Hansen v Waterway Constructions Pty Ltd - [2021] NSWPICMP 26

DETERMINATION OF APPEAL PANEL
CITATION:	Hansen v Waterway Constructions Pty Ltd [2021] NSWPICMP 26
APPELLANT:	James Hansen
RESPONDENT:	Waterway Constructions Pty Ltd
APPEAL PANEL:	Member Deborah Moore Dr James Bodel Dr David Crocker
DATE OF DECISION:	18 March 2021
CATCHWORDS:	WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in failing to evaluate scarring, failed to evaluate any impact on activities on daily living (ADL’s) and failed to evaluate the left toe injury, including sensory loss and other features; Held- the Panel agreed; the appellant was re-examined to assess outstanding matters and a fresh MAC issued; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

M1On 9 November 2020 James Hansen lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 14 October 2020.

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.
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.
The WorkCover Medical Assessment Guidelines 2006 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 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the MA failed to evaluate scarring, failed to evaluate any impact on activities of daily living (ADL’s) and failed to evaluate the left toe injury, including sensory loss and other features.

EVIDENCE

Documentary evidence

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.

Further medical examination

Dr James Bodel of the Appeal Panel conducted an examination of the worker on 5 March 2021 and reported to the Appeal Panel.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in a number of respects, as set out in paragraph 7 of these reasons.
In reply, the respondent concedes that the MA did make a demonstrable error by failing to examine the appellant’s scarring, but that there were no other errors.
Re-examination may only be conducted once an error has been identified (see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792).
We agreed with the appellant’s submissions that the MA had erred in some respects, and accordingly confirmed that a re-examination was required.

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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the left lower extremity (ankle/foot, toes, peripheral nerves), the right lower extremity (knee) (consequential), the lumbar spine (consequential) and skin resulting from an injury on 17 May 2011.
The MA obtained the following detailed history:
“He worked as a crane operator since the beginning 2010. He suffered a work injury on 11 May 2011. He tripped when he stepped back on a piece of timber. He fell and ended up with fracture to the left ankle. It was a minimally displaced distal fibular shaft fracture. He was attended in John Hunter Hospital initially but he was sent back to Wollongong as he lived in the region. He was decided to be treated conservatively when referred to orthopaedic surgeon Dr Fred Nouh, who advised him to be on non-weight bearing and keeping the short leg cast for roughly about three months. However, on removal of the cast, the progress was not satisfactory. I noticed in one of the correspondence of Dr Fred Nouh during the initial three months of cast management, there was a mentioning of the fracture slightly displaced but it was decided to still continue with the conservative treatment. He was referred to do physiotherapy after the cast removal but there was a lot of trouble. He was reviewed by Dr Nouh in September 2011, roughly over two months after the cast was removed and he was advised to have an MRI scan, which confirmed there was diastasis of the syndesmosis, with rupture of the anteroinferior tibiofibular ligament.
Dr Nouh arranged him to have an operation on 13 October 2011 for the ankle arthroscopy and for the insertion of the diastasis screw, as well as a tight rope. He was then advised to have non-weight bearing walking. The screw was removed again on 19 January 2012. Then he started to weight bear on the left foot. Despite the operation, he still complained of a lot of pain. Most of the pain he said, was on the anterolateral aspect of the left ankle. It was constant sharp, stabbing, electrical shock type of pain. Because of that, another MRI scan was done on 9 March 2012. The report mentioned the distal fibular fracture was not united. The diastasis screw was removed but there was a fracture talus which was not present before. The radiologist recommended to do a CT scan but the CT scan failed to pick up any talus fracture. There was also a suggestion to do a bone scan. Dr Nouh referred him to see Dr O’Carrigan for a second opinion. The consultation happened on 30 March 2012.
The clinical examination confirmed there was full range of movement in the subtalar joint. The ankle joint is stable. Dr O’Carrigan reviewed the MRI, which confirmed the cartilages were good, no diastasis. He did not think it was a stress fracture of the talus, instead it was just disused osteoporosis. Dr O’Carrigan recommended him to have orthotic because he was noticed to have pre-existing bilateral symmetrical flexible flat foot, or what we call planovalgus feet. But the orthotic was not helpful and he also had a steroid injection in the syndesmosis, which helped with some of the pain.
James was recommended by the GP to see Dr Anthony Cadden, another foot and ankle surgeon in Wollongong. The review was on the 5 October 2012. The examination confirmed normal alignment of the hind foot and ankle. No instability noticed in the ankle joint. Dr Cadden’s opinion was that there may be some nerve injury relating to the superficial peroneal nerve with the surgery of the insertion of the diastasis screw and tight rope on the distal fibula shaft area. He was advised to have some cream and TENS machine for the neuropathic pain and also injections of the sinus tarsi. Ultimately, he had another operation by Dr Cadden on 11 June 2013. Dr Cadden arranged him to have another MRI preoperatively, which did not show any problem of instability or diastasis. There is only meniscoid lesion on the anterolateral gutter. There was no cartilage problem, no talar dome lesion. Certainly, that was confirmed by the arthroscopy done on the 11 June 2013. Ankle being stable, only some scar tissues in the syndesmosis area but no diastasis. Unfortunately all these failed to relieve all his pain. He still complained of a lot of pain on the left ankle over the anterolateral aspect. This constant stabbing, electrical shock type of pain. He was referred on from
Dr Cadden to Dr Ian Davidson for pain control. Dr Davidson then referred him to
Dr Speldewide, with the review first in March 2014 for the management of the chronic pain, which was mainly on the anterolateral aspect of the left ankle. The clinical diagnosis was neuropathic pain for the damage to the cutaneous branch of the superficial peroneal nerve.
Due to the long history and significant pain, ultimately he had the spinal stimulator put in, in 2015. He found the spinal stimulator is good, it helped with 50% of the pain. The pain now is not as bad, duller but still have constant burning type of pain on the anterolateral aspect of the ankle. Also around four years ago, sometime after the insertion of the spinal simulator, he claimed due to difficult to weight bear on left leg, constant use of two crutches, he started to develop right knee pain mainly in the front of the right knee. There was no obvious swelling or stiffness. Also low back pain, only in the belt area without radiation for the past few years. Certainly, no sciatica, no lower limb neurology.”
Present symptoms were described as follows:
“He gets dull constant ache in the left ankle, like a chronic sprained ankle but he does not feel the ankle to be loose. It is stiff, uncomfortable. He prefers to wear high support shoes, give the external support on the ankle rather than walking on barefoot or with normal shoes. The spinal stimulator helps with the pain but lately, the pain gradually increased but still better than beforehand. He says he can only walk 50m and the pain comes back. The ankle does not feel loose and there is no instability. The knee still remains sore in the anterior aspect on the right knee. The low back is also painful in the midline of the low back area radiating to the side in the belt area, like a typical low back pain.”
As regards his social activities and activities of daily living (ADL’s), the MA said: “There is no major problems, just relating to not able to stand or walk for too long on the left leg.”
The MA then set out his findings on physical examination and the radiological and other material he had before him.
The MA then summarised the injuries as follows:
“Mr James Hansen tripped and fell on 17 May 2011, ended up with fracture fibula shaft with diastasis. It was treated initially conservatively but then he was noticed to have diastasis. So, fixation of that was done five months later, but the surgical progress was not good. He has constant problem and has been reviewed by different specialists, together with repeated surgery and still failed to find significant problem, except chronic neuropathic pain due to damage of the superficial peroneal nerve. Ultimately, he required a spinal stimulator to be put in and still have trouble with the left ankle. Four years ago, about five years after the injury, he started to complain of right knee pain and low back pain but no significant pathology was able to be identified on investigation.”
He added:
“I believe there is consistency of the clinical presentation to the history of injury, but patient probably demonstrated unusual pain behaviour as he ended up with chronic pain issues, which required insertion of a spinal stimulator and still have very poor outcome at the end.”
The MA assessed 7% WPI in respect of the left lower extremity (ankle, foot, toes, peripheral nerve), 0% WPI in respect of the right lower extremity and 5% WPI in respect of the lumbar spine.
He explained his reasons for assessment as follows:
“To assess the WPI in relation to the right lower extremities. I cannot find any obvious abnormality on clinical examination. Radiological investigation was normal. The only abnormality I can pick up, probably is the patellofemoral joint crepitus. There is pseudo laxity of the medial collateral ligament but it is bilateral and symmetrical. To assess WPI of the right lower limb, it has to be 0% despite patient had pain.
In relation to the low back due to the favouring the use of the left leg and probably relating to the insertion of the spinal stimulator as well, he started to show some loss of movement and muscle guarding. Using AMA Guide 5th Edition, table 15-3, this will be a case of DRE lumbar category 2 with 5% WPI because there is asymmetric loss of movement, muscle guarding and complain of pain but without radiculopathy. I do not think there is any permanent impairment to activities of daily living.
In relation to the left lower extremity. I will have to use the loss of movement in the ankle, which based on AMA Guide 5th Edition, table 17-11, the extension was just about neutral and that would give rise to 3% WPI. The loss of movement in inversion and eversion from table 17-12 will give 1% each. Altogether, that will be a 5% for the loss of movement. In relation to the nerve, he is definitely have [sic] superficial peroneal nerve problem. Using AMA Guide 5th Edition, table 17-37, that will be a 2% WPI. Altogether for the left lower extremity, that will be a 7% whole person impairment.”
The MA then commented on the other medical opinions as follows:
“I cannot agree with the assessment of Dr Patrick in relation to the low back. I do not think there is any permanent impairment to ADL. I agree this is a case of DRE lumbar category 2. In relation to the knee, the pseudo laxity of the MCL is bilateral and symmetrical, so I cannot agree with him. In relation to the foot, we more or less both agree in the use of loss of movement. I do not think the toes deformities are related to the injury. The great toe arthritis according to the patient only started less than two years ago and I cannot see any obvious deformities of the lesser toes. In relation to the nerve, I can also not agree with Dr Patrick. He assessed the nerve problem to the superficial peroneal nerve and medial and lateral plantar nerves. But, if we go back to look at all the specialists’ assessment from Dr Tim O’Carrigan, Dr Anthony Cadden and the pain specilaists, Dr Speldewinde, they all labelled him having chronic nerve pain due to injury to the cutaneous branch of the superficial peroneal nerve. There is nothing wrong with the lateral and medial plantar nerve and he has no complain of sensory disturbance of the plantar surface of the left foot. I can also not agree with him using the hind foot 10˚ valgus alignment as assessment because he has hind foot valgus alignment bilaterally and symmetrical. If I have to assess, the right is actually even worse. Because he has pre-existing flat foot deformities, what we call planovalgus deformities, so the heel must be in valgus and it is worse on the right side.
I more or less concur with the opinion of Dr Panjratan in relation to the ankle and hind foot. Except I cannot agree with any permanent impairment to the great toe related to this injury. I am probably different from him in assessment of the low back.”
Dr Bodel reported to the Panel on 9 March 2021. He obtained a history of the injury consistent with that of the MA.
He reported his findings on clinical examination and other matters as follows:
“Mr Hansen is now 51 years of age. He is comfortable throughout the interview but rises slowly. He has a mild flat-footed gait pattern on the left-hand side. He undresses for examination without difficulty.
He has tenderness on palpation at the lumbosacral junction on the left side and guarding in that area. He reaches forward in flexion with his hands to his knees. There is backache at this point and also on extension with a reduced range of lateral bending to the right. There is asymmetry of back movement.
Straight leg raising is 70 degrees on each side and limited by hamstring tightness. There is no evidence of nerve root irritability in either leg. There are no clinical signs of radiculopathy.
He has quite marked sensitivity in the scar over the lateral aspect of the left ankle. The scar is a well healed scar with no tethering to underlying deep structures but it is very sensitive to palpate. It is a thin clear scar which is barely perceptible. The sensitivity does however rate as a mildly complicated surgical scar in my view, with a 1% Whole Person Impairment under the TEMSKI scale.
He has a restricted range of ankle movement in the left ankle…
There is weakness of resisted ankle movement on the left-hand side but no objective sign of radiculopathy in the lower limbs. There is some swelling of the metatarsophalangeal joint of the left great toe which is due to hallux rigidus which is a constitutional ailment in this circumstance. He has retropatellar crepitus in the region of the right knee but no restriction of knee movement on either side.
This gentleman has asymmetry of back movement in the lower part of the back with tenderness on the left-hand side and asymmetry of back movement on flexion, extension and lateral bending. There is no clinical evidence of radiculopathy in the lower limbs. There is sensitivity in the scar on the left ankle but no sign of distal neurological abnormality or peripheral nerve lesion. There is the restricted range of ankle movement which I have recorded above and there is retropatellar crepitus in the front of the right knee.

I note that I have been asked to re-assess the following items:
-    Scarring
-    ADLs
-    The left great toe
This gentleman’s Activities of Daily Living have been moderately compromised on review of his clinical history here today. He has interference with sport and leisure activities and household maintenance and cleaning activities but is able to manage personal care items without particular difficulty. I rate this as a 2% Whole Person Impairment loading.
In the region of the left great toe he has hallux rigidus which is a constitutional ailment and is unrelated to his injury. He does not have this deformity on the right-hand side. As I have indicated above, the scarring rates as a 1% Whole Person Impairment because of the sensitivity in the scar, otherwise the scar is pale and barely perceptible but not tethered to underlying deep structures.
In the Table, I would therefore confirm that the 7% Whole Person Impairment for the left lower extremity is consistent with the clinical findings seen here again today. For the right lower extremity, I would indicate that there is a 2% Whole Person Impairment for painful retropatellar crepitus in the region of the right knee. In the lumbar spine there is a 2% Whole Person Impairment loading for interference in Activities of Daily Living for the reasons outlined above.
These three individual ratings are therefore combined using the Combined Values Chart on Page 604 of AMA5 to give a total of 16% Whole Person Impairment.”

The Panel agrees with the findings and assessments of Dr Bodel.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 October 2020 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

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 Yiu-Key Ho 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)
1. Left lower extremities (ankle, foot, toes, peripheral nerve	17 May 2011	Table 17-37, Table 17- 31, Table 17-11and12	7%	0%	7%
2. Right lower extremity (knee)	17 May 2011	2%	0%	2%
3. Lumbar spine	17 May 2011	7%	0%	7%
4.Scarring (TEMSKI)	17 May 2011	1%	0%	1%
Total % WPI (the Combined Table values of all sub-totals)					17%

Deborah Moore
Member
Dr James Bodel

Medical Assessor

Dr David Crocker

Medical Assessor

18 March 2021