Howe v Mullane Construction Plumbing Pty Ltd
[2023] NSWPICMP 458
•15 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Howe v Mullane Construction Plumbing Pty Ltd [2023] NSWPICMP 458 |
| APPELLANT: | Stephen Howe |
| RESPONDENT: | Mullane Construction Plumbing Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 15 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment in respect of the right knee and scarring; whether the assessor applied the TEMSKI criteria in respect of scarring; whether he failed to consider or assess ligament laxity in the right knee; whether he failed to consider or assess crepitus or arthritis of the knee; Held – Medical Assessment Certificate revoked and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Howe, appeals from the Medical Assessment Certificate of
Medical Assessor Anderson dated 6 April 2023.Medical Assessor Anderson examined the appellant on 7 March 2023 and assessed a 9% whole person impairment (WPI) (9% right lower extremity – knee, 0% scarring) as a result of injury on 11 July 2019.
He indicated at [10b] that he assessed the knee on the basis of:
(a) range of motion affected by a flexion contracture between 10 degrees and 19 degrees, which yields 8% whole person impairment or 20% lower extremity impairment in accordance with Table 17-10, American Medical Association Guides to the Evaluation of Permanent Impairment (5th edition) (AMA5), and
(b) sensory dysfunction of the lateral sural nerve, which yields1% whole person impairment or 2% lower extremity impairment in accordance with Table 17-37, AMA5. His reference to Table 17-35 is a clerical error.
He made no deduction for a pre-existing condition.
The appellant submits that the Medical Assessor erred:
(a) in his assessment of scarring, by failing properly to apply the criteria in Table 14.1 of the Guidelines, or to give adequate reasons;
(b) by failing to consider, test for or assess laxity of the cruciate ligament, and
(c) by failing to consider or assess impairment in respect of arthritis or crepitus.
No error is alleged in respect of the assessment of range of motion or of the condition of the lateral sural nerve, or in respect of the decision to make no deduction for a pre-existing condition.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
The parties made written submissions which have been taken into account. They are not repeated in full but are summarised briefly below.
The appellant submits as follows:
(a) With respect to scarring:
(i)the Medical Assessor assessed 0% on the basis that the scars were uncomplicated, had healed extremely well and were only minimally visible,
(ii)he did not consider the other criteria in Table 14.1 of the Guidelines – namely, whether the appellant was conscious of the scar or skin affected, whether he was able to locate it, or whether it is visible wearing usual clothing - or explain his reasoning in respect of them, and
(iii)he should have assessed 1% WPI for scarring.
(b) The Medical Assessor failed to consider and assess laxity of the right anterior cruciate ligament (ACL) in accordance with Table 17-33 AMA5:
(i)On 11 July 2019 the appellant ruptured the ACL of his right knee. Such a rupture causes instability of the knee.
(ii)On 9 August 2019 he came to surgical repair of the ACL at the hands of
Dr Young.(iii)On 18 August 2020 he came to revision surgery at the hands of Dr Kumar, to address loss of range of movement. Dr Kumar removed an internal brace placed by Dr Young and reconstructed the ACL.
(iv)On 9 December 2020, the appellant reported ‘knee instability on account of his absent ACL’ to Dr Kumar.
(v)At examination on 7 March 2023, the appellant told the Medical Assessor that ‘the knee occasionally feels as though it is going to collapse’. This was evidence of ACL laxity.
(vi)On 6 April 2022, he had complained to Dr Hopcroft that he struggled with steps and stairs and uneven surfaces.
(vii)On 18 July 2022, he had complained to Dr Harrington of instability.
(viii)In the circumstances, the Medical Assessor was obliged to consider whether there was laxity, to test for it using Lachman’s test or other appropriate test, and to assess it if present, but failed to do so.
(ix)He should have considered and applied the criteria in Table 17-33 AMA5 for mild, moderate or severe laxity, but failed to do so.
(c)The Medical Assessor should have considered and assessed arthritis and crepitus but failed to do so. Dr Hopcroft had confirmed the presence of arthritis in the right knee and assessed it in accordance with the footnote to Table 17-31 AMA5, on the basis that there was a history of direct trauma to the knee, and a complaint of patellofemoral pain and crepitation on physical examination, despite the absence of joint narrowing on
X-ray.The respondent employer submits as follows:
(a) With respect to scarring, the observations of the Medical Assessor support an assessment of 0% WPI.
(b) With respect to ACL laxity, the appellant complained to the Medical Assessor that his knee ‘occasionally feels as though it is going to collapse’. There was no record that it had collapsed.
(c) With respect to arthritis and crepitus, there was no radiological evidence of arthritis, and the Medical Assessor was entitled to rely on his examination findings.
(d) Generally, the clinical observations of the Medical Assessor are pre-eminent, and his judgment as to the significance or otherwise of the matters raised at examination were a matter for his assessment: Ferguson v State of NSW [2017] NSWSC 887 at [23].
Scarring
At [7], the Medical Assessor found that the appellant had suffered a wrenching injury to his right knee, resulting in ‘severe internal damage including a full thickness tear of the anterior cruciate ligament and partial tears of the medial and lateral menisci and the lateral collateral ligaments’. He noted continuing ‘significant dysfunction’ despite ‘three arthroscopic repair procedures which have given him improvement’.
In respect of scarring, he explained at [10b]:
“The scarring from the arthroscopic procedures has healed extremely well and was only minimally visible at this assessment. These are from standard approaches for defined elective procedures and since they are uncomplicated, rate 0% WPI.”
At [10c] he indicated that his assessment was ‘very similar to that of
Specialist Orthopaedic Surgeon, Dr Chris Harrington in his report of 26/07/222’, but observed:“Dr Harrington has included 1% for scarring, which I was not able to identify.”
Section 14.6 of the Guidelines provides:
“A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.”
Table 14.1 is the table for the evaluation of minor skin impairment (TEMSKI). It extends Table 8-2 AMA5. It lists the criteria for assessing scarring of 0%, 1%, 2%, and the ranges
3-4% and 5-9%.In applying the criteria, assessors must use the principle of best fit: Guidelines at [14.8].
The criteria for a 0% and 1% WPI differ in a number of respects, including whether the claimant is conscious of the scar, whether there is good colour match with surrounding skin or whether there is colour contrast between the skin and the scar, whether the claimant is able to locate the scar, whether there are no or minimal trophic changes, and whether suture marks are visible or barely so, whether the scar is usually visible with usual clothing, whether there is no contour defect or a minor defect, and whether there is no or negligible effect on the activities of daily living.
Unfortunately, the Medical Assessor gave no further reasons for his assessment than those extracted above. He did not expressly address any of the criteria in Table 14.1. His observation that the scar was ‘minimally visible’ could be interpreted as a finding that there was a good colour match with surrounding skin, that the scar was barely distinguishable, and that staple or suture marks were barely visible, but on any view the remaining criteria are not addressed.
In the circumstances, we are not in a position to know on appeal what his findings were on the remaining criteria, or whether his assessment involves error. His reasons for assessing 0% are not patent. The failure to consider the remaining criteria constituted a failure to take into account a material consideration and demonstrates error. The inadequacy of reasons likewise demonstrates error, requiring that the Medical Assessment Certificate be set aside and replaced.
Laxity of the right ACL
At [4], the Medical Assessor took the following history:
“… on 11/09/19, he … ended up with his right foot caught down a hole and he fell backwards. This cased a wrenching injury to his right knee. It was later identified that this had caused a complete tear of the anterior cruciate ligament and also tears to the medial and lateral menisci and the lateral collateral ligament.
There have been three surgical procedures conducted to the right knee complex. Whilst this has given him limited improvement, he continues to have gross dysfunction of the right knee.”
Under the heading, “Present symptoms”, he recorded: “The knee occasionally feels as though it is going to collapse”.
At [6], he noted that an MRI scan of the right knee performed on 23 July 2019 had shown a complete tear of the ACL, and partial thickness tears of the medial and lateral menisci and the lateral collateral ligament. He also noted that a plain X-ray of
9 August 2019 showed an ACL graft repair.At [7], he said:
“Mr Howe sustained a wrenching injury to his right knee around mid-July 2019. This resulted in severe internal damage including a full thickness tear of the anterior cruciate ligament and partial tears of the medial and lateral menisci and the lateral collateral ligaments. His clinical management has consisted of three arthroscopic repair procedures which have given him improvement, although he still continues to have significant dysfunction.”
In summary, he was aware that on the date of injury, the worker had torn his ACL and the lateral collateral ligaments, that he had come three times to surgical repair, and that the right knee continued to have gross dysfunction, and occasionally felt as though it would collapse, though he did not record it actually giving way.
It was his task to assess permanent impairment of the right knee as a result of injury. Table 17-33 (AMA5 page 546) provides impairment ratings for laxity of the cruciate and/or collateral ligaments. In effect, the appellant submits that the Table was neither considered nor applied, and no assessment was made in accordance with it. It formed part of the Medical Assessor’s task to assess whether there was laxity of the cruciate and/or collateral ligaments in accordance with the Table.
His findings on physical examination are recorded at [5]. There is no mention of testing for laxity of those ligaments. He noted, ‘The knee ligaments were firm’, but did not indicate whether he had performed formal testing appropriate to inform such a conclusion, such as the pivot shift test or other similar test. If he formally tested for ligament laxity, he did not say how, or why the results of testing produced the result that he recorded.
No finding was made or expressed in relation to which knee ligaments were firm, and no reasons – such as identifying the appropriate tests and their results - were given for such a finding.
We are left in a position where we do not know whether there was cruciate or collateral ligament laxity. We do not know what tests, if any, were performed in order to conclude that ligament laxity was either present or not present.
It follows that the reasons given are insufficient to support a conclusion that there was no ligament laxity. That demonstrates error.
Arthritis and crepitus
At examination on 6 April 2022, Dr Hopcroft recorded ‘a degree of patellofemoral crepitation’, and noted marked wasting of the right quadriceps compared to the left.
In his report of the same date, he made reference to a number of MRI scans, CT scans and X-ray of the right knee, none of which made reference to arthritis except for the report of a CT scan dated 3 April 2020 which noted – emphasis added:
“… changes of mild tricompartmental arthropathy, worse in the patellofemoral compartment.”
The appellant relies on Dr Hopcroft’s report as evidence that both arthritis and crepitus existed when he examined the worker. There is no doubt that Dr Hopcroft recorded the presence of crepitus. The ‘arthropathy’ referred to in the CT scan report might be osteo-arthritis, or it might be chondromalacia. On page 5 of his report, Dr Hopcroft diagnosed ‘post-traumatic arthritic changes with severe crepitation on the back of his knee cap’ (emphasis added). However, at the base of the same page, he assessed a 2% WPI, not for arthritis, but for chondromalacia patellae.
It is not clear whether Dr Hopcroft intended to diagnose arthritis as he said. The fact that he purported to diagnose it, even if he did not assess it, combined with his unequivocal finding of crepitus and radiological evidence of arthropathy, raises the distinct possibility that arthritis was in fact present in April 2022.
That evidence made it incumbent on the Medical Assessor to satisfy himself as to the presence or absence of both crepitus and arthritis.
At [5], he recorded his findings on physical examination relevantly as follows.
“On the right, there was a fixed flexion deformity of 12° with a maximum flexion of 120°. There was slight swelling in the right knee. The knee ligaments were firm. There was no retro-patellar or joint-line tenderness in either knee.”
He made no mention of crepitus or arthritis at all. He did flex the knee on examination. Had crepitus been present, it would have been evident. However, the absence of any mention as to its presence or absence leaves us in doubt as to whether he considered it at all and, if so, whether it was present.
Similarly, the absence of any reference to arthritis, despite the presence of arthropathy evidenced by the CT scan report of 3 April 2022, Dr Hopcroft’s mention of arthritis and his assessment of chondromalacia patellae on 6 April 2022, leave us in doubt as to whether the Medical Assessor considered whether assessable retropatellar arthritis or chondromalacia were present and, if so, his reasons for not assessing them.
In the circumstances, his reasons are not patent, and do not enable us to know whether he considered there was crepitus, arthritis or assessable chondromalacia present, or why, if they were present, he either did not assess them, or assessed 0% in respect of them.
The inadequacy of reasons also demonstrates error.
The Panel referred the worker for examination and assessment of scarring, ACL laxity and arthritis or chondromalacia by Medical Assessor Dixon, who is a member of the Panel.
Report of Medical Assessor Dixon
The report and assessment of Medical Assessor Dixon follows:
“This 52 year old claimant sustained a valgus stress injury to his right knee following an altercation at work. The assailant apparently pushed down on his leg, causing increased force with his foot caught in a hole in the ground. The claimant felt immediate pain in the knee, falling to the ground, and was subsequently referred to
Dr Jonathan Young. An MRI diagnosed a ligamentous injury to his knee with an ACL strain. He had ACL reconstruction on 9 August 2019 which included anatomical four strand hamstring ACL reconstruction using anatomical tunnels. Despite physiotherapy over several months, he was unable to regain adequate stability of his right knee with residual joint contracture and subsequently, a two stage revision cruciate repair was undertaken by Dr Jai Kumar. The first stage was on 18 August 2020 where there was removal of the scar tissue and the ACL construct, including the internal brace and removal of hardware. The second stage was on 9 February 2021 at Lingard Hospital where he had reconstruction of the ACL utilising an 8.5mm tibialis anterior allograft.Despite the revision procedures and ongoing physiotherapy, the claimant still had difficulty with range of motion of his right knee and was unable to extend the knee with a persisting flexion contracture. He had a persisting antalgic gait and was aware of audible retropatellar crepitus with limited squatting and inability to kneel. He had recurrent instability, especially on stairs and uneven terrain.
He was unable to return to work as a plumber.
On examination at the PIC Suites, 1 Oxford Street, Sydney on 4 August 2023 he was 179cm tall and weighed 83kg. His normal gait was satisfactory but he was unsteady on toe walking and had gross difficulty with heel walking due to pain and stiffness of his right knee and was unable to reproduce recurvatum on standing of the right knee. He had difficulty with squat testing which was associated with audible and palpable retropatellar crepitus.
The range of motion of his right knee was 15 degrees through to 110 degrees. There was a moderately positive anterior drawer sign and medial collateral ligament laxity and his pivot shift test for rotatory instability was mildly positive. His arthroscopic portals superiorly had healed satisfactorily but there was a 4cm scar distally which showed loss of contour and was tender and he reported it was painful if bumped, impacting on his ADLs. This scar is readily visible and has some colour contrast and is readily localised by the claimant with no visible suture marks but is visible with summer clothing. There was full sensory loss in the distribution of the lateral sural nerve of the right leg. There were mild varicose veins in his right lower leg, where there was swelling of his right ankle (he had a DVT following his first knee surgery). There was 1cm of wasting of his right thigh and right calf. There was tenderness of the medial joint line with a positive McMurray’s test.
The range of motion of his left knee was 0 degrees to 130 degrees and the left knee was stable. There was no retropatellar rub.
There were no further radiological investigations since the original Medical Assessment Certificate. Dr J. Kumar commented on the claimant’s long leg alignment films and CT scans suggested appropriate tunnelling and long leg alignment films were satisfactory.
His original MRI on 23 July 2019 showed a complete tear of the anterior cruciate ligament with partial thickness tear of the medial and lateral menisci and of the lateral collateral ligament.
Operative findings on 9 August 2019 at Lingard Private Hospital noted a positive pivot shift test and grade 3 chondral injury to the medial compartment which appeared acute and the edges of this were debrided. The medial meniscus appeared intact and the tibial surface was normal. The PCL was normal and the ACL disrupted proximally and the lateral compartment appeared normal.
In summary this claimant sustained a valgus strain of his right knee which led to an ACL reconstruction, followed by a two stage revision and he has residual instability of his right knee with post traumatic stiffness and retropatellar crepitus.
His impairment assessment is as follows.
That for the moderate medial collateral ligament laxity, with the knee in flexion, with moderate anterior drawer sign (anterior cruciate ligament laxity) from Table 17-33, Page 546, AMA V, 25% lower extremity impairment.
That for the decreased range of movement in the right knee (15 degrees flexion contracture) from Table 17-10, Page 537, AMA V, 20% lower extremity impairment.
That for the scarring is from the TEMSKI Scale, 1% whole person impairment.
He has reached maximum medical improvement.”
Conclusion
The Panel accepts the clinical findings of Medical Assessor Dixon, including his clinical findings on the nature of the scarring present, the presence of retropatellar crepitus, and ACL laxity.
Having regard to those clinical findings, the Panel is satisfied as follows:
(a)Whilst there is retropatellar crepitus present, in his statement the appellant gave no history of a direct trauma to the knee, but rather a severe twisting or wrenching injury: ‘He pushed me again and felt [sic, I fell] backwards again. My right leg went into a hole in the ground behind me and I felt immediate pain in my knee. I was attempting to stop myself from falling into a 7 metre trench right behind me’. The history taken by
Dr Hopcroft is not materially different: “he fell heavily alongside a six metre trench but not into it. He wrenched his knee severely in doing that but got to his feet realising there was a problem with his knee only to be knocked down a second time and after that he was unable to get to his feet at all”. Table 17-31, Page 544 of AMA requires a history of direct trauma. In this case, the mechanism of injury does not satisfy that requirement, and the crepitus is not assessable.(b)Having regard to the clinical findings of chondromalacia patellae, we are satisfied there is probable arthritis in the right knee. An assessment for arthritis cannot be combined with an assessment based on range of motion: Table 17-2, Page 526 of AMA5. We have assessed range of motion at 20% lower extremity impairment (see below): To attract an impairment greater than 20% on the basis of arthritis, there would have to be radiological evidence of a cartilage interval of 1mm or less: Table 17-31, page 544. The available scans do not provide any such evidence. Accordingly, the Panel has used the permanent impairment assessment for decreased range of movement for which we have objective evidence of the degree of impairment (see (d) below).
(c)There is anterior cruciate ligament (positive anterior drawer sign) and moderate medial collateral ligament laxity, attracting a 25% lower extremity impairment.
(d)There is decreased range of movement in the right knee, attracting a 20% lower extremity impairment.
(e)There is an injury to the right sural nerve with full sensory loss, attracting 2% lower extremity impairment from Table 17-37, Page 552 of AMA 5.
(f)Using the combined values chart, 25% lower extremity impairment for ligament laxity is combined with 20% lower extremity impairment for range of motion to yield 40% lower extremity impairment.
(g)40% lower extremity impairment is combined with 2% lower extremity impairment for lateral sural nerve impairment to yield 41% lower extremity impairment, which converts to 16% whole person impairment.
(h)With respect to scarring, the criteria for a 1% whole person impairment are satisfied.
(i)16% whole person impairment, when combined with 1% whole person impairment for scarring, yields 17% whole person impairment.
The Medical Assessment Certificate of Medical Assessor Anderson is revoked and replaced with the attached Medical Assessment Certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7886/22 |
Applicant: | Stephen Howe |
Respondent: | Mullane Construction Plumbing Pty Limited |
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 Medical Assessor Anderson 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 SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Right lower extremity (knee) | 11/07/19 | Chap 3 P 13 P 14 T 17.6 | P 537 T 17-10 P 526 T 17-02 P 546 T 17-33 P 551 F 17-08 P 552 T 17-37 | 16 | 0 | 16 |
| Scarring | P 74 T 14.1 | 1 | 0 | 1 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 17 | |||||
0