Bond v Blacktown Area Community Centres Inc
[2023] NSWPICMP 227
•29 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bond v Blacktown Area Community Centres Inc [2023] NSWPICMP 227 |
| APPELLANT: | Doreen Bond |
| RESPONDENT: | Blacktown Area Community Centres Incorporated |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 29 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of Medical Assessor; the appellant alleged demonstrable error and the application of incorrect criteria in respect of the assessment of the lumbar spine only; submitted that section 323 deduction of 1/10th was incorrect and that no evidence present of degenerative changes prior to injury; assessment of activities of daily living (ALD); application of test in Ryder v Sundance Bakery; Held – Medical Assessment Certificate revoked; 1/10th deduction applied; diagnosis related estimates (DRE) category IV impairment established. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Bond, appeals from the Medical Assessment Certificate of Medical Assessor Anderson dated 6 October 2022.
On 16 May 2016, Ms Bond tripped and fell while visiting a school in the course of her duties as a Community Service Officer. She commenced proceedings in the Personal injury Commission for compensation for impairment of the whole person, and was referred to the Medical Assessor for assessment. He assessed a 50% whole person impairment (5% cervical spine; 23% lumbar spine; 4% right upper extremity; 0% right lower extremity; 27% left lower extremity; 2% scarring) as a result of injury on 16 May 2016.
Ms Bond alleges demonstrable error and the application of incorrect criteria in respect of the assessment of the lumbar spine only. She says that the assessor erred in two respects:
(a) by assessing restrictions on her activities of daily living at 2% without providing adequate reasons as to the application of the criteria and diagram at [4.33] to [4.35] in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines), in circumstances where the evidence justified an assessment of 3%, and
(b) by deducting 1/10th for pre-existing degenerative changes in the lumbar spine, when there was no evidence that such changes were present prior to injury, and no reasons given for finding that they contributed to impairment.
No other error is alleged.
The Appeal Panel conducted a preliminary review of the assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions are summarised above. Blacktown Area Community Centres Incorporated (the respondent) submits as follows in reply:
(a) With respect to the activities of daily living:
(i)the assessor’s reasons were sufficient to understand his actual path of reasoning;
(ii)an assessment of 3% is justified only where there is evidence of capacity to undertake activities such as dressing, washing, toileting and shaving,
(iii)Dr Courtenay did not take a history of interference with these activities,
(iv)in her statement, the appellant did not refer to interference with those activities, though she said she needed assistance with home cleaning and lawn maintenance, and
(v) the Table at 4.34 of the Guidelines is a guide only.
(b) With respect to the 1/10th deduction by the Medical Assessor:
(i)there was evidence before him of a pre-existing condition of the lumbar spine, namely, acknowledgements by Dr Gehr to that effect, Dr Coffey’s opinion to that effect, and radiological imaging,
(ii)even if the pre-existing condition was asymptomatic, its existence and effect were relevant to the assessment of whether a deduction is appropriate,
(iii)the task of the assessor was to assess the worker as she presented on the day of assessment: he was not bound to accept previous assessments by other clinicians,
(iv)on the evidence before him, a 1/10th deduction was reasonably open, and
(v)his reasons were sufficient to demonstrate the actual path of reasoning.
Both parties submit that the matter should be determined on the papers.
Reasoning of the Medical Assessor
Medical Assessor Anderson took a history at [4] of injury on 16 May 2016.
At [2] he noted the worker’s statement, and the reports of Dr Coffey, Dr Gehr and Dr Courtenay.
Under the heading ‘Social activities/ADL’ he noted relevantly:
“Mrs Bond is a widow. She has a daughter of 30 who was with her at this assessment.
She also has sons who live with her, aged 23 and 22.”
At [6], he recorded the results of radiological investigations of the lumbar spine, in particular an MRI scan of 18 December 2018 which he said demonstrated:
“Extensive degenerative changes, also with the facet joints from C3 all the way down to S1”.
At [7], he noted that in November 2019 Ms Bond had come to interbody fusion from L3 across L4, L5 and inserting at S1.
At [10b], he assessed a diagnosis-related estimate (DRE) category IV impairment of the lumbar spine, adding that – emphasis added:
“This provides a whole person impairment ranging between 20% and 23%, depending on the activities of daily living. For this she would attract a further 2%, giving 22%.”
He gave no other reasons for assessing effects on the activities of daily living.
At [10c], he explained that his assessment was closest to that of Dr Gehr. In his report of 26 May 2022, Dr Gehr had allowed 3% for the effects on activities of daily living. Dr Gehr explained:
“Activities of daily living, still reports problems with washing, showering, and dressing herself. Uses a special transfer chair.
Cooking and cleaning, she is still having problems with it, and still has a cleaner who comes in every two weeks.
Maintenance of lawn and gardens, she used to do it, she cannot do it now. She has a gardener.”
Though Dr Anderson noted some differences between Dr Gehr’s assessment and his, he did not explain why he differed from Dr Gehr’s assessment of 3% for effects on activities of daily living.
At [11], Dr Anderson gave the following reasons for making a deduction of 1/10th – emphasis added:
“Attention is drawn to the pre-existing degenerative changes associated with the lumbar spine and the left hip. This should reasonably justify a deduction of one-tenth for each part. No other deduction has been identified as appropriate.”
At [10c], he gave reasons for differences between his assessment and the assessments of Dr Gehr and Dr Courtenay. Neither of those assessors had made any deduction for a pre-existing condition of the lumbar spine. However, the Medical Assessor did not comment on this aspect.
He did, however, take the following history at [1]:
“Around mid-November 2019, she was under the care of Specialist Neuro-surgeon, Dr Matthew Tait. It had been identified that she had significant pathology in her lumbar spine from L3 all the way down to S1. The condition had been investigated by MRI scan. There were extensive degenerative changes, mostly towards the right side.”
At [6], he summarised the report of an MRI scan of the lumbar spine performed on 18 December 2018 in the following way:
“Extensive degenerative changes, also with the facet joints from C3 all the way down to S1”.
Interference with activities of daily living
Par 4.33 of the Guidelines provides that, within DRE categories II to V, ‘0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below’.
Par 4.34 provides a diagram to be used “as a guide to determine whether 0%, 1%, 2% or 3% WPI should be added to the bottom of the appropriate impairment range.” Par 4.35 provides that the diagram is to be interpreted as follows:
“Increase base impairment by:
• 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected.
• 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances.
• 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
In assessing interference with activities of daily living at 2%, the Medical Assessor necessarily implied a finding that Ms Bond could manage her personal care, but was restricted in usual household tasks, or tasks of equal magnitude, in accordance with the Table at 4.34, as interpreted by 4.35.
However, he recorded no history as to which activities of daily living were restricted.
The Medical Assessor had before him the assessment of Dr Gehr with respect to the activities of daily living. Dr Gehr selected 3%. He gave reasons for doing so, including the fact that personal care activities were restricted. Though the Medical Assessor mentioned Dr Gehr’s assessment and otherwise described its differences from his own assessment, he did not address the difference between his assessment of activities of daily living and Dr Gehr’s assessment. On appeal, we are not in a position to know why he assessed them differently from Dr Gehr. His path of reasoning is not patent. The reasons are insufficient to explain the difference. For that reason also, the reasons are insufficient to illuminate his actual path of reasoning, demonstrating error on the face of the certificate, and necessitating that it be set aside.
Deduction for pre-existing degenerative condition of the lumbar spine
Section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 provides that “there is to be a deduction for any proportion of the impairment that is due to any previous injury … or that is due to any pre-existing condition or abnormality”.
Section 323(2) provides that the deduction is assumed to be 10%, if “the extent of a deduction under this section (or a part of it) will be difficult or costly to determine …. unless this assumption is at odds with the available evidence”.
As indicated, the Medical Assessor made a deduction of 10%. The sole reasons given were those at [11], reproduced above. They involved a finding that there was a pre-existing degenerative condition of the lumbar spine, and an assertion that this “should reasonably justify a deduction of one-tenth” because, “No other deduction has been identified as appropriate”.
The assessor did not explain why he considered that there was a degenerative condition of the lumbar spine prior to injury on 16 May 2016. Neither Dr Gehr nor Dr Courtenay, on whom the insurer relied, made any such finding. Accordingly, neither made any deduction. Though he discussed their differing assessments at [10c], the Medical Assessor did not mention that they had declined to make any deduction, or explain why he differed in this respect.
In his report of 2 June 2021, Dr Gehr had taken a history that, “Prior to subject accident of 16/5/2016, she reports no previous problems with …. [the] lumbar spine”. Dr Courtenay took no history of symptoms in the lumbar spine prior to injury. Likewise, the Medical Assessor elicited no history of lumbar symptoms prior to injury.
In all the circumstances, it was incumbent on the assessor to explain why he took the view that degenerative disease had existed prior to 16 March 2016.
The only references in his reasons to pre-existing lumbar degeneration were those he made to an MRI scan of 18 December 2018, and to the consultation with Dr Tait in November 2019, extracted above.
Dr Tay’s report of the MRI scan was included in the material before the assessor. Dr Tay described facet arthropathy at L3/4 and L5/S1, severe on the left and right respectively. As this scan was made more than two and a half years after injury on 16 May 2016, it is impossible to say, without regard to other evidence, whether the degeneration pre-dated injury.
However, there were reports of earlier scans before the assessor, not referred to in his reasons. The first was a CT scan of the lumbar spine performed on 1 July 2016, shortly after the injury. Radiologist Dr Reeves described a 3mm anterolisthesis at L3/4 with osteophytes and a broad based posterior disc protrusion, appearing to compromise the left L4 lateral recess. There were moderately severe degenerative changes of the posterior facet joints. At L4/5, he described a 2mm retrolisthesis with Schmorl’s node of the superior endplate of L5 with associated osteophytes and minor degeneration of the posterior facet joints.
Dr Tay reported an MRI scan performed on 10 January 2017, describing moderate to severe bilateral facet arthropathy at L3/4 and moderate right and mid left facet arthropathy at L5/S1, with disc desiccation and minimal disc bulge at L5/S1.
The scans of 1 July 2016 and 10 January 2017 demonstrate facet joint degeneration at two levels. The other pathologies noted are not necessarily degenerative in nature.
In his reports of 27 March 2019 and 4 March 2019, Dr Tait recommended interbody fusion surgery from L3 to S1 with posterior decompression, to address pain generated by the discs at L4/5 and L5/S1, and to a lesser degree by the facet joint degeneration at L3/4 and associated anterolisthesis. In his report dated 28 November 2019, treating general practitioner Dr Cameron states that the surgery was performed by Dr Tait on 15 November 2019.
A CT scan of the lumbosacral spine on 11 May 2020, after fusion surgery in November 2019, was described as demonstrating “fusion at all levels”.
The extent of the degenerative changes evident in the scans of 1 July 2016 and 10 January 2017 suggest that they had been present for a considerable time, and in all likelihood prior to injury on 16 May 2016. The failure to refer to them, or otherwise to explain his finding that there was pre-existing degenerative disease, does constitute an inadequacy of reasons, but in our view it makes no difference to the outcome, as there was ample radiological evidence before the assessor to support the finding, and we would make the same finding if called on to do so.
Having found that there was a pre-existing degenerative condition, it was the task of the assessor to determine whether this condition contributed to the assessed impairment and, if so, to what extent. In order to find that the condition continued to contribute to impairment, it was necessary for him to find that, but for the pre-existing condition, the impairment would not have been as great: Ryder v Sundance Bakehouse [2015] NSWSC 526.
The Medical Assessor did not address that issue. He made no such finding. In the absence of such a finding, it was not open to him to make a deduction of any kind. The making of a deduction demonstrated error, necessitating that the certificate be revoked. It is unnecessary to consider whether the quantum of the deduction was also in error.
Assessment – activities of daily living
In her statement of 31 August 2021, the appellant said that, with respect to her activities of daily living, she has a cleaner come to her home once a fortnight, has help with maintaining the lawn, and relies on two of her children to help her around the home.
She gave a more detailed history to Dr Gehr when he examined her in May 2022, which is reproduced above. As it described interference with personal care activities, that history justified a 3% assessment, in accordance with 4.34 and 4.35 of the Guidelines.
On 22 July 2022, Dr Courtenay noted the following, which he felt justified a 2% assessment:
“She can drive now for a period of 30 minutes a day but takes it easy. She has had some assistance with a cleaner, but I understand that is reducing, but she does need that assistance. She has a special seat in the bath and can manage that as it structured so that she can get in and out of the bath. If she is not using a crutch and she is outside she will use a trolley particularly if she is in a shopping centre.”
The history taken by both doctors is sufficient at least to justify a 2% assessment, because both describe interference with household tasks. The difference lies in Dr Gehr’s history of interference with personal care activities. While Dr Courtenay did not take that history, he did not take any history to the contrary. It seems the applicant simply did not tell Dr Courtenay that she experienced difficulties in personal care. We do not know why.
Having regard to the significant differences between the details elected by Dr Courtenay and Dr Gehr within a space of two months, and to the fact that more than a year has elapsed since the applicant’s statement, it was necessary for us to refer the applicant to a member of the Panel in order to make an up to date assessment of the extent to which the effects of injury affect her activities of daily living.
The report of Dr Dixon follows.
“Report of Dr Dixon
1. The workers medical history, where it differs from previous records
The worker’s medical history is unchanged.
2. Additional history since the original Medical Assessment Certificate was performed
There is no additional history since the original MAC was performed.
3. Findings on clinical examination
The findings on examination by the Medical Assessor Dr Tim Anderson in his MAC of 6 October 2022 are confirmed.
On examination on 8 February 2023 the claimant was 180cm tall and weighed 117kg. She reported she has put on weight since the subject accident, previously weighing 81kg.
In the lumbar spine there was a longitudinal mid line incision in her lower abdomen which showed colour contrast and mild hypertrophic change. The lower half was tender. The claimant remains conscious of the scarring which is tender distally and shows loss of contour . There was a reasonably healed laminectomy scar posteriorly which shows colour contrast and although reasonably healed proximally, is adherent distally and the claimant is able to readily localise the scar which is painful if accidentally bumped and uncomfortable if she sits on a hard back chair. Both scars are not visible with normal clothing.
There was tenderness at the left paralumbar region adjacent to the left lumbosacral facet joint and there was some stiffness of the lumbar spine with flexion decreased by one third and extension by two thirds and lateral flexion decreased by one third bilaterally. There was mild erector spinae muscle spasm. Her straight leg raise was 60 degrees on the left and associated with left buttock sciatica and that on the right 70 degrees. There was no apparent limb length discrepancy. There was no wasting of either lower extremity and there was altered sensation on the dorsum of the left foot. Her distal power was grade 5 out of 5 with some mild weakness of dorsi flexion of the left great toe. She had a reasonably healed buttock scar with some loss of contour, where she had left total hip replacement. She had pes plano valgus on standing and she had a limp on the left and was using a crutch to support her back and left hip and toe walking and heel walking were associated with low back pain and left buttock pain, but I was not able to verify sciatic symptoms in a dermatomal distribution. She had difficulty performing a squat test.
In summary the claimant sustained several injuries associated with her fall in mid May 2006 with injuries to her cervical spine, right shoulder, lumbar spine, left hip and right knee. She had subsequent right rotator cuff repair in June 2017 and anterior interbody fusion in November 2019 followed by posterior segmental fixation and decompression laminectomy the following day. In Nov 2021 she had a left hip replacement.
The claimant was consistent in presentation.
Evaluation of her ADLs. The claimant reports difficulty cutting her toe nails and putting on her shoes and socks. She uses a long shoe horn but does have difficulty with foot wear and has difficulty dressing, particularly putting on trousers and has difficulty bathing. She has a slide on table to enter the bath and has difficulty getting out of the bath. She has difficulty doing her hair. She has difficulty doing household cleaning chores such as mopping, vacuuming, cleaning the toilet and bathroom, spring cleaning, high dusting, sweeping, cleaning windows. She has difficulty lifting heavy groceries and laundry and difficulty doing repetitive tasks such as meal preparation, cooking, washing up and bed making. She has difficulty doing the garden. She previously loved doing her garden but she is unable to tend to her roses now. She does have a gardener every two weeks who also does the lawns and she has help from her sons with some of the cooking and washing and doing the dishes and has a commercial cleaner come once a fortnight.
The addition of 3% for ADLs is reasonable as she has not been able to do her household duties, yard work, recreational dancing and has difficulty with personal care, particularly foot care and bathing and dressing.
With regard to the s323 deduction for her lumbar spine of one-tenth, it is noted that a CT of her lumbosacral spine on 1 July 2016 which is two months after the subject injury showed moderate degenerative change in the posterior facet joints and retrolisthesis at L2/3 with disc space narrowing and anterolisthesis with anterior osteophytes at L3/4 with a broad based disc protrusion and moderately severe degenerative change in the posterior facet joints. At L4/5 there was 2mm of retrolisthesis (this is often associated with disc degeneration with a shallow posterior disc protrusion and mild degenerative facet joint change). At L5/S1 there was anterior osteophyte formation, right sided osteophyte formation with a shallow posterocentral disc protrusion without nerve root compression and moderate degenerative changes in the facet joints.
It is inconceivable that such extensive degenerative changes could have occurred within the short time that elapsed between injury on 16 May 2016 and the scan on 1 July 2016. It is highly likely that they existed well before the date of injury, even accepting the claimant’s evidence that her back was asymptomatic at the time of the injury.
4. Results of any additional investigations since the original Medical Assessment Certificate
There have been no additional investigations.”
Conclusion
We adopt the assessment and reasoning of Medical Assessor Dixon with respect to effects on the activities of daily living, and with respect to the existence of a pre-existing condition or abnormality. The assessment of 3% for ADLs is consistent with Dr Gehr’s assessment of 26 May 2022, but inconsistent with Dr Courtenay’s assessment of 3 August 2022. Dr Courtenay made no allowance for ADL’s on the basis that ‘this lady does manage to dress herself’, though did not otherwise explain his reasons. He does not appear to have taken the detailed description of ADL’s which was taken by Medical Assessor Dixon. Neither Dr Gehr nor Dr Courtenay appears to have considered a deduction for pre-existing condition of the lumbar spine. We consider a deduction appropriate for the reasons given by Dr Dixon with respect to the evidence of pre-existing degeneration, and for the additional reasons which follow.
Assessment – deduction for pre-existing condition
Having found that there was a degenerative condition of the lumbar spine prior to injury, it is necessary to apply the test in Ryder, by considering whether the assessed impairment is greater by reason of the pre-existing condition than it would otherwise have been.
When Dr Gehr examined the worker on 2 June 2021, he took a history that:
“Prior to subject accident of 16/5/2016, she reports no previous problems with … lumbar spine”.
When he first examined her on 27 March 2017, Dr Tait took a history that since injury, the appellant had experienced cervical pain with an episode of lower back pain. The referral for a CT scan of the lumbar spine on 16 June 2017 is consistent with the onset of lumbar spine symptoms after the injury.
Having regard to all that evidence, we are satisfied that injury on 16 May 2016 rendered symptomatic a previously asymptomatic condition of the lumbar spine.
The assessment was made on the basis of the extensive lumbar fusion surgery conducted on 15 November 2019 at the hands of Dr Tait. That surgery was necessary in part because of the extensive degenerative condition of the spine from L2 to S1 and, in part, because of the symptomatic exacerbation caused by injury. In our view, both the pre-existing degeneration and the symptomatic exacerbation were causative of the surgery. But for the degeneration that was present, the extensive surgery that occurred is unlikely to have been necessary, even with the occurrence of injury on 16 May 2016. For that reason, we consider that the degeneration has contributed to the current impairment, and continues to contribute to it. Applying the test in Ryder, we are satisfied that the impairment is worse now than it would have been, but for the pre-existing degenerative condition.
For these reasons, the test in Ryder is satisfied. A deduction is appropriate. As the amount is difficult to ascertain, we deduct 1/10th.
We assess the lumbar spine as follows: 20% whole person impairment in respect of a DRE category IV impairment, plus 3% for the effects on activities of daily living, yielding 23%. In accordance with Table 4.2 of the Guidelines, this is combined with 2% for the second surgery (lumbar fusion was performed in two separate surgeries over two days – anterior approach on the first day, with posterior approach on the second day) and a further 2% for surgery at a second and third level, yielding 26% whole person impairment.
Conclusion
For the reasons given, the Medical Assessment Certificate of Medical Assessor Anderson is revoked and replaced by the attached Medical Assessment Certificate.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W5308/22 |
Applicant: | Doreen Bond |
Respondent: | Blacktown Area Community Centres Incorporated |
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 Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine | 16/05/16 | Chap 4 P 24 | P 392 T 15-05 | 5 | 0 | 5 | |
| Lumbar spine | P 384 T 15-03 | 26 | 1/10th | 23 | |||
| Right upper extremity | Chap 2 P 10 | P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03 | 4 | 0 | 4 | ||
| Right lower extremity | Chap 3 P 13 | P 537 T 17-10 | 0 | 0 | 0 | ||
| Left lower extremity | P 547 T 17-34 P 546 T 17-33 | 30 | 1/10th | 27 | |||
| Scarring | P 74 T 14.1 | 2 | 0 | 2 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 50 | ||||||
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