Spence v All Pavement Solutions Pty Ltd
[2023] NSWPICMP 13
•17 January 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Spence v All Pavement Solutions Pty Ltd [2023] NSWPICMP 13 |
| APPELLANT: | William Spence |
| RESPONDENT: | All Pavement Solutions Pty Ltd |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 17 January 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; left lower extremity injury; total knee replacement after injury; appeal by worker concerned the section 323 deduction of one-half made by the Medical Assessor (MA); account must be taken of the contribution of the pre-existing condition and abnormality of the left knee demonstrated on the radiological investigations to the level of permanent impairment assessed as a result of injury; the available evidence at odds with a deduction of one-tenth and supported a deduction of one-half as assessed by the MA; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 September 2022 All Pavement Solutions Pty Ltd (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 19 August 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 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.
The appellant requested a re-examination. As a result of that preliminary review, the Appeal Panel determined that the worker need not undergo a further medical examination because the Appeal Panel did not find error, for the reasons set out below and absent a finding of error, the Appeal Panel has np power to require a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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 have been considered by the Appeal Panel.
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 matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 29 October 2019
· Body parts/systems referred:
o Left lower extremity (knee)
o Lumbar spine
o Scarring - TEMSKI
· Method of assessment: Whole Person Impairment”
The MA first issued a MAC as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. Left Lower Extremity (Knee)
29 October 2019
Chapter 3, Pages 13-19
Chapter 17, Pages 523 to 564
To be confirmed
To be confirmed
To be confirmed
2. Lumbar Spine
29 October 2019
Chapter 4,
Pages 20-25
Chapter 15
Page 384
Table 15-3
6%
Not applicable
6%
3. Scarring - TEMSKI
29 October 2019
Guidelines Chapter 14 Table 14.1
1%
Not applicable
1%
Total % WPI (the Combined Table values of all sub-totals)
To be confirmed
The MA called for the investigations of the left knee which had been undertaken but were not brought to the examination.
Upon receipt of the investigations, the MA provided the following further reasoning and issued a final certificate:
“Please note that I have now received reports of Mr Spence’s MRI of his left knee that was carried out on 4 November 2019 within a week of his injury on 20 October 2019.
As noted the radiologist reports that ‘there is a full thickness cartilage loss demonstrated along the weight bearing lateral compartment in keeping with moderate osteoarthritis. Early cartilage wear, medial compartment’. There was also noted to be a bucket handle tear involving the entire posterior horn and body of the lateral meniscus as well as a chronic intermediate-grade partial tearing of ACL with mature scar tissue repair.
An X-ray of Mr Spence’s left knee carried out on 4 March 2020 is reported as showing mild reduction of the lateral femorotibial compartment joint space without bone-on-bone contact.
An MRI of the left knee on 4 March 2020 once again showed the full thickness chondral loss in the lateral femorotibial compartment.
Having seen these investigations, it was seen that Mr Spence had advanced degenerative changes in his lateral compartment with a full thickness cartilage loss (grade 4 osteoarthritis) as well as evidence of a chronic partial tear of his anterior cruciate ligament.
In my opinion then a significant deduction for his previous condition needs to be made noting that the main reason for Mr Spence’s total knee replacement in July 2020 was on the basis of his long-standing advanced osteoarthritic condition. I would certainly accept that the injury on 29 October 2019 would have made the need for his knee replacement to have been required earlier than would otherwise have been the case.
In my opinion a one-half deduction would be appropriate in the present situation.
Table 2 below reflects my final opinion regarding Mr Spence.
Body Part or system
Date of Injury
Chapter,
page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. Left Lower Extremity (Knee)
29 October 2019
Chapter 3, Pages 13-19
Chapter 17, Pages 523 to 564
20%
One-half
10%
2. Lumbar Spine
29 October 2019
Chapter 4,
Pages 20-25
Chapter 15
Page 384
Table 15-3
6%
Not applicable
6%
3. Scarring - TEMSKI
29 October 2019
Guidelines Chapter 14 Table 14.1
1%
Not applicable
1%
Total % WPI (the Combined Table values of all sub-totals)
16%
The worker appealed. The appeal concerns only the left lower extremity (knee). There was no complaint on appeal about the overall assessment of the level of permanent impairment. The complaint on appeal concerned the application of a one-half deduction under s 323.
In summary, the appellant submitted that the MA made a demonstrable error in making a deduction of one-half under s 323 which it is submitted is “excessive, contrary to the evidence, based upon an erroneous understanding of the operation of that section and lacking adequate reasons.”
In summary, the respondent employer All Pavement Solutions Pty Ltd submitted that the MA did not err and accordingly the MAC should be confirmed.
The MA took a history of injury consistent with the other evidence before him as follows:
“Mr Spence informs me that he was originally employed by All Pavement Solutions as a labourer in the late 2018 on a casual basis but working full hours. He was eventually put on to a full-time basis.
His history was confirmed of having sustained an injury to his left knee on 29 October 2019, now some two years and nine months ago. He was apparently coming down from his tipper, going backwards down the stairs and holding onto a bar when he slipped on the last step and fell approximately two feet, landing heavily on his left foot and twisting his left knee. Mr Spence has had ongoing problems with his left knee ever since then.
This will be discussed below.
As far as treatment is concerned, I note that he saw an orthopaedic specialist and came to his first operation on 13 December 2019, some six weeks after his injury. I note from his treating specialist reports that there was a tear of the lateral meniscus, which required partial meniscectomy as well as grade lll to lV wear of the lateral femoral condyle, which the treating specialist felt was clearly as a result of the displaced meniscal fragment.
Because of persistent symptoms Mr Spence came to a second operation on 21 July 2020 being a total knee replacement on the left side.
In addition to the surgical procedures, he has had extensive conservative treatment including tablets and physiotherapy and nerve blocks and remains under the care of his treating pain specialist whom he sees every six months or so. Ketamine infusion has been discussed with him but not carried out at the present time.”
The MA took a history that the appellant denied any problems with his knee prior to injury as follows:
“Mr Spence denied any problems with his left knee or his lumbar spine prior to his injury in October 2019.”
The MA recorded his findings on examination which are not the subject of any complaint on appeal and nor is the overall level of permanent impairment assessed.
In respect of the special investigations the MA noted as follows:
“Unfortunately, Mr Spence did not bring his investigations in with him today and I note that he had an MRI carried out on 4 November 2019 within a week of his injury, which apparently showed a bucket-handle tear of the lateral meniscus as well as full-thickness chondral loss in the lateral compartment. There was also a suggestion of a chronic partial tear of the anterior cruciate ligament and mild medial compartment osteoarthritis.”
As set out above the MA ultimately called for the production of the above investigations prior to finalisation of his assessment.
The MA summarised the injuries and diagnosis as follows:
“Mr Spence then sustained a twisting injury to his left knee on 29 October 2019 and has had significant ongoing problems with his knee since then. Because of persistent and severe symptoms, he eventually came to a left total knee replacement on 21 July 2020.
As noted, following his knee replacement, he developed symptoms in his lumbar spine with referred pain down his right lower limb and these symptoms have persisted since then. The most likely explanation is that he has a mechanical problem in the lower lumbar region, but there was no evidence today of any neurological involvement (that is, no radiculopathy).”
In respect of consistency of presentation, the MA observed as follows:
“Mr Spence’s presentation clinically was consistent, although the diffuse stocking sensory loss of the left lower limb is a non-organic finding as is the discomfort with axial loading.
In addition, I have some difficulty in coming to terms with the fact that Mr Spence had no problems with his left knee prior to the injury on 29 October 2019, noting the findings of what would appear to be advanced osteoarthritic change in his lateral compartment and a chronic partial tear of his anterior cruciate ligament noted in the MRI carried out within a week of his injury.
Please note in this regard I am obviously reluctant to suggest a section 323 deduction for the ongoing problems with his left knee without seeing his various investigations which were carried out within a week of his injury and I have, therefore, arranged for Mr and Mrs Spence to post these X-rays to me as soon as possible, so that I can review these as well as in addition to the MRI scan, any straight X-rays that were carried out as well.”
The MA explained his assessment of the overall level of impairment which is not the subject of complaint and in respect of the s 323 deduction he stated:
“As mentioned above, in my opinion, there will be a deduction for his pre-existing osteoarthritic condition of his left knee, and I will only be able to assess this once I have seen his investigations. I will send a supplementary Medical Assessment Certificate at that stage.”
The MA had regard to the opinions of the other experts whose reports were in evidence as follows:
“I note the opinions of Dr D Hale, Treating Orthopaedic Specialist, who notes the operations and the findings at operation and noting that when seen in February 2021 Mr Spence was much improved with the range of movement from 0°-120°. He was last seen on 3 March 2021 and his condition was not felt to be stable at that stage and I note there was no mention of any back pain at that time.
A report of Dr R Powell, Orthopaedic Surgeon, on the first occasion on 1 October 2021 with a diagnosis of the tear of the lateral meniscus with aggravation of underlying lateral compartment degenerative change.
When seen on 21 January 2022, post total knee replacement, he finds a fair result in relation to the left knee replacement with 20% WPI and maximum one-tenth deduction for pre-existing condition giving 18% WPI. He suggests no impairment for scarring and no impairment in relation to the lumbar spine.
A report of Dr J Herald, Orthopaedic Surgeon, on 16 June 2021, noting the restricted range of movement in relation to the lumbar spine particularly lateral flexion to the left and restricted straight leg raising and not finding any neurological loss in the lower limbs.
He notes the diagnosis of a bucket-handle tear of the lateral meniscus with chondral damage and finding a fair result following the left total knee replacement with 20% WPI and not making any deduction for pre-existing condition.
Dr Herald has suggested 2% WPI for scarring, noting trophic changes and the contour defect with contrasting colour, but as noted I have suggested a 1% for scarring.
He has placed Mr Spence in DRE Category II of his lumbar spine with 7% WPI and as noted, I suggested 6% WPI.
Dr Herald has therefore suggested a total of 27% WPI.”
In this regard the Appeal Panel notes that the independent medical expert (IME) qualified on behalf of the respondent employer, Dr Powell made a deduction under s 323 of one-tenth and the IME qualified on behalf of the appellant, Dr Herald made no deduction under s 323.
The role of the MA is to conduct an independent assessment on the day of examination. He must bring his own clinical expertise to bear in making the assessment and is not bound to follow the opinion of the other experts whose reports are in evidence.
Once the MA was provided with the special investigations, he made a deduction of one-half under s 323 with the following reasoning.
“Please note that I have now received reports of Mr Spence’s MRI of his left knee that was carried out on 4 November 2019 within a week of his injury on 20 October 2019.
As noted the radiologist reports that “there is a full thickness cartilage loss demonstrated along the weight bearing lateral compartment in keeping with moderate osteoarthritis. Early cartilage wear, medial compartment”. There was also noted to be a bucket handle tear involving the entire posterior horn and body of the lateral meniscus as well as a chronic intermediate-grade partial tearing of ACL with mature scar tissue repair.
An X-ray of Mr Spence’s left knee carried out on 4 March 2020 is reported as showing mild reduction of the lateral femorotibial compartment joint space without bone-on-bone contact.
An MRI of the left knee on 4 March 2020 once again showed the full thickness chondral loss in the lateral femorotibial compartment.
Having seen these investigations, it was seen that Mr Spence had advanced degenerative changes in his lateral compartment with a full thickness cartilage loss (grade 4 osteoarthritis) as well as evidence of a chronic partial tear of his anterior cruciate ligament.
In my opinion then a significant deduction for his previous condition needs to be made noting that the main reason for Mr Spence’s total knee replacement in July 2020 was on the basis of his long-standing advanced osteoarthritic condition. I would certainly accept that the injury on 29 October 2019 would have made the need for his knee replacement to have been required earlier than would otherwise have been the case.
In my opinion a one-half deduction would be appropriate in the present situation.”
A s 323 deduction can only be made if the pre-existing injury, condition or abnormality has contributed to the level of permanent impairment assessed. The MA deducted one-half for the reasons he gave above.
The Appeal Panel after a careful review of the evidence can discern no error in the making of a one-half deduction under s 323.
A deduction can only be made if the pre-existing condition or abnormality has contributed to the level of permanent impairment assessed. Here the level of permanent impairment is assessed in accordance with the correct criteria in the guidelines on the basis of the total knee replacement having had a “result” which results in a 20% whole person impairment (WPI).
The appellant has come to a total knee replacement as a result of both the injury and the underlying condition/abnormality of the left knee. This is consistent with the available radiological evidence which includes an MRI of 4 November 2019 undertaken taken shortly after the injury on 29 October 2019. This showed grade 4 osteoarthritis and a chronic partially ruptured ACL with mature (that is, pre-existing) scar tissue. Neither of these findings are the result of the injury but these chronic underlying conditions along with the injury have contributed to the need for the total knee replacement. As the assessment of impairment is based on the knee replacement, the contribution of the underlying condition or abnormality of the knee to the overall level of permanent impairment assessed must be taken into account by making a deduction under s 323. A one-tenth deduction would be at odds with the available evidence being the MRI investigation undertaken proximate to the injury and revealing the extent and chronicity of the pre-existing condition or abnormality of the knee.
The chronicity of the changes are shown on the radiological investigations in particular the MRI of 4 November 2019 taken within days of the injury.
After the injury on the appellant was not successfully able to return to work, symptoms persisted and he came to his first surgery in December 2019 but his condition continued to deteriorate and ultimately he came to surgery in the form of a total knee replacement in July 2020. It is the total knee replacement surgery on which the assessment of permanent impairment is based.
The assessment of overall permanent impairment is of 20% WPI is based on the surgery (total knee replacement with a fair result) and the overall level of permanent impairment is not the subject of complaint on appeal.
The contribution of the pre-existing condition, abnormality or injury to the overall level of permanent impairment must be taken into account.
On the available evidence, the pre-existing condition of the left knee is able to be demonstrated by the MRI investigation of 4 November 2019.
The grade 4 osteoarthritis (advanced) and the chronic partially ruptured ACL with mature scar tissue does not result from injury on 29 October 2019 but is a pre-existing condition which was aggravated by the injury and the first surgery. The pre-existing condition demonstrated by the radiological investigations, and the injury on 29 October 2019 have both contributed to the need for the total knee replacement surgery on which the assessment of permanent impairment is based. The fact that the appellant was asymptomatic prior to injury is taken into account but it is not determinative.
Account must be taken of the contribution of the pre-existing condition and abnormality of the left knee demonstrated on the radiological investigations to the level of permanent impairment assessed as a result of injury on 29 October 2019. The available evidence is at odds with a deduction of one-tenth. Rather, the available evidence supports a deduction of one-half. Accordingly the Appeal Panel can discern no error in the deduction of one-half made by the MA under s 323 in these circumstances and the MA has provided adequate reasons in support of the deduction.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 August 2022 should be confirmed.
0
2
2