Workmates Australia Pty Ltd v Broos
[2022] NSWPICMP 103
•4 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Workmates Australia Pty Ltd v Broos [2022] NSWPICMP 103 |
| APPELLANT: | Workmates Australia Pty Ltd |
| RESPONDENT: | Rodger Broos |
| APPEAL PANEL: | Member John Wynyard Dr James Bodel Dr Drew Dixon |
| DATE OF DECISION: | 4 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against assessment of 1/10th deduction for injury to the right knee from 20% whole person impairment and 1% for scarring; whether error of fact made by Medical Assessor (MA); whether error should cause a revocation of the Medical Assessment Certificate (MAC); whether MA obliged to refer to medical reports relating to pre-existing condition in any event; alleged that worker’s own expert had assessed a deduction of 40%, and appellant employer’s expert had assessed 50%; Held- MA mistaken when he stated that appellant employer’s expert reported prior to the last surgical procedure; his failure to analyse either of the two reports however did not vitiate the MAC; Chan and Wingfoot applied; the worker’s expert was palpably incorrect in his reasoning, and the appellant employer’s expert based his assumption that the asymptomatic degenerative changes made a ‘significant’ contribution to the development of osteoarthritis on an undated and unidentified investigation which was not otherwise mentioned in the evidence; contemporaneous material established that the meniscectomy first performed probably led to the further development of degenerative changes; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 November 2021 Workmates Australia Pty Ltd, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 3 November 2021.
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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). WPI is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 6 October 2021 this matter was referred to the MA for an assessment of WPI caused by injury to the right lower extremity and scarring (TEMSKI) on 9 June 2016. The face of the document noted a prior award on 13 June 2017 of 20% of the lumbar spine.
Mr Broos was employed as a truck driver/paver operator when on 29 June 2017 he twisted his knee whilst walking along a site embankment.
He underwent a series of surgical procedures consisting of an arthroscopy on 23 October 2017, a hemiarthroplasty on 22 May 2018, a total knee replacement on 22 August 2018, and a revision of the total knee replacement on 1 September 2020.
The MA awarded 20% WPI, from which he deducted 1/10th leaving an entitlement of 18%. He also found 1% in relation to the claim regarding the skin, leaving a combined table value of 19%.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant employer requested that the worker be re-examined by an MA who is a member of the Appeal Panel. However although the Panel found that the MA had erred, the issue for determination concerned the application of s 323 of the 1998 Act, and the relevant evidence was before the Panel.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered 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.
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 employer raised two principal grounds of appeal. The first was that the MA had “failed to engage with evidence relied on by the appellant employer,” due to a factual error, and the second ground related to his application of the provisions of s 323 of the 1998 Act.
The MAC
The MA set out the history of Mr Broos’ injury and subsequent treatment. He examined the worker and reviewed the investigations that were before him. In his summary he said:[1]
“Mr Broos twisted his knee at work. He sustained an injury to his medial meniscus of the right knee which had significant pre-existing osteoarthritis. He has subsequently gone on and had multiple surgical procedures including revision total knee replacement.”
[1] MAC p 3.
In the templated questions seeking the MA’s brief comments regarding other medical opinions at [10c] the MA said:
“Both the reports by Dr Gothelf and Dr Girgis pre-date the last operation hence are not further considered.”
At [11] the MA considered the question of deduction. He was satisfied that Mr Broos suffered from osteoarthritis of the right knee and that the injury represented an aggravation of that pre-existing osteoarthritis. He said (adopting the wording of the template):
“The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.”
SUBMISSIONS
Appellant employer
Error of fact
The appellant employer submitted that by indicating that the reports of the two medico-legal specialists pre-dated the last operation, the MA fell into error. Dr Todd Gothelf, the orthopaedic surgeon retained as the medico-legal specialist for the appellant employer, in fact wrote a report dated 9 June 2021 after the last surgery on 1 September 2020.
The appellant employer is undoubtedly correct that the MA made a mistake in saying that
Dr Gothelf’s report pre-dated the last operation.The appellant employer referred to the well-known authority of Marina Pitsonis v Registrar Workers Compensation Commission[2], submitting that this error resulted in a failure by the MA to consider the reasoning exposed in Dr Gothelf’s report regarding the 1/10th deduction pursuant to s 323(2) of the 1998 Act.
[2] [2008] NSWCA 88 at [45].
Dr Gothelf gave a considered opinion as to the appropriate deduction. He said[3]:
[3] Appeal papers p 66.
“Deductions
• Mr Broos had pre-existing degenerative arthritis of the right knee, as indicated by
Dr Sunner, ‘the MRI shows a fairly complex medial meniscus tear as well as mild
to moderate arthritic changes’.
• The MRI report (date unknown but prior to surgeries) indicated moderate chondral
wear and full thickness chondral loss medial tibiofemoral compartment and mild
chondral wear in the lateral tibiofemoral and patellofemoral compartments. The
meniscal tear indicated was not displaced. These findings are consistent with
degenerative changes and a degenerative meniscus. Although there is no date on the
document, if this MRI was done within a month from the subject injury, these
findings were likely present prior to the incident happening and were not caused by
the injury.
• Mr Broos worked for Workmates Australia for 9 months prior to the injury as a
truck driver and paver operator, which he described as involving daily tasks of
walking and sitting. Thus the nature and conditions of work did not likely contribute
to knee pathology.
Taking into account the relatively minor incident that caused the pain, on balance
of probabilities the injury sustained by the right knee on 26 June 2017 did not
contribute significantly to the acceleration of the underlying knee arthritis.
• There is strong evidence that supports that non-occupational risk factors of age,
obesity, and sporting activities contributes to degenerative meniscal tears. There is
some evidence to support that occupational risk factors of kneeling and squatting
contribute to degenerative meniscal tears, but these activities were not performed by
Mr Broos at the workplace during the course of his employment. 1
Therefore, on balance of probabilities, based upon the above reasons and evidence,
it is likely that non-occupational factors contributed significantly to the development
of knee arthritis and the need for a total knee replacement.
Section 1.28 page 6 of the Guides states that the degree of impairment due to any previous injury, pre-existing condition or abnormality should be deducted from the degree of permanent impairment. Considering the above evidence, I/10th deduction is at odds with the available evidence.
One might consider that the work injury reasonably caused a medial meniscal tear and
symptoms. Therefore a partial meniscectomy was performed for the work related injury.
According to Table 17-33 p546 AMAS, this procedure would attract a I% WPI.
It is also reasonable to consider that the work injury resulted in an aggravation of the
underlying pre-existing condition and partially contributed to the need for a total knee
replacement at this stage in his life, whereas but for work activity he may have required
this procedure much later in life. Therefore, it is reasonable to attribute a portion of the
impairment to the work injury.
Considering the above factors, I estimate an apportionment of 1/3 due to the work injury and 2/3 due to the underlying pre-existing condition. Thus a 2/3 deduction can be madeto the 30% WPI of the right lower extremity. This will yields 20% which is deducted to leave 10% WPI.”
The appellant employer submitted that it followed that the MA had failed to consider that reasoning. It submitted further:[4]
“13. In any event, even if the MA’s explanation as to why he did not engage with the medical reports of Dr Gothelf or Dr Guirgis were correct, the probity of that evidence as it relates to the appropriate deduction to apply pursuant to section 323(2) of the 1998 Act should not have been impugned by the MA in the manner in which it was.”
[4] Appeal paper p 10.
The appellant employer submitted, uncontroversially, that the MA was required to assess any pre-existing condition at the time of the subject injury and the extent to which it contributed to the degree of permanent impairment caused by that subject injury. The appellant employer submitted that such an assessment was “relevant and probative,” even if made before the final surgery. The failure by the MA to engage with the evidence of Dr Guirgis and of
Dr Gothelf (even had the MA been correct as to when it had been made) constituted a demonstrable error.
Section 323 deduction
The appellant employer then submitted, again uncontroversially, that it was not necessary for any pre-existing condition to have been symptomatic prior to the relevant injury. We were referred to Marks v Secretary, Department of Community & Justice[5] in that regard.
[5] [2021] NSWSC 306 [44]-[48].
It was submitted that the 1/10th deduction found by the MA was at odds with the available evidence, including the medical reports from both Dr Gothelf and Dr Guirgis, and indeed the MA’s own assessment.
The appellant employer referred to the report of Dr Guirgis dated 26 May 2020, asserting that he had applied a 40% deduction. Dr Guirgis had found that the injury consisted of the triggering and aggravation of the underlying degenerative changes.
The appellant employer then referred to Dr Gothelf’s assessment that a 30% deduction was appropriate, and that Dr Gothelf’s analysis was detailed and exposed his reasoning process.
We were referred to Dr Gothelf’s reasons, including:
· that the subject injury was a relatively minor incident, and
· that the subject injury did not contribute significantly to the underlying knee arthritis.
Whilst the appellant employer conceded that the MA had described the pre-existing osteoarthritis as being “significant,” it submitted that there was no analysis made as to why the 1/10th deduction was appropriate in view of the material before him.
Ultimately, it was submitted, it could be inferred that the multiple surgeries undergone by
Mr Broos has resulted in significant impairment. However the evidence indicated that the subject injury was relatively innocuous in nature, such that the need for surgery primarily arose out of the pre-existing condition.It was submitted further that the deduction had to be assessed having regard to the extent to which the pre-existing osteoarthritis had caused the need for the subsequent surgical interventions given that those interventions were responsible for a significant degree of the worker’s WPI, including the total knee replacement.
There was an absence of such an analysis by the MA, it was submitted, in his application of the statutory presumption in s 323(2) of the 1998 Act. In the circumstances this constituted both a demonstrable error and the application of incorrect criterial. It was inconsistent with the deductions made in the reports of both Dr Guirgis and Dr Gothelf, and it was also inconsistent with the MA’s own characterisation of the severity of the pre-existing osteoarthritis.
Respondent worker
The worker, Rodger Broos, submitted that it was incorrect to say that the MA had not considered the evidence of Dr Gothelf’s reports. Mr Broos referred to the dates of all the reports from Dr Gothelf and Dr Guirgis and submitted that the MA had made his assessment based on them “and various other documents” that were in the ARD and the Reply.
We were referred to the assessment by the MA and it was submitted that:
“As such the MA has assessed the reports of Dr Gothelf and clearly decided that the deduction made by Dr Gothelf was incorrect in applying an excessive deduction to his calculations.”
Mr Broos then gave an analysis of Dr Gothelf’s opinion of 9 June 2021, noting Dr Gothelf found that there was a 30% WPI attributable to the subject injury.
There was, it was submitted, no evidence supporting the assumptions referred to. There was no dispute that the subject injury had occurred and that it consisted of “a fall badly twisting his right knee”.
It was submitted that the injury was not disputed by the employer or the insurer.
Mr Broos submitted that the MA had reviewed the material before him, assessed Mr Broos, assessed the WPI caused by the subject injury, and then took into account that there was a mild to moderate arthritic condition.
Ground 2
The worker submitted again that the MA had taken into account the reports of medico-legal specialists and the investigation reports and we were referred to passages by the MA regarding the injury and the presence of pre-existing osteoarthritis.
We were then referred to the provisions of s 323(2) of the 1998 Act and it was noted that the provisions of subs (3) were also applicable.
DISCUSSION
Section 323 provides:
“Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note: So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.”
We accept the appellant employer’s submission that the MA has made a factual error in stating that Dr Gothelf’s last report of 9 June 2021 pre-dated the revision arthroplasty which in fact occurred on 1 September 2020.
The issue then is as to whether that factual error constitutes a ground for the revocation of the MAC.
The MA acknowledged that there was osteoarthritis in the right knee. He noted in his summary that the right knee had “significant pre-existing osteoarthritis” and he stated that the reason for his assessment was because of the extent of the deduction applicable was too costly to determine, referring to s 323(2) as to justification for assessing the deductible proportion of 1/10th.
In Western Sydney Local Health District v Chan[6] Adams J adopted the High Court decision of Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, as it applied to the role of an MA and Medical Panels in NSW. Adams J confirmed that the function of the role was to give an opinion on the medical questions referred. Procedural fairness obliged the parties to be given the opportunity to present evidence and submissions, but the role required the formation of an independent opinion by applying the medical experience and expertise of the MA or Appeal Panel. The reasons given for reaching such a determination had to set out the actual path of reasoning employed in reaching that determination.
[6] [2015] NSWSC 1968 at [13].
The failure therefore by an MA to specifically refer to the opinions of the other medical specialists is not fatal to his/her final assessment. The relevant question is as to whether the MA exposed his actual path of reasoning in the forming and detailing of his/her own opinion on the medical question referred to it by applying his/her medical experience and own medical expertise.
It is instructive to consider the reports on which the appellant employer relies.
Dr Guirgis
Dr Guirgis supplied two reports. The first was dated 29 July 2019, and was concerned with an assessment of Mr Broos’ lumbar spine injury which was unconnected with this case. The second report was dated 26 May 2020. Dr Guirgis took a consistent history of the injury and resultant surgical history. He uncontroversially calculated a 20% WPI entitlement.
However, we had some difficulty in comprehending Dr Guirgis’s reasons in finding what he described as an 8% WPI deduction. He said:[7]
“The SIRA Workers Compensation Guide Lines 4th Ed, on Page 17, Point 1.28 'the deductible proportion' should be deducted from the degree of permanent impairment determined by the assessor.
For the injury being assessed, the deduction is the assessed any (sic) constitutional changes in the contralateral uninjured left knee = As such the 'the deductible proportion' here is 20 % Lower Extremity Impairment = 8 % Whole Person Impairment. Net result 12 % Whole Person Impairment.”
[7] Appeal papers p 13.
Point 1.28 of the Guides appears at page 6 and provides:
“In assessing the degree of permanent impairment resulting the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment.”
The relevant guideline concerning the contralateral joint appears at page 15 of the Guides at Chapter (or point) 3.17. This provides:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline, and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report ….”
There are a number of difficulties with Dr Guirgis’ assessment of the deductible proportion. Firstly, as Dr Guirgis clearly appreciated by his use of the correct table,[8] the assessment for knee replacement is evaluated by allocating a number of points for various topics, namely, pain, range of motion, and stability. Table 17-35 has its own deductions for flexion contracture, extension lag and tibio-femoral alignment, for which a number of points are deducted respectively. In Dr Guirgis’ assessment he deducted 7 points accordingly: - 2 for flexion contracture and 5 for extension lag.
[8] Table AMA5 17-35 as corrected in the Guides, Chapter 3, p 21.
Relevantly, he did not make any deduction for tibio-femoral alignment, as the 5-10 degree valgus alignment he identified did not attract any deduction. The relevance is that it is only in respect of the deduction made for the tibio-femoral alignment that the contralateral limb becomes involved. There is an asterisk next to the tibio-femoral alignment heading which reads:
“Refer to unaffected limb to take into account any constitutional variation.”
It follows that where no points were deducted, the unaffected limb is not relevant.
Secondly, the unaffected limb is not a “contralateral joint” as described in Chapter 3.17.
Thirdly, Chapter 1.28 is a precis of s 323, and not an accurate summary of the section. The authorities are concerned with the application of the section, not the guideline.[9]
[9] See e.g. Ryder v Sundance Bakerhouse [2015] NSWSC 526 at [45] per Campbell J.
Fourthly, there was no record of Dr Guirgis’ making any measurement of any contralateral joint (or limb) in his report, so we are at a loss to understand the basis for his assessment of a 20% lower extremity deduction in any event.
Dr Guirgis’s report is accordingly of no weight regarding the assessment of a deduction pursuant to s 323. We note in any event that the MA may have looked at Dr Guirgis’ report, as he said he did not “further” consider his report in view of the subsequent surgery.
Dr Gothelf
Dr Gothelf noted that Mr Broos was asymptomatic when he suffered his knee injury.[10] As indicated above, he justified his assessment of a 30% deduction on “strong evidence of non-occupational risk factors” which involved “some evidence” to support that kneeling and squatting contributed to the onset of degenerative meniscal tears, but then said Mr Broos was not occupied in those activities at work. Dr Gothelf reasoned that there was “therefore” on the “balance of probabilities” a likelihood that non-occupational activities contributed “significantly” to the development of Mr Broos knee arthritis. The basis for these assumptions was contained in an academic publication.[11]
[10] Appeal papers p 61.
[11] JM Melhorn, JB Talmage, et al. AMA Guides to the Evaluation of Disease and Injury Causation:
Second Edition. AMA, Chicago, Illinois, 2014.
Dr Gothelf also based his assumption on investigations. As also indicated, he referred to the contents of a report from Mr Broos’ treating orthopaedic surgeon, Dr Pavitar Sunner to his general practitioner dated 25 July 2017.[12] Dr Sunner had said:
“The MRI shows a fairly complex medical meniscus tear as well as mild to moderate arthritic changes.”
[12] Appeal papers p 100.
Dr Gothelf also referred to the contents of an MRI, the date of which he was unaware, and which he did not otherwise identify, but which he said was prior to the surgeries. This was said to have shown moderate chondral wear and full thickness chondral loss in the medial tibiofemoral compartment and mild chondral wear in the lateral tibiofemoral and patellofemoral compartments. The meniscal tear indicated was not displaced.
Dr Gothelf then formulated his opinion that these findings were present prior to the subject incident “and were not caused by the injury”. This was based on the condition that “if this MRI was done within a month from the subject injury”.
We have been unable to find this investigation. Dr Gothelf’s reliance on this unidentified and undated investigation was accordingly speculative and of little probative weight.
Contemporaneous material
Mr Broos having been asymptomatic, there were no investigations prior to his injury of 9 June 2016. The first MRI of the right knee in the evidence was dated 21 February 2018[13] and an MRI dated 24 April 2018 was identified by Dr Myles Coolican of the North Shore Knee Clinic in his report of 14 January 2019.[14] Indeed Dr Coolican described the MRI of 24 April 2018 in these terms:
“An MRI of the right knee from 24 April 2018 does not contain a standard set of sequences and I presume these films were completed for the purposes of planning a unicompartmental knee replacement. There is not sufficient information available to make a definitive comment other than to say that the articular surfaces throughout the knee appear reasonably well preserved on the images that are available.”
[13] Appeal papers p 111.
[14] Appeal papers p 92.
Moreover, Dr Coolican had access to imaging that pre-dated the operative intervention. In both his reports of 14 January 2019 and 17 April 2019 Dr Coolican said that the radiology suggested a degree of wear and tear that was minor rather than advanced.[15]
[15] Appeal papers p 90.
We accordingly find that the assessment of 1/10th was open to the MA regarding the application of s 323. He was aware of the nature of the injury, and that Mr Broos had not suffered from any previous condition. We note the history taken by Dr Coolican on 14 January 2019 that Mr Broos had not had any problems with his right knee before the subject accident.
Mr Broos had been engaged in labouring type work, working as a machine operator and truck driver since leaving school in year 10, and this history is consistent with the finding by the MA that the extent of the deduction was difficult or costly to determine. There were no investigations available that pre-dated the subject injury, as we noted, and the contemporaneous reports from Dr Coolican suggest that there were mild to moderate arthritic changes at the time of the subject accident.
Further, we note the opinion of Dr Louis Shidiak, hip and knee surgeon dated 29 March 2018, prepared for the respondent’s insurer. Dr Shidiak noted that Mr Broos underwent a partial medial meniscectomy in October 2017 and that because he had lost the shock absorbing capacity in his knee, it had subsequently gone on to develop further degenerative changes in the medial compartment. Dr Shidiak said:[16]
“It is difficult to predict whether or not a patient will develop arthritis in their knee. Loss of meniscal tissue is well documented to lead to further degenerative changes in the knee. Therefore the loss of medial meniscus which was necessary in order to alleviate his symptoms at the time of surgery have led to further deterioration in the knee which is common.”
[16] Appeal papers p 94.
We concur with this opinion, and are satisfied that Mr Broos’ surgical history, which led to his eventual total knee replacement and revision thereof, was probably as a result of the deterioration of his right knee following the partial meniscectomy of October 2017.
Thus, having accepted that the MA did fall into error by stating that Dr Gothelf’s report pre-dated the last surgery, for the above reasons we do not find the error to have been of such a nature that requires the MAC to be revoked.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 November 2021 should be confirmed.
0
7
0