Skocic v Edwards Engineering Pty Limited
[2021] NSWPICMP 111
•1 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Skocic v Edwards Engineering Pty Limited [2021] NSWPICMP 111 |
| APPELLANT: | Branko Skocic |
| RESPONDENT: | Edwards Engineering Pty Limited |
| APPEAL PANEL: | Member Marshal Douglas Dr Roger Pillemer Dr Gregory McGroder |
| DATE OF DECISION: | 1 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Medical dispute referred to Medical Assessor required assessment of the degree of permanent impairment of worker for injury involving both knees, lumbar spine and scarring due to surgeries for the knees; Medical Assessor assessed no permanent impairment with respect to right lower extremity and lumbar spine but provided no reasons in MAC for so doing; worker appealed; Held- Appeal Panel found MAC contained demonstrable error because of the failure of the Medical Assessor to expose path of reasoning for his assessments relating to lumbar spine and right lower extremity; worker re-examined; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 March 2021 Branko Skocic (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Richard Crane, an Approved Medical Specialist (now referred to as a Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 16 February 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 assessment was made on the basis of incorrect criteria,
· 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).
RELEVANT FACTUAL BACKGROUND
On 2 May 2006 the appellant was involved in a car accident while working for Edwards Engineering Pty Limited (the respondent). The driver of the other vehicle involved in the accident assaulted the appellant immediately after the accident, rendering the appellant unconscious. The appellant suffered a fracture of his left upper tibia and tibial plateau in either the accident or the assault. He was admitted to Mona Vale Hospital subsequent to the incident and his fracture was treated with open reduction and internal fixation. There were subsequent complications with infection.
Thereafter the appellant had numerous surgeries to his left knee. In September 2009 he had a total replacement of the left knee.
In January 2018 he started experiencing pain in his right knee and in early 2019 had a right knee arthroscopy done. He also commenced experiencing pain in his lumbar spine.
It is uncontroversial that the appellant suffered a compensable left knee injury in the incident on 2 May 2006 and, as a consequence of that, developed conditions in his right knee and lumbar spine.
On 7 May 2020 general vascular and trauma surgeon Dr W G D Patrick examined the appellant, at the request of the appellant’s solicitors. Dr Patrick subsequently reported to the appellant’s solicitors on 3 August 2020 advising that he had assessed the appellant had a permanent impairment from his injury of the order of 36% whole person impairment (WPI), comprising 6% WPI relating to the lumbar spine, 4% WPI relating to the right lower extremity (knee), 27% WPI relating to the left lower extremity (knee) and 3% WPI relating to scarring of the skin.
On 13 August 2020 the appellant’s solicitors wrote to the respondent providing it with a copy of Dr Patrick’s report and notifying it that the appellant claimed compensation of $27,618.75, which the appellant’s solicitors advised was computed as follows:
“Lump sum $74,868.75 for 36% whole person impairment, less $47,250 for 27% whole person· impairment previously received = $27,618.75 for an additional 9% whole person impairment.”
The parties had previously entered into a complying agreement pursuant to s 66A of the Workers Compensation Act 1987 (1987 Act) providing for the respondent to pay compensation to the appellant for 27% WPI resulting from his injury. A copy of the complying agreement is in the material before the Appeal Panel.[1] The agreement is undated but in a letter the respondent’s solicitors wrote to the appellant’s solicitors on 13 May 2020, they indicated the date of the agreement was 2 November 2011.[2]
[1] Appeal Panel Brief page 65
[2] Appeal Panel Brief page 72
The respondent’s solicitors upon receiving the appellant’s solicitors’ letter organised for orthopaedic surgeon Dr Robert Breit to examine the appellant on 8 October 2020. Dr Breit subsequently provided two reports to the respondent’s solicitors dated 23 October 2020 and 30 October 2020, wherein he advised the respondent’s solicitors that he had assessed the appellant had 26% WPI from the appellant’s injury, comprising 5% WPI with respect to the lumbar spine, 6% WPI with respect to the right knee, 15% WPI with respect to the left knee and 3% WPI for scarring.
In their letter of 13 November 2020 to the appellant’s solicitors, the respondent’s solicitors advised the appellant’s solicitors that the respondent made “an offer of ‘nil’” with respect to his claim for compensation. The respondent’s solicitors advised the respondent’s reasons for that were that the degree of permanent impairment that Dr Breit had assessed the appellant to have from his injury was less than that for which the respondent had previously compensated the appellant under the agreement they entered pursuant to s 66A.
A medical dispute consequently arose between the parties regarding the degree of the appellant’s permanent impairment from his injury.
The appellant on 24 November 2020 filed with the Commission an Application to Resolve a Dispute seeking determination of his claim for compensation for permanent impairment from his injury. On 9 December 2020, a delegate of the Registrar referred the medical dispute to the Medical Assessor to assess. The medical referral specified that the body parts referred for assessment were “lumbar spine, left lower extremity, right lower extremity, scarring (TEMSKI)”.
As indicated above, the Medical Assessor issued the MAC in response to that referral on 16 February 2021. He certified in that, that he had assessed the appellant had 24% WPI from his injury, comprising 20% WPI with respect to the left lower extremity, 0% WPI with respect to the right lower extremity, 0% WPI with respect to the lumbar spine, 4% WPI for scarring and 1% WPI for nerve damage. The Medical Assessor indicated in the MAC that he had attached worksheets to the MAC. However, none were attached.
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 considered, for reasons explained below, that the MAC contained a demonstrable error, which would necessitate the Appeal Panel to reassess the medical dispute that had been referred to the Medical Assessor to assess. To do that, the Appeal Panel considered the appellant had to be examined again. The Appeal Panel appointed Medical Assessor Dr Roger Pillemer to do that, which he did on 22 June 2021. Dr Pillemer’s report to the Appeal Panel on his examination of the appellant is set out in Findings and Reasons below.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment. The Appeal Panel also has Medical Assessor Dr Pillemer’s report on his examination of the appellant, which is copied below in Findings and Reasons.
The Appeal Panel has taken this evidence into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor conferred with the appellant by telephone on 22 January 2021 and examined him on 25 January 2021.
Within Part 4 of the MAC the Medical Assessor recounted in the following terms the symptoms that the appellant reported he currently experiences:
“The applicant believes that his right knee and foot are now causing more discomfort than the left knee and is particularly noted with any prolonged standing or walking. He indicates the main trouble is the medial side of the right knee and the ball of the right foot.
As concerns the left lower extremity, there is discomfort noted in both the calf and
hamstring areas, as well as the knee itself.Mr Skocic noted that right-sided low backache commenced about one or two years
after the initial injury, and still causes significant discomfort.”
Within Part 6 of the MAC the Medical Assessor set out very brief summaries of the reports on the several radiological investigations that had been done on the appellant’s knees and lumbar spine.
Within Part 5 of the MAC the Medical Assessor recorded making the following findings from his examination of the appellant:
“Movements were conducted in an active manner by the applicant. Where passive movement has been induced, it has been recorded in the examination findings. Passive movements were not performed beyond the limits of comfort. Where any restriction of movement has been caused by pain, or a mechanical reason or because of any other factor, it has been recorded in the examination findings.
The build, posture and gait were normal with no evidence of limp. Height 183cm and weight 100kg. There was no difficulty with undressing, redressing or getting on and off the examination couch.
LUMBAR SPINE
There was no deformity but there was a slight degree of tenderness in the right lower paraspinal area. Range of motion was equal and normal bilaterally as concerned flexion, extension, lateral bending and rotation. There was no evidence of dysmetria, muscle spasm or guarding.Straight leg raising was 60° bilaterally with a negative sciatic nerve stretch test. Muscle power, tone and reflexes were all normal bilaterally. Sensation was reduced on the left side below the knee and most marked laterally, and there was also some reduced sensation of the left foot laterally.
LOWER EXTREMITIES
Multiple scars were noted on the left lower limb, with a 27cm pre-patellar surgical wound, an 18cm medial surgical scar below the knee, a 12cm lateral scar below the knee, with a further 10cm scar over the left iliac crest.Measured leg lengths were 95cm bilaterally from the anterior superior iliac crest to the medial malleolus. The thigh circumference 10cm above the superior border of the patella was 50cm on the right and 53cm on the left. Maximal calf circumference was 42cm bilaterally.
Range of motion of the knees was full extension bilaterally, and flexion was 120° on the right and 110° on the left. No abnormality of ligaments bilaterally or the right menisci.
There was some tenderness noted in the ball of the right foot and the base of the toes. There was no crepitus noted in the knees.
From Table 17-35 of the AMA5 Guides, the left knee replacement was described as causing moderate pain occasionally and assessed as 20 points. Range of motion was 0° to 120° with 24 points. As concerns to stability, there was less than 5mm anteroposteriorly giving 10 points. Mediolateral stability was 5° giving 15 points. As concerns deductions, there was 0° flexion contraction giving 0 points. There was no extension lag also giving 0 points. Tibiofemoral alignment was 3° valgus giving 12 points.
Total knee rating placement was 69 points minus 12 for the tibio-femoral alignment equalling 57 points, rated as a fair result.
SCARRING (TEMSKI)
The lower extremity scarring indicated the claimant was conscious of the scars and there was an easily identifiable colour contrast with surrounding skin. The scars were easily locatable. Trophic changes were palpable. The anatomic location of the scarring was readily visible with usual summer and beachwear clothing. There was easily visible contour defect. There was a minor limitation of activities of daily living with exposure to the sunlight. There was no treatment of the scars provided and there was no evidence of adherence.”
The summary the Medical Assessor provided of the appellant’s injuries was: “there has been a severe complex fracture of the left tibial plateau, requiring a total knee replacement with fair result”.
As mentioned, the Medical Assessor assessed the appellant had 24% WPI. He indicated that was in accordance with “the lower extremity worksheet”. As said above, there was no worksheet attached to the MAC. The Medical Assessor said that the worksheet indicated 5% WPI for unilateral muscle atrophy but the Medical Assessor also said it was “not permissible to combine this with the impairment of diagnosis-based estimate for the total left knee replacement”. The Medical Assessor said that the “peripheral nerve deficit affecting the left lateral sural cutaneous nerve is assessed by analogy with the lateral femoral nerve, with a maximum of 1% whole person impairment, which has been applied in Table 16-10 as Grade 3 with 60% of the maximum, which is rounded to maintain the 1% WPI for the nerve deficit”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor failed to provide any reasons for not assessing any permanent impairment relating to the right knee. The appellant observed that both Dr Patrick and Dr Breit had assessed he had permanent impairment relating to his right knee as a result of his injury.
With respect to the lumbar spine, the appellant also submitted that the Medical Assessor also failed to provide any reasons for assessing him to have 0% WPI relating to his lumbar spine. The appellant noted in his submissions that Dr Patrick had assessed him to have 7% WPI relating to the lumbar spine, which reduced to 6% WPI after Dr Patrick made a deduction under s 323 of the1998 Act, and that Dr Breit had assessed he had 5% WPI relating to his lumbar spine and made no deduction under s 323. The appellant submitted that the Medical Assessor’s assessment with respect to his lumbar spine is “so out of keeping” with the assessments of Dr Patrick and Dr Breit “so as to constitute a demonstrable error”.
In reply, the respondent submitted that the Medical Assessor based his assessment of the appellant’s permanent impairment relating to the right knee on his findings from his examination, the x-ray reports and the reports of other doctors. The respondent submitted that as a consequence the Medical Assessor did not apply incorrect criteria when assessing the degree of the appellant’s permanent impairment relating to the right lower extremity and that the MAC does not contain a demonstrable error with respect to the Medical Assessor’s assessment of that.
With respect to the lumbar spine, the respondent similarly submitted that the Medical Assessor based his assessment on his findings from examination, the x-ray reports and the reports of other doctors and, consequently, the Medical Assessor did not apply incorrect criteria to assess the appellant’s permanent impairment relating to his lumbar spine and the MAC does not contain a demonstrable error due to the Medical Assessor’s assessment of the appellant’s permanent impairment relating to the appellant’s lumbar spine.
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.
A Medical Assessor is required within the MAC to expose the actual path of his or her reasoning for the assessment he or she has made of a worker’s impairment. The detail with which the Medical Assessor does that must be sufficient to enable an Appeal Panel to determine whether there is error in the assessment.[3] If a conclusion of a Medical Assessor is self-evident in a medical sense, then the reasons need not be extensive or comprehensible to a person with no medical expertise. If however, a conclusion is medically contestable, then a Medical Assessor will need to address and explain the evidence more extensively so as to expose the path of reasoning by which he or she made the assessment.[4] Not to do so will result in the MAC containing a demonstrable error.
[3] See Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
[4] See Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34].
The Appeal Panel agrees with the appellant’s submissions that the Medical Assessor has not provided any reasons whatsoever for his assessing the appellant to have 0% WPI relating to the right lower extremity and 0% WPI relating to the lumbar spine. It can simply not be discerned from the MAC why the Medical Assessor has come to those assessments. Accordingly, the MAC does contain a demonstrable error, in the Appeal Panel’s view.
The Appeal Panel notes that in terms of considering whether there is a demonstrable error in the MAC, and whether the Appeal Panel must revoke the MAC, the Appeal Panel is limited to considering the errors raised in the appellant’s submissions, but if a demonstrable error is found by the Appeal Panel, then all elements of the matter that was referred to the Medical Assessor for assessment must be considered by the Appeal Panel when reassessing the medical dispute.[5] In doing that, the Appeal Panel can adopt any findings of the Medical Assessor, and the assessment of the Medical Assessor based on those findings, if the Appeal Panel is satisfied that those findings and the consequent assessment are correct. But the Appeal Panel of course cannot adopt any findings of the Medical Assessor or assessments based on those findings, if the Appeal Panel considers they are incorrect.[6]
[5] See Roads & Maritime Services v Rodger Wilson [2016] NSWSC 1499 at [29]; Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [59-63]; Hearne v Spamil Discretionary Trust [2018] NSWSC 1631 at [40] and Queanbeyan Racing Club Ltd v Hannah Burton [2021] NSWSC 315 at [74]
[6] See Queanbeyan Racing Club Ltd v Burton Ibid at [82]
The Appeal Panel considered it could not rely upon the findings of the Medical Assessor with respect to his examination of the appellant’s lumbar spine or right lower extremity because it was not apparent from what he had set out in the MAC with respect to his examination of those body parts that his examination was thorough. For example he did not indicate in the MAC whether he had examined the appellant for any varus alignment of the right knee. Further, it is also not apparent from the MAC that he had examined or questioned the appellant with respect to any referred pain from the appellant’s back into his lower limbs.
The Appeal Panel considered that the Medical Assessor’s examination of the appellant’s scarring and left lower extremity were thorough and that the Medical Assessor’s assessment based upon those findings was correct, such that the Appeal Panel could rely upon them.
However, given the concern the Appeal Panel had regarding the lack of thoroughness of the Medical Assessor’s findings with respect to the appellant’s right lower extremity and lumbar spine, and the lack of any reasoning whatsoever from the Medical Assessor for his assessments of the appellant’s permanent impairment relating to those body parts, the Appeal Panel, as indicated above, considered it needed to examine the appellant in order to be able to assess all elements of the matter that was referred for assessment. As also indicated above, the Appeal Panel appointed Dr Roger Pillemer to do that.
Dr Pillemer provided the following report to the Appeal Panel following his examination of the appellant:
“Mr Skocic attended alone today.
1. The workers medical history, where it differs from previous records
I read Mr Skocic the history obtained by AMS Dr R Crane at the time of his consultation on 22 January 2021 (telephone conversation), and his actual examination on 25 January 2021. Mr Skocic was in agreement with the history that was taken.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Skocic has ongoing problems with his lumbar spine and with his right knee.
Right Knee
He indicates the main discomfort being felt in the medial aspect of his knee and also posteriorly, and he does feel symptoms are getting slightly worse with time. Pain is present on a daily basis and he can be quite comfortable when he is simply at rest. Symptoms can however go as high as 8/10.
His symptoms are aggravated particularly by walking and by standing for long, and he also gets discomfort going up stairs although he negotiates these in a normal fashion. He does get some relief by resting and doing his knee exercises, and he has a ‘pedal thing’ at home which does seem to help.
He is not aware of any particular swelling in the knee but it does click and he says he occasionally has a feeling of instability in the knee. He avoids crouching and kneeling.
Lumbar Spine
Mr Skocic indicates discomfort being felt in the lower lumbar region, more to the right side with very rarely any referred pain into his lower limbs. Once again he can be quite comfortable when he is simply at rest, but symptoms can go as high as 8/10 and he often has difficulty getting out of bed.
His back symptoms are aggravated by bending, lifting, or any unguarded movements, and also by jarring, and he does get a lot of relief by resting and by warmth.
Limitations
He feels he is particularly restricted in winter when he feels like ‘a tin man’ because of the tightness in his leg and back, but he still forces himself to go for a half-hour walk on a daily basis and he will sometimes do this twice a day. He can drive but not long distances.
He lives at home with his parents and helps with the housework, and can help with the vacuuming but has to be careful because this can certainly aggravate his symptoms. When he goes shopping he does not carry very much and he has no particular problems with self-care.
3. Findings on clinical examination
Mr Skocic is a tall, well-built adult male who undresses and dresses without any particular problem and walks with a slightly antalgic gait following his left total knee replacement. He is able to walk on heels and toes and shows restriction of back movement, only getting his fingertips slightly below his knees in flexion and lateral flexion to the right is slightly more restricted than to the left.
Straight leg raising is present to 75° bilaterally, reflexes are present and equal, sensation is intact and motor power was good in all groups tested.
There is considerable wasting of his left quadriceps measured 10cm above his kneecap, which is 4cm smaller than the right side, almost certainly as a result of the significant problems with his left lower limb and left total knee replacement. His left calf is 1cm less than the right side.
He complains of discomfort to palpation in the lower lumbar region.
As far as his knees are concerned, his right knee is in 2° of varus, but he does have a satisfactory range of movement from 0 to 110°. The knee itself was stable and there was a mild effusion in his right knee today. There is some medial joint line discomfort, but the main discomfort seemed to be in the upper tibial region at the insertion of the pes.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Skocic had a weight-bearing x-ray of his knee carried out on 19 May 2021 showing some medial compartment narrowing with the lateral compartment measuring 5mm and the medial compartment 3mm.”
The Appeal Panel accepts the findings of Dr Pillemer.
The Appeal Panel notes from Dr Pillemer’s findings with respect to the appellant’s lumbar spine that the appellant has asymmetric loss of range of motion. Accordingly, the Appeal Panel assesses that the appellant’s signs with respect to his lumbar spine correlate with DRE Category II. The Appeal Panel observes that the appellant has difficulty with housework and shopping and, because of that, the Appeal Panel considers an additional 2% WPI is to be added when assessing the appellant’s permanent impairment relating to his lumbar spine for the effect that the appellant’s injury has on his activities of daily living. Consequently, the Appeal Panel assesses the appellant has 7% WPI relating to his lumbar spine.
The Appeal Panel considers that there is no evidence to indicate that the appellant had any pre-existing condition or prior injury that contributes to this impairment and, consequently,
s 323(1) of the 1998 Act is not engaged.The Appeal Panel considers that the method that best addresses the impairment the appellant has with respect to his right knee is the varus deformity. The 20 of varus
Dr Pillemer found the appellant has attracts a rating of 20% lower extremity impairment or 8% WPI. Again, there is no evidence that the appellant had any pre-existing condition or prior injury that contributes to that impairment and consequently, s 323(1) is not engaged.As mentioned, the Appeal Panel accepts the Medical Assessor’s findings with respect to the appellant’s left knee and scarring. Accordingly, the Appeal Panel assesses the appellant to have 20% WPI with respect to his left lower extremity and 4% WPI with respect to scarring. With respect to the Medical Assessor’s assessment relating to scarring, the Appeal Panel notes that within the body of the MAC the AMS indicated 1% WPI for scarring as the best fit, but in the Table appended to the MAC he indicated his assessment was 4% WPI. Noting the Medical Assessor’s findings in the MAC for his examination of the appellant’s scars, the latter figure is obviously the correct figure. The Appeal Panel considers that those findings “best fit” the criteria in Table 14-1 of the Guidelines for 4% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 February 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 Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Richard Crane 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) |
| Left lower extremity | 2/05/06 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 20% | nil | 20% |
| Right lower extremity | 2/05/06 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 8% | nil | 8% |
| Lumbar spine | 2/05/06 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 7% | nil | 7% |
| Scarring | 2/05/06 | Chapter 14 Pages 73-74 | 4% | nil | 4% | |
| Nerve damage | 2/05/06 | 1% | nil | 1% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 35% | |||||
Marshal Douglas
Member
Dr Roger Pillemer
Medical Assessor
Dr Gregory McGroder
Medical Assessor
1 July 2021
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