Cordero v Sydney Children's Hospital House Limited (Ronald McDonald House)
[2023] NSWPICMP 554
•6 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cordero v Sydney Children's Hospital House Limited (Ronald McDonald House) [2023] NSWPICMP 554 |
| APPELLANT: | Claudia Lorena Cordero |
| RESPONDENT: | Sydney Children’s Hospital House Limited (Ronald McDonald House) |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Chris Oates |
| DATE OF DECISION: | 6 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker sustained injury to her right shoulder and elbow and lumbar spine in the course of her employment; Medical Assessor (MA) assessed 10% whole person impairment after making a deduction of one-tenth for pre-existing injury or condition of the lumbar spine; appellant worker submitted MA in error in making deduction; Panel satisfied pre-existing condition in lumbar spine was due to appellant’s employment with respondent; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 August 2023, Claudia Lorena Cordero (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr T Michael Long, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
14 July 2023.The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error
The Delegate is satisfied that, on the face of the application, at least one of the grounds 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 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 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, Ms Cordero, sustained injury to her right shoulder and elbow, and lumbar spine, deemed to have occurred on 18 July 2019, in the course of her employment with the respondent.
The matter was referred to Medical Assessor, Dr T Michael Long, on 5 June 2023, with the referral being amended on 27 June 2023 and 3 July 2023, for assessment of whole person impairment (WPI) of the right upper extremity (shoulder and elbow) and lumbar spine with a date of injury of 18 July 2019.
The Medical Assessor examined Ms Cordero on 29 June 2023 and assessed 10% WPI of the right upper extremity (shoulder and elbow) and lumbar spine, after deducting one-tenth of the assessment of the lumbar spine, pursuant to s 323 of the 1998 Act, as a result of injury on 18 July 2019.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
The appellant did not request that she be re-examined by a Medical Assessor who is a member of the Appeal Panel, but consented to such re-examination should it be required. She also consented to further assessment as an alternative to appeal, should it be considered appropriate.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a) For s 323 of the 1998 Act to apply, it is a pre-requisite that there is a pre-existing condition, and it was a contributing factor to the loss. The latter question required consideration of whether any proportion of the appellant’s permanent impairment was due to a pre-existing condition. A pre-existing condition that rendered her more vulnerable to subsequent injury cannot of itself result in a conclusion that it had contributed to an impairment that followed a later injury. The evidence must establish that such a contribution had actually occurred.[1]
(b) A deduction cannot be made without evidence identifying the pre-existing injury, condition or abnormality and establishing when it occurred.[2]
(c) The matter referred for assessment was for WPI of the right upper extremity (shoulder and elbow) and lumbar spine, with a deemed date of injury of 18 July 2019.
(d) The Medical Assessor misapprehended the nature of the injury subject to the assessment by conflating the evidence of some symptomatology and radiological investigation in 2013 with the occurrence of a separate injury at that time. This manifested in his express diagnosis of “…degenerative changes in the lumbar spine developing through the nature and conditions of her work in 2013…” The evidence points to a work-related disease process in the lumbar spine that progressed throughout the course of her employment, which commenced in 2001.
(e) The Medical Assessor did not engage in the process of reasoning mandated by the proper application of s 323 of the 1998 Act. There was no “previous injury of the lumbar spine in 2013”, in the sense that the date of injury is determined pursuant to the Workers Compensation Act 1987 (the 1987 Act). The preponderance of evidence points to a disease process that was occurring throughout the course of employment, albeit that it was first medically documented in 2013.
(f) The Medical Assessor did not explain how a pre-existing condition was a contributing factor to the loss. He did not refer to evidence of the conditions of the appellant’s employment since 2001 and erred in concluding “there is no clear evidence that the symptoms at that time were work related”. The evidence establishes a relationship between the nature and conditions of her employment and the injury to her lumbar spine.
(g) The Medical Assessor did not explain why the extent of the deduction was difficult or costly to determine.
(h) Even if there was a pre-existing condition that rendered the appellant more vulnerable to subsequent injury, this cannot of itself result in a conclusion that it had contributed to an impairment that followed a later injury. The evidence must establish that such a contribution actually occurred. It is not clear on the MAC and the evidence to which it refers that such a contribution has actually occurred.
(i) If the facts are applied in accordance with proper legal principles, there is no deduction pursuant to s 323 of the 1998 Act.
(j) The MAC should be revoked and a new one issued.
[1] Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole).
[2] Liu v Buckley Group Pty Ltd (in liq) t/as Buckley Group Pty Ltd (Deregistered) [2021] NSWWCCMA 25 (Liu).
The respondent’s submissions included the following:
(a) The appellant suffered a pre-existing degenerative condition of the lumbar spine as demonstrated in the radiology undertaken in 2013.
(b) The appellant acknowledged that she did not make a workers compensation claim at this time and the respondent agreed with the Medical Assessor that there was no clear evidence that the symptoms at the time were work related.
(c) The appellant suffered an aggravation of her back injury as a result of the fall in October 2020.
(d) This case can be distinguished from Liu. The Approved Medical Specialist in that case did not refer to any evidence supporting a pre-existing degenerative condition in the shoulders. There was no imaging or other evidence of symptoms before the employment with the respondent.
(e) In this matter, there is evidence of a pre-existing condition by way of the appellant’s statement that the pain in the lumbar spine began in 2013. She reported symptoms in 2013 and was referred for CT scan that showed degenerative changes at L4/5 and L5/S1.
(f) A deduction can be made even though the worker was asymptomatic prior to injury, referring to Vitaz v Westform (NSW) Pty Ltd.[3] The Medical Assessor was not in error in making a deduction pursuant to s 323 of the 1998 Act as there was evidence of pre-existing injury or abnormality as identified by the investigations in 2013.
(g) The Medical Assessor had engaged in the process of reasoning mandated by the proper application of s 323 of the 1998 Act. He noted the reports of low back pain in 2013 and the radiology undertaken, which showed degenerative changes in the lumbar spine with right sided leg pain, consistent with reports to Dr Samari.
(h) The Medical Assessor concluded that there was no evidence that this was a work-related injury in 2013. He had correctly applied s 323 of the 1998 Act.
[3] [2011] NSWCA 254.
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[4] 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.
[4] [2006] NSWCA 284.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW[5] .The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
[5] [2008] NSWCA 116.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[6] Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
Medical Assessment Certificate
[6] [2013] SC 1792.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, below and in the body of this decision.
Under “History relating to the injury”, the Medical Assessor wrote:
“The worker through the course of her employment noted increasing pain in her right shoulder and right arm with sensory changes involving the entire right hand. She was provided with lighter work. Following a two month holiday overseas in February/March 2020 and reporting for work again in April 2020, she was advised that further light work was not available.
Right carpal tunnel syndrome was diagnosed and on 17 October 2020, operation in the form of decompression of the right carpal tunnel removed the sensory changes in the right hand and was considered successful.
On 6 November 2020, as she was showering and endeavouring to keep the dressings associated with the right carpal tunnel release dry, she slipped in the shower and noted a ‘popping’ sensation in her lumbar back with pain radiating down the posterior aspect of the right leg.
On 11 November 2020, an MRI scan of the lumbosacral spine was performed, reported by Dr N Masoudi and indicated:
‘Comment: There is L5/S1 discovertebral degenerative change with a moderate posterior disc bulge which may irritate the S1 nerve roots in the lateral recess. There is no spinal canal or neural foraminal stenosis’.
A further MRI scan of the lumbar spine was performed on 6 June 2021 and reported by Dr A Mayat and indicated:
‘Impression: Lumbar spondylitic change noted as described above. The L5-S1 disc contacts the S1 nerve roots in the lateral recesses of the spinal canal and most likely accounts for the radicular symptoms…’
Ms Cordero had continuing low lumbar back pain which radiated into the posterior right leg. A perineural injection undertaken early in 2021 had effectively relieved the pain in her leg, but she continued to have pain in her back. She had ongoing painful restriction of movement of the right shoulder and pain on the lateral aspect of the right elbow.” (Emphasis in original).
Under “Details of any previous or substantial accidents, injuries or condition” the Medical Assessor wrote:
“Initially, Ms Cordero denied any previous symptoms, particularly related to her lumbar back, but I note her amended statement, dated 14 April 2023, in which under Item 7, she indicated:
‘…in 2013, I began to experience back pain and was referred for a lumbar spine scan which revealed a disc protrusion. I underwent an injection to my back, which did not have any lasting benefit. I took approximately one month off work, without pay to assist in my recovery. I did not make a claim for worker’s compensation this time as I wanted to continue working and felt that I had no other option financially. I pride myself on being a hard worker and I wanted to do my best to keep working.’ (Emphasis in original).
Under Item 8 she indicated:
‘…the pain in my back never really settled. As time went on, the pain in my lower back became more intense. I had difficulty lifting the linen and rubbish bags at work. It became harder for me to bend down to pick up items on the floor and I struggled to crouch or kneel. I had trouble cleaning the oven, mopping the floors and making beds. I was provided limited help by my employer, which only made my job more difficult. I would go home at the end of each day with an aching back.’ (Emphasis in original).
Under Item 9 she indicated:
‘…I continued to work and in late 2018, I began to experience pain in my bilateral elbows, shoulders and neck. I lodged a workers’ compensation claim for these specific injuries in August of 2019…’ (Emphasis in original).
General practitioner records dated 2 March 2013, Dr Mehdi Samari, indicated:
‘…right sided leg pain start from right buttock…’ (Emphasis in original).
A CT scan was ordered and this was undertaken on 7 March 2013 and reported by Dr H Ho, who indicated:
‘…at L5-S1 there is a rather prominent disc protrusion which may have mild impression on the thecal sac and probably touching the left-sided descending S1 nerve root. No obvious compression is seen on the exiting right-sided nerve roots…’” (Emphasis in original).
Under “Work history including previous work history if relevant”, the Medical Assessor wrote:
“Ms Cordero migrated from Chile in 1987 when she was 17 years of age. She was already married and continues to live with her husband. She had been employed by Sydney Children’s Hospital House Ltd [sic] as a cleaner for 10 years, although following increasing back symptoms from 2013, she was provided with lighter duties. Because of the symptoms in her back, right shoulder and right arm, she made a workers’ compensation claim in August 2019. She was advised that no further suitable light work was available. Recently, she has commenced work accompanying disabled children for two hours in the morning and two hours in the afternoon. She indicates that she undertakes no physical activity and mothers and teachers apply the seatbelts to the children.”
Under “Findings on Physical Examination”, the Medical Assessor wrote:
“Ms Cordero appeared to move without difficulty and there was no limp. She complained of discomfort when removing some of her upper body outer clothing.
…
Lumbar Spine: Restriction of movement with dysmetria.
Flexion 70% of normal.
Extension 50% of normal associated with pain.
Lateral angulation right and left was each 80% of normal.
She had non-verifiable radicular complaints post right leg extending to
the calf.
Muscle guarding was noted, particularly at the limits of her movement,
when she complained of pain.
Neurological examination of both lower limbs revealed no specific
muscular wasting or weakness.
Tenderness to percussion in the lower lumbar spine.
The following reflexes were recorded:
Reflexes
Right
Left
Adductors
+
+
Knee jerks
+
+
Ankle jerks
+
+
Sensation: There was no sensory abnormality in the right or left lower extremities.
Right straight leg raising was 50° and she noted ‘tightness’ in the posterior right thigh.
…” (Emphasis in original).
Under “Summary”, the Medical Assessor wrote:
“The diagnosis is that of degenerative changes in the lumbar spine developing through the nature and conditions of her work in 2013, but thereafter aggravated by her work and then by an incident whilst showering on 6 November 2022 [sic]; with evidence of radiculopathy in the right leg. The radiculopathy has now resolved and she has non-verifiable radicular complaints affecting her right leg.
Aggravation of degenerative changes in the right shoulder with ongoing painful restriction of movement.
Mainly resolved probable lateral epicondylitis right elbow.
Previous right carpal tunnel syndrome relieved by surgical decompression on 17 October 2020.
Anxiety and depression.”
Under “consistency of presentation” the Medical Assessor wrote:
“There were no inconsistencies throughout the consultation, except she had overlooked her prior back injury and symptoms which were probably related to the nature and conditions of her work in 2013.”
Under “Evaluation of permanent impairment”, the Medical Assessor wrote:
“…
e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes, lumbar spine. Probable previous injury related to the nature and conditions of her work in 2013.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
Aggravation of her lumbar spinal injury when she slipped in a shower on 6 November 2020 when trying to keep her right carpal tunnel release operation site dry. The operation had been undertaken on 17 October 2020.”
Under “The facts on which the assessment is based” the Medical Assessor wrote:
“The history provided, together with the documents, particularly those related to the previous injury to her lumbar back with subsequent symptoms in 2013.
Ongoing pain and painful restriction of movement of the right shoulder.
Tenderness of the lumbar spine with dysmetria and non-verifiable radiculopathy in the right leg.”
Under “reasons for assessment”, the Medical Assessor wrote:
“a. My opinion and assessment of whole person impairment is 10% Whole Person Impairment.
In making that assessment I have taken account of the following matters:
Right shoulder impairment is determined by restriction of movement in the right shoulder, compared with the unrestricted movement in the left shoulder. There was no restriction of movement in the right elbow and no other significant abnormal findings.
Lumbar spine with tenderness, dysmetria and non-verifiable radicular symptoms.
b. An explanation of my calculations (if applicable)
Impairment is made by reference to:
NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition, reissued 1 March 2021:
Chapter 2: Upper Extremity; Pages 10-12
Chapter 4: The Spine; Pages 24-30
Rounding: Page 6; 1.26
Pre-existing: Page 6; 1.27 and 1.28
Radiculopathy: Page 27; 4.27
Activities of daily living (ADLs): Page 27, 4.33, 4.34, 4.35 and 4.36
and
AMA 5th Edition
Right shoulder
…
Impairment: 7% right upper extremity impairment converts to 4% Whole Person Impairment (WPI), Page 439; Table 16-3.
Right Elbow…
Impairment: 0% Whole Person Impairment (WPI)
Lumbar Spine: Table 15-3; Page 384; DRE Lumbar Category II, dysmetria, non-verifiable radiculopathy. 5%-8% WPI.
Impairment is 5% plus 2% WPI for impairment of activities of daily living (ADLs). Can manage personal care, but is restricted with usual household tasks and walking. Guidelines Page 27-28; 4.35.
Impairment: 7% Whole Person Impairment (WPI).
Worksheet/actual calculations attached
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
22 April 2022, Dr James Bodel, Orthopaedic Surgeon report, in which he determined an overall impairment of 19% Whole Person Impairment. This included an impairment to the cervical spine of 7% WPI, lumbar spine 5% WPI and because of restriction in movement of the right shoulder, he determined a 10% upper extremity impairment and because of restriction of movement in the right elbow, 5% upper extremity impairment, which when combined resulted in a 9% [sic] Whole Person Impairment. In the present assessment, cervical spine was not included and there was no rateable impairment, right elbow where movement was unrestricted and symmetrical with movement of the left elbow.
Associate Professor Paul Miniter, in a series of reports dated 29 June 2021, 11 December 2021, 17 January 2022, 14 November 2022, 23 March 2023, in which he made a consistent and clear argument that the worker had not sustained any work injury and an impairment was not determined. Although noting these reasons, in my opinion, the symptoms in her back and right shoulder were caused or aggravated by the nature and conditions of her work.
d. I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.”
Under “deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, the Medical Assessor wrote:
“a. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)With regard to the previous injury of the lumbar spine in 2013 and ongoing symptoms, a workers’ compensation claim was not made at that stage and there is no clear evidence that the symptoms at that time were work related. She continued to have back pain aggravated by her work from that date, leading up to the stated work injury of 18 July 2019. Her subsequent back injury aggravated the pre-existing symptomatic degenerative changes in her lumbar spine. The pre-existing changes in her lumbar spine contribute to the impairment caused by the subsequent injury to her back while she was showering.
b. The extent of the deduction is difficult or costly to determine so in applying the provisions of s. 323(2) I assess the deductible proportion as one tenth – applied to the lumbar spine.”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence.
The Appeal Panel has referred above to the parties’ submissions.
Deduction for pre-existing condition or injury
Section 323 of the 1998 Act provides:
“(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.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 … The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 The reason for this statutory approach can readily be seen. It is entirely possible that a person could suffer such a catastrophic injury, that the presence or absence of any previous injury, pre-existing condition or abnormality, would make no difference at all to the impairment which resulted from the later injury. An injury which results in death, is an obvious example, albeit not one which would arise for consideration under this section. A more relevant example, in this case, is a second injury which severed the spine. Or, as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case. An assumption of the kind here made, namely that surgery to the lumbar spine, irrespective of outcome, must always result in a level of residual impairment which contributes to the level of impairment which follows a later injury, has no role to play in that assessment. What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.”
The Appeal Panel reviewed the evidence in this matter.
In a statement dated 30 January 2023, Ms Cordero said:
“…
2. I commenced my employment in November 2001 as a cleaner and housekeeper at [the respondent].
3. I worked as a full-time housekeeper and cleaner for a very large property. There was one assistant and one cleaner allocated to do all the work.
4. I was responsible for cleaning the entire house, including all bedrooms, offices and apartments. I was also responsible for all laundry tasks and cleaning the kitchen. The work was laborious and repetitive in nature. I spent a lot of the day on my feet.
5. In 2008, following a change in management, the part time worker who assisted me was removed. I was given limited assistance from volunteers up until 2018.
6. In mid to late 2018 I began to experience pain in my bilateral hands, elbows, shoulders and neck as a result of the repetitive nature and conditions of my employment. My body would ache at the end of every day. I often experienced tingles and numbness in both my hands, but it was particularly bad in my right hand. It became hard for me to grip and lift things.
7. I tried to work despite the pain. I did not want to make a fuss because I did not want to lose my job.
8. The pain worsened and finally got to a point where I could no longer tolerate it.
9. On 18 July 2019 the pain was unbearable, and I reported the matter to my supervisor, Rachel, and an incident report was completed.
…
11. I lodged a workers compensation claim for my right elbow and right wrist on 29 August 2019.
12. My doctor told me I should be on light duties and put restrictions in my certificate of capacity. My employer did not make any light duties available. Despite being aware of my restrictions, my employer had me keep doing the same work without support.
13. With the heavy and fast-paced work, my condition only continued to worsen and Dr Abdallah referred me to a specialist.
14. I was diagnosed with right carpal tunnel syndrome and numbness and tingling in my thumb, index and middle finger.
15. I attempted to return to work and was employed for approximately 3 months in a part time role. I had an excessive amount of work to complete during these days and complained to my supervisor approximately 2-3 times a week about the workload.
…
17. I had carpal tunnel release surgery done performed by Dr Mohamad Mourad on 16 October 2020.
18. This helped, but my hand was still weak and stiff. Much of the focus was on my hand because it was causing me a lot of trouble but my left hand, left elbow, both shoulders and neck also troubled me. My elbows had a strange sensation running over them and both of my shoulders and neck were stiff and sore. It became hard for me to move around like I did before my injuries.
19. I notified the insurer of this injury and Dr Abdallah updated my certificate of capacity to reflect this injury. My case manager denied that my back and right leg injuries are related to my employment.
20. On 6 November 2020, a few weeks after my surgery I was showering. I was trying to avoid getting my carpal tunnel release surgical site wet…I lost my footing, slipped, twisted and fell over, injuring my back and right knee/leg…
21. In around February 2002 I recall that I was pushing a trolley at work which was approximately 200 kilograms and was full of clean linen. I took around one month off work but did not make a formal claim as I was a casual worker and I was worried that if I made a claim they would not make my role permanent…I was able to return to my pre-injury role. I did not have any restrictions and worked my normal hours and duties.
22. In the years following, I experienced some aching which I attributed to the heavy work I was doing with Ronald McDonald House since 2001. I did not put too much focus on the earlier pain in my back as I was able to keep doing my job. I thought the occasional aching back after heavy work was common. After the incident in the shower, the pain in my back was very sharp and has not settled down a great deal since.”
In a supplementary statement dated 14 April 2023, Ms Cordero stated:
“…
6. As outlined in my initial statement I was responsible for cleaning the entire house, including all bedrooms, offices, and apartments. I also completed laundry duties, cleaned public areas and carparks and unloaded the trucks with donations. I occasionally was responsible for building furniture. This role was very physically demanding. I was constantly using my hands, arms, shoulders and back to lift cleaning supplies and carry out my duties.
7. In 2013, I began to experience back pain and was referred for a lumbar spine scan which revealed a disc protrusion. I underwent an injection to my back, which did not have any lasting benefit. I took approximately one month off work, without pay to assist in my recovery. I did not make a claim for workers compensation at this time as I wanted to continue working and felt that I had no other option financially. I pride myself on being a hard worker and I wanted to do my best to keep working.
8. The pain in my back never really settled. As time went on, the pain in my lower back became more intense. I had difficulty lifting the linen and rubbish bags at work. It became harder for me [to] bend down to pick up items on the floor and I struggled to crouch or kneel, I had trouble cleaning the oven, mopping the floors and making beds. I was provided limited help by my employer which only made my job more difficult. I would go home at the end of each day with an aching back.
9. I continued to work and in late 2018, I began to experience pain in my bilateral elbows, shoulders and neck. I lodged a workers compensation claim for these specific injuries in August of 2019.
…
12. The incident in the shower caused me even more pain that [sic: than] what I already had in my lower back. I have difficulty sitting and standing for too long. I am also limited in walking for long distances and I try to avoid taking stairs where possible.”
In a report dated 22 April 2022, Dr James Bodel recorded having found on examination tenderness and guarding at the lumbosacral junction. The appellant reached forward in flexion with her hands to her knees. There was backache at that point, and also on extension, with a restricted range of lateral bending to the left. Straight leg raising was 70° on each side, limited by hamstring tightness. There was no wasting in either thigh or calf.
Dr Bodel opined that the appellant’s lower back had been aggravated by the nature of her work over a period of 10 years. This was a “nature and conditions claim with aggravation, acceleration, exacerbation and deterioration occurring over time in relation to the areas of injury as listed.” The appellant had aggravated lumbosacral degenerative disc disease.
Dr Bodel wrote:
“This patient does have some degenerative disc disease in the lumbosacral region which is longstanding.
She has done this work for more than 10 years and she came to the work without any impairment in this region.
The nature and conditions of her work over time and the specific event after the fall in the shower has caused the aggravation, acceleration, exacerbation and deterioration of that disease process.”
Dr Bodel assessed the appellant with 7% WPI as a result of injury to her cervical spine, which assessment included 2% for moderate compromise of ADLs.
Dr Bodel wrote:
“She also has a DRE Lumbar Category II level of assessable impairment in accordance with the description in Table 15-3 on Page 384 of AMA5. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment. There is no additional loading for interference in Activities of Daily Living for this separate spinal segment for the same date of injury.”
Dr Bodel assessed 9% Whole Person Impairment as a result of injury to the appellant’s right upper extremity (shoulder and elbow). His combined assessment was therefore 9% + 7% + 5%. Using the Combined Values Chart on p 604 of AMA 5, the total was 19% WPI.
Dr Bodel wrote:
“There is no indication clinically of any pre-existing abnormality or condition and there is no basis for a deduction for pre-existing impairment in this case.”
In a report dated 9 August 2022, Dr Balsam Darwish, treating neurosurgeon, wrote:
“I reviewed Claudia on 22 March 2021…she mentioned that in October 2020, she had carpal tunnel surgery. After the surgery, she was showering with her arm elevated…She felt her back click and she developed severe pain down the right leg…by the time I reviewed her, the pain had improved by 90%.
MRI scan of the lumbosacral spine reported right L5/S1 disc protrusion compressing the right S1 nerve root. She had right S1 perineural cortisone injection on 20 February 2021 and for the pain, she was on Lyrica 75mg twice a day and Panadol Osteo.”
Dr Darwish reported that at that time, on examination, the appellant’s symptoms were in keeping with a resolving right S1 radiculopathy.
Dr Darwish had reviewed the appellant on 17 May 2021, when she was advised to have a follow-up MRI scan of the lumbosacral spine. He referred to the MRI scan by Dr Mayat, discussed above.
Dr Darwish said the following:
“The radiologically demonstrated changes in the lumbar spine, in particular the Modec [sic: Modic] Type 2 endplate changes and disc bulge are most likely longstanding. I believe that her employment with Ronald McDonald House as a housekeeper/cleaner over many years, which required heavy lifting, is a major contributing factor to the development of degenerative changes in the lumbar spine. The injury during showering on 6 November 2020 was an aggravating factor to a pre-existing condition and not the cause of the disc protrusion.
I believe that the line of her employment as a housekeeper/cleaner was a major contributing factor to the development of the changes at L5/S1 level and subsequent development of the right S1 radiculopathy”; and
“As above, the radiologically demonstrated changes in the lumbar spine are not caused by the injury on 6 November 2020 and are longstanding. I believe that her employment as a housekeeper/cleaner for many years, which involves heavy lifting, is a substantial contributing factor to the injury to the L5-S1 disc.”
In a report dated 29 June 2021, A/Prof Paul Miniter said:
“[The appellant] denies any previous history of lower back pain though…there is clear evidence of her having issues with her back in 2013.
There was no injury leading to this lady’s presentation which was of bilateral discomfort at the root of the neck associated with symptoms of carpal tunnel syndrome…”
Associate Professor Miniter referred to MRI scan of the appellant’s lumbar spine, which suggested an L5/S1 disc abnormality. He had seen the scan, which demonstrated a longstanding L5/S1 disc prominence with some compression of the right-sided S1 nerve root.
Associate Professor Miniter wrote:
“…in front of me on her login, was a CT scan of the lumbar spine taken in 2013 and the findings on that scan which I have seen are those of a ‘rather prominent disc protrusion at the L5/S1 level.’ It was thought to be touching the left-sided descending S1 nerve root.”
Associate Professor Miniter found:
“Examination of the back revealed discomfort in a generalised sense but she did have a slight restriction in straight leg raising on the right hand side. She describes pain radiating from the right buttock down the right leg. It goes beyond the knee. There is a depression of both ankle jerks but the knee jerks are present and symmetrical.”
Associate Professor Miniter did not believe the matter was work-related. The lumbar spine pathology was “clearly longstanding and one is surprised that she would deny the presence of previous back pathology when there is clear evidence of a scan taken in 2013 for back pain and possibly leg pain.”
Associate Professor Miniter found marked inconsistencies between the appellant’s symptoms and her level of incapacity. “However, she does have genuine pathology in the lumbar spine and there is evidence of radiculopathy clinically”.
In a supplementary report dated 11 December 2021, Associate Professor Miniter recorded a history that the appellant had had two injections into her lumbar spine for the management of leg pain. She had no leg pain at all, only back pain. He opined that the issues with her lumbar spine were clearly longstanding and unrelated to her current presentation.
“In relation to her lower back, if she has had an episode of lower back discomfort in her own home, and with a clear history of previous problems, one would regard this as no more than an aggravation of previous pathology. I refer you to the fact that she has also had an up to date MRI scan on 11 November 2020 not convincingly demonstrating nerve compression and simply showing that there is degenerate pathology at the L5/S1 level. There is no major evidence of canal stenosis or lateral recess stenosis.”
In a report dated 17 January 2022, Associate Professor Miniter again opined that the appellant’s lumbar spine issues were clearly longstanding and unrelated to her current presentation. There was no diagnosis that explained her presentation, except by way of lumbo-sacral change and right-sided sciatica, which had resolved.
In a report dated 14 November 2022, Associate Professor Miniter wrote that he could see no evidence of an injury associated with the appellant’s employment. She did not require any further treatment.
Associate Professor Miniter noted Dr Bodel’s assessment, but he was “simply unable to identify either an injury or an explanation for the inclusion of such extensive body parts”. He did not believe the nature and conditions of employment were responsible for the appellant’s carpal tunnel syndrome, or the complaints in her back, right shoulder, or neck.
The clinical records of Wetherill Park Medical Centre include:
(a) On 2 March 2013, Dr Mehdi Samari, general practitioner (GP) noted: “R sided leg pain start from R buttock.” A CT scan of the lumbar spine was requested. “(LLL radiculopathy)”.
(b) On 9 March 2013, Dr Samari noted: “CT noted. Still gets leg pain.”
(c) The next entry concerning the back was on 3 November 2020, when Dr Mohammed Abdallah, GP, noted: “Was in the shower 5 days ago. Was trying to wash herself with the left hand…leaning on the wall with the right developed right sided back pain radiating to the right lower limb and buttock”. The appellant was limping on the right lower limb and tender on the lateral aspect of the right calf laterally. The diagnosis was “back pain radiating to buttock”. MRI of the lumbosacral region was requested – “Lower back pain radiating to the right leg, following a twisting injury.”
(d) On 10 November 2020, Dr Abdallah noted “Still ongoing right knee pain on the outer aspect. Now limping. No pain in the back.”
(e) On 30 November 2020, Dr Abdallah noted “Right lower limb pain ongoing. Mild improvement with Lyrica.” The diagnosis and reason for visit were recorded as “back pain.”
(f) On 6 January 2021, Dr Abdallah noted “pain on right lower limb is improving but still feeling pain along the right side of the body when lifting upper limb. Lumbar spine flexion to 60 degrees then pain on right lower back radiating to right lower limb…” The reason for visit was recorded as back pain and shoulder pain.
(g) On 11 February 2021, Dr Abdallah noted “Sciatica with lower back pain and radiation to right lower limb”, and “steroid inj (topical into Right S1 level).”
(h) On 31 May 2021, Dr Abdallah noted: “lower back pain. Receiving EP last week. Saw Dr Sheridan. Re back pain sent for another MRI lower back for lumbar disc prolapse. Awaiting results.”
(i) On 16 June 2021, Dr Manlio Fabio Felix Ruiz, GP, recorded “Low back pain – started in Nov last year. Feb – had injection – not much improvement. Seeing surgeon.”
(j) On 23 June 2021, Dr Abdallah noted: “Lower back pain with L5/S1 disc bulge with lateral encroachment. Was in hospital recently. Discharged on targin and panadeine forte pm”. The diagnosis and reason for visit were recorded as back pain radiating to buttock.
(k) On 2 July 2021, Dr Abdallah noted: “Still has lower back pain with right sided lower limb radiation. Unable to sit or walk for long periods.”
The appellant submitted that the evidence pointed to a work-related disease process in the lumbar spine that progressed throughout the course of her employment. The Medical Assessor did not explain how a pre-existing condition was a contributing factor to the loss. He erred in concluding that there was no clear evidence that the appellant’s symptoms in 2013 were work related.
The Medical Assessor found that the appellant’s subsequent back injury aggravated the pre-existing symptomatic degenerative changes in her lumbar spine; and the pre-existing changes in her lumbar spine contributed to the impairment caused by the subsequent injury to her back while she was showering.
Ms Cordero complained of symptoms in her lumbar spine, for which she sought treatment, in 2013. She attributed the symptoms to the work she was performing for the respondent but made no claim at that time. A CT scan showed a disc protrusion at L5/S1.
There is no evidence in the appellant’s GPs’ records that she sought treatment for her lumbar spine between 2013 and 2020.
Drs Bodel and Darwish agreed that the work the appellant performed over the course of her employment with the respondent had aggravated the condition of her lumbar spine. Dr Bodel described it as a “nature and conditions claim.”
The Medical Assessor’s conclusions as to whether the condition of the appellant’s lumbar spine in 2013 was related to her work are somewhat contradictory.
The Medical Assessor diagnosed degenerative changes in the lumbar spine, developing through the nature and conditions of Ms Cordero’s work in 2013, thereafter aggravated by her work and then by the incident on 6 November 2020.
The Medical Assessor also referred to “probable previous injury [to the lumbar spine] related to the nature and conditions of her work in 2013”. He then opined that there was no clear evidence that the symptoms in 2013 were work related.
The Medical Assessor has not explained how, in light of the above, he came to the conclusion that there was no clear evidence that Ms Cordero’s symptoms in 2013 were work related. There is evidence from both Dr Bodel and Dr Darwish, as well as from the appellant.
The Appeal Panel considered that the appellant did have a pre-existing condition in her lumbar spine, but it is satisfied on the evidence that it was related to the nature and conditions of her employment with the respondent. It is not definitive that the appellant did not make a claim at that time.
To the extent that there was any causal factor or contribution to the appellant’s impairment from her pre-existing condition, it was related to her work for the respondent.
The Appeal Panel concluded that the Medical Assessor erred in finding there was a relevant pre-existing condition that warranted a deduction in the assessment of impairment, pursuant to s 323 of the 1998 Act.
The Medical Assessor made no deduction from the assessment of impairment of the appellant’s right upper extremity. The assessment, without the deduction for impairment of the lumbar spine, is 11%.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 July 2023 should be revoked and a new MAC issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1181/23 |
Applicant: | Claudia Lorena Cordero |
Respondent: | Sydney Children’s Hospital House Limited (Ronald McDonald House) |
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 T Michael Long and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Right upper extremity (right shoulder, right elbow) | 18/7/19 | Chapter 2; Pages 10-12 and | Pages 476, 477 and 479; Figures 16-40, 16-43 and 16-46 | 4% | Nil | 4% |
| 2.Lumbar spine | 18/7/19 | Chapter 4; Pages 24-30 | Table 15-3; Page 384 | 7% | Nil | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
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