Inner West Council v McQuade
[2024] NSWPICMP 252
•30 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Inner West Council v McQuade [2024] NSWPICMP 252 |
| APPELLANT: | Inner West Council |
| RESPONDENT: | Peter McQuade |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 30 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim relating to multiple dates of injury; obvious error on face of Medical Assessment Certificate (MAC) requiring reassessment by Medical Appeal Panel member; parties made a consent referral seeking separate assessment for various dates of injury; on re-examination, it was not possible to apportion impairment between the myriad dates of injury as the pathology arising from the injuries was of the same nature; therefore, global whole person impairments were provided; Held – Appeal upheld; MAC dated 12 September 2023 set aside and the assessment of the Panel substituted; matter referred to a Member of the Workers Compensation Division of the Commission to deal with questions of apportionment and/ or aggregation between the various dates of injury. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 October 2023, Inner West Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 September 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent, Peter McQuade issued proceedings for payment of permanent impairment compensation in respect of alleged injuries to his right lower extremity and right upper extremity.
The Application to Resolve a Dispute (the Application) alleged five separate dates of frank injury between 2005 and 2020, together with a deemed date of injury of 6 September 2022 said to arise from the nature and conditions of the applicant’s employment as a garbage loader operator. Liability in respect of the applicant’s injuries was accepted by the respondent’s insurer.
On 21 July 2023, the Personal Injury Commission (Commission) issued Consent Orders referring the matter for medical assessment. Relevantly, the Orders amended the Application to list the relevant injuries as follows:
(a) on 23 March 2005, the applicant slipped from the step of a truck suffering personal injury to the right knee;
(b) on 29 June 2005, in the course of duties associated with the Council clean-up, the applicant was attempting to manoeuvre a large lounge within the rear of a truck when he slipped and fell, suffering a twisting injury to his right knee either in the nature of personal injury or in the alternative by way of aggravation, exacerbation, or acceleration of disease in relation to the right knee;
(c) on 12 December 2011, the applicant and a co-worker were lifting a barbeque onto the back of a truck and in the course of this manoeuvre wrenched his right shoulder, suffering a personal injury to the shoulder;
(d) on 11 March 2013, the applicant suffered injury to the right knee after slipping off a broken kerb into a gutter while dragging a 240l green waste bin either in the nature of a personal injury or in the alternative by way of aggravation, exacerbation or acceleration of disease in relation to the right knee;
(e) on 12 October 2016, the applicant was attempting to empty a 240l plastic bin in the wash bay. Unbeknownst to him the bin was filled with concrete and as he attempted to drag and manoeuvre the bin he suffered a twisting injury to his right knee and also wrenched his right shoulder in the nature of a personal injury or in the alternative by way of aggravation, exacerbation or acceleration of disease in relation to both the right knee and right shoulder;
(f) on 15 October 2018, the applicant suffered injury to the right knee while pulling an oversized bin either in the nature of a personal injury or in the alternative by way of aggravation, exacerbation or acceleration of disease in relation to the right knee;
(g) on 27 June 2020, the applicant was attempting to pull an empty garbage bin from a park down to road level when he twisted his right knee and strained his right shoulder by way of aggravation, exacerbation or acceleration of a disease in relation to both the right knee and the right shoulder;
(h) on 29 June 2020, the applicant was attempting to climb into the rear of a Council vehicle and whilst attempting to pull himself up into the vehicle his right foot slipped and he fell onto his right shoulder and his right knee suffering further injury to the right shoulder and right knee or in the alternative injury by way of aggravation, exacerbation or acceleration of a disease in relation to both the right knee and the right shoulder, and
(i) on 6 September 2022 (deemed), the applicant sustained a disease injury due to the nature and conditions of employment including lifting, manoeuvring, pushing and pulling of garbage bins and large plastic bins to and from trucks and over kerbs placing stress and strain upon both the right knee and right shoulder together with numerous twisting, turning episodes together with repeated weight bearing and associated stresses and strains upon both the right knee and right shoulder by way of aggravation, exacerbation or acceleration of a disease.
The parties agreed the permanent impairment resulting from each of the above injuries be assessed separately, and the determination of apportionment and aggregation would be deferred until after the medical assessment for determination by a Member of the Commission.
Medical Assessor Mastroianni conducted an examination and issued a Medical Assessment Certificate (MAC) on 12 September 2023. The Medical Assessor assessed the applicant as suffering a 20% right lower extremity (knee) impairment and a 7% whole person impairment (WPI) to the right upper extremity (shoulder). A zero impairment rating was assessed with regards to scarring (TEMSKI).
In reaching his conclusions, the Medical Assessor provided global assessments of the claimed body parts and did not separately state the impairments attributable to each of the injurious events.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination in order to have an assessment undertaken to determine the impairment arising from each of the referred dates of injury in accordance with the Consent Orders.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment. No fresh evidence was sought to be called by either party.
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.
Further medical examination
Dr Christopher Oates of the Appeal Panel conducted an examination of the worker on
1 February 2024 and reported to the Appeal Panel.
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.
In providing his assessment, the Medical Assessor relevantly noted at [10]:
“My interpretation of the Consent Orders is that the injury to the right shoulder and right knee is a deemed date of injury and therefore each of those were assessed as a deemed date of injury.
My interpretation was that the injuries to the two different body parts were deemed date of injuries and that they were to be assessed separately and not combined. It was not my understanding that whole person impairment was to be calculated for each injury date separately. If that were the case it is impossible to allocate impairment to a specific incident and the overall nature and conditions of the employment.
I also note that both IMEs assessed injuries as a deemed date of injury and not as separate injuries. I have therefore not attempted to do WPI for each date of injury listed for all of the above reasons.”
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 Medical Assessor erred in not undertaking separate assessments of impairment relating to each of the injurious events referred.
In reply, the respondent submits that although the Medical Assessor did not provide separate assessments, he set out reasons why he did not do so and his explanation for not doing so was sound.
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.
Given the nature of the referral, the Medical Assessor fell into error in adopting incorrect criteria by interpreting each of the right lower and right upper extremities as suffering deemed dates of injury, rather than separate dates of injury as set out in the Consent Orders
(s 327(3)(c) of the 1998 Act). As such, the MAC contained an obvious error (s 327(3)(d) of the 1998 Act).The Court of Appeal has noted that too great a primacy is often attached to the terms of a referral rather than the claim made by an injured worker: see Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates). In Skates the referral contained an error, conceded by the employer, in making no reference to an injury to the worker’s left wrist, which had been a part of the injury set out in the Application and the medical reports enclosed with the Application. The claim was wider in its terms than the referral, which omitted reference to “injury to left wrist”.
As Leeming JA observed:
“48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. …
49. … But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute.”
In this matter, the parties set out in detailed Consent Orders the terms of the referral to the Medical Assessor. It was plainly contemplated between the parties that the relevant dispute concerned the permanent impairment arising from various dates of injury, which was crystallised into the Consent Orders forming the basis of the referral. The Medical Assessor, in assessing the respondent’s impairment as wholly attributable to a deemed date of injury, fell into error in not attempting to undertake an assessment of the impairment said to arise from the separate dates of injury.
As noted, Medical Assessor Oates conducted a further examination of the applicant on
1 February 2024, the results of which are set out below.
HISTORY RELATING TO THE INJURY
Brief history of the incident and onset of symptoms and of subsequent related events including treatment
Mr McQuade said he started work with Leichhardt Council in September 1997 and was terminated from them in April 2023, when no further suitable duties were available. He had been working suitable duties for two years before the termination date. This involved driving a utility around delivering small waste bins to householders.
23 March 2005 – He slipped on a wet step getting off the garbage truck and he twisted his right knee. He didn’t have any treatment and didn’t lose any time from work.
29 June 2005 – He injured his right knee when his right foot slipped on a loose roller from under a trundle bed in the dark on the roadway during a Council clean-up. He kept working. He had continuing right knee pain and was referred to Dr Walker, orthopaedic surgeon.
He had arthroscopy for the right knee on 28 November 2005 and this fixed the knee. He estimates he was off work for about one month after the arthroscopy and thereafter continued normal duties.
12 December 2011 – He over-extended the right shoulder when he was lifting a heavy BBQ with an inexperienced co-worker who let his end go because of the weight, as they were lifting it into the garbage compactor at waist height. This shoulder injury settled down without any treatment and he lost no time from work as far as he can recall.
12 March 2013 – He twisted his right knee when he slipped off a broken kerb whilst he was dragging a full 240l waste bin to the garbage truck. He saw a GP at Regents Park because of pain in the right knees. Swelling was noted and he was given anti-inflammatories. He had two days off work and the knee settled down and he was able to return to normal duties.
12 October 2016 – He twisted his right shoulder and right knee when pulling a 240l bin onto the lifter at the back of the garbage compactor truck. Unbeknownst to him, the bin was full of concrete and was much heavier than he expected. When he put the bin onto the lifter, the weight of the concrete inside tore the bin open.
He saw the GP, Dr Tran, when he was not settling down and had an x-ray and ultrasound of the right shoulder, showing a tear of subscapularis and complete rupture of supraspinatus tendons, and subluxation of biceps tendon. X-ray of right knee showed marked narrowing of the medial compartment with marginal osteophytes. He had an MR arthrogram of the right shoulder and MRI of the right knee on 5 December 2016.
He saw Dr Walker. He suggested surgery on the right knee but Mr McQuade decided to defer this. He was also referred to Dr Hughes, shoulder surgeon, Chatswood. He advised that he would eventually need a reverse shoulder arthroplasty but that he should continue his usual routine and hold off as long as he could in the meantime. He seemed to recover and felt all right.
15 October 2018 – He was pulling an over-sized full 240l rubbish bin from the kerb and twisted his right knee in the process. He had three days off work and then returned to work on normal duties and the knee settled down after this.
27 June 2020 – He was pulling a full 240l waste bin down about 12 steps and hurt his right shoulder and right knee in the process. He tells me that a ramp was later installed to avoid having to take the bins down the steps. He reported this incident on 29 June 2020 (a Monday). It was a wet day and when he went to climb back into the truck, his right foot slipped on the wet step and he took all the weight on his outstretched right arm, above shoulder height, injuring his right shoulder and then he fell down onto his right knee. He reported this separate incident immediately. He kept working on normal duties but his shoulder and knee did not settle this time, as they had in the past.
He was referred to Dr Harper, orthopaedic surgeon, on 31 August 2020 and was told that he would eventually need a reverse right shoulder arthroplasty when the pain became disabling. He later asked to have a second opinion from Dr Hughes and he offered the same advice.
He also saw Dr Walker for review on 1 September 2020, who noted bone-on-bone osteoarthritis in the medial compartment of the right knee and total knee replacement was recommended. This was performed on 1 December 2020 at Sydney Private Hospital. He did not regain range of movement during his post-operative rehabilitation as expected, so he was recommended a manipulation under anaesthetic. Because of COVID-19 related delays, he did not come to this procedure until 9 February 2021 at Sydney Private Hospital.
He returned to work after the manipulation under anaesthetic on permanently modified duties, starting at 15 hours a week and then gradually increased to normal hours.
Present treatment
Simple analgesia as required.
Present symptoms
He has pain in the right knee, which is of moderate intensity, occurring intermittently every few days, depending on the amount of usage of the knee. He can walk for about 15-20 minutes. He can’t stand still too long. He can go up steps OK but has problems going down steps. His knee has given way a couple of times earlier on but is stable these days.
His right shoulder is not good. He can’t elevate the right arm to hang clothes up on the line. If he is carrying any weight in the right arm, it has to be close into the body. He can only hold his grandchildren up for a short time and can’t run around with his four-year-old grandson because of his knee.
The knee is very tender if he strikes the front of the knee on something accidentally. When driving, he has to keep his right hand low on the wheel to avoid shoulder pain. He also has difficulty getting in and out of the car because of his right knee.
His sleep is disturbed by right shoulder pain when he lies on the right side and also to some extent by right knee discomfort.
Details of any previous or subsequent accidents, injuries or conditions
There was no previous problem with the right knee before 2005 or with the right shoulder before 2010.
There has been no subsequent injury.
General health
He had an appendicectomy about 10 years ago. He was diagnosed with prostate cancer after biopsy about 12 months ago. He has had no spread beyond the prostatic capsule and it was under three-monthly surveillance by the urologist, but this has been put up to six monthly. He has had no specific treatment for this so far.
Work history including previous work history if relevant
For the first 12 months at Leichhardt Council, he drove a front-end loader and then moved to the garbage collection crew. He worked as a driver with two runners on the truck. The lifter was on the back of the garbage compactor truck. He would get out with the two runners and collect bins as well. He has not worked elsewhere since being terminated in April 2023.
Social activities/ADL
He is married. His wife works part-time. She is unwell at the moment. He and his wife live in a house. Their children have grown up. He has not played golf since he injured his knee and shoulder. He does some exercises with light hand weights to maintain condition of the arms.
His wife does the housework. He has had to pay someone to mow the lawn for the last six months, as he can no longer do it because of his shoulder and knee problems, and also, he is tired from the cancer.
He has some difficulty putting shoes and underwear on, so sits down for this task, but remains independent with personal care.
He doesn’t smoke and drinks alcohol socially.
FINDINGS ON PHSYCIAL EXAMINATION
He was of muscular build with height 172cm and weight 102kg. He had a slight limp on the right leg. He could stand erect.
Right and left shoulders
There was a rupture of the right biceps from the shoulder attachment. There was positive impingement sign for the right shoulder with crepitus in the right shoulder on passive movement.
Movement
Right
% Upper extremity impairment
Left
% Upper extremity impairment
Flexion
120°
4
170°
1
Extension
40°
1
50°
0
Adduction
20°
1
40°
0
Abduction
130°
2
180°
0
Internal Rotation
30°
4
70°
1
External Rotation
40°
1
80°
0
Total
13% UEI
2% UEI
The active range of movement of both shoulders was measured with a goniometer and I was satisfied that the injured worker was making a genuine effort. I considered that multiple ROM measurements were not required.
Right and left knees
He was able to stand on each leg alone, though he was a little unsteady on the right foot. He stood with neutral alignment of knees.
Extension lag; right 10°, left 0°. Active range of movement - right knee -10° loss of extension to 110° of flexion, left knee 0 to 150° of flexion.
Both knee joints were stable in anteroposterior and mediolateral directions. Resisted straight leg raising; right was slightly weaker than left.
Thigh girth; right equals left equals 51cm measured at 10cm above the superior patellar pole. Leg girth; right 40cm, left 41cm measured at maximal circumference, which is 14cm below the inferior patellar pole.
Scarring
There was a well-healed, slightly pale, 17cm, thin longitudinal scar over the anterior right knee. The scar was not adherent and showed no trophic changes. Sensation was intact adjacent to the scar medially and laterally. There were no visible staple or suture marks. The location of the scar would be visible with short pants but not trousers. There was no contour defect, no effect on ADLs, and no requirement for treatment. The worker said that the scar did not bother him.
DETAILS AND DATES OF SPECIAL INVESTIGATIONS
The following images were brought to the assessment:
“22 November 2016 – X-ray right shoulder, 1 December 2016 – MRI right shoulder, 31 May 2019 – X-ray right knee which showed decreased medial joint space with femoral and tibial marginal osteophytes.”
The following reports were brought to the assessment:
“22 November 2016 – X-ray right knee.
X-ray and ultrasound right shoulder.
1 December 2016 – CT-guided MR arthrogram right shoulder and MRI right knee.
11 August 2020 – MRI right shoulder – Rupture long head of biceps. Complete full thickness tears of supraspinatus, infraspinatus and subscapularis tendons.
11 August 2020 – MRI right knee – Advanced full thickness medial compartment cartilage wear. Prior subtotal medial meniscectomy, with superimposed degenerative tear of meniscal body segment.”
SUMMARY
Summary of injuries and diagnoses
There were multiple injuries to the right knee resulting in a partial meniscectomy done by arthroscopy and eventually a right total knee replacement. The initial medial meniscal tear has resulted in the development of post-traumatic degenerative change in the medial compartment of the knee. Subsequent frank incidents, being reported in line with employer’s protocols, but in reality reflective of the overall nature and conditions of the worker’s employment, have resulted in the same pathology, viz., aggravation, acceleration and deterioration of degenerative disease of the right knee and specifically the medial joint compartment, ultimately resulting in the need for total knee joint replacement, which gives rise to an assessable permanent impairment.
There was soft tissue injury to the rotator cuff of the right shoulder in the form of tendon tears as a result of multiple frank incidents at work. These incidents along with the nature and conditions of employment, noting that the worker was regularly lifting and carrying heavy garbage bins to the compacter, have resulted in the same pathology, namely multiple shoulder tendon tears.
Because the pathology is the same from both the frank incidents and nature and conditions of employment for both the right shoulder and right knee, it is not required to apportion the impairment amongst multiple incidents and employment in general, because it is not possible to separate out the relative contribution from each incident and that from the overall nature and conditions of employment to the final assessed WPI.
Consistency of presentation
He presented in a straightforward manner with no inconsistency.
PERMANENT IMPAIRMENT
Based on the range of movement findings in the shoulders, 13% upper extremity impairment (UEI) for injured right shoulder – 2% UEI for uninjured left shoulder = 11% UEI equivalent to 7% WPI for the right shoulder. Ref: SIRA Guidelines Ch 2 Cl 2.20.
With respect to scarring at the right knee, the worker is conscious of the scar but there is little colour contrast with surrounding skin, no trophic changes, no visible staple or suture marks. The anatomical location of the scar would be visible with short pants but not long pants. There was no contour defect, no effect on ADLs, no requirement for treatment and no adherence.
The best fit under TEMSKI is 0% WPI.
Discomfort on kneeling is more likely the result of pressure on the knee prosthesis, rather than arising from scar tenderness over the knee.
The worker also mentioned that if he bumps into an object with the front of his right knee, it is painful as well.
With respect to the right knee replacement, I assess 30 points for pain, 18 points for range of movement, 25 points for stability, giving 73 points. There is a deduction of 5 points for extension (flexion contracture) and 10 points for extension lag. 73 points minus 15 gives 58 points which gives a fair result and 20% WPI.
From the Combined Values Chart, 20% combined with 7% gives 26% WPI.
With regard to a deduction under s 323(2), there was no evidence of any non-work-related condition or to any injury to the knee or shoulder having occurred outside work. At the time of arthroscopy right knee on 28 November 2005, there were grade III and IV changes with significant loose chondral flaps affecting the medial femoral condyle which did appear to be acute, that is, related to the recent trauma to the knee, rather than being pre-existing degenerative change, and this situation does not therefore warrant a deduction being made from the WPI assessed for the knee.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.In accordance with the Consent Orders dated 21 July 2023, the matter will be referred to a Member of the Workers Compensation Division of the Commission to determine questions regarding apportionment and/ or aggregation of impairment arising from the various dates of injury.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4339/23 |
Applicant: | Peter McQuade |
Respondent: | Inner West Council |
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 Tommasino Mastroianni 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) | |
| Right lower extremity (knee) | 23.3.2005, 29.6.2005, 11.3.2013, 12.10.2016, 15.10.2018, 27.6.2020, 29.6.2020, 6.9.2022 (deemed) | Chapter 3 Pages 13 to 23 | Chapter 17 Pages 523 to 564 | 20% | 0% | 20% | |
| Right upper extremity (shoulder) | 12.12.2011, 12.10.2016, 27.6.2020, 29.6.2020, 6.9.2022 (deemed) | Chapter 2 Pages 10 to 12 | Chapter 16 Pages 433 to 521 | 7% | 0% | 7% | |
| Scarring (TEMSKI) | 23.3.2005, 29.6.2005, 12.12.2011, 11.3.2013, 12.10.2016, 15.10.2018, 27.6.2020, 29.6.2020, 6.9.2022 (deemed) | Chapter 14 Pages 73 to 74 | 0% | Not applicable | 0% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 26% | ||||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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