Wells v Charter Contracting Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Wells v Charter Contracting Pty Ltd [2023] NSWPICMP 204
APPELLANT:	John Wells
RESPONDENT:	Charter Contracting Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	12 May 2023
CATCHWORDS:	wORKERS cOMPENSATION -The appellant submitted that the Medical Assessor (MA) erred in his assessment of the lumbar spine and veinous congestion; the Panel agreed and re-examination by Dr Dixon took place; the MA’s assessment of the lumbar spine was confirmed but there were errors in relation to the veinous congestion; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 October 2022 John Wells (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mohammed Assem, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 5 October 2022.
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 ground(s) 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 the worker should undergo a further medical examination because we considered that the MA erred in the manner of his assessment of the lumbar spine and the left lower extremity.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition 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 the following evidence:
(a) MRI scan by Dr Ward dated 29 April 2019, and
(b) correspondence and a further statement by the appellant regarding the circumstances of his assessment by Dr Assem.
The Appeal Panel determines that the correspondence and statement referred to above should not be received on the appeal because the appellant has now been re-examined such that the evidence is no longer relevant.
As regards the MRI scan, the appellant submits: “The MRI scan…was not provided to the Medical Assessor due to administrative error and submissions have been made regarding the report, which is clearly a relevant document, and the use of the report by other medical examiners.”
We are unaware of any “submissions have been made regarding the report.” True it is that the MA did not specifically refer to it in the list of the investigations he had, but certainly other doctors have commented upon it.
Although not strictly complying with the provisions of s 328(3), we are of the view that in the interests of justice and the relevance of the document, it should be admitted since it is clear that Professor Myers who saw the appellant on 23 February 2022 at the request of the respondent had access to it, and we do not consider that any prejudice is caused by its omission.
For these reasons, he Appeal Panel determines that the following evidence should be received on the appeal:
the MRI scan by Dr Ward dated 29 April 2019.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Dr Drew Dixon of the Appeal Panel conducted an examination of the worker on 20 April 2023 and reported to the Appeal Panel on 26 April 2023.

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 that the MA erred in his assessment of the lumbar spine and veinous congestion.
The appellant does not seek to appeal the decision of Dr Assem in relation to the left lower extremity (knee).
In reply, the respondent submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the lumbar spine, the left lower extremity (knee), and venous congestion of the left leg resulting from an injury on 28 October 2010.
The MA obtained the following history:
“Mr Wells was employed by Charter Contracting Pty Ltd as a truck driver from 9 May 2005 until his position was terminated on 21 December 2012.
In August or September 2010., Mr Wells was required to remove a large auger (drill) estimated to weigh approximately 200 kg out of his trailer…
During this process, he felt immediate discomfort in his back radiating into the left leg. He was able to continue working performing lighter duties that involved driving a truck… He did not undergo any investigations.
On 28 October 2010 while walking at a rapid pace to his truck, he felt a painful locking sensation to his left knee. There was immediate swelling and discomfort causing him to ambulate with a limp. He attended Mount Druitt Hospital where he was suspected of having a deep venous thrombosis. He was referred for a Duplex ultrasound scan of his left leg on 28 October 2010 that was reported to be normal.
He was certified unfit to work…
He was referred to Dr Coffey… On 28 January 2011, Dr Coffey proceeded to perform arthroscopic surgery and a partial medial meniscectomy. Post-operatively, there was no significant improvement in his condition. His left leg swelled and he was suspected of having a deep venous thrombosis. A Duplex ultrasound scan on 1 February 2011 confirmed a non-occlusive deep venous thrombosis in the proximal popliteal vein and in the distal end of the posterior tibial vein… While taking anticoagulant treatment, he developed swelling in his right leg. I understand that a Duplex ultrasound scan of his right leg did not identify a deep venous thrombosis.
He was able to return to work on suitable duties for eight hours per day, two days per week. His duties involved sweeping the yard that he managed with regular rest breaks. He continued working until his position was terminated in around December 2011 or 2012.
He was able to return to work on suitable duties for eight hours per day, two days per week. His duties involved sweeping the yard that he managed with regular rest breaks. He continued working until his position was terminated in around December 2011 or 2012. A progress MRI scan demonstrated some residual meniscal pathology in his left knee. On 5 March 2012, Dr Coffey proceeded to perform arthroscopic surgery and a further partial medial meniscectomy, chondroplasty and debridement of a plica. Post-operatively, there was no significant improvement in his condition. He still continued to have lymphoedema reaching to his mid-thigh.”
The MA then documented Mr Wells’ subsequent progress as follows:
“Mr Wells reported that his condition has significantly deteriorated since my previous assessment. His back and left knee symptoms have progressively increased in intensity. His left knee was unstable causing him to collapse on 16 November 2018. As a result, he sustained a fracture to his left foot.
X-rays of both knees on 8 April 2017 showed mild joint space narrowing bilaterally in the medial compartment. The left knee also had mild narrowing in the lateral compartment. A CT scan of the lumbar spine on 24 April 2018 showed moderate L2/3 and L3/4 spinal canal stenosis with moderately severe L4/5 spinal canal stenosis. There was narrowing of the subarticular recess at the L4/5, potentially irritating the traversing L5 nerve root.
On 8 July 2018, Dr Dinh arranged an MRI scan of his left knee after reporting recent acute onset of pain. The MRI scan showed posterior horn and posterior body of the meniscus was truncated and deficient due to previous partial meniscectomy.
Dr Coffey arranged a CT-guided injection into his left hip on 7 November 2019 that he found beneficial. He also underwent an L4/5 nerve root injection that did not provide any benefit. He reported numbness involving his left lower leg and foot that he suspects is secondary to nerve damage or peripheral oedema.
Mr Wells takes 3-4 tablets of Endone each day and a ‘nerve tablet’ that he was unable to name.”
Present symptoms were noted as follows:
“Mr Wells complains of constant low back discomfort that he rates as 8/10 on a visual analogue scale. The pain radiates to the lateral aspect of both legs. He reported total sensory loss laterally. He has difficulty walking up his driveway. He has difficulty sitting for more than 10 minutes or standing for long periods. He has been relying on a walking stick for support over the past five years.
He reported left knee discomfort and stiffness. He rates the discomfort as 8/10 on a visual analogue scale. His knee feels weak and unstable. He wears a knee brace for support. He also wears a lumbar corset.
The swelling in his legs fluctuates in intensity. His ability to stand and walk is limited by his lower back discomfort.
He spends most of his time at home. He is unable to drive or go shopping. He does not do any gardening or yard work.”
The MA added:
“Past History:
Mr Wells informed me that he has previously experienced occasional episodes of back discomfort when performing physically demanding activities. There is also a history of a back injury that was documented in 2001 and a work-related injury resulting in a splenectomy in 1997. There were no other relevant medical or surgical conditions reported.”
Findings on physical examination were reported as follows:
“Mr Wells appeared to be in obvious discomfort. He ambulated with a slow, cautious gait relying on a walking stick for support. He was wearing shoes with a Velcro strap. He was unable to wear socks as they were too difficult to put on. His height was 184cm and he weighed approximately 120kg…
Lumbar Spine
There was flattening of the lumbar lordosis. There were no scars or deformities. There was tenderness reported on palpation but there was no muscle guarding or spasm.
Forward flexion was markedly reduced to his upper thigh. Extension was to a neutral position. Lateral flexion and rotation were markedly reduced to one-quarter of normal range.
He had difficulty climbing on and off the examination couch, requiring assistance to lift his legs on the bed and assistance to alight from the examination couch. Active straight leg raising was 20° on the right and 0° on the left. Neural tension signs were negative.
His knee and ankle jerk reflexes were brisk and symmetrical. Power could not be assessed due to a give-way response. On repeated testing, there was global weakness involving both legs. Sensation was difficult to assess as there appeared to be global sensory loss involving the entire left leg and to a lesser extent the right leg.
He had swelling of both legs with slight pitting oedema. The circumference of his left thigh was 2cm greater than the right when measured 10cm above the superior pole of the patella. The circumference of his left calf was 1cm greater than the right. The circumference of his left ankle was 0.5cm less than the right. I note that there was similar swelling at the time of my previous assessment. There were signs of mild chronic venous congestion involving both legs worse on the left with mild haemosiderin discolouration.
Left Knee
There was tenderness anteriorly and occasional joint crepitation. There was no instability. Knee range of motion was variable. The best range of motion observed was 8°-90°. Although there was a similar restriction to his right knee, he reported that he is now experiencing similar symptoms involving his right knee due to favouring the right side. I therefore did not consider it appropriate to use his right knee as a comparison.”
The MA then set out a summary of all the investigations he had before him before summarising the injuries and diagnoses as follows:
“Mr Wells is a 70-year-old man who sustained a work-related injury to his left knee in August or September 2010. He returned to work on suitable duties at his pre-injury hours. While walking briskly on 28 October 2010, he developed a painful locking sensation in his left knee and also significant swelling of his left leg. He was diagnosed with a tear to the meniscus requiring arthroscopic surgical debridement.
A venous doppler scan on 1 February 2011 showed two short segments of non-occlusive deep venous thrombosis in the proximal popliteal vein and the distal end of one of the posterior tibial veins. There was a superficial fluid collection or haematoma behind the knee. A further duplex ultrasound of the left leg on 17 March 2011 was reported to be normal. There was a Baker’s cyst seen behind the left knee. A recent venous duplex ultrasound of his left leg on 5 March 2021 did not show any evidence of a deep venous thrombosis. The superficial veins were also patent.
He reported that his back symptoms have deteriorated. He has increasing pain and stiffness. Although he reported numbness involving the lateral aspect of both lower extremities, on formal assessment there was global sensory loss and global weakness. There were no focal neurological deficits and neural tension signs were negative.
His left knee appears to have deteriorated, most likely due to progression of the underlying osteoarthritic changes. Radiological imaging on 8 April 2017 showed mild loss of joint space in the medial and lateral compartments of his left knee and the medial compartment of his right knee.”
The MA then set out his assessments and reasons as follows:
“Mr Wells has chronic lower back pain and stiffness with marked limitation in lumbar movement and a marked limitation in his personal and domestic activities of daily living. His condition is condition with a DRE Lumbar Category II or 8% whole person impairment, inclusive of 3% for a marked limitation in his personal and domestic activities of daily living. He did not have any objective signs of radiculopathy. Of this amount, there is a previous history of a back injury and previous back complaints with radiological evidence of pre-existing degenerative pathology that has contributed to his current impairment. As it was difficult or costly to determine, a one-tenth deduction was applied, giving 7% whole person impairment.
With regard to his left knee, he underwent a partial medial meniscectomy on two separate occasions and demonstrated some restriction in knee motion with flexion up to 90° giving 10% lower extremity impairment. In addition, there was a restriction in knee extension, giving 10% lower extremity impairment. The combined lower extremity impairment is 19% LEI which converts to 8% whole person impairment.
I was unable to use his right leg as a comparison as he reported increasing pain in his right knee due to compensatory overuse. Range of motion cannot be combined with diagnostic based estimates. I have therefore accepted that calculating his level of impairment according to his left knee range of motion provides the highest impairment rating that specifically addresses the underlying impairment.
Mr Wells developed a swelling in his left leg following a work -related injury in August/September 2010. He underwent arthroscopic partial medial meniscectomy and was subsequently diagnosed with a deep venous thrombosis. He suffered from chronic venous insufficiency and developed swelling in his left leg. He has now developed a similar swelling in his right leg and now both arms.
He now satisfies a Class II impairment with regards to his lower extremity giving an impairment rating of 10-39% (AMA5, Table 17-38, p 554). He does not have peripheral vascular disease but there is moderate persistent oedema partly secondary to chronic venous insufficiency and partly due to a co-existing constitutional pathology causing generalised oedema.
I have reached the conclusion that he probably satisfies 16% Whole Person Impairment. Of this amount, he has similar oedema in his left leg that is less pronounced and also pitting oedema in both hands. He appears to have an underlying constitutional condition that is contributing to generalised oedema equivalent to 12% impairment.
According to the WorkCover Guides, I am required to deduct the level of impairment for any pre-existing or constitutional condition that is contributing to his current impairment. He would therefore be considered to have 4% Whole Person Impairment as a consequence of the work injury. I have adjusted the Medical Assessment Certificate to reflect the changes in my assessment.
DRE Lumbar Category II = 8% whole person impairment. After a one-tenth deduction = 7% whole person impairment.
Left Knee ROM = 8% whole person impairment.
Venous congestion = 4% whole person impairment.”
The MA then commented upon the other medical opinions and said:
“Dr Patrick, General Vascular and Trauma Surgeon, completed a report on 27 October 2021. In that report, he disagreed with Dr Coffey that there was no evidence of neurological deficits in the lower limbs as a result of proximal nerve root compression. He noted swelling of the left ankle, calf and thigh. He determined that he clearly had lumbar radiculopathy due to sensory loss in the L3 dermatome distribution. At the time of my assessment, there was global sensory loss and no other focal neurological deficit. He therefore did not satisfy the diagnostic criteria for radiculopathy.
Dr Patrick observed a greater restriction in knee motion. At the time of my assessment, his knee movements were inconsistent. I was able to obtain 90° flexion but there was persistent restriction in knee extension.
With regard to his left lower leg, there was no change when compared to my previous assessment in the degree of swelling or limitations.
Dr Simon Coffey, Orthopaedic Surgeon, completed several reports. On 26 November 2021, he determined that there was a Lumbar Category III impairment but did not document any of the neurological sign necessary to satisfy that level of impairment rating. He provided an assessment for a cartilage interval of 2mm to his left knee, giving 8% whole person impairment. As I did not have access to weight bearing x-rays, I have applied a different methodology to determine his level of impairment.
Dr Coffey also awarded 15% lower extremity impairment or 6% whole person impairment for peripheral vascular disease. I could not find any significant change in the degree of swelling to his left lower leg and therefore concluded that there was no change in his impairment rating.”

The lumbar spine

The appellant submits that in relation to the lumbar spine, Dr Assem has used incorrect criteria in that:
(a) he has made an inappropriate deduction pursuant to Section 323 of the 1998 Act, and
(b) he has not applied the Guidelines correctly.
The appellant was previously examined by Dr Assem and on 30 January 2015. Dr Assem published his Amended MAC in which he assessed the appellant as having a 14% WPI made up as follows: lumbar spine 6%, left lower extremity (knee) 4% and veinous congestion 4%, a combined total of 14%.
In his submissions, the appellant states:
“The appellant alleges, in his recent application, that his condition has significantly deteriorated since he was last assessed in 2014/2015 and he has provided medical evidence that he currently suffers a 25% WPI in relation to the same body parts that were previously assessed. That recent assessment is as follows: Lumbar spine 13%, left lower extremity (knee) 8% and left lower extremity (Peripheral vascular disease) 8%, a combined total of 26%.”
It is not clear where these assessments come from. Dr Patrick in his report of 27 October 2021 assessed 23% WPI, and Dr Coffey in his report of 26 November 2021 assessed 25% WPI – we suspect it is a typographical error.
Dealing firstly with the assessment in respect of the lumbar spine, the appellant challenges the deduction made by the MA for these reasons:
(a)    In paragraph 10 of his 7 November 2014 MAC Dr Assem sets out his reasons for assessment. He finds that the appellant’s lumbar condition is consistent with DRE Lumbar Category II of 5% WPI and he allows an additional 2% WPI for a moderate limitation in the appellant’s (ADL’s) giving him 7% WPI and then Dr Assem says:
“Of this amount, there is a previous history of back injury and previous back complaints with radiological evidence of pre-existing degenerative pathology that has contributed to his current impairment. As it was difficult or costly to determine, a one tenth deduction was applied giving 6% WPI.”
(b)    The history of any previous back injury is not set out in Dr Assem’s MAC and there is no evidence of any radiological examination which discloses a pre-existing degenerative pathology that is referred to in his report.
(c)    In his MAC dated 5 October 2022 Dr Assem says that the appellant complains of constant low back discomfort that he rates as 8 out of 10. He notes the appellant complains of pain radiating to the lateral aspect of both legs, difficulty walking or sitting and notes that the appellant has been relying on a walking stick for the past five years.
(d)    Under the heading “Past History” Dr Assem repeats the same words that he used at the base of page 3 in his MAC dated 7 November 2014.
(e)    In his recent MAC, under the heading “Findings on Physical Examination” under the sub-heading “Lumbar Spine” Dr Assem uses the same words in the first two paragraphs of his recent MAC as he did in his 2014 MAC. The appellant says in his recent Supplementary Statement that Dr Assem did not examine his lumbar spine, so the appellant submits that Dr Assem could not say that there was no muscle guarding or spasm affecting his lumbar spine at the time of his recent examination. Dr Assem in his recent examination did note that the appellant’s active straight leg raising was significantly reduced compared to what it was in 2014.
(f)    Neither the CT scan of the lumbar spine of Dr Law dated 24 April 2018 or the
X-ray of the lumbo/sacral spine report of Dr Chadban dated 5 March 2021 provide any evidence that the appellant was suffering any pre-existing injury or condition affecting his lumbar spine prior to the subject accident.
(g)    In his recent MAC Dr Assem makes his evaluation of the appellant’s lumbar spine. He finds that his condition is still consistent with DRE Lumbar Category II and he allows 8% WPI, inclusive of 3% for marked limitation in his ADLs. Dr Assem says that the appellant did not have any objective signs of radiculopathy. Dr Assem then says:
“Of this amount, there is a previous history of a back injury and previous back complaints with radiological evidence of pre-existing degenerative pathology that has contributed to his current impairment. As it was difficult or costly to determine, a one tenth deduction was applied, giving 7% WPI.”
(h)    Dr Coffey assesses the appellant as having an 8% WPI and says, “Noting prior back injury documented in 2001, no deduction is made for prior injury due to full return to function and regular work at the time of the 2010 injury.” Dr Coffey made no deduction pursuant to s 323 of the 1998 Act.
(i)    Dr Coffey, in his report of 26 November 2021 said in view of reviewed imaging and noting a significant disc protrusion at L2/3 with possible L3 nerve impingement, he thought it was reasonable to conclude that Mr Wells does in fact suffer from lumbar radiculopathy and Dr Coffey assesses the appellant pursuant to DRE Lumbar Category III. Dr Coffey refers to an imaging report dated 24 April 2019 of Dr Robert Ward in support of the radiological evidence of L2/3-disc protrusion with left sided nerve root impingement.
(j)    Dr Coffey, having considered Dr Patrick’s report and the further radiological evidence, considered that the appellant did have the necessary signs to allow an assessment pursuant to DRE III and allowed 13% WPI for the appellant’s lumbar spine with no deduction pursuant to s 323.
(k)    Dr Patrick says that when he examined the appellant, he clearly had muscular guarding and satisfied the criteria to be assessed as having an L3 radiculopathy relating to his medial left thigh in the L3 dermatomal distribution.
(l)    There is no evidence of any pre-existing condition or abnormality that affected the appellants lumbar spine. There should have been no s 323 deduction.
Turning next to the issue of the correct DRE category, the appellant submits as follows:
(a)    Experienced medico-legal specialists found radiological evidence and the criteria necessary to assess the appellant as having DRE III … the appellant should have been assessed using DRE III.
(b)    The appellant refers to the brevity of the examination conducted by Dr Assem on 23 September 2022.
(c)    The MRI scan report of Dr Robert Ward dated 24 April 2019 supports a finding of DRE III.

Venous congestion of the left leg

The appellant submits as follows:
(a)    Dr Assem says that the appellant now satisfies a Class II Impairment with regards to his lower extremity giving an impairment rating of 10-39% WPI (AMA 5, Table 17-38, p 554). Dr Assem says that the appellant does not have peripheral vascular disease but there is a moderate persistent oedema partly secondary to chronic venous insufficiency and partly due to a co-existing constitutional pathology causing generalised oedema.
(b)    Dr Assem concluded that the appellant satisfies 16% WPI impairment for the venous congestion affecting his left leg. Dr Assem then says:
“Of this amount he has similar oedema in his left leg (clearly a typographical error which the appellant accepts) that is less pronounced and also pitting oedema in both hands. He appears to have an underlying constitutional condition that is contributing to generalised oedema equivalent to 12% impairment.”
(c)    In his recent assessment, Dr Assem has copied exactly the same assessment that he made in 2015, even to the point of copying the typographical error referring to similar oedema in the left leg rather than the right leg.
(d)    On both occasions that Dr Assem has assessed the appellant, he has assessed him as having a 16% WPI pursuant to the relevant Guidelines. On both occasions, he has then reduced that assessment to 4% WPI, that is by 75%. These reductions are not expressed to be made pursuant to s 323 of the 1998 Act. There is no evidence that the appellant suffered any veinous congestion in his left lower leg prior to his work injury or prior to the surgery conducted by Dr Coffey in 2011.
(e)    The only explanation that Dr Assem gives for the reduction in his assessment is that the current impairment is “partly due to a coexisting constitutional pathology causing generalised oedema”. There is no explanation in Dr Assem’s recent assessment as to why 75% would be an appropriate reduction even if the appellant suffered some underlying constitutional condition that is currently contributing to the condition of his left lower leg.
(f)    In his recent findings on examination Dr Assem says that the appellant had difficulty climbing onto and off the examination couch and required assistance to lift his legs on the bed and assistance to alight from the examination couch. He says that the appellant’s straight leg raising was 20% on the right and zero on the left and he says that the circumference of his left thigh was 2cm greater than the right and the circumference of his left calf was 1cm greater than the right. Dr Assem then states: “I note that there was similar swelling at the time of my previous assessment. There was sign of mild chronic veinous congestion involving both legs, worse on the left, with mild haemosiderin discolouration.”
(g)    In January 2015, Dr Assem said: “there was no veinous eczema or any other sign of chronic veinous congestion. There was no discolouration. His peripheral pulses were normal. Buerger’s test was negative. The circumference of his left leg was 1 cm greater than the right….”
(h)    The findings on examination on 23 September 2022 were significantly worse, on any objective assessment, than the findings on examination in 2015.
(i)    Dr Assem, in his MAC of 2015, assesses the appellant as satisfying Class II impairment with regards to his lower extremity which gives the appellant an impairment rating from 10% to 39% WPI pursuant to AMA 5, Table 17-38, page 554. In 2015, Dr Assem selected 16% WPI from that range with no explanation as to why the appellant should not be higher in that range.
(j)    In his recent report, Dr Assem assesses the appellant at the same WPI, 16%, under exactly the same Guidelines and reduces it by 75%, the same as previously, without explanation. If the appellant’s condition has significantly deteriorated, as it seems from Dr Assem’s recent physical examination, how is the same assessment applicable in 2022 as was applicable in 2015?
(k)    The MA failed to consider whether the constitutional pathology which is causing the appellant generalised oedema is causally related to the appellant’s work injury, and the consequential injuries as a result of the work injury. He failed to assess the post injury constitutional pathology causing the appellant generalised oedema if that condition is causally related to the appellant’s work injury, and it is submitted that it is.
(l)    He failed to provide reasons for the 75% reduction of the appellant’s assessed WPI in relation to the veinous insufficiency in his left lower extremity and failed to specify the basis on which the 75% reduction has been calculated.
(m)     If Dr Assem is deducting an allowance pursuant to s 323 of the 1998 Act, that section would not be applicable, as there is no medical evidence that the appellant suffered any veinous insufficiency in his left lower extremity at any time prior to the work injury and if any deduction was made pursuant to s 323 that would be a material error.
(n)    Dr Assem has assessed the appellant as a Class II impairment pursuant to AMA 5, Table 17-38, page 554, both in 2015 and recently. If Dr Assem found that the appellant’s condition had significantly deteriorated, he should have assessed him pursuant to Class III pursuant to the same table. Class III would provide a range of between 40% and 60% WPI. The Class III criteria in the Guidelines provides:
“Intermittent Claudication on walking as few as 25 yards and no more than 100 yards at an average pace; or Marked oedema that is only partially controlled by elastic supports; or Vascular damage as evidenced by a sign such as healed amputation of 2 or more digits of one extremity, with evidence of persistent vascular disease or superficial alteration.”
(o)    Dr Assem, in his recent report, states that the appellant’s current symptoms include: Difficulty walking up his driveway, Difficulty sitting for more than 10 minutes or standing for long periods, Reliance on a walking stick, he is obliged to spend most of his time at home, he is unable to drive or go shopping, unable to do any gardening or yard work, is unable to wear socks or put on his shoes, and requires assistance with dressing the lower part of his body.
(p)    Dr Assem does not state that any of these current complaints or impairments are not credible.
(q)    Even if Dr Assem was correct that the appellant should be categorised in Class II he gives no explanation as to why he selected 16% WPI from the range available in Class II which is 10% to 39%.
The respondent submits as follows:
(a)    The MA has made clear his reasons for finding that these constitutional conditions pre-dated the work injury (for the purposes of a s 323 deduction) given the identical symptoms in the uninjured right leg and upper limbs.
(b)    In applying a s 323 deduction, it is not necessary that the assessor establish pre-existing symptoms before the deduction is applied. The respondent refers to Cole v Wenaline Pty Limited [2010] NSWSC 78 where it was held that the fact that a pre-existing condition is asymptomatic is irrelevant to the question of whether a deduction for such ought to be applied. The Court determined that for a deduction to be made, a conclusion is required on the evidence that the pre-existing injury, pre-existing condition or abnormality.
(c)    That the path of reasoning in applying this deduction is clear. It is caused or contributed to the impairment. The deduction of one-tenth is only to be displaced if it is at odds with the available evidence.
(d)    The respondent refers to the above-mentioned references to symptoms in the right leg and upper limbs (on which basis, the MA concluded that there was a constitutional component).
(e)    At page 5 of the MAC under heading “Details and Dates of Further Special Investigations” the MA notes that the venous duplex ultrasound of the left leg dated 5 March 2021 confirms no evidence of DVT.
(f)    At page 7 of the MAC under heading “Evaluation of Permanent Impairment” the MA explains that the appellant “he has similar oedema in his left leg (again a typographical error) that is less pronounced and also pitting oedema in both hands.” As suggested by the appellant, it is clear the MA intended to refer to the uninjured right leg. He then goes on to assess a 12% impairment of the uninjured right leg before concluding that the impairment attributable to the underlying constitutional condition is therefore 12% WPI.
(g)    To his assessment of the left leg, he then deducts the 12% WPI on the basis of equivalent impairment in the uninjured right leg. It is submitted also clear that the deduction is for the “pre-existing or constitutional condition that is contributing to his current impairment.”
(h)    Although the MA has not submitted as such, in the alternative, if it were established that the constitutional oedema did not pre-date the work injury (which is denied), the MA would still be entitled to apply an adjustment to his assessment of impairment for such. The reasoning provided by the MA makes clear the method of deducting 12%
(i)    The appellant asserts that a class III impairment would have been warranted given the MA recorded that the appellant’s condition had deteriorated to his prior assessment in 2014 (in which he also assessed a class II impairment). This is not the correct test in assessing impairment under Table 17-38 of the Guides.
(j)    A deterioration can occur without having to automatically upgrade the class of impairment. The MA is required to base the class on his clinical findings, not on the basis that there has been a deterioration over time. This is further supported by the range within the classes, suggesting varying levels of impairment within each class.
(k)    The MA noted that the appellant “does not have peripheral vascular disease but there is moderate persistent oedema partly secondary to chronic venous insufficient and partly due to a co-existing constitutional pathology causing generalised oedema.”
(l)    A class II impairment (as assessed by the MA) is consistent with Table 17- 38 of the Guides given the examination findings of moderate persistent oedema partly secondary to chronic venous insufficiency, reported to fluctuate in intensity. It is submitted that a class III impairment would not have been consistent with his clinical findings at the time of the examination.
(m)     The MA has made clear that the 16% WPI within class II was assessed based on his clinical findings. The MA said:
“He now satisfies a Class II impairment with regards to his lower extremity giving an impairment rating of 10-39% (AMA5, Table 17-38, p 554). He does not have peripheral vascular disease but there is moderate persistent oedema partly secondary to chronic venous insufficiency and partly due to a co-existing constitutional pathology causing generalised oedema. I have reached the conclusion that he probably satisfies 16% Whole Person Impairment.”
(n)    The MA noted: “The swelling in his legs fluctuates in intensity. His ability to stand and walk is limited by his lower back discomfort.”
(o)    The MA recorded:
“He had swelling of both legs with slight pitting oedema. The circumference of his left thigh was 2cm greater than the right when measured 10cm above the superior pole of the patella. The circumference of his left calf was 1cm greater than the right. The circumference of his left ankle was 0.5cm less than the right. I note that there was similar swelling at the time of my previous assessment. There were signs of mild chronic venous congestion involving both legs worse on the left with mild haemosiderin discolouration.”
(p)    The MA has taken a detailed account of the left leg swelling and has made clear the basis of his assessment of 16% WPI as a result.

The re-examination

Dr Drew Dixon of the Appeal Panel conducted an examination of the worker on 20 April 2023 and reported to the Appeal Panel on 26 April 2023.
He said as follows:
“Findings on clinical examination.
The claimant was 6’1” tall and weighed 118kg. He walked with a limp on the left with a knee guard and a walking stick and had a stooped back posture, wearing a lumbosacral binder. He indicated persisting pain and stiffness in his left knee and swelling and varicosities of his left leg.
There was stiffness of his lumbar segment with tenderness at the L4/5 level in the mid line and the adjacent lumbosacral L3/4/5 level in the mid line and adjacent lumbosacral facet joints. Flexion was decreased by one third with pain on back extension which was decreased by one half and lateral flexion was decreased by one third bilaterally. He had difficulty climbing on and off the examination couch. His straight leg raise (sitting) was 60 degrees bilaterally, associated with left thigh sciatica. His sciatic nerve root stretch tests were equivocal.
His reflexes were present and symmetrical. There were no objective sensory changes and power was grade 5 out of 5. His Babinski signs were negative.
He had swelling of his knees more marked on the left with a left knee guard to control swelling of the left knee. The range of motion of the left knee was 5 degrees through to 90 degrees and that of the right knee was 0 degrees through to 110 degrees. There was swelling of the left calf of 1cm and bilateral ankle oedema more marked on the left. There were varicosities of his left leg and a filling of the varicose veins on standing.
There was tenderness of the anteromedial joint line of the left knee. The knee was stable. Power was grade 5 out of 5.
In making these assessments, I have considered the history of his left knee injury with resultant partial meniscectomy with post traumatic stiffness, the history of deep venous thrombosis in the left leg post operatively with residual signs of varicose insufficiency with persistent oedema and residual varicosities with asymptomatic dilatation of veins, but no varicose eczema or ulceration and no pain on calf compression.
In the lumbar spine there has been a known back injury with post traumatic stiffness with dysmetria with disc bulges at L1 to S1 and L2 to S1 facet arthropathy and L3/4 and L4/5 foraminal stenosis which he has substantially aggravated in the work place accident and this aggravation is ongoing, impacting on his ADLs, where he has great difficulty doing household cleaning chores, carrying shopping bags, lifting heavy laundry and is unable to do the yard work and needs help with showering, dressing, putting on shoes and socks.
ROM for the knee gives 10% LEI for flexion and extension. These should be then added to give 20% LEI.
Swelling due to peripheral vascular disease from T17-38 of the Guidelines rates at the lower end of Class 2: – 10% LEI.
Whilst he has had a medial meniscectomy, Diagnosis based estimates from Table 17-33 cannot be combined with loss of range of movement assessments. Only the greater of the 2 can be used which is 20% LEI for range of movement.
From Table 17-2 in AMA 5 impairments from loss of range of movement can be combined with impairments from peripheral vascular disease. These impairment estimates should be combined at the lower extremity level and then converted to WPI.
Thus 10% LEI would be combined with the 20% LEI from range of movement to give 28% LEI. From Table 17-3 this would be converted to 11% WPI.
There were no symptomatic pre-existing degenerative changes in the left knee.
Examination of the lumbar spine revealed dysmetria but no evidence of radiculopathy. His lumbar spine is DRE Category II from Table 15-3, AMA V, with impaction on activities of daily living including personal care, giving 8% whole person impairment less one-tenth for persisting spondylosis, giving 7% whole person impairment.
A combination of 11% WPI for the right lower extremity with 7% WPI for the lumbar spine gives a total from the Combined Values Chart of 17% whole person impairment.

The lumbar spine

The appellant submits that his condition has significantly deteriorated since he was last assessed in 2015 and he has provided medical evidence that he currently suffers a 25% WPI.
Nevertheless, a MA is not bound by the opinions of other specialists. It must be remembered that the task of an MA, set out in clause 1.6 of the Guidelines, is to make “a clinical assessment of the claimant as they present on the day of assessment…”
The thrust of the appellant’s submissions seems to be that the MA ought to have accepted the opinions of Dr Coffey and Dr Patrick which, for reasons explained earlier, is not the task of the MA.
Accepting Mr Wells’ submission that the consultation with Dr Assem was fairly brief, nonetheless, as the appellant accepts, he did conduct a physical examination of Mr Wells.
Dr Assem obtained a clear history of a “previous back injury and previous back complaints…” He obtained the same history in 2015.
Dr Coffey also said: “prior back injury documented in 2001…” but elected not to make a deduction on the basis that Mr Wells had returned to “full function and regular work at the time of the 2010 injury.”
Back on 8 November 2018, Dr Bosanquet reported: “There is no past history of relevance, but I note from his file that he has had back pain in the past.”
The Panel of course accepts the principles established by the authorities referred to by the appellant.
In Cole v Wenaline Pty Limited [2010] NSWSC 78, Schmidt J set out the process an MA is required to adopt in making a deduction for pre-existing conditions. In that matter, it was noted:
“For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment…”
Equally, it is not necessary for a pre-existing condition to have been symptomatic prior to the subject injury in order to attract a deduction pursuant to s 323 of the 1998 Act; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254.
In addition, as the respondent correctly points out: “the appellant has not disputed that there is a past history of relevant injury/condition in the lumbar spine, but rather, that the MA ought not to have provided a deduction for such.”
It is a matter for the MA to assess if any pre-existing injury or abnormality contributed to the impairment.
It is perhaps timely at this point to set out the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’ (our emphasis).
[24] The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense…”
Given the various histories, in our view there was nothing “glaringly improbable” in the deduction made, nor can it be said that “an unsupportable reasoning process could be made out.”
For these reasons, we do not accept that the MA erred with respect to the deduction he made for the lumbar spine.
Turning next to the issue of the appropriate DRE category, once again, the appellant is relying on the opinions of the “experienced medico/legal specialists” in his camp in support of his submissions, without reference to the findings on examination noted by the MA.
Dr Bosanquet said: “I am in agreement with Dr Assem’s assessment of his lumbar spine finding a 5% (DRE 2).”
More recently in his report of 1 March 2022, Dr Myers noted:
“With regard to the vertebral column as a whole: There was no paravertebral muscle guarding or spasm. There was no scoliosis. The lumbar lordosis was mildly flattened. Mr Wells said that he was tender to the right of the lower lumbar spine, but there was no guarding or spasm in that area.”
We accept that Dr Myers’ opinion is somewhat out of kilter with all others, but having said that, there remains no compelling evidence to find DRE III.
The MRI scan dated 24 April 2019 demonstrated “moderate disc desiccation of the lumbar spine. Central to left paracentral annular fissure at L2/3 with a focal disc protrusion to impinge on the subarticular L3 nerve root. Background mild discovertebral arthrosis and facet arthropathy.”
This of itself is not indicative of DRE III.
Clause 4.27 of the Guidelines deals with radiculopathy.
In order to succeed the appellant must show that there existed, at the time of his examination by the MA, at least one of the major criteria. If radiculopathy is present, then the person is assigned one DRE category higher.
The MA found no evidence of radiculopathy. He said:
“Dr Patrick…determined that he clearly had lumbar radiculopathy due to sensory loss in the L3 dermatome distribution. At the time of my assessment, there was global sensory loss (our emphasis) and no other focal neurological deficit. He therefore did not satisfy the diagnostic criteria for radiculopathy… Dr Simon Coffey…determined that there was a Lumbar Category III impairment but did not document any of the neurological sign necessary to satisfy that level of impairment rating.”
We repeat our earlier comments regarding the pre-eminence of clinical observations and findings at the time of the assessment.
An assessment under Table 15-3 of the Guidelines requires evaluation of the clinical condition at the time of the examination together with the overall radiological evidence and medical history.
With respect to the submission that the MA conducted a brief examination and did not require Mr Wells to remove his shirt such that the MA could not observe muscle guarding/spasm, even if muscle guarding/spasm been present, this in itself would not have necessitated a DRE III rating under Table 15-3 of the Guidelines.
For these reasons we do not agree that Mr Wells should be assessed as DRE III.

Venous congestion

The appellant’s submissions are thorough and detailed but somewhat convoluted and in some instances misconstrued.
For example, the appellant submits that the MA has an incorrect history regarding the onset of the deep vein thrombosis because there is no suggestion in any of the medical evidence that the appellant had any pre-existing DVT.
The MA did not suggest that, but rather that Mr Wells had a chronic venous insufficiency and co-existing constitutional pathology causing generalised oedema.
We accept that Dr Assem has adopted the same findings as in 2015, but that in itself is not fatal to his current determination.
The MA also noted symptoms in the right leg and hands, such that there did appear to be an underlying constitutional condition.
We also note that the venous duplex ultrasound of the left leg dated 5 March 2021 confirms no evidence of DVT.
The 12% deduction made by the MA reflects a 75% deduction for a pre-existing condition, which he considered was contributing to his current impairment.
As the respondent correctly points out, even if the constitutional oedema did not pre-date the work injury, the MA would still be entitled to apply an adjustment to his assessment of impairment because of the evidence before him confirming the presence of a constitutional condition.
Lower extremity impairment due to vascular disorders is evaluated using AMA 5 Table 17-38.
The appellant has correctly identified the criteria for a Class III rating, although incorrectly referring to the Guidelines as opposed to AMA5. Table 17-38 states:
“Intermittent Claudication on walking as few as 25 yards and no more than 100 yards at an average pace; or Marked oedema that is only partially controlled by elastic supports; or Vascular damage as evidenced by a sign such as healed amputation of 2 or more digits of one extremity, with evidence of persistent vascular disease or superficial alteration.”
In our view, there is insufficient evidence to conclude that a Class III rating is appropriate for reasons that follow.
We agree with the respondent’s submission that:
“A deterioration can occur without having to automatically upgrade the class of impairment. The MA is required to base the class on his clinical findings, not on the basis that there has been a deterioration over time. This is further supported by the range within the classes, suggesting varying levels of impairment within each class.”
The MA noted on examination that the appellant “does not have peripheral vascular disease but there is moderate persistent oedema partly secondary to chronic venous insufficient and partly due to a co-existing constitutional pathology causing generalised oedema.”
A class II impairment is consistent with Table 17-38 given the MA’s findings on examination and confirmed by Dr Dixon on re-examination who noted: “Swelling due to peripheral vascular disease from T17-38 rates at the lower end of Class 2:”
We also note the MA’s history that: “The swelling in his legs fluctuates in intensity. His ability to stand and walk is limited by his lower back discomfort.”
In our view, a class III impairment would have been inconsistent with the clinical findings at the time of the examination by both the MA and Dr Dixon.
We do however accept that Medical Assessor Assem made a significant error in his use of Table 17-38 of AMA 5.
The left lower extremity has two components that can be combined. Range of movement in the knee and vascular impairment.
The range of movement is 10% lower extremity impairment (LEI) for loss of flexion and 10% LEI for loss of extension. As both are in the same joint they are added to give 20% LEI.
The vascular assessment is done using AMA 5 Table 17-38. Medical Assessor Assem decided on Class 2 (10% - 39%). He decided on 16% but incorrectly called it WPI. Figures in the Table are LEI.
He then apportioned 75% as being to an undiagnosed constitutional condition. There is no evidence on which to make this apportionment, since there is no evidence in the documentation of a pre-existing constitutional vascular condition in the left lower extremity.
Medical Assessor Assem then incorrectly combined the lower extremity range of movement with the lower extremity vascular impairment in WPI. He should have done this in LEI and then converted to WPI.
Medical Assessor Dixon at re-examination also found class 2 from the table and assessed 10% LEI (at the lower end of the class).
Using Medical Assessor Dixon’s re-examination figure of 10% LEI and combining it with 20% LEI results in 28% LEI. This would be converted to 11%WPI.
The 11% WPI for the left lower extremity would be combined with the 7% WPI for the lumbar spine to give 17% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W4771/22
Applicant:	John Wells
Respondent:	Charter Contracting 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 Dr Mohammed Assem 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	28/10/2010	WorkCover Guides, paragraph 4.29, page 30; WorkCover Guides, 3rd ed., Paragraph 1.52, page 10;	AMA5, Table 15-3, page 384	8%	1/10	7%
2. L Lower extremity	28/10/2010	AMA5, Table 17-10, page 537; AMA5, Table 17-38, page 554	11%	N/A	11%
Total % WPI (the Combined Table values of all sub-totals)					17%

[2023] NSWPICMP 204

12 May 2023