Department of Communities and Justice v Virtue
[2024] NSWPICMP 133
•12 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Department of Communities and Justice v Virtue [2024] NSWPICMP 133 |
| APPELLANT: | Department of Communities & Justice |
| RESPONDENT: | Paul Andrew Virtue |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 12 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Employer appealed on the basis of calculation error and the extent of the deductible proportions made for pre-existing injury, condition or abnormality; the calculation error was corrected by the Appeal Panel, otherwise the deductions made by the Medical Assessor were upheld; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 October 2023 the employer, Department of Communities & Justice (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John 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 (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 (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).
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.
The appellant did not request that the worker undergo a re-examination by a Medical Assessor member of the Appeal Panel. The Appeal Panel did not consider a re-examination was necessary.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
22/09/2013
•
Body parts / systems referred:
Right lower extremity (knee and ankle)
Left lower extremity (knee and ankle)
Scarring TEMSKI
•
Method of assessment:
Whole Person Impairment"
The Medical Assessor issued a MAC as follows:
Body Part or system
Date of Injury
Chapter,
page and paragraph number in SIRA guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Right lower extremity (knee and ankle)
22/9/13
paragraphs 328 p.19, table 3.3
tables 17-11, 17-12, 17-33 AMA5.
5/10 knee
1/10 ankle12
Left lower extremity (knee and ankle
22/9/13
paragraphs 328 p.19, table 3.3
tables 17-11, 17-12, 17-33 AMA5.
1/10th knee
20
Scarring TEMSKI
22/9/13
1
0
1
Total % WPI (the Combined Table values of all sub-totals)
31
The employer appealed.
In summary, the appellant submitted that the Medical Assessor made demonstrable errors as follows:
(a) The primary issue is the errors in calculation for the left and right knee.
(b) Failing to give sufficient reasons for finding that the worker “had continual and moderate pain in both knees”.
(c) Deduction under s 323 for pre-existing injury, abnormality or condition should have been one-half instead of one-tenth for the left knee.
(d) The deduction of the right ankle of one-tenth not sufficiently reasoned.
(e) The Medical Asessor said the right ankle was asymptomatic but he didn’t consider the report of Dr Sharpe.
The respondent worker, Mr Paul Andrew Virtue (the respondent) acknowledged the error in calculations and submitted the Appeal Panel could correct accordingly.
However the respondent submitted in respect of the s 323 deductions that the Medical Assessor did not make a demonstrable error and the MAC should be confirmed in this regard.
In respect of what the appellant has labelled “the primary issue” being the error in the Medical Assessor’s calculations, the appellant submitted as follows:
“The MA assessed 45% lower extremity impairment for the left knee (inclusive of a one-tenth deduction) and 25% lower extremity impairment in relation to the right knee (inclusive of a one-half deduction). For both knees, the MA considered that the respondent had a poor result for his total knee replacements. The MA attributed 50% lower extremity impairment to both knees prior to any deductions in accordance with Table 3.3 of the NSW SIRA Guidelines for the evaluation of permanent impairment (Guidelines). However Table 3.3 of the guidelines is only applicable to ankle replacement.
Instead the MA should have applied Table 17-33 of the American Medical association Guides to the Evaluation of permanent impairment 5th edition (AMA5). This table states that a poor result for a knee replacement equates to 75% LEI.
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 able inclusive of a one-tenth deduction
c.Scarring -1% WPI.”
The respondent worker acknowledged the error as identified by the appellant could be corrected by the Appeal Panel.
The Appeal Panel agrees with the calculations by the appellant and will revoke the MAC in this regard.
Turning now to the balance of the complaints on appeal which relate to the s 323 deductions for the left knee and right ankle and the pain rating for the knees.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On 22/09/2013, while in the course of his work duties with the Department of Communities & Justice, Mr Virtue was transferring a patient to a wheelchair using a hoist. The patient was lifted in the hoist and the applicant was twisting the hoist to place the patient into the wheelchair when he felt his right knee pop. He experienced pain and was unable to weight bear. An ambulance was called and he was transferred to Tamworth Base Hospital.
Following discharge from the hospital, he saw his GP and was referred for an MRI scan. There was a delay with further management due to insurance not accepting liability initially. During that time, his knee symptoms worsened including locking episodes and therefore he organised a referral to see Dr Rob Sharpe (Orthopaedics) through his private health insurance and underwent an arthroscopy on 24/06/2014 where he had a right knee arthroscopy, partial lateral meniscectomy, drilling of lateral femoral condyle and PRP injection.
In early 2015, his right knee started to lock up again with catching episodes. On 31st March 2015, he underwent a right knee arthroscopy with partial lateral meniscectomy and chondroplasty lateral tibia.
He had continued symptoms and had some PRP injections but it didn’t settle and so on 21St March 2016, Dr Sharpe recommended that he undergo a right lateral unicompartmental knee replacement. This occurred on 13/04/2016. Following the surgery, his knee started to give way and in July 2016 the unicompartmental knee replacement was revised to remove cement debris and change the spacer. He still experienced pain, stiffness and instability and at this point Dr Sharpe sent him to see Dr Healey for a second opinion. Dr Healey recommended revision surgery and on 30/03/2017 Mr Virtue underwent revision right total knee surgery.
He complained of ongoing pain and leg length deformity and at this point was referred to Dr Rodda in Queensland who informed him that he needed further revision surgery on the right knee.
On 20/06/2018, it was recommended that he also underwent left total knee replacement.
He was seen by Dr Peter Georgius, a Pain Specialist, in January 2018. He was also seen by Psychologist, Damon Stuart.
On 24/11/2020, Dr Sharpe performed left total knee replacement surgery.
He was also having a lot of falls due to his leg length discrepancy and his damaged ligaments in the left ankle and underwent a left ankle reconstruction under Dr Roa in Newcastle on 11/03/2021.
Mr Virtue claims that having sustained the injury to his right knee on 22/09/2013, he subsequently suffered from consequential injuries to his left knee, left ankle and right ankle.
· Present treatment:
Medications
He takes Palexia and diclofenac.
Other Treatment
He sees a Psychologist every 2 weeks, Dr Damon Stuart.
Present symptoms:
Right Knee
He has stiffness, a constant aching pain and residual nerve damage that gives him sharp pain in the lower leg which can stop him weight bearing.
Right Ankle
It is worse when the knee is painful and the ankle swells up and is painful to walk on and he needs to use a brace.
Left Knee
The knee is stiff in flexion and is constantly aching, worse on the lateral aspect.
Left Ankle
It is not as bad since the reconstruction but it still swells up at times and is painful when swollen.
· Details of any previous or subsequent accidents, injuries or conditions:
Prior to the subject incident on 22/09/2013, Mr Virtue suffered the following injuries:
oInjury to his left femur in a motor cycle accident in or about 1990.
oIn his mid 20s he suffered a crush injury to his right ankle in a motor vehicle accident which resulted in avascular necrosis which was asymptomatic until 2017.
oIn about 2007 he developed right knee problems.
oIn February 2008 Dr Doig performed a right knee anterior cruciate ligament reconstruction and left knee arthroscopy.
oIn or about 2010 he underwent a left knee ACL reconstruction.
oOn 12/05/2011 Dr Sharpe performed a right knee arthroscopic ACL reconstruction + partial medial meniscectomy, chondroplasty and cartilage harvest.
oOn 22/10/2012 Dr Sharpe performed right knee arthroscopy with partial lateral meniscectomy and chondroplasty.
· General health:
He is a non-smoker and occasional drinker.
He takes Coveram, Palexia, diclofenac, mirtazapine and Valium.
He did have some prior mental health issues but these have been made worse since the injury.
· Work history including previous work history:
He left school at the end of Year 11. He spent 3 years working at Kmart before working at Tamworth Base Hospital as an Assistant for 5 years. He then worked for 9 years in Nambour, Queensland in hospital security and medical records. He worked as a Disability Support Worker in Tamworth until he was medically retired in May 2017. From March 2018, he has volunteered with the Compass Institute but he had to cease that work due to his leg issues.
Social activities/ADL:
Mr Virtue can manage his own personal care but he is a little bit limited. He is very limited with the ability to do any domestic chores.
He used to do his gardening and now he needs to employ a mowing company.
He drives an automatic car restricted to 30 minutes of driving.
He used to enjoy karate and kick boxing and was very fit and active prior to the injury.”
The Medical Assessor recorded his findings on physical examination as follows:
“At the commencement of the examination, Mr Virtue was advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. A tape measure is used, as required. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons.
He was generally unkempt and of low mood. He walked slowly into the room clearly in pain but with no walking aids and wearing slides on his feet. He stood at approximately 163cm weighing 110kg, giving him a BMI of 41kg/m².
Ankle Exam
He had scars over the medial aspect of the right ankle which were white and well healed consistent with surgery. He was tender over the medial and lateral ankles on both sides with some gross pitting oedema.
I was unable to assess for any muscle atrophy as he was generally too swollen.
His active range of motion in degrees as measured with a goniometer was from 10° fixed flexion to 40° of flexion on both sides. He had good A-P and M-L stability. He had 25 degrees eversion both side and 25 inversion on the left, 15 inversion on the right.
Knee Exam
He had multiple midline scars over the right knee with a curvilinear, single scar over the left knee. There was some hypertrophy at the distal end of the left scar. The scars are very obvious and he is conscious of them and tries to cover them up. I was unable to assess effusion accurately.
His ROM was 10 fixed flexion to 85 flexion on the left and 10 fixed flexion to 90 flexion on the right. He had neutral alignment. He had good A-P stability in both knees but there was significant laxity in the M-L plane with greater than 14° on the left and 10°-14° on the right.
He describes moderate, continuous pain on both sides, giving him a pain score of 10 for each knee.”
The Medical Assessor had regard to the special investigations as follows:
“I was able to review the following modalities of imaging:
29/10/2018: X-ray right knee and lower leg: Knee prosthesis showing satisfactory appearance. Minor bony prominence at the tibial tuberosity and somewhat ill-defined soft tissue shadow at the patella tendon. Mature bony fusion of the proximal tibiofibular articulation. No significant joint effusion.
26/03/2019: MRI scan left ankle: Prominent osseous protrusion arises from the posterior superior lateral calcaneal facet. This bony protuberance may be secondary to a fibrous coalition at this location of the posterior subtalar joint although this is an unusual location for talocalcaneal coalition. Mild medial angulation of the talus in relation to the tibia which results in widening of the joint space laterally and bony remodelling of the superomedial aspect of the talus. Advanced degenerative change in the distal tibiofibular joint however syndesmosis appears intact. Evidence of previous high grade ATFL injury with diffuse fibrosis. Diffuse thickening of the peroneus longus.
27/05/2019: X-ray both knees: Right total knee replacement present. There is an unusual surgical device within the lower femoral diaphysis at the end just above the level of the prosthesis. On the left there are surgical devices within the lower femur laterally and the proximal tibia medially as well as the level of the upper tibial tuberosity. No hardware complications seen.
03/06/2019: MRI scan left knee: Osteoarthritic changes to the 3 compartments as described. Degenerative medial meniscus with probably small tear at the inferior surface of the posterior horn. Degenerative lateral meniscus with no normal meniscus seen at the anterior horn.
12/07/2021: X-ray bilateral knee and ankle: Right knee: Excellent appearance of the knee prosthesis. Fusion of the proximal tibia and fibula. Right ankle: The talar dome shows a small and smooth appearance with loss of central curvature. Asymmetrical tibiotalar joint. Fixed medial subluxation of the tibia. Significant soft tissue swelling and subchondral bone sclerosis. Thickening of the Achilles tendon with incipient calcifications at its insertion. Left Ankle: Talar dome shows a small and smooth appearance with loss of central curvature. Symmetrical tibiotalar joint. There is medial subluxation of the tibia. There appears to be subchondral bone sclerosis. Significant soft tissue swelling at the ankle. Left Knee: Excellent appearance of the knee prosthesis. Fusion of the proximal tibia and fibula. No signs of soft tissue swelling, loosening or fracture.”
The Medical Assessor summarised the injury and diagnosis as follows:
“Summary of injuries and diagnoses:
Mr Virtue is a 51 year old gentleman who suffered an injury at work on 22/09/2013 when he twisted his right knee. He has undergone a number of operations and has been left with a symptomatic right knee. He has also since suffered symptoms in his left knee, left ankle and right ankle.
Consistency of presentation:
I have identified there to be no inconsistency with regard to the worker’s presentation. It is also the case that the incident described by the worker is consistent with the injury that has been suffered.”
The Medical Assessor noted that in coming to his assessment he had taken into account the following:
“A thorough history, a comprehensive physical examination, a review of the documentation made available by the Workers’ Compensation Commission with reference to the SIRA Guidelines (2016) and AMA-5.”
The Medical Assessor explained his calculation of impairment which will be corrected as set out above.
The Medical Assessor had clear regard to the differing opinion of Dr Marchart, the Indepent Medical Expert (IME) qualified on behalf of the appellant explained succinctly why his opinion differed:
“In Dr Machart’s report 5th October 2022, 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 is entitled to rely on his clinical findings on the day of examination.
The appellant complains on appeal that the Medical Assessor failed to give sufficient reasons for finding that the worker had continual moderate pain in both knees. The MAC must be read as a whole. The worker gave this history which is consistent with the other clinical evidence and is also consistent with the Medical Assessor’s clinical findings on the day of examination. No further explanation is required from the Medical Assessor and the impairment rating for pain has been awarded in accordance with the correct criteria in the Guidelines which provides a pain score of 10 points in these circumstances.
The appellant complains about the extent of the deductions made under s 323 by the Medical Assessor for the left knee and right ankle. These were each subject to a one-tenth deduction and the appellant says the reasons are inadequate and the deductions should have been greater and in particular in respect of the left knee it should have been one-half as per the deduction for the right knee.
The Medical Assessor explained his reasoning as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Previous left knee injury and surgery
(ii)Previous right knee injury and surgery
(iii)Previous right ankle injury
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Pre-existing degenerative changes
c. 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 not 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:
He had undergone multiple procedures leading to chondral loss, meniscus loss ongoing symptoms and significant established arthrosis.”
A s 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed.
The MAC must be read as a whole. The Medical Assessor has deducted one-half under s 323 in respect of the right knee. A deduction of one-tenth would have been at odds with the available evidence and there is no complaint about this on appeal.
The evidence and history that exists to support a deduction of one-half for the right knee does not exist for the left knee and there is no basis, on the available evidence, to support a deduction higher than one-tenth for the left knee. The appellant panel can discern no error in the making of a one-tenth deduction for the left knee.
In respect of the deduction of one-tenth for the right ankle, the appellant says that the Medical Assessor found that the right ankle was asymptomatic (up until 2017) but the Medical Assessor didn’t consider the report of Dr Sharpe which in 2013 noted that the worker was experiencing discomfort in the right ankle. The Medical Assessor does not have to refer to every piece of evidence and the 2013 report of Dr Sharpe does not change the overall clinical picture pre and post the subject injury in respect of the right ankle when all of the evidence is taken into account. The Medical Assessor has made a deduction of one-tenth which properly accounts for the pre-existing condition of the right ankle and the contribution to the level of permanent impairment assessed for the right ankle, noting that the ankle was previously injured which the medical assessor has clearly taken account of in making the deduction and noting the history that the right ankle swells when the right knee is painful:
“It is worse when the knee is painful and the ankle swells up and is painful to walk on and he needs to use a brace.”
The Appeal Panel can discern no error in the making of a one-tenth deduction. The failure to refer to Dr Sharpe’s report which notes that in 2013 the worker suffered ankle discomfort would not amount to evidence that would be inconsistent with a one-tenth deduction.
What this means is that the MAC will be revoked because of the calculation error but the deductions under s 323 as assessed by the Medical Assessor will stay the same.
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.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
atter number: | W1059/23 |
Applicant: | Paul Andrew Virtue |
Respondent: | Department of Communities & 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 Dr John 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 SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Right lower extremity (knee and ankle) | 22/9/13 | paragraphs 3.29 | Tables 17-11, 17-12, 17-33 AMA5. | 5/10 knee | 17 | |
| Left lower extremity (knee and ankle | 22/9/13 | paragraphs 3.29 p.21, Table 3.5 | Tables 17-11, 17-12, 17-33 AMA5. | 1/10th knee | 28 | |
| Scarring TEMSKI | 22/9/13 | Chapter 14, Table 14.1 | 1 | 0 | 1 | |
| Total % WPI (the Combined Table values of all sub-totals) | 41% | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
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