Miller-Whitfield v Centrel Pty Ltd t/as BP
[2021] NSWPICMP 53
•19 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Miller-Whitfield v Centrel Pty Ltd t/as BP [2021] NSWPICMP 53 |
| APPELLANT: | Carole Anne Francis Miller-Whitfield |
| RESPONDENT: | Centrel Pty Ltd t/as BP |
| APPEAL PANEL: | Member Catherine McDonald Dr Tommasino Mastroianni Dr Roger Pillemer |
| DATE OF DECISION: | 19 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury to right knee after which worker returned to work on crutches; injured left knee in a fall and suffered consequential conditions in lumbar spine and left shoulder; AMS purported to determine that the only injury was to the right knee and assessed only 1% WPI; parties had agreed on injuries and consequential conditions and the task of the AMS was to assess any permanent impairment; re-examination undertaken; Held- MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 October 2020 Carole Miller-Whitfield lodged an Application to Appeal Against the Decision of an Approved Medical Specialist, under the legislation in force at that time. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist, who issued a Medical Assessment Certificate (MAC) on 19 October 2020.
Ms Miller-Whitfield 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 Registrar was 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
Ms Miller-Whitfield was employed by Centrel Pty Limited (Centrel) in a service station as a customer service representative. She suffered an injury to her right knee on 6 April 2016 when crouching to fill a refrigerator. In late April 2016, while using crutches,
Ms Miller-Whitfield fell and injured her left knee. As a result of an altered gait following those injuries, Ms Miller-Whitfield developed pain in her back. As a result of using crutches, she developed pain and stiffness in her shoulders.At a conciliation conference on 23 April 2020, Ms Miller-Whitified and Centrel agreed on a compromise settlement of her claim for permanent impairment compensation. The parties asked the Commission to make an award for Centrel in respect of the consequential condition in the right shoulder and agreed that an AMS should be asked to assess
Ms Miller-Whitfield’s lumbar spine, right lower extremity (knee), left lower extremity (knee) and left upper extremity (shoulder/elbow).The AMS assessed 1% whole person impairment (WPI) in respect of the right lower extremity. He said that he was unable to identify injury to Ms Miller-Whitfield’s lumbar spine, left knee or right shoulder and elbow on 6 April 2016 or her subsequent condition.
PRELIMINARY REVIEW
The 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 Panel determined that the worker should undergo a further medical examination because the AMS said he was unable to identify an injury or consequential condition in most of the areas he was asked to assess. He did not have regard to the agreement made by the parties or the material in the file.
Once the Panel determined that the AMS made that error it was necessary that the whole assessment be redone and the Guidelines applied.[1]
[1] Roads and Maritime Services v Wilson [2016] NSWSC 1499.
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.
Dr Tommasino Mastroianni of the Appeal Panel conducted an examination of the worker on 25 March 2021 and reported to the Panel. A copy of the report of his examination is attached to this decision and the Panel adopts his findings.
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, Ms Miller-Whitfield, in submissions prepared by her solicitor, Mr McCabe, said that the AMS did not refer to much of the medical evidence from her treating doctors or to the reports of Dr D Dixon, qualified on her behalf, so that he did not afford procedural fairness. Ms Miller-Whitfield also said that the AMS erred in saying there was no injury to her lumbar spine, left knee or left shoulder and elbow, which was inconsistent with the agreement of the parties and Dr Dixon’s report. She said that an additional 2% permanent impairment should have been assessed in respect of her right knee injury because of wasting.
In reply, Centrel submitted, in a documents prepared by its solicitor, Ms Blake, that there was no requirement for the AMS to refer to all of the medical reports in the file. Particularly when the AMS said that all of the documents sent by the Commission were studied in detail. Centrel agreed that the AMS did not have the power to determine that an injury had been suffered but said that the AMS had adhered to his function and determined that
Ms Miller-Whitfield did not have any impairment of the body parts he had been asked to assess. With respect to the right knee, Centrel said that the AMS was not permitted to assess anything other than the right knee so was required to disregard wasting and that
Dr Dixon’s report would not have permitted a referral in respect of muscle atrophy. Centrel said that the method of assessment applied by the AMS was correct.
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[2] 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.
[2] [2006] NSWCA 284.
The role of the AMS was to assess permanent impairment as a result of the injuries and consequential conditions referred to him. It was not his role to determine if there was an injury or if a consequential condition had been suffered. The parties had agreed as to the areas to be assessed. If the AMS was unable to discern any impairment, it was appropriate to assess 0%. If he considered that any impairment was pre-existing then it was appropriate to make a deduction under s 323 of the 1998 Act.
The error was a demonstrable error as it is clear from the face of the MAC. The AMS used the appropriate parts of the Guidelines and AMA 5 to make the assessment he did so that he did not apply incorrect criteria.
The AMS said that he had reviewed the documents in the file. He did not list each one, nor was he required to. The presumption of regularity in respect of an administrative decision maker would usually allow the Panel to draw the conclusion he had reviewed all of his reports. The operation of the presumption was described in Bojko v ICM Property Service Pty Ltd[3], where Handley AJA said[4]:
“The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’”
[3] [2009] NSWCA 175.
[4] At [39].
However, in a case where the AMS failed to assess any impairment for most of the areas referred, it was necessary for him to explain why he disregarded the opinions of the doctors who had treated those body parts and why he differed from the opinion of Dr Dixon who had assessed Ms Miller-Whitfield at the request of her solicitor. A statement that he has considered all of the material is inadequate in those circumstances.
The injury suffered by Ms Miller-Whitfield appeared relatively minor and the only surgery undertaken was a partial medial meniscectomy. However, the parties have agreed that it led to a series of consequential conditions which now result in significant disability. The AMS was required to assess the impairment resulting from the injury and those conditions on the day of the examination. It was a demonstrable error not to do so.
The MAC
The AMS noted the history of the right knee injury and the fall soon after in which
Ms Miller-Whitfield injured her left knee. He said:“She did her best to continue at work. According to her statements, it looks as though she was treated very badly at work and everything seems to have deteriorated.”
He noted that Ms Miller-Whitfield had recently injured her right shoulder moving house.
The AMS described his findings and said:
“Ms Miller-Whitfield was of average stature and build. She held herself with a slightly stooped posture, which would increase the static loading of the spinal extensors. At this assessment she was very distressed, upset and was finding everything almost overwhelming. It was a very difficult assessment and every endeavour was made to place her at her ease. As well as being distressed, she was very unkempt. Her hands were callused and her nails were similarly in need of much care.”
The AMS set out the range of movement observed in Ms Miller-Whitfield’s cervical spine and upper limbs. With respect to her back, the AMS said:
“Pain was located in the low lumbar spine, more towards the right of the mid-line. There was mild associated tenderness. The spinal curvatures were normal. There was no scoliosis or muscle spasm.
On forward flexion she could reach her lower thighs with a McRae-Wright movement of over 3cm. This is still a bit stiff. 5cm is the lower limit of normal. Extension was grossly reduced. Lateral flexion and rotation to each side were reduced to half the normal range.”
The AMS set out his observations of Ms Miller-Whitfield’s lower limbs:
“She walked with an unusual and rather lurching gait, although not exactly a limp. She could walk on her heels and toes. There was no walking stick or crutch. Squatting was reduced to half the range. The legs were equivalent in length and in circumference at the calves. The right thigh was 2cm less in circumference than the left.
There was a normal range of movement of the hips, knees and ankles. The knee ligaments were firm. There was no retro-patellar tenderness, although there was joint-line tenderness at the right knee on the antero-lateral side. There was no other knee joint tenderness in either knee.
Sensation to pinprick was minimally reduced over the lateral side of the right ankle and over the medial side of the left ankle. (This could indicate irritation of the nerve roots of S1 on the right and L4 on the left.) Reflexes were present and equivalent at the knees (L4). At the ankles, I was unable to get any reflex activity at all. (I am not convinced that this represents a significant neurological feature and is probably nothing more than a variant of normal.)
Power of the extensor hallucis longus (L5) was equivalent.
Straight leg raising was conducted in the sitting position on the edge of the couch. She could fully extend each knee, although experienced a slight pulling sensation on the left side.”
The AMS summarised the injuries and his diagnoses:
“Mrs Miller-Whitfield gives a history of a crouching, twisting injury which affected her right knee in April 2016. It was identified that this was a medial meniscus tear. This was ultimately managed arthroscopically by Dr Bruce Caldwell and appears to have given her a reasonable result.
The situation has been further complicated by extensive delay in the accurate diagnosis of this condition and its appropriate clinical management.
If her account of events is anything to go by, it appears that she has been very badly treated during the development of this condition.
In spite of the claims of dysfunction of her lumbar spine, left knee and left shoulder and elbow, there is remarkably little in the way of clinical information associated with these components.”
When explaining his calculations the AMS said:
“The only component where it is possible to unequivocally identify a work-related injury is her right knee. She has had a partial medial meniscectomy. This is addressed in AMA 5 Page 546, Table 17-33. A partial medial meniscectomy has provision for 1% WPI.
Despite the extensive claims of other issues, I have been unable to unequivocally identify significant injury to her lumbar spine, left knee or right shoulder and elbow associated either with the event of 06/04/16 or her subsequent clinical management or injuries associated with her subsequent condition following this initial event.”
When providing brief comments on other reports, the AMS referred only to Dr A Fulop, rheumatologist, who queried an underlying rheumatological condition which has not been investigated and Dr R Powell, qualified for Centrel.
Treatment
The medical evidence in the file shows that the diagnosis of a meniscal tear in
Ms Miller-Whitfield’s right knee was not made until some months after the injury. During that period she had periods on selected duties and periods off work. She used crutches for a long time. She saw Dr D Smith, orthopaedic surgeon, at the request of her general practitioner
Dr Maung on 12 May 2016 who recommended conservative treatment.In April 2017, Ms Miller-Whitfield saw Dr S Rudzki, sports and exercise physician, who diagnosed pes anserinus bursitis in her right knee which he treated with injections. The history of the consequential conditions is set out in his reports.
Dr Rudzki said in his report to Centrel’s insurer dated 19 April 2017 that her left knee was normal. He considered that there may be meniscal pathology that could not be investigated until the bursitis settled. He recommended physiotherapy. At a consultation on 9 May 2017, he diagnosed retro-patellar bursitis and recommended an injection into that space, which he observed on 18 May 2017 had not provided any benefit. He recommended an MRI scan focussing on her right lateral meniscus. The MRI scan showed that the lateral meniscus was intact. On 24 May 2017, Dr Rudzki determined to inject a variety of possible pain generating sites to determine the source of her pain. As a result of that consultation, he considered that she had insertional enthesiopathy of a number of tendons. He again recommended physiotherapy.
Dr B Caldwell, orthopaedic surgeon, performed a partial medial meniscectomy on 15 September 2017. He observed that the lateral meniscus was intact.
Dr Rudzki continued to treat Ms Miller-Whitfield throughout 2017 and 2018. On 11 October 2017 Dr Rudzki noted that she had undergone surgery for a significant tear of her medial meniscus. He said:
“Unfortunately I think the long delay in having this managed has resulted in a series of knock-on pathologies which are the result of altered and abnormal gait, Carol hobbled into the consulting room today on one crutch. She describes a number of pains, the most prominent being pain localised to both her left and right pes anserinus regions. She also complains of pain in the region of her left medial collateral ligament and pain in both hamstrings with the right being worse than the left. She has also developed pain in both palms which radiate into her forearm and left arm respectively. I suspect this palm pain is due to irritation of the median nerve from her crutches and she has secondary possible neuritis.”
On 8 January 2018 Dr Rudzki said:
“She has had a very difficult last few months. She has developed bilateral wrist and shoulder pain as a result of her continued reliance on crutches.
When quizzed on why she was still using the crutches she explained that she developed 7 to 8/10 back pain if she stood and walked for any length of time. It was her back pain and to a lesser degree her right knee pain which was driving her use of crutches.”After further injections, Dr Rudzki noted that Ms Miller-Whitfield was left with quite substantial left shoulder pain. He considered it was important to “get her off crutches”. He repeated this opinion in a report to Centrel’s insurer dated 9 May 2018. The last report from Dr Rudzki in the file is dated 12 July 2018. Ms Miller-Whitfield continued to suffer right knee and back pain.
The reports from Mr J Shannon, physiotherapist, describe his treatment of
Ms Miller-Whitfield’s right knee and back pain in 2016. He wrote to Dr Rudzki on 22 November 2017 and noted that he had seen Ms Miller-Whitfield on four occasions since the surgery to her right knee. He said:“Prior to this time, I had not seen Carole for a few months and was a little alarmed to see how much dysfunction she was reporting other than her right knee. including low back pain, neck pain, bilateral wrist and forearm pain and left knee pain. Some of these problems (specifically, her low back and left knee) have persisted for quite some time however there was an obvious worsening of her overall dysfunction.”
There is no evidence from Ms Miller-Whitfield’s treating practitioners after mid 2018.
Dr Fulop, rehabilitation physician, saw Ms Miller-Whitfield for Centrel’s insurer and reported on 4 October 2018. She diagnosed a right meniscal tear. She considered the left knee normal and observed stiffness in Ms Miller-Whitfield’s wrists, fingers, back and hips. Dr Fulop considered that work was a substantial contributing factor to the right knee injury only. She did not consider the other conditions were related but it also appears that she was not asked to consider if they were consequential conditions. She considered that Ms Miller-Whitfield suffered from an underlying rheumatological condition.
Dr Dixon reported to Ms Miller-Whitfield’s solicitors on 3 July 2019. He noted the right knee injury and subsequent development of low back pain and shoulder pain after using crutches and pain in her left knee resulting from an altered gait.
Dr Dixon relevantly assessed the following impairments:
(a) Right knee – 4% WPI.
(b) Left knee – 2% WPI.
(c) Left upper extremity - 8 % WPI in respect of her shoulder, lateral epicondylitis and medial epicondylitis.
(d) Lumbar spine – 8% WPI with a one-tenth deduction under s 323 for pre-existing spondylosis.
Dr Powell reported on 28 January 2020. After describing the right knee injury he wrote:
“In addition to ongoing right knee symptoms, Ms Miller also reported the development of non-specific symptoms involving the cervical spine, shoulders, lumbar spine and the contralateral left knee. The left knee injury was attributed to increased load placed on the left lower limb during the periods on crutches and rehabilitation, as well as from several falls. An MRI scan of the left knee was unremarkable. Symptoms involving the cervical spine, shoulders and lower back were attributed to the use of crutches at! various stages during the management of her injury. Management of these complaints has been conservative throughout.
Ms Miller's position with the company was terminated in November 2018. Prior to that, she had been intermittently fit to perform suitable duties. She has not returned to work in any capacity since that time and is currently certified totally unfit for work.”
Dr Powell did not consider that there was “sufficient evidence to conclude that her employment represents the main contributing factor in either the development or aggravation of any degenerative disease processes involving the cervical spine, shoulders or lumbar spine.” This is not the correct test for determining if a consequential condition had been suffered. He assessed 1% WPI in respect of her right knee injury.
Right knee
Dr Dixon assessed 4% WPI in respect of the right knee allowing 1% under Table 17-33 of AMA 5 which sets out diagnosis-based estimates. That is the appropriate assessment for a partial medial meniscectomy.
Dr Dixon also allowed 3% for mild instability. Like the AMS, Dr Mastroianni did not observe instability. No allowance for instability is appropriate.
Ms Miller-Whitfield relied on Table 17-6 of AMA 5 and paragraph 3.14 of the Guidelines to say that a further 2% should be added for wasting of her right thigh.
Dr Mastroianni did observe wasting but explained that it cannot be assessed because Ms Miller-Whitfield’s contralateral knee is not normal. Paragraph 3.13 of the Guidelines makes that clear.
The Panel adopts Dr Mastroianni’s assessment of 1% WPI under Table 17-33 of AMA 5 in respect of Ms Miller-Whitfield’s right lower extremity (knee).
Left knee
Ms Miller-Whitfield fell while using crutches in late April 2016. The parties accepted that Ms Miller-Whitfield suffered a consequential condition in her left knee. The AMS did not record any abnormal findings in respect of either knee.
Because the AMS said there was no injury to the left knee, it was necessary that Dr Mastroianni examine it. He observed retropatellar crepitus and assessed 2% WPI under Table 17-31 of AMA 5. The Panel adopts that finding.
Lumbar spine
Ms Miller-Whitfield underwent a CT scan of her lumbar spine on 5 December 2016. It showed minor discovertebral spondylitic changes and mild to moderate facet joint arthrosis.
The treating doctors’ reports above show that Ms Miller-Whitfield underwent treatment for her back. They and Dr Dixon accept that the altered gait as a result of her right knee injury and prolonged use of crutches led to that condition.
The AMS observed a limited range of movement in Ms Miller-Whitfield’s lumbar spine but failed to assess impairment. The findings made by the AMS are consistent with the assessment in DRE Lumbar Category II made by Dr Dixon and Dr Mastroianni. The difference between their assessments is the extent of the loading for the impact of the condition on the activities of daily living.
A deduction under s 323 of the 1998 Act is appropriate because of the degenerative changes observed on the CT scan in 2016.
The Panel adopts Dr Mastroianni’s findings.
Left shoulder
The AMS noted that Ms Miller-Whitfield had suffered an injury to her right shoulder moving house. There are references in the histories to Dr Rudzki to Ms Miller-Whitfield suffering a consequential condition in both shoulders as a result of using crutches. The parties agreed that only the left shoulder condition was compensable.
Dr Mastroianni noted that the range of movement in both of Ms Miller-Whitfield’s shoulders was restricted. It is therefore not appropriate to make a deduction for a restricted range of movement of the contralateral shoulder. The Panel adopts Dr Mastroianni’s findings.
Dr Mastroianni did not find any impairment of Ms Miller-Whitfield’s elbow as a result of epicondylitis. No allowance is therefore made for loss resulting from any impairment of her left upper extremity (elbow).
For these reasons, the Appeal Panel has determined that the MAC issued on 19 October 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table 2 - Assessment in accordance with AMA5 and WorkCover Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 6/04/16 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 7% | 1/10th | (6.3) 6% |
| Right lower extremity | 6/04/16 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 1% | Nil | 1% |
| Left lower extremity | 6/04/16 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 2% | Nil | 2% |
| Left upper extremity | 6/04/16 | Chapter 2 Pages 10-12 | Chapter 16 Pages 433 to 521 | 7% | Nil | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
Catherine McDonald
Member
Dr Tommasino Mastroianni
Medical Assessor
Dr Roger Pillemer
Medical Assessor
19 April 2021
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