Mulawa v Newcastle City Council

DETERMINATION OF APPEAL PANEL
CITATION:	Mulawa v Newcastle City Council [2021] NSWPICMP 101
APPELLANT:	Stanley Michael Mulawa
RESPONDENT:	Newcastle City Council
APPEAL PANEL:	Member Marshal Douglas Dr Mark Burns Dr Drew Dixon
DATE OF DECISION:	25 June 2021
CATCHWORDS:	WORKERS COMPENSATION- The appellant worker commenced employment with the respondent as a garbage truck offsider in 1986 and retired from that employment in April 2019; the appellant suffered injury to both knees deemed to have happened on 17 April 2019; the appellant had knee replacements in January 2018; the Medical Assessor assessed 20% WPI due to the right knee replacement and 15% WPI due to the left knee replacement, but considered a proportion of that was due to pre-existing osteoarthritis, which proportion he assumed was 10% in accordance with section 323(2), such that he assessed the appellant’s WPI resulting from his injury to be 18% for the right lower extremity and 14% for the left lower extremity; Medical Assessor also assessed the appellant had 1% WPI due to scarring; appellant appealed submitting, firstly, the AMS was wrong to make any deduction under section 323 because he did not have osteoarthritis before he commenced his employment and, secondly, AMS ought to have assessed 2% WPI for scarring comprising 1% for each leg; Held- there was no evidence the appellant had pre-existing osteoarthritis and Medical Assessor was therefore wrong to make a deduction under section 323; Appeal Panel held Medical Assessor correctly applied Guidelines with respect to scarring which require that skin be regarded as a single organ and that all non-facial scarring be measured together as one overall impairment rather than assessing individual scars separately and combining the results; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 April 2021 Stanley Mulawa (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 April 2021.
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, 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).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with the Newcastle City Council (the respondent) in 1986 working as an off-sider in the garbage trucks. He retired from that employment on 24 April 2019.
He needed to jump from the garbage trucks repetitively throughout his shifts in order to do his work. Further, until the introduction of “wheel bins”, he needed to pick up garbage bins and deposit their content into the compactor of the garbage truck. Subsequent to the introduction of wheel bins, he wheeled bins to the compactor.
In 2013 the appellant started experiencing pain in his left knee. In April 2017 he had a cortisone injection administered to this knee, followed by arthroscopy in May 2017. In 2017 he also commenced experiencing pain in his right knee.
On 24 August 2017, the appellant completed and signed a workers compensation claim form, bearing the insignia of the respondent, in which he declared that while in the employ of the respondent, he sustained an injury described to his right and left knees.
On 15 January 2018 the appellant had a left knee replacement performed Dr David Gill at
the Hunter Valley Private Hospital. Dr Gill then performed a right knee replacement on 29 January 2018.
The appellant’s solicitors organised surgeon Dr A G Hopcroft to examine and report on the appellant’s injuries. On 7 May 2020 the appellant’s solicitors notified the respondent by letter that the appellant was claiming compensation for permanent impairment. The appellant’s solicitors attached to their letter reports Dr A G Hopcroft prepared dated 6 November 2019 and 3 April 2020.
The appellant’s solicitors did not in their letter to the respondent specify the injury or the date of the injury for which the appellant was claiming compensation, but in both of Dr Hopcroft’s reports attached to the appellant’s solicitor’s letter Dr Hopcroft specified a date of injury of 7 June 2016. It was also implicit from Dr Hopcroft’s reports that the injury for which the appellant was seeking compensation was an injury to his knees that had occurred as a consequence of the work the appellant had performed for the respondent over the entirety of his employment.
In his earliest report Dr Hopcroft advised that he considered the appellant had a good result from each knee replacement and he consequently assessed the appellant had a whole person impairment (WPI) of 15% for each leg due to the knee replacement. Dr Hopcroft also advised that he had assessed “by way of reference to the TEMSKI Scale” that the appellant had a further 1% (WPI) for each knee as a consequence of the scarring from the surgery.
In his subsequent report of 3 April 2020 to the appellant’s solicitors, Dr Hopcroft advised as follows:
“You will notice that a careful analysis rates this patient's right knee as a whole person
impairment of 20% and his left knee with a whole person impairment of 15%.
Therefore, l must amend my report to you of 6 November 2019 to read as follows:
Using the Combined Values Chart this patient therefore has an overall whole person
Impairment of33%, allowing a TEMSKI scale addition of 1 % for each knee.
I do not believe a s323 deduction should be made for pre-existent problems as the patient had no problem with the function of his knee joints prior to the injury of 07 June 2016.”
Following the appellant making his claim for compensation, the respondent arranged for Dr David Gill to assess the appellant’s permanent impairment. Dr Gill in a report to the respondent dated 20 June 2020 advised he had assessed the appellant to have 15% WPI with respect to each lower extremity and had assessed that the appellant had 1% WPI due to scarring, which combined to 29% WPI.
On 3 December 2020 the respondent’s solicitors wrote to the appellant’s solicitors advising that the respondent offered to pay the appellant compensation for 15% permanent impairment of the left lower extremity (left knee) resulting from an injury on 18 November 2016 and also to pay compensation to him under s 66 for 15% permanent impairment of the right lower extremity (right knee) resulting from an injury on 31 May 2017. The respondent’s solicitors advised the appellant’s solicitors that they disputed that the date of injury to the appellant’s knee is 7 June 2016 and considered that the appellant had suffered two injuries, one being to his left knee on 18 November 2016 and a separate injury to his right knee on 31 May 2017. The respondent’s solicitors advised that the respondent did not consider that the permanent impairment that the appellant had of each knee could be aggregated or combined.
The appellant then lodged and registered with the Commission an Application to Resolve a Dispute (ARD) seeking determination of a claim for compensation for permanent impairment of 33% for injuries to his right and left lower extremities, including scarring. The ARD confusingly particularised the date of injury the subject of that claim as 24 August 2017, but also particularised further injuries to the appellant’s knees, in regards to which it was not apparent the appellant was seeking compensation. Those further injuries were an injury that the appellant alleged occurred to his left knee on 18 November 2016 whilst he was attending rehabilitation for an injury to his left wrist. The other injury was alleged to be an injury to his left knee on 15 May 2015 that occurred whilst he was walking between parked cars and struck his left knee against a tow bar.
The matter was referred to Arbitrator John Harris who on 2 February 2021 made the following orders with the consent of the parties:
“1.The Application is amended to delete all allegations of injury other than the disease claim based on the nature and conditions of employment.
2. The disease injury is amended to plead a date of injury of 17 April 2019 (deemed).
3. The claim is remitted to the Registrar for referral to an Approved Medical Specialist (MEDICAL ASSESSOR) as follows:
Date of Injury: 17 April 2019 (deemed) due to the nature and conditions of
employment since 1986
Body Parts: Right lower extremity (knee)
Left lower extremity (knee)
Skin (temski)
Manner of Assessment: Whole Person Impairment
4. The documents to be forwarded to the MEDICAL ASSESSOR are the Application and attachments and the Reply and attachments in matter number 7308/20.
5. The balance of the Application is to be remitted to an Arbitrator following the provision of the medical assessment certificate or the determination of any appeal.”
The matter was referred to the Medical Assessor on 3 February 2021.

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 appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal and reassess the medical dispute.

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 Medical Assessor assessed that the appellant had 20% WPI with respect to the appellant’s right lower extremity, 15% WPI with respect to the appellant’s left lower extremity and 1% due to scarring. The Medical Assessor provided the following reasons at Part 10 of the MAC for his assessment:
“a. My opinion and assessment of whole person impairment:
Right lower extremity (knee): 20% whole person impairment.
Left lower extremity (knee): 15% whole person impairment
Skin (TEMSKI): 1% whole person impairment.
In making that assessment I have taken account of the following matters:-
Review of the material provided and detailed examination of the claimant.
b. An explanation of my calculations (if applicable).
Mr Mulawa has undergone total knee replacements due to osteoarthritis in his knees.
According to SIRA Guidelines, page 21, I assess the knee replacements as the following:
Pain:
Right – moderate, occasional: 20 points
Left – mild or occasional: 45 points
Range of Motion:
Right – 21 points
Left – 22 points
Stability:
Anteroposterior
Right – 10 points
Left 10 points
Mediolateral
Right – 15 points
Left – 15 points
Deductions:
Flexion contracture:
Right – 2 points
Left – 0 points
Extension Lag:
Right – 0 points
Left 0 points
Tibiofemoral Alignment:
Right – 0 points
Left 0 points
Total:
Right Knee – 64 points
Left knee – 92 points
According to AMA-5, page 547, Table 17-33, this equates to a ‘good’ result (15% WPI) for the left knee and a ‘fair’ result (20% WPI) for the right knee.
According to SIRA Guidelines, page 74, Table 14.1, I award 1% impairment for Skin
(TEMSKI). The wounds are consistent with total knee replacement without complication.
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.
With respect to the report by Dr Hopcroft dated 03/04/2020, I am in agreement with his
assessment of whole person impairment for the knee replacements. I agree with the
assessment of 1% for each knee on the basis of Skin (TEMSKI).
With respect to the report by Dr Gill dated 20/06/2020, I disagree with his assessment of the right knee as a good result. Mr Mulawa has more than occasional pain in the right knee.”
The Medical Assessor also considered that the appellant had a pre-existing condition of osteoarthritis in his right and left knees. The Medical Assessor considered that pre-existing condition directly contributed to the appellant’s permanent impairment arising from the appellant’s knees. The Medical Assessor considered that the extent to which that pre-existing condition contributed to the appellant’s permanent impairment would be too difficult or costly to determine so he applied s 323(2) of the 1998 Act and assumed that it was one-tenth.
Accordingly, the Medical Assessor assessed the degree of the appellant’s permanent impairment due to the injury to his knees, including scarring, was 18% with respect to the right knee, 14% with respect to the left knee and 1% for scarring, combining to 30% WPI, and he certified accordingly.

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 that a proportion of the appellant’s permanent impairment was due to a pre-existing condition. The appellant submits that there was no evidence of there being any pre-existing degenerative arthritis in his knees prior to the time he commenced his employment with the respondent in 1986. Relying on the authority of Cullen v Woodbrae Holdings Pty Ltd[1] the appellant submits that absent there being a pre-existing condition before he commenced employment, there was no basis upon which the Medical Assessor could make a deduction under s 323.
[1] [2015] NSWSC 146 (Cullen’s case).
The appellant also submits that the Medical Assessor erred by allowing only 1% WPI for scarring. The appellant says that the Medical Assessor had agreed with Dr Hopcroft’s assessment of 1% WPI for scarring of each knee, and the appellant submits that because of that the Medical Assessor ought to have assessed similarly, that is that he had 1% WPI for scarring of his right knee and 1% WPI for scarring of his left knee.
In reply, the respondent submits, relying on Greater Western Area Health Service vAustin[2], that because the Medical Assessor formed the opinion that at least part of the appellant’s permanent impairment was due to a pre-existing condition of osteoarthritis in his knee the Medical Assessor was obliged to make an appropriate deduction under s 323. The respondent also submits that [14.5] of the Guidelines requires that the skin is to be regarded as a single organ and that all non-facial scarring is to be measured together as a one overall impairment. The respondent submits that it was not open to the Medical Assessor to assess 1% WPI for scarring for each knee and that the Medical Assessor’s reference to 1% WPI to each knee appears to be an error.

FINDINGS AND REASONS

[2] [2014] NSWSC 604 (Austin’s case)

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’s reliance on Austin’s case is misplaced and at [10] of its submissions it has wrongly attributed to Campbell J a passage from the Appeal Panel’s decision that was the subject of judicial review in Austin’s case. Austin’s case involved an entirely different issue from that which arises for consideration in this case. It involved a worker who had contracted Ross River fever in the course of her employment who had sought compensation for the loss of efficient use of each of her limbs that she claimed was a consequence of that. The worker’s loss of use of her limbs was due to joint pain, stiffness and weakness in gripping and grasping activities. The employer considered that those symptoms were not the effect of Ross River fever but rather the effect of osteoarthritis entirely unconnected with Ross River fever. The Commission made consent orders referring the matter to an approved medical specialist (AMS) that included a notation that the parties were in dispute regarding whether the applicant’s loss of efficient use of her limbs were as a result of Ross River fever. The AMS assessed that the worker had no loss of efficient use of her limbs from Ross River fever. The worker appealed against the assessment and the Appeal Panel came to the view that by virtue of the notation to the consent orders, the parties had agreed that the worker’s losses of her limbs were due to Ross River fever and that, consequently, the AMS was bound to accept that any losses he assessed the worker to have were due to the worker’s injury of Ross River fever.
Justice Campbell held that the Appeal Panel was wrong to construe the phrase within the consent orders “as a result of Ross River fever” as meaning that the parties had agreed that any impairment the worker had were the result of Ross River fever. Further, he held for the Panel to have done so was inconsistent with the authority of Haroun v Rail Corporation of New SouthWales[3].
[3] [2008] NSWCA 192
In any event, as already said, Austin’s case does not provide authority for the submission the respondent makes. Cullen’s case does.
In the case to hand, there is simply no evidence that the appellant had a pre-existing condition of osteoarthritis at the time he commenced his employment with the respondent in 1986. The appellant was then either 29 or 30 years of age. Absent any evidence, and especially any radiological evidence, that the appellant had osteoarthritis at that time, it is unlikely that he would have. Further, given the nature of the work the appellant performed with the respondent it is in all likelihood the case that his work was the cause of the osteoarthritis in his knees that became symptomatic in the period 2013 to 2017.
Because there is no evidence that the appellant had a condition in his knees at the time he commenced employment with the respondent, the Appeal Panel finds that he did not have a pre-existing condition and consequently, and consistent with Cullen’s case, s 323(1) is simply not engaged in this case. Accordingly, the MAC does contain a demonstrable error.
With respect to the issue of scarring, the Medical Assessor’s assessment was, in the Appeal Panel’s view, correct for the reasons that the respondent advances. That is to say, the Guidelines require that skin be regarded as a single organ and that all non-facial scarring be measured together as one overall impairment rather than assessing individual scars separately and combining the results. Here there is one injury to the appellant’s knees, for which he has had two surgeries in January 2018 resulting in scarring. Neither party suggested that the appellant’s scars with respect to each knee did not meet the criteria in
Table 14.1 for 1% WPI. Indeed, it is obvious from the report of Dr Hopcroft he also formed that view. That is to say, Dr Hopcroft found that the scars the appellant had on each knee best fitted the criteria in Table 14.1 for 1% WPI and, accordingly, had Dr Hopcroft assessed the appellant’s skin as the one organ, he ought to have rightfully assessed the appellant had 1% WPI for scarring.

Simply put, the Medical Assessor’s assessment with respect to scarring is correct.
The Appeal Panel observes that neither party challenges the Medical Assessor’s assessment that the appellant had a good result with the left knee replacement and a fair result for the right knee replacement and that, accordingly, the appellant’s degree of permanent impairment with respect to his left knee was 15% and that the degree of permanent impairment with respect to his right knee was 20%. The Appeal Panel considers that there was no error with respect to the Medical Assessor’s findings regarding his assessment of the degree of permanent impairment resulting from the knee replacements and, accordingly, the Appeal Panel can use those ratings when re-assessing the medical dispute, as it can with respect to the Medical Assessor’s assessment with respect to the scarring from those procedures.[4]
[4] Queanbeyan Racing Club Ltd v Hannah Burton [2021] NSWSC 315.
Accordingly, the Appeal Panel assesses the appellant to have 15% WPI of the left lower extremity, 20% of the right lower extremity and 1% for scarring, which combines to 33%. As said, there is no pre-existing condition the appellant had before he commenced his employment and accordingly, s323(1) is not engaged.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 April 2021 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 Rob Kuru 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. Right Lower Extremity (knee)	17/4/19	Chapter 3; Page 21	Chapt 17	20%	-	20%
2. Left Lower Extremity (knee)		Chapter 3; Page 21	Chapt 17	15%	-	15%
3. Skin (TEMSKI)		Chapter 14; Table 14.1	1%	-	1%
Total % WPI (the Combined Table values of all sub-totals)					33%

Marshal Douglas
Member
Dr Mark Burns

Medical Assessor

Dr Drew Dixon

Medical Assessor

[2021] NSWPICMP 101

25 June 2021