Reichel v Liquip International Pty Ltd
[2022] NSWPICMP 42
•10 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Reichel v Liquip International Pty Ltd [2022] NSWPICMP 42 |
| APPELLANT: | Bryan Reichel |
| RESPONDENT: | Liquip International Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore |
| DATE OF DECISION: | 10 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) should have assessed him as having ‘severe’ pain which would give 0 points as per the Table, and hence place him in the poor category with 30% whole person impairment (WPI); the appellant does not challenge the one-tenth deduction made by the MA; Panel accepted that the MA’s reporting of present symptoms was fairly brief and that he did not refer specito all of the medical evidence; however, the totality of the evidence supported the MA’s final assessment; Held- Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 December 2021 Bryan Reichel (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 23 November 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 pursuant to s 327(3)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and
· the MAC contains a demonstrable error pursuant to s 327(3)(d) of the 1998 Act.
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.
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 consider that we have sufficient evidence before us to enable us to determine the appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the MA should have assessed him as having ‘severe’ pain which would give 0 points as per the Table, and hence place Mr Reichel in the poor category with 30% whole person impairment (WPI). The appellant does not challenge the one-tenth deduction made by the MA.
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 respondent was referred to the MA for assessment of WPI in respect of an injury to his left lower extremity (knee) on 5 December 2016.
After setting out details of the injury, the MA added:
“He was treated with physiotherapy and an MRI scan was performed on 6 January 2017. The scan revealed a complete full thickness acute tear of the anterior cruciate ligament with localised impaction bone bruising. There was also a small tear of the lateral meniscus posterior horn at the meniscofemoral ligament region. There was also a small parrot-beak tear of the lateral meniscus anterior horn. There was a macerated complex tear of the medial meniscus posterior horn with a fragment still attached, which had flipped into the intercondylar notch. There were also horizontal cleavage tears on the undersurface of the medial meniscus. There was a full thickness chondral fissure of the medial compartment as well as in the patellar apex…
Surgery was performed on 20 March 2017 [by Dr Nagamori] in the form of a left anterior cruciate ligament reconstruction utilising hamstring graft and Endo button fixation. He also underwent a partial medial and lateral meniscectomy. The patellofemoral joint revealed widespread Grade 3 changes with Grade 1 – 2 changes in the medial joint and Grade 1 changes in the lateral component. Following post operative rehabilitation Mr Reichel reported that there was no improvement in his anterior knee pain.
A further MRI scan of the left knee was performed on 26 September 2017 showing a stable anterior cruciate ligament reconstruction which was intact. There was evidence of the previous meniscal surgery and the chondral wear in the medial and lateral tibiofemoral compartments as well as the patellofemoral compartment.
Dr Nagamori last reviewed Mr Reichel on 31 January 2018. There was still continuing anterior knee pain both day and night and the inability to squat or kneel.
There was a subsequent referral for a second opinion to see Dr Edward Graham, orthopaedic surgeon on 21 May 2018. A further scan of the knee was performed. An intra-articular steroid injection was performed with no effect in June of 2018. The July 2018 MRI scan of the left knee revealed the continuing cartilaginous damage on the articular surface resulting in further arthroscopic surgery to the left knee under the care of Dr Graham on 22 February 2019. Again there was no resolution of the symptoms. Subsequently Dr Graham performed a left total knee replacement in the Westmead Private Hospital on 31 July 2019. Unfortunately this surgery has also not assisted.
There was continued review because of increased pain. A CT scan was performed revealing the prosthesis in good order and blood tests excluded infection.
There was a referral in September 2020 to see Dr Alan Nazha, pain specialist, who recommended a nerve block. There was also a further opinion sought from Associate Professor James Sullivan, orthopaedic surgeon, on 11 March 2021 because of the continuing pain following what appeared to be a radiologically successful knee replacement. Associate Professor Sullivan again reviewed the blood tests, which were normal. He reviewed an x-ray of both hips which established the presence of early osteoarthritis in both hips and the x-ray of the left knee revealed a total knee replacement with no apparent loosening or sign of complication. The knee, however, remains stable with a full range of extension and flexion to 95o, according to Associate Professor Sullivan’s report.”
The MA then added:
“Mr Reichel is under no formal physical treatment at the present time. He is no longer working but is able to drive a car. He continues to take significant pain relief including Arcadia daily and Panadeine Forte up to 8 tablets a day to help with the anterior knee pain.
Mr Reichel reports no symptoms in his right knee or indeed his right or left hip. He reports continuing anterior discomfort over the left knee, the site of the knee replacement. The pain is present both day and night and is not improving with the passage of time…
Mr Reichel states he has difficulty walking up and down stairs and on uneven ground and struggles with long distances. He is only able to drive short distances. He is unable to help with the regular heavy housework. He now takes 3 to 4 weeks to mow his lawn. He states that he wakes up at night with pain and continues under the care of the local practitioner.”
Findings on physical examination were reported as follows:
“Mr Reichel…stands 175 cm tall and states he weighs 124 kg. He is trying to lose weight. He does not use walking appliances. He walks with a slightly antalgic gait because of pain in the left knee.
On examination of the operation scar, it measures 14 cm in length and is consistent with the surgery performed. It is not tethered to the deeper structures and only mildly atrophic and is visible when wearing shorts. He sits comfortably throughout the interview.
At the time of today’s assessment Mr Reichel demonstrates a negative straight leg raising test on the right and left side in the supine and sitting position. The left thigh and the left calf at maximal circumference are 1.0 cm less than the right side. He has equal leg length.
He demonstrates an active measured range of motion from 0o of extension of the right and left knee to 105o of flexion on the left side and 130o on the right side. The right knee is stable with no evidence of local discomfort. Both lower extremities show no abnormality of skin appearance. There is no evidence of local heat or redness and no effusion in either knee.
All deep tendon reflexes of the right and left lower extremities are symmetrically present and equal. There is no sensory abnormality in the lower extremities and no abnormalities of tone. He has a full symmetrical range of movement referencing power of the right and left great toe in flexion and extension and subtalar joint eversion and inversion.
On specific examination of the right and left knee he demonstrates a 0o to 105o range of motion. There is a less than 5 mm anteromedial movement and 5o of mediolateral movement. He has no evidence of flexion contracture and no evidence of an extension lag. There is a 5o valgus alignment of the left knee with 3o valgus alignment of the right knee. Again, he reports no pain relating to his right knee nor indeed his right or left hip.”
After setting out details of the radiological material he had before him, the MA said:
“Mr Reichel injured his left knee some 20 years ago resulting in arthroscopic intervention, the details of which are not available. He states he made a full recovery and was able to return to his normal work.
He had a significant injury at work on 5 December 2016 to his left knee when he slipped from a ladder and had an acute flexion and possible twisting injury resulting in an anterior cruciate ligament rupture along with injury to the medial and lateral meniscus.
He underwent two arthroscopic procedures with no improvement in the clinical status with retained significant anterior knee pain and a feeling of instability.
He then underwent an anterior cruciate reconstruction which, according to Mr Reichel, has resulted in the knee feeling stable but the anterior knee pain persists. The pain is present all of the time, both day and night, and is not alleviated by the passage of time. He states that his weight has increased to 124 kg.
He has been unable to return to work and he is very despondent about his future.”
The MA assessed 20% WPI from which he deducted one-tenth for Mr Reichel’s pre-existing condition leaving a total WPI of 18%.
The MA assessed “moderate continual pain” which attracts 10 points with reference to AMA Table 17.35 and also the current Guidelines. He added: “Reference is made to Table 17.33, page 547 AMA 5 – total knee replacement with 51 points equals 20% whole person impairment.”
The MA then turned to consider the other medical opinions and said:
“I read with interest the report prepared by Dr Mohammed Assem, rehabilitation specialist, on 23 September 2020. Dr Assem noted range of motion from 0o to 90o of flexion with evidence of a flexion contracture which was not evident at the time of my assessment. There was also no extensor lag at the time of my assessment. Dr Assem utilises Table 17.35 and the Guidelines and noted 30% whole person impairment and applied a one-tenth deduction for Section 323 – 27% whole person impairment.
I read the various reports prepared by the MC Medical Centre Physiotherapy group from early 2017 to September 2017. The reports note continuing infrapatellar left knee pain suggesting a strong patellofemoral component as the site of the pain.
I read the report prepared by Associate Professor James Sullivan on 11 March 2021, when asked for a more formal opinion. He essentially verified with scans and x-rays along with blood tests that there was no evidence of post operative infection and that the prosthesis was stable and well aligned.
Reports of Dr Edward Graham on 21 May 2018 and 28 September 2020 set out his treatment of Mr Reichel. It is noted that on 2 May 2019 he did discuss with Mr Reichel a requirement for a future knee replacement. It is also noted that permission was granted by the insurance group on 7 June 2019 and replacement surgery was then performed on 31 July 2019.
The reports of Dr Jun Nagamori, knee surgeon, extend from 14 February 2017 to 31 January 2018. These reports set out his reasoning for proceeding to reconstruction. He notes that 6 months following reconstruction Mr Reichel was still describing anterior knee pain with stairs and on uneven ground, suggesting a retropatellar pathology. The MRI scans did reveal considerable retropatellar condylar damage.
The report of Dr Robert Breit, orthopaedic surgeon, was prepared on 8 December 2020. Dr Breit demonstrated flexion to 90o and also noted that there was no extensor lag. He noted that there was less than 5o of fixed flexion deformity. At the time of his assessment he noted 20% whole person impairment, using the Guidelines and Table 17.33 AMA 5. Dr Breit also applied the one-tenth rule, referencing Section 323 with a final quantum of 18% whole person impairment. On Page 6 of his report he demonstrates with a photograph the nearly full extension relating to Mr Reichel’s left knee.”
The thrust of the appellant’s submissions is that the MA failed to have due regard to the nature and extent of his symptoms and disabilities.
The appellant submits as follows:
(a) The MA failed to properly consider the appellant’s statement wherein he said:
“I also wake up during the night in pain and find that I need to walk around the house and stretch my left knee. I wake up twice in the night on average and struggle to fall back a sleep because of the pain.”
(b) The MA does not deal with the reports of the pain specialist Dr Nazha. Medical reports of Dr Nazha dated 26 July, 9 September and 14 September 2021 all confirm significant levels of pain and the difficulties the appellant is having coping with pain.
(c) Dr Nazha records that in addition to the treatment he has provided that included pulsed RF ablation to treat the complaints of pain, the applicant had also been referred to a psychiatrist, was engaged in a psycho-educational pain management program at Westmead Hospital and had been referred to a chronic pain psychologist, Susan Gibson.
(d) Given the issue the MA needed to address in assessing the application of the Table was ‘pain,’ the significance of the above needed to be addressed by the MA and the failure to do so constituted error.
(e) It is observed that Dr Assem also applied a moderate assessment to pain levels, however, that assessment was 12 months prior to the treatment described by
Dr Nazha in his reporting to the general practitioner (GP) and insurer.(f) It is notable that the treatment by and reporting from Dr Nazha post-dated the opinion of Dr Assem wherein he assessed a moderate level of pain. Clearly there has been a significant deterioration in the claimant’s condition as confirmed by the MA in the MAC.
(g) Dr Sullivan (in March 2021) in reporting to the GP, confirms that the knee is painful and that the pain persists at rest and with activity.
(h) The application of a ‘severe’ rather than ‘moderate’ level to the assessment of pain would equate to a 30% WPI rather than a 20% WPI applied by the MA.
We accept that the MA’s reporting of “present symptoms” was fairly brief. He simply said:
“Mr Reichel reports no symptoms in his right knee or indeed his right or left hip. He reports continuing anterior discomfort over the left knee, the site of the knee replacement. The pain is present both day and night and is not improving with the passage of time.”
Unfortunately the MA has not really given sufficient reasons for suggesting that Mr Reichel is complaining of moderate continual pain in the knee as evidenced in his MAC.
Having said that, all the available evidence in our view does in fact back up the MA’s assessment of moderate continual pain with 10 points as evidenced, for example, by the statement of Mr Reichel dated 23 May 2021 where he said:
“To date, I cannot walk or stand for more than 20 minutes without aggravating my discomfort and pain… I can drive an automatic car but struggle to drive for more than 1.5 hours without experiencing significant strain and discomfort.”
These statements would certainly not justify placing Mr Reichel in the “severe” pain category.
We agree that the MA did not address the reports of Dr Nahza.
An assessor is not required to refer to every piece of evidence before him consistent with principles developed from administrative law and judicial review generally.
As Campbell J said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:
“It is plainly unnecessary for a judge to refer to all the evidence…or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend…upon the circumstances of the individual case…”
We have had regard to the various reports of Dr Nahza.
In his report of 26 July 2021, Dr Nazha notes “Bryan has been provided with a TENS machine and for the first couple of weeks was finding this extremely helpful in relation to his pain…”.
A TENS machine (Transcutaneous Electrical Nerve Stimulation) can only be slightly effective, as it sends a very small electric current through the skin, and most doctors do not even prescribe these. It cannot help with severe pain.
We of course accept that Mr Reichel experiences the pain he has described, but in light of our comments above regarding the TENS machine, together with the other evidence to which we have referred, in the circumstances of this particular case, we do not accept that his pain could be described as “severe” having regard to AMA5 Table 17-35.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 2021 should be confirmed.
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