Qantas Airways Limited v Rhodes
[2022] NSWPICMP 80
•7 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Limited v Rhodes [2022] NSWPICMP 80 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | Susan Joy Rhodes |
| APPEAL PANEL: | Member Marshal Douglas Dr John Brian Stephenson Dr Neil Berry |
| DATE OF DECISION: | 7 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Respondent worker was referred for assessment of whole person impairment (WPI) resulting from injury to left knee on 8 October 2015; respondent had suffered previous injury to left knee on 17 October 1996; Medical Assessor considered that a proportion of respondent’s WPI was due to previous injury but considered it was too difficult and costly to determine what the proportion would be so assumed it was 10% pursuant to section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998; appellant submitted that assumption was at odds with the evidence; Appeal Panel considered that the evidence established that the respondent had extensive arthritis in left knee immediately before her injury on 8 October 2015 and that the arthritis was initiated by her earlier injury; the Appeal Panel considered, given the extent of the arthritis in the respondent’s left knee at the time of her injury on 8 October 2015, making an assumption that the proportion to which the earlier injury contributed to her WPI was 10% is at odds with the evidence; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2021 Qantas Airway Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr T Michael Long, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 7 December 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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Susan Rhodes (the respondent) commenced employment on 1 June 1981 with the appellant as a flight attendant. On 8 October 2015 she was cleaning a toilet cubicle on an international flight to Singapore. Whilst doing that task she slipped on water and suffered an injury to her left knee.
The respondent had previously suffered an injury to her left knee on 17 October 1996, in the nature of a lateral meniscus tear, that occurred during a domestic flight. The plane encountered turbulence, resulting in the respondent being thrown upwards and then falling and twisting her left knee. On 27 January 1998 she had arthroscopic surgery when a lateral meniscectomy and chondraplasty were done.
On 30 August 2018 Orthopaedic Surgeon Associate Professor Raphael Hau carried out a left knee replacement.
On 29 September 2020, Orthopaedic Surgeon Dr James Bodel examined the respondent at the request of her solicitors. Dr Bodel provided a report in which he advised that he had assessed the respondent had 19% whole person impairment (WPI) resulting from the injury the respondent suffered on 8 October 2015. Relying on that report, her solicitors notified the appellant’s insurer that the respondent claimed compensation of $46,000 from the appellant pursuant to s 66 of the Workers CompensationAct 1987 (the 1987 Act).
On 21 July 2021 the appellant notified the respondent under s 78 of the 1998 Act that it disputed liability for her claim. The respondent thereupon initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim.
The matter was referred to the MA to assess various medical disputes including the degree of the respondent’s permanent impairment as a result of her injury on 8 October 2015 and whether any proportion of her permanent impairment is due to any previous injury or pre-existing or abnormality and the extent to that proportion. As said, the MA issued the MAC on 7 December 2021, and in that he certified he had assessed the respondent’s total WPI relating to her left lower extremity was 20%. This was on the basis that the respondent had achieved a fair result from her left knee replacement surgery. The MA also certified that a proportion of the respondent’s WPI was due to her previous injury on 17 October 1996 and the MA made a deduction under s 323(1) of the 1998 Act on account of that of 1/10th of the respondent’s total permanent impairment. Consequently, the MA certified he had assessed the respondent’s WPI from her injury to be 18%.
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 respondent to undergo a further medical examination. This is because, notwithstanding that the Appeal Panel found, for reasons explained below, the MAC did contain a demonstrable error, the Appeal Panel considered the material before it was sufficient for it to determine the appeal and to correct that error.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The respondent’s appeal relates only to the deduction the MA made under s 323(1) of the 1998 Act. The history the MA obtained relevant to that included the injury the respondent suffered on 17 October 1996 and the arthroscopic surgery the respondent had on 21 January 1998. The MA noted that the respondent continued to experience pain in her left knee after that but was able to perform her work as a flight attendant. The MA noted that apart from that injury and the injury the respondent suffered on 8 October 2015 there was no other history of the respondent suffering injury to her left knee.
The MA noted in the MAC that he had examined the films from an MRI of the respondent’s left knee that was done on 16 December 2015 and had examined the films from x-rays of the respondent’s left knee done on 21 February 2017 and 10 September 2021.
The MA noted that Dr J Pearce, who reported on the MRI, included the following observation within his report:
“… advanced tricompartmental osteoarthritic degenerative changes with extensive
tearing of the lateral meniscus. Sub-acute or old Grade 2 anterior cruciate ligament
sprain, popliteal tendinosis.”
The MA further noted that Dr P Champness, who reported on the x-ray done on 15 January 2016 included this observation within his report:
“There is complete loss of joint space… in the lateral compartment of the knee joint on
the intercondylar view. Osteophytes are present at the medial and lateral joint margin
and also at the margins of the patella. A soft tissue density superior to the patella is
consistent with an effusion in the suprapatellar bursa…”
In the summary the MA provided of the respondent’s injuries and diagnosis the MA recorded that the arthroscopy the respondent had done on 21 January 1998 had revealed significant degenerative changes in her left knee. He also noted that the investigations the respondent had done subsequent to her injury on 8 October 2015 had revealed “an advanced tricompartmental degenerative arthritis in the left knee”.
As mentioned, the MA considered that a proportion of the respondent’s total WPI related to the injury the respondent suffered to her left knee on 17 October 1996. The MA said that “note was also made of the operation report of left knee on 2 January 1998 in order to try and determine the extent of impairment in the left knee prior to the stated date of injury of 8 October 2015”.
The MA noted that Dr Bodel had assessed the respondent’s impairment on 29 September 2020 and that Dr Bodel had considered that there was pre-existing pathology present in the respondent’s left knee. The MA also noted that Dr Bodel considered it was difficult to determine the extent of the respondent’s pre-existing pathology prior to the respondent’s injury on 8 October 2015. The MA said that “I am in agreement with his determination that assessment of pre-injury arthritis is too difficult to establish and therefore a nominal 10% of impairment should be subtracted from the present impairment”.
The MA noted that [3.20] of the Guidelines instructs that impairment with respect to osteoarthritis “can only be assessed according to radiologically determined cartilage loss intervals shown in AMA 5 Table 17-31; page 544”. The MA noted that there were no “appropriate radiological investigations prior to the work injury of 8 October 2015” within the material before him. The MA said that “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”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA was wrong to assume, pursuant to s 323(2) of the 1998 Act, that the deduction to be made under s 323(1) of the 1998 Act for the proportion of the respondent’s impairment due to her prior injury was 10%. The appellant submitted the MA was wrong to assume that because that assumption was at odds with the medical evidence that was available to the MA. The appellant submitted that “in the face of medical evidence before him indicating the respondent worker had significant pathology in her left knee from 1996 onwards which continued to deteriorate” the MA did not explain “why there should be only a 10% deduction”. The appellant submitted that it was appropriate that a higher deduction be made.
In reply, the respondent submitted that the MA did consider all the medical evidence before him and that this is clear from the fact that the MA set out within the MAC the comprehensive treatment the respondent had received for her left lower limb. The respondent submitted that the 1998 injury had long ceased to impinge on her ability to work and that “the statutory 10% deduction under s 323 is the appropriate one”. The respondent submitted that the MA could not determine what part of the 18% WPI was referable to the 1996 injury or the degenerative changes in her left knee. The respondent submitted that the MA referred to the investigations she had undergone and consequently considered the degenerative changes shown in those films to arrive at his opinion that a “10% deduction is the appropriate s 323 deduction in this case”.
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.
There are several authorities detailing the approach a MA must take when assessing what if any deduction is to be made under s 323(1) of the 1998 Act. [1]
[1] See especially, Cole v Wenaline Pty Ltd [2010] NSWSC 78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), Ryder v Sundance Bakehouse [2015] NSWSC526 (Ryder) and Pereira v Siemens Ltd [2015] NSWSC 1133.
The MA must firstly be satisfied that the worker has an impairment from a work injury at the time of assessment. Secondly, a worker’s prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of a worker’s post-injury impairment is due to that prior injury or pre-existing condition. Lastly, the extent to which a worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined.
The third stage of the process cannot be done based on assumption or hypothesis, but must be done by reference to the evidence. The evidence must be able to demonstrate that a proportion of a worker’s impairment is due to the pre-existing condition or previous injury.[2] The Supreme Court held in Ryder that the pre-existing condition that a worker has or the prior injury the worker has suffered must make a difference to the outcome in order that a worker’s impairment can be found to be due to it. Insofar as it does make a difference, there must be a deduction.
[2] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86].
Further, the fourth stage can also not be done by reference to assumption unless the extent to which a deduction is to be made under s 323(1) would be too difficult or costly to determine, because of the absence of medical evidence or some other reason. In that circumstance, the deduction to be made under s 323(1) is be assumed, in accordance with s 323(2) of the 1987 Act, to be 10%. However, s 323(2) makes clear that that assumption cannot be made if it is not at odds with the evidence.
Section 325(2)(c) of the 1998 Act requires a MA to set out within the MAC his or her reasons for the assessment he or she has made of the matters referred for assessment. The reasons must be sufficient to reveal the actual path by which the MA arrives at his or her assessment.[3] In a circumstance where an opinion or conclusion is self-evident to medical practitioners and there is no medical contest regarding it, the reasons a MA provides do not need to be extensive or comprehensible to a person with no medical expertise. If, however, a conclusion may be medically contestable, based on the evidence, then the MA will need to address the evidence so as to expose the path of his or her reasoning in order to explain the conclusion to which he or she came.[4]
[3] See Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA43 at [55] and Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC1320 at [73] – [79].
[4] See Vitaz at [34]; see also Campbelltown City Council V Vegan & Ors [2006] NSWCA 284 at [121]-[122].
The submissions of the parties in this matter reveal that there is no contest between them that the respondent has a permanent impairment from her injury and that she had a previous injury that has caused or contributed to her total assessed WPI of 20%. The issue in this case related to the approach the MA adopted to determine the proportion of the respondent’s impairment that is due to her prior injury.
In the Appeal Panel’s view it would be difficult and costly to determine exactly the extent to which the respondent’s prior injury on 17 October 1996, and the consequent degenerative pathology of osteoarthritis that this injury initiated, contributes to her total WPI following her injury on 8 October 2015. However, the Appeal Panel considers that to make a deduction under s 323(1) of 10% for the proportion to which the respondent’s prior injury and consequent pathology contribute to her present impairment would be at odds with the available evidence and hence, in the Appeal Panel’s view, the MA was wrong to assume under s 323(2) of the 1998 Act that the deduction to be made under s 323(1) was 10%.
The Appeal Panel observes that the MA came to his conclusion that it would be too difficult and costly to determine what deduction was to be made under s 323(1) because he could not determine what the respondent’s impairment of her left lower extremity would have been due to osteoarthritis in her left knee immediately before her injury on 8 October 2015. That is, the MA formed the view that the deduction to be made under s 323(1) was to be done on the basis of subtracting from the respondent’s present WPI what the respondent’s impairment would have been due to arthritis immediately preceding her injury, and because he did not have the appropriate x-rays to enable that to be done, he had to assume, in accordance with s 323(2), that the deduction was to be 10%. The MA was in error in doing so.
The MA was required to determine the extent to which the respondent’s prior injury and the consequent pathology it initiated made a difference to the respondent’s present impairment. There is nothing within the Guidelines that limited or required the MA in doing that to subtract what would have been the respondent’s assessed WPI immediately before the injury from her post injury impairment.[5] The MA was required to consider all the evidence and make a clinical assessment based on that evidence of the extent to which the respondent’s prior injury contributes to her present impairment. Oftentimes the evidence is insufficient to determine precisely the extent to which a prior injury makes a difference, and a MA can in that circumstance assume, in accordance with s 323(2), the extent is one tenth so long as in that is not inconsistent with the evidence.
[5] Ryder v Sundance Bakehouse [2015] NSWSC 526
The evidence in this case, in the Appeal Panel’s view, was clearly inconsistent with an assumption being made that the deduction under s 323(1) was to be one tenth. The evidence revealed the respondent had extensive osteoarthritis in her left knee at the time she suffered injury on 8 October 2015. This is confirmed by the MRI done on 16 December 2015, which was only shortly more than two months after she suffered injury, and the x-ray she had done on 15 January 2016. The fact that the extent of her cartilage loss in her knee could not be determined radiologically because there was no radiological investigation done immediately before she suffered injury on 8 October 2015, does not detract from that.
The Appeal Panel observes that Dr Bodel expressed a similar view in an earlier report of 28 June 2017 to the respondent’s then solicitor. Dr Bodel in that report opined that were the respondent’s WPI to be assessed at that time by reference to the osteoarthritis in her joint, he would have assessed her with a 20% WPI of which he considered half was due to the original injury in 1996.
The respondent’s present WPI is a consequence of her having an artificial joint, rather than osteoarthritis. But her need for that artificial joint is a consequence of the osteoarthritis she had in her left knee. That is, the knee replacement was to treat the disease- to eliminate the respondent’s symptoms from the disease. That disease process was initiated by her injury on 17 October 1996 and the consequent surgery she had in 1998 for that injury, and was significantly advanced and extensive by the time she suffered her injury on 8 October 2015. The normal pathological process of that disease would have necessitated that she have knee replacement surgery at some stage. Her injury on 8 October 2015, which significantly aggravated her existing osteoarthritis necessitated that her surgery occur earlier than what would otherwise have been the case had she not suffered that injury.
In the Appeal Panel’s view, clinical consideration of these factors indicates that it was not open to the MA to assume that the deduction to be made under s 323(1) for the respondent’s prior injury, and the consequent pathology it initiated, was to be 10% because such an assumption was at odds with the evidence.
As mentioned, it is difficult to determine the precise contribution the respondent’s earlier injury and the consequent degeneration in her left knee makes to her present WPI arising from her having an artificial joint. In the Appeal Panel’s view, bearing in mind the extent of the osteoarthritis in her left knee at the time of her injury and the significant aggravation to that from her injury on 8 October 2015, which necessitated her need for an artificial joint occurring much earlier than what would otherwise be the case, the Appeal Panel considers that her earlier injury contributes to her current permanent impairment to the extent of 25%.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 December 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 T Michael Long 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) |
| Left lower extremity | 8/10/2015 | Chapter 3: pp 13-23 | 17.35 as modified Guidelines page 27. Table 17- 33; Page 547 | 20% | 1/4 | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Marshal Douglas
Member
John Brian Stephenson
Medical Assessor
Neil Berry
Medical Assessor
7 April 2022
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6
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