Turner v Tumut Earthmoving Pty Limited (De-registered)
[2021] NSWPICMP 88
•9 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Turner v Tumut Earthmoving Pty Limited (De-registered) [2021] NSWPICMP 88 |
| APPELLANT: | Phillip James Turner |
| RESPONDENT: | Tumut Earthmoving Pty Limited (De-registered) |
| APPEAL PANEL: | Member William Dalley Dr John Brian Stephenson Dr Ross Mellick |
| DATE OF DECISION: | 9 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for lump-sum compensation in respect of injury to the lumbar spine and left lower extremity (knee) referred for assessment; without appearing to decide whether injury to the lumbar spine had occurred AMS assessed all lumbar impairment as arising from subsequent degenerative changes with 0% resulting from injury; the AMS assessed the knee without considering the effects of surgery upon the ACL; Held- failure to provide adequate reasons for concluding that no impairment flowed from the admitted lumbar spine injury was demonstrated; assessment of left knee did not appear to consider effects of surgery and was not in accordance with the Guidelines and Table 17-33 of AMA5; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 November 2020 Phillip James Turner 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 12 November 2020. The Medical Assessor, Dr Anderson, was at the time of assessment, appointed as an Approved Medical Specialist (AMS) and will be referred to in these reasons as “the AMS”.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before the medical assessment)
· 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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under section 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
Because the assessment was made in respect of a threshold dispute for the purposes of section 32A of the Workers Compensation Act 1987 (the 1987 Act), 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).
RELEVANT FACTUAL BACKGROUND
The appellant, Mr Turner, suffered an injury to his left knee when he fell from a trailer in the course of his employment with the respondent, Tumut Earthmoving Pty Ltd on 11 August 1988 (the subject injury). He underwent arthroscopic repair but suffered further problems when the left knee collapsed at work on 19 September 1988. Mr Turner underwent a further arthroscopy and his treating orthopaedic surgeon, Dr Adrian Van der Rijt, noted a fragmented bucket handle tear of the medial meniscus and rupture of the anterior cruciate ligament.
In July 1993 Mr Turner underwent further surgery. The treating orthopaedic surgeon, Dr Michael Johnson, reported repair of tearing of the lateral and medial meniscus and anterior cruciate reconstruction. On 8 March 1994 Dr Johnson performed a partial lateral meniscectomy in the left knee.
Mr Turner also noted the onset of low back pain which was treated conservatively. In 1995 he was paid lump-sum compensation pursuant to section 66 of the 1987 Act in respect of an agreed 25% permanent loss of use of the left leg at or above the knee as a result of the subject injury. He subsequently received an additional payment pursuant to section 66 of the 1987 Act including a payment in respect of permanent impairment of the lumbar spine. Those payments were assessed in accordance with the Table of Maims.
In the current proceedings Mr Turner sought assessment of the extent of whole person impairment (WPI) arising from the subject injury because the insurer had given notice pursuant to section 39 of the 1987 Act of cessation of weekly payments, the insurer having obtained an assessment of 5% WPI as result of the subject injury.
A consent order was made to the effect that the dispute as to the extent of WPI should be remitted to the Registrar for referral to an Approved Medical Specialist “for assessment as to whether the degree of permanent impairment of the left lower extremity (knee) and the lumbar spine as a result of injury on 11 August 1988 is more than 20% (Section 32A of the Workers Compensation Act 1987).”
The dispute was then referred to the AMS, Dr Anderson, who assessed 4% WPI. Dr Anderson was provided with the Application for Assessment by an Approved Medical Specialist and attached documents, the Reply and attached documents and the Certificate of Determination.
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the dispute between the parties required determination of the pathology present in the left knee which was best assessed by medical examination by a Medical Assessor member of the Panel.
The appellant sought the opportunity to present oral submissions to the Panel. The Panel considered that request but, in the absence of any submissions explaining why that course was necessary or appropriate, the Panel determined that the appellant should be afforded the opportunity of presenting any further submissions in writing with the respondent having the opportunity to make submissions in reply as advised. The Panel received the additional submissions of the parties and has taken them into account in arriving at its determination.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit a report: “Review of Documents & Supplementary Medical Report” by Dr Gliksman dated 18 November 2020.
The appellant submits that the evidence is relevant to establish that “the AMS had calculated the WPI using the wrong methodology” and that demonstrable error was demonstrated by an apparent failure by the AMS to test for cruciate laxity.
The Panel accepts that the report sought to be introduced into evidence would not have been available to the appellant prior to the examination since it is confined almost entirely to discussion of the MAC. Beyond that discussion there is reference to earlier reports by Dr Gliksman which were already in evidence.
The respondent objected to the admission of the report. The respondent noted that the document was filed “out of time”, did not address the medical information before the AMS and constituted an attempt to cavil with the findings of the AMS.
The Appeal Panel determines that the evidence should not be received on the appeal. The report is confined almost entirely to a critique of the MAC. The Panel is of the view that the report does not provide “fresh evidence” but simply raises arguments in support of the ground of demonstrable error.
To that extent, the Panel is satisfied to treat the report as providing submissions on behalf of the appellant but the Panel, in the exercise of its discretion, rejects the report as providing no fresh evidence[1] which addresses the issue of the extent of impairment.
[1] Within section 328(3) of the 1998 Act.
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.
Further medical examination
Dr Brian Stephenson of the Appeal Panel conducted an examination of the worker on 28 April 2021 and reported to the Appeal Panel. His report to the Panel is as follows:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR MEMBER OF THE APPEAL PANEL
_____________________________________________________________________
Matter No: M1-2399/20
Appellant: Phillip James Turner
Respondent: Tumut Earthmoving Pty Limited (De-reistered)
_____________________________________________________________________
Examination Conducted By: Medical Assessor, Dr J B Stephenson, member of the appeal panel.
Matter number: M1-2399/20.
Date of Re-examination: 28 April 2021, 12 noon until 1 pm.
_____________________________________________________________________
OCCUPATIONAL HISTORY
Phillip Turner was a plant operator leading hand when injury occurred. Date of injury 11 August 1998.
MEDICAL REPORTING REVIEW
Dr Michael Gliksman, occupational physician, 21 October 2019. Noted degeneration of knee symptoms, finding range of motion of left knee from 0° to 80° on left and 0° to 110° on right knee, with marked crepitus left knee, mild right knee. There was a mild effusion left knee at his assessment, date 21 October 2019. Dr Gliksman compared his reporting to that of Dr Peter Sharwood of 15 March 2019. Dr Gliksman considered that the measured wastage left lower limb must be due to local pathology affecting left lower limb. Dr Gliksman found lumbar spine 12% WPI, with a diagnosis of sciatica yielding the baseline of 10% WPI plus 2% for ADLs. Dr Gliksman found a positive McMurray's test in the left knee but not the injured right knee. He found Lachman's test for cruciate ligament laxity was negative at the right knee.
RADIOLOGICAL ASSESSMENT
The significant MRI of the left knee, re Phillip Turner, date of birth 18 November 1962. 'Findings are normal. Hypointense fibres of an ACL repair are nonvisualised, suggesting graft failure. The PCL has streaking interval signal, in keeping with previous interstitial injury. The collateral ligaments are intact. There is moderate medial compartment osteoarthritis. The medial meniscus is very abnormal in appearance and grossly deficient. This must be correlated with any history of previous meniscus resection'. At the request of Dr Ivan Astori the report from Queensland X-ray, noted there is a fairly large joint effusion present, which was visible at this current assessment.
Dr Michael Johnson, orthopaedic knee specialist, 8 March 1994. 'Operation: Phillip Turner had an arthroscopy of his left knee at the Mater Hospital today. He had extensive osteochondral damage to the patellofemoral joint requiring an osteochondroplasty, with a lateral release for a lateral patella compression and subluxation. There was partial tearing of the lateral meniscus which required partial lateral meniscectomy'.
On 3 May 1993, Dr Michael Johnson reported upon referral 'A chronic anterior cruciate instability of his left knee following an injury at work five years ago. He has had two arthroscopies since, with a partial meniscectomy being carried out. He has considerable laxity and disability at present and requires reconstruction. The same will be arranged in Sydney, at his request, for July'. Dr Johnson further confirmed in report 21 February 1994, 'this patient has undergone arthroscopic meniscectomies and cruciate reconstruction for the pathology which has occurred as a result of his work injury. He still has a persisting disability due to the chondromalacia patellae but his knee is quite stable'.
Comment: My examination findings find severe cruciate and collateral ligament laxity at the injured left knee.
The worker's medical history, where it differs from previous records.
I have referred to the relevant reports in that regard.
Additional history since the original medical assessment was performed.
I have noted the reference in that regard to the matters I have discussed above.
Findings on clinical examination.
I have noted the occupation at the time of accident was plant operator leading hand. Height 170 cm, weight 93 kg.
Present complaint is pain and ache left knee, with swelling, date of injury being 11 August 1988.
Briefly, the history of the injury was that he was in a team spraying bitumen on a road. He said he was walking backward with the handle of some equipment. He said two workmen picked up part of that equipment and pushed it backwards to lift up the bitumen spray device and the handle pushed into Phillip Turner's abdomen and he overbalanced and fell off the trailer. His left leg went between a rope rail on the side of the trailer and his left leg went downwards, causing injury to the anterior cruciate ligament, requiring surgery from Dr Michael Johnson. There had been
previously been surgery by Dr Adrian van der Rijt in Wagga for a bucket-handle tear of the left medial meniscus.The Respondent's submission, page 5, notes 'the Respondent concedes the lumbar spine condition has been accepted as related to the workplace injury. The AMS, however, did not consider there was any work-related component to the assessment of whole person impairment'.
The AMS has assessed 6% WPI of the lumbar spine, and then made a full deductible proportion.
On examination, the present complaints do involve a complaint of lumbar pain. When standing, he would forward flex, the fingers reached upper tibia level with lateral flexion lower thigh level on the right and left, extension was to the vertical position and plus 10° only. There was asymmetric loss of range of motion of the lumbar spine. There were no objective findings of radiculopathy in the lower extremities. Both power and sensation were satisfactory and deep tendon reflexes were present and active at both knees, both ankles and both medial hamstring reflexes. Right leg calf circumference was 42 cm, right lower thigh circumference 48.5 cm. In contrast, measuring the same sites, left leg calf circumference was 40.5 cm and left thigh circumference 47 cm circumference. The muscular atrophy in the left lower extremity is totally related to the severe cruciate and collateral ligament laxity found at the injured left knee referred to below. There was no objective findings of radiculopathy in the lower extremities, in that power and sensation was satisfactory and deep tendon reflexes were present and active. I would consider that a 6% WPI rating for the lumbar spine Page 384, Table 15-3 AMA5. That is a baseline of 5% plus 1% for yard and garden care. I would not make a fractional deduction under Section 323 for the lumbar spine.
I note Dr Michael Johnson again reported 5 September 2001, comment 'This patient has persistent degenerative changes in the patellofemoral joint and early changes in the medial compartment of his knee. This disability amounts to a 27.5% loss of function of the left lower limb at or above the knee. He is getting some secondary lower back pain due to postural malalignment, secondary to favouring his knee'.
Dr Hugh English, 17 April 2020 found 20% permanent loss of use of lumbar spine, and noted the cessation of work in 2018.
After ceasing work with the relevant employer, Mr Phillip Turner purchased and managed a hotel, which he sold in 2001. He is no longer employed. His wife is employed part time as a customer development manager with the Endeavour Foundation.
Present complaints, left knee of ache with a lot of swelling from the injury in 11 August 1988, when he was aged 24 years. Examination left knee, references to WorkCover Guidelines and AMA 5, Chapter 17, there is severe cruciate and collateral ligament laxity, gaining a 15% whole person impairment for the injured left knee. There is severe medial collateral ligament laxity.
There is severe anterior cruciate ligament laxity. In contrast, the opposite uninjured right knee is stable, as regard to cruciate and collateral ligaments with full extension and flexion 130°. At the left knee, there is a flexion contracture of 7° with flexion to 120°. When standing, he demonstrated 15° of medial collateral ligament laxity.Therefore, there is severe cruciate and collateral ligament laxity, which attracts 37% lower extremity impairment. The partial medial and lateral meniscectomy attracts 10% lower extremity impairment. Those figures are combined to produce total lower extremity impairment of 43%. That converts to 17% WPI pursuant to table 17-3. Reference AMA5, Chapter 17, Table 7-33, Page 546.
Should one then combine the 17% WPI from the lower extremity impairment, with 6% WPI for assessment of the lumbar spine, Diagnosis Related Category II, AMA 5, page 384, Table 15-3, a combination of 17% plus 6% gains a 22% WPI. There is no deductible proportion.”
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.
In summary, the appellant submits, with respect to the lumbar spine, that it was not open to the AMS “to find no injury to the back”. With respect to the left lower extremity the appellant submitted that the AMS had failed to consider whether there was cruciate ligament laxity and had therefore made his assessment on the basis of incorrect criteria. The appellant’s submissions did not identify any “additional relevant information” in support of that ground of appeal but referred to the report of Dr Gliksman dated 18 November 2020 as supportive of a view that the AMS had fallen into error and applied incorrect criteria.
In reply, the respondent submits that the MAC did not disclose the application of incorrect criteria and that no demonstrable error was established. The respondent conceded that “the lumbar spine condition had been accepted as related to the workplace injury” but submitted that it was open to the AMS to conclude that no part of any impairment of the lumbar spine was attributable to the subject injury. With respect to the left knee the respondent submitted that “the only areas where potential impairment could be discovered were unilateral muscle atrophy and diagnosis-based estimates.” Based on that method of assessment, the AMS’s conclusion that there was 4% WPI was open to him.
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[2] 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.
[2] [2006] NSWCA 284.
The appellant has included the availability of additional relevant information as a ground of appeal (section 327(3)(b) of the 1998 Act). The appellant’s submissions do not specifically identify the additional relevant information but the Panel assumes that this is a reference to the report by Dr Gliksman dated 18 November 2020. The Panel has considered the admissibility of that document pursuant to section 328(3) of the 1998 Act as noted above.
The Panel is of the view that the report does not constitute “additional relevant information” for the purposes of section 327(3)(b) because the report is confined to the author’s opinions as to aspects of the MAC and the assertion of his previously expressed opinion set out in earlier reports which are in evidence.
As indicated above, the Panel has taken note of the arguments raised by Dr Gliksman as constituting submissions on behalf of the appellant but the Panel does not accept that the report constitutes “additional relevant information”. That ground of appeal must fail.
The appellant asserts demonstrable error and adoption of incorrect criteria with respect to assessment of the lumbar spine and left lower extremity. It is convenient to deal with those body parts separately.
The lumbar spine
The AMS noted symptoms in the lumbar spine. On examination he recorded: “On forward flexion, he could reach his mid thighs with a McRae-Wright movement of 3 cm. This is stiff. 5 cm is the lower level of normal. Extension was minimal. Lateral flexion and rotation to each side reduced to 2/3 of the range.”
The AMS reported:
“Although there is a claim for low back dysfunction (lumbar spine), I could find only one report of radiological investigation of the lumbar spine throughout the many years of the history of this case. Also, there is very little (almost none) clinical comment on any low back condition from the many specialists who have examined, treated and assessed Mr Turner during this period of time. It looks, therefore, that the low back pain condition only started emerging somewhere around 2013 which is the time when he finished his occupation. After he left work as a plant operator, thought to be around 1990, he subsequently worked in concreting and also as a hotelier. There are very little general practitioner notes in the file. In 2019 there was a request for hydrotherapy and physio- Pilates for his joints and his lumbar spine function although no mention was made in the general practitioner summary of any low back condition between 2004 and 22/12/16. From this, I would conclude that there is no convincing evidence of a relationship of his low back condition with the event (or subsequent development) of 11/08/88.”
In the Table summarising the assessment, the AMS recorded his assessment of 6% WPI but deducted the whole of that impairment “pursuant to section 323 for pre-existing injury, condition or abnormality”. The AMS assessed Mr Turner as having 6% WPI in his lumbar spine at the time of examination. He reported:
”The development of his low back condition seems more likely to be due to naturally occurring degenerative changes or possibly the effects of his work as a concreter or hotelier, which ran for 12 to 14 years culminating [in] his decision to cease work in 2013”.
He also reported:
“I would draw attention to the condition of the lower back. At this assessment I was able to identify a whole person impairment of 6%. However I am completely unable to link this to the event of 11/08/88 or to any subsequent development specifically associated with that occasion. Therefore, all of this lumbar spine assessment is deducted.”
The appellant submitted that the AMS fell into error in finding that there was no injury to the lumbar spine on 11 August 1988. The Panel accepts that it was not in issue between the parties that Mr Turner had received a back injury as a result of the incident on 11 August 1988. The respondent concedes that it is the lumbar spine that is the relevant part of the back.
The appellant submitted that the AMS had failed to consider noting that the AMS had reported:
“There is only one report in which whole person impairment has been assessed and that was by specialist orthopaedic surgeon, Dr Peter Sharwood in both of his reports of 15/03/19 and 13/02/20. Both arrive at the same result. In each, the lumbar spine is assessed as category I with 0% and the left lower extremity with 4% due to muscle wasting.”
The appellant points to reports of Dr Gliksman dated 11 August 2014, 17 December 2016 and 17 March 2017 in which the independent medical expert provides assessment of WPI with respect to the lumbar spine and the left knee. The Panel notes that the report of Dr Gliksman dated 7 August 2014 also contains an assessment of WPI for both these body parts.
The Panel accepts that those reports do include an assessment of WPI with respect to both the lumbar spine and the left lower extremity (knee) and the statement of the AMS at paragraph 10c of the MAC is not correct.
The appellant submits that the AMS has not explained why he disagrees with Dr Gliksman and Dr English. The AMS did record: “specialist orthopaedic surgeon, Dr Hugh English advises that the low back condition did not become relevant until 2013.” However, Dr English’s opinion contained in his report dated 17 April 2020 does provide an assessment of “permanent loss of function”. Dr English was requested by the insurer to provide:
“Your assessment of percentage permanent loss of function pursuant to section 66 of the Workers Compensation Act, for any disability arising from any injury prior to 1 January 2002 (Table of Maims) in relation to
(a) Lumbar spine”
Dr English reported: “I would regard there as being 20% loss of use of the lumbar spine when being compared with the worst possible case”. That assessment was not strictly in accordance with the Table of Maims which adopts the terminology “permanent impairment of the back” rather than “loss of use”. The reference to the “lumbar spine” is also not in accordance with the Table of Maims which refer simply to the “back”.
That report did provide support from the respondent’s own independent medical expert indicating that there was ongoing pathology arising from the subject injury in August 1988.
The Panel accepts that it does appear from the MAC that the AMS had not considered relevant evidence as to the existence of impairment in the lumbar spine arising from the subject injury. That evidence comprises the reports referred to by Dr Gliksman as well as evidence of agreement between the parties that Mr Turner had suffered permanent impairment of the back which entitled him to lump sum payment under the Table of Maims.
The failure to consider relevant evidence constitutes demonstrable error[3] and the Panel is satisfied that this ground is made out with respect to the lumbar spine assessment.
[3] Tattersall v Registrar of the Workers Compensation Commission of NSW and Another [2007] NSWSC 453
The Panel also considers that it cannot be ascertained from the MAC whether the AMS has concluded that there was no injury to the lumbar spine on 11 August 1988. The AMS states that no part of the impairment is attributable to the subject injury but has not stated whether he accepts that there was an injury to the lumbar spine in August 1988.
It is clear from the material before the AMS that the parties were approaching the dispute on the basis that it was accepted that Mr Turner had suffered an injury to his lumbar spine on 11 August 1988 and that this had resulted in permanent impairment to the lumbar spine, in accordance with the Table of Maims. If the AMS was of the opinion that no injury to the lumbar spine had been occasioned by the incident on 10 August 1988 then procedural fairness required that he provide the parties with the opportunity to provide further material and/or make further submissions in regard to an issue which the parties regarded as concluded.
In Tomislav & Ranka Divljak (trading as DTR Ceilings) v Workers Compensation Commission and Others[4], Latham J said (at [33]):
“The AMS was also obliged to afford procedural fairness ‘so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the [AMS] with material which may be relevant to the formation of the opinion and to make submissions to the [AMS] on the basis of that material’ Wingfoot[5] at [47].”
[4] [2018] NSWSC 760.
[5] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480.
If the AMS accepted that there had been injury to the lumbar spine in accordance with the referral then an explanation was required as to whether the pathology that constituted that injury had led to impairment. It was not open to the AMS to make a deduction pursuant to section 323 of the 1998 Act as there was no evidence of any prior injury, pre-existing condition or abnormality prior to the date of injury in August 1988 as he appears to have done in constructing the Table attached to the MAC.
The parties have not had the opportunity of addressing these observations and the Panel is satisfied to decide the issue with respect to the lumbar spine for the reasons advanced with respect to the apparent failure to consider relevant evidence.
Left lower extremity
The effect of the appellant’s submissions is that the AMS had failed to consider the condition of the anterior cruciate ligament and had not appropriately considered the effects of the surgical reconstruction. The appellant submitted that examination of the state of the anterior cruciate ligament was required given that the AMS had assessed the knee pursuant to Table 17-33 of AMA5; “impairment estimates for certain lower leg extremity impairments”. The MAC did not record any observations upon examination of the state of the ACL although there was evidence before the AMS of the surgery and laxity.
The respondent noted that Mr Turner had undergone ACL reconstruction by Dr Johnson on 28 July 1993. Dr Sharwood had noted this in his report of 13 February 2020. The respondent submitted that, in accordance with the AMS and Dr Sharwood’s findings on examination:
“The only areas where potential impairment could be discovered were unilateral muscle atrophy and diagnosis-based estimates. Accordingly, the doctor assessed 4% whole person impairment. It is submitted that the assessment is not an “obvious error” as submitted by the appellant.”
The AMS reported findings on physical examination:
“Lower Limbs. He walked with a left-sided limp. He could stand on his heels and toes could not walk on them. He was unable to effectively squat.
The legs were equivalent in length and in circumference at the thighs (a discrepancy has been reported in the file. This was carefully checked in at this assessment, the thigh circumferences were equivalent.) There was 1 cm loss of circumference with the left calf.
No significant features were identified with the hips or the ankles. He had full extension (0°) of both knees. The flexion movement was equivalent to 120°. There was no retro patellar or joint line tenderness, nor was there any knee joint swelling. The surgical scar over the anterior of the left knee had healed quite well, although [it] was still a bit ragged. There were no crepitations in the right knee although in the left knee there were a lot of crepitations.”
Under the heading “Summary of injuries and diagnoses” the AMS reported:
“The knee has been treated by three surgical procedures, two by Dr Adrian Van der Rijt and the most recent by Dr Michael Johnson. The injuries to the left knee included meniscus pathology both medial and lateral and also partial thickness tear to the anterior cruciate ligament. The clinical management appears to have included a complete medial meniscus excision. (Confirmed radiologically.)”
The AMS assessed 4% WPI in respect of the left lower extremity arising from injury to the left knee. He explained his assessment:
“Left knee. In studying the clinical literature, there have been two surgical procedures to the left knee which would result in assessable impairment. There has been a complete medial meniscus excision under partial lateral meniscus excision. From AMA five Table 17-33 on Page 546, a partial medial meniscectomy provides a whole person impairment of 1% and a total meniscectomy whole person impairment of 3% these are combined, which gives a whole person impairment of 4%.”
Chapter 17.2j of AMA 5 states:
“Table 17-33 provides impairment estimates for certain lower extremity impairments. For most diagnosis-based estimates, the ranges of impairment are broad, and the estimate will depend on the clinical manifestations and their impact on the ability to perform activities of daily living.”
The Table provides for a range of conditions in the knee:
·Patellar subluxation or dislocation with residual instability
·Patellar fracture
·Patellectomy
·Meniscectomy
·Cruciate and/or collateral ligament laxity,
·Plateau fracture,
·Supracondylar or intercondylar fracture,
·Total knee replacement, and
·Proximal tibial osteotomy.
Although the AMS noted three surgical procedures in paragraph 7 of his report, he stated in paragraph 10 b that “there have been two surgical procedures to the left knee which would result in assessable impairment”. The AMS identified these as the complete medial meniscus excision and partial lateral meniscus excision. It is unclear whether the AMS regarded the ACL reconstruction by Dr Johnson as having no capacity to give rise to assessable impairment or whether he overlooked the condition of the anterior cruciate ligament.
The evidence before the AMS included the report of Dr Johnson dated 31 May 1993 in which he noted “chronic anterior cruciate instability of the left knee”. On 29 July 1993 he reported that he had performed an arthroscopy of the left knee which had confirmed cruciate instability. Dr Johnson reported:
“He had a badly torn posterior half medial meniscus and a lateral meniscus and a lateral meniscus. Both were dealt with arthroscopically.
He then underwent a separate secondary procedure to reconstruct his cruciate ligament using a Hertle technique.”
Dr Sharwood in his report dated 13 February 2020 noted:
“In 1991 because of ongoing symptoms in the knee Mr Turner was referred to Dr Johnson in Sydney. Dr Johnson performed two operations, the first being an anterior cruciate ligament reconstruction using a bone patella tendon, bone construct harvested from the anterior aspect of the left knee and later performed a lateral release.”
In an earlier report dated 14 March 1991, Dr David Millons noted that “examination under an anaesthetic on 17/11/88 demonstrated a positive Lachmann test”. Dr Gliksman also reported a positive Lachmann’s test in his report dated 7 June 2011. A positive Lachmann’s test is indicative of anterior cruciate ligament pathology.
Chapter 17 of AMA 5 provides for assessment of the lower extremities by means of anatomic, functional or diagnosis-based tests. The AMS adopted diagnosis-based assessment. For assessment of the knee, Table 17-1 relevantly provides for diagnosis-based assessment of fractures, ligament injuries, meniscectomies and replacement.
In the present case there was clear evidence of pathology in the anterior cruciate ligament. As noted by the respondent in its supplementary submissions, the AMS had recorded that Dr Johnson had performed an anterior cruciate ligament reconstruction with a graft.[6] Dr Sharwood also noted the ACL reconstruction.[7] The Panel is of the opinion that, once diagnostic-based assessment is selected as the appropriate method, it is necessary to consider all the relevant areas referred to in Table 17-33.
[6] MAC, p.3 par1.
[7] Report dated 15 March 2019, p6
The respondent correctly submitted that there is no rateable impairment provided for ACL reconstruction in the Table, but the Panel notes that the Table does provide for assessment of cruciate and/or collateral ligament laxity for which there was sufficient evidence before the AMS to require examination and assessment of the cruciate and collateral ligaments.
The Panel is of the opinion that, in order to assess a worker in accordance with the Guidelines and AMA5 by way of diagnosis-based assessment and applying Table 17-33, it was necessary for the AMS to consider and report upon the state of the anterior cruciate ligament. The absence of any assessment of the anterior cruciate ligament represents a failure to apply the criteria set out in Table 17-33. The failure to apply the appropriate criteria constitutes demonstrable error and the Panel is satisfied that the ground of application of incorrect criteria and demonstrable error is established in respect of assessment of the left lower extremity.
Assessment
The evidence before the AMS concerning the lumbar spine was sparse. The AMS conducted a physical examination and the findings are recorded at paragraph 5 of the MAC. Dr English in his report dated 17 April 2020 noted central lower back discomfort with normal lumbar lordosis, thoracic kyphosis and level shoulders. He noted that Mr Turner was able to flex forward to meet the thigh, extend 30°, left and right bend to mid-thigh and left and right rotate 40°. He commented that Mr Turner had normal motor and sensory function in both lower limbs. Dr English diagnosed “presumed degenerative change lumbar spine”.
Dr Sharwood noted complaints of back pain made worse by bending forward and twisting with morning stiffness. On examination Dr Sharwood noted; “Examination of his back revealed he had 60° of flexion, 20° of extension. He had 45° of lateral flexion and lateral rotation symmetrical to both left and right sides.” Dr Sharwood did not detect any evidence of muscle spasm or wasting. Dr Sharwood made no diagnosis in respect of the complaint of lumbar pain.
In his report dated 11 August 2014, Dr Gliksman noted; “examination of the lumbar region revealed reduced lumbar lordosis. Paralumbar muscular spasm was seen on range of motion testing.” Dr Gliksman reported little change when he again examined Mr Turner in November 2016. Reduced lumbar lordosis and paralumbar muscle guarding was reported in his examination conducted in October 2019.
The AMS assessed Mr Turner as having 5% WPI, having categorised his lumbar spine as falling within DRE Category II. That assessment is consistent with the findings on examination of Dr Stephenson upon his examination and his conclusions based on the evidence. The Panel accepts those findings and Dr Stephenson’s assessment as soundly based on the evidence.
Dr Gliksman assessed lumbar spine impairment at 10% WPI which he combined with 2% WPI reflecting the adverse effects upon activities of daily living. Both the findings of the AMS upon examination and the findings of Dr Stephenson upon re-examination disclosed no evidence of radiculopathy or any other signs or symptoms that would justify assessment within DRE lumbar category III.
The evidence of interference with activities of daily living is sparse. There is no up-to-date statement from Mr Turner. The Panel accepts that Mr Turner is able to assist with house work but has some restrictions on yard/garden activities[8]. There is no evidence of interference with self-care. He is accordingly assessed having 1% WPI in accordance with the diagram at paragraph 4.34 of the Guidelines. Mr Turner is accordingly assessed with respect to the lumbar spine as having 6% WPI after combining the assessment of DRE II at 5% and the further 1% WPI in respect of interference with activities of daily living
[8] See MAC p.4 par 1.
The Panel is satisfied that it is appropriate to assess the left lower extremity (knee) by diagnosis method in accordance with Table 17-1 of AMA 5. The applicable areas are ligament injuries and meniscectomies[9]. The Panel accepts the findings on examination of Dr Stephenson of severe cruciate and collateral ligament laxity warranting an assessment of 37% lower extremity impairment pursuant to Table 17-33.
[9] Par 17.2j AMA 5.
The medical reports in evidence provide evidence of partial medial and lateral meniscectomies. The report of Dr Ven der Rijt of 24 May 1990 notes; “left knee arthroscopy revealed a fragmented bucket handle tear of the medial meniscus which has been excised.” In his report of 29 July 1993 Dr Johnson reports; “he had a badly torn posterior half medial meniscus and a lateral meniscus. Both were dealt with arthroscopically.” On 8 March 1994 Dr Johnson noted; “there was partial tearing of his lateral meniscus which required partial lateral meniscectomy”.
The MRI report of Dr Nicholas Daunt dated 21 June 2011 noted:
“The medial meniscus is very abnormal in appearance and grossly deficient. This must be correlated with any history of previous meniscus resection. At the site of the posterior horn there is only intermediate to high signal material, ?macerated meniscus?? simply post-operative. A discrete tear is not seen. The lateral meniscus is grossly intact.”
On balance of probabilities, it appears that Mr Turner has undergone partial medial and lateral meniscectomy which attracts an assessment of 10% lower extremity impairment. Although the AMS recorded the MRI scan as showing “total medial meniscectomy”, the Panel does not accept that finding because the Panel, applying clinical judgment and recognising that MRI reports in the context of medial meniscus injury are in great measure subjective and vary considerably, the Panel considers that the evidence of the reports referred to above favours a finding of partial medial meniscectomy rather than total.
The assessment of 37% lower extremity impairment in respect of severe ligament laxity and 10% lower extremity impairment in respect of partial medial and lateral meniscectomy are converted to 15% WPI and 2% WPI respectively to give a total of 17% WPI pursuant to Table17-3 of AMA 5.
With respect to both the lumbar spine and the left lower extremity there is no evidence of any injury prior to August 1988 which would warrant a deduction pursuant to section 323 of the 1998 Act. Although there was an earlier football injury, the evidence is that this injury resolved, leaving Mr Turner able to play active sports immediately prior to the subject injury. No part of the impairment is due to that earlier football injury or any other prior injury.
There is no evidence of any pre-existing condition or abnormality at the time of the subject injury which would warrant a deduction pursuant to section 323.
There is no subsequent injury which would break the chain of causation from the subject injury and so warrant a deduction.[10] The Panel accepts that, particularly with respect to the lumbar spine, Mr Turner falls within the second category of the three categories identified in State Government Insurance Commission v Oakley[11], that is, there is medical evidence that the worker was, by reason of the subject injury, in a vulnerable position, leaving him exposed to a greater level of damage resulting from subsequent events.[12]
[10] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (Johnson).
[11] (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003.
[12] see Johnson at [126].
Accordingly, Mr Turner is appropriately assessed as having 6% WPI in respect of injury to the lumbar spine and 17% in respect of the left lower extremity (knee). Applying the Combined Values Chart[13] yields a total assessment of 22% WPI.
[13] AMA 5, p.604.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 November 2020 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
MEDICAL ASSESSMENT CERTIFICATE
Assessed as Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr 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) |
| 1. Lumbar Spine | 11/08/88 | Chapter 4, | Chapter 15.4, | 6% | Nil | 6% |
| 2. Left lower extremity (knee) | 11/08/88 | Chapter 3, p.13 | Chapter 17.2j, | 17% | Nil | 17% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
Mr William Dalley
Member
Dr Brian Stephenson
Medical Assessor
Dr Ross Mellick
Medical Assessor
9 June 2021
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