Princi v Sydney Trains
[2023] NSWPICMP 487
•4 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Princi v Sydney Trains [2023] NSWPICMP 487 |
| APPELLANT: | Cheryl Princi |
| RESPONDENT: | Sydney Trains |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Greg McGroder |
| DATE OF DECISION: | 4 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant worker alleged error by the Medical Assessor in the application of a one-half deduction under section 323; the Appeal Panel was not satisfied as to error because a one-tenth deduction was at odds with the available evidence and the Appeal Panel could discern no error in the application of a deduction of one-half to take account of the contribution of the pre-existing condition of the knee to the level of permanent impairment assessed; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 June 2023 Ms Cheryl Princi (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 May 2023.
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.
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.
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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 Procedural Direction PIC7.
The appellant sought that she be re-examined by a Medical Assessor member of the Appeal Panel.
As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could discern no error by the Medical Assessor and absent a finding of error, the Appeal Panel has no power to require a re-examination of the worker: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary 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 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
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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. 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.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Date of injury:
17 September 2019
Body parts / systems referred:
Left lower extremity (knee)
Right lower extremity (knee)
Method of assessment:
Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in SIRA guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Right lower extremity
17/12/19
P 21 P 17.35
P 547 F 17.33
20%
1/2
10%
Left lower extremity
17/12/19
P 546 F 17.33
4%
1/10th
4%
Total % WPI (the Combined Table values of all sub-totals)
14%
The worker appealed. The complaints relate to the right lower extremity only. There is no complaint on appeal about the overall level of whole person impairment (WPI) assessed of 20%. The appeal concerns only the extent of the deduction made by the Medical Assessor under s 323.
In summary, the appellant submitted on appeal that the Medical Assessor erred in the making of a deduction of one-half under s 323. In summary, the appellant submitted as follows:
(a) The Medical Assessor asked and answered the wrong question in making a deduction of one-half because he focused on why the surgery (total right knee replacement) was necessary.
(b) He failed to reference any specific radiological or other medical evidence to support a deduction to the extent of one-half.
In summary, Sydney Trains (the respondent) submitted on appeal that the Medical Assessor did not make a demonstrable error and nor did he make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The Medical Assessor took a history broadly consistent with the other evidence before him and which included the pre-existing injury to the right knee as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Princi injured her left knee climbing up a ladder onto the back of a train. Her foot slipped on the step and she twisted her knee. She was operating the train on the Clyde to Carlingford line at the time. As she was walking along the platform, changing ends of the train she noticed she was progressively developing worsening pain in the knee. At the end of the day she was unable to climb stairs off the platform and reported her injury. She went on to have x-rays of her knee and was referred to Dr Sorial, Orthopaedic Surgeon. He noted pre-existing osteoarthritis in the knee with a meniscal tear. In January of 2020, he went on to undertake an arthroscopy. Unfortunately, she had ongoing pain in her knee after the procedure and continued on crutches. She then started developing pain in her right knee. She was referred back to Dr Sorial, who noted advanced osteoarthritis in the right knee and recommended a total knee replacement. She went on to have the right total knee replacement done as a public patient in Nepean Public Hospital. Unfortunately, she continued to have pain in her knee subsequent to the surgery. Due to her ongoing symptoms, it has been recommended that now she undergo a resurfacing of the patellofemoral joint of the right knee.
Present treatment:
As above for the right knee, she is awaiting a patella resurfacing.
For the left knee, she is not undergoing any active treatment.
Present symptoms:
The right knee is painful when weight bearing behind the kneecap. Ms Princi also describes subjective instability and pseudolocking. She is able to walk for 200 metres or so before being limited by pain. She has to use a rail and take stairs one at a time.
For the left knee, again she has retropatellar pain with intermittent swelling. She again describes pseudolocking and subjective instability.
Details of any previous or subsequent accidents, injuries or conditions:
Ms Princi sustained an injury to her right knee at the age of 14. In particular, it would appear as though Ms Princi suffered an injury to her cruciate ligament at the time and consequently has developed significant osteoarthritis.
General health:
Ms Princi reports that her health is otherwise good. She takes no regular medications and has no allergies.
Work history including previous work history if relevant:
Nil relevant.
Social activities/ADL:
Ms Princi struggles to drive due to pain in the knees. She is restricted in walking and playing with her grandchildren.
The Medical Assessor noted that he did not review any images stating as follows:
‘I was not able to review any imaging related to the injuries today.’
This means that he did not view the images themselves. The Appeal Panel notes that there are various radiological reports contained within the documents attached to the Application to Resolve A Dispute and the Reply which were referred to the Medical Assessor and which material he states he has reviewed.”
The Medical Assessor conducted a physical examination about which there is no complaint on appeal.
The Medical Assessor summarised his diagnosis and findings as follows:
“Summary of injuries and diagnoses:
Ms Princi slipped on a stair, twisting her left knee. She subsequently had an arthroscopy identifying tears to the medial and lateral menisci. She also had significant osteoarthritis in the knee. Two months after her arthroscopy she developed pain in the right knee. X-rays demonstrated significant osteoarthritis, likely consequent to her cruciate ligament injury as a child. She subsequently had a right sided total knee replacement.
Consistency of presentation:
Ms Princi was cooperative throughout the assessment.”
The Medical Assessor explained his assessment of overall impairments and there is no complaint on appeal about same.
The Medical Assessor had regard to the other medical opinions that were before him noting as follows:
“I am in agreement with Dr Hope’s assessment of the right sided total knee replacement as a fair result (20% whole person impairment). I am also in agreement with Dr Hope in respect to assessment of the left knee as 4% whole person impairment on the basis of partial medial and lateral meniscectomies. I disagree with Dr Hope in respect to deductions for both the left and right knee and will deal with this subsequently.
With respect to the report by Dr Gray dated 15 November 2022, again I am in agreement with assessment of the right knee as a fair result (20% whole person impairment). I have assessed the left knee as 4% whole person impairment. Ms Princi underwent partial medial and lateral meniscectomies. Dr Gray has assessed partial medial meniscectomy only. I am in agreement with Dr Gray’s assessment of a significant deduction for pre-existing arthritis in the right knee.”
The Medical Assessor explained his reasoning for making a deductions in respect of the pre-existing conditions in the left (for which he made a deduction of one-tenth which is not the subject of complaint on appeal) and right knee (for which he made a deduction of one-half which is the subject of complaint on appeal) as follows:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Osteoarthritis right knee
(ii)Osteoarthritis left knee.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Both knees represent aggravation of significant pre-existing underlying degenerative arthritis.
c. For the left knee, the extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.
For the right knee whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is ½ for the following reasons:
The development of pain in the right knee two months after injury to the left knee indicates the presence of significant pre-existing osteoarthritis. The osteoarthritis in the right knee is the inevitable consequence of an injury to the knee sustained as a child and a deduction of ½ is appropriate. In the absence of the pre-existing arthritis, no surgery would have been required on the right knee and no impairment would have been assessable.”
A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. Where the extent of the deduction would be too difficult or too costly to assess the deduction should be one-tenth unless that is at odds with the available evidence.
The Medical Assessor assessed a deduction of one-half for the right knee as he considered that a one-tenth deduction was at odds with the available evidence and the extent of the deduction is the subject of complaint on appeal.
The appellant complains on appeal that the Medical Assessor has misdirected himself by asking himself the wrong question and taken an inadequate history and had failed to sufficiently refer to the evidence to support the deduction in his reasons which are inadequate.
The MAC must be read as a whole. The fact that a pre-existing injury, condition or abnormality is asymptomatic is a relevant factor but not a determinative one.
The Medical Assessor provided brief reasons but they adequately disclose his reasoning and the material to which he has had regard. He has had regard to the material attached to the Application to Resolve a Dispute and the Reply. He has clearly had regard to the opinions of the IMEs qualified on behalf of both parties and stated where he disagrees.
The Medical Assessor has clearly reasoned that a deduction of one-tenth for the right knee would be at odds with the available evidence, that evidence including the radiological evidence that was undertaken shortly after injury which showed chronic osteoarthritic changes of long standing, namely bone on bone arthritis. The surgery being a right knee replacement was, in the clinical judgment of the Medical Assessor, the result of the chronic underlying condition of the right knee and the aggravation to this pre-existing condition as a result of the work injury (being a consequential condition in the right knee as a result of the twisting injury on the stair to the left knee).
The Medical Assessor has taken a clear history of the injury at work to the left knee on 17 December 2019 resulting in an arthroscopy in January 2020. Two months later the appellant developed pain in the right knee and the Medical Assessor notes that the X-rays taken at the time showed significant osteoarthritis. The Appeal Panel notes that the MRI undertaken on 8 March 2020 showed chronic changes (that is long standing changes) and the presence of “tri-compartmental osteoarthritis in the medial femorotibial compartment with grade 4 chondromalacia and prominent osteophytic lipping”.
The work related right knee condition is a consequential condition as a result of injury to the left knee. It consists in the aggravation of the underlying significant osteoarthritic changes in the right knee which were of long standing. The appellant came to the total right knee replacement surgery as a result of the significant underlying osteoarthritic changes being aggravated by the work injury. The level of the permanent impairment assessed is based on the surgery (fair result) and given the contribution of both the significant underlying osteoarthritic condition of the right knee and the aggravation of that condition by the work injury (consequential condition), it was appropriate for the contribution of the underlying osteoarthritic condition to the level of permanent impairment assessed to be taken into account by the making of a one-half deduction. When the MAC is read as a whole the Medical Assessor has adequately explained his approach and the available evidence supports the exercise of his clinical judgment in the making of a deduction under s 323 of one-half.
For these reasons, the Appeal Panel has determined that the MAC issued on
29 May 2023 should be confirmed.
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