The GEO Group Australia Pty Ltd v Coles
[2024] NSWPICMP 247
•26 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | The GEO Group Australia Pty Ltd v Coles [2024] NSWPICMP 247 |
| APPELLANT: | The GEO Group Australia Pty Ltd |
| RESPONDENT: | Trevor John Coles |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 26 April 2024 |
| DATE OF AMENDMENT | 17 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Respondent suffered injury to lumbar spine and right lower extremity; respondent’s permanent impairment relating to right lower extremity assessed by reference to the criteria for knee replacement; whether Medical Assessor’s (MA) examination of the respondent’s right knee included extension lag; whether MA’s assessment of 2% whole person impairment (WPI) under paragraph 4.33 of the Guidelines available on the evidence; Appeal Panel held MA’s assessment of 2% WPI under paragraph 4.33 of the Guidelines available on the evidence; Appeal Panel held it could not be ascertained based on the MA’s findings from examination whether his examination of the appellant’s right knee included extension lag, which amounted to the MA providing inadequate reasons for his assessment and that was a demonstrable error; respondent re-examined; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 December 2023 the GEO Group Australia Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 November 2023.
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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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).
RELEVANT FACTUAL BACKGROUND
Trevor John Coles, the respondent, commenced employment as a rehabilitation and reintegration officer with the appellant on 3 March 2003. He worked at the Junee Correctional Centre. On 13 August 2018 he tripped on a rubber mat and fell. While falling, he grabbed a rail that caused him to twist to the left. He landed on his right knee and also wrenched his back. The incident caused him to suffer an injury to his right knee and lumbar spine.
The respondent had an arthroscopy of his right knee in mid-December 2020 and again in June 2021. Neither produced a good result. On 24 September 2022 he had right knee joint replacement.
The respondent claimed compensation from the appellant for permanent impairment of 27% that he said had resulted from his injury. He relied on a report dated 23 March 2023 of orthopaedic surgeon Dr James Bodel. Dr Bodel had assessed the respondent had 5% whole person impairment (WPI) relating to his lumbar spine, to which he had added 2% WPI for the effect the respondent’s injuries had on his activities of daily living. Dr Bodel also assessed the respondent also had a fair result from his right total knee replacement, which in accordance with Table 17-35 of AMA5, as modified by the Guidelines, allowed for a rating of 20% WPI. Dr Bodel assessed the respondent also had 1% WPI relating to the scarring he had from his surgery. Dr Bodel noted that these are individual ratings of the respondent’s impairment combined to 27% WPI.
The appellant’s solicitors organised for the respondent to be examined by orthopaedic surgeon Dr Richard Powell on 16 June 2023. In a report dated 20 June 2023 Dr Powell advised the appellant’s solicitors that he assessed the respondent had 18% WPI. That was on the basis that he assessed the respondent had a fair result from his total knee replacement, which as just mentioned, allowed for a rating of 20% WPI. Dr Powell considered that 1/10th of the respondent’s permanent impairment relating to his right knee was due to a pre-existing pathology and made a deduction of 1/10th from the overall permanent impairment he assessed the respondent had relating to his right knee. That reduced the respondent’s permanent impairment to 18% WPI for his right knee. Dr Powell considered the respondent did not have any permanent impairment relating to the scarring from his surgery. Dr Powell also considered that the respondent did not have any permanent impairment relating to his injury to his lumbar spine.
A medical dispute between the parties relating to the degree of the respondent’s permanent impairment from the injury he suffered on 13 August 2018 thus arose, precipitating the respondent to institute proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment from his injury.
A delegate of the President of the Commission issued a referral to the Medical Assessor on
4 October 2023 to assess several medical disputes relating to the respondent’s injury, including the degree of his permanent impairment as a result of his injury and whether any proportion of his permanent impairment is due to a pre-existing condition and the extent of that proportion. The Medical Assessor examined the respondent on 26 October 2023 to conduct the assessment of those medical disputes. As mentioned, he issued a MAC on
6 November 2023 in which he certified that he had assessed that the degree of the respondent’s permanent impairment from his injury was 31% WPI. That comprised 6% WPI relating to the respondent’s lumbar spine and 27% WPI relating to the respondent’s right lower extremity.The Medical Assessor noted that his findings from his examination of the respondent’s lumbar spine correlated with the criteria for DRE lumbar category II which allowed for an assessment range of 5% to 8% WPI depending on the effect of respondent’s injury on his activities daily living. The Medical Assessor explained that he added 2% WPI for that. The Medical Assessor noted that the respondent was able to mow a small lawn at his residence by doing it by instalments but was unable to climb ladders and was unable to lift or carry. The Medical Assessor also noted that the respondent is unable to engage previous past times, such as riding a horse and hunting and fishing.
The Medical Assessor found that the respondent had a pre-existing condition in his lower back that contributed to the impairment he had assessed the respondent had from the injury to his lumbar spine, and the Medical Assessor made a deduction under s 323(1) of the 1998 Act on account of that of 1/10th.
The Medical Assessor recorded making the following findings from his examination of the respondent’s lower limbs:
“Mr Coles walked with a slight dragging of the right leg, although not exactly a
limp. He could stand on his heels and toes but could not effectively walk on them. Squatting was not attempted.
The legs were equivalent in length. Since there had been a unilateral knee joint replacement, circumferential measurements of the thighs and calves would not have been of diagnostic value.
No significant features were identified with the hips or the ankles. At the right knee there was a fixed flexion deformity of 15°. Flexion ceased at 90°. On the left side he had full extension at 0° with flexion going through to 130°.
Sensation to pinprick was reduced over the medial and to a lesser extent, the lateral sides of the right foot and ankle. Power of the extensor hallucis longus (L5) was equivalent.
Reflexes were present and equivalent at the knees (L4) and at the ankles (S1).
The surgical scar over the anterior of the right knee, which would be consistent with the
approach for the knee joint replacement, had healed satisfactorily. As would be expected, there was a longitudinal patch to the lateral side of the scar where sensation was grossly altered.
As well as this, he was tender just lateral and distal to the knee joint.”
The Medical Assessor explained that he assessed the respondent’s permanent impairment relating to his right lower extremity by reference to the criteria of Table 17-35 of AMA5, as modified by the Guidelines. He advised that the points he awarded for the various criteria specified within that table were as follows:
Factor
Points
Pain – moderate, occasional
20
Range of movement
15
Stability A-P <5mm
10
Stability M-L 5°
15
Subtotal A
60
Flexion Contracture 10° - 15°
5
Extension Lag 10° - 20°
10
Alignment
0
Subtotal B
15
A – B
45
The Medical Assessor observed that in accordance with Table 17-33 because the respondent had an aggregate point score of less than 50 the result from his knee replacement surgery was classified as poor, which allowed for a rating of 30% WPI. The Medical Assessor also considered that a proportion of the respondent’s permanent impairment from the injury to his right knee was due to a pre-existing condition and made a deduction under s 323(1) of the 1998 Act of 1/10th on account of that when assessing the respondent’s permanent impairment relating to his right lower extremity, such that he assessed the respondent’s permanent impairment relating to his right lower extremity was 27% WPI.
The Medical Assessor also assessed the respondent had no permanent impairment relating to the scaring from his surgery.
The impairments the Medical Assessor assessed the respondent had from his injury to his lumbar spine and to his right lower extremity combined to 31% WPI, and hence the Medical Assessor certified the degree of the respondent’s permanent impairment from his injury was 31% WPI.
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.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the respondent to undergo a further medical examination. This is because, for reasons explained under the heading “findings and reasons” below, the Appeal Panel found that the MAC contained a demonstrable error and the Appeal Panel would need further clinical data to correct that error, which could only be obtained by examination of the respondent. The Appeal Panel appointed Medical Assessor Mark Burns, one of its members, to conduct that examination. He did so on 3 April 2024 and reported to the Appeal Panel on 5 April 2024. His report to the Appeal Panel is set out under the heading “findings and reasons” below.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not make clear in the MAC whether he tested or measured the respondent’s extension lag relating to his right knee. The appellant submitted that the Medical Assessor did not give an explanation for finding that he had allocated a score of 10 points for an extension lag of 10° - 20° the respondent had. The appellant submitted that was a demonstrable error because the Medical Assessor had failed to test or measure extension lag. The appellant also submitted this represented an application of incorrect criteria because the Medical Assessor did not properly apply the requirements of Table 17-35 of the AMA5.
The appellant observed that both Dr Bodel and Dr Powell had assessed the respondent had a fair outcome from his total knee replacement.
The appellant submitted that the Medical Assessor erred by allocating 2% WPI for the effect the respondent’s injury to his lumbar spine had on his activities of daily living. The appellant submitted that the Medical Assessor did not indicate whether the restrictions the respondent had with respect to some recreational activities and some outdoor household activities were related to his back injury or to his right knee injury. The appellant submitted “that it is reasonable to assume that at least some of the restrictions come from the right knee injury”. The appellant submitted that any restrictions on the respondent’s activities of daily living caused by his right knee injury were adequately addressed under Table 17-35 and that to allow a further loading when assessing the permanent impairment the respondent has due to his lumbar spine would result in a double counting of impairment.
In reply, the respondent submitted that the reasons the Medical Assessor provided in the MAC makes it plain that the Medical Assessor conducted an examination of his lower limbs. The respondent submitted that the Medical Assessor correctly identified that Table 17-35 of AMA5, as modified by the Guidelines, required the Medical Assessor to undertake an assessment of the extension lag in his right lower limb. The respondent submitted that the reasons the Medical Assessor provided for his assessment should not be over zealously scrutinised and the respondent submitted that the Medical Assessor provided adequate reasons for his assessment.
The respondent submitted that Table 17-35 of AMA5 does not direct attention to activities of daily living but rather stair climbing, putting on shoes and socks, sitting and public transportation. The respondent submitted that the activities on which the Medical Assessor relied to assess he had 2% WPI due to the effect of his lumbar spine injury on his activities of daily living were not within the scope of Table 17-35.
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.
The Medical Assessor identified that the respondent now has difficulty with some aspects of his homecare and some aspects of yard and garden care and also was no longer able to participate in some of his sporting and recreational activities. The Appeal Panel considers that when the MAC is read as whole the Medical Assessor was of the view that those restrictions of the respondent resulted from both the injury he suffered to his lumbar spine and also the injury that happened to his right knee on 13 August 2018. Indeed, given the symptoms the respondent currently suffers with both his right knee and lumbar spine, the Appeal Panel considers that would be the case.
Paragraph 4.33 of the Guidelines do not require that the restriction a worker has on his or her activities of daily living from an injury to the spine must be due solely to that injury in order that paragraph 4.33 can be engaged. In the Appeal Panel’s view, so long as an injury to the spine materially contributes to the restrictions a worker experiences with respect to his or her activities of daily living, a rating can be made under paragraph 4.33 of the Guidelines. In such circumstance there is a causal connection between the spinal injury and the worker’s restrictions in his or her activities of daily living.
The Appeal Panel does not accept the appellant’s submission to the effect that Table 17-35 of AMA5 as modified by the Guidelines incorporates a rating for the restriction a worker may have on his or her activities of daily living caused by a knee injury. What the modified table requires is that a Medical Assessor have regard to whether a worker experiences pain when negotiating stairs or when walking. The Medical Assessor must do so in order to award points for the degree of pain a worker suffers following a knee replacement. That function does not relate at all to the effect that a knee replacement a worker has undergone may have on the workers’ activities of daily living.
Accordingly, the Appeal Panel does not consider the MAC contains a demonstrable error as a consequence of the Medical Assessor adding 2% WPI under paragraph 4.33 of the Guidelines when assessing the respondent’s permanent impairment from his lumbar spine injury. Further, by doing that, the Medical Assessor did not apply incorrect criteria.
The Appeal Panel however agrees with the appellant’s submission that it is not apparent from the findings that the Medical Assessor set out in the MAC that he examined whether the respondent had any extension lag of his right knee and if so the degree of that. That is one of the matters for which a Medical Assessor must award points under the modified Table 17-35. Even if the Medical Assessor did measure it, then he did not record what it was, and absent his doing that the Appeal Panel, and indeed the parties, are unable to determine whether the points he awarded for extension lag are correct. In other words, if it is the case that the Medical Assessor did measure the respondent’s extension lag and failed to record in the MAC the degree of that, then, as the appellant submitted, that is a failure on the part of the Medical Assessor to provide adequate reasons for his rating. That is a demonstrable error.
Given that the MAC contains a demonstrable error, the Appeal Panel must, as noted earlier, correct that error. In order for the Appeal Panel to do that it needed to re-examine the respondent to determine his extension lag so as to determine the result of his knee replacement. As said, Medical Assessor Burns was appointed to do that. His report to the Panel from his examination is as follows:
“1.The workers medical history, where it differs from previous records.
Mr Coles confirmed the history obtained by the Medical Assessor on 26 October 2023. He did state though that his correct date of birth is 15 February 1961 not 17 February as listed by the Medical Assessor.
2. Additional history since the original Medical Assessment Certificate was performed.
Mr Coles reported that he had a trip and fall in December 2023. He had a flare up of pain in his low back as well as his right knee. He was seen by his General Practitioner and commenced on Lyrica at night. He has continued to take this medication occasionally as required.
Current symptoms:
With respect to his lower back he reports pain in the midline, which radiates down into both legs. This pain is constant but varies in intensity. It has not changed since he was assessed in October 2023.
With respect to his right knee he reports that the knee is stable and occasionally swells. He has pain over the lateral side of the right knee, which he classifies as dull and is present most of the time but is not continuous. The pain in the right knee tends to be worse when he gets out of bed first thing in the morning and when he tries to get into and out of cars. He stated that he could walk up to 20 minutes on the flat and then develops some pain and discomfort. When going up and down stairs he has a dull ache in the right knee and takes one step at a time only.
He reported that he is currently living in the back half of a house, which has some outdoor steps in order to access the house. He and his wife live in the flat at the back and his daughter and her family live in the front half.
With respect to mowing and gardening his wife now does most of this activity. He does help out with the cooking and he has purchased a stick vacuum cleaner to help with the cleaning. He cannot though assist with any of the bathroom or kitchen cleaning as he cannot bend due to his low back pain. With respect to self-care he reported that he is totally independent.
Current treatment:
He is currently living in Melbourne but is not seeing any local medical practitioners. He has continued to be in contact with Dr Smith, his GP in Wagga Wagga. He is in contact with the doctor every 3 months. This is broken up into a face to face contact on a 6 monthly basis and telehealth conferences on the alternate 6 monthly basis. It appears that these consultations are mostly for certificates of capacity.
In Melbourne he has commenced attending physiotherapy for both his right knee and lumbar spine. He is having mostly dry needling in order to help with the pain.
He currently takes Palexia IR 50mgs at night on 4 – 5 days per week. He also takes Celebrex 100mgs in the morning 3 days a week. He takes Amitriptyline 75mgs at night and Duloxetine 60mgs in the morning. For breakthrough pain he also takes Panadeine Forte 2 tablets as required.3. Findings on clinical examination
Mr Coles was 182cms tall and weighed 95.7kgs. He was noted to walk with a slightly antalgic gait with his right knee never fully straightening.
Lumbar spine:
Examination of lumbar spine revealed tenderness to the midline and to the left and right in the lower lumbar spine. There was no evidence of muscle spasm or muscle guarding. Flexion was 50% of predicted and extension 25% of predicted. Lateral tilt to the left and right was 25% of predicted. Straight leg raising was 45° in the supine position on the left and right sides. He did report some mild low back pain on the right side but no pain on the left side. There was a negative sciatic stretch test bilaterally.
Neurological examination of both lower limbs revealed normal power, tone and reflexes. Sensation was reported as being slightly decreased over the lateral aspect of the total knee replacement scar. The circumference of the left and right quadriceps was 45cms. The circumference of the right calf muscle was 37.5cms compared to 39cms on the left.
Lower extremity:
Examination of the left knee revealed a normal range of movement from 0° to 130° flexion. On the right hand side there was a 15° fixed flexion deformity and he was able to flex to 110°. There was no evidence of extension lag in the right knee. There was full stability in the mediolateral and anterior posterior directions in both knees. Both knees were in approximately 5° valgus angulation. There was no evidence of patellofemoral crepitus in either knee.4. Results of any additional investigations since the original Medical Assessment Certificate
He reported no further investigations.”
The Appeal Panel considers that the updated history Medical Assessor Burns obtained is accurate and his examination of the respondent’s right lower extremity was thorough. The Appeal Panel consequently adopts Medical Assessor Burns updated history and his findings from examination.
Based on the history the Medical Assessor obtained as updated by Medical Assessor Burns and based on the findings Medical Assessor Burns made from his examination of the respondent, the Appeal Panel awards 20 points for criterion a of the modified Table 17-35 on the basis the respondent has moderate occasional pain into his back and both legs. The Appeal Panel awards 18 points for criterion b on the basis that the respondent’s range of motion of his right knee is from +15° to 110°. With respect to criterion c the Appeal Panel awards 10 points because the respondent has stability in anterior posterior movement of less than 5mm and the Appeal Panel awards 15 points because the respondent has stability in mediolateral movement of 5° or less. Those points combine to 64 points.
The Appeal Panel also awards 5 points criterion d because the respondent has flexion contracture of 15°. The Appeal Panel awards 0 points for criterion e because the respondent does not have extension lag. The Appeal Panel also awards 0 points for criterion f because his tibiofemoral alignment is 5° valgus.
When the 5 points the respondent scored for criteria d – f is deducted from the 64 points he scored for criteria a – c, then 59 points is obtained, which means that he had a fair result for his total right knee replacement. In accordance with Table 17-33 that is 20% WPI.
The Appeal Panel observes that no challenge was made to the deduction the Medical Assessor made for the proportion of the respondent’s permanent impairment relating to his right knee that was due to a pre-existing condition. In any event, the Appeal Panel would have made the same deduction, if complaint had been made, because the initial scans and X-rays of the respondent’s right knee that were done before his total knee replacement revealed significant degenerative change in the knee which was present prior to the respondent’s injury and contributed to the need for his total knee replacement.
The Appeal Panel also observes that no complaint was made about the 0% rating the Medical Assessor made for the respondent’s scaring due to his knee replacement.
Consequently, when the demonstrable error in the MAC is corrected, the outcome is that the respondent has 23% WPI from his injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
6 November 2023 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
AMENDED MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6657/23 |
Applicant: | Trevor John Coles |
Respondent: | The GEO Group Australia Pty Ltd |
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 Medical Assessor Tim 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) |
| Lumbar spine | 13/08/2018 | Chapter 4 | Chapter 15 Table 15-3 | 7% | 1/10 | 6% |
| Right lower extremity | Chapter 3 | Chapter 17 Table 17-33 | 20% | 1/10 | 18% | |
| Scarring | Table 14.1 | 0 | - | 0 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 23% | |||||
0