Priest v Secretary, Department of Communities and Justice
[2023] NSWPICMP 317
•10 JULY 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Priest v Secretary, Department of Communities and Justice [2023] NSWPICMP 317 |
| APPELLANT: | Jennifer Priest |
| RESPONDENT: | Secretary, Department Of Communities & Justice |
| Appeal Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 10 JULY 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant suffered an accepted right knee injury on 19 March 2019 and an accepted consequential left knee condition; total knee replacements undertaken to both knees; Medical Assessor (MA) assessed right knee as a poor result and left knee as a fair result; impairment assessed under Table 3.3 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (Guidelines) and 1/10th deducted for pre-existing condition; ground of appeal limited to whether impairment of total knee replacement should be based on impairments set out in Table 17.33 of American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5); delegated legislation; principles of statutory interpretation apply; King Gee Clothing Co Pty Ltd v The Commonwealth; question of construction determined by text, context and purpose; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue applied; table 3.3 of Guidelines applied only to total ankle replacements; contextual references in surrounding provisions of Guidelines refer to ongoing application of Table 17-33 of AMA5; purpose of Table 3.3 was to provide for an assessment of total ankle replacement which was not provided by Table 17-33; MA should have assessed under Table 17-33 of AMA5; Held – Assessment revoked; total knee replacements re-assessed under Table 17-33. |
BACKGROUND
Ms Jennifer Priest (the appellant) sustained injury to her right knee on 19 March 2019 in the course of her employment with Secretary, Department of Communities & Justice (the respondent) when she slipped and twisted her knee. Mr Priest sustained a “consequential condition” to her left knee as a result of “overuse, overcompensation and altered gait” from the injured right knee.
Ms Price underwent total knee replacements to the right knee on 7 November 2019 and the left knee on 17 March 2022.
On 29 November 2022 Ms Price served a claim based on a series of reports from Dr Endrey-Walder seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). An amended claim was served by letter dated
21 February 2023.By letter dated 18 January 2023 the respondent disputed the extent of impairment and subsequently made a counter-offer pursuant to s 66 of the 1987 Act. The respondent did not raise any liability issues.
Ms Priest commenced proceedings in the Personal Injury Commission (the Commission) as a medical dispute had arisen following the exchange of relevant correspondence. As there were no liability issues, the assessment of whole person impairment (WPI) was referred by the President to a Medical Assessor. The medical dispute was assessed by Medical Assessor Negus who issued a Medical Assessment Certificate dated 27 April 2023 (MAC).
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[1] The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[2]
[1] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[2] Clause 1.1 of the fourth edition guidelines.
MEDICAL ASSESSMENT
It is unnecessary to refer to the MAC in detail given the limited nature of the appeal.
The Medical Assessor applied the “points system” under Table 17-35 of AMA 5 for assessing the effects from the total knee replacements. He assessed a rating of 74 points for the left knee (a fair result) and 49 points for the right knee (a poor result).
The Medical Assessor then stated:
“RESULT – table 3.3: rating for ankle replacement results (is to be the same as for total knee replacements), p. 19 of NSW guidelines 4th edition.”
Accordingly, the Medical Assessor applied Table 3.3 of the Guidelines for the assessment of permanent impairment and assessed the left knee at 16% WPI and the right knee at 20% WPI. A deduction of one-tenth was made “for pre-existing disease” which meant that after the deduction, the left knee was assessed at 14% and the right knee was assessed at 18%. The “well healed knee surgical scars” were assessed at 1% WPI.
Combining the assessments of 18%, 14% and 1% under the combined tables produced a total impairment of 30%.
APPLICATION TO APPEAL MEDICAL ASSESSMENT
On 25 May 2023 Ms Priest lodged an Application to Appeal Against the Decision of a Medical Assessor.
The appellant relied on the grounds of appeal under s 327(3) of the 1998 Act that the assessment was made on the basis of incorrect criteria, and the MAC contained a demonstrable error.
On 16 June 2023 the respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
The delegate of the President was satisfied that a ground of appeal has been made out.
We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[3] Basten JA stated:[4]
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.”
[3] [2021] NSWCA 304 (Burton).
[4] At [35], Leeming and McCallum JJA agreeing.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment.
SUBMISSIONS
Appellant’s submissions
The appellant noted that the Medical Assessor assessed the knees pursuant to AMA 5 Table 17-35 and that the left knee was rated as “fair” and the left knee was rated as “poor”. Those findings were not challenged.
It was noted that the “points” system for a total knee replacement is referred to in paragraph 3.29 of the Guidelines and involves a two-step system. First, the points are aggregated using Table 17.35 of AMA 5 as modified by paragraph 3.30 of the Guidelines. Secondly, the aggregation of the points is converted into WPI using Table 17.33 of AMA 5.
The appellant submitted that the Medical Assessor incorrectly applied Table 3.3 of the Guidelines and should have applied the assessments contained in Table 17.33 of AMA 5.[5]
[5] AMA 5, p 547.
The appellant noted that Table 3.3 is headed “Rating for Ankle Replacement Results” and states that the points system for rating an ankle replacement is the same for total hip and total knee replacements. It was submitted that “the Table does not suggest that the ratings themselves for poor, fair and good outcomes across the range of joint replacements are to be the same”.
The appellant noted that Table 3.3 of the Guidelines “does not say that Table 17.33 (of AMA 5) is not to be used.”
The appellant submitted that clauses 3.29 and 3.37 of the Guidelines otherwise refer to Table 17.33 of AMA 5 “and contemplate its use”.
The appellant also noted that the independent medical assessors for the parties both applied Table 17.33 of AMA 5 and that it was not “aware of any authority” that supported the approach of the Medical Assessor.
Respondent’s submissions
The respondent referred to the summary of the meaning of “incorrect criteria” in Treverrow v Registrar of the Workers Compensation Commission[6] which essentially summarised the observations of Wood CJ at CL at first instance in Campbelltown City Council v Vegan[7] and the observations of Basten JA in the Court of Appeal.[8]
[6] [2008] NSWSC 632 at [30] and [35].
[7] [2004] NSWSC 1129 at [58].
[8] Campbelltown City Council v Vegan [2006] NSWCA 284 at [95].
The respondent noted that the Guidelines prevailed over AMA 5 where there was any inconsistency.
The respondent submitted that the Medical Assessor correctly applied Table 3.3 of the Guidelines. Its relevant submissions were:
“14. The respondent submits that the impairment ratings specified are applicable when converting the points for a total knee replacement into WPI as the explanatory note indicates ‘the points system for rating total ankle replacements is to be the same as for total hip and total knee replacements, with the following impairment ratings:’. It is below this note that each of the ‘result’ to ‘WPI (LEI)%’ are specified.
15. The respondent therefore submits that the Medical Assessor has used the correct criteria by applying Table 3.3 insofar as the conversion of the points assessed under the modified Table 17.35 of AMA5, as set out in clause 3.30 of the SIRA Guidelines, to a total impairment rating.”
The respondent submitted that there was no demonstrable error referring to the test discussed in Mahenthirarasa v State Rail Authority of New South Wales.[9] It submitted that there was “no error which is readily apparent in the medical assessor’s findings of fact or reasoning”.
[9] [2008] NSWCA 101 at [37].
The respondent submitted that the issue taken by the appellant concerned reference to extrinsic materials which set out the criteria for assessment”, presumably a reference to AMA 5 and the Guidelines, meant that the this “does not befall within the definition of ‘demonstrable error’”.
REASONS
The fourth edition guidelines have the force of delegated legislation.[10] Accordingly, the general principles of statutory construction apply: Collector Customs v Agfa Gevaert Ltd[11] adopting Dixon J (as his Honour then was) in King Gee Clothing Co Pty Ltd v The Commonwealth.[12]
[10] Ballas v Department of Education [2020] NSWCA 86 at [97].
[11] [1996] HCA 36.
[12] [1945] HCA 23; (1945) 71 CLR 184 at [195].
The principles of statutory construction are well settled. As the plurality stated in Military Rehabilitation CommissionvMay[13], the “question of construction is determined by reference to the text, context and purpose of the Act”, citing Project Blue Sky Inc v Australian Broadcasting Authority[14] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.[15]
[13] [2016] HCA 19 at [10].
[14] [1998] HCA 28 at [69]-[71].
[15] [2009] HCA 41 (Alcan).
Text
Table 17-33 of AMA 5 is headed “Impairment Estimates for Certain Lower Extremity Impairments”. Within Table 17-33 are the WPI assessments for total knee replacements which are 15% for a good result, 20% for a fair result and 30% for a poor result.
The issue is whether Table 3.3 of the Guidelines specifies the assessments for a total knee replacement and is inconsistent with Table 17-33 of AMA 5. Table 3.3 of the Guidelines provides:
“Total ankle replacement:
Table 3.3: Rating for ankle replacement results
The points system for rating total ankle replacements is to be the same as for total hip and total knee replacements, with the following impairment ratings:
Result WPI (LEI) %
Good result: 85-100 points: 12 (30)
Fair result: 50-84 points: 16 (40)
Poor result: (less than) 50 points: 20 (50)”
Table 3.3. then provides the criteria for assessing the points system based on pain, range of motion, varus and valgus. We agree with the appellant’s submission that the plain reading of Table 3.3 of the Guidelines is that it does not state that the impairment ratings for total ankle replacements are the same as total hip and total knee replacements.
An essential part of Table 3.3 is the construction of the following sentence:
“The points system for rating total ankle replacements is to be the same as for total hip and total knee replacements, with the following impairment ratings:”
The sentence states that “the points system … is to be the same as for total hip and total knee replacements”. It does not provide that the impairment assessments for total ankle replacements are the same as the impairment assessments for total hip and total knee replacements.
Table 3.3 then sets out how the overall points rates for either a good, fair or poor result. That overall points system is identical to that part of Table 17-33 of AMA 5 which provides how a total hip and total knee replacements rates (good, fair or poor).
We also agree with the appellant’s submission that Table 3.3 of the Guidelines does not say that Table 17-33 of AMA 5 is not used for total knee and total hip replacements. This contrasts with the clear language in paragraph 3.30 of the Guidelines which provides a replacement table for the points system for rating total knee replacements.
The heading to Table 3.3 is otherwise inconsistent with the respondent’s argument.
Context
The appellant referred to paragraphs 3.29 and 3.37 of the Guidelines which reference Table 17-33 of AMA 5. Paragraph 3.29 of the Guidelines provides:
“3.29 AMA5 tables 17-34 and 17-35 (pp 548–49) use a different concept of evaluation. A point score system is applied, and then the total points calculated for the hip (or knee) joint are converted to an impairment rating from Table 17-33. Tables 17-34 and 17-35 refer to hip and knee joint replacements respectively. Note that, while all the points are added in Table 17-34, some points are deducted when Table 17-35 is used. (Note that hemiarthroplasty rates the same as total joint replacement.)”
Paragraph 3.37 of the Guidelines does not refer to Table 17-33 of AMA 5. However, the Table below paragraph 3.37, Table 3.5, contains an oblique reference to Table 17-33 of AMA 5 and various other tables in AMA 5. Table 3.5 does not assist the appellant’s argument because Table 17-33 of AMA 5 provides many assessments for various lower extremity diagnosis-based estimates. We do not agree that the reference to Table 17-33 of AMA 5 (amongst other Tables) in paragraph 3.37 of the Guidelines provides contextual support for the appellant’s argument.
However, the second sentence in paragraph 3.29 of the Guidelines supports the appellant’s argument that Table 17-33 of AMA 5 is used for the assessment of impairment ratings for total hip and total knee replacements. The relevant sentence in paragraph 3.29 of the Guidelines is:
“A point score system is applied, and then the total points calculated for the hip (or knee) joint are converted to an impairment rating from Table 17-33.”
That sentence assumes that Table 17-33 (of AMA 5) is used for the conversion of the points system to impairment for hip or knee replacements.
Paragraph 3.30 of the Guidelines includes a table which provides a revised points system for the calculation of the “Rating of knee replacement results”. The table states that “AMA5 Table 17-35 (p 549) is incorrect” and provides a “correct table”. The language used in paragraph 3.30 of the Guidelines is that a replacement table for the calculation of the points system is used and that the equivalent table in AMA 5 is “incorrect”. This contrasts with Table 3.3 of the Guidelines which, as the appellant noted, does not state that the portion of Table 17-33 of AMA 5 is incorrect.
The surrounding provisions provides clear contextual support that the assessments of impairments of total knee and hip replacements in Table 17-33 of AMA 5 are used.
Purpose
Table 17-33 of AMA 5 provides a number of impairment estimates for lower extremity impairments. However, it does not contain a points system for assessing total ankle replacements.
Accordingly, Table 3.3 of the Guidelines has introduced both a points system for grading total ankle replacements and provided a WPI based on whether there is a good, fair or poor result. That was necessary because of the absence in AMA 5 for assessing total ankle replacements and because, due to the different body parts, assessing a total ankle replacement involves different criteria than assessing a total knee or total hip replacement.
The purpose of Table 3.3 of the Guidelines is that it introduced both a points system and impairment assessments for total ankle replacements which was otherwise not contained in Table 17-33 of AMA 5.
Other submissions
The appellant noted that the doctors qualified by the parties did not assess total knee replacements in accordance with Table 3.3 of the Guidelines suggesting that its position was correct. We do not accept that submission is relevant as the doctors did not consider the issue and expressed no reasons on the point.
The appellant also submitted that there is no authority on the issue. We have otherwise not found any relevant discussion of the application of Table 3.3 of the Guidelines to total knee replacements.
The insurer correctly noted that, to the extent of any inconsistency, the Guidelines prevail over AMA 5. However, for the reasons set out, Table 3.3 of the Guidelines is not inconsistent with the assessment of total knee replacements in Table 17-33 of AMA 5.
The reasons show that, based on text, context and to the extent that we can discern any purpose, Table 3.3 of the Guidelines does not assess the level of impairment for total hip and knee replacements.
For these reasons we reject the respondent’s submission that Table 3.3 of the Guidelines applies to total knee replacements.
We otherwise note that we only consider the subject matter of the grounds of appeal. These reasons are not an endorsement that the points system in Table 17-35 of AMA 5 is used for assessing total knee replacements. Paragraph 3.30 clearly states that the table set out in that paragraph replaces Table 17-35 of AMA 5.
Incorrect criteria
The Medical Assessor has incorrectly applied Table 3.3 of the Guidelines in assessing the overall level of impairment for a total knee replacement. Table 17-33 of AMA 5 must be applied for assessing impairment of a total knee replacement, that is a fair result is 20% and a poor result is assessed at 30%.
This is an application of incorrect criteria in accordance with the discussion by the Court of Appeal in Vegan.[16] Accordingly, it is unnecessary to discuss whether the MAC contains a demonstrable error.
[16] The observations of Basten JA in Vegan were approved by the Court of Appeal in Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 at [41].
CONCLUSION
For these reasons, we have determined that the MAC issued on 27 April 2023 is revoked, and a new MAC is issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1335/23 |
Applicant: | Jennifer Priest |
Respondent: | Secretary, Department of Communities & Justice |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Negus 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) | 19/3/19 | Table 17-33 | 30 | 1/10th | 27 | |
| Left lower extremity (knee) | 19/3/19 | Table 17-33 | 20 | 1/10th | 18 | |
| Scarring | 19/3/19 | Table 14.1 | 1 | N/A | 1 | |
| Total % WPI (the Combined Table values of all sub-totals) | 41 | |||||
0
12
0