Green v WB & WH Green Pty Ltd
[2023] NSWPICMP 691
•20 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Green v WB & WH Green Pty Ltd [2023] NSWPICMP 691 |
| APPELLANT: | Warren Green |
| RESPONDENT: | WB & WH Green Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 20 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; impairment assessment under the Table of Disabilities of the right leg at or above the knee and left leg at or above the knee; appellant alleged error by the Medical Assessor in making a deduction under section 323 of one-half in respect of the pre-existing condition of the right knee due to a sporting injury and subsequent surgery; the Appeal Panel could discern no error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 August 2023 Mr Warren Green (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
31 July 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 sought to be re-examined by a Medical Assessor member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel, for the reasons set out below, could not find error. Absent a finding of error, the Appeal Panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The 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 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 by the Personal Injury Commission (Commission) as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
02/12/96
•
Body parts / systems referred:
Left leg at or above the knee
Right leg at or above the knee
•
Method of assessment:
Table of Disabilities”
The Medical Assessor issued a MAC as follows:
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| Left leg at or above the knee | 02/12/96 | 10 | 0 | 10 |
| Right leg at or above the knee | 20 | ½ | 10 |
The worker appealed.
There was no complaint on appeal about the overall level of impairment assessed.
The complaint on appeal was limited to the deduction of one-half made under s 323 for the pre-existing condition, abnormality or injury of the right leg at or above the knee.
In summary, the appellant submitted on appeal that the Medical Assessor erred when he made a one-half deduction under s 323 and that he made an assessment of this deduction on the basis of incorrect criteria and that he did not adequately explain his reasons such that a demonstrable error was made.
In summary, the employer WB & WH Green Pty Limited (the respondent) submitted on appeal that the Medical Assessor did not make a demonstrable error or make an assessment on the basis of incorrect criteria and the reasons for the s 323 deduction are clearly apparent when the MAC is read as a whole and the MAC should be confirmed.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Green related that while working as a self-employed tiler, he was frequently squatting and also on his knees. He did wall and floor tiling and there was therefore no option but to adopt these contorted positions as he did his job. As time went on, he experienced progressive pain in his knees. The right knee had previously experienced injury from a sporting event, in which the cruciate ligament had been damaged. Both knees deteriorated as he continued with his tiling work. In the mid-1990s this became much more severe. He came under the care of Specialist Knee Surgeon, Dr Peter Berton. In 1997 there was a reconstruction of the right anterior cruciate ligament. The previous ACL reconstruction was effectively revised and there was also extensive debridement. Around the same time, he had an arthroscopic procedure to his left knee, again by Dr Peter Berton which demonstrated quite extensive degenerative change.
Dr Berton carried out a further arthroscopy on the right knee about 18 months later when there had been the development of further meniscus damage.
Mr Green ceased his tiling work in the late 1990s and since then, has been involved in occupations which necessitate very much less stresses and strains on his knees.
Present treatment:
He takes analgesics and anti-inflammatories as he feels the need. There is no other treatment.
Present symptoms:
Pains in the knees, occasionally with locking. The right knee is more severely affected than the left. The condition is worse towards the end of his working day. He is just about able to kneel, although this is often painful and his capacity to do this is quite limited.
Details of any previous or subsequent accidents, injuries or conditions:
Attention is drawn to his sporting injuries with the right knee. This started in the early 90s. He was a keen and apparently good soccer player. He experienced an injury to his right knee which involved the anterior cruciate ligament. He came under the care of Specialist Orthopaedic Surgeon, Dr Brendan Jones who carried out an arthroscopic procedure around that time. There was a further arthroscopy in 1993. In 1994 it was demonstrated that there were tears of the medial and lateral menisci. His third arthroscopic procedure by Dr Brendan Jones featured soon after that.
In 1995 there was a fourth procedure to the right knee due to a meniscus tear on the medial side.
There was a reconstruction of the right anterior cruciate ligament which had previously been injured in the early 1990s. This later procedure was managed by Specialist Knee Surgeon, Dr Peter Berton.
There does not appear to have been any non-work related injury to the left knee. He described that in early 2011, he had been manoeuvring a tractor up ramps onto a low vehicle. Unfortunately all did not go according to plan and the tractor went up on its front wheels and literally catapulted him out of the driving seat and onto the roadway where he landed on his right side. He was fortunate that the tractor tumbled in a different direction. There is no history of any specific injury to his lower limbs from this event.
General health:
This is fairly good. He is not on treatment for anything else.
Work history including previous work history:
Mr Green has been involved in wall and floor tiling for many years. In the early 1990s he set up his own self-employed business in this field. He had to cease this work in the later 1990s because of the condition of his knees.
He then worked in the delivery of fruit juices for about a year. There was a further year or two when he was the supervisor of a paint shop. He then worked as a groundskeeper, for about ten years. More recently he set himself up, again in his own self-employed business as a handyman. He mentioned that most of this work was painting.
Social activities/ADL:
Mr Green is married. His wife is fit and well and works in disability support. They have two boys in their 30s who are fit and well and who have left home.
He is trying to reduce his smoking and is now down to ten cigarettes a day. Occasionally he enjoys a modest drink.
He was always very keen on surfing and soccer but cannot participate in either of these at the moment. He is a keen and apparently quite gifted swimmer and would like to get back to doing this. He also has done a lot of boating. He mentioned that some of this was up in the Myall Lakes where they could also swim.
He is able to drive, although this is fairly limited to about 20 minutes or so on any one occasion.
At home, he does relatively little inside the house. He is able to cut the grass using a ride-on mower.”
The Medical Assessor noted that he had regard to the documentary evidence and noted the evidence he had particular regard to as follows:
“All of the documents referred by the Commission were studied in detail. The following were considered particularly relevant for this assessment:
DATE
AUTHOR
SPECIALITY
COMMENTS
05/06/23
Warren Green
Applicant
Personal statement.
02/02/99
Dr Peter Berton
Treating Orthopaedic Surgeon
Right knee condition due to previous sporting injury and tiling job. Left knee condition due to tiling job.
26/07/22
Dr Alan Hopcroft
Orthopaedic Surgeon
Impairment right leg 25%, left leg 15% (no deduction given for sporting injury).
25/11/22
Dr Robin Diebold
Right knee condition 15% impairment totally due to previous sporting injury. Left knee condition due to tiling job, 5% impairment.
The Medical Assessor reviewed the special investigations as follows:
DATE
INVESTIGATION
RESULTS
08/09/97
Plain x-ray knees
Right knee ACL reconstruction, mild to moderate degenerative changes bilaterally.
08/10/21
On the right side the reconstruction of the ACL is again demonstrated. As well as this and on the left side, there are extensive degenerative changes.
The Medical Assessor conducted a physical examination which he recorded and about which there is no complaint on appeal.
The Medical Assessor summarised his diagnosis and findings as follows:
“(a) Summary of injuries and diagnoses:
Mr Green gives a history of sporting injury to his right knee which goes right back to the early 1990s. His clinical management has included an ACL reconstruction. More recently there has been further deterioration of the right knee and also of the left knee. This is predominantly due to his occupation in his own self-employed wall and floor tiling business. A lot of this necessitated squatting and being on his knees with operating quite heavy weights of floor and wall tiles and also bags of adhesive. This is identified as having resulted in further deterioration of each knee. He has long since ceased this occupation and his subsequent activities would not have caused significant dysfunction of his knees. At this assessment he continues to have dysfunction of the knees. The right knee is more severely affected than the left.
(b) Consistency of presentation:
Mr Green’s presentation was completely consistent.”
There is no complaint on appeal about the overall level of impairment assessed. The Medical Assessor explained his assessment:
“Mr Green has full extension in each knee, although the range of flexion on the right is less than on the left. There has been extensive surgery on the right, particularly with the anterior cruciate ligament repair. The right thigh is also 1cm less in circumference than the left. It is therefore assessed that he has 20% loss of useful function of the right leg and 10% loss of useful function of the left leg.”
The Medical Assessor clearly identified the prior condition of the right knee which is supported by the available evidence:
“Attention is drawn to the effects on his right knee from his previous sporting injuries, particularly at soccer and specifically with the injury to the anterior cruciate ligament, which later necessitated reconstruction.”
The Medical Assessor made brief comment on the other evidence and medical opinion which was before him as follows:
“Specialist Orthopaedic Surgeon, Dr Peter Berton who operated on Mr Green’s knees advised in his report of 02/02/99 that the major condition affecting the right knee at that stage was his sporting injuries with a modest contribution from his tiling job. On the left side there was no history of sporting our any other injuries and the condition of the left knee was considered to be due to his tiling job.
Specialist Orthopaedic Surgeon, Dr Alan Hopcroft in his report of 26/07/22 assessed a right leg impairment of 25% and on the left 15%. He applied new deduction for pre-existing conditions. With great respect I believe this would have been appropriate.
Specialist Orthopaedic Surgeon, Dr Robin Diebold in his report of 25/11/22 assessed 15% impairment of the right leg, which was due to the sporting injuries and not to his occupation. On the left side he assessed an impairment of 5%.
My assessment comes somewhere in between those of Dr Hopcroft and Dr Diebold. Bearing in mind that in his job as a tiler, he would normally be squatting with both legs and kneeling on both knees, I would anticipate that the damage from this occupation to each knee would be similar.”
The Medical Assessor explained his reasons for making a deduction of one-half in respect of the right leg at or above the knee assessment:
“There has been a lot of damage to the right knee due to his previous sporting injuries. I am therefore persuaded that half of the condition of the right knee is due to his previous sporting injuries and particularly the injury to the right knee where the anterior cruciate ligament was damaged.
There is no pre-existing condition of the left knee. Therefore, the impairment of the left knee remains at 10% and the impairment on the right side would be reduced from 20% down to 10%.”
A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed.
The MAC must be read as a whole. The Medical Assessor has had clear regard to the available evidence about the pre-existing sporting injury to the knee (ACL) which necessitated surgery. He has had regard to the work injury, which is the nature and conditions of employment as a tiler involving repetitive strain on both knees including squatting. There is no evidence before the Medical Assessor that the work as a tiler impacted the right knee more than the left knee. The Medical Assessor takes into account the impact of his work on both knees stating:
“Bearing in mind that in his job as a tiler, he would normally be squatting with both legs and kneeling on both knees, I would anticipate that the damage from this occupation to each knee would be similar.”
The impairment of the right knee exceeds the left knee and the Medical Assessor has had clear regard and provided a clear explanation for how the pre-existing injury to the right knee has contributed to the overall level of impairment assessed for the right knee.
The Medical Assessor has taken into account the history and the available evidence that clearly demonstrates the prior condition of the right knee as a result of a sporting injury, the need for surgery as a result of the sporting injury. He has confirmed that history with the appellant and it is supported by the available evidence, including the evidence of the treating surgeon. The Medical Assessor clearly explains as follows:
“Mr Green gives a history of sporting injury to his right knee which goes right back to the early 1990s. His clinical management has included an ACL reconstruction. More recently there has been further deterioration of the right knee and also of the left knee. This is predominantly due to his occupation in his own self-employed wall and floor tiling business. A lot of this necessitated squatting and being on his knees with operating quite heavy weights of floor and wall tiles and also bags of adhesive. This is identified as having resulted in further deterioration of each knee. He has long since ceased this occupation and his subsequent activities would not have caused significant dysfunction of his knees. At this assessment he continues to have dysfunction of the knees. The right knee is more severely affected than the left.”
In this context of the available evidence, the Medical Assessor has exercised his clinical judgment when making an assessment under the Table of Disabilities and he states:
“There has been a lot of damage to the right knee due to his previous sporting injuries. I am therefore persuaded that half of the condition of the right knee is due to his previous sporting injuries and particularly the injury to the right knee where the anterior cruciate ligament was damaged.”
The Appeal Panel can discern no error when the MAC is read as a whole in the Medical Assessor assessment that the pre-existing condition of the right knee has contributed to the overall level of permanent impairment assessed under the Table of Disabilities and the Medical Assessor has made no error in making a deduction of one-half under s 323.
Accordingly, the Appeal Panel will confirm the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on
31 July 2023 should be confirmed.
0
2
0