MSF Painters Pty Ltd v Swmaa
[2022] NSWPICMP 292
•18 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | MSF Painters Pty Ltd v Swmaa [2022] NSWPICMP 292 |
| APPELLANT: | MSF Painters Pty Ltd |
| RESPONDENT: | Nehme Swmaa |
| APPEAL PANEL: | Member Marshal Douglas Medical Assessor Drew Dixon Medical Assessor Tommasino Mastroianni |
| DATE OF DECISION: | 18 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Assessment of whole person impairment (WPI) from injuries to right ankle, left knee and lumbar spine and from scarring; appellant submitted Medical Assessor (MA) incorrectly applied criteria with respect to assessment of WPI relating to left knee, erred by failing to explain assessment of WPI relating to right ankle, and erred by failing to make a deduction for pre-existing degenerative disease in left knee and lumbar spine; Held – Appeal Panel found MA had erred by not making a deduction and by not adequately explaining reasons for right ankle assessment; respondent re-examined so that Appeal Panel could correct error with respect to right ankle assessment; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 February 2022 MSF Painters Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 18 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,
· 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, 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
The appellant employed Nehme Swmaa (the respondent) as a general hand and labourer. His duties required him to be working on mobile scaffolding on 2 May 2016. He stood on the scaffolding at a height of approximately 4.5 meters from the ground.
In a statement the respondent signed on 6 October 2021, he described that the scaffolding started to roll down a hill towards a set of stairs, which prompted him to jump off the scaffolding. He landed on his feet and fell backwards. He said he felt immediate pain and discomfort. He described suffering “serious injuries to my right leg, right foot and ankle and to my left foot and ankle”. He said that he has since been diagnosed with right leg atrophy. He said that he now walks with a limp and experiences significant back pain and discomfort. He also described experiencing pain in his left knee and right knee.
The respondent’s solicitors arranged for orthopaedic surgeon Dr Vijay Maniam to examine the respondent and to report to them on the injuries the respondent suffered as a consequence of the incident on 2 May 2016. In a report dated 20 May 2022 to the respondent’s solicitors, Dr Maniam advised that he had diagnosed the respondent suffered a comminuted fracture of the right calcaneum with displacement of fragments and deformity of the subtalar joint as a consequence of the incident on 2 May 2016. Dr Maniam also advised that, due to the respondent having a limp, the respondent had a chronic sprain of his lumbar spine with aggravation of underlying degenerative disease, an aggravation of pre-existing tricompartmental arthritis of his right knee, and an aggravation of pre-existing tricompartmental arthritis in his left knee and had also developed DVT in his right lower limb.
Dr Maniam further advised in that report that he had assessed the respondent had 26% whole person impairment (WPI) resulting from his injury. He advised that this was comprised of 6% WPI due to restriction of movement of the respondent’s right ankle, 4% WPI due to ankyloses of the right subtalar joint, 15% WPI due to loss of oscalsis angles and 3% WPI due to the lumbar spine (which he computed on the basis that the respondent had a total 6% WPI of the lumbar spine but half of that was due to pre-existing degenerative disease in the respondent’s lumbar spine).
The respondent on 6 August 2020 claimed compensation from the appellant under s 66 of the Workers Compensation Act 1987 (1987 Act) for permanent impairment from his injury. The appellant’s solicitors then arranged for the respondent to be examined by orthopaedic surgeon Dr John Bentivoglio, which occurred on the 22 October 2020. In a report dated 30 October 2020, Dr Bentivoglio advised the respondent’s solicitors that the respondent had suffered a comminuted fracture of his right calcaneus when he injured himself. Dr Bentivoglio also said that the respondent had a pre-existing degenerative osteoarthrosis in his left knee and that it was possible this had become symptomatic secondary to the respondent walking abnormally. Dr Bentivoglio said that with respect to the respondent’s back there had been no investigations done to determine whether any damage in the respondent’s back could give rise to the respondent having symptoms as a result of his walking abnormally.
Dr Bentivoglio assessed the respondent had 11% WPI from his injury. He explained that the respondent had 4% WPI because of the subtalar fusion and consequent loss of os calcis angle. Dr Bentivoglio explained that the respondent also had 8% WPI due to his left knee, but only attributed half to the incident on 2 May 2016 and attributed the half to a pre-existing abnormality in the left knee. Dr Bentivoglio explained the respondent had 5% WPI relating to his lumbar spine but considered that half of that was due to pre-existing disease, and consequently 3% WPI only related to the incident.
Relying on that report of Dr Bentivoglio, the appellant’s solicitors wrote to the respondent’s solicitors on 17 December 2020 advising that the appellant offered to pay the respondent $22,786.55 as compensation under s 66 for 11% WPI. The appellant’s solicitors advised that the appellant’s offer was open for acceptance for a period of 14 days.
It is apparent that the respondent did not accept that offer. On 12 July 2021 the respondent’s solicitors wrote to the appellant’s solicitors advising that the respondent was claiming compensation of $54,820 for 22% WPI, and that this claim replaced his earlier claim made on 6 August 2020. The respondent relied on a further report of Dr Maniam dated 21 June 2020 in support of his substituted claim, whom the respondent’s solicitors had again arranged to examine the respondent on 14 May 2021.
In his report of 21 June 2020, Dr Maniam confirmed the diagnoses he had previously made with respect to the respondent’s injury, although on this occasion he did not make a diagnosis of DVT of the respondent’s right lower limb, but diagnosed DVT of the left lower limb. Dr Maniam advised that he had assessed the respondent had 22% WPI comprised of 6% WPI due to the right ankle, 4% WPI due to the right subtalar joint, 8% WPI due to loss of os calcis angles, 2% WPI due to scarring and 3% WPI due to the lumbar spine. Dr Maniam again indicated that the respondent’s overall impairment of his lumbar spine was 6% WPI, but a deduction of half of that was required for the proportion of the respondent’s WPI that was due to pre-existing degenerative disease in his lumbar spine.
Following the appellant’s solicitors receiving the respondent’s solicitors’ letter of 12 July 2021, the appellant’s solicitors organised for the respondent to be again examined by Dr Bentivoglio on 21 October 2021. In a report dated 8 November 2021 to the appellant’s solicitors, Dr Bentivoglio repeated his diagnoses advised in his earlier report. He also said that with respect to the respondent’s right knee, the respondent had been significantly disabled by his calcaneal fracture and the treatment the respondent received for that and that “there is no way he could have a consequential injury to his right knee”. Dr Bentivoglio advised that he had assessed the respondent’s WPI as at the date he examined him to be 9%, comprised of 9% WPI for right ankle and right subtalar joint, 0% WPI for the right os calcis angle, 0% WPI for scarring and 0% WPI for the lumbar spine. Dr Bentivoglio advised that with respect to the respondent’s left knee he had made a “100% deduction for degenerative changes present in this gentleman’s left knee as I do not consider the limited amount of walking he was doing could possibly have caused any deterioration of the degenerative changes”.
On 16 November 2021, the appellant’s insurer wrote to the respondent notifying him under s 78 of the 1998 Act that it disputed the respondent was entitled to permanent impairment lump sum compensation for his injury. The insurer attached with its notice a copy of Dr Bentivoglio’s report of 8 November 2021. It advised the respondent that the reason for its decision was that Dr Bentivoglio had assessed his permanent impairment from his injury was less than 10% which was less than the threshold under s 66(1) of the 1987 Act for him to be entitled to compensation for permanent impairment from his injury.
On 20 October 2021 the respondent’s solicitors initiated proceedings in the Personal Injury Commission seeking determination of the respondent’s claim for compensation under s 66 of the 1987 Act.
On 15 December 2021 a delegate of the President issued an amended referral to the MA in the following terms:
“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 2 May 2016
Body part/s referred: Left lower extremity (left knee) – consequential injury
Right lower extremity (right ankle, right subtalar joint,
loss of oscalsis)
Lumbar spine
Scarring - TEMSKI
Method of assessment: Whole person impairment
2. BRIEF
The brief provided to the Medical Assessor includes:
1. the Application and attached documents
2. the Reply and attached documents”
The MA examined the respondent on 15 December 2021 and, as indicated above, issued a MAC in response to the amended referral on 18 January 2022 in which the MA certified he had assessed the respondent had 31% WPI from his injury. That comprised 12% WPI relating to the left lower extremity (knee), 16% WPI relating to the right lower extremity (ankle, subtalar joint, loss of tibia-os calcis angle), 7% WPI for the lumbar spine and 0% for scarring.
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 the respondent should undergo a further medical examination. This is because the Appeal Panel identified a demonstrable error in the MAC with respect to the MA’s findings from his examination and assessment of the respondent’s right ankle and in order for the Appeal Panel to correct that error the Appeal Panel considered the respondent’s right ankle needed to be examined again. The Appeal Panel appointed Dr Drew Dixon of the Appeal Panel to conduct that examination, which he did on 22 June 2022. Dr Dixon’s report on his examination of the respondent is set out below.
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.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal against the MAC relates to whether the MA:
(a) ought to have made a deduction under s323(1) of the 1998 Act when assessing the respondent’s impairment of his left lower extremity and lumbar spine for pre-existing conditions within those body parts;
(b) applied correct criteria to assess the respondent’s impairment of his left lower extremity and whether there is a consequent error in his assessment of the respondent’s impairment of the left lower extremity, and
(c) provided an adequate explanation for his assessment of the respondent’s impairment relating to his right ankle and, if not, whether the MAC contains a demonstrable error as a consequence.
Relevant to those matters are the MA’s findings from his examination of the appellant’s left lower extremity and right lower extremity, which he recorded in the MAC in the following terms:
“Left lower extremity (Knee). The clinical findings demonstrate a fixed flexion deformity of 10° with maximum flexion of 110°. This is addressed in AMA 5, Page 537, Table 17-10. The fixed flexion deformity carries a whole person impairment of 8% and the reduced flexion a WPI of 4%. This therefore results in 12% WPI for the left lower extremity.
Right lower extremity (ankle, sub-talar joint, loss of Tibia - Os Calsis angle). This component of the impairment refers to the right ankle complex. There is fusion of the sub-talar joint and also restricted range of movement of the ankle joint. The sub-talar joint is addressed in the SIRA Guidelines, Page 16, Table 3.1. This provides whole person impairment of 4%. At the ankle, there was very limited movement of both dorsi-flexion and plantar flexion. This is addressed in AMA 5, Page 537, Table 17-11. This provides a combined whole person impairment of 12%. This is further combined with the previous 4% from the sub-talar joint fusion giving 16% WPI for the right ankle complex.”
The MA referred to the CT scans done of the respondent’s right foot on 15 December 2016 and 25 September 2017 and an MRI scan done of his knees on 10 February 2021 and provided very brief summaries of those investigations.
The MA also obtained a history of both the circumstances in which the respondent suffered his injury and the treatment the respondent had for his injury.
The MA provided the following summary of the respondent’s injury:
“Mr Swmaa sustained initial and quite obvious severe injuries to his right foot and ankle complex when he had to jump for safety from a scaffolding platform which was about 4m above the ground. At the same time it is likely that he also sustained injury to his left knee and to his lower back, although these features were not formally addressed until considerably later.
His major injury was a comminuted fracture, mostly to the superior part of the right calcaneus. This was ultimately managed by a fusion procedure with screw fixation of the sub-talar joint.”
As said, the MA assessed the respondent’s WPI from his injury to be 31%. The MA provided the following explanation for his “calculations”:
“Lumbar Spine. There is evidence of continuing lumbar dysfunction, although I was unable to unequivocally demonstrate radiculopathy. There are, however still some neurological features which could indicate neurological irritation although I was unable to demonstrate radiculopathy. This condition is therefore addressed in AMA 4 Page 384, Table 15-03. He is in DRE Lumbar Category II. This provides a whole person impairment ranging between 5% and 8%, depending on the activities of daily living. For this he would attract a further 2%, giving 7%.
Scarring. The scar along the lateral side of the right foot has healed well and is difficult to demonstrate. This is a standard surgical approach for a defined condition and is uncomplicated. It therefore carries 0% WPI according to the criteria in the SIRA Guidelines Page 74, Table 14.1.
Left lower extremity (Knee). The clinical findings demonstrate a fixed flexion deformity of 10° with maximum flexion of 110°. This is addressed in AMA 5, Page 537, Table 17-10. The fixed flexion deformity carries a whole person impairment of 8% and the reduced flexion a WPI of 4%. This therefore results in 12% WPI for the left lower extremity.
Right lower extremity (ankle, sub-talar joint, loss of Tibia - Os Calsis angle). This component of the impairment refers to the right ankle complex. There is fusion of the sub-talar joint and also restricted range of movement of the ankle joint. The sub-talar joint is addressed in the SIRA Guidelines, Page 16, Table 3.1. This provides whole person impairment of 4%. At the ankle, there was very limited movement of both dorsi-flexion and plantar flexion. This is addressed in AMA 5, Page 537, Table 17-11. This provides a combined whole person impairment of 12%. This is further combined with the previous 4% from the sub-talar joint fusion giving 16% WPI for the right ankle complex.”
The MA took note of the fact that Dr Maniam had assessed the respondent had a lumbar spine impairment of 6% WPI and had apportioned half of that to a pre-existing condition. The MA said that he found no evidence of any pre-existing back condition and he did not believe the respondent had a significant lumbar spine condition. The MA said that in the absence of any radiological investigation of the lumbar spine, the impairment of the respondent’s back “should reasonably be conducted along clinical lines alone”. The MA said he was not persuaded that there should be a deduction for any pre-existing condition and that he found no clinical evidence to substantiate a need for any deduction.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that there was evidence that the respondent had a pre-existing lumbar spine condition, which evidence included what the respondent had said in his statement, a CT scan of the respondent’s lumbar spine dome on 15 March 2017 to which Dr Bentivoglio had referred in his report of 30 October 2020, discharge summaries of the Canterbury Hospital dated 15 March 2017 and the St George Private Hospital dated 8 April 2017, and the opinions of both Dr Maniam and Dr Bentivoglio both of whom considered that half of the respondent’s impairment of his lumbar spine related to a pre-existing degenerative change.
The appellant submitted, in substance, that the MA, based on that evidence, ought to have made a deduction under s 323(1) of the 1998 Act when assessing the respondent’s WPI relating to his lumbar spine.
The respondent also submitted that the MA did not consider whether there ought to have been a deduction made under s 323(1) for pre-existing osteoarthritis in the respondent’s left knee. The respondent referred to radiological investigations of the respondent’s left knee which revealed osteoarthritis. The respondent also referred to Dr Maniam’s diagnosis that the respondent had aggravation of pre-existing tricompartmental arthritis in his left knee and Dr Bentivoglio’s diagnosis that the respondent had medial compartment degenerative osteoarthritis involving his left knee with a degenerative tear of the left medial meniscus. The respondent also highlighted that the MA had referred to radiological investigations that revealed degenerative changes in the respondent’s left knee. In substance the respondent submitted that, faced with that evidence, the MA ought to have concluded that a proportion of the respondent’s impairment of his left knee related to a pre-existing condition.
The respondent further submitted that the MA erred by assessing the respondent had 4% WPI for reduced flexion of the right knee. The respondent noted that Table 17-10 of AMA 5 allows 4% WPI if the flexion of the knee is less than 110 degrees. The respondent further noted that the MA found that the respondent could flex his left knee to 110 degrees. The respondent observed that is “not less than 110 degrees”.
The respondent submitted that the MA also erred in assessing the respondent had 8% WPI for fixed flexion deformity of his left knee. The respondent noted that the MA had found from his examination of the respondent that both of the respondent’s knees had a fixed flexion deformity of 10 degrees. The respondent submitted that the MA erred because he did not give consideration as to whether the “uninjured” right knee ought to be used as a baseline when assessing the respondent’s impairment relating to the left knee.
The respondent lastly submitted that the MA did not provide any measurements within the MAC of the respondent’s range of motion of his right ankle joint which “are required for the use of Table 17-11”. The Appeal Panel interprets this submission as being that the MA did not explain the path of his reasoning for assessing the respondent to have 16% WPI relating to his right ankle.
In reply, the appellant submitted that the MA provided reasons for not making any deduction under s 323(1) with respect to the impairment he had of his lumbar spine, that being that there was no evidence based on the MA’s clinical examination so to apply a deduction. The respondent further submitted that the MA found no clinical evidence of a pre-existing condition or abnormality in his left knee that would attract a deduction under s 323(1) for his left knee.
The respondent conceded that the MA had erred in finding that he had 4% WPI for flexion of his left knee to 110 degrees. The respondent submitted however that the MA did not err by not making any allowance for abnormality in his contralateral knee joint, being the right knee joint, and there was no requirement under the Guidelines to do so.
The respondent submitted that the MA’s findings relating to his right ankle clearly demonstrated there was no plantar flexion capability and limited flexion contracture and, in that circumstance, the MA’s assessment of his WPI relating to his right ankle was correctly assessed as severe under Table 17-11.
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 appellant raised no issue about the MA’s findings from his examination relating to the respondent’s lumbar spine, left knee or scarring nor did the appellant raise any issue regarding the MA assessing the respondent’s total WPI relating to his lumbar spine was 7% and assessing the respondent had 0% WPI relating to scarring.
Section 323 deduction
The authorities are consistent and clear regarding the approach a MA must take in terms of both deciding whether s 323(1) of the 1998 Act is engaged and the steps required to take, if it is, so as determine the deduction to be made under s 323(1).
Firstly, the level of a worker’s post-injury impairment, as at the time of assessment, must be determined. Secondly, a worker’s prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of a worker’s post-injury impairment is due to that prior injury or pre-existing condition, in that the injury or condition makes a difference to the outcome for the worker. Lastly, the extent to which a worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined.[1]
[1] See Cole v Wenaline Pty Ltd [2010] NSWSC78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz) and Ryder v Sundance Bakehouse [2015] NSWSC526 (Ryder).
The third stage of this process cannot be done based on assumption or hypothesis, but must be done by reference to the evidence. The evidence must be able to demonstrate that a proportion of a worker’s impairment is due to the pre-existing condition or previous injury.[2] Further, the fourth stage can also not be done by reference to assumption unless the extent to which a deduction is to be made under s 323(1) would be too difficult or costly to determine, because of the absence of medical evidence or some other reason, in which case, in accordance with s 323(2) of the 1987 Act, the deduction is be assumed to be 10% so long as that assumption is not at odds with the evidence.
[2] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86].
The Appeal Panel considers that the MA was wrong not to conclude that there was no evidence of any pre-existing condition in the respondent’s lumbar spine. That evidence is as the appellant detailed in its submissions.
The Appeal Panel also considers that that evidence, bearing in mind the age of the respondent, indicated that the respondent did have degenerative changes in his lumbar spine in the form of spondylitis that was either aggravated when the respondent fell from a height of 4.5 metres on 2 May 2016 or was aggravated by the respondent’s altered gait thereafter. The Appeal Panel considers that that pre-existing degeneration in his lumbar spine would contribute to the respondent’s present impairment of his lumbar spine in that it makes a difference to his outcome. This is because had the pre-existing degeneration in his lumbar spine not been present he would not be suffering the impairment of his lumbar spine that he presently does.
The Appeal Panel considers however, that it is too difficult to determine precisely what difference the pre-existing degeneration in the respondent’s lumbar spine makes to his outcome and, consequently, in accordance with s 323(2) the deduction to be made under s 323(1) must be assumed to be 10%. That assumption is not at odds with the evidence, noting that there is no evidence that the respondent at the time he fell from the scaffolding suffered symptoms in his lumbar spine and indeed the only evidence of his ever suffering pre-existing symptoms from degeneration in his lumbar spine is his statement that he had a cortisone injection approximately five years before the incident.
The Appeal Panel notes that the MA recognised that the radiological investigations of the respondent’s knees demonstrated significant degenerative changes in the respondent’s knees, more so on the left. The MA provided no substantive explanation relating to whether that degeneration in the respondent’s left knee contributed to the respondent’s present impairment of his left knee, in terms of making a difference to the respondent’s outcome, with the MA’s only explanation being “I can find no clinical evidence to substantiate a need for any reduction”. The MRI of the respondent’s left knee done on 18 May 2018 revealed medial compartment osteoarthritis. The likelihood is that that degeneration pre-existed the respondent’s injury. The incident in which the respondent suffered injury on 2 May 2016 would in all likelihood have aggravated that and, further, his altered gait consequent upon the injury he received to his right ankle would also have aggravated the existing osteoarthritis and contributed to the impairment that he has in his left knee. Given that, the Appeal Panel considers that the MA was wrong not to conclude that the pre-existing degeneration the respondent had in his left knee contributes to his present impairment in terms of making a difference to his outcome. Without that pre-existing disease in his left knee, it is unlikely the respondent would have the degree of impairment that he presently has relating to his left knee.
Again, the Appeal Panel considers that it is too difficult to determine exactly the extent to which the pre-existing disease in the respondent’s left knee contributes to his present impairment and, consequently, in that circumstance, the Appeal Panel assumes the proportion is 10% in accordance with s 323(2) which is not at odds with the evidence that is before the Appeal Panel.
Left knee assessment
As indicated above, both appellant and respondent acknowledge that the MA, having found the respondent is able to flex his left knee to 110 degrees, incorrectly applied the criteria of Table 17-10 by assessing the respondent’s impairment relating to flexion to be 4% WPI. Table 17-10 only allows an impairment to be rated for restricted flexion of the knee joint if
the flexion is less than 110 degrees. Obviously, if the respondent can flex his knee to 110 degrees it is not less than 110 degrees and, consequently, the MA erred.The Appeal Panel however does not agree with the appellant’s submission that the MA erred by not subtracting the impairment value for the respondent’s fixed flexion deformity of his right knee from the impairment value the MA assessed for the respondent’s fixed flexion deformity of his left knee. The Guidelines at [3.17] emphasise the importance of comparing measurements of joints in the lower extremities and stipulates “if a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline, and is subtracted from the calculated impairment for the involved joint”. In this case however, the Appeal Panel considers that the evidence does not allow a finding to be made that the right knee joint is normal or uninjured. The likelihood is that there would have been some adverse consequence to the respondent’s right knee by the respondent landing on his feet from a height of 4.5 metres with such force that was sufficient to result in a commuted fracture of his calcaneum. Further, the likelihood is that the immediate consequence in his right knee caused by that event would have been masked by the pain and problems he experienced with his fractured ankle. In the circumstance the Appeal Panel considers that the right knee joint cannot serve as a baseline to determine what the respondent’s movement in his left knee would have been immediately preceding the time of the injury to his left knee. In other words, it cannot be assumed that the function that the respondent presently has in his right knee equated to the function the respondent had in his left knee immediately before the time of injury.
The Appeal Panel therefore considers that the MA was not wrong not to subtract any impairment value that could have been assigned for the fixed flexion deformity of the right knee from the impairment value he assessed the respondent to have with respect to his left knee.
Right ankle
A MA is required to set out the actual path of the reasoning by which he or she arrived at his or her assessment. The detail with which the MA does that must be sufficient to enable an Appeal Panel to determine whether there is error in the assessment.[3]
[3] See Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
The criteria for assessing the impairment of the respondent’s right ankle is contained within the revised AMA 5 Table 17-11 set out in [3.17] of the Guidelines. That table provides ratings of WPI to be made for the various planes of motion of the ankle joint. The rating to be made depends upon the extent to which the motion of the ankle is restricted along the various planes. Necessarily, to determine what rating is to be made of a worker’s impairment for an injured right ankle based upon the restricted range of motion a worker has of his or her right ankle, the degree to which the worker can move his or her ankle along the various planes needs to be known. The MA did not record any precise findings in the MAC with respect to the respondent’s motion of his ankle and hence, it can be not known from the MAC whether the MA has correctly rated the respondent’s impairment. As a consequence of that failure, the Appeal Panel consider that the MA did not adequately expose his reasoning with respect to his assessment of the respondent’s impairment relating to his right ankle. In the Appeal Panel’s view that results in the MAC containing a demonstrable error.
The Appeal Panel considered, as indicated above, that in order to correct that error it was necessary for the respondent to be re-examined and Dr Dixon was appointed to do that. Dr Dixon’s report on his examination of his findings from the respondent’s right ankle to be Appeal Panel is as follows:
“On examination on June 29, 2022 he was 1.7 metres tall and weighed 91kg.
He walked with a marked limp on the right.
Range of motion of his right ankle was dorsi-flexion 0 degrees and plantar flexion 10 degrees, and his right subtalar joint which was fused showed no motion.
The impairment for his right ankle is from Table 17-11, Page 537, AMA V 7% lower extremity impairment for the dorsi-flexion of 0 degrees, and for plantar flexion of 10 degrees is 15% lower extremity impairment and that for the fused subtalar joint is from Table 3.1 Page 16 WorkCover Guides, 10% lower extremity impairment.
This gives a total for the right lower extremity of 32% lower extremity (the ankle and subtalar joint are added) which equates to 13% whole person impairment.
There were no symptomatic pre-existing conditions in his right lower extremity.
There was a full range of motion of his left ankle and subtalar joint.”
The Appeal Panel accepts the findings from Dr Dixon’s examination of the respondent’s right ankle and, based on that, the Appeal Panel assesses the respondent has 32% lower extremity impairment relating to his ankle and subtalar joint, which equates to 13% WPI of his right lower extremity.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 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 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 - 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) |
| Left lower extremity (knee) | 2/5/2016 | Chapter 3 | Table 17-10 | 8% | 1/10 | 7% |
| Right lower extremity (ankle, sub-talar joint, loss of tibia-os calcis angle) | Chapter 3 | Table 17-11 | 13% | - | 13% | |
| Lumbar spine | Chapter 4 | Table 15-3 | 7% | 1/10 | 6% | |
| Scarring | Table 14.1 | 0% | 0% | |||
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
18 July 2022
Marshal Douglas
Member
Drew Dixon
Medical Assessor
Tommasino Mastroianni
Medical Assessor
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