R Campbell & Sons Pty Ltd v McGregor
[2022] NSWPICMP 431
•27 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | R Campbell & Sons Pty Ltd v McGregor [2022] NSWPICMP 431 |
| APPELLANT: | R Campbell & Sons Pty Ltd |
| RESPONDENT: | Mark McGregor |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 27 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal by the employer in relation to assessment of impairment in relation to a tibial plateau fracture; Medical Assessor (MA) assessed a moderate impairment at 10% whole person impairment (WPI); MA has to make an independent assessment on the day of the examination; must be based on the correct criteria in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (Guides); assessment of the grade of impairment in relation to a tibial plateau fracture is very specifically a radiological diagnosis based on the degree of involvement of the tibial plateau; this takes into account the extent of involvement of the weight-bearing area, the amount of displacement, and the amount of comminution; as indicated in the radiological and hospital reports this was a minimally displaced fracture; Held – in accordance with the correct criteria in the Guides there should have been awarded 5% WPI for mild grade involvement; there was no justification for assessing 10% WPI for a moderate grade involvement; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 August 2022 R Campbell & sons Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 7 July 2022.
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).
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.
The appellant did not seek that Mark McGregor (the respondent/worker) be re-examined. As a result of it’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, for the reasons explained below, there was sufficient material before the Appeal Panel for it to make a determination.
EVIDENCE
Documentary 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.
The MAC
The parts of the medical certificate given by the MA 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 MA as follows:
“● Date of injury: 17 July 2018.
· Body parts/systems referred: Left lower extremity (knee), lumbar spine (consequential)
· Method of assessment: Whole Person Impairment.”
The MA assessed 12% whole person impairment (WPI) in relation to the left lower extremity (knee), and 6% in relation to the lumbar spine (consequential), with no deduction for pre-existing condition.
The employer appealed.
The appeal is confined to the left lower extremity assessment and more specifically, the assessment of the extent of the impairment of the respondent worker’s tibial plateau fracture as described under Table 3.2 of the Guidelines. The MA assessed a moderate grade impairment with 10% WPI to which he has added an additional 2% for involvement of the patellofemoral joint. The appellant, submits in summary, that the correct classification would have been a ‘mild’ fracture with 5% WPI. There is no complaint on appeal about the additional 2% awarded for the patellofemoral joint.
The appellant also submitted that the MA has not provided reasons for his conclusion as to why he has considered the fracture to be ‘moderate’, rather than ‘mild’ and that he has seemingly simply followed the assessments made by Dr Bodel.
The respondent worker submitted that the MA did not err or make an assessment on the basis of incorrect criteria and that the assessment of a moderate fracture was open to him exercising his clinical expertise.
At paragraph 3.28 of the Guides Table 3.2 provides as follows in respect of the assessment of tibial plateau fractures:
“Tibial plateau fractures: Table 3.2 of the Guidelines, replaces the instructions for tibial plateau fractures in AMA5 Table 17-33 (p 546).
Table 3.2: Impairment for tibial plateau fractures
In deciding whether the fracture falls into the mild, moderate or severe categories, the assessor must take into account:
•the extent of involvement of the weight-bearing area of the tibial plateau
•the amount of displacement of the fracture(s)
•the amount of comminution present.
Grade
Whole person (lower extremity) impairment (%)
Undisplaced
2 (5)
Mild
5 (12)
Moderate
10 (25)
Severe
15 (37)
Table 3.2 distinguishes between mild (5% WPI) and moderate (10% WPI).
The MA assessed the ‘moderate’ criterion with 10% WPI, but has failed to give his reasons for this assessment.
The MA took a history. He noted that on hospital admission:
‘It was identified that there had been a minimally displaced fracture of the left tibial plateau and also the head of the left fibula’.
When he had regard to the special investigations under the heading “MRI scan left knee” (25/02/19) the MA notes the result reported as ‘minimally displaced fracture of the tibial plateau and fibular head’.
Under the heading “Summary of injuries and diagnoses”, the MA notes that the injury has resulted in left knee fractures of the tibia and fibular head, and that ‘both were minimally displaced’.
However under the heading “Explanation of my calculations”, despite all the above references to minimally displaced fracture throughout the MAC, the MA has noted that he has awarded 10% WPI according to Table 3.2 on the basis ‘of a moderate tibial plateau fracture’. The MA has failed to give reasons for choosing this more significant grade.
The MA should refer to the other medical opinions before him and provide brief reasons why his opinion differs. The MA simply noted that his impairment assessment was “almost identical” to that of Dr Bodel, the independent medical expert (IME) qualified on behalf of the respondent worker. The MA made no reference to the reports of Dr Stephens, the IME qualified on behalf of the appellant.
The Appeal Panel notes that in the various reports from Dr J G Bodel he confirms that the fracture was minimally displaced (MRI scan), and that in his supplementary report of 15 August 2019 he has elected to award 10% WPI on the basis of ‘…moderate degree of impairment in the region of the left knee in accordance with that Table…’. He seems to suggest that the ‘moderate’ refers to the degree of impairment rather than the radiological findings. This is incorrect.
As noted in the report of Dr A Stephen (orthopaedic surgeon) of 12 June 2020 notes the full range of movement including 150° of flexion, and in commenting on the investigations notes that in his opinion there was ‘minimal depression of the medial tibial condyle compared with the lateral. The plateau had healed’. He therefore elected to place the respondent worker in Grade ‘mild’ with 5% WPI.
The MA has to make an independent assessment on the day of the examination. This must be based on the correct criteria in the Guides.
The assessment of the grade of impairment in relation to a tibial plateau fracture is very specifically a radiological diagnosis based on the degree of involvement of the tibial plateau. This takes into account the extent of involvement of the weight-bearing area, the amount of displacement, and the amount of comminution.
As indicated in the radiological and hospital reports, this was a minimally displaced fracture, and in accordance with the correct criteria in the Guides, there should have been awarded 5% WPI for mild grade involvement, and there was no justification for assessing 10% WPI for a moderate grade involvement.
For a mild fracture the assessment is 5% WPI. The MA has added an additional 2% for involvement of the patellofemoral joint., about which there is no complaint on appeal, which would give 7% WPI for the left lower extremity. There is no complaint on appeal about the lumbar spine assessment of 6% WPI, then this would give a combined total of 13% WPI which results in the following assessment as a result of injury on 17 July 2018:
Body Part
Date of Injury
Chapter, page and paragraph number in WorkCover Guides
Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
% WPI
% WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality
Sub-total/s % WPI (after any deductions in column 6)
Left lower extremity(knee)
17/07/18
Chapter 3
Pages 13-23Chapter 17 Pages 523 to 564
7%
nil
7%
Lumbar spine
(consequential)17/07/18
Chapter 4
Page 24-29Chapter 15 Page 384
Table 15-3
6%
nil
6%
Total % WPI (the Combined Table values of all sub-totals)
13%
For these reasons, the Appeal Panel has determined that the MAC issued on 7 July 2022 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
Matter Number: | W778/22 |
Applicant: | Mark McGregor |
Respondent: | R Campbell & Sons Pty 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 Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Left lower extremity(knee) | 17/07/18 | Chapter 3 | Chapter 17 | 7% | nil | 7% |
| Lumbar spine | 17/07/18 | Chapter 4 | Chapter 15 | 6% | nil | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0