Secretary, Department of Education v Allan

Case •

[2023] NSWPICMP 496

•

5 October 2023
DETERMINATION OF APPEAL PANEL
CITATION: Secretary, Department of Education v Allan [2023] NSWPICMP 496
APPELLANT: Secretary, Department of Education
RESPONDENT: Rosemary Allan
APPEAL PANEL
MEMBER: Marshal Douglas
MEDICAL ASSESSOR: Mark Burns
MEDICAL ASSESSOR: Neil Berry
DATE OF DECISION: 5 October 2023
CATCHWORDS: 

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred and, or alternatively, applied incorrect criteria with respect to assessment of worker’s permanent impairment from injury to knee; whether MA erred by finding that no proportion of worker’s permanent impairment was due to a pre-existing condition; Appeal Panel held MA erred with respect to his assessment of permanent impairment from worker’s knee injury and Appeal Panel called for the production of the films of X-rays so that it could correct the error; Appeal Panel found the MA did not err with respect to the section 323 issue; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 29 June 2023 the Secretary of the Department of Education (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 June 2023.

  2. The appellant relies on the following grounds for 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, and

    ·        the MAC contains a demonstrable error.

  3. The delegate is satisfied that, on the face of the application, at least one ground for 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.

  4. Rule 128 of the Personal Injury Commission Rules 2021 (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.

  5. 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

  1. Rosemary Allan, the respondent, worked as a visual arts teacher at the Pittwater High School at Mona Vale. On 5 December 2019 she was walking across the playground when she tripped over an elevated concrete slab, falling on her left knee and twisting her right knee. She suffered pain in both knees. She was initially treated conservatively. On
    23 June 2022 she had a total knee replacement done by orthopaedic surgeon Dr Julian Yu.

  2. On 17 August 2022, at the request of her solicitors, Ms Allan was examined by orthopaedic surgeon Dr Yuk Kai Lee. In a report of that date Dr Lee advised the respondent’s solicitors he assessed the respondent had 22% whole person impairment (WPI) from her injury.

  3. Dr Lee advised that his assessment comprised 14% WPI relating to the respondent’s right lower extremity, 7% WPI relating to her left lower extremity and 2% WPI relating to scarring. With respect to his assessment relating to the respondent’s right lower extremity, Dr Lee advised he assessed the respondent’s total impairment was 15% WPI but he made a deduction of 10% for “some pre-existing degeneration”. With respect to the assessment of the respondent’s impairment of her left lower extremity, Dr Lee advised that he assessed the respondent’s total impairment was 8% WPI but he again made a deduction of 10% on account of pre-existing degeneration in her left knee. Dr Lee further advised that a “x-ray showed medial joint space narrowed to 2mm”, and that is why he assessed she had 8% WPI in her left knee. It is apparent to the Appeal Panel from the content of Dr Lee’s report, specifically that which he set out under the heading “investigation”, that the X-ray to which he referred was an X-ray of both knees done on 23 June 2022 which Dr Lee recorded in his report was reported to reveal “OA left knee medial compartment <2mm”.

  4. Relying on Dr Lee’s report, the respondent’s solicitors wrote on 28 October 2022 to the appellant’s insurer advising it that the respondent claimed compensation from it in the amount of $58,750 for 22% WPI.

  5. The insurer thereupon arranged for the respondent to be examined on 11 January 2023 by orthopaedic surgeon Dr Robert Breit. Dr Breit in a report of that date addressed to the insurer advised that he assessed the respondent had 11% WPI resulting from her injury. He advised that his assessment comprised 2% WPI relating to the respondent’s left lower extremity, 8% WPI relating to her right lower extremity and 1% WPI for scarring.

  6. With respect to his assessment of the respondent’s impairment relating to her right lower extremity, Dr Breit advised that “the overwhelming reason for the total knee replacement is the underlying arthritis, particularly in the patellofemoral region which pre-dates the injury and is related to her obesity”. Dr Breit indicated that because of that, half of the respondent’s impairment relating to her right lower extremity should be deducted when assessing her permanent impairment. He advised he assessed the respondent had achieved a good result from her right knee replacement and he considered that, in accordance with Table 17-33 of AMA5, her total permanent impairment relating to her right knee was 15% WPI. When the deduction he considered ought to be made due to the underlying arthritis, the result was 7.5% which rounded up to 8% WPI.

  7. With respect to the respondent’s left knee, Dr Breit indicated he rated the respondent’s impairment by reference to the second note of Table 17-31 of AMA5 on the basis of his finding the respondent had patellofemoral pain and crepitation with a history of direct trauma but without joint displaced narrowing on X-rays.

  8. On 24 March 2023 the insurer wrote to the respondent’s solicitors providing them with a copy of Dr Breit’s report and advising them that it offered to pay compensation of $24,100 to their client for 11% WPI pursuant to s 66 of the Workers Compensation Act1987 (the 1987 Act). On 30 March 2023 the respondent’s solicitors wrote to the insurer advising it that the respondent had instructed them to reject the offer.

  9. The respondent then commenced proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 11 April 2023 (ARD), seeking determination of her claim for compensation for permanent impairment.

  10. A delegate of the President of the Commission referred the matter on 16 May 2023 to the Medical Assessor. The Medical Assessor examined the respondent on 25 May 2023 and, as noted above, issued the MAC on 5 June 2023. In that he certified that he assessed the respondent had 24% WPI. That assessment comprised 15% WPI relating to the respondent’s right lower extremity, 9% WPI relating to the respondent’s left lower extremity and 1% WPI for scarring.

  11. The Medical Assessor explained that his assessment with respect to the respondent’s right lower extremity was done on the basis that she achieved a good result from her total knee replacement. The Medical Assessor explained that his assessment with respect to the respondent’s left lower extremity was done on the basis that there was X-ray evidence of osteoarthritis with joint interval being less than 2mm.

  12. The Medical Assessor in part 6 of the MAC listed the radiological investigations the respondent had done of her knees and provided the following brief details relating to them:

    “13/12/2019 X-rays knees - Mild tri-compartmental degeneration. Joint space preserved.
    02/03/2020 MRI right knee - Complex tear medial meniscus. Mild medial compartment cartilage tear; Grade III retro patellar chondral wear.
    20/07/2021 X-rays right knee - Severe narrowing of the medial compartment joint space, deteriorated since December 2019.

    08/09/2021 X-rays left knee - Severe medial compartment OA left knee.

    23/06/2022 XR knees- Right knee replaced.; prosthesis alignment satisfactory. Osteoarthritis left knee medial compartment <2mm.”

  13. The Medical Assessor within part 5 of the MAC also said when recording his findings from his examination of the respondent’s left knee that the X-rays of her left knee done on
    23 June 2022 showed osteoarthritis in the medial cartilage interval less than 2mm attracting 9% WPI.

  14. The Medical Assessor summarised the respondent’s injury in part 7 of the MAC as:

    “Rosemary Allan is a 59 year old woman who had an accident at work sustaining a complex tear at the right knee medial meniscus. Ms Allan had a right total knee replacement with good result. Ms Allan developed osteoarthritis at the left knee with symptoms and signs of osteoarthritis. The left knee received only conservative treatment so far.”

  15. At part 8e of the MAC the Medical Assessor, in response to a standard question within the prescribed form for the MAC relating to whether any proportion of the respondent’s permanent impairment was due to a pre-existing condition or abnormality, answered no. The Medical Assessor also at part 11 of the MAC indicated he considered “there is no deductible proportion”.

  16. The Medical Assessor when commenting on Dr Breit’s assessment of the respondent’s permanent impairment, noted that Dr Breit had made a deduction of the respondent’s permanent impairment relating to her right knee of one-half. The Medical Assessor said he agreed with Dr Breit that the respondent had a good result from her right total knee replacement, but the Medical Assessor said that the X-rays of the knees dated
    13 December 2019, which he observed was soon after the respondent suffered injury, showed mild tri-compartmental degeneration and joint space preserved. The Medical Assessor said “therefore there was no evidence of significant pre-existing osteoarthritis at the right knee”. The Medical Assessor also noted that obesity is a constitutional condition and not a pre-existing impairment. The Medical Assessor indicated that he consequently considered that there ought to be no deduction therefore due to a pre-existing condition.

PRELIMINARY REVIEW

  1. 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.

  2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because firstly, neither party raised any issues with the findings the Medical Assessor made from his physical examination of the respondent. The issues raised in the Appeal related to the Medical Assessor’s method of assessing the respondent’s permanent impairment relating to her left lower extremity and whether the Medical Assessor was correct to conclude that no proportion of the respondent’s permanent impairment was due to a pre-existing condition.

  3. Secondly, whilst the Appeal Panel identified errors in the MAC and found that the Medical Assessor applied incorrect criteria to rate the respondent’s impairment relating to her left lower extremity, which errors are identified below under Findings and Reasons, the Appeal Panel did not need to re-examine the respondent to correct those errors. That is to say there would be no further clinical data available to the Appeal Panel from re-examining her beyond that the Medical Assessor recorded in the MAC from his examination of the respondent. Rather, the Appeal Panel considered that to correct the errors in the MAC and ensure that correct criteria are applied to assess the respondent’s permanent impairment, the Appeal Panel would need to review the films of the radiological investigations the respondent had done on her knees subsequent to her suffering injury on 5 December 2019.

  4. Relying on the power the Appeal Panel has under s 324(1)(b) of the 1998 Act, the Appeal Panel called for the respondent to produce to the Commission all films on all radiological investigations she had done on her knees since December 2019. The respondent complied with that direction. The Appeal Panel appointed one of its Members, namely Medical Assessor Mark Burns, to review that material and to report to the Appeal Panel on it. His report appears below under Findings and Reasons.

EVIDENCE

  1. 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

  1. Both parties made written submissions. The appellant’s submissions were prepared by its solicitor and are dated 29 June 2023. The respondent’s submissions were prepared by her counsel, and are dated 17 July 2023. They are not repeated in full, but have been considered by the Appeal Panel.

  2. In summary, the appellant submitted that the Medical Assessor did not specify the criteria by which he assessed the respondent’s impairment relating to her left lower extremity. The appellant submitted that based on what the Medical Assessor had detailed in the MAC, the Medical Assessor had relied on the report of an X-ray of the respondent’s knees done on
    23 June 2022 rather than viewing the film of the X-ray to which that report related. The appellant observed that the report did not say what the Medical Assessor had said in the MAC it did. The appellant observed that the report on that X-ray stated:

    “Moderate degeneration throughout the left knee particularly the medial tibiofemoral compartments. No significant joint fusion. No loose fragment.”

  3. The appellant submitted that the Medical Assessor utilised incorrect findings from the X-ray of 23 June 2022 to base his assessment of the respondent’s impairment of the left lower extremity. The appellant observed that none of the reports on the radiology done of the respondent’s left knee revealed what the space of the joint interval was in the respondent’s left knee. The appellant observed that Dr Lee when assessing the respondent’s left knee impairment also relied upon findings that he said were revealed by the 23 June 2022 X-ray that in fact were not reported. Further, the respondent noted that Dr Lee utilised AMA 4 rather than AMA 5 to make his assessment of the respondent’s left knee impairment.

  4. The appellant submitted that even if the joint space interval in the respondent’s left knee was less than 2mm then, in accordance with table 17-31 of AMA5, the rating of the respondent’s left knee permanent impairment ought to have been 8% WPI, rather than 9% WPI, which is what the Medical Assessor assessed.

  5. The appellant submitted that the Medical Assessor did not provide a clear explanation for his assessment of the respondent’s permanent impairment of her left knee. The appellant submitted that the Medical Assessor should have assessed the respondent’s permanent impairment relating to her left knee by the same method that Dr Breit did, namely the second footnote to table 17-31 in AMA5.

  6. The appellant submitted that the Medical Assessor relied on incorrect information when concluding that no deduction ought to be made under s 323(1) of the 1998 Act for a proportion of the respondent’s permanent impairment due to pre-existing condition. The appellant observed that the Medical Assessor referred to X-rays of the respondent’s knees that were dated 13 December 2019, which the Medical Assessor said revealed “mild tri-compartmental degeneration and joint space preserved”. The appellant observed that there were no X-rays in evidence dated 13 December 2019. The appellant observed that there was a report on an X-ray done on 23 December 2019 which related to the right knee only and that was reported to reveal mild tri-compartmental osteoarthritis of the right knee.

  7. The appellant submitted that the radiological investigations that had been done, and for which the reports were in evidence, indicated degeneration in the respondent’s knees prior to the respondent’s injury. The appellant submitted that the available medical evidence therefore supports a finding of pre-existing degeneration of the respondent’s left and right knee. The appellant submitted that also it was implicit from the Medical Assessor saying that “there was no evidence of significant” pre-existing osteoarthritis at the right knee, that the respondent had pre-existing degeneration in her knees. The appellant submitted that the Medical Assessor failed to consider in detail the medical evidence relating to whether there should be a deduction made under s 323 of the 1998 Act. The appellant observed that both Dr Breit and Dr Lee when assessing the respondent’s permanent impairment relating to her right knee considered there was a pre-existing condition that contributed to the respondent’s impairment.

  8. In reply, the respondent submitted that it is clear from the MAC that the Medical Assessor assessed the impairment of her left lower extremity by reference to table 17-31 of AMA5. The respondent submitted that the reports on the radiological investigations done on
    8 September 2021, 25 March 2022 and 23 June 2022 all revealed there was a narrowing of the joint space in her left knee and it was open to the Medical Assessor to find, based on that evidence, and also on the report of Dr Lee, that the medial cartilage interval in her left knee was less than 2mm.

  9. The respondent conceded that, based on that finding, the Medical Assessor ought to have rated her permanent impairment relating to her right knee as 8% WPI, consistent with table 17-31, rather than 9%.

  10. The respondent submitted that the Medical Assessor found that there was pre-existing degeneration in her knees, but that degeneration was not significant and did not contribute to her permanent impairment relating to her knees. The respondent submitted that the X-ray of her right knee done on 13 December 2019 showed mild degeneration with preserved joint space. Subsequent X-rays demonstrated more significant degeneration. The respondent submitted that the Medical Assessor “was entitled to reason by analogy that the degree of degeneration in the respondent’s right knee was likely, on the balance of probabilities, to be similar to the respondent’s left knee immediately after the work injury”. The respondent submitted that the fact that there was significant degeneration in her arthritic condition subsequent to her suffering injury, whereas beforehand she had only mild degeneration, meant that the Medical Assessor did not err by concluding that no proportion of her permanent impairment was due to the existing degeneration in her knees at the time of injury.

FINDINGS AND REASONS

  1. 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.

  2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

  3. The Appeal Panel notes from the referral the President’s delegate made to the Medical Assessor that the documents that were provided to him were those attached to the ARD, with the exclusion of pages 65 to 95, and the documents attached to the appellant’s Reply. Those documents did not include the films of any radiological investigations that the respondent had done on her knees. The Appeal Panel further notes from the MAC that the Medical Assessor did not call for the production of those films. Further, the respondent did not bring with her to the examination any films relating to those radiological investigations.

  1. It is not apparent to the Appeal Panel from Dr Lee’s report of 17 August 2022 that he viewed any of the films relating to the radiological investigations the respondent had done on her knees. The documents Dr Lee listed in his report that he had reviewed do not include the films.

  2. The Appeal Panel, which is an expert panel, is of the view that none of the reports on the radiological investigations that were before the Medical Assessor allowed the Medical Assessor to conclude the extent to which there had been a loss of cartilage in the respondent’s left knee. That is to say, it was not open to the Medical Assessor, based on the material before him, to infer that the cartilage interval in her left knee was less than 2mm. Consequently, the Medical Assessor made an error by making that conclusion and assessing the respondent’s permanent impairment relating to her left lower extremity based upon that conclusion.

  3. The Medical Assessor was consequently also wrong, based on the material before him, to assess the respondent’s permanent impairment by reference to the criteria of table 17-31 of AMA5 relating to the cartilage loss in the respondent’s left knee. This is because the evidence before the Medical Assessor did not enable him to establish what that cartilage loss was.

  4. Given that, the Appeal Panel finds that the MAC does contain a demonstrable error and also that the Medical Assessor made his assessment utilising incorrect criteria.

  5. The Appeal Panel notes that by virtue of s 324(3) of the 1998 Act an Appeal Panel has the discretion under s 324(1)(b) of the 1998 Act to call for the production of X-rays that it considers necessary or desirable for the purposes of assessing a medical dispute. The Appeal Panel considers that in order to correct the error the Medical Assessor made in this case relating to his assessment of the respondent’s permanent impairment of her left knee, it was necessary to call for the films on all radiological investigations that the respondent had done of her knees subsequent to her suffering injury. As indicated above, the Appeal Panel directed the respondent to produce those films to the Commission, and the Appeal Panel assigned to Medical Assessor Burns the task of viewing those X-rays and reporting to it on what they revealed. His report to the Appeal Panel is as follows:

“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE DOCUMENT EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:          M1- W2637/23

Appellant:                  Secretary, Department of Education

Respondent:              Rosemary Allan

Date of Determination:     13 September 2023 

Examination Conducted By:

Assessor Mark Burns

Date of Examination:

Attendance: 

6 September 2023

No attendance

The following documents (investigations were reviewed).

Document

Author

Date

Media

Report

X-Ray right knee

PRP Diagnostic Imaging

23/12/2019

Plain films with Rosenberg view

ARD Page 54

MRI right knee

PRP Diagnostic Imaging

02/03/2020

DVD only

ARD Page 56

X-ray both knees

Lumus Imaging Northern Beaches Hospital

05/08/2020

Plain films, No Rosenberg views

Attached

X-Ray right knee

PRP Diagnostic Imaging

20/07/2021

Plain films, No Rosenberg view

ARD Page 60

X-Ray left knee

PRP Diagnostic Imaging

08/09/2021

Plain films with Rosenberg view

ARD Page 61

X-ray right knee

Lumus Imaging Northern Beaches Hospital

08/02/2022

Plain films, TKR

ARD Page 62

X-ray both knees

Lumus Imaging Northern Beaches Hospital

25/03/22

Plain films, Right TKR, Left no Rosenberg view

ARD Page 63

X-Ray both knees

Lumus Imaging Northern Beaches Hospital

23/06/2022

Plain films, Right TKR, Left no Rosenberg view

ARD Page 64

X-Ray both knees

Lumus Imaging Northern Beaches Hospital

22/02/2023

Plain films, Right TKN, Left with Rosenberg View

Attached

Most investigations were of the right knee which eventually went to a Total Knee Replacement (TKR).

The only x-rays of the left knee that can be assessed for arthritis are those containing the required Rosenberg view. These include the plain x-rays carried out on 8 September 2021 and 22 February 2023.

8 September 2021

Rosenberg view of the left knee with a measured medial joint space of 2mm.

22 February 2023

Rosenberg view of the left knee with a measured medial joint space of 1mm.

Signed:  Assessor Mark Burns”

  1. It will be observed from Medical Assessor Burns’ report to the Appeal Panel that the respondent produced to the Commission films of X-rays of her knees done on 5 August 2020 and on 22 February 2023 and the report on those films, which documents were not filed with her ARD and were not before the Medical Assessor.

  2. The report of the investigation done on 5 August 2020 was signed by Dr Jules Comin. He reported the following findings from that investigation:

    “Probable small to moderate right-sided knee effusion. Mild tri-compartmental degenerative changes are seen symmetric right to left. No definite bone erosion. No significant soft tissue calcifications.”

  3. The report on the X-rays done on 22 February 2023 was electronically signed by Dr Lucila Zentner. The findings that were reported from that investigation were as follows:

    “Comparison study 23 June 2022. Persistent possible reducing size of joint effusion. No evidence of periprosthetic complication detected. Left knee has also been imaged. Significant loss of medial joint space with near bone on bone articulation. No joint effusion. Periarticular osteophytes.”

  4. The Appeal Panel observes from Dr Burns’ report to it that the X-rays of the respondent’s left knee done on 8 September 2021 and 22 February 2023 provided a Rosenberg view of her left knee. Consistent with cl 3.23 of the Guidelines, that is the ideal view to determine the cartilage loss the respondent has in her left knee.

  5. The Appeal Panel accepts Medical Assessor Burns’ report to it on what these investigations revealed was the cartilage loss in the respondent’s left knee, which was most recently 1mm.

  6. Following receipt of Medical Assessor Burns’ report, the Appeal Panel provide the parties with the copies of the reports on the investigations that were done on 5 August 2020 and
    22 February 2023 and a copy of Medical Assessor Burns’ report to the Appeal Panel and ask the parties to provide written submissions on what the outcome of the appeal should be.

  7. The appellant’s solicitor responded to that request with written submissions dated
    27 September 2023. The appellant submitted that, in substance, the Appeal Panel should rely upon the X-ray of the respondent’s left knee dated 8 September 2021 which measured a medial joint space of 2mm and, given that, assess the respondent’s permanent impairment based on table 17-31 to be 8% WPI.

  8. The respondent’s counsel provided written submissions in response to the request dated
    26 September 2023. The respondent submitted, in substance, that the Appeal Panel should give “deference” to the report of Dr Lucila Zentner dated 23 February 2023 because an assessment of a worker’s impairment must be done on the day the impairment is assessed. The respondent submitted that based on the radiological investigation of 23 February 2023, which revealed the cartilage loss to be 1mm, her permanent impairment relating to her left knee should be assessed as 10% WPI.

  9. The Appeal Panel having identified error in the MAC and having identified that the Medical Assessor applied incorrect criteria to assess the appellant’s permanent impairment relating to her left knee, must re-assess the permanent impairment relating to the respondent’s left knee so as to correct the error it identified and so as to ensure the correct criteria are applied to assess the respondent’s permanent impairment. In re-assessing that medical dispute the Appeal Panel must do so based upon the respondent’s permanent impairment at the date of assessment. As said, the Appeal Panel has adopted the findings of Medical Assessor Burns as detailed in his report and shall rely upon that when re-assessing the respondent’s permanent impairment of her left knee. The Appeal Panel considers that the comparison between the X-ray of the respondent’s left knee done on 8 September 2021, which was a Rosenberg view, and which revealed a medial joint space of 2mm, and the X-ray done on
    22 February 2023, which was also a Rosenberg view, and which revealed a joint space of 1mm, indicates there was a deterioration of the respondent’s left knee medial joint between those two dates. The Appeal Panel considers that the investigation done on 22 February 2023 provides the most reliable evidence on what cartilage loss there is now in the respondent’s left knee and what the medial joint space is of her left knee now. Consequently, in accordance with table 17-32, the Appeal Panel assesses the respondent’s permanent impairment relating to her left knee to be 10%.

  10. The Appeal Panel also considers that there ought to be no deduction under s 323(1) of the 1998 Act on account of pre-existing degeneration in the respondent’s knees at the time of her injury. With respect to the left knee, as the Medical Assessor found, the evidence presented indicates that there was only mild degeneration in her left knee at the time of injury. Her degeneration in that joint has worsened significantly since her injury. It is unlikely that the degeneration that existed in her left knee at the time of her injury, because it was minimal, is contributing to her permanent impairment of her left knee currently. The Appeal Panel cannot conclude that the degeneration that existed in her left knee at the time of injury makes a difference to her permanent impairment in her left knee currently.

  11. Similarly, with respect to the respondent’s right knee, the degeneration in her right knee at the time of injury was minimal. Further, the pre-existing condition the respondent had in her left knee has now been eliminated by virtue of her having a total right knee replacement. Consequently, it no longer contributes to her permanent impairment relating to her right knee.[1]

    [1] State of New South Wales (Central Coast Local Health District) v Page [2023] NSWSC 935 at [70]-[74].

  12. For these reasons, the Appeal Panel has determined that the MAC issued on 5 June 2023 should be revoked, and a new MAC should be issued.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:

W2637/23

Applicant:

Rosemary Allan

Respondent:

Secretary, Department of Education

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 Dr SK Cyril Wong  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)

Right lower extremity

5/12/2019

Chapter 3, paragraph 3.28

Chapter 17

15%

-

15%

Left lower extremity

Chapter 3,

Paragraph 3.23

Chapter 17,

Table 17-31

10%

-

10%

Scarring

Chapter 14

Table 14.1

1%

1%

Total % WPI (the Combined Table values of all sub-totals)            

25%

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Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

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Campbelltown City Council v Vegan [2006] NSWCA 284
State of New South Wales (Central Coast Local Health District) v Page [2023] NSWSC 935