Qantas Airways Ltd v Ashburn

DETERMINATION OF APPEAL PANEL
CITATION:	Qantas Airways Ltd v Ashburn [2023] NSWPICMP 620
APPELLANT:	Qantas Airways Ltd
RESPONDENT:	Sharon Ashburn
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	28 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in failing to make a deduction under section 323 contrary to the weight of evidence; Panel agree the evidence supported a deduction of 10%; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 September 2023 Qantas Airways Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr J Brian Stephenson, a Medical Assessor, who issued an initial Medical Assessment Certificate (MAC) on 28 August 2023.
The Medical Assessor assessed the respondent to have 21% whole person impairment (WPI) as a result of a right knee injury, with a deemed date of injury of 12 April 2012.
The MAC recorded ‘20%’ as a deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) but the Medical Assessor’s opinion was that the respondent did not have any pre-existing conditions or injuries to warrant a deduction.
An amended MAC was issued on 12 September 2023 where no deduction was made.
It is from the MAC of 12 September 2023 that the appellant appeals.
The appellant relies on the following grounds of appeal under s 327(3) of 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, 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)

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.
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 because none was requested, and we are satisfied that we have sufficient evidence before us to enable us to determine this appeal.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in failing to make a deduction pursuant to s 323 of the 1998 Act, contrary to the weight of evidence.
In reply, the respondent submits that no errors were made.

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 appellant was referred to the Medical Assessor for assessment of WPI in respect of the right lower extremity (knee) and scarring – TEMSKI, resulting from an injury on 12 April 2012.
The Medical Assessor obtained the following history:
“On the date of injury, 12 April 2012, Ms Ashburn had a fall at work during her break when she went to put some rubbish in the bin. She turned and slipped and heard a snap and fell at work in the airport. There was some slippery liquid which had been cleaning fluid and she twisted and fell on her back. She had a lot of pain and was taken in a wheelchair to the GP at the airport. Her GP referred her to Dr Ridhalgh, orthopaedic specialist, who performed an arthroscopic right medial meniscectomy operation. More recently on 14 October 2020, Dr Anthony Leong, orthopaedic knee specialist, performed a Triathlon cruciate retaining size 2 femoral component with a size 2 tibial base plate, an 11 mm Triathlon polyethylene insert, and a 29 mm resurfacing patella button was inserted. The knee was balanced and stable with normal patellar tracking. Dr Anthony Leong who, following that arthroplasty subsequently reviewed her four and a half months and then at 12 months post-surgery. There was postoperative physiotherapy for rehabilitation. The physiotherapy note following the arthroscopic procedure reviewed 22 November 2012. Physiotherapist recorded 22 sessions since surgery with advised on activity moderation.”
When asked to provide details of any previous or subsequent accidents, injuries or conditions, the Medical Assessor said:
“Her lawyers, Turner Freeman, 24 October 2022, our client reported her injury to management on duty. Our client previously sustained a work injury related to left foot during the course of employment with State Rail Authority in or around early 1990. She underwent surgery to left foot and was certified with unfit to work during this time. However, Ms Ashburn did not continue to experience ongoing restrictions and incapacity from work. Additionally, we instructed our client suffered injury to left ankle in or around late 1990 as a result of a sporting incident of soccer.”
The Medical Assessor then set out details of the impact of her injury on her social activities and activities of daily living (ADL’s) as follows:
“The claimant referred to disabilities which flow from her impairment. She finds she has an inability to mow lawns, clean windows, wear high-heeled shoes, clean the bathroom.”
Findings on examination were reported as follows:
“a. Pain Walking and stairs 30 points
b. Range of Motion Flexion 120º 24 points
c. Stability Anteroposterior less than 5 mm Mediolateral 5º 5 points 15 points Subtotal 74 points
d. Deductions (minus d, e, f) d - Flexion Contracture 5º to 9º 2 points
e. Extension: Extension lag less than 10º 5 points
f. Tibiofemoral Alignment 5º -10º valgus 0 points
Subtracting 7 from 74, the net result is 67 points. That represents a fair result from AMA-5 and therefore a 20% WPI.
There is a surgical right parapatellar scar. Reference WorkCover Guidelines, page 74, table 14.1 TEMSKI. With those figures, 1% WPI is as follows:
• Claimant is conscious of scar.
• Some parts of scar colour contrast with surrounding skin as a result of pigmentary changes.
• Claimant able to locate scar.
• Minimal tropic changes.
• Any staple or suture marks are visible.
• Anatomic location of the scar or skin condition not usually visible with usual clothing style.
• Minor contour defect.
• Negligible effect on any ADL.
• No treatment, or intermittent treatment only required.
• No adherence.
Conclusion: 1% WPI.
Combing the values of 20 with 1, there is a total WPI rating of 21% WPI and no deduction under s 323 in the absence of previous injury, condition or abnormality.”
The Medical Assessor then noted the various investigations he had before him and said:
“Med Radiology, 6 January 2016, MRI right knee. Conclusion: 1. Joint Effusion. 2. Osteoarthritis most marked in the medial compartment. Dr Ron Shnier, radiologist.
MRI right knee, 23 October 2012. Partial medial meniscectomy without evidence of a re-tear. Lateral meniscus is intact. There is significant medial compartment osteoarthritis with mild subchondral oedema. There is focal grade II chondral wear in the medial patella. No other significant chondromalacia detected. Dr Kuan, who noted the clinical history of pain post knee surgery.
May 9 2012, MRI right knee, requester GP. Advanced medial compartment osteoarthrosis associated with a large reactive joint effusion. Dr Rashid.
I reviewed the studies and agree with the reports.”
The Medical Assessor summarised the injuries and diagnoses as follows:
“There has been history of partial medial meniscectomy with subsequent discomforts and reduced activity. The diagnosis is that of fair result from total knee arthroplasty right knee.
Presentation is consistent with history of injury, clinical findings, radiology and medico surgery reporting.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the Medical Assessor replied: “No. There is no deductible proportion in that regard.”
He then turned to consider the other medical opinions and evidence and said:
“Dr James Bodel, 15 March 2022, found a total of 21% WPI for fair result at 20% WPI, which is combined 1% WPI for the TEMSKI table scarring. I fully agree with and endorse that assessment.
Dr Lindstrom, respiratory medicine, referred to the surgery right total knee arthroplasty 14 October 2020, following the fall at work in April 2012 injury on the right knee, which has been problematic since then.
Dr Anthony Leong, operation report, right total knee report. Date: 14 October 2020, right total knee replacement.
Dr Michael Dixon, orthopaedic knee specialist, 20 October 2016, he noted there was a difficult dilemma in that the claimant was relatively young and has quite advanced medial compartment osteoarthritis and that an arthroscopy would not help her knee at that stage.
Associate Professor Paul Miniter, orthopaedic, 28 October 2022, noted the history of injury. He found a diagnosis of medial compartment osteoarthritis. He referred to the report of Dr Bodel, but Dr Miniter suggested significant deduction at 50% leading to an 8% WPI.
I disagree with that methodology, has some clear history of continuing gradual deterioration of the knee following the initial injury and partial medial meniscectomy, right knee.”

The submissions

The appellant makes the following submissions:
(a)    the Medical Assessor erred in his assessment as he did not consider all of the medical evidence;
(b)    the respondent sustained a twisting injury to her right knee on 12 April 2012;
(c)    in the response to particulars dated 24 October 2022 the respondent did not particularise any prior injury or condition affecting her right knee but only reported that she sustained a left foot injury in 1990;
(d)    the respondent presented to Sydney Airport Medical Centre in 2000 following an injury to her knees, right wrist and cervical/thoracic spine when she fell off a luggage belt;
(e)    the respondent also presented to Dr Ice Boskovkski in June of 2010 requesting a right knee X-ray due to pain with stairs (page 2 of Reply) and again in
March 2012 to Dr Rod Tyrell with right knee pain as a result of an incident / accident whilst travelling to work (page 1 of Reply);
(f)    the respondent, in her statement dated 19 May 2023 at paragraph 12, states that, prior to 12 April 2012, her condition was asymptomatic with very little to no pain and that it did not affect her daily life or activities;
(g) the appellant refers to the following evidence relevant to the respondent’s long standing osteoarthritis in the right knee to which the Medical Assessor either failed to refer, or failed to provide reasoning as to why this evidence did not justify a deduction pursuant to section 323 of the 1998 Act;
(h)    MRI scan of right knee dated 9 May 2012 noted ‘locally advanced medial compartment osteoarthrosis associated with a large reactive joint effusion…. Mucoid degeneration of the anterior horn and anterior horn body junction of the lateral meniscus…. Retro patellar chondral softening in keeping with chondromalacia patella’ (page 3 of Reply);
(i)    MRI right knee report dated 23 October 2012 noted ‘prior partial medial meniscectomy without evidence of a re-tear…significant medial compartment osteoarthritis with mild subchondral oedema’ (page 7 of Reply);
(j)    the respondent’s physiotherapist, Stephen Velovski, provided a report in November 2012 noting that the respondent had ‘significant medial compartment osteoarthritis and a grade II chondral wear’ (page 9 of Reply);
(k)    the respondent was reviewed by Dr Michael Dixon, orthopaedic surgeon in October 2016. Following the fall in 2012. Dr Dixon noted that the respondent had ‘quite advanced medial compartment osteoarthritis’ for her age (page 11 of the Reply);
(l)    MRI right knee report dated 6 October 2019 noted ‘joint effusion and osteoarthritis noted and most present in the medial compartments’ (page 6 of Reply);
(m)     the Medical Assessor acknowledges and accepts the radiological evidence as per his statement on page 3 which includes the finding of advanced medial compartment osteoarthritis. This is again reiterated by the Medical Assessor acknowledging the opinion of Dr Dixon who also raises the fact that the respondent had ‘quite advanced medial compartment osteoarthritis’;
(n)    the Medical Assessor endorses the assessment of Dr Bodel. The Medical Assessor failed, however, to address Dr Bodel’s comment on page 2 of his report dated 16 December 2022 in which Dr Bodel indicated he would be prepared to change his opinion and subsequent assessment if there was medical evidence to indicate there was a previous history of knee complaints;
(o)    no report was sought by the respondent from Dr Bodel to comment on the evidence set out above of pre-existing symptoms including a complaint in the month before the accepted injury;
(p)    A/Prof Miniter, in his report dated 28 October 2022 (page 15 of the Reply), opined that there is no doubt that the respondent’s knee pathology is pre-existing and that there was no evidence to suggest that the fall was instrumental in the causation of the knee arthritis or any more than a brief aggravation of the underlying pathology. A/Prof Miniter points to the absence of acute features on the MRI scan that would be indicative of an injury;
(q)    in considering A/Prof Miniter’s assessment, the Medical Assessor disagreed on the basis that there was a clear history of continuing gradual deterioration of the knee following the initial injury and partial medial meniscectomy. This fails to take into account the evidence of advanced osteoarthritis before the injury and before the surgery;
(r)    the Medical Assessor has a duty to give proper reasons for his decision and a failure to do so amounts to an error of law;
(s)    it is necessary for the MAC to provide an explanation as the actual path of reasoning of the Medical Assessor in sufficient detail to allow a court or an appeal panel to determine whether there is error in its finding;
(t)    the clinical records demonstrate that the respondent’s right knee was symptomatic prior to the date of injury. The reports of both A/Prof Miniter and
Dr Bodel confirm that the question of a deduction pursuant to s 323 was in issue with Dr Bodel considering the question turned on evidence of symptoms pre-injury. The Medical Assessor did not address the evidence of pre-existing symptoms highlighted by the doctors and in the dispute notice and has not provided a clear path of reasoning in that context as to why he did not consider a deduction was warranted. Whilst he considers the respondent has deteriorated since the injury, he did not turn his mind to the objective medical evidence pre-dating the injury, nor proper consideration to the radiological investigations immediately post-injury;
(u)    the appellant submits that the Medical Assessor has erred demonstrably in:
(i)failing to consider the medical evidence that was relevant as to the issue of any pre-existing injury or condition;
(ii)taking a history that was inconsistent with the medical evidence before him;
(iii)failing to ask with the respondent regarding her presentations with knee pain in 2000, 2010 and March 2012;
(iv)failing to address the appropriate test pursuant to s 323 of the 1998 Act;
(v)failing to provide reasons why he did not consider there was a deductible proportion pursuant to section 323 of the 1998 Act, and
(vi)applying the principles in Cole v Wenaline (NSWSC 2020) and Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 & 616, medical evidence should be considered objectively to determine whether there remains residual effect on a worker’s impairment resulting from an earlier injury or condition, despite the worker’s belief that he or she had recovered from an earlier injury or condition.
The respondent repeats much of the evidence referred to by the appellant above, but adds:
(a)    whereas Dr Bodel did not see fit to make a deduction for any pre-existing impairment because of the respondent's asymptomatic degenerative right knee prior to this accident, A/P Miniter said the respondent had not suffered any injury in this accident, and then contradictorily said a deduction of 50% was warranted when assessing the respondent’s work-related impairment;
(b)    in addressing A/Prof Miniter's deduction, Dr Bodel noted the inconsistency between the no injury finding, and then an assessment of injury and a reduction of that assessment by 50% for pre-existing injury. Furthermore, the claimant had been employed by the respondent employer since 16 August 1994. The Medical Assessor considered the same as did Dr Bodel when considering whether a deduction was required and determined consistent with the authorities that there is no basis for any deduction for pre-existing impairment;
(c)    it is plain, from page 5, that the assessor agreed with Dr Bodel's approach and opinion, and rejected A/Prof Miniter’s opinion;
(d)    the insurer identifies the objective radiological evidence, and a clinical entry from the Miranda Centre General Practice, dated 22 March 2012, as the foundation for its complaint;
(e)    the entry concerns an isolated complaint of right knee pain [only]; there is no suggestion this isolated complaint related to or arose from the degenerative changes in the claimant’s right knee (as distinct from some other cause);
(f)    although the record reveals the claimant was referred for an X-ray, there is no evidence to suggest the X-ray was ever performed (which supports this being an isolated complaint);
(g)    there is no suggestion, in any of the material, that the respondent was incapacitated or unable to work after this one consultation, and there is no further consultation or complaint after this entry, and before the subject accident, and
(h)    in contrast, the respondent’s fall was violent, involved blunt trauma to the knee, warranted immediate medical attention and transfer by wheelchair, and has resulted in a gradual and consistent deterioration culminating in a right total knee replacement.

The respondent then set out in detail relevant sections of the 1998 Act, the Guidelines and several authorities on this issue.

DISCUSSION

To begin with, the Panel agrees with the appellant that the Medical Assessor did not provide reasons why he did not consider there was a deductible proportion, particularly in light of his earlier MAC.
Having said that, we note the appellant’s submissions regarding the evidence of pre-accident clinical complaints.
The appellant notes that the respondent presented to Sydney Airport Medical Centre in 2000 following an injury her knees, right wrist and cervical/thoracic spine when she fell off a luggage belt.
However, no further information is provided regarding the nature of ongoing complaints.
The Panel also note that the claimant presented to Dr Boskovkski in June 2010 requesting a right knee X-ray due to ‘pain with stairs’. We note that complaints of pain with stairclimbing are common and this does not suggest that the respondent suffered from a material right knee condition prior to the subject accident.
The Panel do note that in March 2012, the respondent attended Dr Rod Tyrell with right knee pain as a result of an incident/accident whilst travelling to work. No further details of the accident have been provided.
There is no information in the medical file as to the examination findings at the time of those consultations. There is no pre-accident imaging available.
It is uncertain whether the claimant did undergo a right knee X-ray or other treatment following the clinical presentations in June 2010 and March 2012.
However, the Panel note that the entries confirm that the respondent certainly did suffer at least intermittent pain in the right knee prior to the subject workplace accident.
The Panel also note that post-accident MRI scans of the right knee performed on
9 May 2012 demonstrated locally advanced medial compartment osteoarthrosis, mucoid degeneration of the anterior horn and anterior horn body junction at the lateral meniscus and retro patella chondral softening in keeping with chondromalacia patellae.
The large reactive joint effusion is likely related to the acute workplace trauma.
In our view, we consider that the requirement for surgery was caused by the workplace trauma.
Whilst the Panel note that the respondent underwent further MRI scans of the right knee on 23 October 2012, which demonstrated significant medial compartment osteoarthrosis with mild chondral oedema and a prior partial meniscectomy, there had been interval treatment of the right knee injury arising from the subject accident.
We note that removal of part of the medial meniscus can be associated with rapid progression of degenerative change.
Therefore, the progression of osteoarthrosis between the scans of 9 May 2012 and
23 October 2012, in part reflects the damage caused by the workplace injury and the subsequent requirement to remove part of the medial meniscus.
Notwithstanding this, the respondent continued without surgery until 6 October 2019, when it was determined that there was a requirement for total knee replacement.
The Panel accepts that the respondent had a symptomatic osteoarthrosis of the right knee prior to the subject accident, although the extent of those symptoms is limited to several brief medical attendances, in the context of minor trauma.
Having regard to sections 1.27 and 1.28 of the Guidelines, we have taken into account all of the available evidence to calculate the degree of permanent impairment that pre-existed the injury.
It is not possible to formulate a permanent impairment assessment based upon the limited clinical evidence that is available.
In these circumstances, we find that it is reasonable to make a deductible proportion from the degree of permanent impairment as the respondent was suffering from symptoms related to the osteoarthrosis of the knee that was evidently present prior to the subject accident, taking into account the post-accident imaging findings.
Section 323 of the 1998 Act states:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole) is relevant authority for s 323 of the 1998 Act. It is noted that in order for a deduction to be made under s 323 there must be evidence that a pre-existing abnormality; condition; or previous injury contributes to the impairment.
A pre-existing condition or injury, even to the same body part, does not automatically invoke a deduction under s 323. The test is whether the pre-existing condition or injury actually contributes to the current impairment. If the evidence does not establish that the previous injury contributes to the impairment then no deduction can be made. However, if the previous injury does contribute, even if it was asymptomatic at the time of the later injury, then there must be a deduction. To put it another way, we understand the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.
Taking all this into account, the Panel find that for the injury being assessed, the deduction should be 1/10th of the assessed impairment, consistent with all the available evidence.
There is no convincing evidence to make a greater than 1/10th deduction in this case.
In particular, there is no evidence that the respondent was suffering from a disability with work or other ongoing disability from the right knee condition, notwithstanding her previous clinical presentations.
Accordingly, a 2% deduction is applied to the impairment rating of 20%. 20% minus 2% equals 18%.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 September 2023 should be revoked, and a new MAC should be 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:	W4390/23
Applicant:	Sharon Ashburn
Respondent:	Qantas Airways Ltd

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 Medical Assessor J Brian Stephenson 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)
1. Right lower extremity	12 April 2012	Chapter 2, page 10-12	Table 17-35	20%	1/10th	18%
2. Scarring (TEMSKI)	12 April 2012	Page 74	Chapter 8	1%	0%	1%
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					19%

[2023] NSWPICMP 620

28 November 2023