Turner v Coles Supermarkets Australia Pty Ltd
[2023] NSWPICMP 517
•17 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Turner v Coles Supermarkets Australia Pty Ltd [2023] NSWPICMP 517 |
| APPELLANT: | Tania Turner |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 17 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant worker alleged error by Medical Assessor (MA) in the application of a one-half deduction of impairment for the left knee which was the subject of a specific injury and a three-quarter deduction of impairment for the right knee as a consequential condition; both lower limbs involved total knee replacements; the Appeal Panel considered that the deductions were consistent with the available evidence of long standing and widespread degenerative changes in both knees and the MA had provided appropriate reasoning for those deductions; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 August 2023 the appellant, Tania Turner, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 August 2023.
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 grounds 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).
RELEVANT FACTUAL BACKGROUND
Tania Turner, the appellant worker, sustained an injury to her left knee on 6 September 2021 while employed as a delivery driver for the respondent employer, Coles Supermarkets Australia Pty Ltd (Coles). Ms Turner states that she was making a delivery when she stepped out of the truck and onto the step of the truck when she heard a snapping noise in her left knee and felt immediate pain.
Ms Turner began to walk with an antalgic gait and placed additional weight upon her right knee due to the effects of the injury to the left knee, and as a consequence began to experience pain and symptoms in her right knee.
Ms Turner underwent an MRI scan of both knees on 5 May 2022, which reported degeneration of both medical menisci and “full thickness chondral fissuring of the patella apex and the adjacent medial and lateral patellar facets” in both knees.
Ms Turner came under the care of Dr Balalla, orthopaedic surgeon. In his initial report to Ms Turner’s general practitioner dated 3 June 2022, Dr Balalla records that Ms Turner felt immediate pain and swelling in her left knee when she stepped from a delivery truck in September 2021. He records that Ms Turner developed “an identical problem” on her right leg in April 2020, and her “right knee is now in a similar situation to her left”.
Dr Balalla refers to MRI scans of both knees which show severely torn medial menisci with the complete extrusion of the meniscal bodies out of the articulation. He writes that there is early arthritic change in the medical compartments of both knees, but he notes that the patellofemoral and lateral compartments are normal on both knees.
Dr Balalla concludes:
“Tania is a 55 year old lady who is in a difficult situation. She has severe pain due to work-related injuries where her medial menisci have sustained significant tears and are now defunctioned. These defunctioned menisci are now causing secondary osteoarthritic change. Unfortunately debridement of these menisci is unlikely to help. This arthritic process will now progress with time.”
Ms Turner ultimately underwent bilateral total knee replacements on 2 August 2022, which were performed by Dr Balalla.
Ms Turner made a claim for 34% whole person impairment (WPI) as a result of the injury sustained on 6 September 2021 which is based upon an assessment made by Dr Porteous in a report dated 17 April 2023 of 20% WPI of each knee and 1% WPI for scarring (TEMSKI), but with a one-tenth deduction for each knee for pre-existing impairment.
Dr Porteous opines that Ms Turner had a left knee medical meniscal injury on 6 September 2021 which likely aggravated pre-existing degenerative change in the knee. He also opines that Ms Turner aggravated or exacerbated pre-existing degenerative changes in the right knee when she started to favour her left knee.
There are reports from Dr Muratore, sports physician, dated 23 June 2022 and 13 May 2023. In his report dated 23 June 2022, Dr Muratore diagnoses Ms Turner as having osteoarthritis of the medial and patellofemoral compartments of both knees with degenerative tears of the medial menisci. Dr Muratore opines:
“The osteoarthritis is pre-existing and not causally related to Ms Turner’s employment, although her employment may have caused an aggravation of that condition by the nature and conditions of what she did”.
In his report dated 13 May 2023, Dr Muratore opines:
“Osteoarthritis of both knees, with an acute exacerbation and extension of a degenerative medial meniscal tear of the left knee in question. The osteoarthritic process was aggravated by the nature and conditions of Ms Turner’s work, and that has been treated surgically and she has had bilateral hemiarthroplasties.”
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 not necessary for the worker to undergo a further medical examination because for reasons explained below, found that the Medical Assessor assessed the respondent’s permanent impairment based on correct criteria and the MAC did not contain a demonstrable error.
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 Medical Assessor records that Ms Turner had no symptoms involving her knees before 6 September 2021. He records that Ms Turner was stepping out of her truck when she heard a snapping sensation in her left knee.
The Medical Assessor made a summary of injuries and diagnoses as follows:
“Mrs Turner sustained an injury to her left knee on 6 September 2021. It was a specific injury. She then developed problems with her right knee with no specific injury. Investigations demonstrated significantly degenerative menisci bilaterally which had extruded and this was on the background of significant medial compartment arthrosis. She subsequently underwent bilateral hemi-arthroplasty procedures. She has obtained a fair result bilaterally”.
The Medical Assessor assessed Ms Turner as having 20% WPI for both the left knee and right knee on the basis of Ms Turner having a ‘fair result’ from her bilateral total knee replacements according to Table 17.33 of AMA 5. The Medical Assessor also assessed 1% WPI for scarring to the knees.
The Medical Assessor made a one-half deduction for a pre-existing condition in the left knee and made a three-quarter deduction for a pre-existing condition in the right knee. This resulted in an assessment of 10% WPI for the left knee and an assessment of 5% WPI for the right knee.
The Medical Assessor confirmed there were marked degenerative changes involving both knees and then writes:
“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 injury, being the matters taken into account in 10a, and in the following ways:
(i)The degenerative changes would have been present well before the date of the initial injury to the left knee in September 2021 and it was noted that there was no specific injury to the right knee. The requirement for the hemi-arthroplasty was because of the degenerative changes within the medial compartment.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is one half and three quarters on the right for the following reasons:
(ii)The reason for the hemi-arthroplasties was because of the arthritis and the degenerative changes involving the menisci and she would not have undergone these procedures were it not for the degenerative changes. The deductible proportion is clearly greater than the statutory one 10th and on the left I have made a one half deduction noting that there was an injury and on the right a three quarter deduction noting that there wasn’t a specific injury”.
Other parts of the MAC 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.
The appellant’s submissions
Ms Turner submits that the MAC contains a demonstrable error and/or is based upon incorrect criteria for the following reasons:
(a) the Medical Assessor did not assess the worker in accordance with the Guidelines;
(b) the Medical Assessor failed to reconcile his own findings with respect to his conclusions;
(c) the Medical Assessor did not adequately set out his findings or did not adequately explain his findings, and
(d) the Medical Assessor did not adequately expose his reasoning.
Ms Turner refers to there being no complaints relating to her knees prior to the incident on 6 September 2021 in the clinical records from her general practitioners.
Ms Turner submits that the Medical Assessor made deductions on the basis of a constitutional arthritic condition with no available evidence to suggest that the osteoarthritic condition was the causative factor to the surgery from which the assessments of WPI have been made.
Ms Turner submits that the Medical Assessor failed “to adequately consider that predicating the onset of symptoms and subsequent treatment was an injurious/traumatic event”. She submits that the injurious event caused significant tears in her medial menisci, which in turn caused dysfunction and secondary osteoarthritic change.
Ms Turner refers to the opinion from Dr Balalla that the arthritic process “will now progress with time” to submit that the incident on 6 September 2021 commenced an aggravation of underlying degenerative changes which required surgical intervention. She submits that the bilateral knee injury which required treatment was not an organic process, but instead was explicitly and inextricably linked to the injurious event.
Ms Turner submits that there should be no deduction from the assessment of WPI made by the Medical Assessor, or in the alternative no more than a one-tenth deduction.
The respondent’s submissions
Coles submits that the Medical Assessor clearly refers to relevant imaging and medical reports in the MAC and sets out his interpretation of the material, especially in those parts of the MAC which have already been quoted by the Appeal Panel. Coles submits that the findings made by the Medical Assessor were clearly consistent with the conclusions he made regarding the extent of the s 323 deduction and that sufficient reasons were provided by the Medical Assessor.
Coles refers to the clinical notes from Norwest General Practice where a record is made on 29 October 2021 of: “able to self manage, 90% better”. There is then no reference to left knee complaints until a record is made on 1 March 2022 of “Right knee now sore” and “Similar too left knee but not as bad”.
Coles submits that despite there being no specific injury to the right knee, the imaging which is taken some two months after the onset of right knee symptoms reveals extensive degenerative changes and a tear, and that the left knee similarly showed degenerative changes and a tear. Coles submits that despite there being different mechanisms of injury for each knee, the imaging of both of the knees showed similar degenerative menisci changes which led to surgery less than 12 months after the incident on 6 September 2021.
Coles submits that a deduction was appropriately made by the Medical Assessor following consideration of imaging and findings by treating doctors and independent medical experts which were indicative of an advanced pre-existing degenerative disease.
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.
Neither party to the dispute has challenged the assessment made by the Medical Assessor that Ms Turner has 20% WPI for each lower limb on the basis that she has had a fair result from both total knee replacements (Table 17.33 of AMA 5). The issue on appeal is the proportion of the deduction from that impairment due to a pre-existing condition in both of her knees.
The Appeal Panel agrees with the conclusion reached by the Medical Assessor that the degenerative changes would have present well before the injury sustained by Ms Turner on 6 September 2021.
The Appeal Panel also agrees with the conclusion reached by the Medical Assessor that those degenerative changes were significant. The Medical Assessor refers to investigations which demonstrate significant degenerative bilateral menisci on a background of significant medial compartment arthrosis. The Appeal Panel confirms that the findings on the MRI scan taken on 5 May 2022 reports advanced osteoarthritis in both knees with Grade IV changes in the patellofemoral joints.
The Appeal Panel considers that the development of right knee symptoms without any specific trauma, and then those symptoms becoming similar to those symptoms experienced in the left knee, is another indication that Ms Turner had an advanced osteoarthritic condition in both knees.
The Appeal Panel also considers from the description of the incident provided by Ms Turner and the record of the incident by various doctors she has seen that she sustained a minor injury to her left knee on 6 September 2021.
The Appeal Panel respectively disagrees with the opinion by Dr Balalla that the “defunctioned menisci are now causing secondary osteoarthritic change”. A review of the material undertaken by the Appeal Panel reveals that osteoarthritic change in both knees included degeneration of the menisci and this pathology was well entrenched at the time of the incident involving the left knee on 6 September 2021.
The Appeal Panel therefore rejects the submission made by Ms Turner that the Medical Assessor made deductions on the basis of a constitutional arthritic condition where there was no available evidence to suggest that the osteoarthritic condition was the causative factor for the surgery from which the assessments of WPI have been made.
The Appeal Panel concludes that the opinion provided by the Medical Assessor for a deduction for a proportion of the impairment for both knees due to a pre-existing condition was available from the medical material and is consistent with the medical material which has been reviewed by the Appeal Panel.
Furthermore, the Medical Assessor has properly set out his reasons for this. He has explained that the requirement for the total knee replacements was because of degenerative changes in both medial compartments which were present well before the injury in September 2021. He has deducted a lesser amount for the left knee because that knee was subject to a specific injury.
The Appeal Panel concludes that there has been a rational and reasoned approach undertaken by the Medical Assessor in his findings of the deduction which is to be made for pre-existing conditions in both knees and that there is no basis upon which this should be disturbed by the Appeal Panel.
The Medical Assessor records that Ms Turner had no symptoms involving her knees before 6 September 2021. Ms Turner in her submissions refers to there being no complaints involving either of her knees in the clinical notes from the general practitioners.
In Marks v Secretary, Department of Communities and Justice (No.2) [2021] NSWSC 616 (Marks No.2), Simpson AJ said at [16]-[17]:
“The more important question, which the plaintiff’s submissions did not address, is whether a pre-existing condition, notwithstanding that it is asymptomatic at the time of the injury in respect of which the assessment is undertaken, may, nevertheless, contribute to the degree of impairment. In respect of physical injuries, it has long been held that it can: Government Cleaning Service v Ellul (1996) 13 NSWCCR 344; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liquidation) [2013] NSWSC 365 at [91] and [95].
In the light of this consistent line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to ‘previous injury ... or ... pre-existing condition or abnormality’, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury.”
The Medical Assessor was aware of Ms Turner having made no complaints regarding either of her knees prior to the incident on 6 September 2021. Nonetheless, he has set out his reasons as to why there is to be a substantial deduction in the assessment of impairment of both knees and more than the one-tenth deduction allowed for in s 323 (2) of the 1998 Act.
The Appeal Panel considers that the Medical Assessor has made deductions of impairment for both knees which are entirely appropriate given the widespread degenerative changes which pre-date the incident on 6 September 2021.
The Appeal Panel therefore does not find that the assessment was made on the basis of incorrect criteria or that the MAC contains a demonstrable error.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 August 2023 should be confirmed.
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