Willing v Ivy Contractors Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Willing v Ivy Contractors Pty Ltd [2024] NSWPICMP 583
APPELLANT:	Jonathan William Willing
RESPONDENT:	Ivy Contractors Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	19 August 2024
DATE OF AMENDMENT:	1 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); whether Medical Assessor (MA) adequately explained his reasons for making a deduction of 25% under section 323(1) of the 1998 Act; whether MA erred by making a deduction of 25%; Held – MA erred by making a deduction of 25% under section 323(1) of 1998 Act; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 May 2024 Jonathan William Willing, 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, who issued a Medical Assessment Certificate (MAC) on 10 May 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground 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 (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).

RELEVANT FACTUAL BACKGROUND

On 9 February 2024 the appellant’s solicitors lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD). By that application the appellant sought the Commission determine a claim he had made against his employer, Ivy Contractors Pty Ltd, the respondent, for compensation for permanent impairment from an injury he suffered on 4 February 2020 while working for the respondent.
The appellant’s injury occurred as a consequence of the appellant missing the last step of a ladder he was descending and landing heavily on his right leg. In a statement he signed on 29 May 2023 he said that following the incident he suffered immediate severe pain in his right hip and increased pain and tightness in his lower back. He also described experiencing intermittent low back pain in the preceding 12 years. He further described that subsequent to his injury while having physiotherapy in November 2017 for “my lower back condition”, his physiotherapist noted tightness in his hips and arranged for an X-ray.
The appellant had surgery on 10 September 2020 to his right hip when orthopaedic surgeon Associate Professor Craig Waller undertook an arthroscopic labral debridement and synovectomy. The appellant however continued to suffer symptoms and following further conservative treatment of his right hip, A/Prof Waller ultimately undertook further surgery on the appellant on 13 January 2021 when he performed a right total hip replacement.
In his statement, the appellant described that following the initial surgery to his right hip he placed more weight on his left leg and experienced left hip symptoms that increased over time.
The appellant’s claim against the respondent for compensation for permanent impairment was supported by a report of general and trauma surgeon Dr Endrey-Walder dated 2 May 2023. In that report Dr Endrey-Walder advised he assessed the appellant had 20% whole person impairment (WPI) relating to his right hip. Dr Endrey-Walder advised that one-tenth of that impairment was attributable to pre-existing pathology such that he assessed the appellant had 18% WPI of the right hip relating to his injury. Dr Endrey-Walder also advised that he assessed the appellant had 1% WPI due to scarring from his right hip surgery.
Dr Endrey-Walder advised that he assessed the appellant had 5% WPI relating to his lumbar spine, but considered that half of that was attributable to pre-existing pathology such that he assessed the appellant had 3% WPI relating to his injury, when rounded. Dr Endrey-Walder also advised that he assessed the appellant had 4% WPI relating to his left hip.
Upon the appellant lodging his ARD with the Commission, and the respondent filing a reply to that, a delegate of the President of the Commission issued a referral to the Medical Assessor requiring the Medical Assessor to assess various medical disputes between the parties relating to the appellant’s claim for compensation for permanent impairment.
In the MAC the Medical Assessor issued on 10 May 2024 he certified that he assessed the degree of the appellant’s permanent impairment relating to his lumbar spine is 7% WPI and that half of that related to a pre-existing condition in the appellant’s lumbar spine such that he assessed the degree of the appellant’s permanent impairment from his injury relating to his lumbar spine is 4% WPI. The Medical Assessor also assessed the degree of the appellant’s permanent impairment relating to scarring from the surgery on his right hip is 1% WPI and that all of that related to the injury the appellant suffered.
Neither party has raised issues with respect to those assessments the Medical Assessor made.
The Medical Assessor assessed the appellant had 2% WPI relating to his left hip. The Medical Assessor indicated in the MAC that was due to the appellant having 30 degrees of abduction of his left hip. The respondent has challenged that and, in accordance with a Certificate of Determination that Member McGrowdie issued on 25 June 2024, the Appeal Panel can, with the consent of the parties, consider that issue in the Appeal.
The Medical Assessor also made a deduction of 50% from the overall impairment he assessed the appellant to have relating to his left hip on account of the pre-existing degeneration he considered the appellant had in his left hip. The appellant has also challenged that aspect of the medical assessment.
The Medical Assessor assessed the appellant’s permanent impairment relating to his right hip is 20% WPI, and neither party has raised issue with that. He also assessed that one-quarter of that impairment is due to a pre-existing condition. The appellant has challenged that aspect of the Medical Assessor’s assessment in his appeal against the medical assessment. The Medical Assessor provided the following reasons within part 11a of the MAC for making that deduction:
“With regards to his right hip, although his physiotherapist noted stiffness and recommended an x-ray prior to the incident, the results of this imaging were not available to conclusively demonstrate the condition of the hip at that time. Subsequent imaging performed after the injury revealed pre-existing degenerative changes and a constitutional femoro-acetabular impingement. These changes have most likely contributed to his current impairment causing a labral tear or aggravating pre-existing labral pathology. I have reached the conclusion that a one-quarter deduction was applicable in this matter.”
The Medical Assessor provided brief summaries within the MAC of the reports on the imaging, to which he referred in his explanation for making a deduction under s 323(1) relating to the appellant’s right hip. Those included a CT scan done on 16 March 2020 that revealed a pincer type femoro-acetabular impingement (FAI). The Medical Assessor noted the scan also revealed decreased joint space and subchondral cyst formation consistent with osteoarthritis.
The imaging also included an MRI scan done on 22 April 2020 that was reported to reveal a labral tear. The imaging to which the Medical Assessor referred also included a helical low dose CT scan on the appellant’s right hip that was done on 5 February 2021, which the Medical Assessor noted revealed degenerative changes at the level of the hip joint. The imaging also included an MRI scan of the appellant’s left hip done on 22 March 2022 that was reported to show acetabular protrusion possibly secondary to the inflammatory arthropathy.
In summary then, the Medical Assessor assessed the degree of the appellant’s permanent impairment from his injury was 4% WPI relating to his lumbar spine, 15% WPI relating to his right hip, 1% WPI relating to his left hip and 1% WPI relating to his scarring, which combines to 20% WPI. The issues the parties have raised with respect to those assessments that require consideration by the Appeal Panel are whether the Medical Assessor correctly rated the appellant’s impairment of his left hip and whether the Medical Assessor’s deductions made under s 323(1) of the 1998 Act with respect to the appellant’s hips are correct.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the information before the Appeal Panel is sufficient for the Appeal Panel to deal with the issues raised in the appeal.

EVIDENCE

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not explain how a pre-existing condition in his hips contributed to his permanent impairment and that the deduction the Medical Assessor made under s 323(1) of the 1998 Act of one-quarter of the right hip and one-half of the left hip was arbitrary.
In reply, the respondent submitted that the Medical Assessor noted that early imaging revealed an FAI, which is a structural abnormality, and that the appellant’s fall from the ladder likely exacerbated a pre-existing condition in his right hip and contributed to the development of a labral tear. The respondent referred to medical evidence which it submitted contradicts the appellant’s submission that he had no right or left hip pain prior to his injury, that evidence being an entry in the clinical records of the Springwood Central Medical Clinic appearing at page 296 of the ARD and also an X-ray taken of the appellant’s right hip on 6 November 2017 which revealed a suggestion of coxa profunda that may result in acetabular over coverage and pre-disposition to FAI.
The respondent also referred to Associate Professor Waller advising the appellant’s general practitioner in a letter dated 18 November 2020 that the appellant was developing osteoarthritis of the hip as a result of his pincer type acetabular and coxa profunda which had been aggravated by his injury at work.
The respondent submitted that based on the medical evidence the appellant had a pre-existing condition that “played a role in the need for the total hip replacement”. The respondent submitted that the Medical Assessor expressed the opinion that the appellant’s pre-existing condition of osteoarthritis played a role in his pain and restricted range of motion and that the appellant’s pre-existing structural abnormality contributed to his pain and potentially accelerated his joint degeneration.
The respondent submitted that those matters clearly informed the Medical Assessor’s decision to make an appropriate deduction to reflect the proportion of the appellant’s right hip impairment that was due to the pre-existing conditions and abnormalities.
The respondent submitted that the Medical Assessor took into account the appellant’s symptoms of pain, restricted range of movement and the acceleration of joint degeneration when making a deduction under s 323.
The respondent submitted that the Medical Assessor made a “calculation error” when assessing the degree of the appellant’s permanent impairment relating to his left hip, in that the Medical Assessor found from his examination of the appellant that he had abduction of 30 degrees, which in accordance with table 17-9 of AMA5 does not rate an impairment.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The respondent’s submission relating to the “calculation error” the Medical Assessor made when assessing the appellant’s permanent impairment relating to his left hip, is correct. The Medical Assessor found from his examination of the appellant’s left hip that the appellant had 30 degrees abduction of that joint. That is normal movement of the joint and, as the respondent submitted, does not attract a rating of impairment under Table 17-9 of AMA5. The Medical Assessor consequently was in error in assessing the degree of the appellant’s permanent impairment relating to his left hip from his injury as 2% WPI. The Appeal Panel must consequently correct that error and does so by assessing the degree of the appellant’s permanent impairment relating to his left hip as 0% WPI.
The Appeal Panel also considers that the appellant’s submissions regarding the s 323 issue are, broadly, correct.
Section 323(1) requires a deduction to be made when assessing the degree of a worker’s permanent impairment from an injury for any proportion of that impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality. Section 323(2) requires a Medical Assessor to assume that the deduction to be made under s 323(1) is 10% if it would be difficult or costly to determine what the deductible proportion is, so long as making that assumption is not at odds with the available evidence.
In this case the Medical Assessor identified a pre-existing abnormality in the appellant’s right hip, namely the FAI. The earliest investigation of the appellant’s right hip was done on
7 November 2017 before his injury. This suggested the presence of a coxa profunda and an FAI. The investigations done subsequent to his injury confirmed the presence of this deformity.
That abnormality is an anatomical variation where there is an enlarged head of the hip that gets stuck in the socket and restricts movement. Basically, the head of the hip is not round and is oblique making one axis longer than the other and creating the likelihood of impingement pain.
The appellant said in his statement that he was not suffering symptoms in his right hip in November 2017 when the earliest investigation was done. The appellant said that his physiotherapist identified tightness in his hips when administering therapy to treat his lower back complaints. The Appeal Panel does not read the notes of the appellant’s GP, to which the respondent referred in its submissions, as indicating the appellant was suffering any symptom in his right hip in November 2017.
The evidence does not demonstrate that at the time the appellant suffered his injury he had a labral tear in his hip. It is likely, in the Appeal Panel’s view, that the incident on
4 February 2020 resulted in the labral tear that was identified in the MRI scan of the appellant’s hip that was done on 29 April 2020 and found by A/Prof Waller in the surgery he performed on 10 September 2020.
The osteoarthritis that A/Prof Waller identified during surgery of the appellant’s right hip on 10 September 2020 was likely to have been largely in place at the time the appellant suffered injury.
That pre-existing condition of osteoarthritis and the pre-existing abnormality the appellant had of coxa profunda and FAI contributes a proportion of the appellant’s permanent impairment relating to his right hip from his injury. This is because, but for that condition and abnormality, the appellant would not have needed a right hip replacement, by which the permanent impairment with respect to his right hip has been rated. The labral tear on its own would unlikely have resulted in the hip replacement surgery the appellant had at the time he had it.
The appellant’s fall from the ladder on 4 February 2020 also made his right hip replacement surgery necessary because this event triggered symptoms from his coxa profunda and the FAI as well as triggering symptoms from the existing osteoarthritis in his hip, and as said, likely caused the labral tear in his right hip.
In short, all matters together, that is the appellant’s pre-existing condition and abnormality and his injury, resulted in the appellant needing hip replacement surgery, by which his impairment has been rated, at the time he had that surgery. No one matter was the sole reason for his surgery.
Consequently, the Medical Assessor’s finding that the pre-existing condition and abnormality in the appellant’s right hip contributes to the appellant’s permanent impairment, because it contributed to his need for right hip replacement surgery, is correct.
The real issue in this matter is the Medical Assessor’s assessment that the appellant’s pre-existing condition and abnormality contributed a quarter of the appellant’s permanent impairment from his injury. The Medical Assessor provided no real explanation for that. He simply said that it contributed a one-quarter deduction. In the Appeal Panel’s view, and notwithstanding that the deduction to be made under s 323(1) involves clinical judgment that permits latitude of opinion,[1] some better explanation must be provided than that by a Medical Assessor to expose why his or her clinical judgment has led him or her to the percentage deduction that has been made.
[1] Vannini v World Wide Demolitions Pty Ltd [2018] NSWCA 324 at [91]-[92].
It was an error of the Medical Assessor not to provide a better explanation, such that the MAC contains a demonstrable error that the Appeal Panel must correct.
The Appeal Panel considers that in this case it is difficult or costly to determine the extent to which the appellant’s pre-existing abnormality and condition contributes to his impairment.
Potentially without the appellant suffering injury he may have proceeded to a right hip replacement, but as to when that would have occurred cannot be determined from the evidence. The coxa profunda, the FAI and the existing osteoarthritis he had in his right hip at the time of injury nevertheless, and as already said, contribute to his permanent impairment because the appellant’s hip replacement ultimately became necessary because of the symptoms triggered from this abnormality and condition by the incident on 4 February 2020. The appellant had not been impeded prior to his suffering an injury from his pre-existing abnormality and condition. Thus, whilst these matters contributed to his permanent impairment it is just simply not possible to conclude to what extent that contribution is. Hence, in accordance with s 323(2), it must be assumed as one tenth because that is not at odds with the evidence. That evidence being that whilst the appellant did have a pre-existing abnormality and pre-existing condition in his hip at the time of injury, he was unimpaired by those conditions prior to his injury and it cannot be known from the evidence when, without injury, he ultimately would have needed hip replacement surgery.

For these reasons, the Appeal Panel has determined that the MAC issued on 10 May 2024 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

Injuries received after 1 January 2002

Matter number:	W1085/24
Applicant:	Jonathan William Willing
Respondent:	Ivy Contractors 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 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)
Lumbar spine	4/02/2020	Chapter 4	Table 15-3	7%	½	4%
Right hip	4/02/2020	Chapter 3	Table 17-33	20%	1/10	18%
Left hip	4/02/2020	Chapter 3	Table 17-9	0%	-	0%
Scarring	4/02/2020	Table 14.1	-	1%	-	1%
Total % WPI (the Combined Table values of all sub-totals)					22%

[2024] NSWPICMP 583

19 August 2024