State of New South Wales (NSW Police Force) v Fryer
[2022] NSWPICMP 500
•7 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (NSW Police Force) v Fryer [2022] NSWPICMP 500 |
| APPELLANT: | The State of New South Wales (NSW Police Force) |
| RESPONDENT: | Paul Fryer |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 7 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Matter referred to Medical Assessor (MA) for assessment was an injury to the right knee on 13 October 2018; not a section 15 or section 16 of the Workers Compensation Act 1987 injury or a “nature and conditions” injury relating to events over the period of employment; Medical Assessment Certificate (MAC) contained a demonstrable error as the injury assessed (a nature and conditions injury) by the MA was not what was referred for assessment; MA made an error and failed to consider whether any impairment arose out of previous injury, pre-existing condition or abnormality including the injuries in 1989 and 2017 and whether a deduction should be made for a previous injury; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 October 2022 the State of New South Wales (NSW Police Force) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Greg McGroder, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 23 September 2022.
The respondent to the appeal is Paul Fryer (Mr Fryer).
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 pursuant to
s 327(3)(c) of the 1998 Act, 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.
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 reissued on 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Fryer sustained an injury to his right knee and lumbar spine on 13 October 2018.
In an Application to Resolve a Dispute (ARD) filed on 6 July 2022, Mr Fryer made a claim for 21% whole person impairment (WPI) in respect of his right lower extremity, lumbar spine and TEMSKI/Scarring as a result of the injury on 13 October 2018.
The matter was referred to the MA, Greg McGroder, on 24 June 2021 for assessment of WPI of the right lower extremity and lumbar spine (date of injury 13 October 2018) and scarring (TEMSKI).
On 28 July 2022, the Personal Injury Commission (Commission) issued an amended referral to the MA. The amended referral simply deleted the requirement to assess Mr Fryer’s lumbar spine.
The MA examined Mr Fryer on 15 September 2022 and assessed 20% WPI of the right lower extremity and 0% for scarring as a result of the injury on 13 October 2018.
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 that Mr Fryer be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Fryer to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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 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.
The appellant’s submissions include the following:
(a) The box “deemed date” in the ARD was not ticked signifying Mr Fryer was only relying upon the injury which occurred on 13 October 2018. It also signified that Mr Fryer was not relying upon a disease injury due to any particular period of his service with the appellant and was only relying upon a “frank” injury on that day.
(b) The date of injury in the referral to the MA was 13 October 2018. The referral did not have the words “deemed” after the date. Mr Fryer did not challenge the terms of the referral to the MA. The appellant did challenge the referral in respect of Mr Fryer’s lumbar spine being referred for assessment.
(c) On 20 July 2022, the Commission, with agreement of the parties, issued an amended referral to MA. The amended referral simply deleted the requirement to assess the lumbar spine and the MA was requested to assess the permanent impairment of Mr Fryer’s right knee and scarring due to an injury only on 13 October 2018. The injury which was referred was not a disease injury due to the “nature and conditions” of Mr Fryer’s service with the appellant.
(d) On 23 September 2022, the MA issued his MAC. The date of injury in the MAC was identified as “13 October 2018”. The MA took a history of Mr Fryer first injuring his right knee in approximately 1990 following which he underwent surgery by way of a partial medial meniscectomy and debridement. The MA noted that Mr Fryer had pain and swelling of his right knee on 7 December 2017 when he twisted the knee during shooting training. The MA noted that on 13 October 2018, Mr Fryer fell and impacted both knees.
(e) Under the heading “summary of injuries and diagnoses”, the MA said:
“Mr Fryer sustained injuries to the right knee on a number of occasions as a result of the nature and conditions of his work in the Police Force, the first being in 1990 and the most recent on 13 October 2018. The original injury precipitated the onset of arthritis in the knee and subsequently after the injury in October 2018 arthritis was advanced and required a total knee replacement.”
(f) Despite the history of previous injuries to Mr Fryer’s right knee, the MA did not make a deduction for pre-existing conditions. The MA explained why he did not make a deduction as follows:
“In this situation I have not made a deduction for a pre-existing condition. The injuries to his knee occurred due to the nature and conditions of his employment and the initiating injury was in 1990. The referred date of injury was 13 October 2018 but recent medicolegal decisions have suggested that as there was no condition that existed prior to his beginning employment with the Police Force, that no deduction is made.”
(g) The MA noted that the injury to be assessed was an injury to Mr Fryer’s right knee on 13 October 2018. However, in providing his opinion at pages 3 and 4 of the MAC, the MA assessed Mr Fryer on the basis of a “nature and conditions” injury to the right knee. A “nature and conditions” injury was not the injury referred for assessment and this was an error readily apparent from an examination of the MAC.
(h) The MAC contained a demonstrable error which was readily apparent as the injury assessed (a nature and conditions injury) by the MA was not what was referred for assessment (an injury on 13 October 2018). What was referred to MA for assessment was an injury to Mr Fryer’s right knee on 13 October 2018, not a nature and conditions injury.
(i) The MA applied the incorrect criteria when assessing Mr Fryer’s degree of impairment and the MAC contains a demonstrable error by assessing Mr Fryer on the basis of a nature and conditions injury to the right knee. In applying the incorrect criteria when assessing the injury referred for assessment, the MA made a demonstrable error in assessing a nature and conditions injury.
(j) As the MA assessed an injury which was not referred for assessment (i.e. a nature and conditions injury), the decision of MA must be declared null and void. It was the intention of the parties the matter be referred to assess an injury occurring on 13 October 2018 (i.e pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act)), as it was not referred for assessment of a deemed injury, that it to say a disease injury pursuant to s 4(b)(i) or (ii) of the 1987 Act.
(k) The failure to correctly assess the injury referred for assessment caused the MA to fall into error in failing to make a deduction for pre-existing conditions, as he failed to make any deduction for the pre-existing conditions present in the respondent’s right knee prior to 13 October 2018.
(l) The MAC should be declared a nullity and revoked.
(m) The MA applied incorrect criteria (a failure to make a deduction for pre-existing conditions) when assessing Mr Fryer’s degree of impairment resulting from injury on 13 October 2018 and this caused the MAC to contain a demonstrable error due to his failure to make a deduction for pre-existing conditions in the right knee. Further, the MA incorrectly applied the law in failing to make a deduction pursuant to s 323(1) of the 1998 Act in respect of pre-existing conditions.
(n) The MA explained that he did not make a deduction because the injuries to his knee occurred due to the nature and conditions of his employment and the initiating injury was in 1990.
(o) The approach referred to the MA applies to disease injuries to which s 15 and/or s 16 of the 1987 Act apply. In Cullen v Woodbrae Holding Pty Ltd (2015) NSWSC 146 (Cullen) Beech-Jones J said at [57]:
“Overall, the approach of the MAP was to treat a pre-existing condition as a condition that existed outside the course of employment whereas in this case it had to be a condition that existed prior to Mr Cullen’s employment. As noted, Mr Blount repeatedly asserted that there was evidence to support such a finding but that contention travels nowhere as the MAP did not make such a finding. Instead the MAP concluded that once it was established that Mr Cullen had osteoarthritis that had a ‘constitutional pathology’ then it automatically followed that it was a pre-existing condition. In this case that approach was erroneous in law and constitutes an error of law on the face of the record (and that is the case irrespective of whether the condition had to pre-date the commencement of his employment or some later time).”
(p) In Cullen it was conceded by the employer in argument that a “pre-existing injury condition or abnormality” must exist prior to the commencement of the employment in work to the nature of the disease is due. In Cullen, the worker worked as a slaughterman for his employer for some 26 years prior to the closure of the abattoir on 14 July 2004. In the several years prior to his cessation of work, the worker experienced pain in both hips. After his cessation of work, his condition worsened and he underwent a right hip replacement in 2008 and a left hip replacement in 2010. He brought proceedings in the former Workers Compensation Commission claiming permanent impairment compensation as a result of an injury to his hips on 28 February 2014.
(q) On the approach conceded by the respondent in Cullen, it would be necessary to demonstrate the worker suffered a condition or injury in his hips prior to the commencement of his work in the abattoir in 1978.
(r) The approach taken by MA McGroder was the approach to ascertaining the deductible proportion in s 15 and/or s 16 cases that has been adopted by MAs and MAPs in determining whole person impairment in the years since Cullen was decided. However, that was incorrect in this case as a disease injury was not the injury referred for assessment.
(s) Mr Fryer was not referred for assessment for an injury “deemed” to have occurred on 13 October 2018 due to the entire period of his service with the appellant. Mr Fryer was referred for assessment of a personal or frank injury (within s 4(a) of the 1987 Act) occurring on 13 October 2018.
(t) The MA should have approached the issue of a deduction pursuant to s 323 on the basis that a pre-existing injury or condition (even if they occurred in the course of his service (a frank injury or injuries) or due to his service) must predate the date of the injury and impairment to be assessed resulting from injury on 13 October 2018. If that is the case, a deduction must be applied pursuant to s 323(1) of the 1998 Act.
(u) There was substantial evidence of Mr Fryer suffering from a pre-existing injury or condition, and impairment, before the injury to be assessed occurring on 13 October 2018 including the following: 1. The history of injury to Mr Fryer’s right knee in 1989 or 1990 when he dislocated his patella leading to a partial medial meniscectomy a debridement. The MA conceded this incident precipitated the onset of arthritis in the knee. Dr Bodel conceded it was likely the degenerative changes in Mr Fryer’s knee began to develop at that time. 2. Mr Fryer suffered a further injury to his right knee on 7 December 2017. Dr Wallace was of the opinion Mr Fryer was suffering from post-dramatic osteoarthritis of the right knee at the time of his injury on 13 October 2018 which was due to the previous injuries in 1989 and 2017. Dr Wallace considered 1/5th of Mr Fryer’s impairment was caused by the pre-existing conditions or injuries. 3. On 14 June 2018, four months before the injury on 13 October 2018, Mr Fryer underwent an MRI scan of his right knee which the radiologist reported as showing
“There is severe degenerative change affecting the lateral tibiofemoral compartment showing full-thickness chondral loss with degenerative maceration of the medial meniscus. Full thickness chondral fraying is also noted affecting the patellar ridge. The cruciate ligaments are intact.”
4. Mr Fryer was treated by Dr Nabavi, orthopaedic surgeon, in respect of his right knee prior to the injury on 13 October 2018. On 2 July 2018, over three months prior to the injury on 13 October 2018, Dr Nabavi reported:
“He had a work injury 1989 which required an operation on his right knee. The pain is over the anterior medial aspect and is present all the time. It is particularly bad at night, when walking, when climbing and descending stairs and when squatting and kneeling. He has been unable to exercise. He has noticed swelling, stiffness, a feeling of instability and crepitus without any episodes of locking. On examination he has a very stiff knee with a range of motion of +10 to 110°. The pain is over the medial joint line and a moderate effusion … X-rays today demonstrate end-stage arthritis of his right knee … In view of his young age, I recommended a course of PRP injections to try and improve his symptoms otherwise he will require a prosthetic knee replacement…”.
(v) There was ample evidence of a pre-existing injury or condition which contributed to the impairment to be assessed as resulting from injury on 13 October 2018 and a deduction should be applied pursuant to s 323(1) of the 1998 Act. If the MAC is not declared a nullity, the deduction should not be less than 1/5th.
(w) In conclusion, the MAC should be declared null and void, and revoked and Mr Fryer should be referred to a further MA to assess his degree of permanent impairment resulting from injury on 13 October 2018. In the alternative, the MAC should be revoked and a fresh MAC issued which correctly assesses Mr Fryer’s degree of permanent impairment resulting from injury on 13 October 2018 by making a deduction in accordance with s 323(1) of the 1998 Act in respect of the pre-existing injuries or conditions affecting Mr Fryer’s right knee.
Mr Fryer’s submissions include the following:
(a) The referral was not disputed, however, it was not necessary to plead any date as a “deemed date”. The finding of the MA in paragraph 7 under “Findings and Summary” was quite clear that the injury of 13 October 2018 was the last aggravation of a disease condition (namely osteoarthritis in the knee) that was caused by an earlier incident at work. Clearly his finding was a s16 injury deemed for the purpose of assessing the s66 entitlement. It was clear that the MA did not feel that the incident on 13 October 2018 did anything other than aggravate the condition caused at work, that is, it was not an injury which gave rise to additional pathology in the knee so that it could be classed as a further s 4(b)(ii) injury (see Rail Services Australia v Dimovski (2004) NSWCA 267).
(b) There had not been a demonstrable error as the appellant had misconstrued the nature of the injury. The MA found an injury that was a “s16” aggravation of a condition that was initiated at work by an earlier incident. All the medical evidence referred to the prior accident(s) and the fact that Mr Fryer suffered from osteoarthritis in his knee and this was the cause of the need for a total knee replacement. The cause of the incapacity which gave rise to the WPI was not a “frank Injury” as such. The determination of what flows from an injury is in the prevue of the MA (Haroun v Rail Corporation (2008) NSWCA 192 (Haroun)), and here the MA found the injury was in effect a s16 aggravation of a disease process.
(c) The correct injury and body conditions were assessed by the MA.
(d) The MA’s task was to determine what flows from an injury referred to him, he was not bound by the findings of a member or other medical opinions submitted to him other than he must show why he did not agree with those opinions.
(e) Mr Fryer did not agree that the MAC should be declared a nullity and revoked.
(f) As to s 323, the issue does not arise in the context of the findings as to the assessable WPI. Mr Fryer relied on the MA’s comments and findings in paragraph 10 of the MAC. Further, s 323 applied to prior injuries and the finding of aggravation of a disease process which was wholly caused by work did not allow for a s 323 deduction to be made.
(g) The reference to “Cullen” only strengthened Mr Fryer’s case as clearly the MA found that the condition aggravated did not exist before the first injury in 1989 or 1990 which occurred during the employment of Mr Fryer with the appellant.
(h) In conclusion, the MAC should not be revoked.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The MAC
Under “History relating to the injury”, the MA wrote:
“Mr Fryer’s first injury involving his right knee occurred in approximately 1990. He twisted his knee when training and dislocated his patella. He was taken to Goulburn Hospital and underwent a manipulation under anaesthetic.
Upon discharge he saw Dr Giblin, Orthopaedic Surgeon, in Sydney. He performed a
partial medial meniscectomy and debridement arthroscopically. He obtained a good result and was able to work normally and play sport including soccer.
On 7 December 2017, during training, he was kneeling doing shooting training when he twisted his knee. There was pain and swelling. He didn’t have any treatment or see any specialists and it returned to background level.
On 13 October 2018, during an altercation with a felon he fell and impacted both his knees. He had bilateral knee pain, particularly the right. The left settled but the problems involving the right persisted. He saw his GP, Dr Scott, who organised x-rays of the right knee which demonstrated bone on bone arthritis. He was sent for physiotherapy and referred to Dr Nabavi, Orthopaedic Surgeon, who he first saw in July 2018. He noted end stage arthritis and organised a series of PRP injections. These didn’t help. He felt no further procedures, other than a total knee replacement, would be required. He was referred to Dr Cumming, Orthopaedic Surgeon, for an opinion and he agreed with this. The total knee replacement subsequently occurred on 25 September 2019.
Mr Fryer said that he was never particularly happy with the replacement. It was, however, complicated by a DVT in the right calf and cellulitis. These resolved with the appropriate treatment.
Because of on-going problems, in September 2020 he was re-admitted to hospital for an iliotibial band release.
There was on-going pain and stiffness and on 9 February 2022 he was re-admitted, this time for an arthroscopic debridement and scar release. This was performed by Dr Nabavi.
He has subsequently continued his physiotherapy and uses an exercise bike. He continues to have problems with restriction of range of movement and pain”.
Under “Findings on Physical Examination”, the MA wrote:
“He was of solid build. There was an 18cm scar over the anterior aspect of the right knee. It was an uncomplicated surgical scar with a reasonable colour match. No suture marks were visible. There was no contour defect and no adherence.
The right knee was swollen but there was no effusion. There was a valgus alignment of 5 degrees. Range of movement was from -5 degrees of extension to 100 degrees of flexion.
There was no AP instability and only minor ML instability.
There was no tenderness over the scar. There was a non-specific distribution of diminished sensation over the lateral aspect of the knee joint.”
Under “Details and Dates of Special Investigations” the MA noted:
“2 July 2018 X-Ray Right Knee
Tricompartmental osteoarthritis with bone on bone contact at the compartment.
14 September 2020 X-Ray Right Knee
Right total knee replacement has been performed with patella resurfacing. The components are cemented. Alignment is satisfactory”.
Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA wrote:
“Mr Fryer sustained injuries to the right knee on a number of occasions as a result of the nature and conditions of his work in the Police Force, the first being in 1990 and the most recent on 13 October 2018. The original injury precipitated the onset of arthritis in the knee and subsequently after the injury in October 2018 the arthritis was advanced and required a total knee replacement. He has achieved a fair result from this”.
Under “Reasons for Assessment”, at 10(c) the MA wrote:
“My opinion and assessment of whole person impairment
For the injury to the right knee I have estimated 20% WPI.
For scarring I have estimated 0% WPI.
b. An explanation of my calculations (if applicable)
According to Table 17.35, for pain I have estimated 30 points, range of motion 19 points, AP stability 10 points and ML stabilty 15 points. This is a total of 74 points. There is a 2 point deduction for the flexion contracture and this is 72 points. According to Table 17.33 this is a fair result at 20% WPI.
In this situation I have not made a deduction for a pre-existing condition. The injuries to his knee occurred due to the nature and conditions of his employment and the initiating injury was in 1990. The referred date of injury was 13 October 2018 but recent medicolegal decisions have suggested that as there was no condition that existed prior to his beginning employment with the Police Force, that no deduction is made.”
At Pt 11 of the MAC, under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, the MA wrote “Not applicable”.
In commenting on the other medical opinions, the MA noted:
“Dr J Bodel, Orthopaedic Surgeon, supplied a medico-legal report dated 3 November 2021. Dr Bodel, like myself, estimated a fair result at 20% WPI and he did not make a deduction because the injuries to the knee occurred as a result of Mr Fryer’s employment with the Police Force.
…
Dr R Wallace, Orthopaedic Surgeon, supplied medico-legal reports dated 4 April 2022 and 3 May 2022. Dr Wallace estimated a good result from the knee replacement which appears to be different to my assessment predominantly from the point of view of the points awarded for pain. Initially he did not make a deduction for a pre- -existing condition but in the supplementary report he apportioned between the original injury in 1990 and the injury of 13 October 2018 on request and made a 3% deduction and felt
Discussion
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
In the ARD, under the heading “Injury details – 13/10/2018” the following details were provided:
“Type of injury – Personal
Date of Injury 13/10/2018
Place of Injury Douglas Park Drive, Douglas Park
Injury description – Right knee and lumbar spine and scarring”
The Appeal Panel noted that the box next to “Deemed date” was not ticked or crossed.
In the ARD, under the heading “Permanent Impairment/Pain and Suffering” the following details were provided:
“Date of Injury – 13/10/2018
Systems claimed – right lower extremity
Lumbar spine
TEMSKI/Scarring”
In the amended referral dated 28 July 2022 the following details were provided:
“Date of Injury: 13 October 2018
Body part/s referred: Right lower extremity, Scarring (TEMSKI) 28 July 2022”
In the Letter of Claim dated 24 December 2021 from Mr Fryer’s solicitor to the appellant, a claim was made for 21% WPI pursuant to s 66. No date of injury was provided apart from the date in the heading of the letter “Industrial Accident: 13 October 2018”.
The claim was based on the assessment by Dr James Bodel in his report dated 3 November 2021. Dr Bodel, in the heading of his report, noted “Date(s) of injury: 13 October 2018.” Under “Summary of Injuries” on page 2 of the report, Dr Bodel wrote: “Injury to the right knee – 13 October 2018”. Under “History relating to the Injury” Dr Bodel reported that Mr Fryer first suffered an injury to his right knee in about the year 1990, while undertaking secondary training at the Goulburn Academy, namely, an exercise based program as part of a two-week refresher training program and he twisted the right knee. Dr Bodel noted that Mr Fryer developed pain and swelling and was seen at the Goulburn Hospital. Later Mr Fryer came under the care “of either Dr Peter or Dr Matthew Giblin”, with a very good outcome. He recovered from that surgery and returned to his work and remained operational for many years after that. He felt that he had “completely recovered”.
Dr Bodel noted that over the years Mr Fryer began to develop some intermittent mild discomfort in the right knee but nothing serious. Mr Fryer had also had occasional intermittent backache but again nothing of significance until the episode that occurred on 13 October 2018. Dr Bodel made a diagnosis of a traumatic injury to the region of the right knee, probably in the form of a meniscal tear, a traumatic subluxation of the patella and articular cartilage damage to the inner aspect of the knee as well as probable ligamentous injuries caused by that event at work on 13 October 2018. He wrote:
“It is noted however that it is also probable that there was some pre-existing degenerative change in that knee which arises as a result of the original injury that occurred back in about the year 1990 when he injured that right knee while at the Goulburn Academy. He had had an arthroscopy and over the years it is likely that degenerative change had begun to develop in that knee and that the injury on 13 October 2018, apart from causing acute pathology, has also caused the aggravation, acceleration, exacerbation and deterioration of that pre-existing arthritic process which had been relatively asymptomatic until the injury”.
Dr Bodel concluded that there was a frank injury that occurred on 13 October 2018, probably causing meniscal pathology, traumatic articular cartilage damage and ligamentous damage and also probable evidence of aggravation, acceleration, exacerbation and deterioration of disease process, being the post-traumatic osteoarthritis caused by the injury in 1990, also occurring at the time of this event on 13 October 2018.
Dr Bodel considered that the nature and conditions of his work was also a contributing factor, but a “minor contributing factor in my view”. He wrote:
“The two traumatic events, the first in about the year 1990 and the second on 13 October 2018, were the main contributing factor to the ongoing pathology and the cause of injury…
The underlying knee pathology is probably part of a disease process of gradual onset, although it was not particularly symptomatic until the episode of injury that occurred on 13 October 2018. The nature of work in general, because he has been on his feet most of his working life, is causing some aggravation, acceleration, exacerbation and deterioration but that is not the main contributing factor to the current pathology”.
Dr Bodel assessed 20% WPI of the right knee. Dr Bodel wrote:
“As I indicated in the body of the report above, there is no indication of any pre-existing abnormality or condition that is unrelated to his work and therefore no basis for a deduction for pre-existing impairment. The pathology in his right knee commenced with the injury in 1990 and then was much more seriously aggravated by the event on 13 October 2018”.
Dr Raymond Wallace in a report dated 4 April 2022 made no deduction pursuant to s 323 for pre-existing injury, condition or abnormality noting:
“Mr Fryer was not suffering from any non-work related degenerative condition at the right knee prior to his work incident on 13 October 2018. He had evidence of posttraumatic osteoarthritis at the right knee at that time which was due to his previous work injuries in 1989 and 2017”.
In a supplementary report dated 3 May 2022, Dr Wallace was requested to provide a further assessment on the basis that Mr Fryer was only relying on an injury to his right knee on 13 October 2018 and any impairment due to the injury in 1989 could not be included in the assessment of WPI. Dr Wallace proceeded to deduct 1/5th or 3% pursuant to s 323.
The appellant submitted that the MAC contained a demonstrable error as the injury assessed (a nature and conditions injury) by the MA was not what was referred for assessment (an injury on 13 October 2018).
The Appeal Panel accepted that what was referred to MA for assessment was an injury to Mr Fryer’s right knee on 13 October 2018, and not a s 15 or s 16 injury or a “nature and conditions” injury relating to events over the period of employment with the appellant.
Mr Fryer argued that the MA found an injury that was a “s16” aggravation of a condition that was initiated at work by an earlier incident. Mr Fryer then submitted that the determination of what flows from an injury is in the prevue of the MA (Haroun) and in this case the MA found the injury was, in effect, a s16 aggravation of a disease process.
In the view of the Appeal Panel, Haroun does not assist Mr Fryer. In Haroun, an arbitrator made findings by consent that two falls at work “continued to contribute to any impairment” suffered by the worker and referred for medical assessment under s321 of the 1998 Act the degree of permanent impairment of the worker as a result of the injuries. The approved medical specialist disregarded the finding by the arbitrator that the falls at work continued to contribute to the worker’s impairment. An appeal by the worker to an Appeal Panel failed and the assessment of the approved medical specialist was confirmed. The worker sought certiorari to quash the Appeal Panel’s certificate for error of law on the face of its reasons which revealed that the Panel had disregarded the arbitrator’s findings. The Associate Judge dismissed the application. On appeal, Handley JA held that the Appeal Panel had not erred in law and the arbitrator had no jurisdiction to determine the medical disputes that had been referred and his findings without jurisdiction could not bind the Appeal Panel or even be persuasive. The question of jurisdiction as to whether the injuries at work continued to contribute to impairment is distinguishable from the question in this matter, which is one of date of injury and whether there was a frank injury on a particular date to be assessed or whether there was a deemed date of injury with a number of injuries over the course of employment that were to be assessed.
It was not open for the MA or Appeal Panel to question or determine the date of injury in a matter. Date of injury and the effect of an agreement as to date of injury and whether that represented a date that was an appropriate date given the provisions of s 15 or s 16 of the 1987 Act, are not matters that a MA or Appeal Panel are able to consider. As noted in Aircons Pty Ltd v Registrar Workers Compensation Commission [2006] NSW SC 332, the Appeal Panel has power only to certify with respect to the matters referred to it. In this case the matter referred was the assessment of a personal injury on 13 October 2018.
Although there is no provision in the legislation, Guidelines or Practice Directions that provides that if a date of injury is given in a referral such a date must be assumed to be made in respect of a frank injury unless the words “deemed date” appears in the referral, the referral in this matter, together with the ARD and correspondence, result in the conclusion that the matter referred was a frank injury on 13 October 2018. The supplementary report of Dr Wallace dated 3 May 2022, which provided a further assessment of WPI on the basis that Mr Fryer was only relying on an injury to his right knee on 13 October 2018 and any impairment due to the injury in 1989 could not be included in the assessment, made it clear that the appellant understood that this claim was confined to the injury on 13 October 2018.
The Appeal Panel accept that a frank injury can be both a frank injury and an aggravation, acceleration, exacerbation and deterioration of an injury but in this case such an aggravation, acceleration, exacerbation and deterioration would be limited to the injury of 13 October 2018.
The Appeal Panel accept that the MAC contained a demonstrable error as the injury assessed (a nature and conditions injury) by the MA was not what was referred for assessment (an injury on 13 October 2018).
The Appeal Panel noted that the appellant submitted that the MAC should be declared null and void and revoked and Mr Fryer should be referred to a further MA to assess his degree of permanent impairment resulting from injury on 13 October 2018. The appellant’s alternative submission was that the MAC be revoked and a fresh MAC issued which correctly assessed Mr Fryer’s degree of permanent impairment resulting from injury on 13 October 2018 by making a deduction in respect of the pre-existing injuries or conditions affecting Mr Fryer’s right knee. The Appeal Panel have adopted the alternative approach proposed by the appellant as it is a more efficient and expeditious method of dealing with Mr Fryer’s claim.
Deduction for previous injury
The Guidelines at Guideline 1.16 (a) under “Principles of assessment” provide:
“The proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with the diagnostic and other objective criteria as outlined in these Guidelines.
…
C. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated…”
The Guidelines at Pt 2 under “Deductions for pre-existing conditions or injuries” at Guidelines 1.27 and 1.28 provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The Appeal Panel reviewed the evidence in this matter above. Neither party raised any issues with the findings made by the MA on examination and the Appeal Panel accepted those findings.
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case.”
The Appeal Panel accepted that s 323 of the 1998 Act requires that a deduction be made for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality.
An MRI scan of the right knee was performed on 14 June 2018, that was about four months before the injury on 13 October 2018. In a report dated 15 June 2018 (page 392 of the ARD), Dr Jan Masesa, radiologist, noted that the was a “recurrent injury in the right knee. Twisted knee two months ago”. Findings were as follows:
“There is a small joint effusion. The quadriceps insertion and patellar ligaments are intact. There is generalised chondral wear affecting the femoral trochlea. There is chondral fraying at the patellar ridge extending down to bone, but no associated subchondral oedema. It measures 4.2 mm in width.
The PCL and ACL are intact. The FCL and posterior corner stabilisers define normally.
Within the medial compartment, there (sic) severe chondral wear affecting the weight bearing aspect of the tibia and femoral condyles extending down to bone for a width if 15mm, largely affecting the outer half of the articular surfaces. This is associated with marginal osteophyte formation and subchondral oedema. The medial collateral ligament is displaced and thinned by the degenerative hypertrophic bony changes. There is maceration of the medial meniscus involving the body and posterior horn likely related to the recurrent episodes of injury and osteoarthritis. Part of the anterior horn remains intact. There is a small truncated fragment of the meniscal body which is extruded medially, showing a horizontal tear.
Within the lateral compartment the osteochondral surfaces are maintained.
No tears of the lateral meniscus are shown.
There is no Baker’s Cyst. There is a cystic lesion at the posterior aspect of the knee, measuring 25 x 13 x 19 mm and in keeping with a ganglion cyst.”
On 2 July 2018, over three months prior to the injury on 13 October 2018, Dr Nabavi reported:
“He had a work injury 1989 which required an operation on his right knee.
The pain is over the anterior medial aspect and is present all the time. It is particularly bad at night, when walking, when climbing and descending stairs and when squatting and kneeling. He has been unable to exercise. He has noticed swelling, stiffness, a feeling of instability and crepitus without any episodes of locking.
On examination he has a very stiff knee with a range of motion of +10 to 110°. There is pain over the medial joint line and a moderate effusion … X-rays today demonstrate end stage arthritis of his right knee …
In view of his young age, I recommended a course of PRP injections to try and improve his symptoms otherwise he will require a prosthetic knee replacement…”
The MRI scan was taken on 14 June 2018 and is evidence of the state of Mr Fryer’s right knee before the injury on 13 October 2018. The MRI showed long standing osteoarthritic change, chondral damage at the back of the kneecap and wear in the medial compartment. The injury in 1989 resulted in Mr Fryer sustaining a patellofemoral dislocation and treatment for that injury included a partial medial meniscectomy. The Appeal Panel were satisfied that the injury in 1989 caused damage to the kneecap and this was confirmed in the MRI scan findings of chondral damage at the back of the kneecap. The Appeal Panel were also satisfied that the partial medial meniscectomy following the 1989 injury largely caused the long standing osteoarthritic changes in the medial compartment which were seen on the MRI scan.
The Appeal Panel accepted that the MA made an error and failed to consider whether any impairment arose out of previous injury, pre-existing condition or abnormality including the injuries in 1989 and 2017 and whether a deduction should be made for a previous injury.
Further, the Appeal Panel was satisfied that the MA failed to appropriately apply s 323 of the 1998 Act to deduct any proportion of loss and impairment due to previous injury, pre-existing condition or abnormality including the injuries in 1989 and 2017.
Dr Wallace, in his supplementary report dated 3 May 2022, provided a further assessment of WPI on the basis that Mr Fryer was only relying on an injury to his right knee on 13 October 2018 and any impairment due to the injury in 1989 could not be included in the assessment and made a deduction of one-fifth or 3% pursuant to s 323.
The Appeal Panel accepted that the degree of any deduction to be made in respect of a previous injury or pre-existing condition was in dispute as identified in the s 78 Notice dated 30 August 2021.
The Appeal Panel accepted that s 323 of the 1998 Act requires that a deduction be made for any proportion of the impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality. The Appeal Panel was satisfied that the injury in 1989 contributed to the impairment being assessed in respect of the injury of 13 October 2018. The Appeal Panel considered that the injury in 2017 was a transient exacerbation and did not contribute to the impairment assessed in respect of the injury on 13 October 2018.
With respect to an appropriate deduction, the injury in 1989 was significant and resulted in subsequent surgery. In particular, the MRI scan dated 14 June 2018 provided evidence of longstanding osteoarthritis and chondral damage that clearly predated the injury on 13 October 2018. Taking these matters into account, it was considered that a one-fifth deduction was appropriate. As such, one fifth of 20% WPI results in a deduction of 4% WPI and a final combined assessment of 16% WPI as a result of the injury on 13 October 2-018.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 November 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
Matter Number: | W4210/22 |
Applicant: | Paul Fryer |
Respondent: | State of New South Wales (NSW Police Force) |
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 Greg McGroder band issues this new Medical Assessment Certificate as to the matters set out in the Table below.
Table - Whole Person Impairment (WPI)
Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Right Lower Extremity | 13/10/18 | Page 21 | Page 546 Table 17.33 | 20% | 1/5th | 16% |
| Scarring | 13/10/18 | TEMSKI | 0% | 0% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0
5
0