Neader v TS 14 Plus Australia Pty Ltd ATF Vestito Unit Trust

[2024] NSWPICMP 665

DETERMINATION OF APPEAL PANEL
CITATION:	Neader v TS 14 Plus Australia Pty Ltd ATF Vestito Unit Trust [2024] NSWPICMP 665
APPELLANT:	Margaret Neader
RESPONDENT:	TS 14 Plus Australia Pty Ltd ATF Vestito Unit Trust
APPEAL PANEL
MEMBER:	Cameron Burge
MEDICAL ASSESSOR:	Greg McGroder
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	18 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; medical appeal; whether error on face of Medical Assessment Certificate (MAC); what if any deduction should be made pursuant to section 323; appellant was assessed by a Medical Assessor (MA) and a deduction of 30% was warranted for the existence of pre-existing severe osteoarthritis; Held – the MAC contained an obvious error in that the assessor did not adequately explain their reasons for reaching the deduction of 30%; an examination of the totality of the medical and lay evidence including the radiology warrants a deduction greater than 10%; the Medical Appeal Panel found the deduction of 30% arrived at by the MA was appropriate; appeal dismissed; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 17 June 2024, Margaret Neader (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 20 May 2024.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. 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.

4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. The appellant suffered a frank injury to her left lower extremity (knee) in the course of her employment with the respondent on 8 October 2021.

2. There is no issue that at the time of her injury, the appellant had osteoarthritis in the medial and patellofemoral compartments of her left knee, as disclosed in an MRI dated 8 November 2021. That MRI was not referred to by the appellant’s independent medical examiner (IME), Dr Hunt.

3. In November 2022, the appellant underwent a left total knee replacement, complicated by extensive post-surgery swelling.

PRELIMINARY REVIEW

1. 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.

2. 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 as the only issue is the degree of deduction to be applied pursuant to s 323 of the 1998 Act. Such determination is not contingent on a further examination of the appellant but relies on the objective radiological material. This is particularly the case now a total knee replacement is in situ and the original pre-existing pathology is no longer present. 

EVIDENCE

Documentary evidence

1. 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

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.

2. In summary, the appellant submits that although she had significant pre-existing pathology in her left knee by way of osteoarthritis, it was asymptomatic in the immediate lead up to the injury. While she concedes the degree of the applicable deduction is difficult or costly to determine, a deduction of 10% is not at odds with the available evidence given the significant mechanism of the loaded twisting injury suffered by the appellant.

3. The appellant submits the Medical Assessor made a demonstrable error in providing insufficient reasons for determining “the mechanism of injury at work is unlikely to have led to any significant injury”. She submitted the Medical Assessor applied incorrect criteria in making a 30% deduction and did not provide adequate reasons in failing to set out which portion of the damage to the knee as demonstrated in the MRI was attributable to the injury and to the pre-existing pathology.  

4. In reply, the respondent submits that the mere fact the appellant’s knee was asymptomatic before injury is not conclusive of the absence of an appropriately deductible pre-existing condition. It submitted the Medical Assessor provided adequate reasons and stated in unambiguous terms that had it not been for the advanced degenerative state of the knee, the injurious incident at work would have been minor in nature. The respondent submitted the Medical Assessor’s reasons did not contain any demonstrable error or application of incorrect criteria.

FINDINGS AND REASONS

1. 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

2. 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.

3. In this matter, the Medical Assessor erred in failing to state how the mechanism of injury at work is likely to have led to significant injury or set out how much of the damage demonstrated on the post-injury MRI was due to pre-existing condition and how much attributable to the injury. In these circumstances, the Appeal Panel has conducted a review of the clinical material including the radiological material before it in assessing the degree of appropriate deduction pursuant to s 323 of the 1998 Act.

4. The absence of symptoms is not conclusive of an absence of pre-existing condition: see D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep); Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 21 NSWCCR 34 at [30]- [32]; Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13], and Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [42] to [43]). It is apparent from an examination of the radiological material that there was “moderate severe medial compartment osteoarthritis” and “severe patellofemoral compartment osteoarthritis.” Those findings are consistent with the presence of longstanding pre-injury pathology in the inured body part.

5. The MRI taken some three weeks post-injury is non-weight bearing. The appearance of the arthritis in the medial compartment of the knee will therefore appear less severe than would likely be seen on a weight bearing film.

6. Dr Gill, treating orthopaedic surgeon noted the presence of significant osteoarthritis in the knee which had been aggravated by the appellant’s injury. The presence of that arthritis is admitted by the appellant in her submissions. Dr Gill’s observations are broadly consistent with the records of the general practitioner dated 10 November 2021 that the appellant had injured her knee and the problem with it was a result of severe osteoarthritis. Those findings are consistent with those of the Medical Assessor and support the proposition that there was significant pre-existing pathology sufficient to warrant a significantly larger deduction than the default 10% under s 323.

7. Put simply; in considering the available radiological and clinical material, it would not be possible for the degree of demonstrated arthritis to develop in so short a space of time following an injury in the nature of that suffered by the appellant.

8. On balance, notwithstanding the Medical Assessor’s error in failing to provide adequate reasons for his decision, the totality of the treating medical material including radiology, the IME reports and lay evidence support a finding of a deduction in accordance with that found by the Medical Assessor in the amount of 30%.

9. For these reasons, the Appeal Panel has determined that the MAC issued on 20 May 2024 is confirmed.