Mortezagholi v Hymix Australia Pty Ltd
[2024] NSWPICMP 779
•20 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mortezagholi v Hymix Australia Pty Ltd [2024] NSWPICMP 779 |
| APPELLANT: | Alireza Mortezagholi |
| RESPONDENT: | Hymix Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 20 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by not assessing the appellant’s impairment from an agreed consequential condition of the appellant’s left knee; Held – MA erred by not assessing the appellant’s impairment relating to the appellant’s left knee; appellant re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 July 2024 Alireza Mortezagholi, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Doron Sher, a Medical Assessor, who issued a Medical Assessment Certificate on 5 June 2024. The Medical Assessor subsequently amended that Medical Assessment Certificate on
5 July 2024 (MAC). The Appeal Panel notes that the Medical Assessment Certificate issued of 5 June 2024 is not before it, but that is of no consequence since it is the MAC, issued on 5 July 2024, that records the medical assessment the appellant is appealing against.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.
Rule 128 of the Personal Injury Commission Rules 2021 (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
The appellant commenced employment as a concrete truck driver in June 2018 with Hymix Australia Pty Ltd, the respondent. On 21 September 2021, whilst working for the respondent, the appellant tripped on an uneven surface then stepped backwards to restore his balance. This caused him to injure his right knee.
The appellant subsequently had two arthroscopic surgeries on high right knee on
1 December 2021 and 17 November 2022. The injury to his right knee also caused him to have an antalgic gait for a period of time. Due to that, and also his relying heavily on his left knee during rehabilitation from his surgeries for his right knee, he developed a condition in his left knee.At the request of his solicitors the appellant was examined by orthopaedic surgeon Dr Sheikh Habib on 30 May 2023. Dr Habib diagnosed the appellant had a “traumatic overstretching of the AC graft, medial meniscal tear, femoral condylar and patellar chondrosis and patella femoral arthropathy of the right knee” and a “consequential patella femoral arthralgia left knee”. Dr Habib considered that his findings relating to the appellant’s right knee were “consistent with the manner of the injury in the said workplace incident”. Dr Habib also considered that the appellant “developed knee pain from overloading effects by protecting the painful injured right knee”. Dr Habib said that the appellant’s “limping with altered right antalgic gait over a period resulted in two-pronged impact on the left knee” due to the “thrusting impact on the left knee articular chondral surfaces from short stance right antalgic gait” and “regular negotiation of the stairs especially at his dwelling, heavily impacting the patella femoral articulation with one step at a time, in particular descending the steps”.
Dr Habib assessed the appellant had 18% whole person impairment (WPI) from his injury, which was a combination of 16% WPI relating to his right knee and 2% WPI relating to his left knee.
Relying on that report from Dr Habib, the appellant’s solicitors by letter dated 29 June 2023 notified the respondent’s insurer that the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 18% WPI.
To respond to that claim the respondent’s solicitors arranged for the appellant to be examined by orthopaedic surgeon Dr Kim Slater on 3 August 2023. Dr Slater produced three reports relating to that examination, the first dated 2 August 2023, the second dated
24 August 2023 and the third dated 7 September 2023. In his second report Dr Slater advised he had assessed the appellant had 6% WPI from his injury, which consisted of 11% WPI relating to his right knee less a deduction of 50% under s 323(1) for a pre-existing degenerative change that Dr Slater considered the appellant had which contributed to his permanent impairment. In the last of his reports he advised that he assessed the appellant had 0% WPI relating to his left knee. That assessment was based on an examination
Dr Slater had conducted of the appellant on 29 September 2022, in regards to which he had produced a report dated 5 October 2022 advising that whilst he found the appellant complained of some discomfort in his left knee it showed normal stability with full range and no effusion. Dr Slater stated that the appellant’s complaints of pain were of “limited significance”.On 25 November 2023 the respondent’s solicitor issued a dispute notice to the appellant, care of his solicitors, pursuant to s78 of the 1998 Act in which it advised him that it denied liability to pay compensation to him for his injury. It explained that its reason for this was that it considered he did not suffer an injury to his left knee (which the appellant was not contending) or in the alternative that his left knee condition did not result from the injury to his right knee. It did not provide any explanation or any evidence to support that latter position. It also reminded him that it had arranged for him to be examined by Dr Slater, and advised him Dr Slater had assessed he had 6% WPI relating to his right knee which did not meet the threshold imposed by s 66(1) of the 1987 Act for him to be entitled to compensation for permanent impairment.
The appellant’s solicitors requested the insurer to review its decision. On 29 December 2023 the insurer wrote to the appellant’s solicitors advising them that it had done so as that it maintained its denial of liability.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) by lodging an Application to Resolve a Dispute dated 1 March 2024, by which he sought the Commission determine his claim for compensation.
The matter was referred to a Member of the Commission, namely Ms Diana Benk, who on
5 April 2024 made the following determinations and notations with the consent of the parties that had been recorded in a Certificate of Determination issued on that date:“By and with the consent of the parties, the Commission determines:
1. The matter to be remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a. date of injury: 21 September 2021
b. body systems/parts:
a. right lower extremity (knee)
b. left lower extremity (knee)
c. method of assessment: whole person impairment.
2. The documents to be reviewed by the Medical Assessor are:
a. Application to Resolve a Dispute and attached documents; and
b. Respondent’s Reply and attached documents.
Notations
The dispute in relation to the left lower extremity is withdrawn by the respondent.”
A delegate of the President of the Commission on 11 April 2024 duly issued a referral to the Medical Assessor in accordance with the determination Member Benk had made.
The Medical Assessor examined the appellant on 24 May 2024 and as said issued a Medical Assessment Certificate on 5 June 2024 which he amended on 5 July 2024 issuing the MAC on that date.
The Medical Assessor in the MAC detailed the circumstances relating to the manner in which the appellant suffered injury and also the treatment the appellant had received. The Medical Assessor also detailed the investigations that had been done of the appellant’s right knee providing brief details regarding the findings from those investigations.
The Medical Assessor also recorded his findings from his examination of the appellant which were as follows:
“His clinical examination showed that his appearance matched that of his driver’s license. He walked with a limp on the right side.
There was overall general varus alignment of his knees which was symmetrical with thigh and calf wasting of the right leg.
Range of motion was 0 to 140° on the right and 0 to 150° on the left measured with a
goniometer.
The right side had a grade one Lachman and anterior drawer test but neither side had an effusion. There was slight increased mediolateral laxity on the right side consistent with prior surgery and meniscectomy.
Thigh and calf muscle bulk were measured at the appropriate distance from the patella with a tape measure. There was a 1.5cm reduction in thigh circumference and a 1cm reduction in calf circumference.
There was a well healed surgical scar on the right leg 3 cm in length on the proximal tibia from the prior ACL reconstruction.”
The Medical Assessor diagnosed the appellant had firstly, a recurrent medial meniscal tear of his right knee on the background of a previous ACL reconstruction; secondly, medial compartment and patella femoral degenerative changes within his joint space that the Medical Assessor said were reasonably preserved on X-ray; and lastly had muscle wasting and slight loss of motion. The Medical Assessor said “there is no consequential left knee injury”.
The Medical Assessor assessed the appellant had 7% WPI relating to his right knee from his injury from which he made a deduction of 10% under s 323(1) due to “pre-existing ACL surgery” which produced 6.3% WPI and rounded down to 6% WPI.
The appellant has raised no issue with that in his appeal against the medical assessment.
The Medical Assessor also assessed the appellant had 0% WPI relating to scarring. The appellant also raises no issue regarding that assessment in his appeal against the medical assessment.
The Medical Assessor assessed the appellant had 0% WPI relating to his left knee on the basis that he had “no consequential injury”. Consequently, he assessed the degree of the appellant’s permanent impairment from his injury is 6% WPI, relating entirely to his right knee.
The appellant’s appeal against the Medical Assessor relates to the Medical Assessor’s finding that the appellant has no “consequential injury” to his left knee and assessing the degree of his permanent impairment relating to his left knee from the injury he suffered as being 0% WPI.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel found, for reasons explained below, that the MAC contained a demonstrable error and, in order to correct that error, the Appeal Panel would need further clinical data that it could only obtain from further examination of the appellant. The Appeal Panel appointed one of its members who is a Medical Assessor to conduct that examination, namely Dr John Brian Stephenson. He did so on 30 October 2024 and subsequently presented his report to the Appeal Panel, which the Appeal Panel has copied below under the heading “Findings and Reasons”.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred by finding he did not have a consequential condition of his left knee and making no assessment of his permanent impairment relating to his left knee. The appellant submitted that the Medical Assessor’s finding that he had no consequential injury to his left knee is “ultra vires”.
In reply, the respondent submits, relying on Bindah v Carter Holt Harvey Wood Products Aust Pty Ltd[1] (Bindah) and Cincotta v PoliceCitizens Youth Clubs NSW Ltd[2] (Cincotta), that it was open to the Medical Assessor to consider issues of causation when assessing the appellant’s permanent impairment from his injury. The respondent acknowledged that it had agreed that the appellant sustained “a consequential injury” to his left knee. The respondent submitted that the Medical Assessor was required to consider whether the appellant had any “diagnosable pathology of the left knee and then assess whether this gave rise to any degree of permanent impairment resulting from the accepted injury or whether that impairment resulted from a pre-existing condition or abnormality”.
[1] [2014] NSWCA 264.
[2] [2018] NSWSC 1588.
The respondent submitted that the Medical Assessor obtained a comprehensive history and conducted a comprehensive examination of the appellant’s knees, and that it was open to the Medical Assessor, based on that, to express his opinion on causation.
The respondent noted that the Medical Assessor recorded the appellant had not undergone any investigations of his left knee. The respondent also acknowledged, that contrary to that, the appellant had undergone a bone scan dated 5 September 2022 that recorded “local moderate degenerative changes in the patella femoral compartment of the left knee”.
The Appeal Panel notes that respondent said within its submissions that the Medical Assessor had assessed the appellant had 7% WPI relating to his right knee and made a deduction of one-tenth which he noted resulted in 6.3% WPI. The respondent said that the Medical Assessor then rounded that up in the certificate within the MAC to assess the degree of the appellant’s permanent impairment from his right knee to be 7% WPI. The Appeal Panel observes that this is not the case in the MAC. The respondent’s submissions are dated 23 July 2024, which is subsequent to the date on which the Medical Assessor issued his initial certificate, but prior to the date of the MAC the Appeal Panel is reviewing. The Appeal Panel assumes from this, that this error was corrected by the Medical Assessor by the amendment he made.
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.
The respondent initially disputed, without any apparent evidence, that the appellant had any condition in his left knee resulting from the injury to the appellant’s right knee, but the respondent ultimately conceded this issue, which is evident from the notation Member Benk made to her the determination of 5 April 2024. Given that, as the appellant has submitted, it was not open to the Medical Assessor to find that the appellant did not suffer a “consequential injury”. The Medical Assessor was required to assess whether the symptoms in the appellant’s left knee that were consequent upon the injury to his right knee caused the appellant impairment.
Saying that somewhat differently, the Medical Assessor had to accept that the appellant had a consequential condition in his left knee as a result of his injury to his right knee, and it was his role to assess the permanent impairment of the appellant caused by that consequential condition. That is consistent with the principles enunciated in Bindah and Cincotta. The Medical Assessor could consider whether any permanent impairment the appellant had in his left knee was attributable to causes unrelated to the condition in his left knee that was the consequence of the injury to his right knee, that is causes unrelated to condition in the appellant’s left knee that resulted from the appellant’s altered gait and rehabilitation relating to his right knee injury. The Medical Assessor however did not do that, but rather the Medical Assessor made a finding relating to whether the appellant had a consequential condition as a result of his right knee injury. To repeat, that was not his role.
The MAC consequently contains a demonstrable error.
As indicated earlier, the Appeal Panel considered it did not have sufficient clinical data to correct this error in the MAC. The Medical Assessor set out very little history in the MAC relating to the appellant’s left knee. Further, the Medical Assessor’s findings from his examination of the appellant’s left knee did not include any finding relating to laxity or crepitus. The Appeal Panel considered it would therefore need to re-examine the appellant in order to obtain the clinical data necessary as to correct the error in the MAC, and it appointed Medical Assessor John Brian Stephenson to conduct that examination. Medical Assessor Stephenson is an orthopaedic surgeon and the Appeal Panel considered that he had the appropriate expertise to examine the appellant. Medical Assessor Stephenson examined the appellant on 30 October 2024 and his report to the Appeal Panel from his examination is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W1706/24 |
Appellant: | Alireza Mortezagholi |
Respondent: | Hymix Australia Pty Ltd |
Date of Determination: | 30 October 2024 |
Examination Conducted By: | John Brian Stephenson |
Date of Examination: | 30 October 2024 |
The medical dispute referral body part was right lower extremity (knee), which has been assessed and the applicant is Mr Alireza Mortezagholi respondent being Hymix Australia Pty Ltd. Method of assessment – whole person impairment. The medical assessor was Dr Doron Sher. I found the impairment for the right lower extremity, but the Appeal pointed out the left knee is also referred but that was assessed at 0% WPI by the medical assessor.
The applicant was born in Iran and the surgery following injury was to the right knee being arthroscopic surgery including anterior cruciate ligament repair assessed at 7% WPI combines a tenth gaining a net rounded down 6% WPI, but deemed date of injury 21 September 2021, the assessor considered there was no consequential injury and therefore a 0% WPI for left knee. Scarring was addressed as 0%. On examination therefore of the left knee, reference AMA5, Page 537, Table 17-10, I found on examination a flexion contracture in the range 5 to 9 degrees have been 7 degrees and therefore a 4% WPI rating. There was no deformity and good flexion through to 140 degrees. Conclusion: There is a 4% WPI for the left knee.
1.The workers medical history, where it differs from previous records
I have noted the medical history. There was no difference.
2.Additional history since the original Medical Assessment Certificate was performed
The reasoning is that he has not been able to return to any work, now aged 60.
3.Findings on clinical examination
At the left knee, there was a flexion contracture in the range 5 to 9 degrees, therefore gaining a 4% WPI.
4.Results of any additional investigations since the original Medical Assessment Certificate
There were no such additional investigations.”
The Appeal Panel considers that Medical Assessor Stephenson conducted a thorough examination of the appellant’s right knee and the Appeal Panel consequently adopts his findings from his examination of the appellant.[3] The Appeal Panel also agrees with Medical Assessor Stephenson’s conclusion that based on his findings from his examination the appellant has 4% WPI relating to his left knee given that he has a flexion contracture in the range of 5 to 9 degrees. That rating is in accordance with the criteria of Table 17-10 of AMA5.
[3] Coca Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
The Appeal Panel also considers that the appellant has a pre-existing condition in his left knee, which is revealed by the bone scan that was done on 5 September 2022. The moderate degenerative change that that scan reveals would in all likelihood have existed in the appellant’s left knee prior to his injury, given that the bone scan was done around one year after his injury. There was not sufficient time for that degeneration to have developed subsequent to his injury. The Appeal Panel considers that the pre-existing degeneration would contribute to his impairment in his left knee in that it is a factor in the crepitus and laxity he has in his left knee. It is difficult to determine the precise contribution that pre-existing condition makes to his current impairment and hence the Appeal Panel assumes in accordance with s 323(2) of the 1998 Act that it is 10%. That is not at odds with the evidence. In any event given that a deduction of 10% has been made relating to his right knee, which is not challenged, then that same deduction should be made with respect to his left knee.[4]
[4] Secretary, Department of Communities & Justice v Virtue [2024] NSWSC 1380 at [53]-[54].
For these reasons, the Appeal Panel has determined that the MAC issued on 5 July 2024 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
Matter number: | W1706/24 |
Applicant: | Alireza Mortezagholi |
Respondent: | Hymix Australia 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 Doron Sher 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) |
| Right lower extremity (knee) | 21/09/2021 | Chapter 3 | Chapter 17 | 7 | 1/10 | 6 |
| Left lower extremity (knee) | Chapter 3 | Chapter 17 | 4 | 1/10 | 4 | |
| Scarring | Table 14.1 | - | 0 | - | 0 | |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | |||||
5
0