Cosgrove v Coles Supermarkets Australia Pty Ltd
[2022] NSWPICMP 50
•16 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cosgrove v Coles Supermarkets Australia Pty Ltd [2022] NSWPICMP 50 |
| APPELLANT: | Sandra Marie Cosgrove |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr David Crocker Dr J Brian Stephenson |
| DATE OF DECISION: | 16 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant challenged the assessment for the left knee and lumbar spine and the section 323 deduction of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Panel found no error with the knee assessment but revoked the lumbar spine assessment because the evidence supported DRE II; section 323 deduction of the 1998 Act consistent with the evidence and confirmed; Held- Medical Assessment Certificate revoked |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 November 2021 Sandra Marie Cosgrove (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Murray Hyde Page, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 24 November 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, no specific reasons were provided as to why this was necessary, and in any event, we consider that we have sufficient information before us to enable us to determine this appeal.
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.
In summary, the appellant submits that the MA erred in a number of respects in his assessment of the appellant’s lumbar spine and left knee, details of which we will consider shortly.
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the lumbar spine and a consequential injury to the left lower extremity (knee) resulting from a deemed date of injury of 19 June 2015.
The MA obtained the following history:
“Sandra Cosgrove states that she first started to develop some pain in her lower back with some stiffness in about March 2015. She attributes this to her work at the check-out at Coles and having to twist, turn and lift continuously. She reported this to the management.
She first saw her GP about her back trouble at the end of May 2015. She was actually seen on that occasion for flu-like symptoms but mentioned that she was having some trouble with her lower back, with some pain into her right hip and leg. Her GP therefore organised for her to have a CT scan of the lumbar spine and when she went back and saw her on the 12 June 2015, was told the scan showed some disc bulges.
With these ongoing symptoms, she had her work activity changed. She stopped working on the check-out and instead, worked in the supervisor box and did more supervisory work. She did more customer service. She continued working the hours that she had been doing previously, between 12 and 30 hours a week.
She started having physiotherapy and this continued. She was taking strong pain medication, in the form of Lyrica and Tramadol.
Over the next couple of years, she had ongoing back symptoms, but she also developed other complaints. She had her gall bladder removed at the end of 2016 and had to have two months off work.
She started to develop problems in both her shoulders, particularly the left shoulder and needed treatment including injections.
Through this period of time, other than having the physiotherapy for her lower back and pain medication, she had no other treatment.
She started to develop pain in her left knee in 2016. She attributes this to the way she was walking because of her ongoing back complaint. An x-ray showed she had severe osteoarthritis in the left knee, and she went on the waiting list at Grafton Base Hospital for a left total knee replacement. This was eventually done in November 2017.
Matters came to a head in May 2017, and it appears that it was a combination of all her symptoms that led to her resigning from Coles. She actually saw a GP in May 2017 because of the painful shoulders, where she was having injections, and this was probably her major complaint at that stage that led to her resigning from Coles. She had remained on restricted work duties right up until the time she left.
Subsequently, she has not worked again. She has led a quieter lifestyle and did state that her low back symptoms had shown some improvement. She was eventually weaned off her narcotic pain medication.”
After setting out details of Ms Cosgrove’s present treatment, the MA then noted present symptoms as follows:
“She still gets her low back pain daily. The pain radiates into her buttocks. It can radiate down the back of her legs to the knees. She rarely gets any pain below the knees. The pain can be aggravated by sitting for long periods.
She can walk satisfactorily for a kilometre before she gets increased low back pain. The walking does not appear to affect her left knee. She does have a restriction of walking due to osteoarthritis in her right knee.
Going up and down stairs can be difficult because of the osteoarthritis in the right knee and the back pain. It did not appear to be affected by her left knee. She can get some generalised discomfort in the left knee, and this can be increased with change in the weather, which affects all her other joints as well. Overall, she is please with her left total knee replacement.”
In setting out “Details of any previous or subsequent accidents, injuries or conditions” the MA said:
“I have already noted that she had to have her gall bladder out and was off work for two months at the end of 2016. She had a lot of trouble with her shoulders and was investigated for rotator cuff tendonitis. She had injections in the left shoulder, and it appears that one of the major reasons that she stopped work in May 2017 was because of her shoulders. The shoulders being a major problem when she resigned is noted by the GP.
She has developed progressive osteoarthritis in her right knee and is now on the waiting list at the Grafton Base Hospital to have a right total knee replacement. She has been on the waiting list for eight months.
She has also been on the waiting list at Grafton Base Hospital to have bilateral rotator cuff surgery and has been on this waiting list for 10 months…”
After setting out details of Ms Cosgrove’s work history, the MA then looked at the effect of her injuries on her activities of daily living (ADL’s) stating:
“She has no particular sports, hobbies or interests.
She is able to do all her personal care satisfactorily. She has some restriction in heavier domestic tasks, as bending and lifting aggravates her back pain. She avoids outdoor activity that will aggravate her back and can only sit in the car driving for no more than an hour.”
The MA then set out his findings on physical examination as follows:
“On today’s assessment I noted that she was moving very comfortably and freely throughout. She walked 30 metres to the assessment room comfortably without a limp. She sat very comfortably throughout the assessment and appeared to be in no pain or discomfort during the examination.
While standing, she was able to flex forward to reach her mid shin level and came back to full extension comfortably. She had normal rotation and tilt of the spine. There was no evidence of any muscle guarding or dysmetria. She complained of no radicular symptoms and stated that she only had pain radiating into her buttocks and it could on occasions go to her knees but rarely below the knee. She had no tenderness in the spine.
She was able to get on and off the examination couch comfortably. While lying on the examination couch she had normal straight leg raise and there were no neurological changes in her lower limbs with normal power, sensation and reflexes.
On specifically assessing her left knee, she has strong quadriceps power, and the circumference of the left thigh equals the right. She had a normally aligned knee and there was no collateral or anteroposterior increased movement. She had a range of movement of 0° to 120° flexion in each knee. The surgical scar over her left knee is well healed and barely visible. She had no specific swelling, pain or tenderness in the left TKR.
Overall, today’s examination indicates some discomfort in the lower lumbar spine but basically normal examination. She has no evidence of any radiculopathy in the lower limbs and no radicular symptoms. She appears to have had a very good result from her left total knee replacement with no evidence of any significant problem whatsoever.”
The MA then documented the radiological material he had before him as follows:
“A CT scan of the lumbar spine on the 9 June 2015 indicated disc bulges in the lower lumbar spine associated with mild bilateral facet joint arthritis. There was no evidence of any central or lateral spinal stenosis. Overall, it appears that the changes of degenerative disc disease were reasonably mild, and age related.
An x-ray of the left knee on the 12 December 2016 indicated severe joint space narrowing in the lateral compartment due to osteoarthritis…”
The MA then summarised the injuries and diagnoses as follows:
“It appears that Sandra Cosgrove, who is 63 years of age, developed persistent low back pain that initially came on in March 2015 while she was working on the check-out at Coles. Despite being given alternate duties, her back pain persisted over the next couple of years.
However, she developed other significant problems during this time. She had her gall bladder removed at the end of 2016 and had two months off work. She developed significant problems with her knees, where she was found to have osteoarthritis and went on the waiting list at Grafton Base Hospital for a total left knee replacement, where she finally had the knee replaced at the end of 2017.
She had significant rotator cuff tendonitis in both shoulders and had a cortisone injection in the left shoulder in May 2017.
She actually left her work at Coles in May 2017, and this appears to have been more due to her shoulder conditions, but also her generalised symptoms related to her back and knees.
Subsequently, since stopping work, her back has shown some improvement. She has had the successful left total knee replacement at the end of 2017. For her other conditions, she has been on the waiting list at Grafton Base Hospital to have bilateral rotator cuff surgery for 10 months, and for the last 8 months on the waiting list for a right total knee replacement.”
The MA assessed 14% WPI. This was comprised of 0% WPI in respect of the lumbar spine, and 15% WPI for the left lower extremity (knee) from which he deducted one-tenth, leaving a total of 14% WPI.
He explained his reasons as follows:
“On today’s assessment of the lumbar spine, Sandra Cosgrove does get low back pain but with my assessment, she has good lumbar spinal movement and there was no evidence of muscle guarding or dysmetria with movement. She had no radicular symptoms. There was no evidence of radiculopathy. With reference to AMA Guides 5th Edition Table 15-3 page 384, she has DRE Category I lumbar spine injury that gives 0% WPI.
On assessing her left lower extremity and knee, I have rated her knee replacement using AMA Guides 5th Edition Table 17-35 page 549. Please see my workings. I have concluded that she has 94 points. With reference to Table 17-33 page 547 of AMA Guides 5th Edition, this gives a good result and 15% WPI.
I consider that she had pre-existent severe lateral compartment osteoarthritis of the left knee, as noted in the x-ray of the 12 December 2016. This would have come on over a period of many years. I consider one tenth her level of whole person impairment in the left knee is due to this pre-existent degenerative or osteoarthritic condition. One tenth of 15% is 1.5% WPI. When this is subtracted from 15%, she has 13.5% WPI. This rounds up to 14% WPI.”
The MA then turned to consider the other medical opinions, stating:
“Dr Alan Hopcroft has done reports between August 2015 and July 2021. He is not satisfied that she has suffered a significant injury to her back in the course of her work at Coles. He considers that she developed the osteoarthritis in the left knee and the need for a total knee replacement unrelated to her employment at Coles as well. He considers that she has a good result from her left total knee replacement. He does not give a level of whole person impairment from her lumbar spine condition and left knee replacement as he did not believe that these problems were at all related to her employment at Coles.
Dr Geoffrey Miller has done a report in March 2016, May 2018 and March 2021. He concludes that her back and left knee condition are related to her employment at Coles and disagrees with the opinion of Dr Hopcroft. He concludes that she has DRE Category II lumbar spine injury that gives 8% WPI and one tenth due to pre-existent asymptomatic degenerative condition, so that she ends up with 7% WPI. He concludes that she has a poor result from her left total knee replacement.
When I examined Sandra Cosgrove today, she had minimal pain in her left total knee replacement and a much better range of movement than Dr Miller concluded. She no longer had an extensor lag. The knee felt stable. I can only conclude that there has been significant change in her total knee replacement since he did his assessment for whole person impairment in March 2021. Also, when I examined her some six months later, she no longer has evidence of muscle guarding in the lumbar spine or non-verifiable radicular complaint. Therefore, I concluded she has DRE Category I lumbar spine condition.”
In explaining the s 323 deduction, the MA said:
“The need for a left total knee replacement was due to aggravation of the underlying severe osteoarthritis of the left knee. To put this a different way, she would not have needed the left total knee replacement if she did not already have severe lateral compartment osteoarthritis of the left knee, as seen by the x-ray in December 2016. This osteoarthritis had come on over a period of many years.
This is considered a consequential injury and has only developed and resulted in a total knee replacement due to the pre-existent osteoarthritis.”
The appellant makes the following submissions:
(a) the MA incorrectly referred to the table 17-35 from page 549 of AMA5 which is modified by page 21 of the Guidelines;
(b) he failed to consider the other alternative methods for assessing the left lower extremity or to provide adequate reasons why he selected the method that he did;
(c) his deduction of 1/10th for a pre-existing condition in respect of the left lower extremity was factually and legally incorrect;
(d) he failed to properly consider and apply section 323 of the 1998 Act or clauses 1.27 and 1.28 of the Guidelines;
(e) he applied a deduction for a pre-existing condition to the left lower extremity where there was no evidence of any such pre-existing condition prior to the commencement of the appellant's employment with the respondent on 17 March 2011, contrary to the principles in Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 and Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1211, where he made exactly the same error;
(f) he failed to consider probative and relevant evidence as was contained in the appellant's statements contained in the Application to Resolve a Dispute with respect to her left knee and lower back and denied the Appellant procedural fairness by failing to allow her to refresh her memory from these statements given her memory issues which became apparent during the assessment;
(g) his failure to consider these statements which were highly relevant evidence was an error of law, and
(h) he failed to properly consider all of the alternative criteria for DRE category II as set out in table 15-3 of AMA5 or to provide adequate reasons as to why the appellant did not have non-verifiable radicular complaints or satisfy the criteria for DRE II.
Dealing firstly with the left knee issue, the Panel agrees that the MA incorrectly used AMA 5 Table 17-35 page 549 in assessing the left lower extremity since it has been modified in the Guidelines (see page 21). This was an error in methodology.
Having said that, in our view, the result in terms of the MA’s assessment does not change.
The appellant has achieved a good result from her knee replacement as she told the MA.
Dr Miller also noted in May 2018, after the knee replacement in November 2017: “She stated she has had a ‘good result’ and has only been followed up on one occasion”.
As the MA noted:
“On specifically assessing her left knee, she has strong quadriceps power, and the circumference of the left thigh equals the right. She had a normally aligned knee and there was no collateral or anteroposterior increased movement. She had a range of movement of 0° to 120° flexion in each knee. The surgical scar over her left knee is well healed and barely visible. She had no specific swelling, pain or tenderness in the left TKR.”
In these circumstances, and having regard to all of the evidence, we accept the MA’s primary assessment of the left lower extremity and cannot see any error other than in terms of his methodology to which we have referred.
Turning now to the s 323 deduction, the appellant submits that the MA’s reasons were limited, and that he failed to properly take into account the specific requirements of s 323 of the 1998 Act.
We disagree for reasons that follow.
To begin with, in our view the MA explained clearly and in perfectly concise terms why he made the deduction that he did.
He said:
“I consider that she had pre-existent severe lateral compartment osteoarthritis of the left knee, as noted in the x-ray of the 12 December 2016. This would have come on over a period of many years. I consider one tenth her level of whole person impairment in the left knee is due to this pre-existent degenerative or osteoarthritic condition…”
We accept that Ms Cosgrove was asymptomatic prior to the commencement of her employment with the respondent as she said in her statement and corroborated by her general practitioner’s clinical records.
However, in our view, the MA’s opinion that Ms Cosgrove’s osteoarthritis was “severe” was completely consistent with the radiological evidence.
That level of severity would not have emerged over a period of just four years as the appellant suggests.
Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole) is the perennially cited authority on the construction and application of s 323 where Schmidt J said:
“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…”
Conversely, the Court of Appeal has determined in the case of Vitaz v Westform (NSW)Pty Ltd [2011] NSWCA 254 (Vitaz), that if a pre-existing condition contributes to permanent impairment, a deduction is required even though the pre-existing condition may have been asymptomatic prior to the injury.
In this case, the extent of the pre-existing condition was significant, and the MA’s deduction was not at odds with the available evidence.
Accordingly, we see no error in this aspect of the MA’s decision.
Turning now to the assessment of the lumbar spine, the MA said:
“[Ms Cosgrove] has good lumbar spinal movement and there was no evidence of muscle guarding or dysmetria with movement. She had no radicular symptoms. There was no evidence of radiculopathy…she has DRE Category I lumbar spine injury that gives 0% WPI.”
In her statement dated 14 July 2021 Ms Cosgrove said:
“I find that the following activities aggravate the pain in my back, left knee and right knee:
(a) Cold or wet weather;
(b) Walking for longer than 30 minutes;
(c) Standing for periods of longer than 30 minutes;
(d) Sitting for periods of longer than 30 minutes;
(e) Lifting or carrying weights more than 5 kilograms or trying to lift or move things above shoulder height;
(f) Driving for periods of longer than 30 minutes or getting in and out of the car;
(g) Walking over uneven ground or up and down stairs.
(h) Bending or stooping;
(i) Lifting or carrying articles which weigh more than 5 kg;
(j) Doing domestic chore around our home such as carrying washing to the clothes line, vacuuming and mopping for longer than 10 minutes, making the bed and cleaning the shower…
I am no longer able to do tasks which involve me bending down below waist height or low down…
I also find I have difficultly and restrictions with personal care tasks because of the pain and restrictions in my back and left knee…
I get pain in my back, left knee and right knee every day. The pain goes down into my buttocks into both my legs.
On a scale of 1 to 10, 1 being minor pain and 10 being very severe pain, the pain I experience on a daily basis varies as follows:
(a) Back - varies between 7 to 9;
(b) Left knee and ankle - varies between 6 to 8…”
In his report of 20 May 2018, Dr Miller noted:
“She stated that the pain in her lumbar spine is intermittent but is present most of the time.
She stated the pain radiates down the anterior part of her leg to the level of her knee. She also still experiences occasional pain in her left leg to the level of her left ankle.
The pain is aggravated by bending, stooping and lifting, though she stated today she avoids these activities.
She states that the most significant trigger for her back pain at present is sitting…”
Dr Miller commented upon the CT scan on 9 June 2015 and his findings on physical examination which included loss of the normal lumbar lordosis, an inability to squat, muscle guarding, wasting in the left leg and a significantly reduced range of movement.
He assessed Ms Cosgrove as DRE II adding:
“Clinical history and examination findings compatible with a specific injury; muscle guarding noted on examination and non verifiable radicular complaints.
She receives a 3% WPI for problems with undertaking personal care activities…”
We accept the appellant’s statement as to the nature and extent of her back symptoms which seem to us to be consistent with the opinion of Dr Miller.
In our view, the appellant most properly fits DRE Category II, which equates to 5% WPI.
In terms of her personal care and activities of daily living, we note that the appellant told the MA that her back symptoms had improved somewhat of recent times. She also said that she is “able to do all her personal care satisfactorily”.
We also note that the appellant suffers from a number of other injuries and disabilities, notably right knee pain and bilateral shoulder pain. These conditions would in our view also hamper her ability to carry out many daily activities.
For these reasons, we are of the view that 1% WPI for ADL’s is consistent with all the evidence.
There is also evidence of fairly significant degenerative changes in Ms Cosgrove’s lumbar spine consistent with her age, the CT scan and the opinion of Dr Miller who also applied a one-tenth deduction to his assessment.
Thus the total WPI would be 14% for the left lower extremity and 6% for the lumbar spine, and after a one-tenth deduction is made in each case there is a combined total WPI of 18%.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 November 2021 should be revoked, and a new MAC should be 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
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 Dr Murray Hyde Page 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. Lumbar spine | 19 June 2015 (deemed) | AMA5 page 384 DRE Category I | 6% | 1/10th | 5% | |
| 2. Left lower extremity | 19 June 2015 (deemed) | Chapter 3, Table 17-35 | AMA5 page 549 Table 17-35, page 547 Table 17-33. | 15% | 1/10th | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
Deborah Moore
Member
David Crocker
Medical Assessor
J Brian Stephenson
Medical Assessor
16 March 2022
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