James & Par v Scanes
[2022] NSWPICMP 403
•14 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | James & Par v Scanes [2022] NSWPICMP 403 |
| APPELLANT: | Phillip James & Fiona Ruth Par |
| RESPONDENT: | Rodney Scanes |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Dr James Bodel |
| MEDICAL ASSESSOR: | Dr Gregory McGroder |
| DATE OF DECISION: | 14 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant submits that the Medical Assessor erred in failing to make any deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Panel found no evidence of a pre-existing impairment to warrant a deduction; the only radiological evidence post-dated the injury; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 July 2022 Phillip James and Fiona Ruth Par lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 21 June 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
.EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in relation to the deduction he made for a pre-existing impairment pursuant to s 323 of the 1998 Act.
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of the right lower extremity (knee) resulting from an injury on 1 November 2012.
The MA obtained the following history:
“Mr Scanes related that on 01/11/12, he was working on a property carrying out fencing. Unfortunately he stumbled and severely impacted his right knee against part of the tractor that he was using. This was extremely painful, and he was unable to continue working. He saw his doctor and was referred to Specialist Orthopaedic Surgeon, Dr Stephen Ruff. It was assessed that conservative management was appropriate at that stage. This continued but he was unable to effectively get back to work. The knee gradually deteriorated and in 2015 he was again reviewed by Dr Stephen Ruff, and it was recommended that the condition of the knee had deteriorated to such an extent that his only realistic option was a knee joint replacement. This was agreed and was carried out in August 2015.
Initially this seemed to give him quite a good result but after several weeks, he developed increasing pain and dysfunction of the knee.
He was later referred by Dr Ruff to Specialist Knee Surgeon, Dr Dimitri Papadimitriou. An arthroscopic lateral patella release was conducted in November 2016. Unfortunately this did not give a great deal of help. It was identified that the major concern was with function of the patella. Dr Papadimitriou carried out a further procedure with resurfacing of the patella in February 2017. Again, this did not help.
His condition had become chronic, and he was referred to Specialist Pain Management Physician, Dr Nathan Taylor. A series of procedures were carried out which included radio-frequency ablation. This gave him some improvement for about a year.
More recently, in 2020 there was a further arthroscopic procedure, again by Dr Papadimitriou for excision of exostosis of the patella. Unfortunately this did not help.”
Present symptoms were noted as follows:
“Pain in the right knee which is fairly consistent. It is also quite severe. Static postural positions make the knee very stiff. His walking is grossly reduced and so is his driving. Cold climatic conditions make the condition worse. He has to manage steps singly.”
The MA added: “There has been no previous condition with either of his knees.”
As regards activities of daily living (ADL’s) the MA said:
“Mr Scanes is a widower. He lives alone in a caravan park. He smokes 20 cigarettes a day and has about six drinks a day. He tries to do a little fishing. He can also play the guitar.
His driving is limited to about half an hour. It took him about one and a half hours to get to this appointment. He had one stop on the way. Where he lives, there is no need for lawn mowing. He can look after all of his own needs in his caravan and can do his own local shopping.”
Findings on physical examination were reported as follows:
“Mr Scanes was of average stature and build... He was in quite a lot of discomfort with his right knee.
Lower Limbs. He walked with a right sided limp. He could stand on his heels but could not stand on his toes and could not squat. The thighs had the same circumference. The legs had the same length. The surgical scar over the anterior of his right knee and the associated arthroscopic scars had healed satisfactorily.
No significant features were identified with the hips or the ankles. He had full extension at 0° of both knees. On the left side he could flex to 135° and on the right, this was limited to 90°.
The alignment of each knee was satisfactory. There was no anterior-posterior laxity, nor medio-lateral laxity. Other than the anticipated reduced sensation over the lateral side of the surgical scar, no other neurological feature was identified. On occasions there was a painful click at the medial side of the right knee joint.”
The MA then noted that the only radiological report he had was an X-ray dated 29 May 2019 which demonstrated “Knee joint replacement in satisfactory position. Patella resurfaced, evidence of subluxing.”
He summarised the injuries and diagnoses as follows:
“Mr Scanes sustained a severe impact injury to his right knee in early November 2012. This was initially managed conservatively, although during the next three years the condition deteriorated badly, resulting in a knee joint replacement. Technically this seems to have been fairly good, although he continued to experience a lot of pain and dysfunction of the knee. It was identified that this was mostly associated with the patella. A series of surgical procedures was conducted to try to stabilise the patella, which included resurfacing and also a lateral release and excision of osteophytes but unfortunately, none of these procedures gave Mr Scanes any improvement. There has been further pain management and he has been left with a very dysfunctional right knee.
Mr Scanes’ presentation was completely consistent.”
The MA assessed WPI of 30%. He explained his calculations and reasons as follows:
“The impairment of the knee is assessed from the Guidelines Page 21, Table 17-35 (modified). This is a point scoring system…[a total of 48 points].
A point score of less than 50 gives a “poor” result with 30% WPI.”
The MA then turned to consider the other medical opinions stating:
“My assessment is exactly the same as that of Specialist Orthopaedic Surgeon, Dr Zbigniew Poplawski in his report of 06/12/21.
Specialist Orthopaedic Surgeon, Dr John Bosanquet in his report of 04/02/22 assesses a ‘fair’ result with 20% impairment. He deducts half of this for pre-existing degenerative changes, giving a final whole person impairment of 10%. With great respect, I am persuaded that this is a very excessive deduction. Before this event there was no (absolutely none) history of any dysfunction with either of Mr Scanes’ knees. Attention is drawn to the type of work which he was pursuing, which was physically very arduous and he was able to manage this perfectly satisfactorily. If there had been significant degenerative change with either knee, he would not have been able to do this kind of work.”
The MA added:
“As advised, there is no convincing evidence of any significant pre-existing condition which would necessitate the application of a deduction.”
Dealing firstly with the s 323 deduction, the appellant submits as follows:
(a) The appellant does not seek to contend that the MA erred in concluding that the deduction applied by Dr Bosanquet was excessive.
(b) Having regard to the medical evidence, the MA erred in making no deduction.
(c) The appropriate test is to consider whether a pre-existing condition is a contributing factor causing permanent impairment: Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole).
(d) The MA has not turned his mind to the appropriate test.
(e) In view of the medical evidence, including the radiology, the MA should have concluded that the extent of the deduction was difficult to determine in this instance and proceeded to apply the 10% deduction provided by s323(2) of the 1998 Act.
The respondent submits as follows:
(a) The MA stated: “With great respect I am persuaded that this is a very excessive deduction. Before this event there was no (absolutely none) history of any dysfunction with either of Mr Scanes’ knees.”
(b) The MA reported that the respondent was able to manage his physically arduous work perfectly satisfactorily.
(c) Dr Poplawski reported that the injury was a “severe injury to his right knee”. The injury as claimed was not identified as an aggravation of a disease type injury. The injury was a frank injury to the right knee. Dr Poplawski did not apply a deduction for any pre-existing condition or abnormality because there was no evidence of any pre-existing condition or abnormality.
(d) There is no objective evidence to support the conclusion that the findings on the MRI in January 2015 had been present as at the date of injury. All of the radiological evidence referred to by Dr Bosanquet post-dated the injury.
(e) Dr Bosanquet’s deduction was misconceived and based on two assumptions. First, that the injury was an aggravation of s disease type injury and second, that the osteoarthritis that was present on the MRI more than two years after the injury had been present at the time of the injury. There was no evidence to support this conclusion. Dr Poplawski’s opinion was that the osteoarthritis demonstrated on the MRI in January 2015 was “post-traumatic” to the work injury. Dr Poplawski’s conclusion is the only conclusion available on all of the evidence.
(f) The assumption made by Dr Bosanquet was erroneous and not permitted in the s 323 exercise. There has to be a specific finding of a pre-existing condition or abnormality present at the time of the work injury based on the evidence, which there was not in this case, and then, there has to be an enquiry into whether that pre-existing condition or abnormality is contributing to the overall impairment.
In general, we agree with the respondent’s submissions for reasons that follow.
Consistent with the opinion of Dr Poplawski, the MA confirmed that the injury was a frank injury on 1 November 2012, described as a severe injury both by Mr Scanes and his treating doctors.
The only radiological evidence available post-dated the injury by over two years, such that there is simply no evidence as to the state of Mr Scanes’ right knee.
He was also by all accounts completely asymptomatic prior to the injury.
There are no recorded complaints of knee pain in the general practitioners notes prior to the subject injury.
Cole is now the perennially cited authority on the construction and application of s 323. As Schmidt J said:
“S323 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.”
In our view, there is no evidence as to the actual consequences of any pre-existing condition Mr Scanes may have had.
The MA clearly considered the opinion of Dr Bosanquet and explained why he disagreed with that opinion.
In this case, the appellant accepts that Dr Bosanquet’s deduction was excessive, but nonetheless submits the MA “should have concluded that the extent of the deduction was difficult to determine in this instance and proceeded to apply the 10% deduction provided by s323(2) of the 1998 Act.”
For reasons set out earlier, this was not a “conclusion” the MA was required to reach, particularly in light of all the evidence and the absence of any radiological material prior to the subject injury.
Chapter 1.6 of the Guidelines sets out the principles of assessment. The importance of the exercise of clinical judgment by the MA in the process of assessment was reported by the Supreme Court in Glenn William Parker vSelect Civil Pty Limited [2018] NSWSC 140:
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 where it stated at [33]: ‘… the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face…”
For these reasons, the Appeal Panel has determined that the MAC issued on 17 May 2022 should be confirmed.
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