Nicholson and Comcare (Compensation)

[2016] AATA 905

Nicholson and Comcare (Compensation) [2016] AATA 905 (15 November 2016)

Division	General Division
File Number(s)	2014/2464
Re	Robert Nicholson
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Mrs J C Kelly, Senior Member
Date	15 November 2016
Place	Sydney

The decision under review is affirmed.

.........................[sgd]...............................................

Mrs J C Kelly, Senior Member

CATCHWORDS

COMPENSATION – claim for further compensation – permanent impairment of left knee – whether there has been a subsequent increase in the degree of impairment of 10% – conflicting medical findings – ankylosis – Tribunal finds insufficient increase in degree of impairment – decision affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988, s 24, s 25, s 27

SECONDARY MATERIALS

Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1

Guide to the Assessment of the Degree of Permanent Impairment, Second edition

Guides to the Evaluation of Permanent Impairment, Fifth edition, Chicago: American Medical Association

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

15 November 2016

The reviewable decision

1. The reviewable decision dated 11 April 2014 affirmed the primary determination dated 2 December 2013.  The primary determination denied the applicant’s claim for permanent impairment under section 25 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) and non-economic loss under section 27 of the SRC Act in respect of an accepted claim “sprain of other specified sites of knee and leg (left)” with a date of injury of 17 September 2008” (the accepted condition).

2. The applicant has previously made a successful claim for permanent impairment pursuant to section 24 and non-economic loss pursuant to section 27 for the accepted condition. The assessment was 10% whole person impairment (WPI).  In order to succeed in this case, the applicant has to establish an increase in WPI of at least 10%, that is to 20%, in accordance with the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Guide).[1]    

   [1] Section 25(4) of the SRC Act.

The issue in this case

1. The issue in this case is the assessment of the applicant’s permanent impairment. 

2. The applicant was unrepresented and appeared by telephone.  His treating orthopaedic surgeon, Dr Khoury, provided a one paragraph report dated 12 May 2015 to the Australian Government Solicitor.  Dr Khoury wrote:

   With regards to the Comcare guidelines that you have sent me.  Mr Robert Nicholson has a 37% whole person impairment as there is an ankylosis not in the optimal position to 15 degrees of varus.  He has a deformity of a 10 to 15 degree flexion contracture of the knee itself.  This is calculated by the 27% whole person impairment and assumed adding 10% via the guidelines as described in table 9.3.

3. Dr Khoury was not available to give evidence.  The Tribunal draws no adverse inference from that fact.

4. The respondent relied on the opinion of Dr Pillemer, orthopaedic surgeon, who assessed the WPI as 10% under Table 9.3 “on the basis of varus deformity of his knee of 10 degrees”.  Dr Pillemer’s assessment was given in a report dated 10 August 2015.  Dr Pillemer gave evidence before the Tribunal.

The appropriate Table of the Guide

1. There was no dispute at the Tribunal hearing about which Table of the Guide applies as the matter had been previously discussed in a directions hearing.  As is apparent from what is set out above, both Doctors Khoury and Pillemer used Table 9.3. 

2. However, because the applicant is unrepresented, it is appropriate to set out the following.  Under the previous edition of the Guide, the Second Edition, a person could be assessed under Table 9.3 and Table 9.7.  The wording of the previous edition of the Guide permitted that assessment.

3. Currently, Chapter 9 of the Guide is titled “The Musculoskeletal System”.  Part 1 of Chapter 9 is entitled “The Lower Extremities – Feet and Toes, Ankles, Knees and Hips”.  The introduction to Part 1 says:

   WPI ratings from Table 9.1: Feet and Toes, Table 9.2: Ankles, Table 9.3: Knees or Table 9.4: Hips must not be combined with a WPI rating under Table 9.7 if they assess the same condition in the same lower extremity.

   …

   If the medical assessor considers that the impairment is not adequately assessed using one of Tables 9.1, 9.2, 9.3 and 9.4, and the condition does not cause a reduction in the range of motion of a joint but there is significant interference with gait, the medical assessor should consider the effect of the injury on gait and determine the WPI rating using Table 9.7. Table 9.7 cannot be used if the condition causes a reduction in the range of motion of a joint and an assessment can be made under any one or more of Table 9.1, 9.2, 9.3 or 9.4. 

4. The introduction to Table 9.7 repeats the prohibition on using that Table where the condition causes a reduction in the range of motion of a joint and assessment can be made, relevantly, under Table 9.3.

5. Figure 9-B sets out normal ranges of motion of joints.  For the knee, that Figure specifies under Table 9.3, that the range of motion on flexion is to 150 degrees. 

6. In this case, the medical evidence is unequivocal that the applicant’s condition does cause a reduction in the range of motion of the left knee:

   Dr Robb on 5 November 2008 said that “he can only flex to 90 degrees”;

   Dr Ball on 7 December 2009 reported 0 degrees to 90 degrees of active range of motion; 

   Dr Bentivoglio on 5 August 2011 reported movement from 15 degrees to 120 degrees;

   Dr McEwen on 6 August 2012 described a range of motion from 10 degrees to 120 degrees;

   Dr Khoury on 12 November 2012 described range of motion of 0 degrees to 145 degrees;

   Dr Pillemer on 16 July 2015 reported a range of left knee movement of 15 degrees to 100 degrees.

7. For the above reasons, the appropriate Table of the Guide to use for the assessment of the permanent impairment of the applicant’s left knee is Table 9.3.

Table 9.3

1. Table 9.3 provides:

   9.3 KNEES

   Table 9.3 assesses impairments to range of motion and deformity of the knee, as well as ankylosis. Knee deformity with movement is assessed separately from ankylosis. ‘Deformity’ is measured by the femoral-tibial angle: 3°-10° valgus is considered normal.

   Ankylosis in the optimal position is equivalent to 27% WPI. The optimal position is 10°-15° of flexion with good alignment. This is the base level of ankylosis impairment in the knee. When ankylosis is not in the optimal position, add the relevant WPI ratings from Table 9.3 for ankylosis in each direction. Then add the base figure of 27% WPI for ankylosis in the optimal position.

   The maximum WPI rating for multiple impairments of the knee is 40% WPI. If the total WPI rating obtained by adding different WPI ratings is over 40%, then the final WPI rating for the knee is 40%.

Table 9.3: Knees

% WPI

Criteria (one required – different conditions may be assessed separately)

Flexion of 80°-105°.

Flexion contracture of 5°.
Deformity with:

·     varus angulation of 2° valgus-0° (neutral)

·     valgus angulation of 10°-12°.

5

Ankylosis not in optimal position:          

·     in 10° to 15° of internal malrotation

·     in 10° to 15° of external malrotation

·     in less than 10° of varus

·     in 10° to 15° of valgus

·     in 20° to 25° of flexion.

10

Flexion of 60°-75°.

Flexion contracture of 10°-15°.
Deformity with:

·     varus angulation of 1°-7°

·     valgus angulation of 13°-15°.

Ankylosis not in optimal position:

·     in 20° to 25° of internal malrotation

·     in 20° to 25° of external malrotation

·     in 10° to 15° of varus

·     in 20° to 25° of valgus

·     in 30° to 35° of flexion.

13

Ankylosis not in optimal position:

·     in at least 30° of internal malrotation

·     in at least 30° of external malrotation

·     in at least 20° of varus

·     in at least 30° of valgus

·     in at least 40° of flexion.

14

Flexion of 30°-55°.

Flexion contracture of 20° or greater.
Deformity with:

·     varus angulation of more than 12°

·     valgus angulation of more than 20°.

20

Flexion of less than 30°.

Deformity with:

·     varus angulation of more than 12°

·     valgus angulation of more than 20°.

27

Ankylosis in optimal position only (see notes above).

Consideration of the evidence and findings

1. The criteria for determining impairment under Table 9.3 are very specific. I have taken into account the applicant’s oral and written evidence.  However, the assessment of impairment requires expert evidence from an appropriately qualified person.  The Tribunal accepts that both Dr Khoury and Dr Pillemer are such experts.  However, Dr Khoury was not available to provide any more detail about his assessment than was contained in his report of 12 May 2015, quoted above.  The Tribunal has taken into account all of Dr Khoury’s reports included in the T documents.  

2. Dr Khoury’s other reports do not assist the Tribunal in understanding his assessment.  On examination on 12 November 2012, the doctor found that the applicant “visually had varus knees.  His range of motion of both knees was from 0 to 145 degrees but the left one was swollen”.  Dr Khoury listed no findings on examination in his two reports dated 14 May 2013 or in his report dated 19 November 2013.  The only findings on examination in the summonsed material related to the examination of 12 November 2012.  The Tribunal notes that Dr Khoury has been waiting for the applicant to lose weight in order to carry out knee replacement surgery.

3. Doing the best it can, the Tribunal understands that Dr Khoury made the following findings under Table 9.3:

   (a)“Ankylosis not in the optimal position to 15 degrees of varus”, which the Guide assesses as 10% WPI.

   (b)A “deformity of a 10 to 15 degree flexion contracture of the knee itself”, which the Guide assesses as 10% WPI.

4. It is not clear how Dr Khoury concluded that there was 37% WPI. He said that “[t]his is calculated by the 27% whole person impairment assumed and adding 10% via the guidelines as described in table 9.3.”  

5. Dr Khoury did not find that there was “ankylosis in optimal position only” which would have explained the 27% figure. “Ankylosis in optimal position” is “10 degrees to 15 degrees of flexion with good alignment”. He found that there was ankylosis that was not in the optimal position to 15 degrees of varus (emphasis added).

6. The Tribunal understands that Dr Khoury was applying the direction about ankylosis in the second paragraph in the introduction to Table 9.3, and added the 27% WPI.  Dr Khoury did not make a finding that supported 27% WPI.

7. It seems that Dr Khoury did not add the two impairments to each of which 10% can be attributed, but added 10% to the 27% figure.  Subtracting 27% from his finding, the result if 10% WPI as found by Dr Pillemer.  However, given that it seems that Dr Khoury made the two findings he did, it is necessary to consider those findings further.

8. The Tribunal does not accept that it was open to Dr Khoury to find ankylosis in this case where there was some range of movement of the left knee.  Dr Pillemer told the Tribunal that ankylosis means that the joint is fused in a position so that there is no movement. He did not agree with Dr Khoury’s finding of ankylosis. 

9. Dr Pillemer’s understanding of the meaning of ankylosis is consistent with the distinction drawn between Flexion/Deformity and Ankylosis in Table 9.3 in respect to 5% and 10% impairment.  If the knee is ankylosed, it cannot move. He also did not accept that ankylosis can resolve. 

10. Ankylosis is not defined in the Guide.  It is defined in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th Edition:

    Fixation of a joint in a specific position by disease, injury, or surgery.  When surgically created, the aim is to fuse the joint in that position, which is best for improved function.

11. It follows that the Tribunal does not accept Dr Khoury’s assessment of 10% impairment for ankylosis not in the optimal position to 15 degrees of varus.   

12. That leaves his finding of “deformity of a 10 to 15 degree flexion contracture of the knee itself” which is the criterion for 10% WPI, which is the same as Dr Pillemer’s assessment.

13. For the above reasons, the Tribunal finds that the applicant’s WPI in relation to his accepted condition is 10%.  He does not meet the 10% WPI increase required under section 25(4).  The reviewable decision must be affirmed.

Decision

1. The Tribunal affirms the reviewable decision dated 11 April 2014 which affirmed the primary determination dated 2 December 2013 which denied the applicant’s claim for permanent impairment under section 25 of SRC Act and non-economic loss under section 27 of the SRC Act in respect of an accepted claim “sprain of other specified sites of knee and leg (left) with a date of injury of 17 September 2008”.

I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.......................[sgd].................................................

Associate

Dated 15 November 2016

Date of hearing	16 June 2016
Applicant	In person
Counsel for the Respondent	Ms K Blackford-Slack
Solicitors for the Respondent	Australian Government Solicitor