State of New South Wales (NSW Police Force) v Ireland
[2024] NSWPICMP 679
•24 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (NSW Police Force) v Ireland [2024] NSWPICMP 679 |
| APPELLANT: | State of New South Wales (NSW Police Force) |
| RESPONDENT: | Paul Ireland |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 24 September 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Injury to right lower extremity (right knee); appellant employer appealed failure to make a deduction for pre-existing injury, condition or abnormality; Held – no error found as no basis to make a deduction because any pre-existing condition, abnormality or injury of the right knee had not contributed to the overall level of permanent impairment assessed as a result of the work injury; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 July 2024 the employer, 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 Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 June 2024.
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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (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 Procedural Direction PIC7.
The appellant did not seek that the worker be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker was not required to undergo a further medical examination because the Appeal Panel, for the reasons et out below, did not find error. Absent a finding of error the Appeal panel has no power to require that the worker undergo 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 Medical Assessor 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 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 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 by the Personal Injury Commission to the Medical Assessor as follows:
The following matters have been referred for assessment (s 319 of the 1998 Act):
“• Date of injury: 22/12/2017
· Body parts/systems referred: Right lower extremity (knee)
Scarring/TEMSKI
· Method of assessment: Whole Person Impairment”
The Medical Assessor 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. Right lower extremity (knee)
22/12/17
Page 21
Table 17.35
Page 547 Table 17.33
15
0
15
2. Scarring/
TEMSKI
Page 74
Table 14.1
1
0
1
Total % WPI (the Combined Table values of all sub-totals)
16
The employer appealed.
The complaint on appeal does not concern the assessment for overall impairment of the right lower extremity (knee) but rather concerns the failure of the Medical Assessor to make a deduction under s 323 for any pre-existing condition abnormality or injury.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:
(a) the Medical Assessor erred and applied incorrect criteria by failing to consider, adequately or at all, the relevant medical history when deciding not to make a deduction under s 323.
(b) The Medical Assessor erred and applied incorrect criteria and the MAC contains a demonstrable error by failing to provide an or any adequate justification for his decision not to make a deduction under s 323.
In summary, the respondent worker Mr Paul Ireland (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the respondent so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applies.
The Medical Assessor recorded the following history:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On the date of injury, Mr Ireland attended a motor vehicle accident. He was bracing the car whilst occupants were being rescued. As this occurred, the car rolled and hyperextended his right knee.
He went on to be diagnosed with an injury to his anterior cruciate ligament and medial and lateral meniscal tears. With ongoing pain and instability in his knee, he underwent meniscectomy and an anterior cruciate ligament reconstruction on 22/12/2017. He then went on to have further meniscectomy and then chondral drilling.
With ongoing symptoms in his knee, he underwent a right sided total knee replacement on 21/02/2022.
Present treatment:
Mr Ireland continues on a gym-based rehabilitation program. He occasionally takes paracetamol.
Present symptoms:
He notes swelling towards the end of the day. He describes a background sensation which he calls uncomfortable or low level pain. He occasionally has more significant symptoms for which he needs to take Panadol. He is unable to kneel. If he drives for anything longer than 2 hours, he describes pseudo-locking. He can run with difficulty but is unable to kick a ball with his children.
Details of any previous or subsequent accidents, injuries or condition:
Nil.
General health:
Mr Ireland is otherwise well. He takes no regular medications and has no allergies.
Work history including previous work history if relevant:
Nil relevant.
Social activities/ADL:
As above, Mr Ireland is not able to kick a ball with his children. He is able to run but says it is difficult.”
The Medical Assessor made the following comment in relation to special investigations:
“I was able to review the following modalities of imaging related to the injury:
16/02/2018: X-ray right knee: Post ACL reconstruction with medial compartment osteoarthritis.
27/03/2029: MRI right knee: Post ACL reconstruction. Patellofemoral and medial compartment osteoarthritis.
21/02/2023: X-ray right knee: Post tricompartmental total knee replacement without complication.”
His examination findings were as follows:
“At the commencement of the examination, Mr Ireland was advised that the examination would be conducted with all movements to be within a pain free range. Although some discomfort might be experienced at end range of movement, any discomfort during the examination should be reported immediately and the movement discontinued. All movements were measured using a goniometer and confirmed by repetition, if necessary. A tape measure is used, as required. Only the active range of motion was measured in terms of allowable methodology. Passive range of motion was reserved for clinical and diagnostic reasons.
On examination, he is a well looking man in no obvious distress.
There is a well healed, 20cm incision with some broadening approximately consistent with approach for knee replacement.
Range of motion in the knee is from 0°-120°. The knee is sagittally and coronally stable. The lower limb is distally neurovascularly intact.
Quadriceps circumference is 64cm and symmetrical. Gastrocnemius circumference is 43cm and symmetrical.”
The Medical Assessor summarised the injury and diagnosis as follows:
“• summary of injuries and diagnoses:
Mr Ireland sustained an injury to his right knee at work, tearing his anterior cruciate ligament. He subsequently went on to have a knee replacement and has had a good result from this.· consistency of presentation:
Mr Ireland was co-operative throughout the assessment.”
The Medical Assessor explained his assessment of permanent impairment of right lower extremity based on a good result for the knee replacement. There is no complaint on appeal about this assessment.
The Medical Assessor explained where his opinion differed from other medical opinion as follows:
“With respect to the report by Dr Ghabrial dated 06/09/2023, I assessed ‘good’ rather than ‘fair’ result for the knee replacement. Dr Ghabrial has assessed a fair result but he has not listed the criteria by which he has done this according to SIRA page 21, Table 17.35.
With respect to the report by Dr Isaacs dated 06/02/2024, I assessed again have assessed ‘good’ rather than ‘fair’ result for the knee replacement on the basis of there being greater range of motion and less pain. I note Mr Ireland has referred to work as an operational Police Officer.”
There is no expert opinion that was before the Medical Assessor in which the expert had made a deduction under s 323. Nonetheless the Medical Assessor had to make an independent assessment as to whether a deduction should be made. The appellant submits that the Medical Assessor was in error in failing to make such a deduction.
The Medical Assessor said there was no pre-existing condition to be taken into account under s 323 as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Nil.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Nil.
c. There is no deductible proportion.”
The appellant submitted that the Medical Assessor was in error in so finding and he did not adequately engage with the evidence in so finding.
The appellant submitted that the Medical Assessor failed to engage with the evidence which included an MRI dated 4 January 2018 (within two weeks of the injury) and a second report of Dr Issacs which stated in the next assessment a deduction would be made after his first report stated no deduction was required. There was not a third report in which a deduction was made by Dr Issacs. Dr Bodel who has also provided an opinion on behalf of the appellant before the knee replacement was undertaken opined that there was no pre-existing condition of the knee that needed to be taken into account under s 323. In any event, the Medical Assessor must reach his own independent assessment.
The MAC must be read as a whole. The Medical Assessor has taken an adequate history as set out above.
A deduction can only be made under s 323 if the pre-existing condition, abnormality or injury has contributed to the overall level of permanent impairment assessed.
In this case the history, which is not traversed, is that the respondent worker’s knee was asymptomatic at the time of injury and he was able to perform his full duties as a police officer.
The appellant points to the findings of an MRI dated 4 January 2018 which is taken some two weeks after injury on 27 December 2017 and says that the Medical Assessor failed to engage with this evidence when he considered whether a deduction should be made.
The appellant submitted that the MRI showed the following:
(a) some chondromalacia grade 2 in the medial facet and trochlea of the patella, and
(b) some chondromalacia grade 3 in the anterior femoral trochlea and in the weight bearing portion of the medial femoral condyle.
The findings of the MRI do not support a s 323 deduction. The chondromalacia shown on the MRI did not contribute to the overall level of permanent impairment assessed. The level of impairment assessed is based on the worker having come to knee replacement from which he has been assessed as having a good result. He has come to the knee replacement as a direct result of injury on 27 December 2017 and its sequelae. He was asymptomatic at the time of injury which, whilst not determinative, is a factor to be taken into account. The radiological findings showing some chondromalacia on the MRI have not been taken into account by the Medical Assessor in considering the question of any s 323 deduction because they are not clinically relevant to the need for the knee replacement. Chondromalacia simply refers to damaged tissue. It did not provide clinical justification for the knee replacement or even contribute to its need. The need for the knee replacement was as a result of injury and persistent symptoms thereafter. The Appeal Panel can discern no error in the failure of the Medical Assessor to make a deduction.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 June 2024 should be confirmed.
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