Chittick v Programmed Group

[2025] NSWPICMP 281

DETERMINATION OF APPEAL PANEL
CITATION:	Chittick v Programmed Group [2025] NSWPICMP 281
APPELLANT:	Jesse Chittick
RESPONDENT:	Programmed Group
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	23 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); non-lead assessor assessed 0% whole person impairment (WPI) of the left lower extremity, 1% WPI for scarring, and lead assessor assessed 13% WPI for sleep disorder; appeal against assessment of 0% WPI for the left lower extremity; Held – Appeal Panel satisfied that non-lead assessor failed to make a diagnosis and failed to consider whether there was an alternative method of assessing impairment; appellant worker re-examined by a member of the Appeal Panel; MAC revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 4 November 2024 Jesse Chittick (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru (Non-Lead Medical Assessor), who issued Medical Assessment Certificate (MAC) on
   10 December 2024.

2. 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.

3. 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.

4. 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.

5. 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

1. The appellant suffered an injury to his left knee during his employment as labourer with the Programmed Group (the respondent) on 5 May 2021. The appellant then developed a consequential condition, namely, a sleep and arousal disorder.

2. The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (the Commission) dated 9 May 2024 in which he claimed an amount of $50,260 in respect of 19% whole person impairment (WPI) of the left lower extremity and the respiratory system as a result of the injury on 5 May 2021.

3. The medical dispute was referred to Dr Christopher Grainge, Respiratory Physician and
   Dr Robert Kuru, Orthopaedic Surgeon, were appointed Lead and Non-Lead Medical Assessor respectively. Dr Grainge was appointed to assess the respiratory system (sleep and arousal disorder) (consequential injury) and Dr Kuru was appointed to assess the left lower extremity and scarring (TEMSKI).

4. The matter was then referred to Medical Assessor Kuru on 16 August 2024.

5. The appellant was examined by the Non-Lead Medical Assessor on 25 October 2024.

6. On 10 December 2024, the Medical Assessment Certificate (MAC) of the Non-Lead Medical Assessor was issued in which Dr Kuru assessed 0% WPI in respect to the left lower extremity and 1% WPI for scarring.

7. On 10 December 2024, the Lead Assessor issued a Consolidated MAC assessing 14% WPI as a result of the injury on 5 May 2021. The Lead Assessor assessed 15% WPI for sleep disorder and deducted one third for a pre-existing condition. The Lead Assessor then added 3% for treatment, which resulted in 13% WPI for the sleep disorder. The 13% WPI for sleep disorder was combined with 1% WPI for scarring to result in a total of 14% WPI as a result of the injury on 5 May 2021.

PRELIMINARY REVIEW

1. 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.

2. The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.

3. As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and that the appellant should undergo a further medical examination because there was insufficient information upon which to make a determination.

Application to Lodge Additional Documents

1. The appellant did not rely on the availability of additional information as a ground of appeal in this matter. However, the appellant filed an Application to Lodge Additional Documents (ALAD) on 19 February 2025. This ALAD contained further submissions as well as a report from Dr Roger Pillemer dated 10 January 2025. The ALAD also contained reports by
   Dr Pillemer (12 September 2023) and Dr Mark Ridhalgh (17 May 2023) which have already been filed by the parties in these proceedings.  

2. 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.

3. The appellant seeks to admit the following evidence:

   (a)    Submissions dated 18 February 2025, and

   (b)    Report by Dr Pillemer dated 10 February 2025.

4. The appellant submits that the additional documents include submissions and a report addressing the inconsistent measurements recorded by the various medical examiners. The appellant submits that the supplementary report was not available within the time frame required for lodgement of the Notice of Appeal. The appellant stated that the further submissions were prepared and served on 19 February 2025 and the report of Dr Pillemer dated 10 January 2025 was received on 20 January 2025 and served on 19 February 2025.  The appellant submits that the additional documents are necessary to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.

5. The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.

6. In Ross the Deputy President stated:

   “A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”

7. It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:

   “…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”

8. The appellant has not, in our view, adequately explained why the supplementary report from Dr Pillemer and the submissions dated 18 February 2025 was not obtained before the examination by the Non-Lead Assessor. Dr Pillemer’s report, in our view, does not have such substantial prima facie probative value as is necessary to be admitted as fresh evidence in this case. Further, the admission of such a report, which, in effect, cavils with the examination findings made by the Non-Lead Medical Assessor, would undermine the need for finality in litigation.

9. On balance, the Appeal Panel is not satisfied that the report of Dr Pillemer dated 10 January 2025 and the submissions dated 18 February 2025 should be received on the appeal.

EVIDENCE

Documentary evidence

1. 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

1. Dr Alan Home of the Appeal Panel conducted an examination of the appellant on
   9 April 2025 and reported to the Appeal Panel.

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.

2. The appellant’s submissions include the following:

   (a)    this appeal is limited to the claim in respect of the left lower extremity;

   (b)    the Non-Lead Medical Assessor on examination observed that the appellant walked with a slight limp, range of movement was normal and both quadriceps circumference and gastrocnemius circumference were equal;

   (c)    the Non-Lead Medical Assessor assessed a 0% WPI in the left lower extremity, but did not explain how he reached that decision. In the MAC he referenced AMA 5 page 536 17.10 which presumably is a reference to Table 17.10 which appears on page 537 and assesses impairment by reference to range of motion;

   (d)    the Non-Lead Medical Assessor did not consider whether there was an alternate way of assessing impairment. By failing to consider an alternate method the Non-Lead Medical Assessor applied incorrect criteria and made a demonstrable error;

   (e)    when making the claim the appellant relied upon the report of Dr Pillemer dated 12 September 2023. Dr Pillemer diagnosed pre-existing osteochondritis dissecans which had been aggravated by the work injury. He said that AMA 5 and the Guidelines do not provide a specific impairment for this condition and the impairment cannot be rated on range of movement or stability. Dr Pillemer assessed the impairment by considering muscle wasting. On that basis he found an 8% WPI;

   (f)    Dr Ridhalgh examined the appellant on behalf of the respondent. He did not record the range of movement. He assessed impairment as 8% WPI which reduced to 7%WPI after a deduction pursuant to s 323. The assessment was made on the basis of wasting;

   (g)    AMA 5 provides for various methods of assessing impairment in the lower extremity. Table 17-2 sets out which assessment methods can be combined and which cannot. Paragraph 3.3 of the Guidelines provides that the most specific method of assessment should be used. This must be read with paragraph 1.9 which provides that the method which yields the highest degree of impairment should be used;

   (h)    it is common ground between Dr Pillemer and Dr Ridhalgh that the impairment could not be assessed by range of movement. The assessor was required to consider this opinion and explain why he disagreed with it if that was the case;

   (i)    the Non-Lead Medical Assessor did not state what method of assessment was used. It is true that he said that he did not find wasting in that he found the circumferences to be equal. He did not consider the fact that the appellant is left-handed. In the circumstances it would be expected that the left leg would be larger and the finding that the circumferences were equal is really a finding that there is some wasting in the left leg;

   (j)    more specifically the Non-Lead Medical Assessor did not consider whether there was an alternate method of assessing impairment. One method which should have been considered and applied is gait derangement applying Table 17-5 of AMA 5;

   (k)    the Non-Lead Medical Assessor reported that the appellant walked with a slight limp. Dr Pillemer found that the appellant walked with an antalgic gait. The appellant wore braces on both knees. Those findings could result in an impairment up to 15% WPI;

   (l)    paragraph 3.10 of the Guidelines provides that gait derangement is only to be used as a method of last resort. The appellant clearly has a significant disability in the left leg. The impairment cannot be rated using range of movement. On the finding of the Non-Lead Medical Assessor there is no rateable impairment due to wasting. The wasting evident by the legs being equal in circumference is not rateable;

   (m)     in the circumstances the Guidelines require a consideration of whether there is a method by which impairment may be assessed. That consideration would have resulted in an assessment by gait derangement;

   (n)    as Dr Pillemer observed the Guidelines do not expressly cover the condition suffered by the appellant. In those circumstances, paragraph 1.23 applies and the assessment should be made by analogy. In this case the appropriate analogy is an assessment using gait derangement, and

   (o)    the medical assessment certificate of Non-Lead Medical Assessor of
   10 December 2024 should be revoked and a new certificate issued that rates the impairment by the gait derangement method.

3. The respondent’s submissions include the following:

   (a)    the appeal is limited to the claim in respect of the left lower extremity where the Non-Lead Medical Assessor assessed a 0% WPI in the left lower extremity. Whilst the appellant alleges that the Non-Lead Medical Assessor did not explain how he reached that decision, this is clear from the Non-Lead Medical Assessor’s reference to AMA 5, page 536 17.1, which referred to impairment by reference to the range of motion;

   (b)    having assessed the applicant’s loss by this accepted method, failure to consider an alternate method resulted in the Non-Lead Medical Assessor applying incorrect criteria and therefore making a demonstrable error is incorrect. The Non-Lead Medical Assessor, having utilised the preferred range of motion method of assessment, was not required to consider any alternate method of assessment;

   (c)    it was a matter for the Non-Lead Medical Assessor to decide what he believed to be the most appropriate method of assessment;

   (d)    whilst the appellant submits that the assessment of Dr Pillemer which was based upon muscle wasting was the most appropriate method of assessment, the Non-Lead Medical Assessor at the time of his examination (which was significantly more recent than that of Dr Pillemer) noted no wasting and therefore that method of assessment would have resulted in 0% WPI in any event, and

   (e) for these reasons, the MAC does not contain a demonstrable error within the meaning of s 327(3)(d) of the 1998 Act; nor is the medical assessment certificate based upon incorrect criteria.

FINDINGS AND REASONS

1. 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.  

2. 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.

Ground 1 – Assessment of left lower extremity

1. The Non-Lead Medical Assessor noted under “History relating to the injury”:

   “On the date of injury, Mr Chittick was at work as a labourer. He was in a sawmill, stacking decking planks. As he was carrying planks to a rack, he impacted his left knee on some protruding shelving. His knee was immediately painful. It went to give way but he stabilised his fall. He continued working, limping for 40 minutes or so. His knee became progressively more painful and swollen. The following morning, he presented to hospital in Nowra and then to his general practitioner. His general practitioner referred him for an MRI of his knee, which demonstrated an osteochondral defect of the left medial femoral condyle. This was also suggestive of meniscal tears.
   He was referred to Dr Thorton-Roff, Orthopaedic Surgeon. On 29 May 2021 a clinical letter details the injury and describes the MRI. Dr Thornton-Roff recommended arthroscopic treatment. The operation report dated 10 June 2021 details the procedure.
   The knee was found to be intact, with the exception of an osteochondral defect, which was unstable. The base of the defect was debrided and secured with two screws. Mr Chittick had protected weight bearing for a number of months and ultimately was mobilised.
   He was reviewed by another Orthopaedic Surgeon, Dr Leong with persisting knee pain. In a clinical letter on 25 October 2021, Dr Leong recommends fu5rhter (sic) investigations and ultimately, repeat arthroscopy. The revision arthroscopy was undertaken on 10 January 2022. The osteochondral defect was found to still be loose and unstable. The fixation was removed and the defect debrided”.

2. Under “Present symptoms”, the Non-Lead Medical Assessor noted: “He has pain in the inner front aspect of his knee with irregular swelling. His knee feels unstable and he has difficulty negotiating stairs”.

3. Under “Findings on Physical Examination” the Non-Lead Medical Assessor noted:

   “On examination he was a well looking young man who walked with a slight limp. Trendelenburg’s test was normal. Heel -toe stance was normal.
   There was a 12cm scar over the medial aspect of the kneecap consistent with arthrotomy. There was some contour deficit and trophic change of the scar.  There were well healed arthroscopic portals.
   Range of motion in the knees was normal and asymptotical.  The knees were sagittally and coronally stable.  Quadriceps circumference was 52cm and equal.  Gastrocnemius circumference was 44cm and equal.  The lower limbs were distally neurologically intact”.

4. Under “Summary of injuries and diagnoses” the Non-Lead Medical Assessor wrote: “x”.

5. Under “Reasons for Assessment” the Non-Lead Medical Assessor wrote: 

   “Whilst Mr Chittick currently does not have assessable impairment in his knee, over the longer course of time it is likely that his knee will degenerate and he will come to further surgical intervention and ultimately, knee replacement. When this occurs, his impairment will be significantly greater.
   Impairment is not assessable according to AMA 5 page 536, 17.10 on the basis of restricted range of motion.
   Scarring / TEMSKI: This is assessed according to SIRA page 74, Table 14.1. On the basis of there being some thickening and trophic change in the scar, 1% whole person impairment is assessed for scarring / TEMSKI”.

1. The Non-Lead Medical Assessor in commenting on the other medical opinions wrote:

   “With respect to the report by Dr Pillemer dated 12 September 2023, I did not find thigh and calf wasting at the time of my assessment and hence have not assessed impairment for it. I agree with Dr Pillemer that a deduction for a pre-existing condition of 25% is appropriate for osteochondritis dissecans being a pre-existing condition.
   With respect to the report by Dr Ridhalgh dated 19 May 2023, he has assessed impairment on the basis of muscle wasting of the quadriceps and gastrocnemius. Again, I have not detected that at examination. I agree with the assessment of 1% for scarring / TEMSKI”.

2. The Appeal Panel reviewed the evidence in the matter.

3. In a report dated 12 September 2023, Dr Roger Pillemer, consultant orthopaedic surgeon, made the following findings on examination:

   “He has a good range of knee movement on both sides with full extension and lacking the last 10° of flexion on the left, and the knees are stable, and there was no fluid in either joint today.
   He has a curved 14cm healed scar over the anterior and medial aspects of his left knee and the scar has spread moderately and is pigmented.

   He complains of discomfort to palpation in the medial femoral condylar area.

   Mr Chittick does have significant wasting of his thighs and calves with 2cm of wasting of his left thigh as measured at 10cm above the kneecaps, and 2cm of wasting of his left calf compared to the opposite side”.

4. Dr Pillemer made the following diagnosis:

   “Mr Chittick suffers from a pre-existing problem with his left knee, namely osteochondritis dissecans (OCD), in which an osteochondral lesion develops in the lateral aspect of the medial femoral condyle.
   Provided this fragment remains in position it may not cause any problems, but if it does loosen and/or becomes detached, it certainly does cause a problem which would seem to have happened in Mr Chittick’s case. I would certainly accept that the injury in May 2021 would have loosened the osteochondral fragment causing some displacement, and the effect of that aggravation is continuing.
   As noted Mr Chittick has had two surgical procedures but does have significant ongoing problems with his left knee”.

5. Dr Pillemer made the following assessment of impairment:

   “Please note that AMA 5 and the WorkCover Guides do not provide a specific impairment for this condition, and his impairment cannot be rated on range of movement or stability, and the only way of assessing impairment at this stage would be on the basis of the muscle wasting.
   Please note that Mr Chittick would be entitled to 11% lower extremity impairment for the thigh     wasting, and a further 11% lower extremity impairment for the calf wasting. This then gives a combined total of 21% lower extremity impairment, which equates with 8% WPI.
   In my opinion in this situation it would be reasonable to make a one-quarter deduction for his pre-existing condition, leaving him with 6% WPI”.

6. Dr Mark Ridhalgh, consultant orthopaedic surgeon, in a report dated19 May 2023, under “Physical Examination” wrote:

   “Mr Chittick arrived on time. He answered questions without embellishment. He was 182 cm tall and weighed 130 kg (he has put on 30 kg over the last two years). He can just stand on his toes and walk on his heels. His Trendelenburg is negative. His left calf was measured at 41 cm, right at 43 cm, left thigh 56 cm and right thigh 58 cm. He has 0° to 120° of knee flexion. Medial collateral, lateral collateral, anterior cruciate, and posterior cruciate ligaments are intact. The patella tracks well. There is notable palpable crepitus in the knee. He is tender along the medial joint line. His McMurray test was weakly positive for the medial meniscus. “

7. Dr Ridhalgh was of the view that the appellant had an injury which has displaced an underlying fragment of osteochondritis dissecans.

8. Dr Ridhalgh assessed 8% WPI of the left lower extremity and deducted 10% due to a pre-existing condition. Dr Ridhalgh stated that the assessable impairment was assessed by table 17-6 page 530 AMA 5. He noted that the appellant had left thigh wasting of 4% whole person impairment and calf wasting of 4% whole person impairment this sums to 8% whole person impairment. Less 1/10 for preexisting condition equals 7%. There is an additional 1% WPI due to scarring. This is 8% whole person impairment.

9. Dr Akshay Kamra, treating orthopaedic surgeon, in a report dated 24 March 2023, noted that the appellant had presented for a second opinion regarding his left knee. Dr Kamra wrote:

   “He had an injury at work just over 2 years ago and from the sounds of things had a large osteochondral fracture of the medial femoral condyle. This was reduced and fixed however did not heal. The hardware had to be removed with further surgery and at this stage a microfracture of the lesion was performed. He has had left knee pain since. His pain is mainly around the medial aspect of his knee. It is constant and worse with any sort of activity. He gets intermittent swelling and constant grinding and clicking. He has put on approximately 40kgs over the last 2 years and is finding it difficult to lose the weight due to his knee pain.

   On examination, Jesse is overweight. He has neutral allignment (sic). There is a mild effusion within his left knee. There is a well healed surgical scar on the anterior aspect of his knee. He has coarse crepitus. His patella tracks centrally. His range of motion is from 0-120 degrees. He is tender around the medial joint line and medial femoral condyle. His knee is otherwise stable.

   Jesse's MRI demonstrates full thickness cartilage loss in the medial femoral condyle with an area of 2x2cms. His long leg alignment films from today demonstrate neutral alignment with his weight bearing axis going through the centre of his knee.
   …  The natural history of Jesse's condition is not favourable and this knee is likely to continue giving him problems”.

10. The appellant submits that the Non-Lead Medical Assessor did not explain how assessed 0% WPI of the left lower extremity, although the reference to Table 17.10 in AMA 5 suggests that he assessed impairment by reference to range of motion. The appellant argued that the Non-Lead Medical Assessor did not consider whether there was an alternate way of assessing impairment, and by failing to consider an alternate method the Non-Lead Medical Assessor applied incorrect criteria and made a demonstrable error.      

11. The Appeal Panel noted that under “Summary of injuries and diagnoses” the Non-Lead Medical Assessor wrote: “x” and did not provide a diagnosis. The Appeal Panel also noted that the Medical Assessor did not refer to any imaging in the MAC.

12. The Guidelines at cl 1.6b provides: “Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing conditions.”

13. The Appeal Panel is satisfied that the Non-Lead Assessor made a demonstrable error in failing to determine a diagnosis at Part 7 of the MAC in relation to the left lower extremity.

14. The Appeal Panel is satisfied that the Non-Lead Assessor only considered two possible forms of assessment, that is, range of motion and wasting. The Non-Lead Medical Assessor did not state that he had considered and excluded all other forms of assessment or considered assessment by analogy.

15. The Appeal Panel is satisfied that the failure to consider if there were alternate methods of assessment was a demonstrable error. 

16. The Appeal Panel, having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination. 

17. As noted above Medical Assessor Alan Home of the Appeal Panel examined the appellant on 9 April 2025. Medical Assessor Home provided the following report:

    “HISTORY

Mr Chittick states that he sustained injury to his left knee during the first week of his work as a labourer at a saw mill in Nowra.  He states that he was stacking timber boards when he struck his left knee on a metal plate.  The plate struck his knee at the medial aspect.  There was immediate pain at the anteromedial aspect off his knee (as indicated).  He says that he continued on despite knee pain over the next 30 minutes until the end of his work shift.

The following morning, his knee was more painful and swollen.  He attended the Emergency Department at Nowra Hospital.  He was given analgesia and dressings.  He cannot recall imaging.

He later attended Dr Saluddin in Shoal Water Heads. 

Dr Saluddin referred the worker for MRI scans of the left knee performed 11 May 2021.  The scans demonstrated an osteochondral defect at the lateral aspect of the medial femoral condyle and a possible contusion of the medial meniscus. 

He was referred to Dr Bott, orthopaedic surgeon.  Open left knee surgery was performed 10 June 2021 at which time two screws were placed to the medial femoral condyle to secure the osteochondral fragment. 

Due to persisting pain he was referred to Dr Leong, orthopaedic surgeon in Figtree.

Subsequently, he underwent further surgery performed at Wollongong Private Hospital on 10 January 2022.  This consisted of removal of screws and micro-fracturing of the osteochondral defect. 

Mr Chittick recalls that despite this, pain has persisted.  He has received two corticosteroid injections into the knee, without durable benefit.

He currently manages his symptoms with Palexia, (Tapentadol), 50 milligrams instant release which he takes up to thrice daily.

There has been discussion about further surgical techniques, including a femoral osteotomy, however, these have all been declined.

There was discussion about rhizotomy treatment which was also declined.

CURRENT SYMPTOMS

Mr Chittick states that he is currently experiencing left knee pain, of average intensity 6 out of 10 on a Visual Analogue Scale.  The pain is exacerbated by prolonged walking.  There is intermittent swelling felt at the anteromedial aspect of the joint. 

He describes a sensation of persisting quadriceps weakness.  There is instability when he is descending stairs. There are no symptoms of locking in the joint.

He is able to walk for up to 10 minutes before resting. 

He prefers to stretch his knee after sitting for 30 minutes. 

He is able to semi-crouch but avoids deep crouching.  He avoids stair climbing but otherwise does so asymmetrically.  His sleep pattern is disturbed. 

He is independent for activities of self-care.  He sits down to dress in pants and socks. 

He limits lifting to moderate weight at waist height, up to 20 kilograms.

SOCIAL HISTORY

He is single without children.  He lives with his sister and brother-in-law.  He undertakes a share of light domestic chores.   He shops for odds and ends.  His sister performs the major grocery shopping.

He has not resumed previous active hobbies of camping and riding dirt bikes.

PAST HISTORY

There is no prior history of left knee pain before the accident.

VOCATIONAL HISTORY

He primarily worked as a truck driver, 3-4 years before commencing his pre-accident employment. Prior to that he worked as a dairy farmer.

He has not undertaken any form of work or training since the accident.

PHYSICAL EXAMINATION

Mr Chittick presented as a 28-year-old man standing 180 cms and weighing 125 kilograms.  He was of heavy build.

Scarring

Examination of the lower extremities reveals a healed curved linear 13 cm vertically oriented pale scar overlying the anteromedial aspect of the left knee.  There is mild scar atrophy.  There is no contour defect.  There are no visible suture marks and no tethering.

Atrophy

Measurement of the circumference of the lower extremities reveals the following:

Right thigh      59 centimetres

Left thigh        57 centimetres

Right calf        43.5 centimetres

Left calf          41 centimetres

Thigh circumference was measured 10 centimetres above the patella.

Calf circumference was measured at the maximal level bilaterally, 7 centimetres below the tibial tubercles on each side, in accordance with the AMA5 method.

Left knee:

There is no joint effusion.  Active joint motion is measured zero (0) degrees extension to 135 degrees in flexion.  Tenderness is elicited to palpation at the medial aspect of the joint.

Left knee ligaments are stable in AP and lateral planes.

There is no abnormal joint crepitus.

RADIOLOGICAL INVESTIGATIONS

Mr Chittick presented the following investigations:

• X-ray left knee dated 23 March 2023:  There is an osteochondral defect in the medial femoral condyle, lateral aspect in keeping with osteochondritis dissecans.  There is no significant knee joint effusion.  No other abnormality.

• Long Leg X-ray:  Both hips are normal. The osteochondral defect in the left knee, medial femoral condyle is noted. Both ankles are normal.

SUMMARY

Diagnosis, Causation and Reasons:

The claimant, Mr Jesse Chittick suffered an aggravation of underlying osteochondritis dissecans with a subsequent attempt to internally fix the osteochondral fragment.  There was subsequent removal of metalwork and micro-fracturing of the osteochondral defect.

There is persisting wasting of the left thigh and calf.

IMPAIRMENT ASSESSMENT

The range of active knee joint motion is within normal limits and cannot be used as a basis for impairment assessment. 

There is no leg length discrepancy. 

There is no evidence of moderate to advanced arthritis changes of the knee and there is a better method of assessment, such that gait derangement cannot be used as a measure of impairment.

In accordance with Section 17.2(d) muscle atrophy and AMA5, Table 17-6, modified in the Workers’ Compensation Guidelines, impairment can be determined for unilateral muscle atrophy as follows:

• There is 2 centimeters wasting of the left thigh.  This attracts a moderate impairment rating of 4% WPI (11%LEI).

• There is moderate wasting of the left calf measured 2.5 centimeters which attracts a 4% WPI rating (11%LEI). 

There is a total 8% WPI rating.

The AMA Guides direct that impairment ratings for atrophy at both the thigh and calf are evaluated separately in the whole person impairment ratings combined.

In the alternative, if the lower extremity impairment ratings are combined, 11% combined with 11% equals 21%, which converts to a whole person impairment rating of 8%.

Considering other methods of assessment, there is no impairment using the Diagnosis of Based Estimates Chart.

There is no evidence of skin loss, peripheral nerve injury or vascular disorder.

Therefore, having considered all of the methods set out in Chapter 17 of the AMA5 and the Workers’ Compensation Guidelines, Chapter 3, an 8% WPI rating arises due to muscle atrophy. 

Deduction for pre-existing condition:

I have considered a deduction for the pre-existing condition.  There is underlying osteochondritis dissecans at the lateral aspect of the left medial femoral condyle.  This condition was aggravated by the workplace accident.  There were no pre-existing symptoms. 

However, the condition is contributing to the overall impairment.

It is difficult to assess the extent of deduction. 

Therefore, I find that a 1/10^th deduction is reasonable considering all the available evidence.

Deducting 10%, there is a residual impairment of 7% WPI.

Scarring

There is a healed scar as described. 

Using the TEMSKI Scale:

• The injured person is conscious of his scar or skin condition
• Some parts of the scar or skin condition contrast with the surrounding skin as a result of pigmentary change
• The injured person is able to easily locate the scar or skin condition
• There is minimal trophic change
• Suture marks are not visible
• The anatomic location of the scar is visible when wearing shorts
• There is no contour defect
• There is no effect on any activities of daily living arising from the scar itself
• There is no treatment required for the scar
• There is no adherence

Using the principle of best fit a 1% WPI impairment arises.”

1. The Appeal Panel adopts the report and findings of Medical Assessor Home.

2. The Appeal Panel assesses 8% WPI of the left lower extremity. A deduction of one tenth is made in respect of the underlying osteochondritis dissecans at the lateral aspect of the left medial femoral condyle, which was aggravated by the workplace accident. While there were no pre-existing symptoms, the Appeal Panel accepts that the pre-existing condition is contributing to the overall impairment. The Appeal Panel considers that, a deduction of one tenth is not at odds with the evidence. This deduction accords with the deduction made by
   Dr Ridhalgh.

3. As noted above, the Appeal Panel assesses 8% WPI of the left lower extremity and makes a deduction of one-tenth for the pre-existing condition. This results in an assessment of 7% WPI for the left lower extremity as a result of the injury on 5 May 2021. An additional 1% WPI is added for scarring (TEMSKI), which is combined with 7% WPI to total 8% WPI. The Lead Assessor assessed 13% WPI for a respiratory condition – sleep disorder. Therefore, the Appeal Panel assesses a final combined total of 20% WPI.

4. For these reasons, the Appeal Panel has determined that the Non-Lead Assessor Medical Assessment Certificate of Medical Assessor Rob Kuru and the Lead Assessor Medical Certificate of Medical Assessor Christopher Grainge issued on 10 December 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:	W3787/24
Applicant:	Jesse Chittick
Respondent:	Programmed Group

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Non-Lead Assessor Medical Assessment Certificate of Medical Assessor Rob Kuru and the Lead Assessor Medical Certificate of Medical Assessor Christopher Grainge 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)
1.Respiratory – sleep	05/05/21	Chapter 5	Chapter 5 Section 5,6	15%	1/3	10 + 3 adjustment for treatment 13%
2.Left lower extremity	05/05/21	Table 17.6 of AMA5 as modified	Ch 17, Table 17.6	8%	1/10	7%
3.Scarring	05/05/21	TEMSKI	Ch 8 Table 8.2	1%`	n/a	1%
Total % WPI (the Combined Table values of all sub-totals)					20%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.