Wright v Hayward Family Farming Group

DETERMINATION OF APPEAL PANEL
CITATION:	Wright v Hayward Family Farming Group [2023] NSWPICMP 400
APPELLANT:	Neville Wright
RESPONDENT:	Hayward Family Farming Group
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	23 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor had erred in failing to provide reasons in respect of his assessment of the left knee, where he merely stated: “there were no assessable WPI features” and also erred in the deduction he made pursuant to section 323 in respect of the right knee; The Panel agreed, and a re-examination was arranged; following re-examination the Panel found no impairment of the left lower extremity error but agreed that the section 323 deduction in respect of the right knee was excessive and inconsistent with the whole of the evidence; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 May 2023 Neville Wright (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 April 2023.
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 the Medical Assessor erred in failing to provide reasons in respect of his assessment of the left knee, where he merely stated: “there were no assessable WPI features”.

EVIDENCE

Documentary evidence

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

Further medical examination

Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 3 July 2023 and reported to the Appeal Panel.

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 Medical Assessor erred in failing to provide proper reasons as to why there was no whole person impairment (WPI) rating for the left leg, and in applying a 50% deduction for a pre-existing condition pursuant to s 323 of the 1998 Act.
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 Medical Assessor for assessment of WPI in respect of the right lower extremity (knee) and the left lower extremity (knee) resulting from an injury on
21 October 2015.
The Medical Assessor obtained the following history:
“Mr Wright related that on 21/10/15, he was shearing. On the day before, a floorboard in the shearing shed had been broken and not repaired… Unfortunately, on this particular occasion while he was shearing, his right foot went down through the hole in the broken floorboard. This resulted in severe pain in his right knee complex.
He was unable to continue shearing. He came under the care of Specialist Orthopaedic Surgeon, Dr Anthony Bradshaw. It was identified that there was tearing of the medial meniscus. This was managed over six months later, in late May 2016 by an arthroscopy of the right knee. It looks as though Mr Wright also developed a deep vein thrombosis. This appears to have been managed only by aspirin, although the subsequent ultrasounds demonstrated that it had cleared.
In August 2016, Mr Wright tried to get back to shearing but was quite unable to do so.
He described that around mid-year 2020, he started experiencing pain in his left knee.”
Present symptoms were described as follows:
“Pain in the right knee with occasional locking and swelling. He has great difficulty with mobilising and particularly going up and down steps and stairs. His sleep is disturbed.
He has ache in his left knee, although this is very much less than the condition of the right knee.”
Findings on physical examination were noted as follows:
“As advised, Mr Wright was towards the lower end of average stature and was extremely overweight…
He was in quite a lot of discomfort with his right knee.
He walked with a right sided limp. The right knee had 3° of varus angulation while weight bearing. While lying on the couch, this ceased.
Due to his size and morphology it was not possible to accurately measure the leg lengths. The circumferences at the calves were equivalent. At the thighs, rather ironically, the right thigh was minimally greater in circumference than the left.
He had full extension of the left knee but had 5° of fixed flexion deformity at the right knee. The left knee flexed through to 120°. On the right side, flexion ceased at 90°.
The knee ligaments were firm. There was some swelling on the right knee but not on the left.
There was crepitus in both knees. There was joint-line tenderness at the medial part of both knees, although this was very much more severe on the right. There were no neurological findings.”
The Medical Assessor noted the radiological material he had as follows:
“21/04/16: 17/08/16
MRI scan right knee. Medial meniscus tears and extensive degenerative change.
23/12/21 Plain x-ray left knee Mild to moderate degenerative changes, mostly on the medial side.”
He then summarised the injuries and diagnoses as follows:
“Mr Wright gives a history of falling through a broken floorboard in late October 2015 and injuring his right knee. This resulted in tears to the medial meniscus. This was later managed by an arthroscopic procedure. He has been unable to return to his occupation as a shearer. He has also developed very severe arthritic change in the right knee and to a very much lesser extent, the left knee.
One of his major “rate limiting factors” is his… excess weight.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the Medical Assessor replied “Yes”. He said:
“Attention is drawn to the extensive degenerative changes, particularly of his right knee. Attention is also drawn to his colossal excess weight. The excess weight would almost certainly have contributed significantly (very significantly) to the quite extensive pathology of his right knee.”
The Medical Assessor assessed 14% WPI in respect of the right knee, from which he deducted 50%, leaving a total of 7% WPI. For the left knee he assessed 0%, adding “there were no assessable whole person impairment features”.
He added:
“Attention is again drawn to Mr Wright’s absolutely excessive weight, which has obviously existed for very many years. This would account for a great deal of dysfunction of his knees in any case. I am therefore persuaded that at least half of Mr Wright’s current impairment would reasonably be attributable to this very excessive weight issue. That would therefore reduce the 14% WPI down to 7%. (Frequently, a deduction of one-tenth is applied. This would be completely at odds with the available clinical information and clinical findings.)”
He then turned to consider the other medical opinions and said:
“Specialist Orthopaedic Surgeon, Dr Tony Smith in his two reports of 10/07/20 and 03/11/20 assesses 8% WPI for the right knee and 3% WPI for the left knee. This is described as being assessed from Table 17-31 on Page 544. There is, however, no precise description of the radiology undertaken to demonstrate this impairment, nor of the actual cartilage interval. Referral to the SIRA Guidelines Page 17, Paragraph 3.23 indicates the specific criteria as to how the radiology should be conducted with the “Rosenberg view”. This is not described in Dr Smith’s report.
Rather similarly, Specialist Orthopaedic Surgeon, Dr Kerryn Fielding in her report of 19/11/21 has a very high whole person impairment in which the radiology is mentioned but again without specific reference to the cartilage interval or the Rosenberg view.
Dr Fielding also includes muscle atrophy, gait derangement and reduced range of movement with the radiological impairment. This gives a very high whole person impairment. With the greatest of possible respect, I am advised by the Guide to Appropriate Combinations, Table 17-02 on Page 526 that these features are not able to be combined for a final whole person impairment.
Although Dr Evan Jones and Dr Anthony Bradshaw in their reports of 03/02/22 and 25/10/16 respectively draw attention to the very excessive weight of Mr Wright, no deduction has been suggested in the whole person impairments because of this.”
The appellant submits as follows:
(a)    the statutory deduction of 10% under s 323(3) is not appropriate when the appellant was symptom free at the time of his compensable injury let alone a deduction of 50% and therefore there should have been no deduction made under s 323;
(b)    the test set out in s323 for determining s323 deductions was further elaborated by Schmidt J in Cole v Wenaline (2010) NSWSC 78… it is clear that it is appropriate to determine first the amount of WPI impairment and then determine what part the pre-existing condition played in the final calculation of the WPI;
(c)    in paragraph 11 of the MAC the Medical Assessor says: ”attention is drawn to Mr. Wright’s weight problem…existed many years… obviously causing a great contribution to his arthritis in the knee”. This is not in accord with the evidence in |
Dr Terrefranca’s notes… which show weight gain after the accident and no symptoms in the knees before the accident. There is no other evidence concerning Mr. Wrights weight and there is no evidence that his knees were painful before the subject injury;
(d)    the Medical Assessor has also disregarded the appellant’s evidence and that of his doctors. Dr Jones talks of injury occurring due to weight gain in the future and Dr Bradshaw only makes the point that the appellant should lose weight so he can be operated on. No doctor points to pain and restriction in the knees existing before the subject injury or any condition being caused by the appellant’s weight;
(e)    the Medical Assessor, by disregarding the appellant’s evidence, has in effect made a credit finding which he is not entitled to do (see Nicol v MacquarieUniversity [2018] NSWSC 530). In effect he is making a finding against the evidence, there is no evidence of an impairment before the subject injury;
(f)    when one considers the level of disability that the appellant was suffering in his knees before the injury which was nil at the time of the subject injury then there should be no deduction under s 323;
(g)    the only finding in regards to the left knee is at paragraph 10(b) where the Medical Assessor states “there were no assessable WPI features”. No reasons are given for the statement in paragraph 10(b) concerning the left leg/knee. And later in paragraph 10(d) where the difference between Drs Fielding’s finding of 3% in the left knee and Dr Smith’s finding of 3% in the same knee are left unexplained, and
(h)    clearly the Appeal Panel cannot discern the Medical Assessor’s reasoning process when he said there is no WPI in the left knee and as such this is a demonstrable error.
The Panel agreed with the appellant’s submission regarding the left knee and the Medical Assessor’s failure to provide reasons in respect of his findings, and in order to rectify this error, the Panel determined that the appellant should be re-examined.
Medical Assessor Pillemer examined Mr Wright on 3 July 2023. He said:
“1. The worker’s medical history, where it differs from previous records.
Mr Wright attended with his wife today, having had to fly in from Tullibigeal. I read
Mr and Ms Wright the history that was taken by Dr T Anderson (Occupational Physician) at the time of his examination on 21 March 2023, and Mr Wright was quite happy with the history as given.
2. Additional history since the original medical certificate was performed.
Mr Wright informs me that he has started getting some discomfort in his right buttock region, particularly when he sits in a car for too long.
Right Knee
Mr Wright has ongoing problems with his right knee with the discomfort felt mainly medially and symptoms going as high as 9½/10. He can be comfortable when he is simply resting.
Symptoms are aggravated by sitting in a car for long periods or keeping his knee in one position or walking or trying to negotiate stairs. He states that on an average of once a week, his knee will “lock” and it is at that stage that his knee becomes very painful and this can last for up to a minute at a time. It unlocks “with a bang”.
He does get some relief by resting and wearing his brace but apparently he has been told by a number of specialists not to wear the brace any more. He feels that tablets help “a bit”, and he uses frozen Epsom salts bandages which do give him some relief.
Mr Wright is aware of intermittent slight swelling in his right knee with occasional clicking and the locking has been mentioned and the knee has felt unstable on occasion.
He negotiates stairs one at a time using a rail and apparently he says he had difficulty getting into the aeroplane this morning with six steps involved. If he does go down on the ground, he has difficulty getting up and he therefore avoids crouching and does not kneel.
Left Knee
He cannot recall any particular injury to the left knee which started to become uncomfortable about two years ago, once again indicating the medial aspect of the knee has been the main site of this discomfort. On direct questioning, he will get discomfort in the knee at least a couple of times a week and it can last for up to 10 minutes at a time. Symptoms are aggravated by doing a lot of walking or stairs or standing for long and once again he gets some relief by resting.
Mr Wright remains restricted with a maximum walking time of 10 to 15 minutes, carried out slowly. He will not drive for more than 40 km to see the local doctor. He lives at home with his family and does a minimal amount of housework and if they go shopping, he will simply sit in the car. His wife says he could not walk around a supermarket. He manages with his self-care.
3. Findings on clinical examination.
Mr Wright is a delightfully straightforward adult male, shorter than average height with a significant increase in his body mass index. He walks with a limp on the right side with his right knee in neutral alignment and his left knee in 5° of valgus (normal).
Mr Wright has a satisfactory range of hip movements bilaterally and his right knee has a range of movement from 5° to 90° and on the left side he has full extension with further flexion to 120°.
The knees were stable and there was no fluid in either joint today and there was minimal crepitus present on both sides. He complains of significant medial joint line discomfort on the right side but minimal on the left.
Results of any additional investigations since the original Medical Assessment Certificate?
Mr Wright has not had any further investigations carried out and I note that an X-ray of his left knee carried out on 23 December 2021, is suggested as showing “mild-to-moderate degenerative changes, mostly on the medial side”, please note that on direct measurement there was 4 mm joint space present.”
Dealing firstly with the right knee, we note that at the time of the operation on 24 May 2016, seven months after the appellant’s injury, there were grade IV changes in the patella with large flaps as well as grade IV changes in the lateral femur with loose chondral flaps.
In addition, as noted, an MRI of his right knee carried out on 21 April 2016, within six months of his injury, showed “medial meniscus tears and extensive degenerative change”.
It is clear then that Mr Wright had fairly extensive degenerative changes in his right knee at the time of his accident. They certainly would not have appeared within six or seven months of his injury.
We do not agree with the appellant’s submission that a deduction should not be made “when the appellant was symptom free at the time of his compensable injury let alone a deduction of 50%...”
We note that 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. See Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254.
We certainly accept the principles established in in Cole v Wenaline Pty Limited [2010] NSWSC 78, where Schmidt J set out the process a Medical Assessor 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…The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined.”
In our view, a deduction was warranted on the whole of the evidence before both the Medical Assessor and Medical Assessor Pillemer, pointing especially to the radiological material referred to above.
Chapter 1.6 of the Guidelines sets out the principles of assessment. The importance of the exercise of clinical judgment by the Medical Assessor in the process of assessment was reported by the Supreme Court in Glenn William Parker vSelect Civil Pty Limited [2018] NSWSC 140:
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 where it stated at [33]: ‘he pre-eminence of the clinical observations cannot be understated. 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…’”

Having carefully considered the report of Medical Assessor Pillemer, in our view, the 14% WPI suggested by the Medical Assessor is appropriate, and is not specifically the subject of appeal.
As regards the deduction, we note the appellant’s submissions as to the lack of symptoms prior to the accident and the evidence in Dr Terrefranca’s notes… “which show weight gain after the accident and no symptoms in the knees before the accident”.
That is correct, although the notes only show two attendances in 2013 until the accident in 2015.
It is equally true that there is no evidence that his knees were painful before the subject injury.
When Dr Bradshaw first saw the appellant on 10 May 2016 he noted: “He has got some very early arthritis, but nothing too dramatic and prior to this his knee was apparently behaving very well”.
However, he added: “He seems a good candidate for knee arthroscopy, but he is morbidly obese…” This suggests that Mr Wright had a significant weight problem at the time of his injury because he was described by Dr Bradshaw as “morbidly” obese some seven months post-injury.
He then said:
“I have tentatively booked him for surgery on 24 May 2016...being meniscal resection and chondroplasty. He may need blood thinning postoperatively if his clot is significant and I think I would like to keep him overnight given his body habitus. He also has travelled quite a distance.” (Our emphasis)
This suggests, as the appellant points out, that:
“Dr Bradshaw only makes the point that the appellant should lose weight so he can be operated on. No doctor points to pain and restriction in the knees existing before the subject injury or any condition being caused by the appellant’s weight.”
In his statement Mr Wright said:
“Prior to my injury, I was happy working as a sheep shearer as I was making money, paying my bills and renovating my house. I led an active lifestyle and participated in a number of hobbies, such as:
·Making small goods: I used to make salami and other small food goods out of the pigs that I hunted.
·Cooking: I would cook food for my family if I came home first but now my partner has to cook every day.
·Fishing: I cannot go down to the riverbank, as I cannot bend my legs. I used to go every second weekend.
·Camping: I would go camping every month with my family and friends.
·Hunting: I would once every weekend as a social activity with friends and my son.
·Football: I would play this every Saturday during winter.”
This evidence clearly suggests that Mr Wright was functioning fairly well, as regards his right knee, prior to his accident, irrespective of his weight.
For these reasons, we consider that the deduction made by the Medical Assessor was excessive, and inconsistent with the whole of the evidence.
Dr Smith in May 2020 noted that the appellant “sustained an aggravation to previously asymptomatic pre-existing right knee osteoarthritis for the first time in the work accident of
21 October 2015”. He also thought that further X-rays should be undertaken, “but in the absence of these investigations, one can use the range of motion method…(for assessment) of impairment”.
In a subsequent report dated 3 November 2020 he said:
“I have been provided with x-rays of both his knees which were undertaken on 20 July 2020… This confirms my opinion that Mr Wright has bilateral knee osteoarthritis… Based on these x-rays, with regard to the right knee he has an 8% whole person impairment. With regard to the left knee, there is a 3% whole person impairment. These impairments are consequent to his bilateral knee arthritis.”
Although Dr Smith concluded that any impairment was due to the osteoarthritis, he made no comment about any impact on this condition by Mr Wright’s weight.
Given that evidence, referred to above, we are of the view, particularly in light of the radiological material, that a 25% deduction is appropriate.
As far as Mr Wright’s left knee is concerned, we accept Medical Assessor Pillemer’s findings such that we agree with the Medical Assessor’s assessment of 0% WPI. We note that
Mr Wright’s symptoms in his left knee had only come on some two years previously, with no history of any injury or precipitating factor, that there was a very satisfactory range of movement present which would not rate any impairment, the knee itself was stable, and the mild crepitations, in our opinion, would not warrant any impairment being related to his mild underlying osteoarthritic change. In addition, the weight bearing X-rays in December 2021 showed a 4 mm joint space which does not rate any impairment. In addition, as mentioned by Medical Assessor Pillemer on examination, his left knee is in 5° of valgus alignment which is normal:
“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…The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined.”
For these reasons, the Appeal Panel has determined that the MAC issued on 11 April 2023 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:	W7936/22
Applicant:	Neville Wright
Respondent:	Hayward Family Farming Group

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 Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Right lower extremity	21/10/15	Chap 3 P 13	P 537 T 17-10	14%	1/4	11%
2. Left lower extremity	21/10/15	Chap 3 P 13	P 537 T 17-10	0%	0%	0%
Total % WPI (the Combined Table values of all sub-totals)					11%

[2023] NSWPICMP 400

23 August 2023