Maurer v Deebeez Family Trust

DETERMINATION OF APPEAL PANEL
CITATION:	Maurer v Deebeez Family Trust [2022] NSWPICMP 341
APPELLANT:	Debra Maurer
RESPONDENT:	Deebeez Family Trust
Appeal Panel:	Member Marshal Douglas Medical Assessor Mark Burns Medical Assessor James Bodel
DATE OF DECISION:	25 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appellant worker was referred for assessment of permanent impairment from injury to right ankle and foot and consequential condition in right knee and scarring; appellant contended that Medical Assessor (MA) did not comply with referral because he expressed an opinion regarding whether the appellant’s injury and consequential condition was work related in the circumstance where the parties agreed they were; appellant also contended that with respect to the deduction MA made under section 323 of the Workplace Injury Management and Workers Compensation Act1998 (1998 Act); the MA did not have regard to all the medical evidence and did not provide adequate reasons for the deduction he made; Appeal Panel considered that MA’s remarks relating to causation were unnecessary; MA ultimately accepted appellant had suffered injury and consequential condition and assessed whole person impairment resulting from that; Appeal Panel found that MA did not have regard to all the medical evidence and that MA did not provide adequate reasons for section 323 deduction of the 1998 Act in that he did not identify a pre-existing condition and as a consequence the Medical Assessment Certificate (MAC) contained demonstrable errors; Held — Appeal Panel found based on the medical evidence that appellant had extensive osteoarthritis in her knee prior to her injury and this justified the deduction the MA made; although the MAC contained demonstrable errors there was no difference in outcome; MAC upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 May 2022 Debra Maurer (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
28 April 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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).

RELEVANT FACTUAL BACKGROUND

Debeez Family Trust, the respondent, employed the appellant as a cleaner.
On 1 June 2018 the respondent suffered an injury in her employment in the form of a partial tear of the right peroneus longus tendon. This occurred as a consequence of her pushing down a pedal on a mop bucket with her right foot.
On 12 March 2020 orthopaedic surgeon Dr Simon Coffey performed a peroneal longus tenodesis to repair the tear. Her recovery from that surgery necessitated that she use a mobility scooter. As a consequence of using that, she developed pain and swelling in her right knee and her right knee became increasingly sore and stiff.
She again consulted Dr Coffey, who in turn referred her for X-ray and MRI scan of her right knee. The X-ray was done on 23 June 2020 and revealed osteoarthritis in the patellofemoral compartment of her knee. The MRI scan was done on 1 August 2020 and revealed a complex tear at the junction of the posterior horn with the body of the medial meniscus. It also revealed osteoarthritis in the medial compartment and in the patellofemoral compartment.
On 25 September 2020 Dr Coffey undertook an examination of the appellant’s knee under anaesthesia and performed an arthroscopy, a partial medial meniscectomy and chondroplasty.
The appellant’s solicitors qualified general surgeon Associate Professor S K Cyril Wong to examine and report to them on the appellant’s injury. That examination occurred on
7 May 2021 and in his report of the same date A/Prof Wong noted the MRI of the appellant’s right ankle revealed intrasubstance hyperintensity and fibre discontinuity of the peroneus longus tendon at the level of the cuboid groove suggestive of tenosynovitis and a partial tear. A/Prof Wong also noted that the appellant had a perineal longus tenodesis of the right ankle on 12 March 2020. A/Prof Wong noted the X-ray done on 23 June 2020 of the appellant’s right knee showed evidence of osteoarthritis in the hips and the patellofemoral compartment and that the MRI done on 1 August 2020 revealed a complex tear of the junction of the posterior horn with the body of the menial meniscus. A/Prof Wong noted the surgery
Dr Coffey performed on 25 September 2020.
A/Prof Wong advised the appellant’s solicitors that he assessed the appellant had 27% whole person impairment (WPI) resulting from her injury. He advised that this comprised 49% lower extremity impairment due to restricted range of movement of the appellant’s right knee and 37% lower extremity impairment due to restricted range of movement of the appellant’s right ankle. He advised those combined to 68% lower extremity impairment which converted to 27% WPI.
Relying on that report of A/Prof Wong, the appellant’s solicitors wrote to the respondent’s insurer on 2 July 2021 advising it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $72,110 for 27% WPI resulting from her injury.
The respondent’s solicitors thereupon qualified orthopaedic surgeon Dr Frank Machart to examine the appellant and assess her WPI from her injury. Dr Machart had previously examined the appellant on 3 November 2020, seemingly in relation to other issues regarding the appellant’s injury. His examination of the appellant to assess her WPI occurred on
27 October 2021. In a report dated 28 October 2021 addressed to the respondent’s solicitors Dr Machart advised that he diagnosed that the incident in which the appellant suffered injury on 1 June 2018 caused a split between the perineal tendons in the right ankle which was treated by tenodesis and resulted in a secondary injury to her right knee as a consequence of axial pressure on her bent knee which caused a medial meniscus on the background of asymptomatic osteoarthritis. Dr Machart noted that the appellant had been treated for the meniscal tear. Dr Machart advised that he assessed the appellant had 7% WPI from her injury comprising 5% for her ankle and subtalar joints, 1% for her right knee and 1% for scarring.
On 30 November 2021 the respondent’s insurer wrote to the appellant advising her that it disputed that she was entitled to permanent impairment lump sum compensation for her injury. It advised her that it believed Dr Machart provided a more accurate examination of her injury and that he had assessed her WPI from her injury to be 7%, which was less than the threshold imposed by s 66(1) of the 1987 Act for her to be entitled to compensation for permanent impairment.
On 25 February 2022 the appellant initiated proceedings in the Commission seeking determination of her claim for compensation under s 66. In the Application to Resolve a Dispute (ARD) that she lodged with the Personal injury Commission (the Commission) to initiate those proceedings she stipulated the “systems” the subject of her claim were her right lower extremity and scarring.
On 7 March 2022 a delegate of the President issued a referral to the MA in which the medical dispute between the parties were described in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 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(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 1 July 2018
Body part/s referred: Right Lower Extremity (foot/ankle and consequential
knee), Scarring (TEMSKI)
Method of assessment: Whole Person Impairment”
As mentioned above the MA issued the MAC on 28 April 2022. In it he certified that he assessed the appellant’s impairment from her injury to be 11% WPI. That consisted of 4% for her right foot and ankle and 7% for her right knee. He indicated in the table attached to the MAC that he had assessed the appellant’s total WPI relating to her right knee was 14% but he made a deduction of half of that under s 323(1) of the 1998 Act for a pre-existing condition. He certified that he assessed the appellant had 0% WPI relating to scarring.

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. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.

EVIDENCE

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

MEDICAL ASSESSMENT CERTIFICATE

The appellant’s appeal against the MAC relates to the MA’s assessment of her impairment of her right knee.
The history the MA obtained relevant to that included that the appellant described using a knee scooter following the surgery on 31 January 2020 on her right ankle. The MA noted that sometime in April 2020 the appellant experienced dysfunction of her right knee. The MA noted that that was identified as a medial meniscus tear which was managed by arthroscopy in late April 2020 giving the appellant “quite a good result”. The MA noted that the appellant described that a further issue occurred towards the end of 2021 when she felt her right knee collapsing and that she fell over at her home, hurting her head against a wall. The MA noted that since then the appellant has used a walking stick.
The MA noted that the appellant reported her present symptoms with respect to her right knee to be pain in her knee radiating to her groin and greatly reduced mobility.
The MA’s findings from his physical examination of the appellant included that she was in a lot of discomfort with respect to her right leg and wore a brace over the knee. He recorded that she was physically deconditioned. He recorded that the appellant walked with a right limp and was unable to stand or walk effectively on her heels or toes or to squat. The MA recorded that the circumference of the appellant’s right calf was 1.5cm less than the circumference of her left calf. The MA recorded that the appellant had full extension of her left knee and 125⁰ of flexion. The MA recorded that the appellant had a fixed flexion deformity of her right knee of less than 20⁰ with flexion finishing at 80⁰.
The MA had set out brief details of the results of the radiological investigations the appellant had done on her right knee. He noted that the MRI scan of her right knee on 1 August 2020 revealed a menial meniscus tear and extensive degenerative changes in the medial and patellofemoral compartments and that the X-ray on 11 January 2021 revealed degenerative changes particularly in the right knee medial compartment.
The MA said that he based his assessment of the appellant’s WPI on a detailed review of the file that the Commission had forwarded him, his detailed clinical assessment, and a review of the investigations. With respect to the right knee he said he assessed the appellant’s WPI by reference to the restricted range of movement she had, noting that a fixed flexion deformity of less than 20⁰with fixed flexion through to 80⁰correlated with a WPI of 14% based on Table 17-10 of AMA 5.
The MA provided the following explanation with respect to the deduction he made under
s 323(1) of the 1998 Act for the proportion of the appellant’s impairment of her right knee that he considered was due to a previous condition:
“Attention is drawn to the right knee condition. I am not persuaded that this can be fully
attributed as a “consequential condition”. Having trawled through all of the available clinical material, this issue does not arise until briefly mentioned by Dr Simon Coffey in his report of 13/08/20. Rather ironically, five days later Physiotherapist Jack Easton in his report of 18/08/20 draws attention to a whole range of other activities and clinical features and also describes “psychological flags” but no mention is made at all of the right knee condition. I can also find no history in the General Practitioner progress notes of any significant dysfunction of the right knee and also no history of exposure of the knee to any excessive or phenomenal event or issue. I am therefore persuaded that on the strength of these circumstances, a substantial component (in reality probably most) of the right knee dysfunction is due to other causes. It is therefore appropriate to apply a deduction of half of the calculated impairment of the right knee complex.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA did not abide the terms of the referral in that the MA decided her right knee cannot be fully attributed as a consequential condition. The appellant noted that the respondent had accepted liability for the consequential condition. The appellant contended that, in the circumstance where the respondent accepted liability for the consequential condition in her right knee, the MA was not able to form his own opinion with respect to the causation of the consequential injury to the appellant’s right knee. The appellant contended that the MA expressed conclusions on causation by saying a substantial component and probably most of her right knee dysfunction is due to other causes and by saying it was difficult to understand how she could have damaged the perineal longus tendon by pressing down on a pedal.
The appellant submitted that the MA did not take into account the medical evidence relating to the period January 2020 to 13 August 2020 in that the MA concluded that there was no clinical material relating to the right knee until mentioned by Dr Coffey in his report of
13 August 2020. The appellant noted that the clinical records of her general practitioner (GP) revealed she was suffering pain and swelling in her right knee on 17 April and
20 April 2020. Further, Dr Coffey in a report to the GP on 22 April 2020 recorded that she had developed increasing symptoms in her right knee as a consequence of using a knee scooter.
The appellant referred to the radiological investigations of her right knee on 23 June and
1 August 2020. The appellant also referred to a statement wherein she described developing pain and swelling in her right knee due to using a mobility scooter.
The appellant submitted that the MA proceeded on an incorrect assumption that there was no history of complaint of injury to the right knee until 13 August 2020. The appellant submitted “the MA’s conclusion that there was a pre-existing condition therefore involves a factual error”. The appellant submitted that the MA failed to address whether there was a pre-existing injury to the right knee, a condition to the right knee or an abnormality to the right knee and that when the medical evidence is properly considered it does not reveal any of those. The appellant submitted that the MA erred by failing to determine whether the right knee dysfunction is due to other causes. The appellant submitted the MA did not identify what the causes of her dysfunction were. The appellant submitted that the MA failed to disclose his actual path of reasoning as to why he applied a s 323 deduction in a circumstance where neither Dr Wong or Dr Machart applied any deduction.
In reply, the respondent submitted that the MA did exceed “the limits of his power by expressing views about causation”. The respondent submitted however that the deduction the MA made under s 323 was correct notwithstanding it was based on “incorrect reasoning”. The respondent submitted that the MA assessed half of all of the impairment of the appellant’s right knee as being pre-existing and made a deduction under s 323 accordingly and that that is defensible on the basis of the extensive degenerative change in the appellant’s knee prior to the consequential condition becoming symptomatic. The respondent submitted that, in the absence of there being no complaint of traumatic injury to the right knee, the degeneration in the appellant’s right knee revealed by the radiological investigations indicated the likelihood of degenerative change in the appellant’s right knee being pre-existing to the consequential condition and/or constitutionally related.

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.
In the Appeal Panel’s view, the MA, implicitly, expressed doubt regarding whether the appellant suffered injury to her right ankle in the manner she had said and whether the appellant’s use of a mobility scooter, as part of her rehabilitation for surgery for her right ankle injury, resulted in her developing a condition in her right knee. Nevertheless, the MA accepted the appellant suffered injury to her right ankle and a consequential condition in her right knee, and this is so because the MA assessed the appellant as having a permanent impairment of her right ankle due to injury and a consequential condition of her right knee from that injury. The MA’s implicit questioning of the genesis of the appellant’s right ankle and right knee pathology was needless, but in the Appeal Panel’s view the MA made no determination on the causation of the appellant’s right ankle injury and right knee condition. Consequently, contrary to what the appellant has submitted, the MA abided the terms of the referral and did not act outside the scope of his powers.
Said differently, whilst the MA, at least implicitly, and needlessly, in the MAC, questioned what the appellant had asserted was the mechanism by which the pathology in her right ankle had arisen and the mechanism by which she developed symptoms in her right knee, which the respondent did not dispute, the MA ultimately proceeded on the basis that these mechanisms were what caused her to suffer a right ankle injury and a consequential condition in her right knee.
The MA seems to have overlooked the entries the appellant’s GP made in his clinical records regarding his consultations with the appellant on 17 April 2020 and 20 April 2020 and also to have overlooked the report of Dr Coffey to the appellant’s GP of 23 April 2020 wherein
Dr Coffey noted that the appellant had developed acute lower limb pain around the right knee during exercises with her physiotherapist and had developed increasing symptoms in her right knee by using a knee scooter in her post operative recovery. The MA’s statement that the “issue” of the appellant’s right knee condition did “not arise until briefly mentioned by
Dr Simon Coffey’s report of 13/08/20” is therefore wrong.

That history was relevant to the medical dispute that the MA had to assess.
The MA, as part of his assessment of the appellant’s WPI from her injury and consequential condition, was required to consider whether s 323(1) of the 1998 Act had to be applied. The authorities relating to the approach a MA must take with respect to deciding whether s 323(1) of the 1998 Act is to be engaged and the steps required to be taken, if it is, so as to determine what deduction must be made under s 323(1), are consistent and clear.
Firstly, the level of a worker’s post-injury impairment, as at the time of assessment, must be determined. Secondly, a worker’s prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of a worker’s post-injury impairment is due to that prior injury or pre-existing condition, in that the injury or condition makes a difference to the outcome for the worker. Lastly, the extent to which a worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined.[1]
[1] See Cole v Wenaline Pty Ltd [2010] NSWSC78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz) and Ryder v Sundance Bakehouse [2015] NSWSC526 (Ryder).
The third stage of this process cannot be done based on assumption or hypothesis, but must be done by reference to the evidence. The evidence must be able to demonstrate that a proportion of a worker’s impairment is due to the pre-existing condition or previous injury.[2]
[2] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86].
The MA did not identify in the MAC what the appellant’s pre-existing condition or abnormality was that made a difference to the outcome for the appellant. That also was an error on the MA’s part.
Given that, the Appeal Panel considers the MAC does contain demonstrable errors, those errors being that the MA overlooked relevant aspects of the appellant’s history with respect to her right knee and also did not identify, when considering what deduction ought to be made in accordance with s 323(1), the pre-existing condition or abnormality that accounted for a proportion of the appellant’s WPI.
The Appeal Panel considers however that those errors do not affect the ultimate outcome in this matter for these reasons.
Whilst the parties were not in dispute that the appellant suffered a condition in her right knee as a consequence of the treatment and rehabilitation she had for her right ankle injury, the parties did not specify in the ARD what that condition was. The MA diagnosed it as a partial thickness tear of the meniscus, as did both A/Prof Wong and Dr Machart. The Appeal Panel considers that is a correct diagnosis of the condition the appellant suffered as a consequence of the rehabilitation treatment she underwent of her right ankle injury.
The appellant however had significant osteoarthritis in her right knee. Noting what was revealed in the X-ray done on 23 June 2020 and the MRI on 1 August 2020 and also the further X-ray done on 11 January 2021, the Appeal Panel considers that there was extensive osteoarthritis in her right knee at the time she suffered injury on 1 June 2018. Indeed, investigation of other joints revealed that the appellant has significant osteoarthritis in those other joints, specifically her hips and left knee. It is unlikely in the Appeal Panel’s view that the osteoarthritis present in her right knee was the result of the incident on 1 June 2018.
The pre-existing condition the appellant had in her right knee was significant degeneration due to extensive osteoarthritis.
The present impairment the appellant has been assessed to have with respect to her right knee is due to the restricted range of movement she has in that joint. That restriction in her movement is due to the osteoarthritis in her knee, more so than the torn medial meniscus which was repaired in surgery.
In the Appeal Panel’s view the extent of the degeneration in her right knee consequent upon the pre-existing osteoarthritis in her right knee would make a difference to the outcome for the appellant to the extent of 50%, at least. This is simply because it is that degeneration in her right knee that accounts for her restricted range of movement in her right knee by which her impairment has been assessed. Section 323(2) does not apply to the circumstances of this case because making an assumption that the proportion of the appellant’s impairment of her right knee that is due to the pre-existing condition is 10% would be at odds with the radiological evidence.
Consequently, although the Appeal Panel has found demonstrable errors in the MAC, the Appeal Panel assesses the appellant’s WPI the same as the MA did.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 May 2022 should be confirmed.

[2022] NSWPICMP 341

25 August 2022