Reyes-Firmani v Skilltech Consulting Services Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Reyes-Firmani v Skilltech Consulting Services Pty Ltd & Ors [2023] NSWPICMP 665
APPELLANT:	Monita Reyes-Firmani
RESPONDENT:	Skilltech Consulting Services Pty Ltd
APPEAL PANEL
MEMBER:	John Isaksen
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	13 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Appellant worker alleged error by Medical Assessor (MA) in a one-third deduction of impairment for an injury to the right knee; reference to Mahenthirarasa v State Rail Authority of NSW & Ors and Vannini v Worldwide Demolitions P/L on whether Appeal Panel has no more than a difference of opinion to that of the MA; several factors identified which placed the MA’s assessment at odds with the available evidence and found to be a demonstrable error; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 September 2023 the appellant, Monita Reyes-Firmani, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 August 2023.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains demonstrable errors.
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 grounds 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).

RELEVANT FACTUAL BACKGROUND

The appellant worker, Monita Reyes-Firmani, sustained an injury to her right knee on
1 June 2018 while employed as a meter reader with the respondent employer, Skilltech Consulting Services Pty Ltd. The appellant was reading meters at houses in Batehaven when she slipped on some leaves and fell heavily on her right knee. She felt immediate pain in her right knee and attended Batemans Bay Hospital.
The appellant came under the care of Dr Cossetto, orthopaedic surgeon. In his initial report dated 13 June 2018, Dr Cossetto records that an MRI scan dated 4 June 2018 “showed the presence of a medial meniscal tear with a mild to moderate degree of medial compartment chondromalcia and there was an impaction type subchondral fracture of the medial tibial plateau”.
Dr Cossetto performed an arthroscopic partial medical meniscectomy with retropatellar chondroplasty on 12 November 2018.
Dr Cossetto reviewed the appellant on 2 December 2020 and in a report of that same date writes that a recent MRI scan “showed endstage post traumatic medial compartment osteoarthritic wear”. Dr Cossetto concludes:
“Monita is suffering from a post-traumatic work related right knee osteoarthritis. The deterioration has resulted from the work related medial meniscal tear which required medial meniscectomy.”
Dr Cossetto recommended a right total knee replacement, and this was performed on
20 May 2021.
In a report dated 2 July 2021, Dr Cossetto writes that the right knee is stable and an X-ray showed a well seated prosthetic knee joint with no evidence of any complication.
Dr Cossetto performed a manipulation of the knee under anaesthesia on 12 October 2021.
The last report from Dr Cossetto which is in evidence and dated 25 February 2022 records that the right knee is ligamentously stable and there was noticeable decreased quadriceps tone.
The appellant made a claim for 15% whole person impairment (WPI) as a result of the injury sustained on 1 June 2018 which is based upon an assessment made by Dr Ho, orthopaedic surgeon, in a report dated 7 October 2022.
Dr Ho assessed the appellant as having a good result from her total knee replacement, which attracts 15% WPI and deducts one-tenth for pre-existing degenerative changes which he considered “were obvious” in the patellofemoral joint and the medical compartment from the MRI scan taken soon after the work injury. That takes the WPI for the right knee to 14% and Dr Ho adds 1% WPI for scarring (TEMSKI).
Dr Ho writes that the appellant “suffered an injury to the knee and required a knee replacement and had a good result”.
Dr Lee, orthopaedic surgeon, provided reports at the request of the respondent dated
18 April 2023 and 30 May 2023.
In his report dated 18 May 2023, Dr Lee diagnosed the appellant as having aggravation of asymptomatic pre-existing degeneration of the right knee and a sprain of the right ankle.
Dr Lee sets out point ratings for a knee replacement in accordance with the Guidelines and assesses the appellant as having a fair result from a total knee replacement. He assessed the appellant as having 20% WPI for the right knee but deducts one-tenth for a pre-existing condition, which he opines is an “appropriate deduction”. A further 1% WPI is added for scarring.
In a further report dated 30 May 2023, Dr Lee opines that the pain in the appellant’s right knee might improve, which would then change the result of the knee replacement from fair to good. He writes that the impairment will be 15% x 0.9 to reach 14% WPI “if she improves”.

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 even though the Appeal Panel found error, there was enough material available to make a determination.

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 Medical Assessor records that the appellant denied any problems with her right knee prior to the incident on 1 June 2018.
The Medical Assessor sets out point ratings for a knee replacement in accordance with the Guidelines and assessed the appellant at 97 points, which amounts to a good result from knee replacement surgery and an assessment of 15% WPI.
The Medical Assessor then opines that the total knee replacement was performed due to the presence of pre-existing right knee arthritis. He writes that the presence of arthritis was asymptomatic prior to the incident on 1 June 2018, but that the MRI scan dated 4 June 2018 revealed moderate arthritis of the medial compartment and osteoarthritis of the patellofemoral joint. He opines that the injury sustained on 1 June 2018 was a knee strain which resulted in symptoms and the need for surgical treatment. The Medical Assessor then writes:
“The initial treatment was a right knee arthroscopy and then due to ongoing symptoms a total knee replacement. The surgical procedure of a right total knee replacement would not have been required but for the pre-existing condition of right knee arthritis. Thus, the presence of a pre-existing arthritis contributed substantially to the final impairment. I consider that a 1/10th deduction is at odds with the available evidence and consider that a 1/3 deduction is more appropriate, and in line with the available evidence. 15% - 5% = 10% WPI.”
The Medical Assessor also assessed 1% WPI for scarring to the right knee.
The Medical Assessor again addresses the pre-existing condition of the right knee in Part 11 of the MAC and writes:
“The presence of right knee arthritis was not caused by the workplace injury. The injury was a minor strain and while it did not alter the underlying pathology, the knee injury resulted in the presence of symptoms and the need for surgery.”
Other parts of the MAC 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.

The appellant’s submissions

The appellant submits that the MAC contains the following demonstrable errors:
(a)    the total knee replacement surgery was due to the presence of pre-existing arthritis;
(b)    there was an error in applying a 30% deduction under s 323 of the 1998 Act, and
(c)    the Medical Assessor failed to properly consider the reasons of Dr Ho and Dr Lee in respect to their deductions pursuant to s 323 of the 1998 Act.
The appellant submits that both Dr Ho and Dr Lee opine that she required a total knee replacement as a result of the work injury which caused a meniscal tear and aggravation of pre-existing osteoarthritis, whereas the Medical Assessor makes a different finding that the need for the total knee replacement was due to the presence of the pre-existing arthritis only. The appellant submits that the Medical Assessor failed to provide reasons to support this opinion and that this opinion is at odds with all the other evidence before him.
The appellant submits that the Medical Assessor failed to provide reasons as to how the pre-existing arthritis, which the Medical Assessor accepts as being asymptomatic before the incident on 1 July 2018, contributes to her impairment. The appellant relies upon the decision of Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole), wherein Schmidt J said that consideration must be given to the actual consequences of the earlier injury or pre-existing condition and whether the earlier injury or condition contributed to the permanent impairment as a result of the work injury.
The appellant submits that the deduction of one-tenth of the impairment of the right knee which is made by both Dr Ho and Dr Lee is not at odds with the available evidence, and it is the Medical Assessor who has failed to cite any evidence which supports his opinion of a one-third deduction.

The respondent’s submissions

The respondent refers to the MRI scan of the right knee which is taken just three days after the work injury which revealed moderate arthritis of the medial compartment and osteoarthritis of the patellofemoral joint and that this finding of “severe arthritis” caused or contributed to the appellant’s permanent impairment, so that a one-third deduction was appropriate.
The respondent relies upon the two decisions of Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 and [2021] NSWSC 616 (Marks) that a vulnerability arising out of a pre-existing dormant condition can be found to contribute to current impairment for the purposes of applying a s 323 deduction. The respondent submits that Marks confirms that the medical evidence should be considered objectively to determine whether there remains a residual effect on permanent impairment from an earlier injury or condition.
The respondent submits that it was open to the Medical Assessor to make the s 323 deduction having regard to the history, the imaging findings and his clinical examination, and that no demonstrable error has occurred.
The respondent relies upon what was said by Malpass AJ in Mahenthirarasa v State Rail Authority of New South Wales and Ors [2007] NSWSC 22 (Mahenthirarasa) wherein a description of ‘demonstrable error’ from the second reading speech for this legislation was endorsed by his Honour: “A demonstrable error would essentially be an error for which there is no information or material to support the finding – rather than a difference of opinion” (at [29]). The respondent submits the findings of the Medical Assessor are supported by the available evidence.

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.
Neither party to the dispute has challenged the assessment made by the Medical Assessor that the appellant has 15% WPI of the right lower limb on the basis that she has had a good result from her knee replacement surgery (Table 17.33 of AMA 5). The issue on appeal is the proportion of the deduction from that impairment that is due to a pre-existing condition in the appellant’s right knee and whether the one-third deduction made by the Medical Assessor amounts to a demonstrable error.
In Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 (Vannini), Gleeson JA (with Macfarlan agreeing) said at [86]:
“That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist.”
His Honour then said at [92]:
“… A finding as to the proportion of permanent impairment due to previous injury, pre-existing condition or abnormality involves matters of degree and impression. The applicable standard of the “proportion” of contributory contribution under s 323 permits some latitude of opinion such as to admit of a range of legally permissible outcomes. That is not to say that such a conclusion is necessarily beyond review by an Appeal Panel on the ground of demonstrable error. However, the resolution of that question should be left to a case where it is dispositive.”
The Appeal Panel has found several factors in this dispute when added together leads to a conclusion that the MAC contains a demonstrable error in the deduction which has been made for a pre-existing condition.
Firstly, it is well accepted throughout the medical material that the appellant’s right knee was asymptomatic prior to the injury that she sustained on 1 June 2018. The appellant states that she never had an issue with her right knee before 1 June 2018. Dr Ho records that the appellant had no other major medical issues. Dr Lee records that the appellant had no previous injury to her right knee. The Medical Assessor records that the appellant denied any problems with the right knee before 1 June 2018 and opines that the “presence of arthritis was asymptomatic prior to the workplace injury”.
Secondly, although the Appeal Panel has not viewed the various scans of the right knee, the findings on the MRI scan taken three days after the incident of mild to moderate osteoarthritis at the medical compartment are not unusual for a person aged in their mid-fifties and of little clinical significance in the absence of previous symptoms in the right knee.
Thirdly, the Appeal Panel considers that considerable regard must be given to the findings and opinion of Dr Cossetto who monitored the condition of the appellant’s right knee from soon after the incident in June 2018 until he recommended total knee replacement surgery two and a half years later. Dr Cossetto opines that the appellant was suffering a post-traumatic work related right knee osteoarthritis and the deterioration of her right knee has resulted from the work related medial meniscal tear which required medial meniscectomy.
Fourthly, the Appeal Panel considers that consistent with the findings and opinion of
Dr Cossetto there has been a deterioration in the condition of the appellant’s right knee as a result of the work injury which has a significant impact on the impairment of the right lower limb. If the appellant did not sustain a meniscal tear in the work injury, then there would have been no need for the initial surgery. There was a deterioration in the right knee due to the effects of the injury and subsequent surgery which led to a total knee replacement.
Finally, both Dr Ho and Dr Lee only deduct one-tenth of impairment due to a pre-existing condition. Dr Ho opines that such a deduction is “obvious”, and Dr Lee opines that it is an “appropriate deduction”. The one-third deduction for a pre-existing condition by the Medical Assessor is at odds with those two opinions.
The Medical Assessor based the one-third deduction he made to his assessment of permanent impairment on the pre-existing arthritis contributing “substantially to the final impairment” and that the total knee replacement would not have been required but for that pre-existing arthritis.
In Fire & Rescue NSW v Clinen [2013] NSWSC, Campbell J said at [32]:
“…it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s. 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.”
The Appeal Panel considers that the Medical Assessor has not explained why the appellant’s pre-existing arthritis contributed “substantially” to her impairment when that opinion is placed against the several factors which the Appeal Panel have identified and which should be considered in the assessment of the appellant’s permanent impairment.
The Appeal Panel is aware, as stated in Mahenthirarasa, that merely having a difference of opinion with the conclusion reached by the Medical Assessor is not sufficient to establish that a demonstrable error has occurred. This was endorsed by Gleeson JA in Vannini at [87].
However, the Appeal Panel considers that the conclusion reached by the Medical Assessor that the appellant’s pre-existing arthritis contributed substantially to the final impairment cannot be sustained and amounts to a demonstrable error when that conclusion is placed against the several factors which we have outlined in this decision and which supports a finding that a substantial amount of the appellant’s impairment is as a result of her work injury.
The Appeal Panel considers that the appellant being asymptomatic and having mild to moderate osteoarthritis before her work injury, along with the findings and opinion of the treating specialist that the appellant then suffered from post-traumatic work related osteoarthritis, supports a deduction of no more than one-tenth. The Appeal Panel considers that this is consistent with all the available evidence which includes the opinions of Dr Ho and Dr Lee.
For these reasons, the Appeal Panel has determined that the MAC issued on
30 August 2023 should be revoked, and a new MAC 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:	W4619/23
Applicant:	Monita Reyes-Firmani
Respondent:	Skilltech Consulting Services 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 Medical Assessor Todd Gothelf 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 (knee)	1/6/18	17-35	15%	1/10	14%
2.Scarring (TEMSKI)	1/6/18	14.1	1%	0	1%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2023] NSWPICMP 665

13 December 2023