Dewar v Universal Group Messengers Pty Ltd

Case •

[2024] NSWPICMP 531

•

1 August 2024
DETERMINATION OF APPEAL PANEL
CITATION: Dewar v Universal Group Messengers Pty Ltd [2024] NSWPICMP 531
APPELLANT: Darryl Dewar
RESPONDENT: Universal Group Messengers Pty Limited
APPEAL PANEL
MEMBER: Marshal Douglas
MEDICAL ASSESSOR: James Bodel
MEDICAL ASSESSOR: Andrew Porteous
DATE OF DECISION: 1 August 2024
CATCHWORDS: 

WORKERS COMPENSATION - Whether Medical Assessor (MA) applied correct methodology to assess the degree of permanent impairment the appellant had from an injury to his knee; whether MA should have used the method of gait derangement; Held – MA used the correct methodology to assess appellant’s permanent impairment, and explained his reasons for using the methodology; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 21 May 2024 Darryl Dewar, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
    23 April 2024.

  2. The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

    ·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);

    ·        the assessment was made on the basis of incorrect criteria, and

    ·        the MAC contains a demonstrable error.

  3. The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.

  4. 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.

  5. 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

  1. The appellant was employed as a driver by Universal Group Messengers Pty Ltd, the respondent. On 23 August 2018 he injured his right knee while delivering a mattress to one of the respondent’s customers. He subsequently had arthroscopic surgery when a partial medial meniscectomy and chondroplasty was done on his right knee. He has continued with symptoms after that surgery.

  2. The appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from that injury. He relied on a report of general and trauma surgeon Dr P Endrey – Walder dated 9 November 2022, who assessed the degree of his permanent impairment from his injury was 15% whole person impairment (WPI). Dr Endrey-Walder advised in his report that he made that assessment on “the basis of Guides to the Evaluation of Permanent Impairment by the American Medical Association (5th Edition)” (AMA5), saying that the appellant “requires routine use of short leg brace: 15% WPI”.

  3. On 6 September 2023 the respondent’s insurer wrote to the appellant to notify him in accordance with s78 of the 1998 Act that it disputed he was entitled to permanent impairment lump sum compensation. It advised him this was because it considered his impairment did not exceed the threshold of more than 10% stipulated by s 66(1) of the 1987 Act for him to be entitled to compensation for permanent impairment. It also advised him that it relied on an opinion of orthopaedic surgeon Dr Stephen Rimmer, who had examined the appellant on 7 September 2022 at the request of the insurer and who advised in a reported dated 30 September 2022 that he assessed the degree of the appellant’s permanent impairment from his injury was 1% WPI, based on Table 17.33 of AMA5 which allows 1% WPI for a partial medial meniscectomy.

  4. A medical dispute consequently arose between the parties regarding the degree of the appellant’s permanent impairment from his injury. On 23 January 2024 the appellant’s solicitors lodged with the Personal Injury Commission (Commission) on behalf of the appellant an Application to Resolve a Dispute seeking determination of the appellant’s claim for compensation for permanent impairment from his injury.

  5. On 14 February 2024 a delegate of the President of the Commission issued a referral to the Medical Assessor to assess the medical dispute between the parties.

MEDICAL ASSESSMENT CERTIFICATE

  1. The Medical Assessor examined the appellant on 17 April 2024 to conduct the assessment of the medical dispute. The history he obtained included the appellant having arthroscopic surgery on 24 October 2018.  The Medical Assessor noted a patellofemoral chondroplasty and partial medial meniscectomy was then performed. The history the Medical Assessor obtained also included the appellant suffering an aggravation of his right knee symptoms at his work in 2022 and that since then, and on the advice of his orthopaedic surgeon, he has been wearing a brace.

  2. The Medical Assessor noted that the appellant has constant knee pain and that after prolonged standing his right leg muscles “are useless” in the sense that his leg feels weaker. The Medical Assessor noted that the appellant’s main complaint is weakness in his leg rather than pain in his knee and that weight bearing aggravates his knee. The Medical Assessor noted that the appellant has difficulty with stairs. The Medical Assessor noted that the appellant reported that he uses the brace all of the time as he feels more comfortable wearing the brace.

  3. The Medical Assessor recorded the following findings from his physical examination of the appellant:

    “He is a man of stated age in no apparent discomfort. He is wearing a right knee brace which he removed for the examination. He walked with a normal gait with and without the brace. When asked to squat and stop if it bothered him, he could squat flexing the knee to 80° and then stopped as a result of knee discomfort, but predominantly for sensation of weakness in the leg.

    Whilst supine, examination of the legs revealed wasting of the right leg. On measuring muscle bulk with a measuring tape, the left calf was 1cm bigger than the right calf, and when measuring the thighs 10cm above the patella, the right thigh was 2½ smaller than the left thigh.

    There was no swelling or effusion in the knees. There is very fine patellofemoral crepitus in the right knee but no patellofemoral pain on patellofemoral compression.

    There is tenderness over the lateral medial joint. The knee was stable. The knee extended normally and flexed to 130° compared to 140° in the non-injured knee.

    When testing power he had Grade 4 power in the quadriceps.”

  4. The Medical Assessor provided the following summary and diagnosis of the appellant’s injury:

    “As a result of the injury in 2018 Mr Dewar sustained a meniscal tear in the right knee for which he had arthroscopic partial medial meniscectomy and chondroplasty.

    He has been wearing a brace for some 2 years and has wasting in the right leg. My clinical diagnosis is medial meniscectomy, muscle wasting and weakness as a sequelae of the injury and use of a brace.”

  5. The Medical Assessor advised that in accordance with Table 17-33 of AMA5 he assessed the appellant had 1% WPI due to having a partial meniscectomy of his right knee. The Medical Assessor also advised that in accordance with Table 17-6 of AMA5, as modified by paragraph 3.14 of the Guidelines, he assessed the appellant had 7% WPI due to wasting of his thigh and wasting of his calf. The Medical Assessor also recorded that he assessed the appellant had “grade 4 power due to the muscle wasting” and that he had assessed the appellant had “25% lower extremity impairment due to motor deficit which equates to 10% whole person impairment”.

  6. The Medical Assessor noted that in accordance with the requirement of Table 17-12 of AMA5 impairment due to muscle atrophy cannot be combined with the impairment due to muscle strength or impairment due to diagnosis based estimates.

  7. Indeed, the Appeal Panel observes that that Table prevents the combination of any of the impairments the Medical Assessor assessed the appellant had under the various methods he used to assess the appellant’s impairments consequent upon his injury.  The Medical Assessor stated that he “therefore assessed 10% whole person impairment due to weakness which gives the higher impairment”.

  8. The Medical Assessor noted that Dr Endrey-Walder had assessed the appellant had 15% WPI using the method of gait derangement. The Medical Assessor advised he considered
    Dr Endrey-Walder had used incorrect methodology because paragraph 3.10 of the Guidelines instructs that an assessment by reference to gait derangement should only be used as a method of last resort and that other methods of impairment that are more fitting the nature of a worker’s disorder should be used in preference. The Medical Assessor stated his opinion was that the methodologies of muscle weakness, wasting and diagnoses based estimates were more fitting the nature of the appellant’s disorder.

  9. The Medical Assessor also noted that Dr Rimmer had assessed the appellant had 1% WPI based on the appellant having a partial medial meniscectomy. The Medical Assessor noted that the Dr Rimmer did not assess any impairment regarding the sequelae from the meniscectomy, being muscle weakness and muscle atrophy and, as a consequence, the Medical Assessor said he disagreed with Dr Rimmer’s assessment.

  10. Accordingly, the Medical Assessor certified that he assessed the appellant’s degree of permanent impairment from his injury was 10% WPI.

PRELIMINARY REVIEW

  1. 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.

  2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established any of the grounds for appeal on which he relied, and consequently there was no reason for the Appeal Panel to examine the appellant.[1]

    [1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

  1. 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

  1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

  2. In summary, the appellant submitted that it is not known what test the Medical Assessor applied to assess his impairment. The appellant highlighted that the Medical Assessor had stated that he had assessed his impairment by reference to “grade 4 power due to wasting”. The appellant submitted that the Medical Assessor’s explanation of his assessment at paragraph 10b of the MAC referred to Table 17-33 of AMA5 and paragraph 3.13 of the Guidelines, neither of which contained a reference to “grade 4 power”.

  3. The appellant further submitted that the methodology the Medical Assessor used to assess his permanent impairment took no account of his knee instability. The appellant submitted that the Medical Assessor, by rejecting the method of gait derangement to assess his permanent impairment, took no account of the nature of his disorder.

  4. The appellant provided no submissions regarding the ground for appeal provided in s 327(3)(b) of the 1998 Act, on which he also relied in support of his appeal. Attached to the appellant’s submissions was a report of Dr Endrey-Walder dated 8 May 2024. It is apparent that the content of that report is the additional relevant information that the appellant now contends is available. In that report Dr Endrey-Walder noted that the Medical Assessor had assessed the degree of the appellant’s permanent impairment as 7% WPI based on significant muscle weakness. Dr Endrey-Walder also provided further reasons for why he assessed the appellant’s impairment by reference to gait derangement.

  5. In reply, the respondent submitted that the Medical Assessor made no error in adopting the method he did to assess the degree of the appellant’s permanent impairment from his injury and consequently made no error with respect to his assessment of the degree of the appellant’s permanent impairment from his injury.

  6. The respondent submitted that the evidence contained within Dr Endrey-Walder’s report of
    8 May 2024 was available to the appellant prior to the medical assessment and consequently cannot substantiate the ground for appeal provided in s 327(3)(b) of the 1998 Act.

FINDINGS AND REASONS

  1. 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.

  2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

Additional relevant information

  1. The report of Dr Endrey-Walder dated 8 May 2024 is not evidence that the Appeal Panel can receive under s 328(3) of the 1998 Act.  Therefore, the Appeal Panel cannot consider that evidence in the appellant’s appeal against the medical assessment. This is because the content of Dr Endrey-Walder’s report, in substance, merely amounts to further reasons from Dr Endrey-Walder regarding why he used the methodology of gait derangement to assess the degree of permanent impairment the appellant has from his right knee injury. If the appellant considered that Dr Endrey-Walder had not sufficiently explained his opinion expressed in his report of 9 November 2022, and specifically why he considered gait derangement was the most appropriate method by which to assess the degree of his permanent impairment, then the appellant could have obtained a further report from
    Dr Endrey-Walder regarding this before the medical assessment.

  2. In arguendo, even if the Appeal Panel had received that report into evidence, it would not substantiate the ground for appeal provided in s 327(3)(b) of the 1998 Act.

  3. The question an Appeal Panel must ask itself when considering the ground for appeal provided in s 327(3)(b) of the 1998 Act is established is whether the additional information would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor.[2] If the Appeal Panel had been able to receive into evidence the report of

    [2] Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [13].

    Dr Endrey-Walder dated 8 May 2024, then the answer to that question in this case would have been no for three reasons.

  4. Firstly, paragraph 3.10 of the Guidelines stipulates that an assessment of permanent impairment by reference to gait derangement is to be used as a method of last resort and that methods that best fit the nature of a worker’s disorder should always be used in preference to gait derangement. Here, as the Medical Assessor explained in the MAC, and this accords with the opinion of the Appeal Panel, which is an expert panel, gait derangement was not the method of assessment most fitting the nature of the appellant’s disorder. The appellant’s impairment arises as a consequence of his having a meniscectomy that has resulted in his having muscle atrophy and weakness of his quadriceps and hamstring muscles. The most fitting method by which to assess his impairment by reference to those disorders are muscle atrophy, which is assessed by reference to the revised Table 17-6 of AMA5, or the method of muscle strength or muscle weakness, which is assessed by reference to Table 17-7 and Table 17-8 of AMA5.

  5. Secondly, the Medical Assessor found from his examination of the appellant that the appellant did not have a deranged gait. The Medical Assessor recorded that the appellant walked with a normal gait both whilst wearing his brace and whilst not wearing his brace.

  6. Thirdly, noting that the appellant does not have an antalgic limp and does not use a cane or a crutch, and that the brace that the appellant uses is a short leg brace for his knee, the appellant’s wearing of a brace does not attract a rating under Table 17-5 of AMA5. Table 17-5 allows a rating for impairment in some circumstances where a worker requires routine use of a brace, but that is only with respect to a short leg brace for the ankle-foot or otherwise a long leg brace. The appellant does not meet that criteria.

  7. Hence, were the appellant’s permanent impairment to have been assessed by reference to the method of gait derangement under Table 17-5 of AMA5, he would have been assessed with 0% WPI, which is less than the assessments he achieved under the other methods by reference to which the Medical Assessor rated his impairment.

Method used to assess impairment

  1. The Appeal Panel considers that the Medical Assessor’s explanation relating to what method he adopted to assess the degree of the appellant’s permanent impairment is a touch awkward, but when the MAC is read as a whole it is apparent that he assessed the degree of the appellant’s impairment by reference to the criteria of Table 17-7 and 17-8 of AMA5, that is by reference to the appellant’s muscle strength/weakness.

  2. As the Appeal Panel has already noted, the Medical Assessor determined that the most fitting methods by which to rate the appellant’s permanent impairment given the disorder the appellant had following surgery to his knee were muscle strength/weakness and muscle atrophy. The Medical Assessor recorded that he found from his examination of the appellant, the appellant had muscle wasting of his right calf of the order of 1cm and muscle wasting of his right thigh of the order of 2 ½ cm. In accordance with Table 17-6 of AMA5, as modified by paragraph 3.14 of the Guidelines, that equated to, respectively, lower extremity impairments of 6% and 11%, which added to 17% and, in accordance with Table 17-3, converts to 7% WPI.

  3. The Medical Assessor expressly recorded in the MAC that he found from his examination of the appellant that he had grade 4 power in his quadriceps. It is apparent that he assessed that by reference to the criteria of Table 17-7 of AMA5.

  4. The Medical Assessor did not expressly record a finding regarding the power or strength that the appellant had in his hamstrings, but he did record that the appellant had a normal gait and was able to squat flexing his knee to 80° at which point the appellant stopped because of a sensation of weakness. That movement of the appellant involves the use of his hamstrings against gravity with some resistance, but nearing full resistance. Hence, that finding of the Medical Assessor is the equivalent of a grade 4 rating under Table 17-7 of AMA5.

  5. It is therefore apparent, it seems to the Appeal Panel, that when the MAC is read as a whole, that is when the Medical Assessor’s findings from his examination are read together with his explanation for his assessment of the appellant’s permanent impairment, that he has assessed the appellant had 5% WPI under Table 17-8 for knee flexion, which relates to the strength of his hamstrings, and 5% WPI for knee extension, which relates to his quadriceps.

  6. Confusingly, the Medical Assessor said in the MAC that he had assessed grade 4 power due to muscle wasting and also assessed 25% lower extremity impairment due to motor deficit. This is what the Appeal Panel considers to be the awkward part of the Medical Assessor’s reasoning. It is apparent, as the Appeal Panel said, that when the MAC is read as a whole his reference to grade 4 power is a reference to his findings relating to the strength/weakness the appellant exhibited during examination of his quadriceps and hamstrings.

  1. The Appeal Panel further notes that the Medical Assessor said that the appellant had 25% lower extremity impairment, which is again a reference to what he had assessed the appellant to have by reference to Table 17-8. That figure is incorrect. It should be 24% WPI, but again it makes no difference to the outcome, given that the Medical Assessor correctly assessed the appellant had 10% WPI by reference to Table 17-8.

  2. The Medical Assessor correctly noted that the impairment he assessed the appellant had by reference to the various methods by which the impairment could be rated could not by virtue of Table 17-2 of AMA5 be combined. He consequently selected the method that provided the highest rating of the appellant’s permanent impairment, being Table 17-7 and Table 17-8, and certified the appellant had 10% WPI.

  3. In the final analysis, whilst the Medical Assessor reasoning was awkwardly expressed, he did not make an error.

  4. For these reasons, the Appeal Panel has determined that the MAC issued on 23 April 2024 should be confirmed.


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