Richards v Henson Sawmilling Pty Ltd
[2023] NSWPICMP 305
•5 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Richards v Henson Sawmilling Pty Ltd [2023] NSWPICMP 305 |
| APPELLANT: | Dean Leroy Richards |
| RESPONDENT: | Henson Sawmilling Pty Ltd |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Dr Greg McGroder |
| MEDICAL ASSESSOR: | Dr Roger Pillemer |
| DATE OF DECISION: | 5 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Claim for additional whole person impairment (WPI) with regard to a total knee replacement; whether Medical Assessor (MA) failed to assess additional impairments for a 1 cm thigh discrepancy and a discrepancy in leg length; whether MA had failed to refer to or consider various clauses of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; Held – MA presumed to be conversant with the relevant guides and to properly apply them; 1 cm thigh discrepancy not available in diagnosis-based estimate cases such as knee replacements; failure to explain leg length discrepancy entitlement a demonstrable error; appellant re-examined; no leg length discrepancy found; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 October 2022 Dean Leroy Richards, 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, who issued a Medical Assessment Certificate (MAC) on 29 September 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is a reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 27 June 2022 the delegate of the President referred this matter to the Medical Assessor for a WPI assessment of injury to the left lower extremity and scarring (TEMSKI) caused on 8 June 2018.
On that date the appellant was operating an excavator in performing his duties regarding the measurements of logs to be delivered to the sawmill. This entailed him constantly climbing in and out of the excavator and on 8 June 2018 when he stepped out he stepped onto an obstructions that resulted in his left knee being hyperextended.
He was initially treated conservatively but it was determined that a knee joint replacement was required which occurred on 13 August 2019 with a fairly good result.
The Medical Assessor assessed 20% WPI for the injury to the left lower extremity and nil in respect of the scarring.
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.
The appellant did not seek to be re-examined by a Medical Assessor on the Panel, however the Panel was unable to reach a conclusion until a re-examination had been occasioned as, for reasons given below, a demonstrable error has been identified.
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.
Further medical examination
Dr Roger Pillemer of the Appeal Panel conducted an examination of the worker on 24 April 2023 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate 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 which 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 grounds of appeal concerned the application of the guidelines to Mr Richards’ condition.
THE MAC
There was no challenge to the assessment of 20% WPI, which is explained at [10b] of the MAC.
In his findings on examination at [5], the Medical Assessor said:
“The left leg was 2cm longer than the right. This was checked on several occasions and is confirmed. I was unable to find any similar measurements in the clinical file. The left thigh was 1cm less in circumference than the right. The calves had the same circumferences.”
In his Table 2 Certificate, the Medical Assessor cited page 21, Table 17-35 of the Guides, and page 547, Table 17-33 of AMA 5.
SUBMISSIONS
In a most thorough set of submissions, it was submitted that the Medical Assessor had fallen into error in seven respects, which were summarised under three headings:
1. He neither referred to nor took account of Chapters 3.3, 3.4, 3.5 or 3.7 of the Guides.
2. He failed to consider and apply Table 17-2 of AMA 5 or Chapter 3.9 and Table 17-4 of the Guides regarding leg length discrepancy.
3. He failed to consider and apply Chapter 3.14 and Table 17-6 of the Guides.
Chapters 3.3, 3.4, 3.5 or 3.7 of the Guides
Mr Richards submitted that when the reasons as a whole were considered, and having regard to the references made in the Table-2 Certificate, that the Medical Assessor neither referred nor took into account these guidelines.
It was also submitted that the Medical Assessor did not use the “mandatory” worksheet in Chapter 3.5.
We were referred to Peko-Wallsend, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Insurance Australia Ltd t/as NRMA Insurance v Milton [2016] NSWCA 156 in that regard.
Table 17-2 of AMA 5 or Chapter 3.9 and Table 17-4 of the Guides
This heading concerned a finding by the Medical Assessor of a leg length discrepancy whereby the left leg was longer than the right leg by 2 cm. Chapter 3.9 entitled Mr Richards to an additional 3% WPI, it was submitted.
In failing to consider or apply this provision the Medical Assessor had fallen into error in a number of ways which was described by the appellant.
Chapter 3.14 and Table 17-6 of the Guides
These guidelines concerned a further finding by the Medical Assessor that there was a 1cm circumference difference between the left and right thighs, the left side being the lesser.
Mr Richards submitted that he was entitled to a further 2% WPI pursuant to these provisions, and the Medical Assessor had failed to consider or apply them. This, too, constituted error.
Legal principles
The appellant referred us to various well-known authorities regarding the application of incorrect criteria, demonstrable error and the requirement to give reasons.
It followed, Mr Richards argued, that there should at least be a further 3% WPI awarded for the left leg discrepancy. It would seem, with respect, that his submissions argued that there should also have been an additional 2% WPI awarded for the thigh circumference difference.
Respondent’s submissions
Henson Sawmilling Pty Ltd (the respondent) submitted that as the appellant did not seek a re-examination, one was not required and that the Medical Appeal Panel review should be done on the papers. No authority was provided for such an assertion.
The respondent relied on State of New South Wales (Department of Education) v Kaur[1] regarding the function of a Medical Assessor.
[1] [2016] NSWSC 346.
As to the submission that the Medical Assessor was bound to use a worksheet, the respondent noted that the terms of the guideline were that the assessor “may” use the worksheet.
As to Mr Richards’ submissions about the left leg length and thigh circumference discrepancies, the respondent conceded that whilst impairment ratings were available, they were not “required” by Table 17-2 of AMA 5. It was submitted that although the Medical Assessor noted a leg length discrepancy, Chapter 3.8 provided that such discrepancies should only be assessed where they could be clinically determined, and the Medical Assessor said that he had been unable to find any similar measurements in the clinical file.
Neither Dr Hopcroft nor Dr Breit, the respondent submitted, provided any measurement of leg length.
We also were referred to Table 17-2(b) of AMA 5, which that states that the preferred clinical method of determining a length discrepancy is teleroentgenography which method was also repeated in Chapter 3.8 of the Guides. It was submitted that although it was open to Dr Anderson to undertake an assessment of leg length impairment in accordance with Table 17-4, he was not obliged to do so.
As to the altered circumference of the left thigh, the respondent submitted that Table 17-2 of AMA 5 provided that the assessment of impairment of muscle atrophy in accordance with Table 17-6 of the Guides, and an assessment of diagnoses-based estimates such as a joint replacement could not be combined. The Medical Assessor would have fallen into error had he attempted to do so.
DISCUSSION
It is a fundamental premise of the system whereby lump sum entitlement is assessed by qualified Medical Assessors, that they be conversant with the guidelines under which they make their assessment. Indeed, medical practitioners cannot be appointed to the position of Medical Assessor unless they undergo the requisite training. It may therefore be presumed that a Medical Assessor has that familiarity with the applicable guidelines that is relevant to his specialty that the training has provided. We note that the Medical Assessor in the present case has considerable experience in applying the guidelines to cases of this nature.
Accordingly, the assumption that the Medical Assessor did not consider or apply the various guidelines that Mr Richards referred to, simply because the Medical Assessor did not refer to them, cannot without more, be accepted. To be precise, the following guidelines the appellant relied on a Medical Assessor may be presumed to properly apply, without any necessity for them to be specifically referred to:
“Chapter 3.3 – There are several different forms of evaluation that can be used, as indicated in AMA5 sections 17.2b to 17.2n (pp 528–54). AMA5 Table 17-2 (p 526) indicates which evaluation methods can be combined and which cannot. It may be possible to perform several different evaluations, as long as they are reproducible and meet the conditions specified below and in AMA5. The most specific method of impairment assessment should be used. (Please note that in Table 17-2, the boxes in the fourth row (on muscle strength) and seventh column (on amputation) should be closed boxes x rather than open boxes ).
Chapter 3.4 - It is possible to use an algorithm to aid in the assessment of lower extremity impairment (LEI). Use of a worksheet is essential. Table 3.5 at the end of this chapter is such a worksheet and may be used in assessment of permanent impairment of the lower extremity.
Chapter 3.5 - In the assessment process, the evaluation giving the highest impairment rating is selected. That may be a combined impairment in some cases, in accordance with the AMA5 Table 17-2 ‘Guide to the appropriate combination of evaluation methods’, using the Combined Values Chart on pp 604–06 of AMA5.
Chapter 3.7 - AMA5 Table 17 – 2 (P5 to 6) AMA5) [sic] needs to be referred to frequently to determine which impairments can be combined and which cannot. The assessed impairment of a part or region can never exceed the impairment due to amputation of that part or region. For the lower limb, therefore, the maximum evaluation is 40% WPI, the value for proximal above-knee amputation.”
It is thus irrelevant that the Medical Assessor did not refer to these guidelines in his Table 2 Certificate, as it may be presumed that he has done so, unless any specific allegation is made with respect to their actual application. The appellant made only a general submission that if the Medical Assessors reasons were read “as a whole” then “it is clear” that he (relevantly) did not take these guidelines into account. There is no need for a Medical Assessor to specifically refer to them, and indeed such an obligation would create a needless and onerous burden.
Similarly, although the appellant accurately described the entitlement given for a 1cm thigh circumference discrepancy at Chapter 3.14 as 2%, and also accurately observed that the Medical Assessor had found such a discrepancy to exist, Mr Richards failed to realise that Table 17-2 of AMA 5 provides that no such entitlement is available where the assessment is a diagnosis-based estimate, which a knee replacement is. At the outset of these reasons we referred to Vegan, and we would observe that a detailed explanation of the criteria applied by medical professionals in reaching a professional judgement does not have to be provided.
As indicated, however, if there is a specific reason for alleging that such a guideline has been breached, then that is another matter. A case in point is the appellant’s submission regarding Chapter 3.4, which Mr Richards alleged was “mandatory.” Such may be conceded from the wording of the guideline, but there is no requirement for a Medical Assessor to utilise Table 3.5 to do so. Still less is there any requirement for a Medical Assessor to attach his worksheet to his MAC. In the experience of this Panel, some Medical Assessors choose to do so, and some do not.
It is with reference to Mr Richards’ submission regarding the applicability of Chapter 3.9 (and indeed Chapter 3.8) however that we have found a demonstrable error. The two clauses relate to the subject “leg length discrepancy.” They provide:
“Chapter 3.8 - When true leg length discrepancy is determined clinically (see AMA5 Section 17.2b, P528), the method used must be indicated (e.g. tape measure from anterior superior iliac spine to the medial malleolus). Clinical assessment of leg length discrepancy is an acceptable method, but if full-length computerised tomography films are available, they should be used in preference. Such an examination should not be ordered solely for determining leg lengths.[2]
Chapter 3.9 - This clause contains Table 17-4 and gives the WPI available for the different leg length discrepancies. A 2- 2.9cm discrepancy gives an entitlement of 3% WPI.”
[2] AMA 5, p 528 is concerned with the clinical procedure in measuring leg length.
The Medical Assessor noted a 2cm leg length discrepancy, which he had checked on “several occasions.” He then said that he had been unable to find any similar measurements in the clinical file. This observation we do not find it to be relevant to the issue, as it would not necessarily follow that because such a discrepancy had not hitherto been observed, it was therefore not as a result of the knee joint replacement, notwithstanding that it occurred on 13 August 2019. The Medical Assessor, having made such a finding, was required to make an adequate explanation why he had not given the additional WPI now argued for. In failing to do so he made a demonstrable error.
For that reason, a re-examination was arranged with Dr Pillemer. His report follows:
“REPORT OF THE EXAMINATION BY MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-W4551/21
Appellant: Dean Leroy RICHARDS
Respondent: Henson Sawmilling Pty Ltd
Examination Conducted By: Roger Pillemer
Date of Examination: 24 April 2023
1. The workers medical history, where it differs from previous records
I read Mr Richards the history obtained by the MA at the time of his consultation on 19 September 2022. Mr Richards agreed with the history as given.
He does say that he has also been complaining of pain in his left forefoot which he mentioned to previous doctors, but this does not seem to have been recorded (see below).
Mr Richards’ history was confirmed of having gone back to his occupation as an excavator operator and managing with this, but with some difficulty.
2. Additional history since the original Medical Assessment Certificate was performed
As noted Mr Richards informs me that for the past two years or so he has been aware of pain in the region of the metatarsal heads of his left foot and these symptoms are becoming progressively more painful. He says by the end of the week he is ‘very uncomfortable’, and he has difficulty walking barefooted, and even when he wears a very thin thong, this also aggravates his symptoms and he feels better when he wears his thick-soled boots.
The ongoing problems with his left lower limb are as described by his treating specialist’s history.
3. Findings on clinical examination
Mr Richards was an adult male in no obvious discomfort who undresses and dresses without a problem, walks without an obvious limp and is able to walk on heels and toes. He has a good range of back movement, and there is no neurological deficit in his lower limbs.
The findings noted by the MA were confirmed, apart from the suggestion of the left leg being 2cm longer than the right leg.
Please note that today leg lengths were checked very carefully both in the standing and in the recumbent position, and in my opinion the leg lengths were equal.
Mr Richards does have localized tenderness to compression of his second and third web spaces in the region of the metatarsal heads, and compressing his foot from side-to-side at the same time as pressure is applied to the intermetatarsal regions, tends to aggravate his symptoms. These features are very suggestive of possible Morton’s neuromas (interdigital neuromas). I would not relate these findings to his knee problems.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Richards has not had any further investigations carried out.”
The Panel adopts Dr Pillemer’s report.
It can be seen that in fact there was no leg length discrepancy, as had been found by the Medical Assessor. This is consistent with the absence of any such finding by either Dr Breit or Dr Hopcroft, the medicolegal experts retained on either side of the record.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 September 2022 should be confirmed.
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