Hunter v State of New South Wales (Ambulance Service of NSW)
[2025] NSWPICMP 141
•4 March 2025
DETERMINATION OF APPEAL PANEL CITATION: Hunter v State of New South Wales (Ambulance Service of NSW) [2025] NSWPICMP 141 APPELLANT: Kirrily Hunter RESPONDENT: State of NSW (NSW Ambulance Service) APPEAL PANEL MEMBER: Deborah Moore MEDICAL ASSESSOR: Roger Pillemer MEDICAL ASSESSOR: Margaret Gibson DATE OF DECISION: 4 March 2025 CATCHWORDS:
WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant submits that the Medical Assessor (MA) erred in a number of respects in his assessment especially regarding the presence of crepitus; re-examination required; Held – errors by MA; Medical Assessment Certificate revoked.
BACKGROUND TO THE APPLICATION TO APPEAL
1.On 29 October 2024 Kirrily Hunter (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 October 2024.
2.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.
3.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.
4.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.
5.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
6.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.
7.As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because although none was requested, the Panel concluded that the Medical Assessor erred in several respects to which we will refer more fully below.
EVIDENCE
Documentary evidence
8.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.
Further medical examination
9.Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 25 February 2025 and reported to the Appeal Panel.
SUBMISSIONS
10.Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
11.In summary, the appellant submits that:
(a) the Medical Assessor made an error of law and hence a s 327(3)(d) demonstrable error by failing to apply the law as determined in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416, in that he made a s 323 deduction for a condition that was not found to pre-exist the commencement of the relevant employment activity;
(b) the Medical Assessor made a demonstrable error in finding that imaging was not available to allow assessment of the patellofemoral joint;
(c) the Medical Assessor used incorrect criteria by purporting to apply Table 17.1 with respect to the assessment of impairment and the presence or otherwise of crepitus, and
(d) the Medical Assessor erred in fact finding in concluding there was no crepitus on examination.
12.In reply, the respondent submits that no errors were made because:
“The MA’s assessment was reasonably open to him. He made his assessment of permanent impairment in accordance with his clinical examination and has provided sufficient explanation as to why his opinion has differed to that of the other forensic examiners.”
FINDINGS AND REASONS
13.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.
14.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.
15.The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the left lower extremity, right lower extremity, right upper extremity and left upper extremity resulting from a deemed date of injury of 13 October 2021.
16.The Medical Assessor obtained the following history:
“On the date of injury, Ms Hunter was at work as a paramedic, treating a patient on a kitchen floor who was hypoglycaemic. After a prolonged period of kneeling on the floor, she had difficulty getting up. She presented to her general practitioner for review. The following day she was attending a patient who was unconscious on a bathroom floor. Again, after a period of time having to kneel on the floor, she found she was unable to get up due to pain in the front of both her knees. Subsequent to this, she was involved in transferring a mental health patient from Cessnock to Maitland Hospital. Seated in the back of the ambulance, she developed worsening pain in the front of her knees. When she arrived at Maitland Hospital, she was unable to stand because of her anterior knee pain. She represented to her general practitioner, who started her on some Nurofen and paracetamol. It was causing her so much difficulty, she went to the trouble of getting a raised toilet seat and putting an extra mattress on her bed. She noted she was using her arms to push herself up out of a chair because of pain in her knees. After some six weeks or so, she noticed she was getting pain in both of her shoulders.
She was referred to Dr Reece, Orthopaedic Surgeon for assessment of her knee pain. She underwent an MRI of her knees, which was suggestive of some pes anserine bursitis. Dr Reece recommended a rehabilitation program and also review by
Dr Prickett, Pain Management Specialist.For her shoulders, she was reviewed by another Orthopaedic Surgeon, Dr Kumar.
Dr Kumar recommended arthroscopic decompression on the right shoulder for subacromial bursitis. This was undertaken on 19 October 2022 on the right. Whilst the surgery reduced the catching with movement, it left her with ongoing pain. She went on to undergo arthroscopic subacromial decompression on the left shoulder on 22 August 2023.”
17.After setting out details of her present treatment he noted present symptoms as follows:
“She has pain in the front of her knees and has difficulty walking on uneven ground. She has difficulty walking up and down stairs. She still gets pain if she sits or drives in a car. If she is squatting or kneeling, she is unable to get up.
In the shoulders she has a catching sensation in the shoulder with movement. She has pain more so in the left than the right shoulder and has difficulty lifting weights. Pain is over the lateral aspect of the shoulder.”
18.Findings on physical examination were reported as follows:
“There were well healed arthroscopic portals around both shoulders…The upper limbs were distally neurovascularly intact. Range of motion in the knees as assessed demonstrated normally aligned knees with no effusions. The range of motion in the knees was from 0° to 125°. The knees were coronally and sagittally stable. There was no patellofemoral crepitus.”
19.The Medical Assessor added:
“I was able to review the following modalities of imaging:
28/10/2021 MRI both knees. Medial patellofemoral joint cartilage loss.
06/06/2022 MRI right shoulder Subacromial osteophyte / impingement.
24/05/2023 Bone scan / CT both knees. Maintenance of patellofemoral joint space.
10/04/2024 MRI left knee. Medial patellofemoral cartilage loss.”
20.In summarising the injuries and diagnoses, the Medical Assessor said:
“Ms Hunter developed pain in the front of both of her knees whilst kneeling at work, presumably aggravating pre-existing patellofemoral degenerative arthritis. She subsequently developed pain in both shoulders consistent with impingement, which she attributes to using her arms to help herself in and out of a chair consequent to her knee pain.”
21.The Medical Assessor made the following assessments:
(a) 0% WPI left lower extremity;
(b) 0% WPI right lower extremity;
(c) 8% WPI right upper extremity, and
(d) 8% WPI left upper extremity.
22.He deducted one-tenth in respect of both upper extremities leaving a total WPI of 14%.
23.The Medical Assessor explained his calculations as follows:
“SIRA page 17, paragraph 3.23 with respect to patellofemoral joint states: ‘This item is only to be used if there is a history of direct injury to the front of the knee, or in cases of patella translocation / dislocation, without direct anterior trauma. Whilst prolonged kneeling may satisfy the definition of ‘direct injury,’ I did not detect patellofemoral crepitus and hence, have not assessed impairment, as per the annotation in AMA 5 page 542, Table 17.1. Imaging is not available to allow assessment of the patellofemoral joint with respect to arthritis.
Restricted range of motion in the shoulders is assessed according to AMA 5 page 476 16.40, 477 16.43 and 479 16.46. The restricted range of motion is assessed at 14% upper extremity impairment for each shoulder. According to AMA 5 page 439, Table 16.3 this converts to 8% whole person impairment.”
24.He then turned to consider the other medical opinions and material before him and said:
“With respect to the report by Dr Habib dated 9 April 2024, I did not find patellofemoral crepitation or clunking. I did not find loss of extension of the knee.
I note Dr Habib goes on to provide an alternative impairment evaluation under the presumption that Ms Hunter will ultimately undergo total knee arthroplasty. It should be noted that total knee replacement is not good treatment for primary patellofemoral arthritis. Secondly, this is presumably on the basis that Dr Habib presumes eventual deterioration and progression to knee arthroplasty. I note SIRA page 7, paragraph 1.35 which states: ‘If a Medical Assessor forms the opinion that the claimant’s condition is stable for the next year, but may deteriorate in the long term, the assessor should make no allowance for this deterioration.’ Further, Dr Habib references AMA 5 Chapter 17, Section 17.2 and page 544 and assesses 20% whole person impairment.
I assume he is making assessments for end stage patellofemoral arthritis, which is assessed at 8% whole person impairment (20% lower extremity impairment). No imaging is available at the which demonstrates a patellofemoral interval of 0 mm.
I found a greater range of motion in the shoulders.
With respect to the report by Dr Haig dated 20 January 2023, his observation that Ms Hunter had been symptomatic from anterior knee pain prior to the injuries at work and that he regards the knees as a pre-existing condition. In his examination he did not detect patellofemoral crepitus. I also note he detected a full range of motion in an otherwise stable knee.
I note he has not assessed whole person impairment for the shoulders, as he is of the belief that Ms Hunter may have frozen shoulders and that the shoulders are not at MMI.”
25.The Medical Assessor added:
“In my opinion the worker suffers from the following relevant previous injuries, pre existing conditions or abnormalities:
a. Patellofemoral osteoarthritis left knee
b. Patellofemoral osteoarthritis right knee
c. Impingement right shoulder
d. Impingement left shoulder.
The injury to the left knee and right knee, left shoulder and right shoulder represents aggravation of pre-existing degenerative conditions.
Right Shoulder: The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323 (2) I assess the deductible proportion as one tenth.
Left Shoulder: The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323 (2) I assess the deductible proportion as one tenth.
Right Knee: Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is one half for the following reasons: Pain in the right knee represents aggravation of previously asymptomatic patellofemoral osteoarthritis. In the absence of this condition, there would be no injury in the knee.
Left Knee: Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is one half for the following reasons: Pain in the left knee represents aggravation of previously asymptomatic patellofemoral osteoarthritis. In the absence of this condition, there would be no injury in the knee.”
26.The appellant’s submissions:
(a) The relevant employment activity apparently commenced in 2002 and ended in October 2021 and that a deemed date of injury at the end of this period is relied upon.
(b) The Medical Assessor has made his various s 323 deductions for conditions which were not found to pre-exist the commencement of the relevant employment activity.
(c) As determined by Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416, for a deduction to be made pursuant to s 323, it has to be concluded the pre-existing condition was present before the relevant employment activity commenced. The Medical Assessor has made a deduction without making such a finding. As such he has made an error of law and hence fallen into demonstrable error.
(d) The Medical Assessor made a demonstrable error in finding that imaging was not available to allow assessment of the patellofemoral joint when such imaging was available (see for example ARD 403-404).
(e) The Medical Assessor used incorrect criteria by purporting to apply Table 17.1 with respect to the assessment of impairment and the presence or otherwise of crepitus. Table 17.1 does not contain any apparent annotation of the type described by the Medical Assessor. As such, he has used incorrect criteria in a way that affects his reasoning and conclusions.
(f) The Medical Assessor erred in fact finding in concluding there was no crepitus on examination. Both Dr Habib and the treating orthopaedic surgeon Dr Verheal noted crepitus on examination - which the latter described as "significant crepitus."
(g) It would be unlikely for two surgeons to erroneously record its presence. It is more likely that the Medical Assessor erred in fact finding in coming to his clinical conclusion on this aspect of the matter.
27.The appellant does not challenge the assessments with respect to the upper extremities.
28.As stated earlier, the respondent contends that no errors were made.
Discussion
29.The Panel agreed with the thrust of the appellant’s submissions.
30.We considered that a re-examination was necessary in order to address various errors, in particular, the crepitus issue.
31.Dr Habib in his report of 9 April 2024 found a retropatellar ‘clonk’, with painful catching and a range of movement from 20° to 115°. He also found movements of the left knee were accompanied by ‘retropatellar crepitus’.
32.A report of Dr Reece (orthopaedic surgeon) of 1 November 2021 opined that an MRI showed severe patellofemoral articular cartilage changes, worse on the left than on the right, as well as some medial compartment changes in the left knee.
33.In addition, investigations showed advanced degenerative changes of both patellofemoral joints with Grade III to Grade IV cartilage loss of the patella. These changes would certainly have given a figure of impairment.
34.We do note that Dr Haig in his examination of 20 January 2023 did not note crepitus. He did note restricted range of movement.
35.The Medical Assessor’s findings with regard to the knees are very brief, less than three lines. This was yet another reason for a re-examination.
36.In addition, as the appellant points out, there are numerous reports showing the significant presence of osteoarthritis in both knees, whereas the Medical Assessor stated that imaging was ‘not available’. Once again this is a demonstrable error.
37.The appellant also points out the very confused reasoning with regard to the deduction for both knees. The Medical Assessor suggested that this should be ‘one-half’. He does not however suggest figures of impairment and simply suggests 0% WPI for both knees.
38.Medical Assessor Pillemer of the Panel examined Ms Hunter on 25 February 2025 and reported to us as follows:
“1.The workers medical history, where it differs from previous records.
Ms Hunter attended with her partner today, and I read her the history that was taken by Dr R Kuru at the time of his examination on 1 October 2024. Ms Hunter agreed with this history as given.
I note that Dr Kuru has pointed out that Ms Hunter denied having any previous injury with her knees, and goes on to note ‘I note in the records supplied – Presentation at the general practitioner of 18 October 2021 for: ‘Bilateral knee pain, gradual onset over past 3 weeks, no injuries or fall, no past knee injuries, pain only when sit to stand or specific movement’’.
When questioned specifically with regard to this history, Ms Hunter notes that she first became aware of discomfort in her knees a few weeks prior to the incident in October 2021 while she was doing gym, noting that she has a gym program for work to keep her fit, and the discomfort was noted while she was doing ‘lunges and squats’. She did not see her general practitioner at that time.
2.Additional history since the original Medical Assessment Certificate was performed.
Ms Hunter has ongoing problems with both knees, the left side worrying her more than the right, with the main discomfort being felt anteriorly, but also being aware of discomfort posteriorly, and the right side extending halfway down her calf. Her right leg can be comfortable at rest but on the left side she is constantly aware of discomfort, with symptoms ranging between 2-8/10.
Symptoms are aggravated particularly by stairs or any attempt at squatting, or inclines, or excessive walking, or if she tries to flex her knees excessively. She does get some relief by resting and using heat packs, and placing a pillow behind her knees for support.
Tablets also help to a certain extent.
Ms Hunter occasionally notices swelling particularly of her left knee if she has overdone things, and the knees click on a regular basis, and she does have a feeling of instability which can occur on a daily basis on a number of occasions, or she can go for a day or so without having this feeling.
She has particular problems with stairs, both up and down, but particularly coming down, and she negotiates stairs one at a time, and occasionally she has to do this sideways. She would avoid crouching and kneeling.
At the present time she remains under the care of her treating specialist who has injected her left knee for her, and she also uses heat packs and a pillow support as mentioned, and at the present time is taking Panadol and Nurofen when needed, and also has Panadeine Forte and Endone which she tries to avoid.
She has stopped the physiotherapy as it was not really helping, and she had to stop her gym because of the pain.
Her maximum walking time would be 5 to 10 minutes and then she would have to stop and rest. She does manage inclines but this takes her much longer, and her knees will flare whenever she does this.
She lives at home with her son and daughter and does her housework ‘in stages’, and what would normally take her an hour would now take her two hours. She is unable to do anything that involves crouching or kneeling.
3.Findings on clinical examination
Ms Hunter is an adult female with a very straight-forward and pleasant disposition, with a moderate increase in her body mass index. She was noted to walk with a slightly antalgic gait on the left side today, and was able to walk on heels and toes, and has a good range of back movement getting her fingertips three-quarters of the way down her shins in flexion, and other movements were good.
Straight leg raising is present to 80° bilaterally, reflexes are present and equal, sensation is intact and motor power was good in all groups tested.
She has a good range of hip movements bilaterally.
With regard to Ms Hunter’s knees, they are both in 10° of valgus alignment and she does have evidence of generalised ligamentous laxity. Her range of movement is from 10° to 90° on each side, accompanied by patellofemoral crepitus on both sides. The knees themselves were stable and there was no fluid in either joint, and Ms Hunter complains of particular discomfort to stressing her patellofemoral joints. There is also some medial joint line discomfort, particularly on the left side.
The circumference of her thighs was equal at 10cm above her kneecaps, and her right calf is 1½cm less than the left side. There was no obvious cause for this.
Ms Hunter did not have any investigations with her today, but I note from a report of an MRI scan of her right and left knees carried out on 8 April 2022, on the right side noted ‘overall right knee appearances are fairly similar when compared to the prior MRI study of 28/10/21. There are some OA changes particularly involving the medial patellar facet. No significant acute internal derangement is otherwise appreciated on the current study’.
With regard to the left knee the radiologist reports ‘OA changes within the left knee particularly involving the medial femoral condyle and medial patellar facet are again noted. Findings have mildly progressed when compared to the prior MRI study, although degree of subchondral bony oedema within the medial femoral condyle has slightly improved’.
No further investigations have been done since the MAC was carried out.”
39.The Panel agrees with the findings made by Medical Assessor Pillemer following his comprehensive examination.
40.Ms Hunter again confirmed that she had no problems with her knees prior to the onset of symptoms in what would have been September 2021.
41.As Medical Assessor Pillemer noted, her main problem is with her patellofemoral joints, and as noted she does have patellofemoral crepitus as well as having positive provocative testing for patellofemoral arthritis.
42.As far as impairment is concerned, this would be on the basis of the restricted range of movement of her knees.
43.Knee movements:
| Movement | Right | % Lower extremity impairment | Left | % Lower extremity impairment | |||||
| Flexion | 90° | 10 | 90° | 10 | |||||
| Flexion contracture | 10° | 20 | 10° | 20% | |||||
| Total | 30% | Total | 30% | ||||||
30% lower extremity impairment equates with 12% WPI for each knee/lower extremity. (AMA Guides to the Evaluation of Permanent Impairment, 5th Edition: Page 537, Table 17-10.
44.It is worth noting that at the time of his examination, Dr Haig found flexion to 90° on each side, but makes no mention of loss of extension. Dr Habib in his report notes 20° lack of extension with further flexion to 115°. It is noted that other medical reports do not indicate the range of movement.
45.There would also be some impairment for wasting of the right calf, but this cannot be included with range of movement, nor can the arthritis in her knees be included with the range of movement, which gives her the highest impairment figure.
46.Ms Hunter was employed by the Ambulance Service in 1999 and she worked there for some 25 years. In our view, the nature and conditions of her employment would be regarded as the cause of her knee problems, or if not the cause, the main contributing factor to the development of her symptoms. She certainly does have an underlying predisposition to develop patellofemoral problems as evidenced by her genu valgus of both knees and her ligamentous laxity, but in our view, this predisposition or vulnerability should not suggest any deduction for pre-existing condition.
47.For these reasons, we do not consider that any deduction for a pre-existing condition should be made.
48.The Panel accepts the findings and reasons of Medical Assessor Pillemer.
49.For these reasons, the Appeal Panel has determined that the MAC issued on
14 October 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number:
W25292/24
Applicant:
Kirrily Hunter
Respondent:
State of NSW (NSW Ambulance Service)
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 Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
Body part
Date of Injury
Chapter,
page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality
Sub-total/s % WPI (after any deductions in column 6)
Left upper extremity
(shoulder)
13/10/21
(deemed)
Chapter 2
Pages 10-12
Chapter 16
Pages 433 to 521
8%
1/10
7%
Right upper extremity
(shoulder)
13/10/21
(deemed)
Chapter 2
Pages 10-12
Chapter 16
Pages 433 to 521
8%
1/10
7%
Left lower extremity
(knee)
13/10/21
(deemed)
Chapter 3
Pages 13-23
Chapter 17
Pages 523 to 564
12%
nil
12%
Right lower extremity
(knee)
13/10/21
(deemed)
Chapter 3
Pages 13-23
Chapter 17
Pages 523 to 564
12%
nil
12%
Total % WPI (the Combined Table values of all sub-totals)
33%
0
2
0