Simpkin v Benmax Pty Ltd
[2021] NSWPICMP 166
•13 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Simpkin v Benmax Pty Ltd [2021] NSWPICMP 166 |
| APPELLANT: | Huon Simpkin |
| RESPONDENT: | Benmax Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr Drew Dixon Dr Margaret Gibson |
| DATE OF DECISION: | 13 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant had a total knee replacement; appellant submitted that the Medical Assessor (MA) erred in failed to assess the appropriate rating for pain; failed to consider deductions to the rating arising from flexion contracture, extension lag and tibio-femoral alignment; Held - the evidence supported the findings and assessment of the MA; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 June 2021 Huon Simpkin (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 31 May 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 MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
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 although one was requested, no reasons were provided, and in any event we are satisfied 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 erred in two respects, namely:
(a) failed to assess the appropriate rating for pain; and
(b) failed to consider deductions to the rating arising from flexion contracture, extension lag and tibio-femoral alignment.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the left lower extremity (knee) resulting from an injury on 1 August 2017.
The MA obtained the following history:
“Mr Simpkin informs me that he was employed by Benmax Pty Ltd as a sheet metal worker, having started there in 1998 on a full time basis.
His history was confirmed of having sustained an injury to his left knee on 1 August 2017 when he was working at Canberra Airport and somehow managed to trip on some plywood on the floor and stumbled sideways, and although he did not fall he was immediately aware of severe pain in his left knee. He has had ongoing problems with his left knee since then. I note that investigations showed a tear of the posterior horn of his medial meniscus with some cartilage damage in the medial compartment. There was also felt to be a sprain of his anterior cruciate ligament…
He came to his first operation on his left knee on 11 December 2017 when he had a debridement carried out as well as a resection of the posterior horn of the medial meniscus, and debridement of a ganglion cyst at the base of his anterior cruciate ligament.
Because of persistent and increasing symptoms he eventually came to a left total knee replacement on 15 March 2019.
I note that Mr Simpkin also developed a deep vein thrombosis of his left leg which was treated with anticoagulants and he still wears an elasticised support for residual swelling.
In addition to the surgical procedures he has had extensive physiotherapy, taken tablets, had hydrotherapy and also been under the care of a pain specialist and psychologist.”The MA noted that Mr Simpkin’s present treatment consisted of medication only, adding “he wears an elasticised support for the residual swelling of his left leg”.
Present symptoms were described as follows:
“Mr Simpkin states that prior to his operation his symptoms would go as high as 10/10, but he does feel that following his knee replacement his symptoms have improved but he now has ‘a different kind of pain’ which can be severe at times, ranging between 5½-8½/10. He seems to indicate the whole of the knee as feeling this discomfort, with symptoms being aggravated by sitting for long and then trying to get going, or by standing for long, or doing a lot of walking or negotiating stairs. He does get a lot of relief by resting and keeping his leg up for a while.
He is happy with his range of movement.
He is not aware of swelling in the knee and there is occasionally clicking, and there is no giving way. He has problems with stairs particularly coming down, but he negotiates these in a normal fashion. He says he has tried negotiating ladders which he can do, but tries to avoid because this aggravates his symptoms. He still tries to do crouching for exercise, but he would avoid kneeling.”The MA then documented Mr Simpkin’s general health, work history and “Social activities/ADL” before setting out his findings on physical examination as follows:
“Mr Simpkin is an adult male in no obvious discomfort today who removes his trousers without any particular difficulty and is noted to have an elasticised support on his left leg. He walks without an obvious limp and is able to walk on heels and toes and has an excellent range of back movement, being able to touch his toes with his fingertips. Straight leg raising is normal, reflexes are present and equal, and he also has a full range of hip movements bilaterally.
Mr Simpkin does have a very good range of knee movements bilaterally with full extension on the left side and further flexion to 125°. The knee itself was stable and there was a mild effusion in both knees today.
He has a very well-healed 18cm anterior scar, with the left thigh being 1cm less than the right side as measured 10cm above his kneecaps, and his left calf being 2cm larger than the right side, almost certainly as a result of his previous deep vein thrombosis.”
The MA then said:
“Mr Simpkin did not have any investigations with him today but I note from reports forwarded to me that his original MRI in August 2017 showed a tear of the posterior horn of the medial meniscus with a chondral defect in the posterior weight-bearing surface of the medial femoral condyle and swelling of the anterior cruciate ligament as mentioned.
I note that an ultrasound in September 2018 showed the deep vein thrombosis of his left leg. I note that subsequent films showed the total knee replacement in satisfactory position.”
In summarising the injuries and diagnoses, the MA said:
“Mr Simpkin sustained a soft tissue injury to his left knee in August 2017 with subsequent significant deterioration of his condition, eventually requiring a left total knee replacement. In addition as mentioned he developed a deep vein thrombosis which has been treated, and he still wears an elasticised support.”
The MA explained the reasons for his assessment as follows:
“As noted in the attached worksheet Mr Simpkin has a total of 60 points which places him in the category of ‘fair result’ with 50% lower extremity impairment which in turn equates with 20% WPI.
Please note that I have not made any deduction for pre-existing condition noting that he was asymptomatic and fully active prior to his injury in August 2017.”In commenting on the other medical opinions, the MA said:
“I note from the reports of Dr R Wallace, orthopaedic surgeon of 7 October 2020 noting that Mr Simpkin sustained an injury to his left knee with some aggravation of underlying pre-existing degenerative change, and placed him in a fair category with 20% WPI, and makes a one-tenth deduction, leaving Mr Simpkin with 18% WPI.
There is a report of Dr Leon A. Le Leu, occupational physician of 22 August 2020 noting residual restriction of knee movement which I did not find today, and finding that Mr Simpkin had a poor result following his knee replacement with 30% WPI. Please note that Dr Le Leu has suggested that Mr Simpkin gets no points for residual pain which equates with ‘severe’ continual pain. As noted I have awarded 10 points for continual knee pain. Please note to date I have not yet seen a patient who was awarded no points for pain. It is for this reason that I would suggest my figures differ from those of Dr Le Leu and are more in keeping with those of Dr Wallace.”
The appellant firstly submits that the MA failed to assess the appropriate rating for pain, and makes the following submissions in support of this challenge to the MA’s assessment:
“a. The Assessor refers to his worksheet where he assigns 60 points by reference to Table 17.35… The only explanation for the Assessor's determination arises when the Assessor considers other medico-legal opinions provided. He states ‘As noted I have awarded 10 points for continual knee pain. Please note to date I have not seen a patient who was awarded no points for pain’.
b. The Assessor has failed to perform the function required of him, that is to assess the level of the worker's pain and allocate the requisite number of points accordingly.
c. In finding that the worker should not be considered as having been in severe pain because no patient has previously been assessed as suffering severe pain, the Assessor has asked himself the wrong question and as a result has fallen into jurisdictional error.
d. In Craig -v- South Australia (1995) 184 CLR 163, the Court said that a jurisdictional error will arise where an administrative tribunal:
' falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistake in conclusion and the tribunal's exercise of purported exercise of power is thereby effected ... such an error of law is jurisdictional which will invalidate any order or decision of the tribunal which reflects it.’
e. The Assessor clearly considered that he was not able to assign points by reference to severe pain because that finding had not been made previously.”
We do not accept these submissions for reasons that follow.
To begin with, Chapter 1.6 of the Guidelines states that assessing permanent impairment involves “clinical assessment of the claimant as they present on the day of assessment…”.
The MA records that he has awarded 10 points for "continual knee pain”.
Table 17-35 prescribes 10 points for pain described as continual and of a moderate nature.
The MA obtained a detailed statement from Mr Simpkin regarding his pain levels. Mr Simpkin confirmed that his knee symptoms had improved post-surgery but that he still experienced varying levels of pain.
The MA’s awarding of 10 points in our view is entirely consistent with Mr Simpkin’s symptoms and signs at the time of the assessment.
The MA’s comment that he had to date “not yet seen a patient who was awarded no points for pain” is merely a reflection of his views regarding the severity of pain that would be required for a rating of 0 points.
Mr Simpkin’s ability to walk on his heels and toes on examination, his ability to navigate stairs and ladders and his self-reporting of his pain levels ranging "between 5½-8½/10” is in our view consistent with the 10 point rating assessed by the MA.
We make two other points.
Firstly the MA is not required nor obliged to accept the opinion of any one doctor over another, although we note that in this case the MA’s assessment of a 10 point rating is consistent with that of Dr Wallace.
Secondly, as the respondent correctly points out:
“In Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22 Malpass AJ commented that:
'.. demonstrable error would essentially be an error for which there is no information or material to support the finding made - rather than a difference of opinion.’”
A mere difference of opinion is not a proper basis for appeal.
Dr Leu’s assessment took place in August 2020, some nine months prior to the MA’s examination on 25 May 2021. On examination the MA specifically recorded that he could not find residual restriction of knee movement which Dr Leu had noted earlier.
For these reasons were do not accept that the MA erred as regards the appropriate rating for pain.
Turning now to the issue regarding deductions to the rating arising from flexion contracture, extension lag and tibio-femoral alignment, the appellant submits as follows:
(a) at no stage in his reasons did the MA refer to the deductions in Table 17.35 (flexion contracture, extension lag, tibio-femoral alignment). The working sheet provided by the MA merely strikes through those deductions;
(b) the Assessor has failed to take these matters into account and has failed to provide reasons for his decision, and
(c) before the Assessor was a medico-legal opinion of Dr Raymond Wallace offered by the insurer. Dr Wallace deducts 6 points for alignment, a finding that is overlooked by the Assessor.
It is true that the working sheet of the MA ruled through the deductions for flexion contracture, extension lag and tibia-femoral alignment.
However, that in our view does not support the proposition that the MA failed to consider whether any deductions were required. It simply reflects his conclusion that a 0 point rating for each class was appropriate.
We repeat our comments made above as to the MA not being required to adopt other medical opinions and to make his assessment as a worker presents on the day of any examination.
The MA recorded that the appellant had "very good range of knee movements bilaterally with full extension on the left side and further flexion to 125°. The knee itself was stable and there was a mild effusion in both knees today”.
A full extension does not attract any point rating under Table 17-35. Similarly, flexion to 125 degrees does not attract any point rating under Table 17-35.
Just because the MA did not specifically refer to any tibia-femoral alignment on clinical examination does not mean that he did not consider it: he clearly did not find any tibia-femoral alignment to warrant any deduction.
As noted earlier, the MA is only required to provide reasoning of a sufficient degree as to explain his path of reasoning which in our view he has done adequately.
The MA's clinical findings on examination clearly support that no deductions arise under Table 17-35.
As regards Dr Wallace’s report, again, the MA is required to make an assessment on the day of the examination which in this case was over seven months after Dr Wallace examined
Mr Simpkin.For these reasons, the Appeal Panel has determined that the MAC issued on 31 May 2021 should be confirmed.
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