McSpadden v State of New South Wales (NSW Police Force)
[2025] NSWPICMP 428
•18 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | McSpadden v State of New South Wales (NSW Police Force) [2025] NSWPICMP 428 |
| APPELLANT: | McSpadden |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Dr Drew Dixon |
| MEDICAL ASSESSOR: | Dr John Lam-Po-Tang |
| DATE OF DECISION: | 18 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of orthopedic injuries; Medical Assessor said no imaging was available but failed to call for X-rays mentioned under s 324; X-rays reviewed; Held – MAC revoked; new certificate issued. |
WO
WORKERS COMPENSATION DIVISION
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
Matter number: | M1-W23714/24 |
Appellant: | Maurice McSpadden |
Respondent: | State of New South Wales (NSW Police Force) |
Date of decision: | 18 June 2025 |
Appeal Panel: | |
Member: | Catherine McDonald |
Medical Assessor: | Drew Dixon |
Medical Assessor: | Andrew Porteous |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 January 2025 Maurice McSpadden lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Robn Kuru, who issued a Medical Assessment Certificate (MAC) on 16 January 2025.
Mr McSpadden relies on the grounds of appeal under s 327(3)(c) and (d) 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.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out – being that there was a demonstrable error in the assessment of Mr McSpadden’s left hip. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
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.
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
Mr McSpadden was employed by the State of New South Wales (NSW Police Force) (the Police Force) as a police officer. He ceased employment on about 20 October 2022 as a result of a psychological injury. During the course of his employment, he suffered several physical injuries.
Mr McSpadden was examined by Dr Ghabrial who reported on 20 April 2022 to his former solicitors. Dr Ghabrial assessed Mr McSpadden in respect of 10 separate incidents and in respect of the nature and conditions of employment, combining all of the assessments to reach 43% whole person impairment (WPI). Mr McSpadden’s current solicitors made a claim on 9 December 2023 for compensation for 43% WPI based on Dr Ghabrial’s report
In the Application to Resolve a Dispute, Mr McSpadden nominated a series of frank injuries. He claimed compensation, among other injuries, in respect of a disease injury to his right shoulder, right hip and right knee as a result of the nature and conditions of employment, which was deemed to have been suffered on 20 October 2022, his last day of employment. The Police Force denied in its notice under s 78 of the 1998 Act issued on 5 April 2024 that there was any injury as a result of the nature and conditions of Mr McSpadden’s employment. It set out the dates of a series of accepted claims as a result of the frank injuries.
A Member of the Personal Injury Commission issued a Certificate of Determination on 12 August 2024 containing consent orders. Mr McSpadden consented to an award in favour of the Police Force in respect of any injury to his right shoulder and right hip as a result of the nature and conditions of employment or any frank injury. He also consented to an award in favour of the Police Force in respect of any physical injury suffered as a result of the nature and conditions of his employment. As a result of the agreement, Mr McSpadden relied on fewer incidents than Dr Ghabrial reported on. The consent orders provided the basis of the referral to the Medical Assessor.
The Medical Assessor was asked to assess WPI in respect of the following injuries:
(a) cervical spine on 3 June 2010, 26 January 2012 and 13 January 2014;
(b) lumbar spine on 3 June 2010 and 16 March 2019;
(c) left upper extremity (shoulder) on 26 January 2012 and 1 July 2019;
(d) left lower extremity (hip) on 1 July 2019 and 30 July 2019;
(e) left lower extremity (knee) on 13 July 2015, and
(f) right lower extremity (knee) on 30 July 2019.
The Medical Assessor assessed 0% WPI in respect of each of the injuries except the left shoulder for which he assessed 5% WPI.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
We determined that the Medical Assessor made a demonstrable error when he noted that Dr Ghabrial had made an assessment in respect of Mr McSpadden’s left hip but said that imaging was not available to make an assessment on that basis. The Medical Assessor erred in failing to call for the radiology under s 324(1)(b) of the 1998 Act. He also failed to review the X-rays on which Dr Ghabrial relied to assess impairment in respect of Mr McSpadden’s knees.
We issued a direction calling for production of all X-rays and scans of Mr McSpadden’s hips and knees together with the reports.
We determined that it was not necessary for Mr McSpadden to undergo a further medical examination because subject to examination of the scans, there is sufficient evidence in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
We received weight bearing X-rays of Mr McSpadden’s right knee and both hips taken at the request of Dr Ghabrial on 20 April 2022. The report reads:
“Clinical history: ?OA right knee and left hip.
Report: The left hip demonstrates moderately advanced osteoarthritis. The right hip demonstrates mild degenerative change.
Both knees demonstrate mild tricompartmental degenerative findings/osteoarthritis.
Dr Dixon of the Appeal Panel reviewed the X-rays and reported to us. Dr Dixon said:
“This claimant’s weight bearing X-rays of the left and right hips on 20 April 2022 show joint space narrowing measured at 3mm superolaterally in each hip.
X-rays of the left knee with skyline views showed narrowing of the lateral patellofemoral facet to 1mm with impingement, consistent with lateral impingement and narrowing of the medial compartment to 3mm, compared with 4mm of the lateral compartment of the tibiofemoral joint. Both knees demonstrate mild tri-compartmental degenerative osteoarthritis.”
Despite our direction and the reference to other scans of Mr McSpadden’s left hip in the file, the only scan and report provided to us was that in respect of the 2022 X-rays.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In very brief submissions, Mr McSpadden said that the assessments (with the exception of his left shoulder) were in error because they were different to the findings made by Dr Ghabrial. With respect to his left hip, Mr McSpadden referred to an X-ray in 2020 which showed a small CAM lesion and an X-ray in 2022 which Dr Ghabrial said showed evidence of 2mm cartilage interval in the inferior aspect.
In reply, the Police Force correctly noted that Mr McSpadden did not make any submissions in support of the ground that the Medical Assessor applied incorrect criteria. It said that Mr McSpadden’s submissions merely amounted to a difference of opinion, which is not a demonstrable error.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The Medical Assessor is not required to adopt or choose between the other opinions in the file and is required to form his or her own opinion. In State of New South Wales (NSW Department of Education) v Kaur[3] Campbell J said:
“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’.”
[3] [2016] NSWSC 346.
The Medical Assessor is directed by the standard MAP template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why the assessment differs, not because the Medical Assessor is required to agree with or choose between the previous assessments. The Medical Assessor was required to make his assessment using his clinical judgement on the day of the examination.[4] The assessment cannot contain a demonstrable error merely because the Medical Assessor made a different assessment to that made by Dr Ghabrial at an examination two years and nine months previously.
[4] Guidelines paragraph 1.6.
Mr McSpadden did not seek re-examination. A demonstrable error is an error which is clear on the face of the MAC. If the Medical Assessor set out his findings and properly applied AMA 5 and the Guidelines, an Appeal Panel does not have the power to re-examine, nor can it substitute the assessment of a different examiner on a different day. Mr McSpadden did not make any submissions in support of the ground that the Medical Assessor applied incorrect criteria. Our reading of the MAC shows that the Medical Assessor used appropriate criteria from AMA 5 and the Guidelines for each of the body systems that he assessed.
It is important to remember that an assessment of 0% is not the same as a finding that there was no injury and that the presence of pain does not necessarily require an assessment of permanent impairment.
Cervical spine
The Medical Assessor was asked to assess Mr McSpadden’s cervical spine in respect of incidents on 3 June 2010, 26 January 2012 and 13 January 2014. He recorded that Mr McSpadden was unable to recall the incidents in which he injured his cervical spine because of his psychological injuries. The Medical Assessor recorded the present treatment:
“For his cervical spine, he undergoes physiotherapy consisting of manipulative treatment and a limited isometric exercise program. He intermittently takes anti-inflammatories. He has not had any injections into his neck.”
The Medical Assessor noted Mr McSpadden’s present symptoms:
“He has pain in the left hand side of his neck, which radiates down over the shoulder. He can intermittently get global pins and needles in his left arm. He will wake up at night with numbness in his hand.”
On examination, the Medical Assessor observed a normal symmetrical range of motion. He said that Mr McSpadden had non-specific neck pain. He assessed 0% WPI because:
“The cervical spine is assessed according to AMA 5 page 392, Table 15.5 as DRE Cervical Category I (0% whole person impairment). This is on the basis of having no significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment, no documented alteration in structural integrity.”
The Medical Assessor explained his assessment. He said:
“With respect to the report by Dr Ghabrial dated 20 April 2022, I did not find decreased sensation in the left C6 and C7 dermatomes. I did not find a decreased left triceps reflex. I have assessed the cervical spine as DRE Category I rather than DRE Category III.”
We note that Dr Ghabrial did not review any imaging of Mr McSpadden’s cervical spine and that his clinical findings do not support the assessment he made. In particular, he did not record that he observed radiculopathy as defined in paragraphs 4.27 and 4.28 of the Guidelines.
Based on the observations the Medical Assessor recorded at the time of his examination, there is no demonstrable error in his assessment of Mr McSpadden’s cervical spine.
Lumbar spine
The Medical Assessor said that Mr McSpadden was unable to recall an incident in which he injured his lumbar spine. The dates of injury referred were 3 June 2010 and 15 March 2019. He noted that Mr McSpadden sees a physiotherapist for manipulative treatment and has seen an exercise physiologist. He recorded the present symptoms:
“He has pain in his lower back radiating to the left hand side. It can come down to his buttock and round into his groin. The pain is exacerbated by sitting too long and driving. Occasionally he will get some pain in his lateral thigh.”
The Medical Assessor observed:
“Flexion in the lumbar spine was to the tibias. Extension was without restriction. Lateral flexion was to the knees bilaterally.”
The Medical Assessor reviewed an MRI scan dated 5 August 2021 which was unremarkable. The report appears in the Reply. The scan was taken because of a history of severe midline pain, paraesthesia bilaterally and “radicular right lower leg.” Dr Chai said the findings in respect of each level of Mr McSpadden’s lumbar spine was “unremarkable” and that the scan was a “Normal study. No cause for the patient’s clinical symptoms identified.”
The Medical Assessor set out his assessment:
“The lumbar spine, according to AMA 5 page 384, Table 15.3 is also assessed as DRE Category I (0% whole person impairment). Again, this is on the basis of having no significant clinical findings, no observed muscle guarding or spasm, no documented neurological impairment, no documented alteration in structural integrity.”
We observe that Dr Ghabrial did not review the 2021 MRI scan and that the examination findings he set out were minimal. The Medical Assessor explained why his assessment differed:
“With respect to the lumbar spine, I did not clinically see evidence of muscle spasm. I did not find a positive straight leg raise on the left. I did not find motor or sensory deficit. Again, I have not found any significant findings at assessment and have assessed the lumbar spine as DRE Lumbar Category I rather than Category II.”
There is no demonstrable error in the Medical Assessor’s assessment of Mr McSpadden’s lumbar spine.
Left upper extremity (shoulder)
The Medical Assessor assessed 5% WPI in respect of Mr McSpadden’s left shoulder as a result of injury on 26 January 2012 and 1 July 2019. Though the assessment was less than 7% assessed by Dr Ghabrial, Mr McSpadden did not argue that there was a demonstrable error.
Left lower extremity (hip)
The left hip claim as referred to the Medical Assessor was as a result of a frank injuries on 1 July and 30 July 2019. The Medical Assessor recorded:
“Mr McSpadden noted from 2019 onwards that he had ongoing difficulty with some pain in his groin. This came on after he had been involved in ‘a couple of wrestles’. He initially thought he had a hernia and went on to have an ultrasound, which did not demonstrate one. On 30 July 2019 he was involved in another wrestle. He felt a pop at the time and subsequently was diagnosed with a tear of his adductor muscles. If he sits for a long time, he will develop pain in his groin associated with some numbness. If he is driving, he will have to pull over every couple of hours.”
The Medical Assessor said:
“Mr McSpadden continues with a stretching exercise program for his left hip. He has previously seen Dr Halpin, Sports Physician who tried some PRP injections, which were not helpful.”
The range of motion in Mr McSpadden’s hips was recorded as symmetrical. The Medical Assessor explained why he did not make an assessment:
“Whilst there was some restriction of flexion of the hips, range of motion in the hip joints was symmetrical. In the absence of a differential range of motion in the hips, impairment was not assessed for the left hip.”
The Medical Assessor assessed on the basis of the range of motion of Mr McSpadden’s hips and found they were equal. Because he understood that he was not to make an assessment in respect of the right hip, he assessed 0% for the left. Comparing his assessment to the other reports in the file, the Medical Assessor said:
“With respect to the left hip, I note Dr Ghabrial has assessed 8% on the basis of radiological findings of osteoarthritis. Imaging was not available to make an assessment on this basis.”
And:
“Dr Bentivoglio has assessed 3% for a labral tear in the left hip, assessing it as being equivalent to chronic trochanteric bursitis. Whilst Dr Bentivoglio found asymmetric range of motion between the left and right hip, I did not do so at the time of my assessment and hence have not assessed impairment for it.”
Dr Ghabrial said:
“The x-rays of the hips performed on the 20th April 2022 showed evidence of 2mm cartilage interval in the inferior aspect of the left hip and 3mm cartilage interval in the right hip.”
The Medical Assessor erred in failing to call for the imaging on which Dr Ghabrial relied to make his assessment. Dr Dixon examined that imaging on behalf of the Appeal Panel and we adopt his report.[5] It was necessary for the X-rays to be reviewed because the report only noted the presence of osteoarthritis and did not record the measurement of cartilage intervals necessary for the application of Table 17-31 of AMA 5.
Medical evidence in the file
[5] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 (Pombinho) at [88].
Mr McSpadden’s general practitioner ordered an MRI scan of Mr McSpadden’s left hip on 5 March 2020 because of a history of persistent hip pain despite physiotherapy. The general practitioner noted that the scan showed a left labral tear and referred Mr McSpadden to Dr Dewar, orthopaedic surgeon, who reported on 4 May 2020. Dr Dewar noted that the MRI revealed a labral tear and a CAM lesion and an X-ray confirmed the CAM lesion and showed early signs of osteoarthritis. Dr Dewar considered that any surgery may hasten the progression of osteoarthritis and recommended against injection. He recommended ongoing physiotherapy and exercise. There are no further reports from Dr Dewar in the file.
Dr Bentivoglio assessed Mr McSpadden on behalf of the Police Force and reported on 13 February 2024. He said:
“An MRI scan taken of his left hip on 5 March 2020 indicated he had an 8mm anterosuperior labral tear. There was a small femoral osteophyte but no other abnormalities. Apart from the labral tear, I would consider this MRI scan to be normal for his age. There is now no longer any evidence of any damage to his adductor longus tendon.”
Dr Bentivoglio assessed 3% WPI on the basis that Mr McSpadden had a labral tear of his left hip. He observed limitation in the range of motion of the left hip and a “clunking sound”, explained by the labral tear. He also noted “minor” age related degenerative changes which he doubted were a result of injury.
Dr Ghabrial said that his examination showed irritability of both of Mr McSpadden’s hips with some reduction of the range of motion, worse in the left hip. Those examination findings are different to the observations of the Medical Assessor on the day of his examination. Dr Ghabrial diagnosed osteoarthritic changes, worse in the left hip. Notably, Dr Ghabrial based his assessment on the nature and conditions of Mr McSpadden’s employment.
Dr Ghabrial assessed permanent impairment of Mr McSpadden’s right hip. Dr Bentivoglio said that there was no injury. By the consent orders, Mr McSpadden consented to an award in favour of the Police Force in respect of his right hip claim.
The Medical Assessor contrasted his examination findings with those of Dr Bentivoglio, who made an assessment for the labral tear but not as a result of osteoarthritis. The Medical Assessor said he did not observe an asymmetrical range of motion, this providing his reasons for making a different assessment to that of Dr Bentivoglio.
Consideration
The Guidelines deal with assessment of the lower extremity as a result of arthritis in paragraphs 3.19 to 3.34. Paragraph 3.19 of the Guidelines provides that “[t]he presence of arthritis may indicate a pre-existing condition and this should be assessed and an appropriate deduction made.”
Paragraph 3.20 says that the presence of osteoarthritis is defined as cartilage loss, measured by properly aligned plain X-ray and in accordance with AMA 5 Table 17-31.
Table 17-31 is headed Arthritis Assessments Based on Roentgenographically Determined Cartilage Intervals. Paragraph 3.23 of the Guidelines reads:
“Hip: An anteroposterior view of the pelvis and a lateral view of the affected hip are ideal. If the affected hip joint space is narrower than the asymptomatic side, cartilage loss is regarded as being present. If the anteroposterior view of the pelvis has been obtained with the patient supine, it is important to compare the medial joint space of each hip, as well as superior joint space, as this may be the only site of apparent change. If both sides are symmetrical, then other features, such as osteophytes, subarticular cyst formation, and calcar thickening, should be taken into account to make a diagnosis of osteoarthritis.”
Under Table 17-31 of AMA 5 the measurement made by Dr Dixon of cartilage loss as a result of osteoarthritis shown on the 2022 X-rays results in an assessment of 3% WPI for each hip.
Mr McSpadden consented to an award in favour of the Police Force in respect of his right hip, thus agreeing that there was no work related injury to assess. It is therefore appropriate to deduct the assessment in respect of osteoarthritis in his right hip under s 323 of the 1998 Act because that is the result of a pre-existing condition, being age-related degenerative changes. The presumption in s 323(2) of a one-tenth deduction does not apply because the extent of cartilage loss can be measured on X-ray and is therefore not difficult or costly to determine.
While the Medical Assessor’s assessment was made on a different basis, the outcome in respect of Mr McSpadden’s left hip is correct and is assessed at 0% WPI.
Left lower extremity (knee) and right lower extremity (knee)
While the knee injuries referred to the Medical Assessor were suffered on separate dates, it is convenient to deal with them together. The Medical Assessor was asked to assess Mr McSpadden’s left knee in respect of an injury on 13 July 2015 and his right knee on 30 July 2019. The Medical Assessor said:
“Mr McSpadden has developed pain, which he attributes to repetitive squatting and kneeling in the line of his work. He has pain above and to the outer side of his kneecap. He reports no swelling, locking or instability in his knee. The symptoms in his knee stopped him from playing football or soccer.
Mr McSpadden told me he develops symptoms in his right knee, again from squatting and kneeling. He described his right knee symptoms as not as bad as his left.’
The Medical Assessor noted that Mr McSpadden has not had any specific treatment for his knees but rides a bike for exercise. The symptom he suffers in both knees is pain superolaterally over the patellae. The Medical Assessor said:
“Both knees were normally aligned. The range of motion was from 0° to 125° with some evidence of patellofemoral crepitus on the right hand side. The knees were sagittally and coronally stable. Quadriceps circumference was 53cm and gastrocnemius circumference was 43cm.”
The Medical Assessor described the injury as “likely early degenerative change.” He assessed 0% WPI for each knee because they were normal to examination. The Medical Assessor contrasted his assessment to that made by Dr Ghabrial. He said:
“Dr Ghabrial has also assessed 7% whole person impairment on the basis of radiological arthritis of the right knee and patellofemoral joint and similarly, 7% whole person impairment for the left knee, again on the basis of radiographic evidence of arthritis of the knee joint and patellofemoral joint. Whilst imaging is not available to allow that assessment, the clinical examination would be inconsistent with such radiological findings. Further, I note SIRA page 17, paragraph which states that ‘Osteoarthritis of the patellofemoral joint cannot be used as an initial impairment when assessing arthritis of the knee joint itself, of which it forms a component’”. (emphasis in original).
Dr Ghabrial assessed both of Mr McSpadden’s knees. He said that X-rays taken on the day of his examination showed “evidence of narrowing of the medial compartments to 3mm in both knees and 2mm in the patello-femoral compartment.” For the left knee, Dr Ghabrial assessed 3% WPI and 4% for the patellofemoral joint. In respect of the right knee, Dr Ghabrial assessed 3% WPI for the knee and 3% for the right patellofemoral joint.
The Medical Assessor is correct to point out that it is not appropriate to make an assessment for both the knee and the patello-femoral joint. The Guidelines provide in paragraph 3.23:
“Knee – Patello-femoral joint: This should be assessed in the ‘skyline’ view, again preferably with the other side for comparison. The X-ray should be taken with 30 degrees of knee flexion to ensure that the patella is load-bearing and has engaged the articular surface femoral groove.
Footnote to AMA5 Table 17-31 (p 544) regarding patello-femoral pain and crepitation:
This item is only to be used if there is a history of direct injury to the front of the knee, or in cases of patellar translocation/dislocation without direct anterior trauma. This item cannot be used as an additional impairment when assessing arthritis of the knee joint itself, of which it forms a component. If patello-femoral crepitus occurs in isolation (ie with no other signs of arthritis) following either of the above, then it can be combined with other diagnosis-based estimates (AMA5 Table 17-33, p 546). Signs of crepitus need to be present at least one year post-injury.
Note: Osteoarthritis of the patello-femoral joint cannot be used as an additional impairment when assessing arthritis of the knee joint itself, of which it forms a component.”
There is no history in the file that Mr McSpadden suffered a direct injury to the front of either knee. His statement is brief as is the history recorded by Dr Ghabrial. Mr McSpadden told the Medical Assessor that he attributed his left and right knee injuries to repetitive squatting and kneeling. While that mechanism of injury is not contemplated by the consent orders, the lack of a history of a blow to the front of either knee is relevant. Therefore, that the only appropriate assessment under the Guidelines is in respect of the knee, not the patellofemoral joint. When the assessment for the patellofemoral joint is removed from Dr Ghabrial’s assessment, his findings in respect of each knee is 3% WPI.
The Medical Assessor made his assessment of 0% WPI based on the range of motion of Mr McSpadden’s knees. The Guidelines say in paragraph 3.1 that assessment involves physical evaluation, which can use a variety of methods and that the method to be used is that which most specifically addresses the impairment present. The Medical Assessor set out the findings which led to his assessment and they were equal for both knees. However, he failed to call for and consider the X-rays on which Dr Ghabrial based his assessment. Examination of the X-rays was relevant when the accepted injuries to Mr McSpadden’s knees occurred on different dates.
The X-rays taken in 2022 of both knees are symmetrical and show mild tri-compartmental degenerative osteoarthritis. Because injury to the patello-femoral joint is not relevant in the absence of a blow to the front of the knee, the relevant measurement made by Dr Dixon is narrowing of the medial compartment to 3mm. under Table 17-31of AMA 5, that results in an assessment of 7% lower extremity impairment which converts to 3% WPI for each of Mr McSpadden’s knees.
Conclusion
For these reasons, we have determined that the MAC issued on 16 January 2025 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: | W23714/24 |
Applicant: | Maurice McSpadden |
Respondent: | State of New South Wales (NSW Police Force) |
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 Rob 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 NSW workers compensation guidelines | 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) |
| Cervical spine | 3.6.2010 26.1.201313.1.2014 | Chapter 4 | P 392 T 15.5 | 0 | 0 | 0% |
| Lumbar spine | 3.6.2010 16.3.2019 | Chapter 4 | P 382 T 15.3 | 0 | 0 | 0% |
| Left upper extremity (shoulder) | 23.1.2012 | Chapter 2 | P 476 16.40 | 5 | 0 | 5% |
| Left lower extremity (hip) | 1.7.2019 30.7.2019 | Paragraphs 3.19ff | P 527 17.31 | 0 | 0 | 0% |
| Left lower extremity (knee) | 13.7.2015 | Paragraphs 3.19ff | P527 17.31 | 3 | 0 | 3% |
| Right lower extremity (knee) | 30.7.2019 | Chapter 3 paragraphs 3.19ff | P527 17.31 | 3 | 0 | 3% |
| Total % WPI - Date of injury – 23 January 2012 | 5% | |||||
| Total % WPI - Date of injury – 13 July 2015 | 3% | |||||
| Total % WPI - Date of injury – 30 July 2019 | 3% | |||||
0
4
0