Teys Australia Pty Ltd v Harris

Case •

[2021] NSWPICMP 28

•

18 March 2021
DETERMINATION OF APPEAL PANEL
CITATION: Teys Australia Pty Ltd v Harris [2021] NSWPICMP 28
APPELLANT: Teys Australia Pty Ltd
RESPONDENT: Shane Harris
APPEAL PANEL: Member Jane Peacock
Dr Drew Dixon
Dr Tom Mastroianni
DATE OF DECISION: 18 March 2021
CATCHWORDS: WORKERS COMPENSATION- Right knee injury; assessment based on knee replacement surgery; Medical Assessor (MA) assessed fair result and made no deduction; clinical findings inadequate; re-examination by MA of the Appeal Panel; Held- based on clinical findings on re-examination, Panel assessed good result with no deduction; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 17 April 2020 Teys Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 20 March 2020.

  2. 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.

  3. 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.

  4. 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.

  1. 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

  1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Workers compensation medical dispute assessment guidelines.

  1. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination. A MA member of the Panel, Dr Tom Mastroianni was appointed by the Panel to conduct the re-examination. The matter was placed in the pending assessment list because of the COVID-19 pandemic.
    Dr Mastroianni has reported to the Panel and his report appears below.

EVIDENCE

Documentary evidence

  1. 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

  1. 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

  1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.

FINDINGS AND REASONS

  1. 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.

  1. 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.

  1. The MA was referred the assessment of the degree of permanent impairment, if any, of the right lower extremity as a result of injury on 9 April 2013.

  2. The MA issued a MAC certifying his assessment of 20% WPI as a result of injury on 9 April 2013 with no deduction under section 323 in respect of any pre-existing condition, abnormality or injury.

  3. As the worker had a knee replacement the assessment of impairment was based on the result of the knee replacement which the MA assessed as having been a “fair result”.

  1. The employer appealed.

  1. In summary, the appellant submitted on appeal that the MA made demonstrable errors and made an assessment on the basis of incorrect criteria as follows:

    (a)    In failing to assess a good as opposed to a fair result for the knee replacement, and

    (b)    Failing to make a deduction under section 323.

  2. In summary, Ms Shane Harris (the Respondent) submitted that the MA had not made any demonstrable errors, had not made an assessment based on incorrect criteria and his findings were open to him and the MAC should be confirmed.

  1. The appellant complained on appeal that the MA should have assessed a good result as supposed to a fair result for the knee replacement. The Panel considered that a
    re-examination was necessary as the clinical findings recorded by Dr Anderson were insufficient to support the assessment. Dr Mastroianni, a MA member of the Panel was appointed by the Panel to conduct the re-examination. Due to the COVID-19 pandemic the matter was placed in the pending medical assessment list. Ultimately the re-examination was able to take place and Dr Mastroianni reported to the Panel as follows:

“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR SPECIALIST MEMBER OF THE APPEAL PANEL

Matter No:   M1-6814/19
Appellant:   Teys Australia Pty Ltd
Respondent:   Shane HARRIS         

Examination Conducted By:    Tommasino Mastroianni
Date of Examination:                2 December 2020

1. The workers medical history, where it differs from previous records

Ms Harris confirms the history as per the previous record. 

She injured her left knee on 9 April 2013.  Following a period of conservative treatment, she had an arthroscopic procedure by Dr Robert Sharpe in January 2014.

In December 2016 she had a left total knee replacement.  She is not having any treatment at present.

2. Additional history since the original Medical Assessment Certificate was performed

Since the original Medical Assessment Certificate, she has had no other treatment.

She was asked about her current symptoms and she states that there is stiffness in the knee but there is no pain.

3. Findings on clinical examination

She is a lady of stated age in no apparent discomfort.  She walks with a normal gait.  She partially squats.

She gets on and off the couch without difficulty.

Examination of the lower limbs reveals a well-healed surgical scar in the right leg for the total knee replacement.  It is an uncomplicated surgical scar.

There is no swelling or effusion.

The knee is not tender.

The knee has 5° flexion contracture and flexes to 105°.  There is no extension lag.

The knee is stable, and the tibio-femoral alignment is 10° valgus.

The knee was rated using AMA 5, Table 17-35.

Pain  50 points
ROM (105°)  21 points
Stability
Antero-posteriorly (less than 5mm)           10 points
Medio-laterally (5°)   15 points
  Sub-total  96 points

Flexion contracture (5°)        2 points
Extension lag (0°)  0 points
Alignment (normal)   0 points
  Sub-total  2 points

TOTAL (96 – 2)           94 Points

A score of 94 points is a good result (1).  A good result equates with 15% whole person impairment.

4. Results of any additional investigations since the original Medical Assessment Certificate

Not applicable.

AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:

(1)     Page 547, Table 17-33.”

  1. The Panel adopts the report and findings of Dr Mastroianni.

  2. This gives the respondent worker an overall impairment of 15% whole person impairment.

  3. Turning next to the question of the deduction under section 323. A deduction can only be made under section 323 to account for the contribution of a pre-existing condition, abnormality or injury to the overall level of impairment assessed.

  4. The appellant complained that the MA failed to make a deduction and did not adequately explain his opinion and why that differed from that of the expert qualified on behalf of the appellant, Dr Pillemer who had made a one-tenth deduction.

  5. The role of the MA is to conduct an independent assessment on the day of examination. The MA is required to take a history, conduct a physical examination, review the special investigations, make a diagnosis and have due regard to other evidence and other medical opinion that is before the MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment and make such assessment in accordance with the criteria in the Guides. When considering the assessment of a deductible proportion under s 323 the MA can only make a deduction if he considers in the exercise of his clinical judgment that the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. Where the extent of the deduction would be too difficult or too costly to determine, the deduction will be one-tenth.

  6. Here the MA has taken a history consistent with the other evidence that the worker had no problem with her knee until the injury on 9 April 2013. She was active up until the time of injury. She was asymptomatic in respect of her right knee at the time of injury. There is no evidence, radiological or otherwise that she had any problems with her knee until the injury. She ultimately came to surgery as result of the injury which was unsuccessful in resolving her continuing and persistent complaints of pain after the injury. The MA has made his own assessment using his clinical judgment that there was no contribution to the level of permanent impairment assessed as a result of the injury from any prior condition, abnormality or injury. His opinion in this regard differs from that of Dr Pillemer, the expert qualified on behalf of the appellant who made a deduction of one-tenth. The MA’s opinion that there should be deduction is the same as that of Dr Hopcroft, the expert qualified on behalf of the respondent worker. The MA explained his opinion as follows:

    “There is no history (at all) of any pre-existing knee condition which would necessitate a deduction. As already advised, Ms Harris was physically very active right up until the time of this event.”

  7. The decision of the MA to make no deduction was open to him on the evidence and the Panel can discern no error in this regard.

  8. For these reasons, the Appeal Panel has determined that the Medical Assessment Certificate issued on 20 March 2020 should be revoked. A new Medical Assessment Certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

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 Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system Date of Injury Chapter,
page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

 % WPI Proportion of permanent impairment due to pre-existing injury, abnormality or condition Sub-total/s % WPI (after any deductions in column 6)
1.Right lower extremity 9/04/13 Chapter 3 Pages 13-23 Chapter 17 Pages 523 to 564 15%

nil

 15%
2.
3.
4.
5.
6.

Total % WPI (the Combined Table values of all sub-totals)  

  15%

Jane Peacock

Member

Dr Drew Dixon
Medical Assessor

Dr Tom Mastroianni
Medical Assessor

18 March 2021

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Campbelltown City Council v Vegan [2006] NSWCA 284