Skewes v SP Allen Pty Limited - [2021] NSWPICMP 198

DETERMINATION OF APPEAL PANEL
CITATION:	Skewes v SP Allen Pty Limited [2021] NSWPICMP 198
APPELLANT:	Margaret Skewes
RESPONDENT:	SP Allen Pty Limited
APPEAL PANEL:	Member Deborah Moore Dr Brian Noll Dr Mark Burns
DATE OF DECISION:	20 October 2021
CATCHWORDS:	WORKERS COMPENSATION- The appellant was referred to the Medical Assessor (MA) for two assessments resulting from injuries on 17 March 2000; the appellant submitted that the MA erred in failing to consider the effect of bilateral knee surgery on the loss of use of each leg at or above the knee and erred in preparation of the Table annexed to the Medical Assessment Certificate (MAC); the MA also erred in respect of the section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; both parties agreed that the Table contained errors and the Panel rectified those errors; Held - the Panel found that the section 323 of the 1998 Act deduction of 50% was consistent with all of the evidence, noting that the appellant had significant pre-existing conditions affecting her knees; MAC revoked essentially because of the errors in the preparation of the Table.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 August 2021 Margaret Skewes (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin ‘Sid’ O’Toole, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 22 July 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 2021.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons we will set out more fully below.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in two respects, namely he failed to consider the effect of bilateral knee surgery on the loss of use of each leg at or above the knee and erred in preparation of the Table annexed to the MAC. The appellant also submits that the MA erred in his application of the provisions of s 323 of the 1998 Act.
In reply, the respondent accepts that there are errors in the Table but submits that no other 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.
Ms Skewes was referred to the MA for two assessments. The first was for the assessment of losses pursuant to the table of disabilities, in respect of the back and both legs at or above the knee, the date of injury being 17 March 2000, and the second was for the assessment of whole person impairment (WPI) of the lumbar spine and consequential injuries to both lower extremities.
The MA obtained the following history:
“Ms Skewes advised that on 17/03/2000 she was caring for a Quadriplegic resident in her role as an Assistant in nursing (AIN). It was a two person lift, and she was lifting the legs, in a bent over position. She had sudden onset of pain and a popping sensation in her lower back, and had difficulty standing up straight. She felt that she had injured her back in a ‘muscular’ type injury.
She awoke the next day and was in significant pain. She attended her general practitioner (GP), Dr Stephen May in Coffs Harbour. She was referred for imaging and recalls that this showed a disc bulge. She was managed with hydrotherapy and physiotherapy, as well as medication.
She stated that after a ‘couple of months’ she had an exacerbation and would end up in hospital for analgesia. She stated that this occurred on a number of occasions, and she would be ‘stuck’. She has previously had assessments of permanent impairment.
She stated that she was under the care of Dr Marcus Stoodley (Neurosurgeon) and Dr Jonathan Strum Neurologist. She stated that the nerve conduction study (NCS) performed by Dr Jonathan Strum identified abnormalities.
She stated that over time she has had repeated falls, which have become progressively worse over time. One particular fall in 2010 led to arthroscopy for meniscal tearing. She was then seeing an Orthopaedic Surgeon at Prince Charles Hospital and underwent total knee replacement (TKR) of the left knee for osteoarthritis (OA) in 2013. She stated that at that time, the medical team identified that there was a foot drop. She was advised to use a strap to lift her foot up into the car. She has now developed incontinence in her bladder. She has had to progress from using a can to using a wheelie walker. She has had to use shower chairs.
Whilst on holiday previously in Canada she smoked marijuana and this assisted her pain, and she is now seeking use of cannabidiol (CBD) Oil. She is now on NDIS.
She has two procedures planned in May 2021, an epidural and radiofrequency Neurotomy (RFN). She is under the care of Dr Tim Grice, Pain Doctor. She has previously undergone RFN with Dr Time Grice in May 2017 that she stated brought about six months of relief. She had further procedures in February 2018, March 2018 and August 2018.”
After documenting Ms Skewes present treatment, the MA then noted present symptoms as follows:
“With respect to the lumbar spine, Ms Skewes stated that she still has constant pain (like a fist or knuckle boring into her spine) localised to the central lumbar spine. She stated that the discomfort radiated to both legs intermittently. She stated that the discomfort was aggravated by prolonged sitting and driving, bending, repeated activity, prolonged standing and prolonged walking. She described decreased range of motion in the lower back affecting all planes. She described altered sensation, affecting the in the sacral distribution.
She described urinary incontinence saddle anaesthesia.”
The MA added: “In addition to the bilateral knee replacements, Ms Skewes has undergone hip replacements”.
As regards her social activities and activities of daily living (ADL’s), the MA said:
“With respect to her activities of daily living Ms Skewes reported the following:
Self Care: Unable to perform some activities of self care without assistance, including bathing / showering, brushing / washing hair, brushing teeth, putting on underwear and putting on pants. She has a carer during the week and at the weekends she stays with her daughter.
Household duties: Unable to perform some activities of household duties without assistance. She has a carer during the week and at the weekends she stays with her daughter.
Hobbies: Unable to perform some outdoor duties or recreational activities, including household maintenance and gardening.”
Findings on physical examination were reported as follows:
“On general inspection, Ms Skewes appeared well and in keeping with the expectations of a woman of her age and station.
An examination of the lumbar spine was performed. Inspection of the lumbar spine elicited supportive garment on her left foot. Ms Skewes walked with an obvious limp antalgic gait. She uses a wheelie walker to assist in mobilisation. There was no atrophy of the lower leg musculature. On palpation of the lumbar soft tissues and bony structures there was tenderness predominantly the right T11-L3, but also some lower and over the SIJs. Testing of range of motion elicited global reduction in range of motion. Straight leg raise test achieved NIL degrees with the right leg, and NIL degrees with the left leg. Neurovascular examination of the lower limbs elicited altered sensation, patchy over the lower limbs. Normal reflexes. The remaining lower limb neurovascular examination was within normal limits.
Examination of the lower limbs identified scarring from bilateral total knee replacements. There was a full range of motion in both knees and the joints were stable.”
The MA did not set out details of any special investigations, but simply noted that they were included in the documentation provided to him.
The MA assessed 8% WPI of the lumbar spine and 15% WPI in respect of both the left and right lower extremities. He deducted 50% pursuant to s 323 in respect of each of the lower extremities.
He then assessed 20% impairment of the back and 10% loss of use of each leg at or above the knee.
He incorrectly completed the Table attached to the MAC by referring to and including prior assessments, and the Panel will correct that error in due course.
The MA then added:
“My opinions are consistent with those previously put forward by the other assessors, however the impact of bilateral knee replacements and the pre-existing factors in their requirement have been explored further to more accurately assess Ms Skewe’s current entire impairment.”
As regards any deduction for a pre-existing condition, the MA said:
“Ms Skewes has pre-existing, progressive osteoarthritis (OA) of both knees, that is the result of the natural aging process and must be considered to be a contributing factor in the development of her requirement for bilateral total knee replacement surgery.
The natural progression of her osteoarthritis (OA) would, in time, have required TKR surgery, and the falls that she suffered which have been attributed to her lumbar condition were not a cause of the osteoarthritis (OA), but may have resulted in a temporary exacerbation / aggravation.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is one-half for the following reasons:
(i) The natural progression of her osteoarthritis (OA) would, in time, have required TKR surgery, and the falls that she suffered which have been attributed to her lumbar condition were not a cause of the osteoarthritis (OA), but may have resulted in a temporary exacerbation / aggravation. Therefore, the osteoarthritis (OA) is the most significant contributing factor, and one half is the more accurate deductible portion.”
Dealing firstly with the errors in the Table, the Panel accepts, as do both parties, that there are errors in the manner in which the MA completed the Table. He noted that Ms Skewes had previously been assessed by an Approved Medical Specialist (AMS), Dr Oates on 17 December 2007. As the appellant then points out:
“He then erroneously recorded the results of the previous assessment as constituting the proportion of the condition due to pre-existing injury, abnormality of condition, as though he were conducting an apportionment pursuant to s.323 WIM Act. As a result, the net impairments and losses are also incorrectly recorded in Column 5 of the Table. On the MA’s findings they should have been recorded as 20% back, and 10% of each leg at or above the knee as noted in Column 3. In effect, what he has done is to record in Column 5 his assessments of the further losses since the date of the previous certificate. This is an error that requires correction…”
We agree, and we will rectify those errors in due course.
The appellant next submits that the MA failed to consider the effect of bilateral knee surgery on the loss of use of each leg at or above the knee.
In our view this is correct.
As the appellant pointed out, Dr Bodel considered that there had been a further loss of use of each leg at or above the knee, by reason of bilateral knee replacements. In 2007 the AMS Dr Oates assessed loss of the legs (as a result of referred symptoms from the lumbar condition) before the knee surgery.
A reasonable percentage loss would probably be in the order of 20-30%.
Taking into account the fact of the bilateral knee replacement arthroplasties, the limited nature of the symptoms in the knees (as opposed to the legs) noted by the MA, and the clinical findings which were reported to show a full range of movement of the knees and no evidence of instability, we are of the view that 20% would be an appropriate percentage loss.
This is because there is very little evidence regarding the function of the knees after the knee replacement surgery, for example, any limitations in walking or standing or negotiating stairs not to mention any information as to pain levels. In documenting the ADL’s, the MA did not record any specific complaints by Ms Skewes in respect of her knees following her surgery.
We also note that Ms Skewes has had bilateral hip replacements which would also impact on the functioning of her legs and knees.
Turning now to the WPI assessments, we note that the assessment in relation to the lumbar spine and both knees has not been appealed. It is only the deduction made pursuant to
s 323 that is the subject of appeal.
The appellant makes the following submissions:
“In Cole v Wenaline [2010] NSWSC 78 at [21]-[30] Schmidt J observed that simply to assume the existence of a contribution from (in that case) a previous injury constituted a reviewable error. Her Honour also set out the three step assessment required by s.323. Consistent with her Honour’s approach is the more recent decision of Campbell J in Ryder v Sundance [2015] NSWSC 526 at [45] where his Honour said:
‘What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the preexisting abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.’
The MA failed to apply this statutory formula to his assessment…
Whatever relevance the surgery may have had, the MA himself simply concluded that surgery would have taken place in any event at some identified time in the future.
When considering the MA’s reasoning, it should be borne in mind that there was only one medical opinion before him commenting on WPI. That was the opinion of Dr James Bodel, qualified for the Appellant…the Respondent did not adduce any evidence whatsoever, assessing either further losses since the 2007 Medical Assessment Certificate or the Appellant’s WPI.
While his opinion was that the consequential trauma to the knees constituted a significant structural aggravation of an underlying disease process, Dr Bodel considered there was no basis for apportionment pursuant to s.323.
In the face of this evidence, it was incumbent on the Medical Assessor to give reasons as to why his opinion differed from that of Dr Bodel.
Having decided that an apportionment was to be undertaken pursuant to s.323, the MA also concluded that the extent of a deduction will be costly or difficult to determine. Prima facie the Appellant was entitled to the statutory presumption of a 10% deduction specified in s.323(2). Because the MA did not indicate whether he considered the exercise costly or difficult to determine or for that matter both. Having failed to state his reasons in this regard, difficult to understand how was able to rebut the presumption. While he concluded that the presumption was at odds with the available evidence, his failure to give reasons means that no insight is provided into what he concluded or how. This failure was an error of law and in the circumstances a demonstrable error.
Finally, part of the MA’s reasoning in respect of s.323 was that the work- related knee aggravations were temporary. This is logically inconsistent with his assessment of a 15% WPI in respect of each lower extremity.”
To begin with, we agree with the appellant that the reference by the MA to “temporary exacerbation / aggravation” of the knees is indeed logically inconsistent but in our view this comment of itself is not fatal to his decision.
We also agree that the MA’s reference to “the extent of the deduction will be costly or difficult to determine” on the face of it seems misleading, however, to put this in context, the MA in fact said:
“Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence.”
He then went on to make a deduction of one-half and explained why he did this.
Once again, his manner of expression on this issue is not in itself fatal to his decision.
The real issue is the deduction itself.
We agree with the appellant’s summary of the authorities relevant to any deduction pursuant to s 323.
The fact that the respondent did not rely on any independent medical opinion is of no significance. The appellant relied upon the opinion of Dr Bodel which in our view was flawed for reasons that follow.
Dr Bodel’s report dated 12 December 2017 included the comment that: “Both knees and the left hip are due to a disease process which is osteoarthritic change. This is primarily a constitutional ailment.”
It should be noted that in the same report dated Dr Bodel arrived at the following conclusion:
“It is probable therefore that the abnormal gait pattern and the long term management of her spinal injury has caused aggravation, acceleration, exacerbation and deterioration to that disease process in both knees and the left hip. Had the back injury not occurred then she may not have developed the knee pain or the hip pain at this stage although with an underlying arthritic process which is constitutionally based it was inevitable that she would develop these problems at a later stage. The aggravation caused by her work has brought forward the timing of the knee replacements and the probable hip replacement by three to five years.”

Dr Bodel’s conclusion that there was no evidence of any pre-existing pathology and no basis for a deduction for pre-existing impairment is plainly incorrect in light of those comments referred to above.
We agree with the respondent that the MA correctly concluded that the presumption of a 10% deduction was at odds with the available evidence noting that: “Ms Skewes has pre-existing progressive osteoarthritis (OA) of both knees that is the result of the natural ageing process and must be considered to be a contributing factor in the development of her requirement for bilateral total knee replacement surgery”.
The MA indicated that he did not agree with Dr Bodel who made no deduction despite having referred to the fact that the sequelae relating to the work-related injury had caused aggravation of an underlying degenerative condition. Dr Bodel erroneously indicated that no deduction was warranted as the claimant’s knees were asymptomatic prior to the work- related injury.
The Court of Appeal has determined in the case of Vitaz v Westform (NSW)Pty Ltd [2011] NSWCA 254 (Vitaz), that if a pre-existing condition contributes to permanent impairment, a deduction is required even though the pre-existing condition may have been asymptomatic prior to the injury.
In our view, the MA’s decision regarding the s 323 deduction in relation to both lower extremities was appropriate having regard to all of the evidence. The underlying pre-existing constitutional disorder of the knees would have been an integral part of the condition leading to the need for bilateral knee replacement arthroplasties and thus to the impairment.
In addition, we note the report of Dr Kumar dated 2 June 2011 where he said:
“I repeated some x-rays today which show varus osteoarthritis bilaterally but nothing to indicate why she is getting this laxity or giving way. With that in mind, I think we will repeat her MRI to see if there is any new ligamentous pathology and we will review her after the MRI.”
It was clear that even in 2011 the appellant demonstrated significant osteoarthritis prior to her knee replacement surgery.
In short, the MA was entitled to conclude that a one-half deduction was appropriate on all of the evidence such that this ground of appeal is unsuccessful.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 July 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

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 Dr Robin ‘Sid’ O’Toole, 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.Lumbar spine	17/3/2000	Chapter 4 (pp 24-30)	Chapter 15 Table 15-3 (pp384)	8%	nil	8%
2. Right lower extremity	consequential	Chapter 3 (pp 13-23)	Chapter 17 Table 17-33 (pp546-7)	15%	1/2	8%
3.Left lower extremity	consequential	Chapter 3 (pp 13-23)	Chapter 17 Table 17-33 (pp546-7)	15%	1/2	8%
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					22%

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received before 1 January 2002

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 Dr Robin ‘Sid’ O’Toole and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002

Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee	Date of injury	Total amount of permanent % loss of efficient use or impairment	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)
Back	17/3/2000	20% permanent impairment of the back	nil	20%
Right leg at or above the knee	17/3/2000	20%	1/2	10%
Left leg at or above the knee	17/3/2000	20%	1/2	10%

Ms Deborah Moore
Member
Dr Brian Noll

Medical Assessor

Dr Mark Burns

Medical Assessor

20 October 2021