessment of pre-existing condition made by Dr Wallace at that time is clearly relevant evidence to be considered by the MA.
At the outset, we remind the appellant that the MA was asked to assess WPI as a result of the injury on 9 February 2009. It was not referred to as a “deemed” date of injury.
In those circumstances, the MA was therefore looking at the state of Mr Dengate’s knee prior to that injury.
In his report of 31 March 2009, Dr Wallace obtained the following history:
“[Mr Dengate] suffered an initial twisting injury at his right knee in the course of his duties at work in 2004…. He underwent an X-ray examination but required no time off work.
Since then he has noted ongoing intermittent aching pain at his right knee. During 2008 he noted persisting intermittent right knee pain and was reviewed by his Local Medical Officer. He attended two sessions of physiotherapy.
On 9 February 2009 whilst picking an order, he noted recurrence of pain and swelling at his right knee without a history of further specific injury…
INVESTIGATIONS: 4 March 2009: MRI investigation of the right knee shows tricompartmental osteoarthritis, particularly affecting the medial compartment where there is full thickness chondral loss. There is degeneration of the body of the medial meniscus.
Mr Dengate has suffered an aggravation of pre-existing degenerative osteoarthritis at the right knee as a result of the nature and conditions of his employment with Coles Limited in the period 2004 to date and continuing.”
Findings at operation in June 2009 were reported by Dr Wallace as follows: “Grade IV chondral damage medial compartment: Posterior horn and body tear medial meniscus: Grade IV chondral damage trochlea”.
Thus it is clear that, as at February 2009, Mr Dengate demonstrated significant degenerative changes in his right knee, consistent with the history obtained by Dr Wallace in his initial report.
We accept that the MA did not specifically refer to the reports of Dr Wallace but it is clear that in making his assessment he had regard to the same radiological material as Dr Wallace which in terms of the issue in dispute was critical in his consideration of any s 323 deduction.
An Assessor is not required to refer to every piece of evidence before him consistent with principles developed from administrative law and judicial review generally.
As Campbell J said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:
“It is plainly unnecessary for a judge to refer to all the evidence…or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend…upon the circumstances of the individual case…”
However, there is no doubt that the MA took into account his findings since he referred to “grade 4 disease before the incident on 9 February 2009 both on the arthroscopic findings by Dr Wallace and on the MRI findings on 4 March 2009”.
The findings of Dr Wallace prior to the appellant undergoing his total right knee replacement were therefore clearly considered by the MA, as they were by Dr Miniter which the MA noted in his summary of other medical evidence.
The MA also addressed why a one tenth deduction was not applied. The MA opined “imaging and arthroscopic findings in 2009 show right knee degeneration in advanced form” and therefore “the deductible proportion is large and a deduction of one tenth is at odds with the available evidence”.
Chapter 1.28 of the Guidelines requires an MA to indicate if there is a deductible proportion due to any pre-existing condition and specifically states: “the deduction is 1/10^th of the assessed impairment, unless that is at odds with the available evidence” (our emphasis).
In this case, as we said earlier, given that the MA was looking at the state of Mr Dengate’s knee as at February 2009, there was ample evidence, particularly from Dr Wallace, of a significant pre-existing condition such that in our view, a 1/10^th deduction would certainly be at odds with the available evidence.
Further, as the respondent submits:
“In Roche v Australian Prestressing Services PtyLtd [2013] NSWWCCPD 7, a complying agreement entered in 2008 which included 4% WPI to the left wrist was not confirmed in a MAC issued by Dr Hyde Page on 24 August 2011, which assessed nil impairment of the left wrist. In a decision on 29 September 2011, the Arbitrator held that the complying agreement was not an order of the Commission and could not give rise to an estoppel. Similarly, the Respondent submits the earlier Complying Agreement referred to in the subject proceedings and the assessment it was based upon is not binding.”
We agree with this submission.
The assessment and deduction made by the MA was consistent with the totality of the evidence, and we cannot see any error by him.
For these reasons, the MAC issued on 25 November 2021 should be confirmed.

[2022] NSWPICMP 45

10 March 2022