Green v Friend Civil Pty Ltd
[2022] NSWPICMP 239
•30 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Green v Friend Civil Pty Ltd [2022] NSWPICMP 239 |
| APPELLANT: | Aaron Green |
| RESPONDENT: | Friend Civil Pty Ltd |
| APPEAL PANEL: | Member Catherine McDonald Dr Drew Dixon Dr Tommasino Mastorianni |
| DATE OF DECISION: | 30 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Foot injury resulting in consequential conditions in left knee and lumbar spine; Medical Assessor did not set out findings in detail and did not explain that he had considered contemporaneous x-rays; re-examination required; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2021 Aaron Green lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 November 2021.
Mr Green relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that in s 327(3)(d). We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Green was employed by Friend Civil Pty Ltd (Friend Civil) as a labourer and plant operator on a construction site. While he was standing on the ground “taking levels”, an excavator was reversed into him, crushing and injuring his left foot. He underwent surgery and wore a CAM boot for about two months. About four or five months later, Mr Green began to feel pain in his back and his left knee.
In the Application to Resolve a Dispute, Mr Green claimed permanent impairment compensation in respect of his left lower extremity and lumbar spine. Friend Civil disputed that Mr Green suffered consequential conditions in his left knee and lumbar spine. On 28 September 2021 a Member of the Personal Injury Commission determined that Mr Green did suffer those consequential conditions and remitted the matter to the President for referral for assessment of his left lower extremity (foot and knee) and lumbar spine.
The Medical Assessor assessed 4% whole person impairment (WPI) with respect to Mr Green’s left lower extremity (foot and knee) and 0% WPI in respect of his lumbar spine.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
The parties were informed that Member McDonald had conducted a telephone conference in previous proceedings which were discontinued. They indicated that they did not object to her being a member of the Appeal Panel.
As a result of that preliminary review, we determined that the worker should undergo a further medical examination because there were a number of errors in the MAC, described below, which could not be reviewed on the papers.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Mr Green’s solicitors attached an email dated 9 November 2021 from the Medical Assessor’s rooms to his submissions. The email asked Mr Green’s solicitors to make arrangements to collect some imaging which had been left behind. The email is relevant because the Medical Assessor said that he did not see any imaging.
Though Friend Civil said that the Medical Assessor was not required to comment on every piece of evidence and said that the reports of scans were in the file, it did not make any submissions about the admission of the email.
As set out in our preliminary review dated 5 April 2022, we determined to admit the email because it assists with resolving an error (though not a demonstrable error) in the MAC. The Medical Assessor said that no scans were available for review when clearly there were.
EVIDENCE
We have all of the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Dr Drew Dixon of the Appeal Panel conducted an examination of the worker on 12 May 2022. His report is attached to these reasons.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in submissions prepared by his solicitor Ms Najjar, Mr Green submitted that the Medical Assessor erred in finding that he suffered a pre-existing condition and failing to provide adequate reasons for doing so. Mr Green submitted that the Medical Assessor made a determination about causation of the injury to his fifth toe, which was outside his jurisdiction.
Mr Green said that the Medical Assessor failed to give proper consideration to the evidence, including the imaging and other medical reports which corroborated his complaints. Mr Green said that the Medical Assessor did not provide reasons in support of his opinion that he was exaggerating and failed to afford him procedural fairness because he did not allow him to explain the alleged inconsistences.
Mr Green’s submissions are limited to the examination of the left foot and no specific submissions were made with respect to Mr Green’s left knee and lumbar spine.
In reply, Friend Civil submitted that the MAC shows that the Medical Assessor did assess Mr Green’s ankle, hindfoot and left fifth toe and that Mr Green had failed to explain why the Medical Assessor had applied incorrect criteria. It denied that the Medical Assessor had made a finding on causation.
Friend Civil said that the Medical Assessor was required to make his own assessment using his clinical skills and judgement and was not required to follow the opinion of any of the doctors qualified for the parties. It said that reference to the imaging would not have made a difference to the assessment.
Friend Civil said that it was open to the Medical Assessor to observe that Mr Green was exaggerating his symptoms and the fact that his findings differed from those of other practitioners did not constitute a demonstrable error. It observed that Mr Green did not take any issue with respect to the assessment of his left knee and lumbar spine.
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[1] 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.
[1] [2006] NSWCA 284.
The MAC
The Medical Assessor set out a history of the injury and treatment. He said:
“He was reviewed by Dr Kuo in November of 2013 where it is noted that he had united metatarsal neck fracture with some degenerative changes in the joints. Clawing of the fifth toe was identified and the clinical letter indicates that a presumption was that this is post-traumatic although it is likely on the basis of his pre-existing feet deformities.
An MRI and CT were subsequently arranged which demonstrated osteoarthritis of the first metatarsophalangeal joint. It was felt that any surgical intervention for the first toe was inappropriate. There was some discussion with respect to correction of the deformity of the little toe. Again, it would appear as though this is an unrelated abnormality.”
With respect to present treatment the Medical Assessor said:
“Mr Green is currently receiving no active treatment for his foot. He walks to exercise his knee and occasionally uses a bandage. He is not engaged in an exercise-based rehabilitation program for his back, nor has he had an epidural steroid injection. He intermittently takes Oxycontin to manage pain.”
The Medical Assessor set out his findings on examination:
“Thigh circumference was 54cm and symmetrical. Calf circumference was 36cm and symmetrical. There was a normal range of ankle movement which was symmetrical (20° dorsiflexion, 40° plantar flexion). Subtalar joints were supple. First metatarsophalangeal joint demonstrated 25° of extension and 40° of flexion. This was symmetrical. There were no callosities on the soles of the feet symmetrical. Both feet have cavovarus deformity.
Lacerations on the plantar aspect of the left foot are well healed and difficult to find.
With respect to the knee, the range of motion was as follows:
Left 0°-110°
Right 0°-120°
Both knees were stable to collateral and cruciate ligaments.
Hip range of motion was to a normal, symmetrical range of motion in both hips.
There was no restriction or abnormal movement of the lumbar spine. Lower limb reflexes were symmetrical with down going Babinskis. Heel-toe stance was intact.”
The Medical Assessor said that he was “able to review no imaging”. He described the injury as a “fracture of the first metatarsal neck and lacerations to the foot”. He said that Mr Green described “disability beyond that expected from the injuries sustained”.
He explained his calculations:
“Mr Green has sustained a fracture of the first metatarsal. Whilst this has united without significant radiological complication, it remains painful. I think this is best dealt with by AMA-5, page 546, Table 17-33 as loss of altered weight transfer from a first metatarsal fracture (4% whole person impairment). He has normal, symmetrical range of motion of the joints in the foot. He does not assess any impairment for restriction of range of motion. Whilst he has been limping he does meet the requirement for assessment of impairment due to gait. He does not have ‘documented moderate to advanced arthritic change of the hip, knee or ankle’.
According to AMA-5, page 537, Table 17-10 he does not attract impairment for slight loss of flexion in the knee.
With respect to the lumbar spine, I did not observe clinical findings consistent with muscle guarding or spasm, there was no documented neurological impairment nor was there documented compromise to structural integrity to the spine. This being the case, I assess Mr Green as Lumbar DRE Category I (0% whole person impairment).”
The Medical Assessor explained why he did not agree with the assessments of Dr Stephenson, qualified for Mr Green, and A/Prof Miniter qualified for Friend Civil.
Hindfoot and ankle
Mr Green’s submission that the Medical Assessor did not make an assessment of his hindfoot and ankle because he found pre-existing deformities is not supported by a reading of the MAC.
The Medical Assessor set out his findings with respect to the range of left ankle motion but not the hindfoot. Later he said that Mr Green had a normal symmetrical range of motion in the joints of his left foot. When commenting on Dr Stephenson’s report, he said that he did not observe asymmetrical movement as Dr Stephenson did. Ideally the Medical Assessor would also have set out the measurement of the range of motion of the relevant joints in Mr Green’s left foot and his observations of Mr Green’s right foot to make clear that he had also examined that foot.
The role of the Medical Assessor is not to choose between the assessments made by the doctors qualified by the parties[2]. However, his obligation to disclose the path of reasoning by which he reached his decision meant that he should clearly set out the observations he made so that there can be no doubt about the extent of the examination he undertook.
[2] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346.
Dr Dixon examined both feet and the range of motion in Mr Green’s ankles and hindfeet were symmetrical. There is therefore no loss of the range of motion to justify an assessment of impairment in respect of Mr Green’s hindfoot and ankle.
Fifth toe
The Medical Assessor did not explain what he meant by the statement that Mr Green had pre-existing foot deformities. The failure to explain his conclusion is a demonstrable error.
The Medical Assessor did not show that he had noted the report of an x-ray on 13 November 2012, the day of the injury, was reported as showing a fracture of the distal phalanx of the left fifth toe.
Mr Green did not see Dr Kuo until a year after the injury on 19 November 2013. In his report of the same date, Dr Kuo noted the injury to the fifth toe and said that Mr Green had fixed clawing of that toe. His report does not suggest he considered that the clawing was a result of the injury. He did not request further investigation or propose treatment to the fifth toe.
The discussion of surgery to correct the deformity to the fifth toe to which the Medical Assessor referred did not take place for some years. Dr Kuo saw Mr Green for the second time and reported on 5 May 2020 to his general practitioner. He said that surgery was possible in the form of a PIP joint arthrodesis and that Mr Green wanted to think about it, as well as possible surgery to the great toe. There is nothing in the file to suggest that Mr Green saw Dr Kuo again. The report is consistent with Dr Kuo’s findings in 2013.
There is no basis in Dr Kuo’s reports dated for the Medical Assessor’s assertion that Dr Kuo presumed that the condition was post-traumatic.
When Dr Dixon compared Mr Green’s left and right feet and observed that there were bilateral curly toes – a congenital condition where the toes curl under the foot. Dr Dixon observed that the fifth toe underlapped the fourth on both of Mr Green’s feet. The clawing of the fifth toe is consistent with that condition.
However, Dr Dixon observed marked deformity in the left fifth toe which was consistent with the injury. His observation is consistent with the x-ray finding and the observations of Dr Kuo one year after the injury. It is also consistent with Dr Stephenson’s observation in his report dated 28 August 2020, though Dr Stephenson did not comment on the congenital condition of curly toes.
The assessable impairment of 1% WPI will not result in the payment of compensation but the Medical Assessor was in error not to make the assessment.
Great toe
The Medical Assessor set out only a limited description of his findings on examination. In order for the reader to understand his assessment, a full description of his observations should be included. If he measured the range of the interphalangeal joint of Mr Green’s great toe, he did not set out his findings. It was relevant in order to determine if assessment under Table 17-14 of AMA 5 was appropriate.
Dr Dixon conducted a detailed examination and set out his findings. Assessment under Table 17-14 was not appropriate because he observed that the range of the interphalangeal joint on the right was symmetrical.
On the basis of his observations, Dr Dixon agreed with the Medical Assessor that the appropriate assessment was under Table 17-33 of AMA 5 for a first metatarsal fracture with loss of weight transfer, resulting in 4% WPI.
Other comments
Dr Dixon did not make an assessment of Mr Green’s left knee and lumbar spine because Mr Green did not submit that the Medical Assessor’s assessment was in error. The assessment in DRE category 1 for the lumbar spine results in 0% WPI. That does not suggest that there was no consequential condition but rather that the diagnostic criteria for assessment in a higher category were not observed. On the basis of the findings set out, the assessments by the Medical Assessor were correct.
The Medical Assessor said that the disability Mr Green described was beyond that expected and Mr Green said the statement was unexplained. The Medical Assessor was directed to consider consistency of presentation by the MAC form. All of the assessments he was required to make were based on an objective measurement of the range of motion or, in the case of the lumbar spine, a set of diagnostic criteria. The Medical Assessor did not say that he observed inconsistencies and his comment is not the same as saying that he did not believe Mr Green. We do not agree that there was a denial of procedural fairness.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Appellant: | Aaron Green |
Respondent: | Friend Civil Pty Ltd. |
Date of Determination: | 6 April 2022 |
Examination Conducted By: | DREW DIXON |
Date of Examination: | May 12, 2022 |
The workers medical history, where it differs from previous records
No change.
Additional history since the original Medical Assessment Certificate was performed
Nil.
Findings on clinical examination
This 52 year old claimant walked with a limp on the left and had great difficulty walking on his toes due to pain in the ball of his foot and moderate difficulty with heel walking. He had difficulty squatting due to stiffness of his left ankle.
There was a prominent bunion and Hallux valgus deformity of the left great toe compared with that on the right. There were bilateral curly toes but the one on the left showed marked deformity with flexion contracture at the DIP joint of 30 degrees and is clearly abnormal, compared with the one on the right.
The lacerations on the plantar aspect of the left foot were reasonably healed.
There was mild restriction of the MTP joint of the great toe with 25 degrees extension compared with 30 degrees on the right and 30 degrees flexion at the IP joint, which was symmetrical. There was a full range of motion of the right great toe. The extension of the toes on the left foot was 20 degrees with fixed flexion deformity at the PIP joint of the left little claw toe on a background of bilateral curly toes with both little toes underlapping the fourth toe of each foot.
In summary, there was stiffness on MTP extension of the left great toe at 25 degrees and 30 degrees on the right and IP flexion was 30 degrees of both great toes.
While the claimant had normal sensation on the sole of his foot, he did find that while walking, he had a sensation of walking on glass and for that reason, he has bought padded joggers with in-soles for general ambulation.
Dorsi flexion of both ankles was 15 degrees and plantar flexion 25 degrees on the left and 30 degrees on the right. The subtalar joints were inversion 15 degrees and eversion 25 degrees bilaterally.
In summary, this claimant has sustained a fracture of the first metatarsal neck and lacerations to his foot when it was caught between cogs in plant equipment and he subsequently developed fixed PIP clawing of his left curly fifth toe and mild stiffness of his right great toe with a more prominent bunion compared with the left.
It was found by MA that the claimant’s impairment for the left foot was 4% WPI for the fracture of the 1st metatarsal with altered weight transfer from Table 17-33, AMA V, Page 546, with which I concur.
There is assessable impairment for the flexion contracture of his left little toe of 1% WPI for the fixed flexion contracture, 30 degrees at the PIP joint of the fifth toe of the left foot, from Table 17-30, Page 543 due to ankylosis of the toe.
This gives a combined total for the left foot of 5% WPI.
Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Signed: DREW DIXON.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Robert Kuru 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 WorkCover Guides | 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 (foot and knee) | 13.11.2012 | Chapter 3 | Chapter 17 Page 547, Table 17-33 | 5% | 0 | 5% |
| Lumbar spine | 13.11.12 | Chapter 4 | Chapter 15 Page 384 Table 15-3 | 0% | 0 | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 5% | |||||
Catherine McDonald
Member
Drew Dixon
Medical Assessor
Tommasino Mastroianni
Medical Assessor
30 May 2022
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