Morris v Advance Staff Pty Ltd - [2022] NSWPICMP 215

DETERMINATION OF APPEAL PANEL
CITATION:	Morris v Advance Staff Pty Ltd [2022] NSWPICMP 215
APPELLANT:	Israel Morris
RESPONDENT:	Advance Staff Pty Ltd
APPEAL PANEL:	Member Deborah Moore Dr Roger Pillemer Dr John Brian Stephenson
DATE OF DECISION:	13 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Appellant challenged the assessment as regards the manner in which the ma assessed the injuries to both knees; Respondent conceded errors in the Medical Assessor’s calculations but no other errors; Panel agreed; no demonstrable error as regards the assessment but the errors regarding the calculations needed to be rectified; Held- Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 February 2022 Israel Morris (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Richard Crane,
a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 13 January 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, no reasons were given as to why this was necessary. The Panel considers that we have sufficient evidence before us to enable us to determine the appeal without any re-examination.

EVIDENCE

Documentary 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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the MA erred in the manner of his assessment of the appellant’s knees and was contrary to the Guidelines.
In reply, the respondent accepts that the MA’s calculations may be incorrect, but submits that any error has not made any difference to the final assessment.

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. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the left lower extremity (knee and ankle), the right lower extremity (knee) and the lumbar spine resulting from an injury on 14 February 2008.
The MA obtained the following history:
“On 14 February 2008, the claimant was playing in a spontaneous game of cricket in the warehouse during a break in his work duties. While batting, he fell onto the concrete floor of the warehouse and was unable to move his left leg.
He was taken by ambulance to Prince of Wales Hospital, where he was found to have a mid-shaft fracture of the left tibia, which was subjected to an open reduction and internal fixation. He was in hospital for about one week and there is no plan to remove the orthopaedic hardware.
Mr Morris had physiotherapy for about three months and then the insurer would not pay for any further visits. He had been unable to return to work since the accident because of his injury and he has been on a disability support pension since 2011.
Mr Morris last saw his operating surgeon, Dr Stanford, in 2008.”
After noting the appellant’s current treatment, the MA described his present symptoms as follows:
“Mr Morris describes his major problem as continuing pain in the left lower extremity from the hip to the foot, and states there is also a problem with low back pain which he states started about five years after the work accident. The pains in the left lower extremity are described as ‘sharp niggles of pain’ occurring every day and so frequently they are almost continuous. There is also occasional pain noted in the right knee.
A long umbrella is used by Mr Morris as a walking stick to give him more confidence. When shopping, he also leans on a shopping trolley.
For leisure, Mr Morris watches some television and enjoys sleeping. He is unable to participate in many sporting activities, which he did before the injury.”
The MA added:
“Social activities/ADL: As concerns activities of daily living, he has a poor sleep pattern due to spasms in his legs. He is able to drive a manual car with difficulty because of using the clutch with his damaged leg, but he says he is unable to afford to buy an automatic car. He does very little driving.”
Findings on examination were reported as follows:
“The build, posture and gait were normal. Height 164cm and weight 80kg. There was unsteady walking on the heels and toes and partial squatting only was carried out due to a complaint of pain in both knees.
Lumbar spine
There was no deformity but there was a slight degree of tenderness over the extent of the lumbar spine. Range of motion was symmetrically reduced by approximately 30% in all directions of flexion, extension, lateral bending and rotation, with no evidence of dysmetria, muscle spasm or guarding. Mid-thigh circumference was 46cm on the right and 47cm on the left, with maximal calf circumference 36cm bilaterally. Sensation was described as circumferentially more sensitive with the right leg. Muscle power, tone and reflexes were all normal in the lower extremities.
Lower extremities
An 8cm prepatellar surgical scar was noted and a 1cm surgical scar just above the medial malleolus. There was also a 4cm scar overlying the lateral aspect of the left fibula. Range of motion of the right knee was from 0-120° and the left knee from 0-90°. The ligaments, both collateral and cruciate, and menisci showed no abnormalities but it was difficult to fully examine the left knee due to a complaint of discomfort. As concerns the ankles, both flexed to 140° and extended to 90°. As concerns hind foot range of motion, this was normal for both inversion and eversion on the right. On the left side, inversion was to 5° and eversion was 0°.”
The MA then documented all the radiological material he had before him then summarised the injuries and diagnoses as follows:
“Mr Morris has sustained a fracture of the mid left tibia following the work incident. There is no plan to remove the orthopaedic hardware and complaints of sharp pains occurring between the hip and the foot are described by the claimant.”
The MA assessed 6% total WPI. He explained his calculations as follows:
“The restricted range of motion of the left knee and restricted inversion and eversion of the left ankle is 14% lower extremity impairment, which converts to 6% whole person impairment.
The scarring is normal for the surgical procedure carried out and under the Guidelines this impairment is 0% WPI.”
In commenting upon the other medical opinions, the MA said:
“Medical Reports of Orthopaedic Surgeon, Dr Ralph Stanford, dated 9 May 2008 and 9 August 2009 describing his operative procedure for the fractured left tibia and stating his inability to understand the continuing complaints of left knee and leg pain. The x-ray showed satisfactory union, with the fracture being maintained in anatomical position by the intramedullary nail.
Medical Report of Orthopaedic Surgeon, Dr Kalev Wilding, provided for the insurer, dated 15 September 2009 considering the knee discomfort was caused by a degree of patellar tendonitis, which he felt might lessen if the intramedullary nail were to be removed.
Medical Report of Orthopaedic Surgeon, Dr Peter Giblin, provided for the claimant, dated 24 August 2010 assessing 6% WPI for the left lower extremity and 1% for scarring, giving a total of 7% WPI.
Medical Reports of Surgeon, Dr David Millons, provided for the insurer, dated 6 December 2010 and 5 March 2021 assessing a total of 9% WPI for restricted range of motion of the left knee, left ankle, left hind foot and scarring.
Medical Report of Surgeon, Dr Kim Edwards, provided for the insurer, dated 19 October 2011 expressing his opinion that he was unable to explain the multiple complaints on the basis of any organic injury resulting from the fractured leg.
Medical Report of General Surgeon, Dr Neil Berry, provided for the claimant, dated 18 September 2020 assessing 25% WPI for restricted range of motion of both lower extremities and the lumbar spine.
My examination of the claimant took place about 14 months after that of Dr Berry and I was unable to confirm his findings, with particular reference to a flexion contracture of the left knee.
Statement of Mr Israel Morris dated 1 July 2021 describing his continuation of the symptoms following the work accident. These were consistent with information I obtained directly from the claimant.”
The appellant submits as follows:
(a)    The MA seems to have considered Table 17-10 of the Guidelines to purportedly determine the degree of any impairment to the worker's left knee and right knee.
(b)    The MA however does not proffer his assessment of the lower extremity impairment, if any, to the worker's left knee. He also fails to proffer whether his findings on examination of the worker's left knee result in the worker qualifying for a lower extremity impairment for flexion contracture pursuant to Table 17-10. Rather than specify his findings on examination and the resultant scoring of the worker's left knee lower extremity impairment, if any, the MA simply concludes: “The restricted range of motion of the left knee and restricted inversion and eversion of the left ankle is 14% lower extremity impairment, which converts to 6% WPI.”
(c)    The reader is therefore left completely at a loss as to the MA’s findings on examination of the worker's left knee.
(d)    The MA also has failed to stipulate the worker's lower extremity impairment, if any, to the left knee.
(e)    The MA’s erroneous approach is in stark contrast to the approach, consistent with the Guidelines, adopted by Dr Berry, for the appellant and Dr Millons for the respondent.
(f)    The MA’s impermissible approach continues with his assessment of the worker's right knee. Again, save for stipulating his findings as to the range of motion of the worker's right knee, the MA, contrary to the Guidelines, fails to assess the worker's right knee in accordance with Table 17-10. He fails to stipulate the worker's right knee lower extremity impairment, if any. The reader is again left at a loss as to whether the MA has even considered the worker’s right knee flexion contracture. Instead, and without any reasoning, he simply assesses the worker's right knee with 0% WPI.
(g)    The MA’s assessment of the worker's left and right knees is clearly contrary to the Guidelines.
(h)    The MA also failed to give reasons for his assessment of permanent impairment to the worker's knees.
We agree with the thrust of the appellant’s submissions.
The MA found no impairment for the lumbar spine or right lower extremity, but did find 6% WPI for the left lower extremity. The MA reached this figure by finding 10% lower extremity impairment for the reduced range of knee flexion and then suggested a further 4% lower extremity impairment for the decreased range of subtalar movement, and did not find any additional impairment for the range of ankle movement.
In our view, the MA has made a number of errors in his calculations. He has also been remiss in not clearly indicating how he reached his figures as was pointed out in the Appeal.
The appellant raises issues with regard to the MA’s assessment of both knees, suggesting that the MA has not clearly given his figures where he has in fact done this, noting that both knees fully extended and that therefore there was no impairment to the loss of range of motion in this regard. The MA specifically notes that he was aware of Dr Berry’s findings, which were relied upon by the appellant, but opining that he was unable to confirm these findings.
In our view, the Appeal fails to identify any demonstrable errors, but there are certainly errors in the MA’s assessment.
He has noted that Mr Morris has a range of movement from 0° to 90° of his left knee, and although he does not say so, if one refers to the Table, 90° of flexion equates with 10% lower extremity impairment (page 537, Table 17-10). This figure is correct.
With regard to the range of movement of the hindfoot he suggests that there was 5° of inversion and 0° of eversion, which he suggests equates with 4% lower extremity impairment, which he combines with the impairment for the knee, giving 14% lower extremity impairment.
A measured range of 5° of inversion actually gives 5% lower extremity impairment and not 2% as implied by the MA, and the eversion gives a further 2%, giving a total of 7% lower extremity impairment for the reduced range of subtalar movement.
With regard to the range of movement of the left ankle, the MA has used the goniometer incorrectly. When he suggests that the ankle extends to 90°, he obviously means 0°, and when he says the ankle flexes to 140° he obviously means 50°. It is not possible to extend the ankle to 90° or flex to 140°. Extending to 0° would entitle Mr Morris to a further 7% lower extremity impairment, and there is no impairment for flexion to 50°.
When the impairments for the reduced range of ankle movement and subtalar movement are added together, there is a total of 14% lower extremity impairment.
Combining the 14% lower extremity impairment with the 10% lower extremity impairment for reduced range of knee flexion, one gets a final total of 23% lower extremity impairment which equates with 9% WPI.
In summary then, we are satisfied that the MA’s examination was properly conducted, but as we said, there were clear errors in his assessment.
We agree with the appellant that the approach taken by Drs Berry and Millons was correct.
We observe in passing that the ultimate assessment is consistent with that found by Dr Millons.
We also accept the MA’s observations regarding the assessment by Dr Berry where he said:
“Dr Neil Berry [assessed] 25% WPI for restricted range of motion of both lower extremities and the lumbar spine. My examination of the claimant took place about 14 months after that of Dr Berry and I was unable to confirm his findings, with particular reference to a flexion contracture of the left knee.”
The task of an MA is not to choose between competing clinical opinions of medical practitioners but to form his or her own clinical judgment.
We note that the appellant has not raised any issues with regard to the lumbar spine.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 January 2022 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 Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Richard Crane 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 WorkCover Guides	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)
1. Lumbar spine	14/2/2008	Chapter 4, Pages 24 to 29	Chapter 15, Page 384, Table 15-3	0%	N/A	0%
2. Left lower extremity	14/2/2008	Chapter 3, Pages 13 to 23	Chapter 17, Pages 523 to 564	9%	Nil	9%
3. Right lower extremity	14/2/2008	Chapter 3, Pages 13 to 23	Chapter 17, Pages 523 to 564	0%	N/A	0%
Total % WPI (the Combined Table values of all sub-totals)					9%

Ms Deborah Moore
Member
Dr Roger Pillemer

Medical Assessor

Dr John Brian Stephenson

Medical Assessor

13 May 2022