Wilson v Secretary, Department of Education
[2024] NSWPICMP 862
•16 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wilson v Secretary, Department of Education [2024] NSWPICMP 862 |
| APPELLANT: | Shane Wilson |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 16 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant worker alleged error by Medical Assessor in assessment of whole person impairment (WPI) of left ankle; error conceded by respondent and confirmed by Medical Appeal Panel; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 July 2024 the appellant, Shane Wilson, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 July 2024.
The appellant relies on the following ground 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Wilson sustained a fracture of the left ankle on 28 August 2008 when his left ankle was struck by a snowboard while on an excursion with students to the snowfields.
Mr Wilson did not immediately undergo surgery to the left ankle, but instead he delayed fusion surgery until 3 November 2021. That surgery was performed by Dr Peereboom, orthopaedic surgeon, at Brisbane Private Hospital.
Mr Wilson claims that he sustained right hip and groin pain due to an altered gait as a result of the injury to his left ankle. Mr Wilson underwent a total right hip replacement, which was performed by Dr Agolley, orthopaedic surgeon, on 12 October 2022.
Mr Wilson has made an application to the Commission for an assessment as to whether the degree of permanent impairment resulting from his injury on 28 August 2008 is more than 20%. That application is based upon an assessment of 43% whole person impairment (WPI) made by Dr Cleaver, orthopaedic surgeon, in reports dated 14 May 2023.
Dr Cleaver assesses Mr Wilson as having 17% WPI as a result of the injury to the left ankle, which is based on 15% WPI for an ankle arthrodesis in the optimum position (Table 3.1 of the Guidelines) and an extra 2% WPI for 4 degrees of internal rotation (Table 3.1 (a) of the Guidelines). Dr Cleaver includes a plain radiograph of the left ankle in his report to demonstrate his assessment of WPI of the left ankle.
Dr Cleaver assesses Mr Wilson as having 20% WPI for the consequential condition affecting his right hip based upon Mr Wilson having a fair result from his total hip replacement (Table 17-34 of AMA 5).
Dr Cleaver assesses Mr Wilson as having 1% WPI for scarring. Dr Cleaver also assesses 12% WPI of the right shoulder and 4% WPI of the left shoulder, but those body parts were not included in the referral to the Medical Assessor for the assessment of WPI as a result of the injury sustained by Mr Wilson on 28 August 2008.
A/Prof Miniter, orthopaedic surgeon, has provided several reports at the request of the respondent. In his report dated 30 January 2023, A/Prof Minter assesses 15% WPI for the left ankle, being for an ankle fusion in a good position. He writes: “I will assume that the fusion has been performed in an anatomical position as I do not have x-rays to allow me to determine whether this is or is not the case.”
A/Prof Miniter also assesses 15% WPI for the right hip but makes a 100% deduction because he does not accept that this impairment is in any way associated with the contralateral ankle.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient material to determine the issues which are the subject of the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The Medical Assessor examined Mr Wilson on 1 May 2014 and 14 May 2024. The Medical Assessor found the left ankle to be fused in neutral position, with complete loss of motion. He found scars to either side of the ankle. The Medical Assessor found Mr Wilson to have moderate pain in the right hip and a moderate limp.
The Medical Assessor made an assessment of 6% WPI for the left lower extremity (ankle), which he explains as follows:
“The left ankle is fused. Page 541 suggests 10% LEI for neutral position to my clinical judgment. However, Dr Cleaver reports on radiology of the left ankle that shows 4 degrees of internal rotation which by table 3.1 page 16 NSW guides adds 5% LEI. When they are combined, 15% LEI converts to 6% WPI (17.3 p527).”
The Medical Assessor concludes that Mr Wilson has had a fair result from the total right hip replacement and assesses 20% WPI. The Medical Assessor assesses 1% WPI for scarring to the left ankle.
The assessments of WPI by the Medical Assessor of the right lower extremity (hip) and scarring are not the subject of the appeal.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions
Mr Wilson submits that the MAC contains the following appealable errors:
(a) failure to apply Table 3.1 of the Guidelines in the assessment of the ankle injury, and
(b) failure to apply Table 3.1 (a) of the Guidelines, or failure to correctly refer to Table 3.1 (a) of the Guidelines, in the assessment of the ankle injury.
Mr Wilson submits that the Medical Assessor failed to engage with paragraph 3.18 of the Guidelines, which states:
“Ankylosis is to be regarded as an equivalent to arthrodesis in impairment terms only. For the assessment of impairment, when a joint is ankylosed (AMA5 section 17.2g, pp 538-543), the calculation to be applied is to select the impairment if the joint is ankylosed in optimum position (see table 3.1 below), and then if not ankylosed in the optimum position, by adding (not combining) the values of percentage of WPI using tables 17-15 to 17-30 (pp538-543 AMA5).”
Mr Wilson submits that the figures suggested by Table 3.1 are greater than those suggested in AMA 5 and ankylosis of the ankle in the neutral/optimal position in the Guidelines equates to 15% WPI. Mr Wilson submits that the application of Table 3.1 should result in an assessment of 15% WPI for the left lower extremity.
Mr Wilson submits that the Medical Assessor failed to appropriately refer to Table 3.1 (a) of the Guidelines because he “summed” the lower extremity impairmement (LEI) values in Tables 3.1 and 3.1 (a) and converted them, instead of adding the WPI values from both those tables.
Mr Wilson submits that there should be an assessment of 37% WPI based upon the Medical Assessor’s physical examination.
The respondent’s submissions
The respondent concedes that the Medical Assessor has failed to apply paragraph 3.18 and Table 3.1 of the Guidelines in assessing Mr Wilson’s left ankle impairment.
The respondent submits that it appears that the Medical Assessor has applied Table 3.1 (a), although he may have incorrectly referred to the table as Table 3.1. The respondent notes that the Medical Assessor states that he had limited radiology when undertaking his assessment.
The respondent does not object to a re-examination of Mr Wilson if that is proposed by the Appeal Panel.
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.
The Court of Appeal in Vegan 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 Appeal Panel agrees with the submission made by both Mr Wilson and the respondent that the MAC contains a demonstrable error because the Medical Assessor has failed to apply paragraph 3.18 and Table 3.1 of the Guidelines in assessing Mr Wilson’s left ankle impairment.
The application of paragraph 3.18 and Table 3.1 of the Guidelines allows for an assessment of 15% WPI of the left lower extremity, which is the assessment made by both Dr Cleaver and A/Prof Miniter.
There can be additional impairment of the lower extremity as provided for in Table 3.1(a) of the Guidelines. Dr Cleaver has included a plain radiograph of the left ankle to support his assessment of 4 degrees of internal rotation, which amounts to 5% LEI and a further 2% WPI. That was accepted by the Medical Assessor.
The Appeal Panel has considered this material and considers that this material does support an assessment of an additional impairment of the left ankle as provided for by Table 3.1(a). This adds a further 2% WPI of the left lower extremity, making the total for WPI of the left lower extremity to be 17%.
However, the Appeal Panel does not agree with the final calculation of 37% WPI made by the appellant. 20% WPI (right lower extremity) plus 17% WPI (left lower extremity) plus 1% WPI (scarring) amounts to 35% WPI when applying the Combined Values Chart.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 July 2024 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: | W730/24 |
Applicant: | Shane Wilson |
Respondent: | Secretary, Department of Education |
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 Peter Honeyman 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 NSW workers compensation guidelines | 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) | ||
| Left lower extremity | 28/08/2008 | 3.1, 3.1 (a) p 16 | P 541 | 17 | Nil | 17 | ||
| Right lower extremity (hip) | 28/08/2008 | T 17.33 p 546 T17.34 p 548 | 20 | Nil | 20 | |||
| Scarring TEMSKI | 28/08/2008 | 14.1 p 74 | 1 | Nil | 1 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 35% | |||||||
0
0
0