Slab Technologies Pty Ltd v Nicholson
[2022] NSWPICMP 96
•22 April 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Slab Technologies Pty Ltd v Nicholson [2022] NSWPICMP 96 |
| APPELLANT: | Slab Technologies Pty Ltd |
| RESPONDENT: | Craig Nicholson |
| APPEAL PANEL: | Member Catherine McDonald Dr Tommasino Mastroianni Dr J Brian Stephenson |
| DATE OF DECISION: | 22 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Assessment of consequential condition in left knee; Medical Assessor used Table 17-31 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed which applies subject to conditions in footnote; conditions in footnote not fulfilled; Held– Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 February 2022 Slab Technologies Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 January 2022.
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 was satisfied that, on the face of the application, at least one ground of appeal has been made out. We have conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2018 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 2018.
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
Mr Nicholson suffered an injury on 9 November 2012 in the course of his employment as a truck driver. He slipped and fell on a building site while carrying a “slab pack” which weighed about 40kg, twisting his right knee.
Before that injury he had undergone a right anterior cruciate ligament (ACL) reconstruction in 2000 and a left meniscectomy in 2002.
Since the 2012 injury, Mr Nicholson has undergone three arthroscopies, a further revision ACL reconstruction, two right total knee replacements and two further revision surgeries.
It is accepted that, as a result of the right knee injury, Mr Nicholson has suffered consequential conditions in his lumbar spine and left knee and scarring.
The Medical Assessor assessed 20% whole person impairment (WPI), as a result of the right knee injury and deducted one-tenth under s 323 of the 1998 Act, resulting in an assessment of 18% WPI. He assessed no WPI as a result of the lumbar spine condition and 2% in respect of his left knee condition. He was not required to assess scarring because the parties had agreed at a telephone conference that it resulted in 1% WPI.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because there is adequate information in the file to determine the appeal.
EVIDENCE
We have 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.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
The appeal is narrow and concerns only the assessment in respect of Mr Nicholson’s left knee. In summary, Slab Technologies submitted that the Medical Assessor erred by using Table 17-31 of AMA 5 to assess 2% WPI. Table 17.31 relevantly applies to allow for the addition of 2% WPI “in an individual with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on x-rays.” Slab Technologies submitted that there is no history of direct trauma to Mr Nicholson’s left knee to justify the application of Table 17-31.
Slab Technologies noted that Dr Millons (on whose report it relied) noted that the ongoing effects of arthroscopic surgery in Mr Nicholson’s left knee were not work related. Dr Giblin who had assessed Mr Nicholson at the request of his own solicitors had assessed 1% WPI on the basis of a torn medial meniscus. Slab Technologies submitted that the appropriate assessment was 0%.
In reply, Mr Nicholson submitted that the assessment for left knee impairment was correct whether the Medical Assessor used Table 17-31 of AMA 5 or Table 17-10. He said that Dr Giblin clearly stated that his left knee became sore because he was constantly favouring his right knee and whether he had a previous torn medial meniscus is irrelevant. He noted that Dr Millons had accepted that his left knee symptoms were consequential to his chronic right knee problems.
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[1] 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 MAC
[1] [2006] NSWCA 284.
The Medical Assessor summarised the history of surgery to Mr Nicholson’s knees before the 2012 injury, which included an injury when his left knee locked while unloading a truck. Dr Hale undertook an arthroscopy on 10 September 2002 which assisted his symptoms. The Medical Assessor said:
“Mr Nicholson also states that his left knee has been causing intermittent discomfort for some years but with much less discomfort than on the right side. Dr Hale has told him that he will probably need a knee replacement on that side in the future. There has been no specific incident relating to the left knee.
On making reference to the reports of Dr Hale, it is noted that the left knee discomfort became apparent in early 2018, first mentioned in his report to Dr Chin on 23 January 2018. Mr Nicholson is in agreement with this.”
The Medical Assessor recorded that Mr Nicholson’s left knee was not causing any pain at the time of the assessment though there was discomfort “some days ago”. He described his assessment of both knees:
“Active range of motion of the right and left knee reveals full extension to 0° and measured flexion to 130° on the right and 140° on the left. There is no evidence of local effusion, redness or heat. There is a very fine patellofemoral crepitus noted on the anterior aspect of the left knee. Both knees are stable referencing collateral and cruciate ligament structures. On standing erect both knees demonstrate a 5° valgus alignment. There is no evidence of flexion contracture on the right or left and there is a less than 10° extension lag on the right. There is a medial to lateral instability demonstrated at 5° on the right and left side. There is a less than 5 mm anterior movement on the right and left side.”
When summarising the injuries and diagnoses the Medical Assessor said:
“His left knee has also become symptomatic, as outlined above in the ‘history’. There is currently a history of an earlier arthroscopic procedure potentially that of a partial medial meniscectomy on the left in October 2000.”
The Medical Assessor described his assessment:
“At the time of today’s assessment there is a full range of stable motion of the left knee with evidence of faint patellofemoral crepitus. It is noted that by referencing Table 17.31 AMA 5, in a history of direct trauma with the complaint of patellofemoral pain and crepitus on physical examination but without joint space narrowing on x-ray a 2% whole person impairment may be noted.”
Consideration
It is accepted that Mr Nicholson suffered a consequential condition in his left knee. That does not necessarily mean that he suffers rateable permanent impairment. The impairment assessed by Dr Giblin was in respect of a diagnosis based estimate of a torn medial meniscus. That condition pre-dated the right knee injury in 2012 and the assessment was not appropriate.
Table 17-31 of AMA 5 is headed “Arthritis Impairments Based on Roentgenographically Determined Cartilage Intervals.” The purpose of the Table is to assess impairment arising from arthritis. The accompanying text notes that the hallmark of arthritis is thinning of the articular cartilage which correlates well with disease progression. The footnote to
Table 17-31 provides that in some circumstances the use of the Table can be extended. The footnote reads:“In an individual with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination but without joint narrowing on x-rays, a 2% whole person or 5% lower extremity impairment is given.”
The MRI scan of Mr Nicholson’s left knee dated 5 August 2019 showed that the medial meniscus was blunted suggesting previous debridement. The lateral meniscus was intact and the cartilage laterally was maintained. The patellofemoral compartment showed “relatively good cartilage preservation.”
There is no relevant history of direct trauma to Mr Nicholson’s left knee. The Medical Assessor was required to assess Mr Nicholson on the day of the examination. He observed a full range of stable motion of his left knee with “very fine” patellofemoral crepitus on the anterior aspect of the left knee. The Medical Assessor noted that Mr Nicholson did not describe actual pain on the day of the examination.
The criteria for assessment under Table 17-31 were therefore not met and the MAC should be revoked to the extent of the assessment in respect of Mr Nicholson’s left knee.
Mr Nicholson submitted that the assessment would have been the same if Table 17-10 of AMA 5 had been applied. That is not correct because the Medical Assessor’s findings do not satisfy the criteria on examination - the Medical Assessor found full extension and 140° of flexion. There was no evidence of flexion contracture and both knees demonstrated 5° valgus alignment.
For these reasons, we have determined that the MAC issued on 14 January 2022 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 Ian Meakin 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 (knee) | 9.11.12 | Chapter 3, Pages 16 - 23 | Chapter 17, pages 546 and 549. Table 17.33 & 17.35 | 20% | One-tenth | 18% |
| Lumbar spine | 9.11.12 | Chapter 4, pages 24 – 30 | Chapter 15, page 384. Table 15-3 | 0% | N/A | 0% |
| Left lower extremity (knee) | 9.11.12 | Chapter 3, Pages 16 - 23 | Chapter 17 | 0% | N/A | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
Catherine McDonald
Member
Dr Tommasino Mastroianni
Medical Assessor
Dr J Brian Stephenson
Medical Assessor
22 April 2022
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