Laidlaw v Chambers & O'Brien t/as Old Farm Nursery

[2022] NSWPICMP 263

DETERMINATION OF APPEAL PANEL
CITATION:	Laidlaw v Chambers & O'Brien t/as Old Farm Nursery [2022] NSWPICMP 263
APPELLANT:	Gail Ellen Laidlaw
RESPONDENT:	David William Chambers & Gemma Mary O’Brien t/as Old Farm Nursery
APPEAL PANEL:
MEMBER	Jane Peacock
MEDICAL ASSESSOR	John Brian Stephenson
MEDICAL ASSESSOR	Margaret Gibson
DATE OF DECISION:	24 June 2022
CATCHWORDS:	WORKERS COMPENSATION – Right knee injury and consequential condition in left knee; in respect of the right lower extremity assessment Appeal Panel found that the Medical Assessor (MA) made a demonstrable error and made an assessment on the basis of incorrect criteria in respect of the assessment of the right lower extremity (right knee) because he incorrectly applied the criteria in Table 17; the assessment should have been based on the table from the American Medical Association's Guides to the Evaluation of Permanent Impairment 5th edition (AMA-5) which is modified in the WorkCover Guidelines page 21 table 17-35 which rates knee replacement results; in respect of the left lower extremity, the Appeal Panel found that the MA made a demonstrable error by failing to assess an impairment of the left knee on the basis that he considered that the condition was a constitutional one and not as a consequence of injury; Held – re-examination by a MA member of the Appeal Panel; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 3 December 2021 Ms Laidlaw (the appellant) 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 9 November 2021.

2. 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.

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. 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.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 WorkCover Medical Assessment Guidelines 2006.

2. As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel found error for the reasons explained below.

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.

Further medical examination

1. Dr John Brian Stephenson of the Appeal Panel conducted an examination of the worker on 25 May 2022.

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.

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. The matter was referred to the MA as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):       

•	Date of injury:	30/01/14 and 25/07/14
•	Body parts / systems referred:	Right lower extremity (knee)
•	Left lower extremity (knee, consequential)
•	Method of assessment:	Whole Person Impairment”

1. The MA issued a MAC certifying impairment as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Right lower extremity (knee)	30/01/14 and 25/07/14	Chap 3 P 13 P 18 Para 3.28	P 537 T 17-10 P 527 T 17-03	14	0	14
Left lower extremity (knee)	30/01/14 and 25/07/14			0	0	0
Total % WPI (the Combined Table values of all sub-totals)					14

1. The worker appealed.

2. There was complaint by the appellant about the assessment of the right lower extremity (knee). In summary the appellant submitted that the assessment should have been no less than 15% for a total knee replacement with ratings that increased that score dependent on clinical findings.

3. David William Chambers & Gemma Mary O’Brien t/as Old Farm Nursery (the respondent) had the opportunity to make submissions on all matters raised by the appellant. The respondent employer made no submissions in its notice of opposition about the right knee.

4. The appellant also complained on appeal about the assessment by the MA of 0% whole person impairment in respect of the left lower extremity (left knee).

5. In summary, the appellant submitted there was a constructive failure by the MA to exercise jurisdiction in assessing the impairment in respect of the consequential condition in the left knee that was referred to him and that this also amounted to practical injustice. The appellant submitted that the MA confused causation and the assessment of impairment. This was submitted to amount to a demonstrable error.

6. In summary the respondent employer submitted that the MA had not made a demonstrable error or an assessment on the basis of incorrect criteria. In summary the respondent submitted that it was clear from the MAC that the MA was aware a consequential condition had been referred to him for assessment and in any event, he did assess impairment from the consequential condition because on the basis of his clinical findings he found no rateable impairment of the left lower extremity. The respondent submitted that the MAC should be confirmed.

7. The Appeal Panel considered that the MA made a demonstrable error and made an assessment on the basis of incorrect criteria in respect of the assessment of the right lower extremity (right knee) because he incorrectly applied the criteria in Table 17. The assessment should have been based on the table from AMA-5 which is modified in the WorkCover Guidelines, page 21, Table 17-35 which rates knee replacement results.

8. In respect of the left lower extremity, the Appeal Panel also considered that the MA made a demonstrable error by failing to assess an impairment of the left knee on the basis that he considered that the condition was a constitutional one and not as a consequence of injury. He refers to the absence of a specific injury to the knee and expresses agreement with Dr Machard, the independent medical expert (IME) for the respondent, that the condition is a constitutional one and not a consequential condition as a result of the right knee injury. He says:

   “Dr Machart very strongly advises that the condition of the left knee is constitutional and is not a consequential injury from the right knee. He draws attention to clinical evidence supporting this view, with which I would agree. This is further supported by the very limited records of any left knee condition. This only features with the General Practitioner notes in mid-year 2019. There is no significant history of any specific issue resulting in injury or dysfunction of the left knee”.

9. When the MAC is read as a whole, it is on this basis of this finding that the 0% whole person impairment is assessed in respect of the left knee.

10. Given these errors, the Appeal Panel considered it necessary that the worker undergo a re-examination which was conducted by a member of the Appeal Panel Dr Stephenson. Dr Stephenson reported to the Appeal Panel as follows:

“REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL

Matter No:   M1-W3187/21

Appellant:   Ms Gail Ellen Laidlaw

Respondent:   David William Chambers & Gemma Mary O’Brien       t/as Old Farm Nursery

Examination Conducted By:    Dr J Brian Stephenson

Date of Examination:                25 May 2022

The medical assessor for the Medical Assessment Certificate was Dr Tim Anderson. The body parts referred: Right lower extremity knee and left lower extremity knee (consequential whole person impairment).

I consulted with the said Gail Laidlaw aged 57. She and her lady partner had travelled down from Port Stephens in a limousine such that she was able to attend in my Sydney rooms.

1. The worker's medical history, where it differs from previous records

History was compatible with the previous records including the MAC of Dr Tim Anderson. Gail again confirmed the history of injury at the nursery, she slipped in the mud and severely twisted the right knee on dates of injury 30 January 2014 and 25 July 2014.

Gail confirmed her occupation as having worked at the plant nursery for four years who traded as Old Farm Nursery in Newcastle. She said there were some leaking taps and she went to turn the taps off in the ground and the steel-capped boots slipped in the mud and tended to stay there and she slipped and severely twisted the right knee. She said the right knee went in the opposite direction.

She previously worked in security for 18 years. She confirms she has had a right hemiarthroplasty in the medial compartment for osteoarthritis. An MRI prior to the first surgery confirmed a complex radial tear of the medial meniscus posterior horn.

Under the care of Dr Jorgen Hellman, she had an arthroscopy of the right knee on 13 March 2014. He noted “medial compartment grade 3 degeneration medial femoral condyle with chondral flapping and a tear of the posterior horn of the medial meniscus. This was all debrided with a shaver. Anterior cruciate ligament intact, lateral compartment is in good condition.” Dr Hellman.

Subsequently at John Hunter Hospital in Newcastle there was a hemiarthroplasty performed right knee medial compartment. An MRI of 17 July 2019 left knee confirmed torn medial meniscus, moderate osteoarthritis medial compartment with bone marrow oedema.

John Hunter Hospital discharge summary planned admission under the care of Dr Young for right knee osteoarthritis, unicompartmental arthritis, taken to theatre 10 January 2017, right unicompartmental knee replacement, postoperative course uncomplicated.

It is noted that there was a consequential injury left knee and as I have noted above an MRI left knee of 17 July 2019 conclusion torn medial meniscus, moderate osteoarthritis medial compartment, bone marrow oedema. There has not been surgery on the left knee but there are complaints of pain and restriction of movement left knee. The assessment for the right knee with the unicompartmental arthroplasty is the table from AMA-5 which is modified in the WorkCover Guidelines, page 21, table 17-35 rating knee replacement results.

For pain Endone has been prescribed previously, that has been stopped now. Occasionally she may take one Endone tablet if there has been pain for several days. Otherwise, she takes nothing for pain.

Reference now to the table 17-35, page 21 of the WCC Guidelines. This table is divided in several sections.

a.     Pain.

b.     Range of motion.

c.     Stability.

There are deductions namely d, e and f.

Points are scored and added up and then the deductions are subtracted.

a.     Pain: Walking and stairs, 30 points.

b.     Range of motion: Flexion to 100 degrees equals 20 points as we add 1 point per 5 degrees.

c.     Stability: Anteroposterior less than 5 mm, 10 points. Mediolateral 5 degrees, 15 points.

Deduction (minus) d, e, f:

d.     Flexion contracture: 10-15 degrees, 5 points.

e.     Extension lag: 10 degrees to 20 degrees, 10 points.

f.      Tibiofemoral alignment: 5-10 degrees valgus equals 0 points.

Now we add the points and then do the deductions. Addition is 30 with 20 with 10 with 15, that gains 75 points. Deductions are 15 points, therefore the net is 60 points.

Reference AMA-5, page 546-547, Table 17-33, a fair result is between 50 and 84 points, here we have got 60 points equals 20% whole person impairment. There is no deductible proportion in the absence of previous injury, condition or abnormality.

Assessment of the Left Lower Extremity (Knee)

Reference to range of motion AMA-5, page 537, Table 17-10 for knee motion and assessment. For the left knee, there is a loss of extension which is therefore a flexion contracture and is moderate as it is 12 degrees, which is in the range 10 to 19 degrees, that gains 20% lower extremity (8% WPI). Flexion is to 125 degrees, therefore no impairment. She does walk with a slight limp.

With that flexion contracture left knee, there is an 8% WPI rating.

The values are now combined of right with left knee, the left being consequential injury. Thus the combination of 20 with 8, that gains 26% whole person impairment. There is no deductible proportion in the absence of previous injury, condition or abnormality according to Section 323.

Conclusion: 26% whole person impairment.

It is noted Dr Anderson found a 14% WPI for the right knee and no impairment left knee in the MAC on 9 November 2021. Regarding the two dates of injury that is referred to by her lawyers and also in the history obtained, she said she aggravated the right knee and was dismissed by the company.

2.   Additional history since the original medical assessment certificate was performed.

There is no additional history.

3.   Findings on clinical examination.

These are set out above.

4. Results of any additional investigations to original medical assessment certificate.

There were no additional investigations.”

1. The Appeal Panel adopts the findings of Dr Stephenson which results in the following assessment:

Body Part or system	Date of Injury	Chapter, page and paragraph number in SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Right lower extremity (knee)	30/01/14 and 25/07/14	Chap 3 P 13 P 18 Para 3.28	P 537 T 17-10 P 527 T 17-03	20	0	20
Left lower extremity (knee)	30/01/14 and 25/07/14			8	0	8
Total % WPI (the Combined Table values of all sub-totals)					26

1. For these reasons, the Appeal Panel has determined that the MAC issued on 9 November 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W3187/21
Applicant:	Gail Ellen Laidlaw
Respondent:	David William Chambers & Gemma Mary O’Brien t/as Old Farm Nursery

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Right lower extremity (knee)	30/01/14 and 25/07/14	Chap 3 P 13 P 18 Para 3.28	P 537 T 17-10 P 527 T 17-03	20	0	20
Left lower extremity (knee)	30/01/14 and 25/07/14			8	0	8
Total % WPI (the Combined Table values of all sub-totals)					26

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.