Smith v Country Energy

DETERMINATION OF APPEAL PANEL
CITATION:	Smith v Country Energy [2023] NSWPICMP 661
APPELLANT:	James Henry Smith
RESPONDENT:	Country Energy
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	12 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in both making an assessment of the back and in the deduction made pursuant to section 323; the Panel agreed; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 September 2023 James Henry Smith (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor,(MA) who issued a Medical Assessment Certificate (MAC) on 24 August 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·the assessment was made on the basis of incorrect criteria, and
·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.
Rule 128 of the Personal Injury Commission Rules 2021 (the 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.
This matter was assessed under the table of disabilities.

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 Procedural Direction PIC7.
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this 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.
In summary, the appellant submits that the MA erred in both making an assessment of the back and in the deduction he made pursuant to s 323 of the 1998 Act.
In reply, Country Energy (the respondent) submits that no errors were made, and the MA's assessment clearly stated his findings, his understanding of the appellant's clinical history, his observations upon examination, and in his clinical judgement, in his assessment of permanent impairment.

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 under the Table of Disabilities in respect of the right leg at or above the knee, the left leg at or above the knee and the back resulting from an injury on 5 May 1981.
The MA set out the history he obtained as follows:
“Mr Smith related that on 05/05/81, he was coming down a ladder, having replaced a bulb. As he came off the ladder he twisted his right knee. This resulted in a medial meniscus tear. The condition was managed conservatively for about two years or so. Nevertheless, it did deteriorate sufficiently that he had to access orthopaedic assistance. He came under the care of Specialist Orthopaedic Surgeon, Dr John Cleary, who carried out an open medial meniscectomy in 1983. This gave him a reasonable result and he was able to continue with his occupation. Gradually, the condition of the right knee deteriorated due to accelerated degenerative change. Eventually, nearly 40 years later in 2021, he came under the care of Specialist Orthopaedic Surgeon, Dr Anthony Wilson. It was identified that his knee had deteriorated to such an extent that a knee joint replacement was the most appropriate clinical management. This was managed on the public list on 10/05/21. Mr Smith achieved a very satisfactory result from this. He was able to continue with his occupation.
He described that his left knee had caused dysfunction around 2005, although I was unable to find any records of that time. Attention is drawn to the only records which I was able to identify in the file concerning his left knee which referred to falling in a hole in early May 2021, which was literally several days before the right sided knee joint replacement.
Mr Smith advised that he had also experienced lower back pain with sciatica down his right leg and that after the right knee joint replacement this largely resolved. Attention is also drawn to the only available clinical evidence I could find about the lower back condition, which suggested that he had experienced a disc prolapse sometime around the year 2000.”
Present symptoms were described as follows:
“Lower back pain which is not there all the time but tends to wax and wane, depending on what he is doing. He described that his right knee joint replacement has been quite successful, although he continues to experience some muscle pain over the anterior of the right thigh. He has pain in his left knee on the medial side and also underneath the patella.”
The MA added:
“There is no previous injury recorded with the right knee. With the left knee, he described that there was some pain in the left knee around 2005 but this seems to have been a fairly isolated event. The occasion with falling in the hole in the GP progress notes of 01/05/21 refers to an event which apparently occurred two weeks beforehand, although there are no further details.
A General Practitioner comment in the progress notes of 20/06/16 draws attention to a prolapsed disc some 16 years previously, which would have been sometime in the year 2000. Again, no specific details were available.”
The MA noted:
“For all of his working life, Mr Smith has been in the electrical industry. This has been with industrial issues, mostly in the supply of electricity through powerlines. He is continuing with this work, although tends not to climb ladders.”
Findings on physical examination were reported as follows:
“Back. There was mild ache in his lower back, focused towards the right sacro-iliac joint. The spinal curvatures were normal. There was no scoliosis or muscle spasm. On forward flexion he could reach his lower thighs with a McRae-Wright movement of 3cm This is a little stiff. The lower level of normal is 5cm. Extension was reduced to half the normal range. Lateral flexion and rotation to each side were only just short of normal.
Lower Limbs. He walked normally. He could also walk on heel and toe. He made a brave attempt at squatting and could manage two-thirds of the normal range. The left leg was slightly longer than the right. Since there has been a unilateral knee joint replacement, circumferential measurements of each leg would not have been of diagnostic value.
No significant features were identified with the hips or the ankles. At the knees he had full extension at 0°. On the right side, flexion ceased at 120° and on the left at 140°. There was no retro-patellar or joint-line tenderness on the right side. On the left side, there was antero-lateral joint-line tenderness. There was no knee joint swelling. There was some crepitus in the left knee.
Sensation to pinprick was slightly reduced over the lateral side of the left foot and ankle. This could suggest minor irritation of the left S1 nerve root. Elsewhere sensation was throughout the normal distribution and was equivalent. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.”
The MA then noted the radiological material he had and said:
“13/02/19 Plain x-ray right knee Degenerative changes, particularly at the medial compartment.
05/05/21 Plain -x-ray left knee. Early medial compartment degenerative changes.”
He summarised the injuries and diagnoses as follows:
“Mr Smith sustained a twisting injury to his right knee in early May 1981, which is now well over 42 years ago. This resulted in a tear to the medial meniscus. This was managed a couple of years later by an open medial meniscectomy. This gave him quite a good result, although as would reasonably be anticipated, he subsequently developed accelerated degenerative change. This developed to such an extent that a knee joint replacement was conducted in October 2021. This gave him a very good result.
There is no history (at all) of injury to his lower back or his left knee associated with the event of May 1981. There is very limited detail in the clinical file that suggests that somewhere around the year 2000, he may have experienced sciatica from what was briefly described as a prolapsed disc, although there were no confirmatory radiological investigations. This condition largely seems to have resolved following the knee joint replacement.
Similarly, I can find very little clinical information about his left knee. The only thing I was able to find was a brief report that just over a week before he was due to have the right knee joint replacement he ‘fell in a hole’ and hurt his left knee. A plain x-ray was taken which demonstrated mild to moderate degenerative changes on the medial side.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA said “Yes” adding:
“Attention is drawn to the very brief details in the General Practitioner progress notes about his back pain and his left knee. This quite strongly suggests that both of these issues have nothing at all do with the condition of his right knee, either at the time when the right knee was injured or subsequently because of the condition of the right knee.”
The MA made the following assessments:
“Right Knee. There has been a right total knee joint replacement. This has given him a very reasonable result. As such, an impairment of the leg at or above the knee of 30% is appropriate.
Left Knee. There was relatively little to find with the left knee at this assessment, other than the development of degenerative changes on the medial side. This would reasonably account for an impairment of 10% at or above the knee.
Back. There was relatively little to demonstrate with his lower back He continues to have some ache in the back with some minor tenderness focused towards the right sacro-iliac joint. Neurologically, there were some minor (very minor) features down the left leg, possibly associated with minor irritation of the left S1 nerve root. These features are assessed with an impairment of the back of 10%.”
The MA then turned to comment on the other material he had and said:
“Specialist Orthopaedic Surgeon, Dr Alan Hopcroft in his report of 28/04/22 advises 20% impairment for the right leg. Following the knee joint replacement, I believe this would reasonably be a little more. He also advises on impairments of the left leg and the back, each of 10%, with which I would agree.
I would draw attention to the details in the General Practitioner progress notes which suggest that there was a disc prolapse somewhere around the year 2000 and also with a much more recent report that suggests that shortly before the right knee joint replacement, Mr Smith fell in a hole, hurting his left knee.”
He concluded:
“Attention is drawn to the complete absence of any clinical detail which reasonably links the left knee condition and the lower back to the event of May 1981, when Mr Smith twisted his right knee. Similarly, I can find absolutely no clinical evidence which reasonably links either of these two conditions to any possible effects from that occasion. The only clinical detail I can find in the file suggests that there may have been some form of disc prolapse around the year 2000. With the left knee, there is a history much more recently in early May 2021 when he fell this assessment, the clinical findings of the lower back and the left knee were relatively minimal. These impairments therefore quite conclusively refer to other occasions and do not have anything to do with the event of May 1981 and therefore are fully deducted.”

The Submissions

The appellant submits as follows:
(a)    there are no claims available for lump sum compensation in respect of the back for a pre-1987 injury.
(b)    The left knee condition is a consequential injury, not disputed by the respondent.
(c)    It is not the role of an MA to determine causation.
(d)    In the MAC the MA states:
“I can find very little clinical information about his left knee. Attention is drawn to the very brief details in the general practitioner progress notes about his back pain and left knee. This quite strongly suggests that both of these issues have nothing to do with the condition of his right knee, either at the time when the right knee was injured or subsequently because of the condition of this right knee".
(e)    The MA also said: "attention is drawn to the complete absence of any clinical detail which reasonably links the left knee condition to the event in May 1981.”
(f) All of these above comments go to causation not a s 323 deduction. It is not within the power of the MA to decide causation.
(g) This claim goes way back to an injury in 1981 to the right knee. Any s 323 deduction would have to pre-exist that date. There is simply no evidence to suggest any pre-existing injury before 1981.
(h)    Even if that isn't correct there is simply no evidence to suggest that there is a preexisting problem to the left knee before, say, the knee replacement in 2021.
(i) The Approved Medical Specialist found there was 10% permanent loss of use of the left leg at or above the knee (which incidentally is incorrect terminology, the correct terminology being 'left leg or greater part thereof). However, he purported to deduct that entire amount because of s 323 of the Workers Compensation Act 1987 (1987 Act).

Discussion

The provisions of the Workers Compensation Act 1926 (the 1926 Act) are applicable in this case.
The appellant is correct in stating that there is no provision for lump sum compensation for a back injury prior to 1987.
Having said that, neither the appellant nor the respondent challenged the terms of the referral, leading to an unnecessary claim being determined.
The appellant does not challenge the assessment with respect to the right knee injury.
The correct terminology regarding assessments in respect of both knees should read “Loss of leg or the greater part thereof.”
In his statement dated 30 November 2022, Mr Smith said:
“In 1975 I commenced an apprenticeship with Namoi Valley County Council and worked there until 1998. I then did several years self-employed and returned to Country Energy, (later Essential Energy) in October 2011 which is my current position.
On 5 May 1981 whilst working with the Namoi Valley County Council, (which became part ultimately of Essential Energy) I was replacing a light bulb in a home. Whilst stepping down from the ladder I twisted my right knee. I heard a crunch and I immediately noticed that I was in pain.”
Mr Smith has worked essentially in the same role since 1975. As the appellant correctly points out, there is simply no evidence of any pre-existing problems with the left knee prior to the May 1981 injury to the right knee.
Degenerative changes would be expected in a man of Mr Smith’s age given the fairly heavy nature of his work as the radiological material demonstrated, but that is not the test as regards any deduction.
Cole v Wenaline Pty Ltd (2010) NSWSC 78 is relevant authority for s 323 of the 1998 Act. It is noted that in order for a deduction to be made under s 323 there must be evidence that a pre-existing abnormality; condition; or previous injury contributes to the impairment.
Similar terminology is found in s 68A of the 1987 Act. It states:
“…there is to be a deduction for any proportion of the loss that is due to any previous injury…or to any pre-existing condition or abnormality.”
In our view, there is no such evidence in this case.
The appellant is equally correct in submitting that an MA is not entitled to determine causation. The role is confined to a clinical assessment of a claimant as they present on the day and in accordance with the terms of the referral.
The MA exceeded his role in purporting to make a deduction in respect of his assessment of any “loss of the left leg or the greater part thereof.”
For these reasons, the Appeal Panel has determined that the MAC issued on 24 August 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received before 1 January 2002

Matter Number:	W4107/23
Applicant:	James Henry Smith
Respondent:	Country Energy

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 Tim Anderson 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	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.)
Loss of the right leg or the greater part thereof.”	05/05/81	30	0	30

[2023] NSWPICMP 661

12 December 2023