Eurobodalla Shire Council v Spears

[2022] NSWPICMP 449

DETERMINATION OF APPEAL PANEL
CITATION:	Eurobodalla Shire Council v Spears [2022] NSWPICMP 449
APPELLANT:	Eurobodalla Shire Council
RESPONDENT:	Steven Wayne Spears
Appeal Panel
MEMBER:	Brett Batchelor
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	9 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal by employer on the grounds that the Medical Assessor (MA) failed to make a deduction form the degree of whole person impairment (WPI) assessed; resulting from an injury to the respondent worker’s left knee pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the appellant submitted that in accordance with Vitaz v Westform (NSW) Pty Ltd the fact that the respondent’s left knee was asymptomatic pre-injury did not mean that no deduction should be made; the appellant relied upon the finding on a magnetic resonance imaging scan of the knee taken six weeks post-accident and the opinions of two independent medical examiners who had both examined the respondent; the appellant did not dispute the degree of WPI assessed by the MA, or that the respondent’s left knee was asymptomatic pre-injury; Held – there should be a deduction from that degree of WPI pursuant to section 323(2) of the 1998 Act for the pre-existing but asymptomatic osteoarthritis in the respondent’s left knee; Medical Assessment Certificate (MAC) revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 11 August 2022 Eurobodalla Shire Council (the appellant/the Council) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John D McKee a Medical Assessor (Dr McKee/the MA), who issued a Medical Assessment Certificate (MAC) on 14 July 2022.

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

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

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel (the 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. 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 the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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. Steven Wayne Spears (the respondent/Mr Spears) injured his left knee on 17 January 2017 in the course of his employment as a supervisor with Council. On that day he was walking down a gravel covered slope at the Kianga Sewer Treatment Plant when his left foot gave way on the loose surface and he fell backwards, landing on his backside and twisting and jarring his left knee joint. He immediately experienced pain and swelling of the knee, but was able to keep working for the remainder of the day, during which time the pain and swelling increased.

2. Mr Spears consulted his general practitioner, Dr Sacoor, on 30 January 2012 who referred him for an MRI of the left knee on 27 February 2017[1] and physiotherapy. Dr Sacoor referred the respondent to Dr Rajesh, orthopaedic surgeon of Bega, NSW who on 18 March 2017[2] expressed the opinion that Mr Spears should undergo an arthroscopic partial meniscectomy on the medial and lateral sides.

   [1] Appeal Papers (AP) pp 75 and 121 (noting that page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission).

   [2] AP pp 76 and 77.

3. On 4 May 2017 Mr Spears underwent an independent medical examination at the hands of Associate Professor Paul Miniter (Dr Miniter), orthopaedic surgeon, organised by State Cover Mutual, the insurer of the Council. Dr Miniter produced a report on 4 May 2017[3]. The respondent was also seen for treatment by orthopaedic surgeons Dr Jarman[4] and Dr Cossetto[5] in 2017 and 2018. On 8 June 2018 Dr Rajesh performed an arthroscopic partial medial and lateral meniscectomy on the left knee at Canberra Private Hospital, recording in his operation notes that the arthroscopy “….showed Grade 2 changes in the patellofemoral joint, a tear of the medial meniscus in the middle to posterior third and a tear of the lateral meniscus in the mid third.[6]” Dr Rajesh also undertook debridement of the chondral flap in the medial femoral condyle and one in the lateral tibial plateau.

   [3] AP p 122.

   [4] AP p 94.

   [5] AP p 72.

   [6] AP p 80.

4. On 19 February 2020 Mr Spears was independently medically examined by Dr Poplawski, orthopaedic surgeon, at the request of his solicitor and resulting in a report dated 21 February 2020[7].

   [7] AP p 61.

5. On 15 October 2020 Dr Rajesh performed a total left knee replacement at Canberra Private Hospital[8].

   [8] AP p 89.

6. Dr Poplawski examined the respondent again on 14 September 2021 and produced a report dated 27 September 2021[9].

   [9] AP p 66.

PRELIMINARY REVIEW

1. The Panel conducted a preliminary review of the original medical assessment in the absence of the parties.

2. As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because neither the appellant nor the respondent requested such examination and there is sufficient information in the AP to enable the Panel to determine the appeal.

EVIDENCE

Documentary evidence

1. The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

1. The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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

Appellant

1. In summary, the appellant submits that the MA made a demonstrable error and/or applied incorrect criteria when failing to apply a deduction under s 323 of the 1998 Act. It submits that there was sufficient evidence to make such a deduction, and the failure to do so was an error.

2. The appellant notes what the MA said at [8 e.] of the MAC that:

   “In my opinion, there is no proportion of loss of efficient use or impairment or Whole Person Impairment, due to a previous injury, pre-existing condition or abnormality.[10]”

   [10] AP p 25.

3. The appellant submits that the MA did not provide any further explanation for this conclusion, while noting that he recorded that Mr Spears said that he twisted his left knee, and that he had no history of left knee pain prior to the subject injury.

4. The appellant relies upon what was revealed by the MRI scan dated 27 February 2017, six weeks after the work injury, referred to above at [7]. On the basis of the report of this investigation, the appellant submits that Dr Miniter in his report dated 4 May 2017 said that the scan demonstrated a degree of osteoarthritic change, and diagnosed the respondent as having sustained an aggravation of pre-existing minor osteoarthritic change in the left knee. This finding was acknowledged by the treating general practitioner, Dr Sacoor, in his report dated 17 October 2017[11] in so far as there being evidence of pre-existing arthritis.

   [11] AP p 93.

5. The appellant also relies upon the opinion of Dr Lloyd Hughes, orthopaedic surgeon, in his report dated 9 November 2018[12] who diagnosed the respondent as suffering from osteoarthritis in the left knee which predated the injury in January 2017. Dr Hughes said that osteoarthritis of the knee can result in degenerative tears, and that tears which were evidence in the MRI scan probably pre-existed the injury of January 2017. Dr Lloyd reiterated his opinion in a later report dated 9 December 2019[13] that Mr Spears suffered a temporary aggravation of the osteoarthritis in the left knee in the fall at work on 17 January 2017. In a further report dated 16 July 2020[14], Dr Hughes remained of the view that any continuing symptoms that the respondent may have been experiencing in the left knee were due to pre-existing osteoarthritis and not related to the fall at work in January 2017.

   [12] AP p 176.

   [13] AP p 183.

   [14] AP p 190.

6. The appellant submits that the degenerative change in the respondent’s knee could not have developed so soon after the injury of 17 January 2017, and therefore pre-existed such injury.

7. The appellant cites s 323(1) of the 1998 Act and relies upon what the Court of Appeal said in Vitaz v Westform (NSW) Pty Ltd[15] that if a pre-existing condition contributes to permanent impairment, a deduction is required even though the pre-existing condition may have been asymptomatic prior to the injury.

   [15] [2011] NSWCA 254 (Vitaz).

8. The appellant also cites [1.28] of the Guidelines and submits that the MA has not complied with this Guideline.

9. The appellant submits that the failure of the MA to consider the earlier degenerative changes as having contributed to the permanent impairment constitutes a demonstrable error on his part, and shows that he has applied incorrect criteria when failing to apply a s 323 deduction.

10. The relief sought by the appellant is revocation of the MAC of Dr McKee and that it be replaced by a further MAC of the Panel.

Respondent

1. In reply, the respondent submits that the appellant does not dispute he suffered no symptoms whatsoever prior to the work injury on 17 January 2017, and that reliance by the appellant on the results of the MRI scan dated 27 February 2017 alone to justify a deduction under s 323 of the 1998 Act, is entirely against the weight of the evidence. The respondent submits that the report of the MRI scan, whilst referring to cartilage loss does, not describe the condition using terminology that is consistent with osteoarthritic changes. Instead, the report comments upon the somewhat dramatic and extensive tears within the structure of the knee joint.

2. The respondent relies upon what Dr Jarman said in his report dated 2 November 2017 that:

   “In no way can it be established that the chondral changes were pre-existing and certainly if there were chronic changes, I would expect these to be accompanied by MRI changes such as parameniscal cysts or bone oedema in the relevant arthritic compartment.”

3. The respondent also relies upon what Dr Cossetto said in his report dated 22 February 2018 that:

   “In my opinion, in view of the absence of any pre-injury symptom of the left knee, all current discomfort in the left knee is a direct result of the injuries sustained on 17/12017.”

4. The respondent submits that Dr Poplawski, in his reports dated 21 February 2020 and 27 September 2021 attributes the entirety of the pathology to the frank incident on 17 January 2017. In the earlier report Dr Poplawski said that the work incident resulted in:

   “…lateral and medial meniscus tears and damage to the articular surface of the medial femoral condyle and to the patellar articular surface. Prior to this injury, he had no problems in his knee whatever.”

5. The respondent submits that the MA justifies his opinion by explicitly agreeing with the opinions of both Dr Jarman and Dr Cossetto insofar as attribution is concerned, and his subsequent conclusion that there should be no s 323 deduction is well founded.

6. The respondent submits that accordingly there is no demonstrable error or misapplication of the Guidelines. The MA was entitled to exercise his clinical judgement which was well founded and based upon the findings and conclusions of the treating surgeons.

7. The respondent submits that there is no justification whatever for disturbing the MAC.

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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW[16] and NSW Police Force v Registrar[17].

   [16] [2008] NSWCA 116.

   [17] [2013] NSWSC 1792.

2. In Campbelltown City Council v Vegan[18] 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.

   [18] [2006] NSWCA 284.

3. The appellant relies on the result of the MRI scan dated 27 February 2017 and the opinions of Dr Miniter and Dr Hughes, based in part at least, on what is revealed in the scan. Dr Miniter makes the following comments in his report dated 4 May 2017:

   “The MRI scan would not suggest recent injury but rather a degree of osteoarthritic change. In his age group, it is advised to avoid arthroscopic surgery it at all possible and in this particular situation this would be my string recommendation.”

   …

   “The matter is an aggravation. I do believe that the aggravation has stopped at this stage.”

   …

   “There are definitely non-work related factors at play. He has pre-existing osteoarthritic disease identified on the MRI scan.”

   …

   “There is no evidence of permanent impairment.”

4. Dr Hughes says the following in his report dated 9 November 2018:

   “An MRI dated 27/02/2017 was reported as revealing a horizontal cleavage tear of the lateral meniscus and a tear of the medial meniscus. Full thickness cartilaginous loss over the central portion of the medial femoral condyle was noted, indicating osteoarthritis.”

   Dr Hughes’ opinion includes the following:

   “Based on my clinical assessment, the history obtained and the result of the MR investigation, it is my opinion this man is suffering from osteoarthritis of his left knee which pre-existed before work in January 2017. In this regard, I agree with the report of Dr Paul Miniter that the condition from which he is suffering pre-existed the fall.

   Osteoarthritis of the knee can result in degenerative tears of the menisci and these tears probably pre-existed. Mv opinion therefore concurs with the opinion expressed by Dr Miniter that the arthroscopy was nor necessitated by the fall at work.

   …

   “Undoubtedly the fall at work on 17/01/2017 would have aggravated the pre-existing underlying condition of his left knee but I agree with Dr Miniter that the aggravation has now ceased and that his continuing symptoms are due to the pre-existing arthritis.”

   In his report dated 9 December 2019 following a re-examination on 26 November 2019 Dr Hughes says:

   “He does not suffer any WPI as a result of any compensable workplace injury.”

5. One problem that the Panel perceives with the opinions of Dr Miniter and Dr Hughes is that both doctors regard the injury of 17 January 2017 as minor, causing only temporary aggravation of the pre-existing osteoarthritic condition in the left knee. Whilst the Panel agrees that Mr Spears did have a pre-existing osteoarthritic condition in his left knee, he was asymptomatic, a matter not disputed by the appellant. Further, the MA has assessed 23% whole person impairment (WPI) as a result of the injury on 17 January 2017, not disputed by the appellant. Dr Poplawski in his report dated 27 September 2021 assessed 20% WPI.

6. The only matter in issue is whether there should be a deduction from the 23% WPI assessed by the MA, and if so, the extent of the deduction. The appellant does not make any submission on what the quantum of the deduction should be, apart from submitting that such a deduction should be applied.

7. Apart from Dr Rajesh, Mr Spears consulted two other orthopaedic surgeons for treatment in 2017 and 2018. Dr Jarman in his report to Dr Sacoor dated 2 November 2017 comments on the opinion of Dr Miniter, and says:

   “He suggests that the matter is an aggravation but it would seem that there is no pre existing injury to aggravate. He concedes that Mr Spear’s [sic] has sustained a work place injury and that his work is a substantial contributing factor. He suggests that Mr Spears had ‘pre-existing osteoarthritic disease identified on the MRI scan’”.

8. Commenting on the pre-existing osteoarthritic disease which Dr Miniter identified on the MRI scan, Dr Jarman says:

   “In no way can it be established that the chondral changes were pre-existing and certainly if there were chronic changes, I would expect these to be accompanied by MRI changes such as parameniscal cysts or bone oedema in the relevant arthritic compartment.”

9. Dr Cossetto in his report to the respondent’s solicitor dated 28 February 2018 says in response to specific questions put to him:

   “1.     In my opinion Mr. Spears injury at work on the 17/1/2017 represents a substantial contributing factor to the left knee's current condition.

   2.      In my opinion, in view of the absence of any preinjury symptoms in the left knee, all current discomfort in the left knee joint is a direct result of the injury sustained on the I7/l/2017.”

10. At [4] of the MAC the MA has provided an extensive and detailed history of the injury and subsequent treatment of the respondent by his treating practitioners, and also makes reference to the opinion of Dr Miniter[19]. For this reason, the Panel rejects the submission of the appellant that Dr McKee has failed to provide an explanation for his conclusion that there is no proportion of loss of efficient use or impairment of WPI due to a previous, injury, pre-existing condition or abnormality, referred to in [18]-[19] above. The MAC must be read as a whole and while, as indicated hereunder the Panel is of the view that there should be a s 323 deduction from the degree of WPI assessed by the MA, it does not find that the MA has failed to provide a reason for his opinion that there should be no deduction. The Panel also finds that, for the same reason, the MA has not failed to comply with [1.28] of the Guidelines.

    [19] AP pp 19-21.

11. Dr Jarman is correct in stating that there is no pre-existing injury to aggravate. However the Panel does find that Mr Spears was suffering from pre-existing degenerative change in his left knee at the time of his accident on 17 January 2017. Mr Spears was 59 at the date of that accident, and one could expect wear and tear on the knee in a person of that age engaged in physical activity. The finding of the Panel of a pre-existing condition in the left knee is confirmed by the findings made by the treating surgeon, Dr Rajesh, when he performed that arthroscopy on 8 June 2018. These “….showed Grade 2 changes in the patellofemoral joint, a tear of the medial meniscus in the middle to posterior third and a tear of the lateral meniscus in the mid third.” This description provided by Dr Rajesh, who had the benefit of seeing what was revealed in the left knee at surgery, provides a more comprehensive picture of the condition of the knee, which confirmed by what was earlier revealed in the MRI scan dated 27 February 2017.

12. Section 323 of the 1998 Act provides:

    “323 Deduction for previous injury or pre-existing condition or abnormality

    (1)    In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

    (2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.

    Note—

    So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).

    (3)    The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.

    (4)    The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.”

1. As submitted by the appellant in accordance with what the Court of Appeal said in Vitaz, even though the pre-existing condition may have been asymptomatic prior to the injury, that does not mean that there should be no deduction for a pre-existing condition.

2. The Panel is of the view that, having regard to the fact that the respondent’s pre-existing condition in his left knee was asymptomatic, and that the only relevant radiological investigation available in the evidence is the MRI of 27 February 2017 which post-dates the accident of 17 January 2017, there is difficulty in determining the extent of the deduction that should be made. Therefore the provision in s 323(2) should be applied, and a one-tenth deduction (10%) made from the degree of WPI suffered by the respondent as a result of the injury in which he sustained on 17 January 2017.

3. The Panel finds that the MA has correctly calculated the degree of WPI sustained by the respondent as a result of such injury.

4. When one-tenth of 23% WPI is deducted therefrom, and the resulting figure rounded up in accordance with [1.26] of the Guidelines, a final figure of 21% WPI is obtained.

5. For these reasons, the Appeal Panel has determined that the MAC issued on 14 July 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W1823/22
Applicant:	Steven Wayne Spears
Respondent:	Eurobodalla Shire Council

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 Dr John D McKee 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)
Left Lower Extremity	17.01.2017	Chapter 3, Page 21 Table 17-35	Chapter 17 Pp 546-547 Table 17-33	20%  4% 23%	1/10th (10%)	21%
Total % WPI (the Combined Table values of all sub-totals)					21%