Milos The Handy Man Pty Ltd v Djokic
[2024] NSWPICMP 190
•3 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Milos The Handy Man Pty Ltd v Djokic [2024] NSWPICMP 190 |
| APPELLANT: | Milos The Handy Man Pty Ltd |
| RESPONDENT: | Milos Djokic |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Christopher Oates |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 3 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment arising from two knee and two hip replacements; combined values chart; application of section 323 deduction; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 January 2024 Milos the Handy Man Pty Ltd (Handy Man) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Neil Berry, who issued a Medical Assessment Certificate (MAC) on 8 December 2023.
Handy Man relies on the following grounds of appeal under s 327(3) 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. We conducted a review of the original medical assessment, limited to the grounds 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 Djokic worked as a handyman and working director for Handy Man from the early 1990s until 2017, performing a variety of tasks including concreting, rendering, fencing, tiling, painting, gyprocking and brick laying. He performed physically demanding work and used a variety of power tools. He was required to squat and kneel repetitively and lift heavy weights. Mr Djokic performed that work until he could no longer continue, due to knee pain. He underwent a right total knee replacement in August 2017 and a left total knee replacement in March 2019. In August 2022, Mr Djokic underwent bilateral total hip replacements. He also suffered low back pain as a result of his work.
The Medical Assessor assessed 5% whole person impairment (WPI) in respect of Mr Djokic’s lumbar spine. He assessed 40% WPI in respect of each of his lower extremities and deduced one tenth of each of those assessments under s 323 of the 1998 Act to reach 36% for each. He did not make an assessment in respect of scarring. The Medical Assessor combined those assessments to reach 61% 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.
As a result of that preliminary review, we determined that it was not necessary for Mr Djokic to undergo a further medical examination because there is sufficient information 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.
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.
There is no appeal with respect to the primary assessment of each body part.
In summary, Handy Man submitted that the Medical Assessor incorrectly assessed Mr Djokic’s lower extremities by adding the impairments instead of combining them. It also submitted that the Medical Assessor erred in making a s 323 deduction from the total assessment of each lower extremity rather than from each body part. It submitted that the correct assessment was 57% WPI, reached by combining the assessment for each joint and the lumbar spine.
In reply, Mr Djokic submitted that the Guidelines required in paragraph 3.6 that regional impairments should be combined before converting to WPI. He said that the lower extremity impairments cannot be combined using the Combined Values Chart in AMA 5 because they had not yet been converted to WPI and that the Medical Assessor was correct to add the impairments in respect of each of his lower extremities.
Mr Djokic said that it was artificial to apply s 323 to the assessment of each lower extremity before WPI was calculated because s 323 applied to an injury and the relevant injury for the purpose of s 66 was the “total injury.”
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 Queanbeyan Racing Club Ltd v Burton,[1] 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.
[1] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] 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.
[2] [2006] NSWCA 284.
The Medical Assessor used the diagnosis-based estimates in paragraph 17.2j of AMA 5 to assess each of Mr Djokic’s hips and knees. He summarised his assessment of impairment resulting from Mr Djokic’s lower extremities in following way:
“Left and Right Lower Extremities (hips)
The assessment for hip replacements is assessed using Table 17-34 on page 548.
· the claimant has slight hip pain which is 40 points.
· there is no limp which is 11 points.
· in terms of activities, he is allowed 13 points.
· there is no deformity; and
· the range of motion is normal.
The claimant is therefore assessed as having between 50 and 84 points and using Table 17-33 on page 546 this is recorded as a fair result which is a 20% Whole Person Impairment or a 50% lower extremity impairment for each side.
Left and Right Lower Extremities (knees)
In terms of his knees, I refer you Table 17-35 on Page 549.
· The claimant has continuing pain which is 10 points.
· There is a slight restriction of movement which is 25 points.
· In terms of stability, anteroposterior is 10 points and
· Mediolateral which is 10 points.
Using the Table on Page 547 (is considered a fair result) and is a 20% Whole Person Impairment or a 50% Lower extremity impairment for each side.
These lower extremities impairments are added and the claimant is assessed as a 40% Whole Person Impairment for each lower extremity.
Given that the claimant has a pre-existing degenerative change in each lower extremity and a 10% deduction is made and this allows a 36% Whole Person Impairment for each lower extremity.”
The Medical Assessor did not assess any impairment for scarring. He combined 5% assessed in respect of the lumbar spine with 36% and 36% to assess 61% WPI.
The Medical Assessor did not cite the basis for adding the total assessments in respect of the hip and knee of each of Mr Djokic’s extremities and there is no provision in AMA 5 or the Guidelines which permits that to occur. It is exceptional to add impairments and AMA 5 clearly indicates where that is required. An example is in the work sheet for the assessment of the upper extremity. The methodology used by the Medical Assessor to convert the assessments in respect of each body part to WPI was incorrect.
Paragraph 1.4 of AMA 5 provides:
“The Combined Values Chart (p. 604) was designed to enable the physician to account for the effects of multiple impairments with a summary value. A standard formula was used to ensure that regardless of the number of impairments, the summary value would not exceed 100% of the whole person. According to the formula listed in the combined values chart, multiple impairments are combined so that the whole person impairment value is equal to or less than the sum of all the individual impairment values.
…
In general, impairment ratings within the same region are combined before combining the regional impairment rating with that from another region. For example, when there are multiple impairments involving abnormal motion, neurologic loss, and amputation of an extremity part, these impairments first should be combined for a regional extremity impairment. The regional extremity impairment then is combined with an impairment from another region, such as from the respiratory system. Spinal impairments in multiple regions are combined. Exceptions, as detailed in the musculoskeletal chapter, include impairments of the joints of the thumb, which are added, as are the ankle and subtalar joints in the lower extremity: both situations include complex motions.”
That paragraph makes clear that the Combined Values Chart is used “to account for the effects of multiple impairments with a summary value.” The chart is not only used to calculate WPI, as Mr Djokic submitted.
Paragraph 3.6 of the Guidelines confirms that the chart is used to combine impairments in a region before converting to WPI:
“3.6 When the Combined Values Chart is used, the assessor must ensure that all values combined are in the same category of impairment rating (ie percentage of WPI, percentage of lower extremity impairment, foot impairment percentage, and so on). Regional impairments of the same limb (eg several lower extremity impairments) should be combined before converting to a percentage of whole person impairment (WPI).”
The note on the Combined Values Chart confirms that:
“Note: if impairments from two or more organ systems are to be combined to express a whole person impairment, each must first be expressed as a whole person impairment percent.”
Before using the Combined Values Chart to assess the total WPI, the Medical Assessor was required by paragraph 3.6 to assess the impairment of each of Mr Djokic’s lower extremities. To make that assessment, it was necessary for him to consider the application of s 323 on each joint. Neither party has taken issue with the Medical Assessor’s deduction of one-tenth under s 323(2) for each joint.
Logically, the lower extremity impairment (LEI) must be assessed for each joint individually before combining the results and converting to WPI. In Mr Djokic’s case, the amount of the s 323 deduction is the same for each of the joints being assessed but it may not always be so. For example, a worker may have had a pre-existing injury to one joint which required a higher deduction than others merely showing the effect of age-related degenerative change. If the s 323 deduction was made after the assessment of LEI and conversion to WPI, that hypothetical worker may be undercompensated.
The methodology contended for by Handy Man does not take account of paragraph 3.6 because it did not combine the lower extremity assessments before converting to WPI. It is necessary to assess LEI in respect of each joint then combine to reach the total LEI before converting to WPI.
Dr Habib, on whose reports Mr Djokic relied, did not in our view use the correct methodology because he made the s 323 deduction after converting the impairment of each joint to WPI. However, his report does not support Mr Djokic’s submission that the s 323 deduction should be made after the assessment of each lower extremity and conversion to WPI.
Dr Nair, on whose reports Handy Man relied, only assessed impairment in respect of Mr Djokic’s knees.
Mr Djokic submitted that it was inappropriate to make a s 323 deduction before WPI of the lower extremities was calculated because s 323 applied to “an injury”. That submission does not take account of the two different meanings that injury has in the legislation – both the injurious event and the pathology.[3]
[3] See for example Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6, [26].
The appropriate method for assessing each of Mr Djokic’s lower extremities is:
· hip (fair result) = 50% LEI, minus one-tenth = 45% LEI
· knee (fair result) = 50% LEI, minus one-tenth = 45% LEI
· 45 and 45 combined is 70% LEI
· which converts to 28% WPI.
The total assessment is therefore 28% and 28% and 5% combined which equals 51%. We note that working cannot be appropriately reflected in the attached certificate.
For these reasons, we have determined that the MAC issued on 8 December 2023 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: | W6623/23 |
Applicant: | Milos Djokic |
Respondent: | Milos the Handy Man Pty Ltd |
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 Neil Berry 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-totals % WPI (after any deductions) |
| Lumbar spine | 1.12.17 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 5% | nil | 5% |
| Right lower extremity (knee and hip) | 1.12.17 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | * | * | 28% |
| Left lower extremity (knee and hip) | 1.12.17 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | * | * | 28% |
| Scarring (TEMSKI) | 1.12.17 | Chapter 14 Pages 73-74 | 0% | not applicable | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 51% | |||||
* See Reasons at paragraph 33.
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