Jennar v Secretary, Department of Transport

Case •

[2024] NSWPICMP 305

•

21 May 2024
DETERMINATION OF APPEAL PANEL
CITATION: Jennar v Secretary, Department of Transport [2024] NSWPICMP 305
APPELLANT: Mark Wade Jennar
RESPONDENT: Secretary, Department of Transport
APPEAL PANEL
MEMBER: Carolyn Rimmer
MEDICAL ASSESSOR: Mark Burns
MEDICAL ASSESSOR: Drew Dixon
DATE OF DECISION: 21 May 2024
CATCHWORDS: 

WORKERS COMPENSATION - Workers Compensation Act 1987; threshold claim under section 32A in respect of injury to the lumbar spine in 1997; worker appealed in relation to application of paragraph 3.28 of the Guidelines; Panel satisfied that paragraph 3.28 applied and not table 17-33 of AMA5; no error in methodology used by Medical Assessor but failure to add additional 1% whole person impairment for medial meniscectomy; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 4 March 2024 Mark Wade Jennar (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate on 14 August 2023 (the first MAC) in which he deferred assessment of permanent impairment of the left and right knees. On 12 February 2024, Dr Kuru (the Medical Assessor) issued a Medical Assessment Certificate Further Assessment or Reconsideration (second MAC).

  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).

RELEVANT FACTUAL BACKGROUND

  1. The appellant lodged an Application for Assessment by a Medical Assessor (ARD) in the Personal Injury Commission (Commission) dated 29 May 2023 for assessment as to whether the degree of permanent impairment is more than 30% (s 32A of the Workers Compensation Act 1987). The appellant alleged that he sustained a personal injury on 9 September 1997 and claimed 12% whole person impairment (WPI) of the lumbar spine as a result of the injury in his employment.

  2. In the Certificate of Determination – Consent Orders dated 27 June 2023 Member Whiffen made the following orders:

    “1. The name of the respondent is amended to Secretary, Department of Transport in

    lieu of Rail Infrastructure Corporation.

    2. The application for assessment by a Medical Assessor is amended to add

    Assessment as to whether the degree of permanent impairment is more than 20%.

    3. I remit this matter to the President for referral to a Medical Assessor pursuant to s

    321 of the Workplace Injury Management and Workers Compensation Act 1998

    for assessment as follows:

    a. date of injury: 9 September 1997;

    b. body systems/parts: lumbar spine, left lower extremity (knee), right lower

    extremity (knee); and

    c. method of assessment: whole person impairment.

    4. The documents to be reviewed by the Medical Assessor are:

    a. application for assessment by a Medical Assessor and attached documents; and

    b. respondent’s response to application for Medical Assessment and

    attached documents.

    5. The allegation of a cervical spine injury/consequential injury due to events on 9

    September 1997 is withdrawn from the application for assessment by a Medical Assessor.”

  3. In the Referral for Assessment of Permanent Impairment to Medical Assessor dated
    29 June 2023, the matter was referred to the Medical Assessor Robert Kuru, for assessment of WPI of the lumbar spine, left lower extremity (knee) and right lower extremity (knee) with the date of injury being 9 September 1997.

  4. The Medical Assessor examined the appellant on 18 July 2023 and assessed 7% WPI of the lumbar spine. The Medical Assessor assessed 0% WPI of the lumbar spine and did not assess impairment in the left lower extremity (knee) and right lower extremity (knee) as he believed that impairment would best be assessed radiologically and recommended the appellant be referred for weight bearing X-rays of both knees. 

  5. In a Further Assessment or Reconsideration, issued 12 February 2024, the Medical Assessor noted that he had been supplied with copies of X-rays of the left and right knees taken on 25 August 2023. The Medical Assessor assessed 9% WPI of the left lower extremity and then made a deduction of one tenth for pre-existing injury, condition or abnormality which resulted in a total of 8% WPI for the left lower extremity. The Medical Assessor assessed 0% WPI for the right lower extremity. Therefore, the total WPI was 8% as a result of the injury on 9 September 1997.

PRELIMINARY REVIEW

  1. 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.

  2. The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel. The respondent submitted that the Appeal Panel ought to determine whether a further examination of the appellant is required in order to determine the appeal.

  3. As a result of that preliminary review, the Appeal Panel determines that it was not necessary for the worker to undergo a further medical examination because there was sufficient information on which to make a determination. The Appeal Panel notes that the appellant had no issue with the actual examination findings of the Medical Assessor but only with the methodology used.

EVIDENCE

Documentary evidence

  1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 

Medical Assessment Certificate

  1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

  1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.

  2. The appellant’s submissions include the following:

    (a)    Ground 1 – the first MAC contained a direction that the appellant undergo further weight bearing x-rays. In the second MAC at paragraph 5, the Medical Assessor wrote: “AMA5 requires a reference scale to be included in the x-rays, which has not been supplied in this case”;

    (b)    the first MAC failed to specify that “a reference scale” was necessary “to allow comprehensive evaluation” and failure to explain this represents a demonstrable error in both MACs. Further, these circumstances were a denial of procedural fairness. Being unfair, the assessment was made on the basis of incorrect criteria;

    (c)    ground 2 - inconsistencies – the first MAC had other anomalies in relation to the description of back pain, and a certification that the degree of permanent impairment was fully ascertainable (when it was not) and a finding of injury to the right knee subject to the statutory one tenth deduction. This deduction was rendered absurd when the second MAC assessed 0% WPI for that part;

    (d)    ground 3 – Guidelines at 3.28. In the second MAC, the Medical Assessor stated that he is in agreement with Dr Bodel and Dr Harrington that it is appropriate to assess the appellant’s knee as having a patellofemoral arthroplasty but then assessed the knee according to the Guidelines on page 18, paragraph 3.28 as 9% WPI;

    (e)    the Guidelines at the bottom of page 18 allow for greater measure that the MAC states. Additional WPI measure may be combined with the 9% stated. Because the second MAC misapprehends that the Guidelines restricted the left knee assessment to 9% WPI, the assessment was made of the basis of incorrect criteria;

    (f)    ground 4 – there have been a number of surgical procedures on the appellant’s knee including more than one attempt at patella-femoral joint replacement (see report of Dr Harrington dated 20 June 2022).  When this history is considered, the condition of “isolated” in paragraph 3.28 appears to have been overlooked and the assessment made on the basis of incorrect criteria;

    (g)    ground 5 – application of AMA Table 17-33. The second MAC at 6(c) noted concurrence with the diagnoses of Dr Bodel and Dr Harrington.  Dr Bodel, in his report of 14 July 2021, made an assessment under Table 17-35 of AMA5 as modified by the Guidelines on page 21 and wrote: This joint replacement attracts a ‘fair’ outcome with a 76 point rating from that Table. This attracts 20% WPI for the left lower extremity taken from table 17-33…”;

    (h)    the second MAC  did not explain why Table 17-33 was not preferred in circumstances where there was an extensive history of surgeries to the left knee, where it was the method adopted by both Dr Bodel and Dr Harrington,  and was the method that gave the most accurate clinical impairment rating (AMS 5 page 526 and was the method that yields the highest degree of permanent impairment (Guidelines 1.9), and

    (i)    the absence of explanation in the second MAC was a demonstrable error. The Medical Assessor failed to provide reasons sufficient for understanding the assessment.

  3. The respondent’s submissions include the following:

    (a)    in answer to the submissions concerning demonstrable error in both MACs, the respondent submits no such demonstrable error or denial of procedural fairness has been demonstrated in circumstances where the Medical Assessor exercised the power conferred upon him under s 324(1)(b) of the 1998 Act;

    (b)    furthermore, the appellant has not sought to adduce any additional evidence (including the reference scale) on appeal. And so it is difficult to appreciate how a denial of procedural fairness is made out, and

    (c)    the respondent concedes that the appellant’s submissions concerning paragraph 3.28 of the Guidelines and the application of Table 17-35 of AMA5 may have merit and whilst not conceding any error on the part of the Medical Assessor, defers to the Appeal Panel in that regard.

FINDINGS AND REASONS

  1. 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.

  2. 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.

  3. Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
    s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

  4. It was not clear to the Appeal Panel whether Grounds 1 and 2 were limited to the question for the President as to whether there were special circumstances to justify an increase in the period for the appeal or were part of the grounds to be considered by an Appeal Panel. The Appeal Panel for convenience will deal with those grounds briefly.

Ground 1 - Failure to specify the requirement for a reference scale in weight bearing X-rays

  1. The appellant submits that the Medical Assessor’s request in the first MAC for X-rays failed to specify that “a reference scale” was necessary “to allow comprehensive evaluation” and that the omission of that specification and failure to explain it was a demonstrable error. The appellant submits that these circumstances amounted to a denial of procedural fairness as the appellant was not given the opportunity to supply to the Medical Assessor the material required which may be relevant to the formation of his opinion.

  2. The appellant submits that being unfair, the assessment was based in incorrect criteria as the Guidelines at paragraph 1.46 provide: “A report of the evaluation of permanent impairment should be accurate, comprehensive and fair.”

  3. In the first MAC under the “Reasons for Assessment”, the Medical Assessor wrote:

    “Mr Jennar obviously has osteoarthritis in both knees. He has not had any recent imaging on his knees. I believe his impairment would be best assessed radiographically and recommend he be referred for x-rays of both knees to appropriately assess his impairment”.

  4. In the second MAC, under details and dates of further special investigations, the Medical Assessor wrote:

    “X-rays of the left and right knee, 25 August 2023 confirming osteoarthritis of the left and right knees, including weight bearing and patella skyline views. Reference scales for measurement are not included.

    AMA5 page 544 Table 17.31 allows assessment of impairment on the basis of x-ray cartilage intervals. For such measurements, AMA requires a reference scale to be included in the x-rays, which has not been supplied in this case. To allow estimation of assessment of the x-rays is made, assuming a bicondylar width of 8.86cm (Gender and side to side differences of femoral condyle morphology: Osteometric data from 360 Caucasian dried femori, Terzidis et al, Anatomy Research International Vol 2012; Article ID 679658).

    In reviewing the weight bearing AP knee films, the condylar distance measures 8.9mm on both knees. This suggests no significant magnification. Joint space measurement for the right knee as follows:

    Lateral compartment 4mm

    Medial compartment 4mm.

    Left knee:

    Medial compartment 4mm

    Lateral compartment 5mm.

    According to SIRA page 544, Table 17.31, no impairment is assessable for osteoarthritis of the tibio-femoral articulation from the imaging supplied.

    With respect to the patellofemoral skyline views, the transcondylar distance measures 11cm, suggesting significant magnification. The medial and lateral patellar femoral articulations in the right and left knee measure 5mm. 8.86 divided by 11 times 5 equals 4mm. According to SIRA page 544, Table 17.31, impairment is not assessable for patellofemoral osteoarthritis”.

  5. The Appeal Panel agrees with the appellant that the Medical Assessor did not specify in his request for X-rays failed to specify that “a reference scale” was necessary “to allow comprehensive evaluation”.  However, despite the reference to the need for a reference scale, the Medical Assessor was able to measure without scales the cartilage intervals and joint spaces. The X-rays showed no substantial narrowing so no scales were actually required as the spaces were within a normal range. The only magnification was in the skyline view but that was the part replaced and required assessment under 3.28 of the Guidelines.

  6. It is necessary to consider whether there has been any practical injustice in the approach the Medical Assessor adopted.

  7. The Medical Assessor concluded that there was no impairment assessable for osteoarthritis in the tibio-femoral articulation and the medial and lateral patellar femoral articulations.  The Medical Assessor did not make an assessment based on the radiography, and any error in terms of failure to specify that a reference scale was necessary, is not material to the assessment.

  8. In these circumstances, the Appeal Panel does not accept that there was a denial of procedural fairness as the absence of a reference scale was not relevant to the formation of the Medical Assessor’s opinion.

Ground 2 – Inconsistencies

  1. The appellant submits that there were inconsistencies in the first MAC in relation to the description of back pain which were unexplained. Further, the appellant submits that in the first MAC the certification that the degree of permanent impairment was fully ascertainable was incorrect and that a finding of injury to the right knee subject to the statutory one tenth deduction, which was rendered absurd when the second certificate assessed 0% WPI for that part.

  2. The Appeal Panel accepted that there were some inconsistencies between the two MACs concerning the right knee and also in the first MAC concerning the description of back pain. However, the later grounds of appeal relate only to the assessment of the left knee and therefore any inconsistencies are not relevant to the assessment.  The Appeal Panel concluded that these inconsistencies were not material to the assessment.

Ground 3 - Paragraph 3.28 of the Guidelines

  1. The appellant submits that in the second MAC, the Medical Assessor agreed with Dr Bodel and Dr Harrington that it is appropriate to assess the appellant’s knee as having a patellofemoral arthroplasty. However, the Medical Assessor decided that the left knee “should be assessed according to SIRA page 18, paragraph 3.28, 9% whole person impairment”. The appellant argues that the Guidelines at the bottom of page 18 allow for greater measure that the MAC states.

  2. The Guidelines at 3.28 provide:

    “Patello-femoral joint replacement: Assess the knee impairment in the usual way and combine with 9% WPI (22% LEI) for isolated patello-femoral joint replacement.” 

  3. The appellant submitted that therefore, additional WPI measures may be added to the 9% stated and because the second MAC “misapprehends” that the Guidelines restricted the left knee assessment to 9% WPI, the assessment was made of the basis of incorrect criteria.

  4. The Appeal Panel agree that the Medical Assessor (in the second MAC), Dr Bodel and
    Dr Harrington all made a diagnosis of patellofemoral arthroplasty in the left lower extremity. However, it appears that only Dr Bodel assessed impairment under AMA5 Table 17-35. The Medical Assessor made an assessment of impairment under paragraph 3.28 of the Guidelines relying on the section in that paragraph that refers specifically to patella-femoral joint replacement.  The Appeal Panel inferred that Dr Harrington also assessed impairment under paragraph 3.28 of the Guidelines as his assessment in his report of 23 February 2023 in respect of the left knee was 8% WPI. Dr Harrington, unfortunately, did not explain his methodology but it is most improbable that this represents an assessment under AMA5 Table 17-35. The Appeal Panel accepts that Dr Harrington stated in his report of
    20 June 2022 that he agreed with Dr Bodel’s calculations for the left knee resultant from the hemi-arthroplasty (using Table 17-33), but he assessed the left knee under the Table of Disabilities because the injury occurred before 1 January 2022. However, the Appeal Panel considers it evident that Dr Harrington later changed his view concerning the methodology to be used for the assessment of the left knee because he only made an assessment of 8% WPI for the left knee.

  1. The Guidelines adopt AMA 5 in most cases (paragraph 1.1). However, where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.

  2. The Guidelines make specific provision at paragraph 3.28 in respect of various conditions including patella-femoral joint replacement. Reference to AMA 5 Table 17-35 is made in the Guidelines at paragraph 3.29 and on page 21 under “AMA5 Table 17-35: Rating knee replacement results”.

  3. The Appeal Panel noted that 3.29 of the Guidelines provides:

    “AMA5 tables 17-34 and 17-35 (pp 548–49) use a different concept of evaluation. A point score system is applied, and then the total points calculated for the hip (or knee) joint are converted to an impairment rating from Table 17-33. Tables 17-34 and 17-35 refer to hip and knee joint replacements respectively. Note that, while all the points are added in Table 17-34, some points are deducted when Table 17-35 is used. (Note that hemiarthroplasty rates the same as total joint replacement.)”

  4. The Guidelines clearly provide a specific method for assessment of patella-femoral joint replacements which is distinct from the method used for knee joint replacements. The Appeal Panel agree that in this case where the appellant underwent a patello-femoral joint replacement that the methodology adopted by the Medical Assessor was correct. This procedure, a patellofemoral joint replacement, is different and less invasive to a total knee replacement where the end of the femur and the tibia are removed and replaced with implants and if necessary, the back of the kneecap (patella) is also replaced.

  5. The Appeal Panel agrees with the appellant that an assessment under paragraph 3.28 of the Guidelines requires an assessment of the knee impairment in the usual way which is then combined with 9% WPI for isolated patella-femoral joint replacement.

  6. The Medical Assessor, after requesting weight bearing X-rays, concluded that there was no no impairment assessable for osteoarthritis. The Appeal Panel noted that the range of movement on examination by the Medical Assessor as recorded in the first MAC was normal and no impairment could be assessed under Table 17-10 of AMA5 for loss of motion in the knee. However, the Appeal Panel noted that the appellant underwent a partial medial meniscectomy on 8 June 2006. Under Table 17-33 of AMA5 a partial medial meniscectomy rates 2% lower extremity impairment (LEI) or 1% WPI. The Appeal Panel finds that the failure to include an assessment for the medial meniscectomy in the total assessment of knee impairment calculated under paragraph 3.28 of the Guidelines was an error. The Appeal Panel concludes that 2% LEI for the medial meniscectomy should be combined with the 22% LEI, which totals 24% LEI or 10% WPI. The Medical Assessor deducts one tenth for pre-existing condition in his assessment of the right knee. The Appeal Panel noted that the s 323 deductions is not appealed and therefore applies the same deduction which results in an assessment of 9% for the left knee.

Ground 4 - Multiple surgical procedures

  1. The appellant submitted that he had undergone multiple surgical procedures on his left knee, including more than one attempt at patella-femoral joint replacement. The appellant argued that when this history is considered, the condition of “isolated” in paragraph 3.28 appears to have been overlooked and the assessment made on the basis of incorrect criteria.

  2. The Medical Assessor in the first MAC noted:

    “He was subsequently referred to Dr Wood, an Orthopaedic Surgeon and he underwent a tibial tubercle transfer. He had further arthroscopies over years. In 2010 he underwent chondroplasty and insertion of a button to address a retropatellar chondral defect”.

  3. In the “Reasons for Assessment”, the Medical Assessor wrote:

    “Mr Jennar obviously has osteoarthritis in both knees. He has not had any recent imaging on his knees. I believe his impairment would be best assessed radiographically and recommend he be referred for x-rays of both knees to appropriately assess his impairment.”

  4. In commenting on the other medical opinions, the Medical Assessor wrote:

    “With respect to the assessment of the left knee, I disagree with the assessment of the right knee as a patellofemoral arthroplasty. Mr Jennar underwent a HemiCAP procedure which is a procedure aimed at filling localised chondral defects in the patellofemoral joint. According to the SIRA Guidelines page 20, paragraph 3.28 under resurfacing procedures, states “No additional impairment is to be awarded for resurfacing procedures used in the treatment of localised cartilage lesions and defects in major joints”.

    With respect to the report by Dr Harrington dated 20 June 2022, he indicates that he agrees with Dr Bodel assessing the left knee as having had an arthroplasty. Again, I think this is inconsistent with the SIRA Guidelines page 20, paragraph 3.28.”

  5. In the second MAC, the Medical Assessor at [6] noted:

    “b) According to SIRA page 18, paragraph 3.28, 9% whole person impairment is assessable for patellofemoral joint replacement. The x-rays supplied of the left knee demonstrate a femoral button with polyethylene implant attached to the patella. This is reasonably assessable as a patellofemoral joint replacement. AMA page 526, Table 17.2 directs that muscle atrophy not to be combined with diagnosis based estimates.

    Given that 9% whole person impairment for the patellofemoral arthroplasty exceeds 5% whole person impairment for the quadriceps muscle wasting, the 9% is selected.

    …

    c) My brief comments regarding the other medical opinions and findings submitted by

    the parties and, where applicable, the reasons why my opinion differs:

    Having reviewed the imaging, I am in agreement with Dr Bodel and Dr Harrington that it is appropriate to assess Mr Jennar’s knee as having had a patellofemoral arthroplasty. This, however, should be assessed according to SIRA page 18, paragraph 3.28, 9% whole person impairment.”

  6. Dr Christopher Harrington, consultant orthopaedic surgeon, in a report dated 20 June 2022 took the flowing history:

    “As you know, Dr Wood has since performed a number of operations on his left knee. I note he initially had an arthroscopic lateral release and re-alignment of the patella on 28 May 1998. He then had the screws removed and a tibiaI transfer procedure on 11 November 2004, followed by a medial meniscectomy on 8 June 2006…

    He then continued treatment for ongoing problems with his left knee. This included an arthroscope at the Mater Private Hospital on 12 May 2010, where Dr Wood identified the extensive lesion on the retropatella surface.

    The loose chondral flaps were debrided and the chondral fragments were removed.

    The previous partial medlal menlscectomy Is noted.

    He also had a hemi cap patellofemoral replacement with screw fixation of the distal

    femur at the Mater Private Hospital on 13 December 2010. Enclosed reports from

    Dr Wood also indicate a hemi cap patellofemoraI replacement, with an extensive chondroplasty and osteoplasty of the left knee at the Mater Private Hospital on 13 July 2011. Dr Wood has noted that the menisci were intact, however, he had deep chondral Grade IV changes on the medial and lateral femoral condyles.”

  7. Dr James Bodel, consultant orthopaedic surgeon, in a report dated 14 July 2021, made an assessment via telehealth. Dr Bodel assessed 7% WPI of the lumbar spine, 4% WPI for the right lower extremity (knee) and 20% WPI for the left lower extremity (knee). Dr Bodel assessed impairment in the left knee on the basis that the appellant had a patellofemoral replacement procedure and used Table 17-35 on page 540 of AMA 5 as modified on page 21 of the Guidelines. Dr Bodel considered that the appellant had a “fair” outcome with a 76 point rating from that Table which attracts 20% WPI taken from table 17-33 on page 547 of AMA 5.

  8. As noted above, the Guidelines at paragraph 3.28 provide: “Patello-femoral joint replacement: Assess the knee impairment in the usual way and combine with 9% WPI (22% LEI) for isolated patello-femoral joint replacement.” 

  9. The Appeal Panel accepts that the appellant had multiple surgical procedures performed on his left knee over the years. However, the Appeal Panel considers in the context of paragraph 3.28 the word “isolated” refers to the actual procedure in which the patella-femoral joint replacement is undertaken. The Appeal Panel is satisfied that the procedure involving the patella-femoral joint replacement could be described as an isolated patella-femoral joint replacement.

  10. Dr Wood performed the hemi cap patellofemoral replacement on 13 December 2010.
    Dr Wood later performed extensive chondroplasty and osteoplasty on 13 July 2011. However, the Guidelines at paragraph 3.28 (page 20) provide that no additional impairment is to be awarded for resurfacing procedures used in the treatment of localised cartilage and defects in major joints.

  11. The Appeal Panel is satisfied that the Medical Assessor did not overlook the requirement that paragraph 3.28 applied to an isolated patella-femoral joint replacement and the assessment was made on the basis of correct criteria.

Ground 5 - application of AMA 5 Table 17-33

  1. The appellant submits that in the second MAC the Medical Assessor concurred with the diagnoses of Dr Bodel and Dr Harrington.  The appellant argued that Dr Bodel made an assessment under Table 17-35 of AMA5 (as modified by the Guidelines on page 21) but the Medical Assessor did not explain why he did not prefer Table 17-33 in circumstances where there was an extensive history of surgeries to the left knee.

  2. The appellant submits that assessment under Table 17-33 was the method adopted by both Dr Bodel and Dr Harrington, and was the method that gave the most accurate clinical impairment rating and the method that yields the highest degree of permanent impairment.

  3. The Guidelines at 1.9 provide:

    “The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant’s permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. (This does not apply to gait derangement – see paragraphs 3.5 and 3.10 in the Guidelines).”

  4. As noted above in the second MAC, the Medical Assessor wrote: “I am in agreement with
    Dr Bodel and Dr Harrington that it is appropriate to assess Mr Jennar’s knee as having had a patellofemoral arthroplasty. This, however, should be assessed according to SIRA page 18, paragraph 3.28, 9% whole person impairment”.

  5. As noted above, Dr Harrington, in his report dated 23 February 2023, assessed 8% WPI for the left knee and 7% WPI for the lumbar spine, which combined to give 14% WPI. However, Dr Harrington did not indicate how he arrived at the assessment of 8% WPI for the left knee.

  6. The appellant submits that Medical Assessor did not explain why he did not prefer Table 17-33 in circumstances where there was an extensive history of surgeries to the left knee. As noted above, the Appeal Panel considered that the history of multiple surgeries to the left knee does not affect the application of the provisions in paragraph 3.28 of the Guidelines. The use of the word “isolated” is to be read as applying to the actual surgical procedure in which the patella-femoral joint replacement is undertaken. For example, if the patella-femoral joint was replaced in a surgical procedure where the surgeon also performed a replacement of a tibio-femoral joint (hemiarthroplasty or full joint replacement) in the knee, the assessment would not be made under paragraph 3.28 of the Guidelines.

  7. In circumstances where the word “isolated” is looked at in the context of the actual surgical procedure, the Medical Assessor gave sufficient reasons for not explaining why he did not prefer Table 17-33 as the method for assessment.

  8. The appellant submits that assessment under Table 17-33 was the method adopted by both Dr Bodel and Dr Harrington, and was the method that gave the most accurate clinical impairment rating and the method that yields the highest degree of permanent impairment.

  9. Firstly, Table 17-33 does not appear to be the method of assessment adopted by
    Dr Harrington as he only assessed 8% WPI for the left knee. Secondly, the question of an alternate method of assessment only arises if there is an actual alternate method of assessment available under the Guidelines. The Medical Assessor referred to a method of assessment by reference to muscle wasting but stated that the assessment of 9% WPI for the patellofemoral arthroplasty exceeded the 5% WPI for quadriceps muscle wasting and so muscle wasting was not selected as a method of assessment. The Appeal Panel does not regard assessment under Table 17-33 as an alternate method of assessment that is applicable in this case because the Guidelines make specific provision for assessment of patellofemoral joint replacement at paragraph 3.28. 

  10. The appellant submits that the absence of explanation in the second MAC was a demonstrable error and the Medical Assessor had failed to provide reasons sufficient for understanding the assessment.

  11. The Appeal Panel considered that the Medical Assessor did provide sufficient reasons for understanding the assessment as he applied paragraph 3.28 of the Guidelines and Table 17-35 of AMA5 (as modified in the Guidelines) applies to a different condition. The appellant underwent a patella-femoral joint replacement and the Guidelines provide that such a procedure is to be assessed in accordance with Paragraph 3.28 of the Guidelines. The appellant did not undergo a knee replacement which would involve the tibiofemoral joint but only had a resurfacing and replacement on the patellofemoral joint. There was no resurfacing of femur and tibia but only of the patella femoral joint and therefore the assessment was to be made under paragraph 3.28 of the Guidelines.

  12. In summary, the Appeal Panel agrees with the methodology used by the Medical Assessor in assessing impairment under paragraph 3.28 of the Guidelines. However, the Medical Assessor made an error in not including an additional assessment for partial medial meniscectomy.

  13. For these reasons, the Appeal Panel has determined that the MAC issued on
    12 February 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:

W3729/23

Applicant:

Mark Wade Jennar

Respondent:

Secretary, Department of Transport

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 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)

1.Left lower extremity (knee)

09/09/1997

P18, 3.28

P537 17.10

P530 17.06

P 546 17.33

P526 17.02

10%

1/10th

9%

2. Right lower extremity (knee)

09/09/1997

P17, 3.23

P537 17.10

P530 17.06

P 546 17.33

P526 17.02

0%

0

0%

Total % WPI (the Combined Table values of all sub-totals)  

9%
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Campbelltown City Council v Vegan [2006] NSWCA 284