Loughnan v Eastern Australian Airlines Pty Limited
[2021] NSWPICMP 64
•28 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Loughnan v Eastern Australian Airlines Pty Limited [2021] NSWPICMP 64 |
| APPELLANT: | Susan Maree Loughnan |
| RESPONDENT: | Eastern Australian Airlines Pty Limited |
| APPEAL PANEL: | Member Catherine McDonald Dr Margaret Gibson Dr J Brian Stephenson |
| DATE OF DECISION: | 28 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker suffered an injury to her right ankle requiring surgery on two occasions and consequential conditions in both knees requiring arthroscopic surgery; method of assessment of knees; worker contended that assessment should have been under AMA 5 Table 17-31 for chondromalacia; osteoarthritis in both knees meant that Table did not apply; assessed under Table 17-33; no error with respect to the assessment of scarring; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 February 2021 Susan Maree Loughnan lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr Yiu-Key Ho, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 13 January 2020.
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, and
· the MAC contains a demonstrable error.
The Registrar was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that in s 327(3)(d) – that the AMS made a demonstrable error. 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
Ms Loughnan was employed by Eastern Australian Airlines Pty Limited (Eastern) trading as QantasLink as a customer services agent. On 10 June 2005 she slipped on a tiled bathroom floor whilst at work and fell, rolling her right ankle. After a long period of conservative treatment and investigation, Ms Loughnan underwent investigative surgery to her right ankle on 1 March 2007 which disclosed a tear of the peroneal brevis tendon.
As a result of her altered gait, Ms Loughnan developed pain in her right knee, left foot and knee and lower back. She underwent a left knee arthroscopy on 27 August 2007 and bilateral knee arthroscopies on 17 June 2009.
On 13 June 2013, Ms Loughnan underwent further surgery being a right peroneal tendon repair/transfer. She ceased employment with Eastern on 30 June 2014 and has subsequently done clerical work.
Ms Loughnan was referred to the AMS who was asked to assess her permanent impairment by reference to her right lower extremity, left lower extremity and scarring.
The AMS assessed Ms Loughnan’s right ankle, hindfoot, sural nerve and knee to reach 14% lower extremity impairment (LEI). He assessed 2% LEI or 1% whole person impairment (WPI) in respect of her left knee condition and 1% for scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI). His total assessment was 8% WPI.
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 the assessment made by the AMS does not disclose an error.
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.
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.
Mr Robison of counsel prepared submissions for Ms Loughnan. In summary, he submitted that the AMS made a demonstrable error in that he failed to give adequate reasons for not agreeing with the assessment of scarring made by Dr J G Bodel, qualified on behalf of Ms Loughnan. He also submitted that the AMS made a demonstrable error by failing to give adequate reasons regarding Dr Breit’s report. He noted that the AMS misstated Dr Breit’s conclusion but reached the same assessment as Dr Breit with respect to two out of three body parts so that Ms Loughnan is entitled to know what the AMS’s process of reasoning was.
Mr Robison said that a consequential condition involves microtraumata and that the fact of trauma is subsumed into the liability findings made by the Commission or the agreements of the parties which are not within the jurisdiction of the AMS. He submitted that the AMS applied incorrect criteria in the assessment of Ms Loughnan’s knees because he said there was no trauma and that he should have assessed her by reference to chondromalacia or “runner’s knee”, resulting in an assessment of 5% LEI in respect of each knee. Mr Robison argued that saying a body part did not suffer trauma was tantamount to saying that it was not injured. The AMS was required to assess the body parts referred to him.
In submissions in reply prepared by its solicitor, Ms Bond, Eastern submitted that the AMS assessed the disputes which were referred to him. Ms bond submitted that the AMS explained his difference of opinion with Dr Bodel with respect to scarring and made an appropriate assessment of Ms Loughnan’s knees.
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[1] 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 MAC
[1] [2006] NSWCA 284.
The AMS set out a history of the injury and the subsequent treatment. Relevantly to the issues in this appeal, he noted that a scan of Ms Loughnan’s left knee in August 2007 showed a meniscal tear and early patellofemoral joint osteoarthritic changes. After arthroscopy, the pain recurred with deterioration of medial compartment and patellofemoral joint osteoarthritis.
The AMS described Ms Loughnan’s present symptoms:
“The right ankle still have some pain on both medial and lateral side. Scar is not too sensitive but right distal to the scar, over the distal distribution of the sural nerve, there is an area of numbness compared to the other side. The strength of the ankle is not too bad. She claims she can only walk about fifteen minutes. Right knee is not a problem. Left knee is in trouble with pain and Baker’s cyst.” [sic].
The AMS set out his findings on examination. He said:
“On inspection there is a surgical scar on the right ankle on the lateral side, posterior to the tip of the lateral malleolus curving distally. There is no difference in colour, temperature and swelling between the two feet. There is no difference in alignment. There is no flat foot or high arch. There is no obvious deformities. Walking gait is normal. Looking from the back, the heel is in the same alignment. Tip toe standing, correct mild valgus to the natural varus on both ankle symmetrically. There is an area of numbness relating to the sural nerve, distal to the cut. The scar is not sensitive but there is obvious scarring. The ankle enjoys quite good range of movement.”
The AMS set out the range of ankle and knee motion he observed. He said there was no muscle wasting on tape measurement. He summarised the injuries and his diagnoses:
“Susan Loughnan had an inversion injury to the right ankle with damages of the peroneus brevis tendon. Failed to improve with conservative treatments, requiring tendon repair eighteen months after the injury which was complicated with infection. Tendon transfer seven years after the injury, which was able to give a reasonable good result. She is left with residual problem in the ankle, mainly stiffness, mild pain, nerve damages from repeated surgery and in the recovery period, she was suffering from bilateral knee problems, namely meniscal tear on both knees associated with arthritic changes of the left knee.” [sic]
The AMS explained his calculations:
“To assess the permanent impairment, the range of movement of the right ankle using AMA Guide 5th Edition, table 17-11: extension of 10˚ will be 7% lower limb impairment, while 25º of flexion will have 0%. Using table 17-12 for the hind foot, inversion of 15˚ will be 2% lower limb impairment, eversion of 10˚ will be 2%. Using table 17-37, total sensory loss of the sural nerve will have 2%, so in this case she is only qualify for a quarter of that, which will give rise to 0.5% and that will round up to 1%.
In relation to the knee, using table 17-10, the right knee has good range of movements so there is no impairment for that. Using diagnostic base estimate, which is table 17-33, partial medial meniscectomy will be 2%. For the left knee, using table 17-10, the movement also have no impairment but in this case, she also had partial medial meniscectomy, so that will be another 2%. Although the left knee have more features of arthritic problems with the fluid collections, I do not think we have any criteria that will be suitable to classify the permanent impairment in this case.
In relation to the scar, it is sensitive but it is not tender. So, using TEMSKI scale of WorkCover Guide, I think that will be 1% whole person impairment.
When all the lower limbs impairments of right leg are combined, which is 7% for ankle, 4% for subtalar joint, 1% for sural nerve, 2% each for knee, that will give rise to 14% lower limb impairment, which will be equal to 6% whole person impairment. For left lower limb, there is 2% for the knee which is equal to 1% whole person impairment and scarring is also 1% based on TEMSKI. So, altogether that will be 8% whole person impairment.”
With respect to the reports of Drs Bodel and Breit, he said:
“In relation to the assessment of Dr Bodel, I cannot agree with him in terms of the scar. He assessed 2% but I only gave 1%. While for both knees, there is definite pathology when Dr Dixon done the arthroscopy. Basically, there was meniscal tear and on the left knee there was associated OA changes. So, I do not think it is suitable to use the patellofemoral joint crepitus for the assessment like Dr Bodel used, based on table 17-31 foot note in the AMA Guide 5th Edition. I also noticed we have some discrepancy in the examination of the ankle range of movement. My assessment is better than his, which explains the difference in assessment, while the subtalar joint we more or less concur with each other. Similarly for sural nerve and that explains in our assessment.
I am not aware of any recent report of Dr Brett. I only noticed on the patient file that he
assessed her to have a 6% whole person impairment, which is somewhat less than my
assessment.”It is noteworthy that the AMS did not say that Ms Loughnan had not suffered trauma of her knees as Mr Robison submitted.
No ground of appeal suggested that the assessment made by the AMS with respect to Ms Loughnan’s right ankle was incorrect.
Other assessments
Dr Breit examined Ms Loughnan in 2011. He summarised his assessment:
“As I have indicated above, in my opinion, the knee injuries are not work related. The right ankle can only be assessed on the basis of a restricted movement which is normal however there is a restriction of hind foot movement according to Table 17-12, Page 537 there is 2% lower extremity impairment loss of inversion and 2% loss of eversion, totalling 4% of the lower extremity which equals 2% Whole Person Impairment. There is no deductible quantum.”
In its notice under s 78 of the 1998 Act dated 17 July 2020 Eastern’s insurer said:
“In disputing your claim, the insurer relied on reports of Dr Breit (IME - Orthopaedic Surgeon) dated 10/09/2019 and 23/10/2019. In his initial report, Dr Breit did not provide an assessment of the knees.
However, in his supplementary report dated 23/10/2019, Dr Breit was asked to include the knees In his assessment as liability had been accepted for these injuries. We note Dr Breit provided an assessment of 6% WPI, made up as follows:
• Right lower extremity (ankle and hindfoot) - 4% WPI
• Left lower extremity (knee) - 1 % WPI
• Scarring - 1 % WPIWe note that whilst Dr Breit was asked to provide a WPI assessment of the right knee, he decided not to alter his assessment of impairment of the right lower extremity.”
It is apparent that the AMS referred to this summary because the 2011 report is the only report from Dr Breit in the file. The references to it in the s 78 notice lead to the conclusion that was a significant oversight but it appears that no steps were taken by either party to remedy it.
Dr Bodel commented on Dr Breit’s 2019 reports in his report dated 1 March 2020 and explained why he disagreed with Dr Breit’s assessment.
Scarring
The AMS assessed scarring at 1% WPI because the scar was sensitive but not tender. He did not comment on why his assessment of scarring differed from that of Dr Bodel but that omission is insignificant.
Dr Bodel said that the scar was complicated by the formation of a haematoma. The haematoma occurred after the surgery in 2007 and required treatment.
Dr Negrine noted that the haematoma had gone by 10 April 2007 and the wound had healed satisfactorily. On 2 May 2007 he noted that Ms Loughnan suffered some wound sensitivity when walking but by 27 June 2007 he was satisfied that it had healed.
Dr A Wines who carried out the surgery in 2013 noted by 19 June 2013 that the wound was well healed.
Ms Loughnan did not make any comment about the scar in her statement. It might be expected that she would if she was particularly conscious of it or if it impacted on her activities.
The haematoma to which Dr Bodel referred was treated and healed in 2007. The AMS was required to assess the scarring he observed on the day of his examination and it would have been inappropriate for him to attempt to assess past conditions which were not present at that time.
The scar from the surgery undertaken would be on the inner side of Ms Loughnan’s ankle and not visible with most clothing. It would have been better if the AMS had explained his reasoning in more detail but, based on the contemporaneous reports, the assessment made by the AMS was open to him in the exercise of his clinical judgement.
Dr Breit’s report
Ms Loughnan’s second ground of appeal is that the AMS did not give reasons about Dr Breit’s report. Mr Robison said that “it appears that the AMS did not read Dr Breit’s report.” Dr Breit’s 2019 report in which he apparently made an assessment of 6% WPI does not appear in the brief sent to the AMS or in the file provided to this Panel. The AMS did not read Dr Breit’s 2019 report because it was not given to him.
The AMS said that there was no recent report from Dr Breit but that there was a reference in the file to his assessment of 6% WPI which was “somewhat less than my assessment.”
The AMS did explain how he reached his assessment. He was not required to do so by explaining how his assessment differed from a report he had not seen. The AMS was not required to adopt or reject the reports relied on by the parties.
Campbell J described the task of the AMS in State of New South Wales v Kaur:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
The AMS has not erred in failing to further discuss Dr Breit’s opinion. He provided reasons for the assessment he made and no ground of appeal was raised in respect of his assessment of Ms Loughnan’s right ankle. Based on the range of movement he observed on the day of his examination, his assessment was correct.
Assessment of the knees
Mr Robison argued that the AMS should have come to the same assessment as Dr Bodel with respect to Ms Loughnan’s knees and that in doing so, he applied incorrect criteria. The chain of reasoning is somewhat attenuated.
There is no dispute that Ms Loughnan suffered a consequential condition in both of her knees as a result of her altered gait after the ankle injury. Mr Robison characterised those conditions as resulting from a series of microtraumata and said that a knee injury will always involve trauma. He said that trauma caused chondromalacia patellae which should be assessed under Paragraph 17.2h of AMA 5 and Table 17-31.
Dr Bodel noted that Ms Loughnan had painful retropatellar crepitus in both knees. When making his assessment, Dr Bodel merely noted that that condition existed and made an assessment under Table 17-31. He did not explain his reasoning.
It is important to note that the footnote to the relevant part of the Table reads:
“In an individual with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination but without joint space narrowing on x-rays, a 2% whole person or 5% lower extremity impairment is given.”
It is not appropriate to assess Ms Loughnan’s injury under Table 17-31 for two reasons. First, she did not suffer direct trauma to her knees because she did not fall onto the front of her knees.
Second, the radiological evidence shows that there is joint space narrowing because there is osteoarthritis in her left knees. Osteoarthritis manifests as joint space narrowing.
The MRI scan of Ms Loughnan’s left knee dated 10 March 2009 was reported by Dr L Baker as showing patellofemoral osteoarthritis. The MRI scan of the left knee reported on by Dr R Shnier on 4 September 2013 showed patellofemoral joint osteoarthritis.
There is no scan of Ms Loughnan’s right knee which post-dates the right knee arthroscopy but a bone scan dated 20 January 2009 noted mild degenerative arthritis in her right knee.
Given the lapse of time since those investigations, it is likely that the osteoarthritis has progressed.
Table 17-31 did not apply and the AMS appropriately assessed Ms Loughnan under Table 17-33, finding 2% LEI which converts to 1% WPI in respect of each knee because she has undergone partial meniscectomies.
A liability dispute
Mr Robison’s final submission is that the AMS exceeded his jurisdiction by purporting to determine a liability dispute because determining that a body part did not suffer trauma is practically the same as saying it was not injured.
The alleged liability dispute would only arise if the argument about microtraumata rejected above was correct. The AMS did not say that any of the parts he was required to assess did not suffer trauma and the argument does not need to be considered further.
The AMS assessed all of the matters which were referred to him and used the appropriate parts of AMA 5 and the Guidelines to do so.
In some situations, the appropriate application of AMA 5 and the Guidelines results in an assessment which may appear inadequate to compensate a worker for the impairment he or she suffers. Unfortunately, Ms Loughnan’s is one of those cases.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 January 2013 should be confirmed.
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