Lane v F T Tudor Pty Ltd
[2021] NSWPICMP 125
•15 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lane v F T Tudor Pty Ltd [2021] NSWPICMP 125 |
| APPELLANT: | Mark Lane |
| RESPONDENT: | F T Tudor Pty Ltd |
| APPEAL PANEL: | Member William Dalley Dr David Crocker Dr James Bodel |
| DATE OF DECISION: | 15 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The appellant worker suffered an injury to his right ankle and a consequential condition in the left ankle with a medical dispute as to the extent of impairment for the purposes of section 39 of the 1987 Act; MAC issued assessing 7% WPI in respect of the right lower extremity (ankle) but noting that the left ankle had not reached maximum medical improvement; the Medical Assessor assessed the appellant on the basis of a single subtalar fusion although the undisputed evidence established that there had been a triple arthrodesis; Held- the Medical Assessor had not assessed the appellant in accordance with the guidelines and demonstrable error was established; assessment of overall impairment was declined by the Panel as the left ankle had not reached maximum medical improvement; the appellant had undergone surgery on the left ankle the day prior to examination by the Medical Assessor and the Panel was of the view that the ankle would not reach maximum medical improvement until approximately 12 months after that surgery. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 April 2021 Mark Lane (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, who issued a Medical Assessment Certificate (MAC) on 31 March 2021.
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 grounds 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).
RELEVANT FACTUAL BACKGROUND
Mr Lane suffered an injury to his right ankle on 17 February 2014 in the course of his employment with the respondent, F T Tudor Pty Limited. Initial conservative treatment was not successful in easing the symptoms and Mr Lane was referred to an orthopaedic surgeon, Dr Sullivan, who performed bone and soft tissue procedures including reconstruction of the spring ligament, flexor digitorum longus tendon transfer and Achilles tendon lengthening as well as a medial displacement calcaneal osteotomy in respect of a fixed hindfoot valgus.
Mr Lane continued to experience problems in the right ankle and underwent a number of further operations which included fusion of the subtalar, talonavicular and calcaneocuboid joints.
Mr Lane subsequently suffered a consequential condition in the left ankle when he lost his balance in the course of his rehabilitation and sustained an acute inversion injury to the left ankle. On 15 October 2015 he underwent surgery of the left ankle. Further damage to the left ankle occurred when Mr Lane tripped in the course of his rehabilitation.
Mr Lane subsequently underwent right subtalar joint fusion on 20 August 2019 followed by a similar procedure in the left ankle in June 2020.
On 13 July 2020 the workers compensation insurer gave notice of the cessation of weekly payments pursuant to section 39 of the Workers Compensation Act 1987 (the 1987 Act). The insurer noted:
“Based on your recent right subtalar joint fusion surgery by Dr Peter Lam on 11/06/2020, you have not reached maximum medical improvement. Therefore, your whole person impairment is not able to be assessed, and you will have no entitlement to weekly benefits after a total of 260 weeks has been paid.”
At the request of his solicitors, Mr Lane was examined by an orthopaedic surgeon, Dr Graham Doig, on 20 November 2020. Dr Doig assessed Mr Lane as having 9% whole person impairment (WPI) in respect of the right lower extremity, 12% WPI in respect of the left lower extremity and 4% WPI in respect of scarring. Dr Doig attributed 1/10 of the lower extremity impairments to pre-existing conditions in the respective ankles and calculated a total of 21% WPI as result of the subject injury.
In January 2021 the treating orthopaedic surgeon, Dr Lam, reported unstable non-union of the left subtalar joint fusion. Dr Lam recommended further surgery with removal of previously placed hardware and revision of the fusion of the subtalar and calcaneocuboid joints. That surgery was performed on 18 February 2021.
Immediately prior to that surgery Mr Lam’s solicitors filed an Application for Assessment by an Approved Medical Specialist (now Medical Assessor) (the Application) seeking “assessment as to whether the degree of permanent impairment is more than 20%” for the purposes of section 39 of the 1987 Act. The form filed did not include a request for “Assessment as to whether the degree of permanent impairment is fully ascertainable (section 319(g) of the 1998 Act).” The Application did however note the then proposed surgery to the left ankle and stated: “The Applicant’s proposed surgery results in his condition being unstable and he is entitled to weekly payments pursuant to section 39 of the Workers Compensation Act 1987”.
The respondent filed a Reply attaching the notice pursuant to section 39 asserting that WPI was not able to be assessed. The dispute was accordingly referred to the Medical Assessor to assess:
“• the degree of permanent impairment of the worker as a result of an injury (s319(c))
• whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
• whether impairment is permanent (s319(d))
• whether the degree of permanent impairment of the injured worker is fully ascertainable (s329(g)) (sic – s319(g))”.
The Medical Assessor assessed Mr Lane as having 6% WPI in respect of the right lower extremity and 1% in respect of scarring. The Medical Assessor noted that the condition in the left lower extremity was “not yet assessable”. The MAC included the following Table:
| 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 | 17/02/14 | Chap 3 P 13 | P 537 T 17-11 P527 T 17-03 | 6 | 0 | 6 |
| Left lower extremity | Not yet assessable | |||||
| Scarring | P 74 T 14.1 | 1 | 0 | 1 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 7 | |||||
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.
The appellant requested re-examination by a Medical Assessor member of the Panel. 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 the evidence establishes that it is probable that the consequential condition in the left ankle, which was the subject of surgery in February 2021, would not have reached maximum medical improvement at this time and was unlikely to do so within an appropriate timeframe.
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.
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.
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 assessing the right ankle impairment by reference only to a single subtalar fusion when assessment in accordance with the Guidelines required consideration of the effects of triple arthrodesis “comprising of a fusion of the subtalar joint, talonavicular joint and calcaneocuboid joint of the right foot”.
Appended to the appellant’s submissions were a number of medical reports. Reports by Dr Lam dated 16 August 2019 (operation report), 6 December 2019 and 24 January 2019 were included in the original Application and do not constitute “fresh evidence”. Those reports have been taken into account by the Panel. Reports by Dr Lam dated 16 August 2019 (report to GP) and 15 April 2021 as well as a report by Dr Doig dated 27 April 2021 were not in evidence before the Medical Assessor.
The Application to Appeal Against the Decision of a Medical Assessor (the Application) relied upon by the appellant indicates that the appellant did not seek to rely on the availability of additional relevant information and no submissions were addressed to any factual dispute addressed in those documents.
In reply, the respondent submits that the appellant has “failed to submit what he says Medical Assessor Anderson’s overall WPI should have been for the RLE (ankle)” and that the appellant had not provided “any indication as to what the appellant says the Medical Assessor’s overall assessment of the RLE[1] should have been.”
[1] right lower extremity.
The respondent objected to the inclusion of the report by Dr Lam dated 15 April 2021 and that of Dr Doig dated 27 April 2021. The respondent noted that the appellant’s submissions did not address those reports.
The Panel considers that the reports objected to by the respondent should not be admitted. Those reports do not provide any additional relevant evidence. In particular the report of Dr Doig simply formulates the appellant’s submissions.
The appellant sought leave to make oral submissions. No reasons were provided as to why the proposed submissions could not be included as part of the written submissions and no detail is provided as to the nature of the proposed submissions.
The Panel is satisfied that the appellant has had the opportunity to provide written submissions and, in the absence of any explanation as to why further submissions are required to be made orally, it is not appropriate to receive such submissions given the delay that would necessarily be incurred and the difficulties it would be faced by the respondent in meeting the proposed, unspecified submissions.
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 Medical Assessor noted on examination of the right ankle reduced dorsiflexion, inversion and eversion. The Medical Assessor was unable to examine the range of motion in the left ankle as the left leg was encased in a fibreglass cast, presumably following the recent left ankle surgery. The Medical Assessor noted the radiological reports of 9 April 2020 in respect of the right ankle and radiological reports in respect of the left ankle dated 3 November 2020 and 1 January 2021.
The Medical Assessor assessed 6% WPI in respect of the right ankle and noted that the left ankle was “not yet assessable”. The Medical Assessor explained his assessment of the right ankle:
“The subtalar fusion is initially addressed in the SIRA Guidelines Page 16, Table 3.1. This provides a lower extremity impairment of 10%. This is combined with dorsiflexion and plantarflexion impairments. These are addressed in AMA 5 page 537 Table 17-11. With dorsiflexion of 0° there is 7% lower extremity impairment. The plantar flexion of 40° does not provide a further impairment.
The two lower impairment figures of 10 and 7 are combined which gives 16% lower extremity impairment. This converts to 6% WPI in Table 17-03 on page 542[2].”
[2] the Panel accepts this is a reference to Table 17-3 at page 527 of AMA5 “Whole Person Impairment Values Calculated from Lower Extremity Impairment". The Medical Assessor made reference to Table 17-11 at page 537 of AMA5. The Panel notes that this Table is amended by para 3.17 of the Guidelines.
The appellant submits that the Medical Assessor has adopted the incorrect item in applying Table 3.1 of the Guidelines in adopting the degree of impairment appropriate for subtalar ankylosis (4% WPI, 10% lower extremity) when the appropriate assessment is that of a triple ankylosis which is to be assessed at 6% WPI, 15% lower extremity impairment.
The appellant submits that there was evidence before the Medical Assessor which established that Mr Lane underwent triple ankylosis. The appellant sought to refer to a report which has not been received by the Panel into evidence as well as the operation report of Dr Lam, dated 16 August 2019. The Panel accepts that the operation report of Dr Lam on 16 August 2019 does establish that Mr Lane had undergone fusion of the subtalar, talonavicular and calcaneocuboid joints constituting triple arthrodesis (or ankyloses).
The submissions of the respondent did not challenge that submission but rather relied upon the fact that the appellant had not stated what the appellant submitted should be the correct assessment of impairment in respect of the right ankle.
The Panel does not accept that it is necessary for an appellant to submit a particular level of impairment once error has been demonstrated. The submissions of the appellant address the relevant error. It is the role of the Panel to assess impairment, if appropriate in the circumstances.
The assessment of impairment in the present case was carried out by the Medical Assessor by consideration of diagnosis-based assessment combined with range of motion assessment. That approach is authorised by and consistent with the Guidelines, chapter 3 and Table 17-2 of AMA 5.
The Panel accepts that there was clear evidence before the Medical Assessor of triple ankylosis and that the Medical Assessor fell into error in assessing Mr Lane on the basis of subtalar ankylosis only. On the evidence before the Medical Assessor it was not appropriate to assess Mr Lane on the basis of a subtalar fusion only. As Mr Lane had undergone triple ankylosis, the appropriate assessment in accordance with Table 3.1 of the Guidelines would be 15% lower extremity impairment (6% WPI). That figure is to be combined with an assessment of the range of motion in the ankle.
The Panel accepts the obvious conclusion that the left ankle, at the time of assessment by the Medical Assessor, had not reached maximum medical improvement. Paragraph 1.15 of the Guidelines provides:
“Assessments are only to be conducted when the Medical Assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”
The Panel accepts that assessment of the level of WPI resulting from the subject injury on 3 November 2014 requires assessment of impairment in the right lower extremity (ankle), the left lower extremity (ankle) and scarring. The Panel is satisfied on the balance of probabilities that the surgery carried out by Dr Lam on 18 February 2021 would not yet have reached maximum medical improvement and assessment of the left lower extremity at this time would be inappropriate having regard to paragraph 1.15 of the Guidelines.
The conclusion of the Panel is that demonstrable error has been established with respect to assessment of the right ankle. The evidence before the Medical Assessor established that there had been triple ankylosis and the Medical Assessor fell into error in adopting the item “subtalar” in Table 3.1 when the appropriate item was “Triple” in the Table. In the circumstances it is appropriate that the MAC issued on 31 March 2021 should be revoked.
The Panel declines to make an assessment of the level of WPI arising from the subject injury on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable by reason of the condition of the left ankle following surgery on 18 February 2021. Further assessment would normally be appropriate one year after the surgery.
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