Cook v Estia Health New South Wales
[2025] NSWPICMP 648
•28 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cook v ESTIA Health New South Wales [2025] NSWPICMP 648 |
| APPELLANT: | Julie Cook |
| RESPONDENT: | Estia Health New South Wales |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 28 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; foot injury resulted in consequential back condition; section 323 deduction for established degenerative change despite lack of previous complaint; Vitaz v Westform (NSW) Pty Ltd, Ryder v Sundance Bakehouse, and Southwell v Qantas Airways Limited considered; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 May 2025 Julie Cook lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru, who issued a Medical Assessment Certificate (MAC) on 24 April 2025.
Ms Cook relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error with respect to the deduction under s 323 of the 1998 Act. We conducted a review of the original medical assessment, limited to the grounds 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 SIRA Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Cook was employed by Estia Health NSW (Estia) as an assistant in nursing at its facility in Taree. On 25 August 2020 she suffered an injury when she was transferring a resident to a fallout chair. The chair was pushed backwards and a wheel ran over her left foot, fracturing her big toe. Ms Cook experienced ongoing pain and in May 2022, Dr O’Sullivan performed a metatarsophalangeal joint fusion. As a result of her altered gait during treatment, Ms Cook experienced pain in her low back.
The Medical Assessor was asked to assess Ms Cook’s left lower extremity (big toe, subtalar joint), lumbar spine and scarring. He assessed 7% whole person impairment (WPI) for Ms Cook’s lumbar spine, deducting one-tenth under s 323 of the 1998 Act to reach 6% WPI. The Medical Assessor assessed 4% WPI in respect of her left lower extremity, again deducting one-tenth under s 323. He assessed 0% for scarring. The total assessment was 10% WPI.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Cook to undergo a further medical examination because there is sufficient material in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Cook submitted that the Medical Assessor made a demonstrable error in making a deduction under s 323 from his assessment of her lumbar spine. She said that he erred in concluding that pre-existing pathology contributed to the development of a low back condition and that he did not provide sufficient reasoning to explain the deduction.
Ms Cook said that there is no evidence of pathology in her lumbar spine before the injury and that her statement confirmed that she never experienced any pain before the injury. She said that the Medical Assessor failed to sufficiently consider, explain and determine how pre-existing pathology contributed to and increased her impairment.
Ms Cook also submitted that the Medical Assessor “incorrectly applied the Guidelines” because he did not comply with the requirements of paragraph 1.6b of AMA 5 with respect to the apportionment of impairment.
In reply, Estia submitted that the Medical Assessor correctly applied s 323, noting that the Medical Assessor reviewed radiology which showed degenerative disc disease. The scans post-dated the injury and were undertaken soon after Ms Cook first complained of back pain to her general practitioner in August 2022. Estia submitted that the scans showed degenerative changes likely consistent with Ms Cook’s age.
Estia said that the Medical Assessor explained his reasoning when he said that it is unlikely that Ms Cook’s altered gait would have led to the development of low back pain in the absence of pre-existing degenerative spondylosis. The deduction was the same as that made by Dr Hyde-Page who saw Ms Cook at Estia’s request.
Estia said that Ms Cook had not demonstrated how the Medical Assessor had failed to apply assessment criteria in section 1.6b of AMA 5.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The MAC
The appeal concerns only the s 323 deduction that the Medical Assessor made from his assessment of Ms Cook’s lumbar spine. The Medical Assessor recorded the history of the onset of the condition:
“Subsequent to the surgery, Ms Cook says she was forced to have two months of bed rest and walk in a boot. When she started having physiotherapy to mobilise after this and was given some orthotics, she acutely developed pain across her lower back. The physiotherapist treated her with Pilates at the time and then sent her on to an exercise physiologist, which she has persisted with for two years but she continues to have significant pain in her back.
She subsequently went on to be referred to Pain Management Specialist, Dr Suiter. Dr Suiter has tried a number of injections into her spine, which have been of no benefit.”
The Medical Assessor recorded that Ms Cook described global lumbar back pain and pain radiating down the lateral aspect of her left leg to the foot.
Describing his examination, the Medical Assessor said:
“On examination she was obviously uncomfortable. She walked with a stick in her right hand. Trendelenburg’s test was normal. Heel-toe stance was difficult but normal. Neurological examination of the lower lambs demonstrated symmetrical knee and ankle reflexes with downgoing Babinski on the right. Peripheral power was intact. Straight leg raise was to 90° in the sitting position without tension signs.
The range of motion in the lumbar spine was restricted with flexion to above the knees. There was dysmetria arising from the flexed position. Lateral flexion also was to the knees.”
The Medical Assessor reviewed radiology, describing an X-ray of Ms Cook’s lumbar spine dated 24 October 2022 as “essentially unremarkable”. A CT scan dated 17 November 2022 was said to show “L2/3, L3/4 degenerative disc disease with anterior annulus calcification” and an MRI scan dated 9 March 2023 showed “minor background degenerative changes, essentially unremarkable study.”
The Medical Assessor diagnosed non-specific back pain and said that Ms Cook’s back was affected by a pre-existing condition or abnormality. He said:
“The lumbar spine was assessed as Lumbar DRE Category II on the basis of there being clinical findings of restricted motion and dysmetria. A further 2% was added for restrictions of activities of daily living per SIRA page 28 4.34.”
Explaining his deduction under s 323 of the 1998 Act, the Medical Assessor said that Ms Cook suffered degenerative spondylosis of the lumbar spine and
“In the absence of pre-existing degenerative spondylosis of the lumbar spine, it is unlikely that her altered gait alone would have led to the development her low back pain.”
Treatment
Dr Hoque, Ms Cook’s general practitioner, first recorded a history of worsening lower back pain on 12 October 2022. At around that time, Ms Cook was undergoing physiotherapy, struggling with orthotics and attempting to return to work. Dr Hoque referred Ms Cook for an X-ray.
Dr Josey reported on the lumbar spine X-ray on 24 October 2022 and found:
“Alignment is within normal limits, no aggressive lesion. No spondylolysis or degenerative changes beyond what would be expected to be within normal limits for a 63-year-old patient.
No wedge fracture or gross destructive process.”
Dr Jacob reported on a CT scan on 17 November 2022 and said:
“Findings:
Shallow annular disc bulge at L2-L3, low-grade posterior disc bulges at L3-L4, L4-L5 and L5-S 1 levels.
Mild central canal stenosis at L4-L5, L3-L4 levels.
No signs of significant mass effect onto the exiting or descending nerve roots.
Bilateral L5-S1, mild right more left L4-L5, bilateral L3-L4, bilateral L2-L3, bilateral L1-L2, T12-L1 facet arthropathy noted.
No spinous or transverse process fracture demonstrated.
Impression:
Low-grade posterior disc bulges noted at L3-L4, L4-5 and L5-S 1 levels. Mild contact of the right more than left exiting LS nerve root noted without signs of significant effacement. Multilevel facet arthropathy noted throughout the lumbar spine.”
Dr Hoque referred Ms Cook to Dr Singh who requested an MRI scan. Dr Singh’s report does not appear in the file, though Dr Bodel and Dr Hyde Page said they had seen it. An extract from his report is in Dr Hoque’s notes and reads:
“I recommend that she have a nuclear medicine bone scan to identify further pain generators in the spine. I note that she has had a nuclear medicine bone scan, which reveals some uptake in the lumbar spine, but also moderate osteoarthritis of the hips. It is likely that aggravation of the arthritis at the hips has been accelerated by the altered gait pattern following her foot injury. Treatment for the lumbar spine at this time should be conservative. She should trial hydrotherapy and physiotherapy. I also recommended that she see a hip specialist for the osteoarthritis of the hips.”
Dr Ganeshan reported on the MRI scan of Ms Cook’s thoracic and lumbar spine on 10 March 2023. In respect of the lumbar spine, Dr Ganeshan said:
“MRI Lumbar Spine:
Sagittal Tl, T2, STIR and axial Tl T2-weighted imaging has been performed.
There is normal vertebral alignment. There is minimal superior endplate fracture of L3.
Ll-2:
Mild facet joint arthropathy. No disc lesion, no neural impingement.
L2-3:
Minimal facet joint arthropathy. No disc lesion, no neural impingement.
L3-4:
Facet joint arthropathy. No disc lesion, no neural impingement.
L4-5:
Low-grade disc bulge, bilateral facet joint arthropathy, minimal thecal sac flattening. No root impingement.
L5-S1:
Tiny posterior disc bulge. No neural impingement. Normal assessment of cauda equina nerve roots.
Conclusion:
Very mild lumbar spondylosis without neural impingement.”
Other assessments in the file
Dr Doig saw Ms Cook on behalf of Estia and reported on 10 January 2023. He noted that Ms Cook denied previous problems in her spine but said that radiology showed degenerative change including at multiple levels involving the facet joints. Dr Doig diagnosed an aggravation of a pre-existing degenerative lumbo-sacral spine as a result of the injury to her left foot as well as weight gain following the injury.
Dr Bodel assessed Ms Cook at the request of her solicitors and reported on 11 May 2023. He attributed the aggravation of an underlying condition in Ms Cook’s lumbar to an abnormal gait pattern. He diagnosed mechanical back ache associated with aggravation of underlying disc bulging shown on radiology. He assessed 7% WPI in respect of Ms Cook’s lumbar spine. He combined that figure with his assessments for Ms Cook’s left foot and scarring and deducted one-tenth from the total under s 323.
Dr Hyde Page saw Ms Cook at the request of Estia’s lawyers and reported on 11 September 2024. He also accepted that Ms Cook suffered a consequential condition in her lumbar spine due to her altered gait. He assessed 7% WPI in respect of Ms Cook’s lumbar spine and deducted one-tenth under s 323.
Discussion
Ms Cook’s second submission dealing with incorrect application of “the Guidelines” can be briefly dealt with. The paragraph of AMA 5 on which Ms Cook relies is inconsistent with s 323 of the 1998 Act, the case law which has interpreted it and the SIRA Guidelines. Paragraph 1.6(b) of AMA 5 deals with “apportionment analysis” and relies on principles of causation not relevant under the New South Wales legislation. It requires that there be "documentation of a prior factor.” Ms Cook’s submissions stressed that there was no such documentation.
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…”
Section 323 does not require that a previous condition be documented, nor do the SIRA Guidelines.
The SIRA Guidelines provide in paragraph 1.1:
“The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) in most cases. Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.”
With respect to deductions for pre-existing conditions or injuries, the SIRA Guidelines provide in paragraphs 1.27 and 1.28:
“The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.
The fact that there are no scans in the file which predate the injury does not preclude a s 323 deduction if the requirements of the section are fulfilled. Paragraph 1.6 of the SIRA Guidelines required the Medical Assessor to take account of Ms Cook’s “relevant medical history and all available medical information” and paragraph 1.6(b) of those Guidelines reads:
“Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”
Judicial interpretation of s 323
In Vitaz v Westform (NSW) Pty Ltd[3] Basten JA, with whom the other members of the Court agreed, rejected the contention that if a worker did not suffer symptoms from a pre-existing condition and there was no rateable impairment before an injury, there would be no deduction under s 323. His Honour said:
“That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32]and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd[2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
[3] [2011] NSWCA 254 at [43].
In Ryder v Sundance Bakehouse (Ryder) Campbell J said:[4]
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment would not have been as great.”
[4] [2015] NSWSC 526 at [45].
Southwell v Qantas Airways Limited[5] concerned the extent of the deduction under s 323. Wright J considered Cole v Wenaline Pty Ltd and said:[6]
“Thus, it has been held, in cases such as Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 at [126] (Schmidt J) and Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 at [52] (Griffith AJ), that what must be determined under s 323 involves, at least three enquiries:
·Firstly, what the extent of the resulting impairment is.
·Secondly, whether the pre-existing condition contributed to the impairment.
·Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.
In light of the construction referred to above, however, the formulation of the second of these three enquiries may, in a case such as the present, misdirect consideration, if it were thought that all that had to be established was that the pre-existing condition was causally related in some way to subsequent workplace injury and the impairment suffered as a result of that injury, without any part or portion of that level of impairment being due to the pre-existing condition and not the injury.”
[5] [2024] NSWSC 497.
[6] At [50] –[51].
After quoting the passage from Ryder set out at [41] above, Wright J said:
“Applying that approach, Campbell J concluded at [47]-[48] that the Panel in that case fell into jurisdictional error by failing in the circumstances of that case to address, inter alia:
1. whether the injury suffered in the workplace injury ‘was worse because of the pre-existing [degenerative disc condition or] abnormality’; and
2. ‘the means by which the pre-existing abnormality in the disc as found by the Panel contributed causally to the level of impairment, as opposed to the occurrence of the injury’ (emphasis added).
This approach is consistent with what was said in Vitaz at [43], when it is understood that the reference to ‘permanent impairment’ in the principle stated by Basten JA was a shorthand reference to the ‘level of [permanent] impairment’ as referred to later in that same paragraph. In other words, the principle in that case was to the effect that, even if a pre-existing condition was asymptomatic before a workplace injury but some portion of the level of impairment after the workplace injury was due to the pre-existing condition and not the injury, a deduction was required under s 323.”
Application
The scans in the file were undertaken in 2022 and 2023. Ms Cook underwent surgery to her left foot in May 2022 and developed pain across her low back when she started to mobilise after that surgery. The scans showed multi-level degenerative changes in her lumbar spine.
The diagnoses of the condition in Ms Cook’s lumbar spine, from all of the doctors who have assessed her, is that her altered gait caused an aggravation of pre-existing degenerative change.
The report of the MRI scan shows facet joint arthropathy throughout Ms Cook’s lumbar spine. In the opinion of the medical members of this Panel, the degenerative changes observed in her spine are greater than would be seen in many people of her age. Inevitably, they contribute to the extent of permanent impairment Ms Cook suffers.
A younger person, who did not have such extensive degenerative change, may have been assessed in DRE category 1 or may not have suffered an impact on their activities of daily living.
The Medical Assessor reached that conclusion when he said that, in the absence of degenerative spondylosis, it is unlikely that Ms Cook’s altered gait would have led to the development of low back pain. It would have been better if he had explained his conclusion in a way that would have permitted Ms Cook to better understand his opinion, but there is no error in his conclusion.
The absence of pre-injury scans for comparison does not lead to the conclusion that there should be no deduction, as Ms Cook argued, but means that the presumption in s 323(2) should be applied. The Medical Assessor was correct to make a deduction of one-tenth.
For these reasons, we have determined that the MAC issued on 24 April 2025 should be confirmed.
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