Aldi Stores (A Limited Partnership) v Fortune
[2024] NSWPICMP 804
•27 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Aldi Stores (A Limited Partnership) v Fortune [2024] NSWPICMP 804 |
| APPELLANT: | Aldi Stores (A Limited Partnership) |
| RESPONDENT: | Kelly Fortune |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | J Brian Stephenson |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 27 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor (MA) erred in his allowance of 2% whole person impairment for effect on activities of daily living (ADL) in relation to his assessment of the lumbar spine; however he has not considered whether the impact on ADL’s arises from the impairment of the back or the right foot/leg injury, and failed to make any deduction for pre-existing factors under section 323 in relation to the lumbar spine; a preliminary issue arose regarding a CT Scan that had not been seen by all parties; a Direction was issued and the matter was resolved; re-examination took place; Held – no error by the MA as claimed; Medical Assessment Certificate Confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 June 2024 Aldi Stores (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 June 2024.
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, 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
The appellant commenced its submissions by stating as follows:
(a) In the last paragraph of page 1 of the MAC Dr Crocker has noted that the worker brought a copy of a recent MRI examination of the lumbar spine on her phone. This is also commented on at paragraph numbered 6 by Dr Crocker. The date of this report is not identified, and the report did not form part of the proceedings either attached to the Application to Resolve a Dispute (ARD) or to the Reply. Dr Kuru, the medical expert relied upon by the appellant has not seen this report, and it is not attached to the ARD, Reply or included in the referral to the Medical Assessor as a late document.
(b) Dr Crocker did not call for the report as allowed by s 324 (1)(b) and the report was not sought to admitted late by the worker’s representatives. The appellant is wholly unaware of the existence of this report and has yet to read the full report.
(c) By relying on evidence that has not been tendered in the proceedings nor provided to the appellant, the Medical Assessor has engaged in a demonstrable error that leads to procedural unfairness to the appellant. As indicated above, the appellant has not had the opportunity of reviewing the report nor providing a copy to its medical expert for comment. Neither Dr Gehr nor Dr Kuru assessed any whole person impairment (WPI) related to the worker’s consequential lumbar spine injury yet Dr Crocker has based on a report not provided to the appellant.
(d) Accordingly given the MAC is based on evidence that has not been properly put before the Personal Injury Commission (Commission), it contains a demonstrable error and should be revoked. This represents a clear breach of procedural fairness noting the assessment is based on evidence not provided to the appellant.
As a consequence, the Appeal Panel issued a Direction that the worker should provide to the appellant and the Commission, within 14 days, a copy of the CT scan dated 2 April 2024 of the lumbar spine (wrongly described by the Medical Assessor as an MRI scan). Both parties should submit the CT scan to their respective independent medical examiners (IME’s) for comment as soon as possible. When that has been done, the respective reports should be filed with the Commission. This matter should then be listed for further review by the Appeal Panel when those reports have been filed.
Both parties subsequently filed further medical reports from their respective IME’s which the Appeal Panel has now received and noted.
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 of the issues raised by the appellant regarding the evidence to which we have referred above.
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
Dr Christopher Oates of the Appeal Panel conducted an examination of the worker on 7 November 2024 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 his allowance of 2% WPI for effect on activities of daily living (ADL’s) in relation to his assessment of the lumbar spine however he has not considered whether the impact on ADL’s arises from the impairment of the back or the right foot/leg injury, and failed to make any deduction for pre-existing factors under s 323 in relation to the lumbar spine.
In reply, Kelly Fortune (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 an injury to the right lower extremity, the lumbar spine, scarring TEMSKI and Complex Regional Pain Syndrome resulting from an injury on 24 October 2022.
The Medical Assessor obtained the following history:
“Ms Fortune stated that on 24.10.22 she was undertaking work duties at a warehouse adjoining the Aldi store in Marsden Park. She was operating a pallet jack that was supporting multiple stacked pallets that contained bottled water. While walking backwards, her body abutted against a pile of pallets. The pallet jack continued to move towards her and this ran over her right foot. Ms Fortune was wearing steel-capped work boots which were clearly damaged upon impact. She did not fall to the ground. Strong pain was evident to the region of the right foot.
Ms Fortune reported the incident at the workplace. She was then driven to the Emergency Department of Blacktown Hospital where investigations were attended. She was administered the stronger oral analgesic agent, Endone.
Nil fractures were reportedly initially identified pertaining to the region.
Ms Fortune subsequently attended Dr Denis Mulkeen, medical practitioner nominated by the employer, located at Horsley Park. Further investigations were arranged. It became apparent that Ms Fortune had sustained multiple bony trauma affecting the right foot.
She was subsequently referred to Dr Brian Martin, Consultant Orthopaedic Surgeon of Rouse Hill.
Ms Fortune subsequently wore a CAM boot when endeavouring to ambulate and utilised a crutch with this extending over a period of approximately 6-8 weeks. Physiotherapy was also instituted. She was requiring oral Panadeine forte.
There was a subsequent return to work plan to perform ‘light duties’ with reduced hours.
Ms Fortune subsequently developed pain to the right low back region which she considered was contributed to by her altered gait. Pain reportedly extended on an intermittent basis to the right lower extremity posteriorly. This was of a dull aching quality but also ‘shooting’ at times.
Further physiotherapy was attended.
Ms Fortune was subsequently referred to Dr Gretel Davidson, Pain Consultant of Norwest. Treatment included use of multiple oral agents, a topical cream and utilisation of a TENS machine.”
The Medical Assessor then set out details of Ms Fortune’s present treatment before noting present symptoms as follows:
“Ms Fortune continues to experience variable low back pain similar to that outlined above.
She reports a burning sensation on a constant basis affecting the right foot. She also describes an intermittent ‘throbbing pain’ of the toes of the foot.
She states that the right foot can appear ‘blotchy’ at times. She considers that there is a temperature difference between each foot. She reports that her right foot can appear ‘sweaty’ at times.
She indicates that there is reduction with range of motion pertaining to the right foot and ankle.
She does not report apparent changes with respect to hair and the nails affecting the right lower extremity.
She is conscious of a V-shaped scar located to the dorsal aspect of the right foot.
She has a subjective feeling of weakness affecting the right lower extremity which she thinks is probably more pain related.
She reports that she has felt anxious and depressed.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition” the MA said: “Ms Fortune stated that she sustained an injury to the region of the cervical spine in 2011. Complaints reportedly settled in the short term with physiotherapy.”
The MA then set out details of Ms Fortune’s general health and work history before turning to consider the impact of her injury on her social activities and ADL’s and said:
“Ms Fortune is married. There is one son of 4 years.
She is a non-smoker but takes occasional alcohol.
Concerning sports, hobbies and interests, she reported that she has enjoyed walking her dog which she has undertaken to a lesser degree since the time of the incident.
With respect to activities of daily living, Ms Fortune reports sleep disruption as a consequence of psychological factors and discomfort arising affecting the right lower extremity.
She can reportedly sit more comfortably for periods of up to one hour. She is limited with more prolonged standing.
She stated that she tends to have a limping gait.
Ms Fortune endeavours to avoid stair use. I have noted that she lives in a single storey dwelling.
Her husband now tends to undertake more household chores. There has also been assistance from an external provider in relation to cleaning. She stated that the costs are covered by the insurer.
She limits household chores to tasks such as wiping down kitchen benchtops. She avoids mopping, hanging out the clothes and vacuuming.
Ms Fortune has access to an automatic motor vehicle. She limits driving to shorter journeys.
She is independent in relation to aspects of personal care.”
Findings on examination were reported as follows:
“Ms Fortune was a cooperative woman in nil apparent physical distress while at rest…
General inspection of the trunk demonstrated a normal thoracolumbar curve.
Active truncal range of motion was approximately as follows: Left axial rotation half that of normal; right axial rotation two-thirds that of normal; left coronal rotation two-thirds that of normal; right coronal rotation two-thirds that of normal; posterior sagittal rotation one-third that of normal; anterior sagittal rotation (forward flexion) was such that Ms Fortune could just reach short of her knees with her fingertips while standing.
Tenderness was reported with palpation overlying the lumbar spine, more so the lower posterior lumbar spinous processes. There was also reported tenderness to adjacent areas. Nil muscular spasm or guarding was evident to this region.
It was evident that Ms Fortune had a mildly antalgic gait when observed walking within the confines of my office.
Active straight leg raising was to approximately 50° right side and 65° left side. Low back discomfort was reported with testing to the right side.
Girth measurements within the lower limbs were approximately as follows: 52.5cm (right thigh); 51cm (left thigh); 42cm (right calf); 41.5cm (left calf).
Active range of motion was assessed at both hips with use of a goniometer…
Tenderness was reported with palpation overlying the lateral aspect of the right hip.
Active range of motion was assessed in a similar manner at both knees…
Similar assessment was undertaken with respect to both ankles/hindfeet…
Assessment was also undertaken with respect to the great toes of each foot…
There was unrestricted active range of motion with respect to the small joints of the lesser toes.
Hyperalgesia/allodynia was apparent with testing light touch and point pressure sensation to the right foot and extending to the anterolateral aspect of the right lower leg (sensory changes).
There was nil temperature asymmetry upon examination of the lower extremities with use of a transdermal thermometer device. Similarly, there was nil asymmetry with respect to colour appearance (vasomotor features).
There was nil evidence of swelling/oedema or sweating affecting either lower extremity (sudomotor/oedema features).
Findings with respect to active range of motion have been described above, in particular, relating to the right lower extremity.
Nil changes were apparent in relation to nail, hair and skin affecting the right lower extremity. The nails of the toes of each foot were painted, however, this was patchy and I was able to generally observe these regions (motor/trophic features).
An area of erythematous skin discoloration was evident of approximately 5cm overlying the dorsal aspect of the 1st metatarsal of the right foot. Proximally, there was an extension of this laterally of approximately 1.5cm of similar appearance. As such, this had a generally V-shaped appearance. There was nil loss of contour. Ms Fortune reported increased sensitivity to touch pertaining to this region.
Motor system examination within the lower limbs was non-contributory with respect to tone and reflexes. There was some limitation with active range of motion pertaining to the right ankle and foot as outlined above and contributed to by discomfort with testing.
The Babinski responses were normal with both toes downgoing.”
He then noted the radiological material he had and said:
“It has been indicated that Ms Fortune did not have with her any radiological investigations at the time of the assessment.
I have, however, had the opportunity of reviewing the radiological reports contained in the referral documentation.
It has also been indicated that Ms Fortune showed me a copy of a report pertaining to a recent examination of the lumbar spine. The Radiologist (Dr CB Kwok) had concluded:
‘Lumbar spondylosis with facet joint arthropathy most evident at right L4/5 and bilateral L5/S1 levels. L5/S1 right paracentral disc protrusion with effacement of bilateral recesses, in contact with the descending S1 nerves. Incidental findings as above, including right calyceal calculus without hydronephrosis and right adnexal likely ovarian cyst lesion may warrant ultrasound correlation if not already known.’ ultrasound correlation if not already known.’”
The Medical Assessor summarised the injuries and diagnoses as follows:
“It is considered that Ms Fortune sustained an aggravation of previously asymptomatic early degenerative changes/spondylosis pertaining to the region of the lumbar spine.
It is considered that the clinical presentation is also one of a trochanteric bursitis of the right hip associated with localised tenderness and alteration in gait.
It is evident that she sustained soft tissue and bony trauma pertaining to the right ankle/foot. I have noted the MRI examination that was performed pertaining to the right foot dated 7.11.22. The reporting doctor had concluded that the radiological findings had included the following: ‘Evidence of undisplaced, minimally displaced fractures involving the 2nd to 5th proximal phalanges at the level of the neck. Associated bone marrow oedema, notably involving the 3rd and 4th toes. An undisplaced fracture involving the middle phalanx of the 4th toe with a comminuted fracture of the middle phalanx of the 3rd toe as described. Correlation with the CT scan would be indicated.
Oedema at the dorsal aspect of the base of the proximal phalanx of the great toe with no discernible fracture? Ligament injury/bone marrow contusion.’
Ms Fortune also sustained soft tissue trauma to the dorsal aspect of the right foot with residual superficial scarring, as described above.
It is considered that Ms Fortune also sustained peripheral nerve injuries affecting the sural nerve and superficial peroneal nerve affecting the regions of the right lower leg/foot. It is not considered that the presentation meets the criteria in accordance with the Guidelines for complex regional pain syndrome Type 1. See further documentation in relation to this below.”
The Medical Assessor assessed a total 15% WPI, being 7% of the lumbar spine, 8% of the right lower extremity and 1% for scarring.
He explained his calculations as follows:
“With respect to the region of the lumbar spine, the clinical examination demonstrated features of asymmetrical limitation with active truncal range of motion. It is also considered that the presentation is one of non-verifiable radicular complaints. There is nil evidence of features of radiculopathy. Taking these factors into account, a DRE Category II rating has been determined. When taking into account negative impacts upon activities of daily living, a 7% whole person impairment has been determined.
With respect to scarring, there is evidence of alteration in skin colour. There is nil loss of contour. The scarring is located to a region that may be visible with usual clothing such as wearing sandals. I do not consider that there are any negative impacts upon activities of daily living. There is nil underlying adherence. There is nil requirement for treatment in relation to this. Taking these factors into account, a 1% whole person impairment has been determined.
In relation to examination of the right hip, there is nil rateable impairment when assessing active range of motion. Tenderness was evident, however, upon palpation to the lateral aspect. There was also evidence of a mildly altered gait which is considered to be contributed to by complaints referable to the right hip. It is considered that a diagnosis of a trochanteric bursitis is present.
With reference to diagnosis-based estimates, this equates with a 7% lower extremity impairment.
There is nil impairment pertaining to the region of the right knee.
There is mild limitation with active range of motion at the right ankle/hindfoot that equates with a 4% lower extremity impairment. A potential 2% lower extremity impairment applies to the left side. It is evident that the guides indicate that the finding of the non-affected side needs to be deducted from the one in question. This equates with a 2% lower extremity impairment. When 2% is taken from 4%, a 2% lower extremity impairment is determined in relation to the right ankle/hindfoot.
When taking into account limitation with active range of motion relating to the right great toe (1st metatarsophalangeal joint and 1st interphalangeal joint), a 7% lower extremity impairment is determined.
It has also been indicated that it is considered that there are features consistent with trauma having been sustained to the sural nerve of the right lower extremity. With reference to AMA 5, a maximum 5% lower extremity impairment is evident. It is considered that a grade 3/60% is applicable pertaining to this with reference to Table 16-10 (pg 482). This gives a 3% lower extremity impairment.
It has also been indicated that it is considered that there has been trauma to the right superficial peroneal nerve. With reference to AMA 5, a maximum 5% lower extremity impairment is determined. Similarly, a grade 3/60% rating is considered applicable with reference to the table already alluded to. This gives a 3% lower extremity impairment.
When the lower extremity impairments of 7%, 7%, 3%, 3%, 2% and 0% are combined, a 21% lower extremity impairment is determined which converts to 8% whole person impairment.
In relation to a possible diagnosis of complex regional pain syndrome (CRPS) Type 1, the Workers Compensation Guidelines indicate that the following need to be satisfied:
·The diagnosis is to be confirmed by criteria in Table 17.1.
·The diagnosis has been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement).
·The diagnosis has been verified by more than one examining physician.
·Other possible diagnoses have been excluded.
·CRPS1 is to be assessed as follows: o Apply the diagnostic criteria for complex regional pain syndrome Type 1 (Table 17.1).
With respect to the above, it is considered that all of the relevant criteria contained in Table 17.1 are not met (see below).
Ms Fortune has had complaints extending for greater than one year pertaining to the right lower extremity.
With respect to a diagnosis made by more than one examining physician, I have noted that Dr Eugene Gehr, Consultant Orthopaedic Surgeon, in his report of 19.9.23 outlines this diagnosis.
It is evident that nil other examining physicians have previously made this diagnosis.
In Dr Brian Martin’s report of 17.3.2023, he outlines the following: ‘She has come back to see me today and has elements consistent with either neuropathic pain or CRPS. She has sweating changes, unpleasant sensation when the foot is under the shower and has altered sensation now to around about the mid-tibia.’
In this regard, it is evident that Dr Martin had referred Ms Fortune to Dr Gretel Davidson, Pain Consultant. In her report of 14.4.23 directed to Dr Martin, she outlines the following: ‘Whilst on presentation today, Kelly does not present with features consistent with a diagnosis of CRPS, there are clearly neuropathic type features…’
I have also reviewed the medical report (26.6.23) prepared by Associate Professor Allan Molloy, Pain Medicine Physician of Sydney. It is evident that the doctor had alluded to a chronic pain syndrome presentation. He went on to indicate that he considered that the presentation was not one of a complex regional pain syndrome.
I have also reviewed the medical report (21.2.24) prepared by Dr Rob Kuru, Consultant Orthopaedic and Spinal Surgeon of Sydney. In that report, the doctor had indicated that he considered that the diagnostic criteria in accordance with the Guidelines were not met for a diagnosis of CRPS1. He goes on to state: ‘I note that neither Dr Martin nor Dr Davidson have made that diagnosis.’
With respect to Table 17.1, it is evident that Ms Fortune does have continuing pain. I do not consider that this is clearly disproportionate with the significant workplace incident.
It is considered that the symptoms of which Ms Fortune describes may satisfy the following criteria: Sensory, vasomotor, sudomotor/oedema and motor/trophic. Her symptomatic complaints in this respect have been outlined earlier in this certificate.
With respect to the four categories of clinical signs that need to be satisfied, I consider that there are abnormal sensory findings consistent with trauma to the sural and superficial peroneal nerves. I do not consider that there were features pertaining to abnormal vasomotor findings. Similarly, I do not consider that sudomotor/oedema clinical features were apparent. Limitation with active range of motion, however, was apparent. Nil hair, nail or skin changes were apparent.
I consider that the diagnoses outlined earlier in this certificate explain the clinical presentation other than being that of a presentation of complex regional pain syndrome.
Taking the above into account, I do not consider that it is warranted that an impairment determination is appropriate based upon a clinical finding of complex regional pain syndrome.
When the multiple whole person impairments of 7%, 8% and 1% are combined, a final whole person impairment of 15% is determined.”
He then turned to consider the other medical opinions and evidence and said:
“Reference has already been made to documentation contained in the reports of Dr Davidson and Dr Martin.
I have also alluded to the medical report (19.9.23) prepared by Dr Gehr. It is apparent that he had concluded that there was a 20% whole person impairment.
I have already alluded to the medical report (26.6.23) prepared by Associate Professor Allan Molloy at the request of the insurer. I have also reviewed the medical report (21.2.24) prepared by Dr Kuru. In that report, he had alluded to a combined whole person impairment of 7%.
I have also reviewed further documentation prepared by Ms Fortune’s various health professionals.”
The appellant’s submissions
We have already referred to the submissions regarding the CT scan.
In addition, the appellant submits:
(a) Dr Crocker has made an allowance of 2% WPI for effect on ADL’s in relation to his assessment of the lumbar spine however he has not considered whether the impact on ADL’s arises from the impairment of the back or the right foot/leg injury. The appellant submits that the main impact on ADL’s arises from the right foot and hip injury.
(b) In dealing with the effect on ADL’s under the heading Social Activities/ADL: at page 4 of the MAC, Dr Crocker noted sleep disturbance as a consequence of psychological factors and discomfort arising from the right lower extremity, and noted the worker had difficulties standing for prolonged periods, and had a limping gait. He also noted the worker avoided the use of stairs. The appellant submits that all of these issues relate to the worker’s serious right foot injury and not any consequential injury to the lumbar spine. Dr Crocker makes no specific findings in relation to the effect on ADL’s caused by the worker’s back injury, which he found to be an aggravation of previously asymptomatic early degenerative changes/spondylosis pertaining to the lumbar spine.
(c) The worker has a significant disability of the right foot, and the Medica Assessor has failed to distinguish whether the effects on ADL’s arise from the lumbar spine, or the right foot/hip injury. Noting the history of complaints made by the worker relate to her right foot and hip, the appellant submits that there should have been no additional allowance for ADL’s in relation to the consequential lumbar spine injury and the assessment should have been confirmed at 5% WPI.
(d) Dr Crocker has not made any deduction for preexisting factors under s 323 in relation to the lumbar spine. It is clear however that he had diagnosed “an aggravation of previously asymptomatic early degenerative changes/spondylosis pertaining to the region of the lumbar spine.” Yet at paragraph 8 e) he does not address whether any proportion of the impairment in the lumbar spine relates to the pre-existing condition despite being of the view that the injury aggravated such changes. The appellant submits that such a finding is based on incorrect criteria or is a demonstrable error and at least a 10% deduction should have applied for the impairment arising from the lumbar spine, noting the presence of a disc protrusion at the L5/S1 level causing indentation of the S1 nerves, a finding that in itself could be assessed in diagnosis-related estimate (DRE) II.
(e) It is noted that the worker gave a history of back pain in December 2019 and before her pregnancy after twisting her pelvis during sports, enough to seek chiropractic treatment (see page 350 of the ARD 6 December 2019) suggesting that the worker’s back had been previously symptomatic.
The respondent’s submissions
These are as follows:
(a) as a general proposition, the reasons of a Medical Assessor should not be scrutinised overzealously (see Allianz Australia Insurance Ltd v Moo Ok Park [2015] NSWSC 122 at [28]). In addition, in order for it to be found that a Medical Assessor’s reasons are deficient, they must be “plainly inadequate” (see Rahme v Bevan [2009] NSWSC 528 at [31]). The appellant employer has failed to demonstrate any deficiency in the Medical Assessor’s reasoning.
(b) Whilst it true that the appellant, Dr Gehr and Dr Kuru did not comment on the above CT scan, there is no demonstrable error as the Medical Assessor found: the recent CT scan merely showed lumbar spondylosis with no evidence of radiculopathy [see MAC pages 7 and 9]; and the respondent’s presentation as consistent with non-radicular complaints [see MAC page 9].
(c) The treating physiotherapist, Tina Chen at The Healthy Body Company has consistently recorded of stiffness and tenderness at the right L3-5 joints in her various reports dated 26 April 2023, 22 December 2023 and 23 February 2024.
(d) Moreover, MVMT Rehabilitation conducted inter alia “Lumbar Active Range of Motion” on at least three occasions.
(e) The Medical Assessor made similar clinical findings of the lumbar spine.
(f) The Medical Assessor’s assessment of the lumbar spine was correctly based on objective clinical findings. The recent CT scan of the lumbar spine did not show evidence of radiculopathy and made no material difference to the Medical Assessor’s diagnosis of lumbar spondylosis with non-verifiable radicular complaints.
(g) The non-verifiable radicular complaints extend to the upper part of the right leg which is separate and distinguishable from any right foot pain.
(h) The appellant has incorrectly assumed that all ADL’s referred to by the Medical Assessor extending from the lumbar spine to the upper part of the right leg originate from the right foot.
(i) As such, there is the Medical Assessor’s allowance of 2% WPI for effect on ADL’s in relation to his assessment of the lumbar spine was correctly and properly made.
(j) That there can be no deduction made as the respondent’s lumbar spine was asymptomatic prior to the subject accident. For a deduction of even 10% it must be shown that the pre-existing condition contributes to the WPI.
(k) There is no evidence of the pre-existing lumbar condition contributing to the respondent’s overall WPI and so the Medical Assessor did not err.
(l) A close review of clinical records shows the respondent last complained on lumbar symptoms in December 2019 – that is, almost three years before the date of the injury.
Discussion
The Appeal Panel agreed with the appellant’s submissions regarding the CT scan which is why we issued a Direction for its production to both the Appeal Panel and doctors.
The appellant also challenged the MAC in respect of the s 323 issue.
Dr Oates of the Appeal Panel re-examined Ms Fortune on 7 November 2024 and reported to us as follows:
“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Fortune, hereinafter referred to as ‘the worker’, confirmed that on 24/10/2022, whilst undertaking work at the Aldi store warehouse in Marsden Park, she was operating an electric pallet jack on which were multiple stacked pallets of bottled water. When moving backwards, she came up against a pile of pallets behind her in a confined space, but the pallet jack continued to move and ran over her right foot. She was wearing steel-capped safety boots.
The foot was hyperextended. She did not fall. The boot was damaged by the impact. She felt immediate severe pain in the right foot. She reported the incident.
She was taken to Blacktown Hospital Emergency Department. She had an x-ray which showed no fracture.
She was given Endone, an opiate, for severe pain. She was referred back to her GP for follow-up.
After reporting the incident at work, the employer directed her to attend Dr D Mulkeen, company doctor at Horsley Park.
In the meantime, an emergency doctor at Blacktown Hospital had referred her for a CT scan right foot performed on 25/10/2022, which showed no fracture in the hind foot, mid foot or forefoot. Within the limits of CT, no haematoma is seen.
Dr Mulkeen subsequently sent her for MRI right foot performed on 7/11/2022, which showed evidence of minimally displaced fractures involving the 2nd to 5th proximal phalanges at the level of the neck, with associated bone marrow oedema, notably involving the 3rd and 4th toes, and an undisplaced fracture involving the middle phalanx of the 4th toe, with a comminuted fracture of the middle phalanx of the 3rd toe. There was also oedema at the dorsal aspect of the base of the proximal phalanx of the great toe, but no discernible fracture ? ligament injury or bone marrow contusion.
A repeat right foot x-ray on 29/11/2022 did not show any acute or chronic fracture.
Once the fractures were found, she was referred to Dr B Martin, orthopaedic surgeon, Rouse Hill. She was then in a CAM boot for up to eight weeks, weaning out of it gradually after the six-week mark. She was then partial weight-bearing on crutches for 8-10 weeks and had been referred to physiotherapy. Thereafter, she walked unassisted. She continued to require Panadeine Forte for pain.
As she was mobilising out of the CAM boot, she developed gradual onset of right low back pain and right hip aching. This pain in the low back and hip got worse when she returned to light duties, particularly standing duties.
At first, 4-5 weeks after the accident, she returned to work on part-time sedentary office duties and was visiting various Aldi stores in Sydney, with transport by taxi paid by the insurer. She did this for 3-4 weeks and then was back at home until the GP approved her to return to work in store, which required her to wear the steel-capped boots.
She was able to start tolerating this and returned to work in the third week of December, just before Christmas. She was on the till, as tolerated, did stocktaking walking around the store, supervised self-serve registers, and also did some supervision and acted as shift manager.
She started at 4-6 hours per day on alternate days, but this did not always work out because of her roster. She gradually increased her hours and duties at work and almost had got back to full-time duties, when she ceased duty again in early March 2023 because the pain in the right foot had become worse and to some extent, she was also bothered by ongoing pain in the right hip and right lower back.
The right foot pain was increased by having to stand for the shift at work whilst being tightly confined within the steel-capped boot. She was not able to look after her son as desired at home and she had an emotional ‘meltdown’. She did not return to work at Aldi thereafter and was terminated in early January 2024.
She has since been applying for work in office administrative positions, unsuccessfully so far, and is also doing a TAFE course in administration.
She last saw Dr Martin in late 2023. She had developed signs and symptoms of blotchy discolouration in the foot with abnormal sweating and ongoing pain in the foot. Dr Martin was happy with her progress from an orthopaedic point of view, but suspected complex regional pain syndrome and referred her to a pain physician,
Dr G Davidson, Norwest.She was put onto various medications including gabapentin, amitriptyline, Arcoxia (non-steroidal anti-inflammatory) and melatonin, along with vitamin and mineral supplements.
She was also given a topical cream and advised to use a TENS machine.
· Present treatment:
She has amitriptyline 20mg at night, gabapentin 100mg twice daily, Arcoxia 30mg at night, and melatonin at night to help sleep, along with magnesium and Vitamin C supplements.
She attends physiotherapy weekly with Tina at Healthy Body Company in Jordan Springs, with treatment to the right foot and the back.
She has moved house and her GP now is Dr Champika Ramassing, the Ponds, who gives her monthly workers compensation certificates for restricted duties.
She still sees Dr Davidson periodically and the next review is late 2024.
She sees a psychologist, Dr Chi Morris, Castle Hill, usually weekly and sees a psychiatrist, Dr Moon Jelly, at Carlingford about every three months.
· Present symptoms:
Her main problem is right foot pain, which is worse with static standing and walking, the wearing of enclosed shoes and even on wearing socks.
Letting the hot shower water or applying local heat to the right foot when it is swollen flares up the pain, so she can only tolerate the application of ice for right foot swelling. She gets red blotches on the dorsum of the foot and abnormal sweating on the foot.
She has right-sided low back pain which is worse with lifting, bending and prolonged static standing or walking. If she sits with a slumped posture, she gets increased low back pain and a nerve-type pain to the right gluteal area and posterior right thigh.
She has constant pins and needles on the dorsum of the right foot, which are of variable severity, mainly on the forefoot close to the toes, but sometimes spreading proximally towards the ankle on a bad day.
Driving is limited to about 25-30 minutes because of increasing pain in the right foot when using the pedals, and then the back starts to ache with prolonged sitting.
Right foot pain and also anxiety disturb her sleep.
· Details of any previous or subsequent accidents, injuries or condition:
She had an injury to the cervical spine area in 2011, which was self-limited and settled with a short course of physiotherapy.
She did not recall any prior injury, pain or treatment to the lower back.
I then asked her about GP records of 27/11/2019 and 24/12/2019, the first of which was in respect of left hip pain. She explained that she did not consider that this was a back condition, so did not disclose this when asked about back conditions by Assessor David Crocker.
This condition settled completely after the birth of her son on 24/12/2019. She had a normal delivery and there were no further problems with her back, hips or pelvis.
The second GP record of 6/12/20219 (please note this second record was not 24/12/2019) referred to left low back pain, which was better after seeing a regular chiropractor.
I asked the worker why the first GP had said she was attending physiotherapy and the second GP said chiropractic, and she confirmed that she had only seen a chiropractor at this time, not a physiotherapist.
I asked her about the reference by the GP to the same pain before pregnancy after twisting the pelvis during sports. She explained she was not an avid sportsperson but did, at the insistence of her mother, try Camogie, a female version of hurling, a traditional Irish sport. She played this at primary school from age eight to about age 11.
She did not really get into it. However, she does not recall any details of having any pelvic or other injury when playing this sport, but certainly she does not recall any lasting problem.
She then recalled that the pelvis and left hip pain, referred to by the GP on 27/11/2019, settled down with four treatments of chiropractic at Riverstone.
She recalled that it was more a pressure feeling in the front of her left hip and groin from the position of the foetus, and she does not recall having any hip or buttock or back pain during this period.
There has been no subsequent injury or relevant condition develop.
· General health:
This has been good. She has had no previous operations. She has had some weight gain since the date of the accident.
· Work history including previous work history if relevant:
She had worked at Aldi stores as an assistant store manager full-time since mid-2017. She was terminated from there in January 2024 and has not been able to gain any employment since.
She is certified fit for suitable duties on a monthly workers compensation certificate issued by her general practitioner.
She came from Ireland to Australia in 2012 and had worked as an assistant in nursing in Ireland. When she came to Australia, she worked as a retail assistant for about four years prior to working with Aldi, and assistant in nursing in a nursing home in Queensland for approximately two years.
· Social activities/ADL:
The worker is married. Her husband works in construction work on long hours. She has one child, a son, aged four.
At the time of the accident, they lived in a single-storey rented house. She did her own housework and did not require any help. She also shared the yard work with her husband, including gardening and mowing front and back lawns. Either she or he would do the yard work, depending on who was available on the weekends. She was not always available because of her variable shifts at Aldi. She did not require any help with any of this work.
She had no problems with personal care. She didn’t play any sports, but used to enjoy walking her English Staffordshire dog.
After the accident, she continued to live in the same house until they moved in July 2024 to another rented single-storey home. She was still independent with personal care but was not able to walk the Staffy dog, except for short distances, because of right foot pain, and because she walks with a limp, the longer she walked, she noticed she would develop right back and right hip area pain. She said that as her dog is ageing it does not want to walk as far nowadays.
In the house, she tidies the counters after preparing food but can’t do the heavy house cleaning because prolonged standing increases right foot pain and bending and heavy lifting increase back pain. A house cleaner was supported for six visits by the insurer but now they pay for the cleaner, who comes every 2-4 weeks to clean the showers and bathrooms, floors and windows.
She can’t do the yard work now, as she can’t lift the mower out of the garage because of low back pain, and she can’t bend to do the gardening because of low back pain. Her husband does this when he is able.
Summary of injuries and diagnoses
There was a crush injury to the right forefoot with multiple fractures of toes.
There was subsequent development of symptoms which were suggestive of a complex regional pain syndrome.
There was a persistent limp after the right foot injury, with the onset of low back, gluteal and right hip area pain as she weaned out of a CAM boot during the mobilisation process.
The diagnosis here is aggravation of pre-existing, largely asymptomatic, degenerative disease in the lumbar spine.
There was apparently an episode in childhood of short-lived left-sided back pain and also an episode of back pain during pregnancy, also affecting the left side and left hip area, which resolved completely once she was delivered of her son.
From her description, the latter episode was more likely the effect of mechanical pressure from the position of the foetus and did not represent any mechanical injury to the lumbar spine.
The worker was definite that there were no ongoing problems with the back following delivery.
I note the physical findings of the original Assessor, which are consistent with DRE Lumbar Category II giving 5-8% whole person impairment.
After a detailed review of the current capacity for activities of daily living, including what conditions limit these activities, it is my opinion that there is contribution by both the right foot and the lumbar spine conditions to limitation of moderate to heavy activities of daily living, including recreational activities such as walking the dog, mowing and gardening, and heavier household activities involving bending and prolonged standing inside, but no effect on personal care.
Therefore, a loading of 2% whole person impairment for the effect on ADLs of the lumbar spine is appropriate.
There is 7% whole person impairment arising from the lumbar spine condition.
Based on the history given and review of the additional history in the file of evidence with the worker today, I consider there is no indication for making a deduction from the lumbar spine impairment that is due to previous injury or pre-existing condition or abnormality.
Otherwise, I accept the WPI assessment for right lower extremity and scarring as provided by the original Assessor.
I agree with the original Assessor, who assessed a combined assessment of 15% whole person impairment.”
The Appeal Panel agrees with the detailed examination report and the findings and assessments of Dr Oates. He clearly explained why no deduction in respect of the lumbar spine was appropriate, and the contribution by both injuries to ADL’s.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 June 2024 should be confirmed.
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