Hazara v QW Painting Group Pty Ltd
[2021] NSWPICMP 55
•19 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hazara v QW Painting Group Pty Ltd [2021] NSWPICMP 55 |
| APPELLANT: | Mohammed Hazara |
| RESPONDENT: | QW Painting Group Pty Ltd |
| APPEAL PANEL: | Member William Dalley Dr James Bodel Dr Roger Pillemer |
| DATE OF DECISION: | 19 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Allegation of error in respect of alleged failure to give adequate reasons for assessment of WPI based on range of motion and failure to give adequate reasons for section 323 deduction of 25%; Medical assessor had considered range of motion and diagnosis-based assessment and correctly selected range of motion as giving the higher assessment of WPI; MAC demonstrated that medical assessor had adopted the same methodology as the appellant worker’s independent medical expert; Section 323 deduction was validly based on report of MRI scan showing pre-existing condition; Held- the medical assessor had set out the evidence upon which he had based the WPI assessment and the deduction pursuant to section 323; those assessments were open to the AMS on the evidence and no error or adoption of incorrect criteria was demonstrated; reference to Campbelltown City Council v Vegan and others and Cole v Wenaline; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2020 Mohammed Hazara lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 December 2020. The Medical Assessor, Dr Meakin, was at the time of assessment, appointed as an Approved Medical Specialist (AMS) and will be referred to in these reasons as “the AMS”.
The appellant relies on the following grounds of appeal under section 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 grounds 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 section 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, 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
The appellant, Mohammed Hazara, suffered a twisting injury to his left knee on 15 September 2017 in the course of his employment as a painter with the respondent, QW Painting Group Pty Ltd. Following radiological investigation, Mr Hazara was referred to an orthopaedic surgeon, Dr Constantine Glezos, who performed a partial medial meniscectomy on 29 November 2017.
Mr Hazara undertook physiotherapy but his knee symptoms worsened. A CT scan in January 2018 demonstrated further pathology and Dr Glezos proposed a two-stage surgical procedure. The first stage, involving arthroscopic debridement and bone graft of the femoral condyle, was carried out on 27 September 2019. Mr Hazara was reviewed by Dr Glezos on a number of occasions following that surgery but performance of the second stage, anterior cruciate ligament reconstruction, had not been carried out at the time of examination by the AMS on 25 November 2020.
On 17 June 2020 Mr Hazara was examined by an independent medical expert, Associate Professor Nigel Hope, at the request of Mr Hazara’s legal representatives. Associate Professor Hope recorded restricted range of motion in the left knee and calculated 18% whole person impairment applying Table 17-10 of AMA 5.
A claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) was made by Mr Hazara’s legal representatives in accordance with the assessment of Associate Professor Hope.
Mr Hazara was examined by an independent medical expert, Dr Robert Breit, at the request of the insurer. On examination Dr Breit noted “somewhere between 5 and 10° of fixed flexion and he can flex the knee to 100°.”
Dr Breit noted that Mr Hazara’s medical records included a record of an injury to the left knee in February 2014. An MRI scan had been performed on 5 February 2014 demonstrating pathology in the left knee at that time.
Dr Breit was inclined to attribute impairment in Mr Hazara’s left knee to the 2014 injury but reported:
“Because you have sanctioned arthroscopic surgery and he has had a partial medial meniscectomy, in my opinion there is liability for the statutory impairment as per AMA Guides Chapter 17 Table 17.33. Any other associated impairment from his knee claim is not compensable.
Given the further information, I would indicate that maximum medical improvement has been reached with respect to your sanctioned surgery and as such utilising SIRA Guides, Chapter 3 and AMA Guides Chapter 17, paragraph 17.2 J and Table 17-33, page 546, there is 1% WPI.”
The medical dispute in respect of the extent of WPI attributable to injury on 15 September 2017 was referred for assessment to the AMS who examined Mr Hazara on 25 November 2020. The AMS assessed 12% WPI. The AMS then deducted one quarter of that assessment, giving a final assessment of 9% WPI in respect of the subject injury.
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 it was not necessary for the worker to undergo a further medical examination because no error or application of incorrect criteria was established[1].
[1] 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.
The appellant alleged error with respect to two aspects of the MAC. The first complaint is that the AMS fell into demonstrable error; “in that his reasoning process was not exposed when he made his assessment of the appellant’s range of movement under figures 17.0, 17.3, 17.33 and 17.2 of AMA 5.” The second complaint addresses the deduction of one quarter by the AMS pursuant to section 323 of the 1998 Act from the assessed WPI submitting that the deduction was not open on the evidence and further submitting that the AMS had failed to provide reasons for assessing a deduction greater than one tenth pursuant to section 323 (2).
In reply, the respondent submits that the AMS has adequately explained the reasons for his assessment both with respect to the overall assessment of WPI and the deduction pursuant to section 323 of the 1998 Act.
FINDINGS AND REASONS
The procedures on appeal are contained in section 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.
With respect to the issue of the assessment of WPI (described by the appellant as “ground one”), the appellant submitted:
“The basis of the WPI was a restriction in the range of movement as set out on page 4 of the MAC [. In] that summary no worksheets or calculations of how the restriction of range of movement is given. The appellant submits that this is a demonstrable error pursuant to section 327(3) (b). Clearly an AMS must [provide] reasons that show how he arrived at his decision (see Campbelltown City Council v Vegan (2007) NSWCA 217 particularly Bastin [sic – Basten JA] at Para 121)[. The] AMS has not given enough reasons for the medical appeal panel or the parties to discern how he came to his findings regarding the whole person impairment he arrived at.”
The Panel does not accept that submission. Having reviewed the MAC and the evidence available to the AMS, the Panel is the view that the AMS has provided adequate reasons in accordance with the Guidelines for his assessment.
Assessment of WPI in accordance with the Guidelines requires that the AMS select the appropriate method or methods of assessment in accordance with Table 17-1 of AMA 5[2]. In the present case the AMS selected functional assessment, based on range of motion and diagnosis-based assessment, having regard to ligament injuries and meniscectomy.
[2] P 525.
The AMS assessed range of motion:
“With reference to the Guidelines and Figures 17.0 AMA 5, flexion to 105° equals 10% lower extremity impairment. Extension to 10° equals to 20% lower extremity impairment. Such impairments are added – 30 (sic) lower extremity impairment.”
Reference is made to Table 17.3 AMA5, a 30% lower extremity impairment equates to a 12% whole person impairment.” (Original emphasis)
(The reference to “Figure 17.0 AMA 5” is clearly a slip. No such figure is found in AMA5 but the context indicates that the AMS was referring to Table 17-10 of AMA5[3].)
[3] P 537.
The Panel notes that this method of assessment, based upon Table 17-10, was the method chosen by Associate Professor Hope in his report dated 17 June 2020 relied upon in support of Mr Hazara’s claim for lump-sum compensation. Associate Professor Hope provided a table:
1. Measure left knee range of motion
Motion
◦ Range
% WPI
AMA5 reference
Flexion
90
4
Table 17.10 page 537
Flexion contracture
20
14
2. Add each unit of motion impairment
Total WPI
18
Chapter 17 page 533
The AMS then considered diagnosis-based assessment:
“At the time of today’s assessment with reference to Table 17.3 severe cruciate ligament laxity equates to a 10% whole person impairment (25% lower extremity impairment). It is also noted in Table 17-33 that a partial medial meniscectomy equates to a 1% whole person impairment (2% lower extremity impairment).”
(The reference to Table 17-3 is also a slip. Again it is clear from the context that it is Table 17-33 that is referred to, as noted in the second sentence of the paragraph quoted.)
The respondent’s independent medical expert, Dr Breit, relied on the diagnosis-based method of assessment in his report dated 19 August 2020 which was considered by the AMS. His observations are noted above.
Having assessed Mr Hazara in accordance with these two methods, the AMS observed:
“With reference to Table 17.2 AMA 5 – Guide to the Evaluation of the appropriate combinations of evaluation methods – it is noted that the range of motion method may not be combined with a diagnosis-based estimate. The higher impairment is, therefore, utilised 12% whole person impairment.” (Original emphasis).
That statement correctly reflects the provisions of Chapter 17.2 of AMA 5 and Table 17-2.
The assessment of 12% WPI pursuant to the range of motion method is made in accordance with Table 17.10 which relevantly provides:
Table 17-10 Knee Impairment
Whole Person (Lower Extremity) Impairment (%)
Motion
Mild 4% (10%)
Moderate 8% (20%)
Severe 14% (35%)
Flexion
Less than 110°
Less than 80°
Less than 60°+ 1% (2%) per 10° less than 60°
Flexion contracture[4]
5° – 9°
10° – 19°
20° +
[4] equates to extension.
The balance of the Table is not applicable as there was no suggestion of any varus or valgus deformity in any of the material. As noted above, the report of Associate Professor Hope, upon which Mr Hazara’s claim for lump-sum impairment was based, adopted the same range of motion assessments as adopted by the AMS, although with differing measurements of the extent of the range.
The material facts upon which the AMS based his assessment are clearly set out in the MAC. Those findings relevantly related to the range of flexion exhibited by Mr Hazara upon examination which the AMS found to be 105° and flexion contracture (extension) to 10°. The AMS then correctly applied Table 17-10 to assess the degree of lower extremity impairment. The AMS next applied Table 17-3 to convert lower extremity impairment to WPI.
The absence of the worksheet is of no significance as the two relevant ranges of motion, flexion and extension (flexion contracture), are set out in the body of the MAC. No calculation is required other than reference to the relevant Tables noted above.
Notwithstanding the incorrect references to AMA 5, it is clear from the reasons provided by the AMS that he assessed Mr Hazara in accordance with the Guidelines, giving consideration to the methodology adopted by the respective independent medical experts, Associate Professor Hope and Dr Breit, and appropriately selecting the higher assessment in accordance with Chapter 17.2 of AMA 5; “If more than one method can be used, the method that provides the high rating should be adopted”[5].
[5] P 527.
The Panel is satisfied that the AMS has provided adequate reasons for his assessment of the overall level of impairment in the left knee in accordance with the requirements outlined by Basten JA in Campbelltown City Council v Vegan and others[6] at [121]. That assessment has been conducted in accordance with the Guidelines and no error has been demonstrated, nor does there appear to be any adoption of incorrect criteria. The appeal with respect to that aspect is not made out.
[6] [2006] NSWCA 284.
With respect to the deduction pursuant to section 323 of the 1998 Act the appellant submitted:
“In regards to the finding of 25% for the section 323 deduction of the left lower extremity the appellant submits this was excessive. When one considers the test set out by Schmidt J in Cole v Wenaline (2010) NSWSC 78, particularly at paragraphs 32 to 38 it is clear that it is appropriate to determine first the amount of WPI impairment (which was done) and then determine what part the pre-existing condition played in (i.e. the tears in the Proximal ACL and medial meniscus) the determination of the condition that leads to the WPI found in the left lower extremity.
In his reasoning for determining the 25% deduction for the left lower extremity, the AMS stated that ‘the appellant continued working…’ [The AMS] accepted the [appellant] when he says he does not recall having any pre-injury symptoms and can’t recall having the MRI on 5 February 2014 (see paragraph 11(b) (1) on page 8 of the MAC).
There is no reason put forward by the AMS as to why on this finding that the range of movement immediately before the injury effected (sic - affected) the appellant’s post injury WPI. In this case then, 10% statutory deduction under section 323 is the only appropriate deduction for the left lower extremity.”
Section 323 of the 1998 Act provides:
“WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998 - SECT 323
Deduction for previous injury or pre-existing condition or abnormality
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.
Note : Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and Associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.”
In Cole v Wenaline (Cole) (referred to by the appellant, supra) Schmidt J said (at [29]-[30]):
“[29] The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
[30] Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”
The AMS reported:
“It is noted that on 4 February 2014 there are general practitioner notes relating to a left knee twisting injury with Mr Hazara being unable to extend his left knee. He states that he cannot remember this incident nor indeed the consultation with his general practitioner. There is an MRI scan of the left knee performed on 5 February 2014 with referral by Dr Noorzad, his current practitioner and also at that time, relating to a twisting injury of the left knee and inability to extend and swelling. I reviewed this MRI scan report, which was reported by Dr George Koulouris. The findings were that of a subacute chronic full thickness disruption of the proximal anterior cruciate ligament with a complex tear of the body and posterior horn of the medial meniscus. There is also a comment on the lesion within the lateral femoral condyle consistent with a lipoma. There was minimal blunting of the inner margin of the lateral meniscus and the posterior cruciate ligament and collateral ligaments were intact. Mr Hazara states he cannot remember the scan being taken and does not know of its whereabouts.”[7]
[7] MAC page 3.
As pointed out by Her Honour in Cole, a decision as to the extent, if any, to which the extent of impairment assessed by the AMS was due to the previous injury is required to be based on evidence. In the present case the AMS set out the report in respect of the MRI scan of the left knee on 5 February 2014:
“MRI scan is comparable with subacute to chronic full thickness disruption of the proximal anterior cruciate ligament with associated complex tear of the body and posterior horn of the medial meniscus as well as a minimal inner margin radial tear of the lateral meniscus. The articular cartilage of all three compartments is normal. There is a hyper intense lesion most likely that of a lipoma. There is no evidence of parameniscal cyst. The posterior cruciate and collateral ligaments were intact. No abnormality of the posterolateral corner.”
The AMS also recorded the findings in respect of the MRI of the left knee on 3 October 2017:
“Chronic right high-grade anterior cruciate ligament injury with laxity in the absence of acute stigmata. There is no evidence of effusion or bone marrow contusion. The medial and lateral collateral ligaments are intact. There is a non-displaced but potentially unstable flap tear of the medial meniscus. The lateral meniscus demonstrates mild free edge fraying but without a tear. Collateral and cruciate ligaments are intact. Within the lateral femoral condyle is a non-aggressive appearing osseous lesion demonstrating a hyper intense T1 signal with predominant fat saturation. This measures 2.5 x 2.9 x 2.1 cm in size and most likely represents an intra osseous lipoma – Stage II (Milgram classification). There is no surrounding bone marrow oedema.”
The AMS also recorded the reports in respect of the CT examination on 31 January 2018, the further MRI scan on 9 August 2019 and a CT scan of 31 March 2020. The AMS commented:
“Mr Mohammed Ali Hazara has a history of a left knee injury in February 2014 where he was referred by his current continuing local practitioner for an MRI scan which demonstrated a long-standing anterior cruciate ligament injury along with the medial meniscus injury in the presence of a lateral femoral condyle intra-osseous fatty body, most likely that of a lipoma. Mr Hazara has no recollection of these events, despite close questioning. The clinical report from the local practitioner on 5 October 2017 also makes no reference to this past history, which does exist.”[8]
[8] MAC, para 7, page 5
The clear inference from the general practitioner’s notes and the report of the MRI scan is that Mr Hazara had suffered an injury to his left knee prior to the subject injury. The nature of that previous injury was described by the AMS as “left knee – chronic anterior cruciate ligament lesion with medial meniscus partial tear”.[9] The appellant does not dispute the finding of previous injury by the AMS. Rather, it is the extent of the deduction to be made pursuant to section 323 that is the subject of this aspect of the appeal.
[9] MAC, para 8f, page 6
In proceeding to consider the extent to which the effect of the previous injury contributed to the assessed level of WPI, the AMS reported:
“11 DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Chronic anterior cruciate ligament injury, old medial meniscus injury.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(ii)On accepting Mr Hazara’s history, he has been able to continue to work with the injury pattern within his left knee, noted on the earlier clinical assessment and in the MRI scan on 5 February 2014. Although he cannot remember the actual incident or even remember having had the MRI scan, I accept that he was asymptomatic prior to the current work injury on 15 September 2017 with that particular injury unmasking his basic instability. I again state that I find great difficulty in accepting Mr Hazara’s history that he cannot remember any of the previous left the history between 2014 and 2017, nor that he had such a scan performed.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of section 323 (2) I assess the deductible proportion as 1/10 (can only be used when not at odds with the available evidence).
N/A
In my opinion the deductible proportion is one quarter for the following reasons:
(i)The MRI scan results of the left knee on 5 February 2014 that on 3 October 2017 are essentially identical. I would suggest that it was the stability of the posterior cruciate ligament, the posterolateral corner and the collateral ligaments and indeed the lateral meniscus that allowed him to continue working with no admitted symptoms between late 2014 and the injury in September 2017. The pre-existing anterior cruciate ligament and medial meniscal injury, however, are a significant finding and cannot be ignored.”
In the opinion of the Panel, those observations and the reasoning of the AMS satisfy the requirements laid out by Her Honour in Cole, setting out the evidence upon which the AMS based his assessment of the extent of the deduction. The pathology observed in the 2014 MRI is of a nature likely to give rise to impairment. The reasoning of the AMS shows that he did not accept that a deduction of one tenth was “not at odds with the available evidence”.
The extent assessed by the AMS is a matter of clinical judgement and the Panel cannot substitute its own opinion unless error by the AMS is established with respect to the assessment of the deduction. The AMS has weighed the evidence of the pre-existing pathology and his knowledge of the likely consequences of that pathology against the evidence of lack of complaint, symptoms or treatment in the left knee from 2014 until the subject injury.
It was open to the AMS as a matter of clinical judgement to conclude that the pathology demonstrated in the 2014 MRI scan was significant and likely to contribute to the subsequent impairment to an extent greater than one tenth. The AMS was entitled to consider that the evidence that Mr Hazara was able to work on without complaint of symptoms and without treatment in the intervening period would warrant an assessment of a deduction less than one half.
Although other minds might differ as to the extent of the deduction, the Panel is satisfied that the conclusions and reasoning of the AMS were open to him on the evidence and that no error is shown and no application of incorrect criteria has been established. The Panel is satisfied that the grounds of appeal with respect to the deduction pursuant to section 323 of the 1998 Act has not been established.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 December 2020 should be confirmed.
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