State of NSW (NSW Police Force) v Pirie
[2022] NSWPICMP 444
•8 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of NSW (NSW Police Force) v Pirie [2022] NSWPICMP 444 |
| APPELLANT: | State of NSW (NSW Police Force) |
| RESPONDENT: | John Pirie |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 8 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal by employer against 15% whole person impairment (WPI) assessment for right knee replacement surgery; whether a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) ought to have been applied; whether Medical Assessor (MA) ought to have referred to a medico-legal report; worker employed in 1973 when 18 years old; Held – relevant date of onset of osteoarthritis post-dated the commencement of employment and was accordingly not a pre-existing condition; Craigie v Faircloth & Reynolds Pty Ltd and Ors and Cullen v Woodbrae Holdings Pty Ltd considered and applied; MA presumed to have read the material referred to him and no error by the MA not to mention medico-legal report; Jones v The Registrar WCC and Bojko v ICM Property Service Pty Ltd considered and applied; Medical Assessment Certificate confirmed |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 April 2022 State of NSW (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 (MA), who issued a Medical Assessment Certificate (MAC) on 25 March 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 8 February 2022 an amended referral for assessment was made to the MA seeking an assessment of WPI caused to the right lower extremity (knee) by injury on a deemed date of 17 July 2015.
Mr Pirie was employed as a police officer by the State of New South Wales Police Force.
On 17 July 2015 Mr Pirie twisted while standing at a photocopier and injured his knee. He sustained further injury on 13 November 2018 and came to right total knee replacement in September 2019.
The MA certified a 15% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant employer did not seek to have the worker re-examined by a medical assessor who is a member of the Appeal Panel. For the reasons given below, no error was made by the MA and thus no re-examination was necessary.
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.
The MAC
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 which 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 sole ground of the appeal was that the MA had fallen into error by failing to make a deduction pursuant to s 323 of the 1998 Act.
The MAC
At [10] the MA explained that the total knee replacement surgery had produced a “good” result in terms of the applicable criteria provided by Table 17-35 of the Guides.[1]
[1] Guides Chapter 3, page 21.
The MA noted the reports of the medical specialists before him. He noted the report of Dr Tim Anderson, occupational physician of 19 May 2020 who had been retained by the worker. Dr Anderson found there to be a seven point deduction, being two points for the flexion contracture and five points for the extension lag.
The MA said that he did not clinically detect any such deductions on his examination.
The employer qualified Dr Vijay Panjratan, orthopaedic surgeon, who made a deduction of 10%. The MA said:[2]
“With respect to the report by Dr Panjratan dated 28/07/2020, he similarly scores an
excellent result for the knee replacement. I agree with Dr Panjratan that there are no
deductions. Dr Panjratan has assessed 10% deduction on the basis of lateral subluxation of the patella. Unfortunately, no imaging was available for me to make this assessment.”
[2] Appeal papers page 16.
When asked for an opinion as to what proportion of the impairment was due to previous injury or pre-existing condition or abnormality, the MA said at [10(d)][3]:
“There is no deductible proportion.”
SUBMISSIONS
[3] Appeal papers page 22.
Appellant employer
The appellant employer submitted:
· that the MA had failed to make a deduction pursuant to s 323 of the 1998 Act;
· that he had not addressed all of the evidence, and
· that had he had not considered all forensic reports before him.
We were referred to the above report of Dr Panjratan. The appellant employer submitted that although the MA acknowledged Dr Panjratan’s deduction on the basis of a lateral subluxation of the patella, other radiological evidence that pre-dated the total knee replacement was also relevant.
The appellant employer argued that the MA had before him radiological investigations which, contrary to his statement that no relevant imaging was available, demonstrated a pre-existing abnormality in the worker’s right knee.
It was submitted that the radiological investigations demonstrated a pre-existing abnormality in Mr Pirie’s right knee – particularly that an X-ray report of 7 January 2016 showed the patella tract laterally and had a tendency to sublux. Further, there was an MRI of 6 December 2008 which demonstrated pre-existing degenerative changes.
The appellant employer argued further that the MA had failed to consider a report dated 29 December 2020 from Dr Graeme Doig, who had also been retained by the appellant employer. Dr Doig’s specialty was not given.
Dr Doig noted that there was evidence of pre-existing degeneration from “as far back as 2008,” in respect of which he had deducted 10% WPI.
This evidence, the appellant employer said, was adequate for the MA to find that there was a pre-existing condition in the right knee, and that the MA had fallen into error by not acknowledging that evidence. A deduction of 1/10th accordingly should have been made, it was submitted.
Respondent
Mr Pirie conceded that the MA did not discuss the report of Dr Doig, but submitted that nothing turned on that omission, which he described as a “technical error”. Dr Doig’s report was “immaterial” and this technical error did not establish a demonstrable error, it was said.
The MA had indicated in his reasons that he had referred to the documentary evidence that was listed in the referral, and had carried out his evaluation in a properly conducted assessment, we understood the worker to say.
Mr Pirie submitted that the appellant employer had overlooked the fact that the MA was making an assessment in relation to an injury that had occurred on a deemed date (17 July 2015). It was well settled that “a combination of prior injuries to the same body part with the same employer can all be assessed as the one whole person impairment,” Mr Pirie said.
It was also well settled that a pre-existing condition must be productive of a WPI pursuant to s 323, it was argued in the alternative.
DISCUSSION
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(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.”
Mr Pirie was born in 1955, and commenced work with the respondent in 1973. He was based with the Canobolas Local Area Command in Orange since 1997. He first sustained injury to his right knee in March 2007 and suffered from various injuries thereafter. He was surgically treated in 2009 by way of an arthroscopic meniscectomy and, as indicated, came to a right total knee replacement in September 2019.
In Craigie v Faircloth & Reynolds Pty Ltd and Ors [2021] NSWSC 1211 Johnson J considered an earlier relevant decision, Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 Johnson J said [36]-[38]:
“36 In Cullen, Beech-Jones J (as his Honour then was) said (at [46]) that to establish a pre-existing condition for the purpose of s.323(1) WIM Act, there must, at a ‘relevant date’, be an actual condition, although it may be asymptomatic. His Honour observed in Cullen (at [56]) that the Medical Appeal Panel had not identified ‘any point in time much less prior to his employment commencing when Mr Cullen may have first developed osteoarthritis albeit asymptomatic’.
37 Beech-Jones J identified the error in Cullen at [57]:
‘... 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).’
38 … There has been a failure on the part of the Second Defendant to adequately identify the ‘relevant date’ in its reasons concerning s.323 WIM Act….”
In Cullen it was agreed that the relevant date was the date of the commencement of employment, and, for the following reasons, the date of commencement is also the relevant date in the present circumstances.
The appellant employer relied on the report of Dr Doig to establish both the existence of a pr-existing degenerative condition and a deduction of 1/10th in respect of it. The appellant employer submitted that the MA had fallen into error by his failure to consider Dr Doig’s report. Dr Doig stated:[4]
“As there was pre-existing degeneration in the initial medical imaging as far back as 2008, a 10% deduction would apply as per the WorkCover Guidelines.”
[4] Appeal papers page 88.
In fact the earliest complaint of right knee pain was recorded by Dr Panjratan in his report of 28 July 2020, when he noted an incident on 6 March 2007.[5]
[5] Appeal papers page 70.
However, Mr Pirie commenced employment with the NSW Police Force in 1973, when he was 18 years old. It is improbable that he would have developed any degeneration at that age. Whilst it is conceivable that Mr Pirie may have had some degeneration in 2008 as Dr Doig advised, when Mr Pirie was in his 50s, the condition arose in the course of his employment and is accordingly not amenable to the application of s 323, as it is therefore not a pre-existing condition.
Accordingly, the MA was correct to find that there was no deductible proportion. We do not, with respect, accept the worker’s contention that the MA made a ”technical error” in his failure to refer to Dr Doig’s report. An MA is presumed to have read all the material referred to him,[6] and there is no obligation on him/her to refer to evidence that was not relevant.[7] Whilst it might have been preferable for the MA to have given some reasons for his determination, his failure to do so did not vitiate his opinion, as his conclusion was legally correct.
[6] See the presumption of regularity as explained by Handley AJA in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]; see also James J in Jones v The Registrar WCC [2010] NSWSC 365.
[7] Marina Pisonis v Registrar Workers Compensation Commission [2008] NSWCA 88 per Mason P from [59].
A total knee replacement is rated by the table by the awarding of points, depending on the amount of pain the patient is experiencing, the range of motion following the surgery, and the stability of the result. Points are deducted where the examiner finds degrees of flexion contractual, extension lag or tibiofemoral alignment. When the resultant points are calculated, Table 17-33 of AMA 5 provides the WPI to be awarded, depending on whether the number of points, is determined by whether the total knee replacement has given a “poor,” “fair,” or “good” result. Whole person impairment is allocated at 15%, 20% or 30% respectively.[8]
[8] AMA5 Table 17-35 p 547.
Whilst the MA referred to the different expert opinions regarding the deductions provided for within the context of Table 17-35, his opinion as to the application of s 323 was clear.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 March 2022 should be confirmed.
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