Department of Communities and Justice v Virtue
[2025] NSWPICMP 355
•21 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Department of Communities and Justice v Virtue [2025] NSWPICMP 355 |
| APPELLANT: | Department of Communities and Justice |
| RESPONDENT: | Paul Andrew Virtue |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 21 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant employer submits that Medical Assessor (MA) erred in application of section 323 having regard to previous injuries and operations to the left knee and right ankle; previous Appeal Panel subject to judicial review by Supreme Court; consideration of observations made in the decision of the Supreme Court as to whether all consequential impairments should not be subject at least to the deduction attaching to the primary injury to the right knee; Held – MA was in error by not providing adequate reasons for the one-tenth deductions for the assessment of impairment of the consequential conditions affecting the left knee and right ankle; re-examination required; MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 October 2023 the appellant employer, Department of Communities and Justice, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Jonathan Negus, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 respondent worker, Paul Andrew Virtue, sustained an injury to his right knee on
22 September 2013 while employed as a disability support worker with the appellant.
Mr Virtue experienced pain in his right knee when he was twisting a hoist to transfer a patient into a wheelchair.Mr Virtue underwent the following operations on his right knee following that work injury:
(a) an arthroscopy and partial lateral meniscectomy performed by Dr Sharp on
24 June 2014;(b) an arthroscopy and partial lateral meniscectomy performed by Dr Sharp on
31 March 2015;(c) a lateral unicompartmental knee replacement performed by Dr Sharp on
13 April 2016;(d) a revision of the unicompartmental knee replacement performed by Dr Sharp on 6 September 2016, and
(e) a total knee replacement performed by Dr Healey on 30 March 2017.
Mr Virtue claims that he has experienced restrictions and symptoms in his right ankle, left knee and left ankle as a consequence of the injury to his right knee.
Mr Virtue underwent a left total knee replacement performed by Dr Sharp on
24 November 2020.Mr Virtue underwent an arthroscopy and stabilisation of the left ankle performed by Dr Rao on 11 March 2021.
Mr Virtue had sustained injuries to both lower limbs prior to the work injury on
22 September 2013. He sustained an injury to the left femur in a motorcycle accident in or about 1990.Mr Virtue states that he suffered a crush injury to his right ankle in a motor vehicle accident when he was in his mid-twenties.
Mr Virtue had also undergone operations to both lower limbs prior to the work injury on
22 September 2013. Mr Virtue underwent a right knee anterior cruciate ligament (ACL) reconstruction and a left knee arthroscopy in February 2008. He underwent a left knee ACL reconstruction in about 2010.Mr Virtue underwent a right knee ACL reconstruction and partial medial meniscectomy on
12 May 2011. He underwent a right knee arthroscopy on 22 October 2012.Mr Virtue has made a claim for 41% whole person impairment (WPI) as a result of the injury he sustained on 22 September 2013 based upon an assessment of WPI made by Dr Oates in a report dated 7 June 2022.
Member Turner made an order on 6 June 2023 that the following body parts be referred for assessment of WPI:
(a) right lower extremity (knee and ankle);
(b) left lower extremity (knee and ankle), and
(c) scarring (TEMSKI).
The MAC dated 25 September 2023 provides an assessment of 31% WPI, which is calculated as follows:
(a) 12% WPI of the right lower extremity (knee and ankle) after a one-half deduction for pre-existing degenerative changes of the right knee and a one-tenth deduction for pre-existing degenerative changes of the right ankle;
(b) 20% WPI of the left lower extremity (knee and ankle) after a one-tenth deduction for pre-existing degenerative changes of the left knee, but no deduction for any pre-existing condition or abnormality of the left ankle, and
(c) 1% WPI for scarring.
It is the MAC dated 25 September 2023 which is the subject of this appeal. A previously constituted Medical Appeal Panel delivered a decision on 12 March 2024. The Appeal Panel revoked the MAC, but only in regard to a miscalculation of the percentages of impairment for both knees.
The Appeal Panel otherwise could not discern any error in the one-tenth deduction of impairment for the right ankle. This was despite Dr Sharp writing in a report some five months before the work injury that the “architecture” of Mr Virtue’s right ankle “is not really standard” and the “tibia has changed its shape, as has the talus”, and “this is the reason why Paul is having his discomfort”.
The Appeal Panel could not discern any error in the one-tenth deduction of impairment for the left knee. This was despite Mr Virtue having undergone two operations to the left knee prior to the work injury, and Dr Sharp recording five months before the work injury that
Mr Virtue was complaining of left knee pain and the patella drifting towards the lateral side, and that there was a tear of the lateral meniscus at the back of the left knee.The respondent sought judicial review of the decision of the Appeal Panel dated
25 September 2023. Acting Justice Basten delivered a decision on 31 October 2024 in Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380 (Virtue). His Honour noted that the issues in the judicial review concerned the deductions to be made on account of previous injuries and pre-existing conditions. The grounds for review were whether the Appeal Panel adequately considered the issues raised on the appeal before it and whether the Appeal Panel gave adequate reasons for its decision.The following orders were made:
“(1) Set aside the decision and Medical Assessment Certificate issued by an appeal panel of the Personal Injury Commission on 12 March 2024.
(2) Set aside the Certificate of Determination issued by the Personal Injury Commission, Workers Compensation Division, dated 16 April 2024.
(3) Direct that the President of the Personal Injury Commission refer the Secretary’s appeal to a differently constituted Medical Appeal Panel.
(4) Order that the first defendant pay the plaintiff’s costs in this Court.”
The headnote to the decision in Virtue is as follows:
“1 The Panel was obliged in determining the appeal to respond to any substantial and clearly articulated case made by the appellant in respect of the application of s 323(1) of the 1998 Act. It was necessary not merely that the submissions be considered, but that that they be ruled upon. In the present case, the Panel did not set out the terms of the grounds of appeal or the submissions and dismissed in two sentences the employer’s ground of appeal relating to the application of deductions by the assessor. The Panel’s response did not demonstrate that it had properly considered the employer’s grounds of appeal relating to the left knee and right ankle. It follows that the Panel failed to carry out its proper function according to law: [40]-[43], [47]-[49]
………
2 The Panel’s reasoning did not address the substance of the employer’s submissions on the appeal, failing to explain how it had assessed unchallenged medical evidence of the claimant’s prior injuries and pre-existing conditions (if it did) and failing to identify the medical evidence which it accepted or preferred in circumstances where the medical assessor had similarly failed to do so: [53]-[54].
……..
Query raised as to why all consequential impairments were not subject at least to the deduction attaching to the primary impairment due directly to the injury: [55]-[56].”
This decision is from a differently constituted Appeal Panel in accordance with order no. 3 in Virtue.
EVIDENCE
Documentary 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.
Medical Assessment Certificate
The Medical Assessor set out the surgical procedures which Mr Virtue underwent to his right knee, left knee and left ankle following the work injury and which the Appeal Panel has summarised in this decision.
The Medical Assessor set out previous injuries to both lower limbs, and surgical procedures to both knees prior to the work injury, which the Appeal Panel has also summarised in this decision. The Medical Assessor writes that the crush injury to the right ankle from the motor vehicle accident when Mr Virtue was in his mid-twenties resulted in avascular necrosis, but he was asymptomatic until 2017.
The Medical Assessor set out his findings on examination and found that Mr Virtue had a poor result from both total knee replacements, and that he had 7% lower extremity impairment (LEI) of the left ankle and 9% LEI of the right ankle. He made an assessment of 31% WPI, which was calculated as follows:
“Left lower limb
Left knee – 50% LEI * 1/10th deduction = 45% LEI
45 COMBINE 7 = 49% LEI = 20% WPI
Right lower limb
Right knee – 50% LEI * 5/10th deduction = 25% LEI
Right ankle – 9% LEI * 1/10th deduction = 8.1 ROUNDED DOWN 8%
25 COMBINE 8 = 31 LEI = 12% WPI
20 COMBINE 12 = 30%
TEMSKI – 1%”
The only medical opinion referred to by the Medical Assessor is the report of Dr Machart dated 5 October 2022, which is a report provided at the request of the appellant. The Medical Assessor writes in regard to that report: “he found a different level of pain and ML stability in the knees which accounts for a large difference in the impairment we found.”
The Medical Assessor considered that Mr Virtue suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(a) previous left knee injury and surgery;
(b) previous right knee injury and surgery, and
(c) previous right ankle injury.
The Medical Assessor provided his reasons for the deductions in his assessment of WPI due to pre-existing degenerative changes in the left knee, right knee and right ankle as follows:
“For the LEFT KNEE AND THE RIGHT ANKLE –
The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when at odds with available evidence)
For the RIGHT KNEE
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 5/10 for the following reasons:
(i) He had undergone multiple procedures leading to chondral loss, meniscus loss, ongoing symptoms and significant established arthrosis.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions
The appellant provided written submissions which were attached to the Application to Appeal Against the Decision of a Medical Assessor.
The appellant submits that the Medical Assessor has made an error in his calculations of WPI. The Medical Assessor applied Table 3.3 of the Guidelines, which is only applicable to ankle replacement. The Medical Assessor should have applied table 17-33 of AMA5, which allows for 75% LEI for a poor result for a knee replacement.
The appellant submits:
“If the correct scoring were applied, on the appellant’s calculation, the assessment would instead be 41% WPI as follows:
a. Left lower extremity 28% WPI (68% LEI for the left knee inclusive of a one-tenth deduction and 7% LEI for the left ankle).
b. Right lower extremity - 17% WPI (38% LEI for the right knee inclusive of a one-half deduction and 8% LEI for the right ankle inclusive of a one-tenth deduction
c. Scarring – 1% WPI”
The appellant submits that the Medical Assessor failed to give sufficient reasons in relation to his finding that Mr Virtue had continual and moderate pain in both knees when both Dr Oates and Dr Machart scored lesser levels of pain when both those experts examined Mr Virtue. The Medical Assessor merely records: “He describes a moderate, continuous pain on both sides, giving him a pain score of 10 for each knee.”
The appellant submits that the Medical Assessor misapplied s 323 (1) of the 1998 Act by failing to consider the extent that Mr Virtue’s pre-existing left knee condition was contributing to the need for a total knee replacement. Mr Virtue had previously sustained an injury to the left femur, had undergone a left knee arthroscopy in 2008, and an ACL reconstruction of the left knee in 2010, but the Medical Assessor failed to address that past history in any detail. The appellant submits that the failure by the Medical Assessor to undertake this enquiry amounts to a demonstrable error.
The appellant submits that the relevant question when determining the extent of the deduction for pre-existing impairment was what contribution the earlier femur injury, and the constitutional changes leading to arthroscopy and ACL reconstruction, had to the eventual need for a left total knee replacement. The appellant submits that had the Medical Assessor undertaken the correct enquiry when determining the deduction to be applied to the left knee, his conclusion would have been that a significant deduction was required, similar to that assessed for the right knee.
The appellant submits that the Medical Assessor failed to give sufficient reasons as to why he only allowed a one-tenth deduction for assessment of impairment of the left knee and right ankle given that Mr Virtue had pre-existing injuries to the left knee and right ankle. The Medical Assessor did not provide any reasons as to why he considered that the extent of the deductions for impairment of the left knee and right ankle was too difficult or costly to determine.
The appellant submits that the Medical Assessor “failed to properly apply s.323 of the WIM Act by retreating to the statutory assumption found in s.323(2)” without considering the extent to which the post-injury impairment was due to the prior injury or pre-existing condition or abnormality of both the left knee and right ankle.
The appellant submits that the Medical Assessor erred in adopting Mr Virtue’s statement that his right ankle was asymptomatic prior to the work injury when the report of Dr Sharp dated 12 April 2013 records Mr Virtue having problems with his right ankle, and Member Turner made a finding on the evidence that the right ankle was symptomatic prior to the work injury.
The appellant filed further written submissions on 16 January 2025 following the decision of Basten AJ in Virtue and in accordance with a Direction made by this Appeal Panel on
10 December 2024.The appellant contends that its previous submission that there must be an appropriate application of s 323 of the 1998 Act where treatment informs the overall impairment assessment was confirmed by Basten AJ in Virtue at [23]:
“…The relevant deductions, the employer submitted, was to be calculated by reference to the causal contributions of pre-existing injuries or conditions to the operations. Counsel for the claimant did not dispute that proposition.”
The appellant submits that the failure by the Medical Assessor to consider the report from
Dr Sharp dated 12 April 2023 was referred to in Virtue at [37]-[38] as part of his Honour’s criticism of the previous Appeal Panel decision:“…First, unchallenged medical evidence that the right ankle was symptomatic before the work injury is hard to reconcile with the evidence relied upon by the assessor that it was then ‘asymptomatic’. It is not easy to understand why Dr Sharp’s report ‘does not challenge the overall clinical picture pre… the subject injury’.
Secondly, it is not clear what the Appeal Panel was referring to as ‘taking into account all of the evidence’. Dr Sharp’s report referred not merely to symptoms but, by reference to x-ray evidence, to the ‘architecture’ of the ankle, that the ‘tibia has changed its shape, as has the talus’, that “the tibia is more curved than it should be and so is the talus” and that the femur does not look normal. The claimant had ‘pain on the outside of his ankle, but he has swelling over both sides’. Further, the employer’s submissions drew attention to the presence of avascular necrosis which Dr Frank Machart had stated made the knee replacement operation inevitable, but was hastened by the work injury. Each of these observations and opinions might have been open to dismissal with explanations by medical professionals, but the Appeal Panel provided no explanation as to why they took the view they did when considering ‘all of the evidence’. While it is true that the medical assessor did ‘not have to refer to every piece of evidence’, he did have to refer to the substance of the evidence relied on against his conclusion and explain, even if briefly, why it was not accepted or not preferred.”
The appellant also refers to the following observations made by Basten AJ in Virtue at [53]-[54] in regard to the assessment of impairments for conditions which are a consequence of a work injury and where the impairment which results directly from the work injury is subject to a s 323 deduction. His Honour referred to the deduction of 50% to the assessment of the injury to the right knee and then said:
“…The further impairments, based on the consequences of the right knee injury, were assessed independently of it. Although the point seems not to have been raised in these terms, either in the Commission or in this Court, there may be a logical flaw in treating a consequential impairment as subject to no deduction by reference to the injury from which it resulted, where the impairment which resulted directly from that injury was subject to a 50% deduction.
The approach adopted in this case was to assess the consequential impairments of other body parts, and any deduction, by reference only to previous injuries or pre-existing conditions affecting those body parts. But if the causal link were taken back to the total knee replacement operation on the right knee, the apportionment of that impairment, resulting directly from the work injury, should logically flow through to any consequential impairments. That would result in those impairments being subject to a 50% deduction, being the deduction adopted with respect to the right knee operation. In practical terms, if the injured right knee gave rise to a change in gait, affecting the left knee, that change in gait was partly a function of the previous injury to, and pre-existing condition of, the right knee. That is, the change in gait was only 50% attributable to the work injury. It should follow that the impairment of the left knee was only 50% attributable to the work injury. Whether there should then be a further deduction for a pre-existing condition of the left knee is a separate question. The same reasoning would apply to both ankles.”
The appellant submits that the approach indicated in Virtue would involve a starting point of applying the deduction that was assessed for the primary injury to the consequential body parts. In this dispute that would involve a one-half deduction to the left knee, left ankle and right ankle, based upon the assessment made by the Medical Assessor. The Medical Assessor should then embark on the second stage of the assessment by the application of s 323 as it applies to each of the consequentially impaired body parts.
The appellant refers to an Appeal Panel decision of Mortezagholi v Hymix Australia Pty Ltd [2024] NSWPICMP 779 (Mortezagholi) which has been delivered subsequent to the decision in Virtue, in which the Appeal Panel adopted the first stage of the assessment process set out in Virtue, but refrained from making any deduction to the assessment of impairment.
The respondent’s submissions
Mr Virtue filed written submissions on 15 November 2023.
Mr Virtue submits that in regard to the evaluation of levels of pain which are to be considered in assessing impairment for a total knee replacement, the Medical Assessor records
Mr Virtue having stiffness and a constant aching pain in the right knee which can stop
Mr Virtue from weight bearing, and records that the left knee is stiff in flexion and is constantly aching. This is the basis upon which the Medical Assessor concludes that
Mr Virtue has moderate, continuous pain in both knees. Mr Virtue submits that it is difficult to imagine what additional reasons or insight could have been supplied by the Medical Assessor.Mr Virtue submits that the Medical Assessor sincerely found the deduction for impairment of the left knee difficult to determine, and that the one-tenth deduction must follow as a matter of course unless that is at odds with the available evidence.
Mr Virtue submits that decisions such as Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole) make it clear that s 323 of the 1998 Act does not invite an assessment of WPI immediately before the injury to be deducted from the WPI at the date of assessment. He submits that the Medical Assessor performed his task as required by s 323 in accordance with the legislation and guiding authority.
Mr Virtue accepts that the Medical Assessor appears to have overlooked the history of right ankle discomfort in the report from Dr Sharp dated 12 April 2013. He submits that if this information would have negatived the assessment by the Medical Assessor that the extent of a deduction for the right ankle would be difficult or costly to determine, that oversight may constitute an error, but not otherwise.
Mr Virtue filed further submissions on 30 January 2025 following the decision in Virtue and in in accordance with a Direction made by this Appeal Panel on 10 December 2024.
Mr Virtue submits that it is readily observed from the MAC that the Medical Assessor carried out a critical analysis of the historical medical and radiological evidence which he believed sufficient to conclude that the deductible proportion in respect of the right knee should be as great as 5/10, whereas the evidence did not support a greater than 1/10 deductible proportion in respect of the left knee and right ankle.
Mr Virtue refers to the submission made by the appellant that the consequential conditions affecting the right ankle, left knee and left ankle should attract a 50% deduction as the impairments are causatively related to the primary injury to the right knee which attracts a 50% deduction. He submits that this argument should not be accommodated by this Appeal Panel because it was not raised as a ground of appeal when the appellant filed its appeal, and there was no application to amend the Grounds of Relief in Virtue.
Mr Virtue submits that in the event that this Appeal Panel applies the provisions of s 323 as contended by the appellant, then this would be an error in the absence of medical evidence specifically addressing the extent to which any pre-existing injury, condition or abnormality which has contributed to the impairment of the right knee has directly contributed to the consequential conditions affecting the right ankle, left knee and left ankle.
Mr Virtue submits that the correct interpretation of s 323 (1) in relation to the words “in assessing the degree of impairment resulting from an injury” is to require focus upon the particular injury to the body part or condition examined for assessment, and then apply the required test of whether there has been any prior injury or condition or abnormality in that particular body part or condition which has contributed to the overall impairment which is to be assessed.
Mr Virtue submits that to adopt the theoretical method advocated for by the appellant would result in an unfair result in the assessment of WPI for all consequential conditions founded upon the original event of the work injury to the right knee. He submits that each found work injury referred for assessment is to be assessed singularly and by applying any s 323 deduction to that particular single body part.
Mr Virtue agrees with the appellant that the Medical Assessor made an error in his calculations of WPI and that the correct scoring would result in an assessment of 41% WPI, which can be rectified by this Appeal Panel.
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 Mr Virtue should undergo a further medical examination because the Medical Assessor made an error by not providing adequate reasons for the one-tenth deductions for the assessment of impairment of the right ankle and left knee. This error was identified by Basten AJ in Virtue at [33]:
“…the medical assessor in fact identified previous injuries and pre-existing conditions or abnormalities with respect to the left knee, but the reason he gave for applying the default deduction was that “[t]he extent of the deduction is difficult or costly to determine”. That was a somewhat glib recitation of the opening words of s 323(2). It would not have been “costly” because no-one was suggesting any further steps be taken; the assessment can have been no more difficult than was the assessment of the rest of the medical evidence, including that relating to the right knee. That statement did not constitute an adequate reason for failing to make the appropriate assessment on the evidence available to the assessor, pursuant to s 323(1). Nor did it address the qualification to the application of s 323(2), namely that the default position not be at odds with the evidence. On either approach, the evidence had to be addressed and was not.”
THE RE-EXAMINATION
Medical Assessor Alan Home conducted an examination on 5 May 2025. Mr Virtue attended the assessment unaccompanied. Medical Assessor Alan Home provided the following report to the Appeal Panel:
“PAST MEDICAL HISTORY
Mr Virtue states that he has a past history of a left femoral fracture, sustained in a motorbike accident in 1990 at the age of 18. He required internal fixation of the femoral fracture. The metalwork was taken out two years later. He recalls he made a full recovery from those injuries.
In 2007, he suffered a crush injury to his right ankle in a motor vehicle accident in which the car in which he was driving went off the road after he fell asleep. He suffered a fracture to the right ankle, complicated by avascular necrosis of the talus. He recalled that he went on to make a good recovery from the right ankle pain.
He could not recall the details of his right ankle symptoms that he experienced in 2013, for which he attended Dr Sharp, his treating orthopaedic surgeon. He cannot recall whether or not he underwent a corticosteroid injection at the ankle recommended by
Dr Sharp.However, he recalled that he was told that his ankle joint had an altered shape, due to the previous injury.
He confirms that in 2007, he developed pain in his right knee. He underwent a right knee operation under the care of Dr Doig in February 2008 and further arthroscopic surgery under the care of Dr Sharp in May 2011 and again in October 2012.
In May 2011, he underwent a right knee anterior cruciate ligament reconstruction, medial and lateral meniscectomies and a chondroplasty of that knee.
On 27 October 2012, he underwent a further arthroscopic resection of a tear in the lateral meniscus and debridement of cartilage tears int he medial femoral condyle.
He recalls that despite all this, he continued to work as a residential care assistant for the Department of Community and Justice, caring for intellectually and physically disabled clients. This included assistance with personal care such as dressing and showering, transfers of high dependency clients, supervision of outings and activities and completion of domestic chores.
He recalls that in the period leading up to his subject accident, he continued to experience periodic pain in both knees.
He cannot recall the details of the symptoms that he experienced, that were documented by his treating surgeon.
DETAILS OF SUBJECT ACCIDENT AND TREATMENT
On 22 September 2013, during the course of his normal work duties, he was transferring a patient in a sling using a hoist into a wheelchair. As he was manoeuvring the patient in the hoist and into the wheelchair, he felt a sudden pain and a pop in his right knee. He could not weight bear. He was transferred by ambulance to Tamworth Base Hospital where he was assessed and discharged.
He later attended his general practitioner. There was a delay in imaging at the right knee, however, MRI scans were eventually performed in March 2014.
He was referred back to his treating orthopaedic surgeon, Dr Rob Sharp, through his private health insurer.
He underwent further right knee arthroscopic partial lateral meniscectomy, chondroplasty and PRP injection, performed on 24 June 2014. He states that thereafter, his right knee became more symptomatic and began to lock up. He experienced frequent catching episodes.
He underwent a further arthroscopic debridement, partial lateral meniscectomy and chondroplasty under the care of Dr Sharp on 31 March 2015.
By 22 March 2016, Dr Sharp recommended that he undergo a right lateral unicompartmental knee replacement. That surgery was performed by Dr Sharp on
13 April 2016.He recalls that during the post operative period, he developed symptoms of giving way in the knee.
Consequently, he underwent a revision of the unicompartmental knee replacement under the care of Dr Sharp in July 2016.
Due to his persisting symptoms, he was referred to Dr Healey, orthopaedic surgeon, who recommended a revision right total knee replacement. That surgery was performed on 30 March 2017.
There has been no further surgery to the right knee.
He states that following the right total knee replacement, he became aware that his right leg was longer than his left. He found that he was walking with an asymmetrical gait and this was loading his left lower limb.
He states that during that period, he developed progressive pain in his left knee, such that by 20 June 2018, Dr Sharp recommended that he undergo a left total knee replacement.
That surgery was eventually performed in 24 November 2020.
He reports that during this entire period, he experienced frequent falls. His falls became more frequent after he underwent his right total knee replacement surgery.
He recalls that he suffered several injuries to his left ankle caused by the falls.
Eventually, he came under the care of Dr Roa in Newcastle who performed a left ankle ligament reconstruction. He said that the surgery was successful in reducing symptoms of instability at the left ankle.
In 2017, he underwent imaging of his right ankle due to symptoms of progressive pain in that joint. Again, he was told there was asymmetry of the ankle joint and significant local soft tissue swelling.
No surgical management was performed for the right ankle condition.
Currently, he manages his pain symptoms with Palexia slow release 100mg twice daily, Palexia instant release 50mg daily and Fenac anti-inflammatory medication one tablet daily. He takes Valium 5mg to manage anxiety and as a muscle relaxant. He takes additional medication to manage psychological symptoms including Mirtazapine, Seroquel and Phenergan.
CURRENT SYMPTOMS
At the right knee, he describes constant moderately severe pain of average intensity 5/10 on a VAS, exacerbated by prolonged walking. There is marked stiffness in the knee. He is unable to crouch, semi crouch or kneel through his right knee. He avoids stairs wherever possible.
He mobilises with a four-wheel walker around his home and either crutches or a walker when he is away from his home.
At the left knee, he describes constant pain at 5/10, similar to the level of pain in his right knee. There is enlargement of the knee. There is frequent giving way of the left knee. His left knee is stiff.
At the right ankle, he describes intermittent pain of average intensity 5/10, primarily felt at the lateral aspect of the joint. There is stiffness of the joint. There is frequent swelling, particularly at the lateral aspect of the joint.
At the left ankle, he has suffered many falls in the past. He reports intermittent pain with occasional giving way, but no frank falls. There is marked stiffness at the ankle. He says that overall, he feels that his ankle is becoming stiffer over time.
FUNCTIONAL CAPACITY AND REPORTED TOLERANCES
He is right hand dominant.
He describes a sitting tolerance of up to one hour. He prefers to alight from his vehicle after driving for 30 minutes. He is able to walk slowly over 150 metres. He uses crutches or a walker over longer distance.
He avoids stair climbing where possible, but otherwise performs this asymmetrically, using a handrail for support.
His sleep pattern is disturbed.
He is independent for activities of self-care.
He limits lifting to 2kg.
SOCIAL HISTORY
He is single without children. He is a non-smoker.
At his home, he performs light domestic chores. He says that his major chores are undertaken infrequently. Consequently, he says that there is a lot of rubbish around his house. He now has difficulty accessing the cooktop because of the debris in his house.
He says that he has, at times, received assistance from an external cleaner. He has requested further external help from a cleaner. Gardening is performed by others.
Before the subject workplace accident, he performed regular gymnasium based exercise. He recalls that he ceased gymnasium exercise following the subject workplace accident.
VOCATIONAL HISTORY
He undertook some light duties caring for low dependency clients at a daycare centre in 2018. He has not worked since.
PHYSICAL EXAMINATION
Mr Virtue is a 53 year old standing 164cm and weighing 110kg.
Examination of the lower extremities reveals marked scarring with a 19cm x 1.5cm and a 7cm x 2cm scar in continuity extending from the lower thigh to the upper left leg. The scar is atrophic in appearance, paler than the surrounding skin, with several visible suture marks evident. There is mild contour defect.
In the right lower extremity, there is a 25cm curved scar, 2cm in maximum diameter with atrophic change, slight contour depression, much paler than the surrounding skin. The scars are easily visible at distance.
There is minor scarring about the left ankle, however, the scars are well healed, thin, with good colour match with the surrounding skin and without contour defect, trophic changes or visible suture marks.
On examination of the right knee, there is 10° fixed flexion, with 90° active flexion. There is 5° valgus alignment. There is no AP laxity at the right knee but 10° laxity in the mediolateral plane.
At the left knee, active motion is measured 10° fixed flexion to 90° flexion. There is 5° valgus alignment. There is good AP stability. There is significant mediolateral laxity measured at 10°.
At the right ankle, there is mild joint enlargement. There is restricted range of active motion measured by goniometer methods as follows:
Ankle Movements
Active ROM Measured
RIGHT °
Plantarflexion
30
Dorsiflexion
0
Hindfoot inversion
20
Hindfoot eversion
5
At the left ankle, there is marked joint enlargement, consistent with previous multiple sprain injuries. There is restricted range of active motion, measured by goniometer methods as follows:
| Ankle Movements | Active ROM Measured LEFT ° |
| Plantarflexion | 20 |
| Dorsiflexion | -10 |
| Hindfoot inversion | 20 |
| Hindfoot eversion | 0 |
DIAGNOSIS AND CAUSATION
The claimant suffered a workplace right knee injury for which he has since required two hemiarthroplasties and a total knee replacement. He reports that during his recovery from all of these procedures, he loaded his left leg.
He subsequently developed consequential symptoms in the left knee. There is a past history of previous left knee surgery. He has gone on to require left total knee replacement.
At the right ankle, there was a motor vehicle accident approximately 30 years ago, from which he suffered an episode of avascular necrosis leading to talar deformity and chronic medial subluxation at the tibiotalar joint. There is subsequent arthritic change in the right ankle.
I am satisfied that the claimant developed recurrent right ankle pain in 2017, during his period of recovery from right knee surgery. However, his right ankle was symptomatic prior to the accident, as documented by Dr Sharp in a report of 12 April 2013, issued only five months prior.
At the left ankle, he again suffered consequential pain and injury caused by multiple falls, to which his right knee injury contributed. He developed left ankle instability, for which he has undergone stabilisation surgery.
In comparison to the findings of Dr Negus, there is greater stiffness in the ankles and hindfeet on each side at the current assessment. This likely reflects a progression of the underlying degenerative changes in the interval.
IMPAIRMENT ASSESSMENT
Right Knee
Using Table 17-35, modified in the Workers Compensation Guidelines:
Right knee total knee replacement scores are set out in the table below:
Moderate continuous pain
10 points
Range of motion
16 points
Stability AP
10 points
Stability mediolateral
5 points
Sub total
41 points
Less deductions
Flexion contracture
5 points
Extension lag
5 points
Tibiofemoral alignment
0 points
Sub total
10 points
TOTAL RIGHT KNEE
31 points
Using Table 17-33, AMA5, amendments as per NSW Guidelines 4th Edition, paragraph 328, page 19, Table 3.3, less than 50 points equals a poor result :
75% LEI for the right knee.
LEFT KNEE
Left knee total knee replacement scores are set out in the table below:
| Moderate continuous pain | 10 points |
| Range of motion | 16 points |
| Stability AP | 10 points |
| Stability mediolateral | 5 points |
| Sub total | 41 points |
Less deductions
Flexion contracture
5 points
Extension lag
5 points
Tibiofemoral alignment
0 points
Sub total
10 points
TOTAL LEFT KNEE
31 points
Using Table 17-33, AMA5, amendments as per NSW Guidelines 4th Edition, paragraph 328, page 19, Table 3.3, less than 50 points equals a poor result.
For the left knee, this attracts a 75% LEI.
Right ankle
Ankle motion impairment is determined using Tables 17-11 for ankle impairment, Table 17-12 for hindfoot impairment, AMA5, page 537 as follows:
| Ankle Movements | Active ROM Measured RIGHT ° | Lower Extremity Impairment AMA Guides (5th Ed) |
| Dorsiflexion | 0 | 7% (Fig 17-11, pg 537) |
| Plantarflexion | 30 | 0% (Fig 17-11, pg 537) |
| Hindfoot inversion | 20 | 2% (Fig 17-12, pg 537) |
| Hindfoot eversion | 5 | 2% (Fig 17-12, pg 537) |
| Total LE Impairment | 11% LEI |
The right lower extremity impairment for the ankle and hindfoot (7% and 4%) are combined to provide a regional impairment rating of 11%.
Left ankle
At the left ankle
| Ankle Movements | Active ROM Measured LEFT ° | Lower Extremity Impairment AMA Guides (5th Ed) |
| Dorsiflexion | -10 | 7% (Fig 17-11, pg 537) |
| Plantarflexion | 20 | 7% (Fig 17-11, pg 537) |
| Hindfoot inversion | 20 | 2% (Fig 17-12, pg 537) |
| Hindfoot eversion | 0 | 2% (Fig 17-12, pg 537) |
| Total LE Impairment | 17% LEI |
There is a 14% lower extremity impairment rating for the left ankle and 4% for the hindfoot, which combined to provide a total regional impairment of 17% LEI.DEDUCTIONS FOR PRE_EXISTING CONDITIONS
The following deductions are applied:
RIGHT LOWER EXTREMITY
Right knee a 50% deduction provides a residual lower extremity impairment rating of 38%.
For the right ankle, a deduction of 1/2 is made as the pre-existing medical conditions including deformity of the right ankle are contributing to the impairment to a level of 50%, noting that the right ankle was symptomatic before the subject accident and there was longstanding deformity of the ankle which has contributed to the restricted motion found at examination.
When applying a 1/2 deduction, there is a residual 5.5% lower extremity impairment rating, rounded up to 6% LEI.
The combined LEI is 38% combined with 6%, which equals 42%. (combined values chart AMA5 Page 604-606).
When applying Table 17-3, the 42% LEI converts to a whole person impairment rating of 17% for the right lower extremity.
LEFT LOWER EXTREMITY
For the left knee, I have also applied a 1/2 deduction as the claimant has significant underlying pre-existing degenerative changes from previous surgery including extensive arthroscopic meniscectomies. Again, his left knee was symptomatic in the period leading up to the subject accident.
X-ray imaging of the left knee performed in January 2018 demonstrated a previous anterior cruciate ligament repair with joint space reduction in the lateral femorotibial compartment and previous lateral meniscus surgery.
By 20 June 2018, advanced secondary degenerative changes were noted in the lateral and patellofemoral compartments.
Applying a 1/2 deduction to the left knee condition, there is a residual 38% lower extremity impairment rating.
For the left ankle, I have applied a 1/10th deduction.
Whilst the imaging demonstrates mild degenerative changes, there is moderate underlying degenerative change documented on imaging performed in March 2019.
A 1/10th deduction is appropriate. After the 1/10th deduction, there is a 15% lower extremity impairment rating for the left ankle.
Combined
The combined left lower extremity impairments of 38% for the left knee and 15% for the left ankle, provide a combined lower extremity impairment rating of 47%.
When applying Table 17-3, these convert to whole person impairment ratings of 19% for the left lower extremity.
Scarring
I have assessed scarring using the TEMSKI scale as follows:
· The worker is conscious of the scar or skin condition
· The scars are easily identifiable due to pallor and trophic change
· The worker is able to easily locate the scar or skin condition
· There is trophic change evident to touch
· Some suture marks are visible
· The anatomic location of the scars can be seen when wearing shorts but not when wearing longer trousers
· There is minor contour defect
· There is no effect on any activities of daily living arising from the scar itself
· There is no treatment required
· There is no adherence
Using the principle of best fit a 2% WPI impairment arises.
Combined whole person impairment
The combined whole person impairment rating equals 19%, combined with 17%, combined with 2%, which equals 35% WPI.”
FINDINGS AND REASONS
The Appeal Panel adopts the report and findings of Medical Assessor Home.
The report of Medical Assessor Home addresses the application of s 323 of the 1998 Act and is consistent with the approach set out in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole) at [30] that: “The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality”.
In regard to the one-half deduction for the right ankle, consideration has been given to the motor vehicle accident which Mr Virtue was involved in over 30 years ago which resulted in an episode of avascular necrosis leading to talar deformity and chronic medial subluxation at the tibiotalar joint.
Consideration has also been given to the record made by Dr Sharp just five months before the work injury of the right ankle having a deformity and being symptomatic. This has contributed to the restricted range of motion found on examination and an appropriate deduction for a pre-existing condition has been made.
In regard to the one-half deduction for the left knee, consideration has been given to significant underlying pre-existing degenerative changes from previous operations on the left knee. Consideration has also been given to the history obtained from Mr Virtue that he experienced periodic pain in both knees in the period leading up to the work injury, and the findings of advanced degenerative changes in scans taken in June 2018.
There is a one-tenth deduction for the left ankle because there are only mild degenerative changes found in imaging of the left ankle.
The Appeal Panel is mindful of the observations made in Virtue as to why all consequential impairments should not be subject at least to the deduction attaching to the primary impairment resulting from the work injury, so that in this dispute “if the causal link were taken back to the total knee replacement operation on the right knee, the apportionment of that impairment, resulting directly from the work injury, should logically flow through to any consequential impairments” (at [54]).
Mr Virtue opposes consideration by the Appeal Panel of these observations because such an argument was not raised by the appellant when the appeal was filed. However, the Appeal Panel considers these observations should be addressed because the fundamental basis of this appeal is the proper application of s 323 of the 1998 Act and also because this issue has been specifically identified on judicial review.
The Appeal Panel understands the logic in those observations in Virtue and respects those observations. However, the Appeal Panel considers that each body part must be assessed having regard to its own characteristics and the particular history which led to that body part being the subject of assessment. The Appeal Panel agrees with the submission from
Mr Virtue that the focus of assessment should be on each body part and whether any prior injury or abnormality in that particular body part has contributed to the overall impairment of the injured worker.There may be instances where the same deduction from a primary injury can be applied to conditions which are a consequence of the primary injury, but the assessment of impairment for each relevant body part should proceed having regard to its own characteristics and the circumstances which led to the restrictions and symptoms in that body part.
For these reasons, the Appeal Panel has determined that the MAC issued on
25 September 2023 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: | W1059/23 |
Applicant: | Paul Andrew Virtue |
Respondent: | Secretary, Department of Communities and Justice |
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 Jonathan Negus 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) |
| 1.Right lower extremity (knee, ankle) | 22/9/13 | Paragraph 328 p.19, Table 3.3 | Chapter 17 Tables 17-11 17-12, 17-33 | (knee: 75% LEI) (ankle 11% LEI) | Right knee – one half Right ankle – one half | (38% LEI combined with 6% LEI = 42% LEI) 17% WPI |
| 2.Left lower extremity (knee, ankle) | 22/9/13 | Paragraph 328 p.19, Table 3.3 | Chapter 17, Tables 17-11 17-12, 17-33 | (knee: 75% LEI) (ankle 17% LEI) | Left knee – one half Left ankle – one-tenth | (38% LEI combined with 15% LEI = 47% LEI) 19% WPI |
| 3.Scarring | 22/9/13 | TEMSKI Table 14.1, page 78 | AMA5 Chapter 8 | 2 | 2% WPI | |
| Total % WPI (the Combined Table values of all sub-totals) | 35% WPI | |||||
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