Fawcett v Deniliquin Nursing Home Foundation Ltd
[2021] NSWPIC 270
•3 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Fawcett v Deniliquin Nursing Home Foundation Ltd [2021] NSWPIC 270 |
| APPLICANT: | Marian Joy Fawcett |
| RESPONDENT: | Deniliquin Nursing Home Foundation Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 3 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for compensation for permanent impairment pursuant to section 66 of the 1987 Act as a result of undisputed injury to the lumbar spine and alleged injury to the right lower extremity, including the knee, in accordance with assessment of Independent Medical Examiner who assessed the right knee, and also dyaesthesia in the right leg resulting in WPI; respondent denies injury to the right lower extremity and right knee such as to enable an assessment of WPI, and that dyaesthesia in the right leg not assessable as a result of any claimed right lower extremity injury; Held- award for the respondent in respect of injury to the right leg including the knee; matter referred to a Medical Assessor for assessment of WPI resulting from the undisputed injury to the back (lumbar spine). |
| DETERMINATIONS MADE: | 1. Award for the respondent in respect of injury to the right lower limb, including the knee. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of injury to the back (lumbar spine) on 22 November 2016. 3. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments. 4. The matter is not suitable for video assessment. |
STATEMENT OF REASONS
BACKGROUND
Marian Fawcett (the applicant/Ms Fawcett) claims compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury arising out of or in the course of her employment as an aged care worker with Deniliquin Nursing Home Foundation Ltd (the respondent/the nursing home) on 22 November 2016.
On that day Ms Fawcett was transferring a resident of the nursing home from an armchair to a wheelchair with the assistance of a student. In the course of this manoeuvre, the student tripped the resident and let her go, causing the resident to fall on top of Ms Fawcett.
Ms Fawcett felt a ‘popping’ sensation and pain in her lower back. When she lowered the resident into the wheelchair she felt another ‘pop’ and more severe pain.
The incident was reported and an incident report filled out. Ms Fawcett took some analgesia and finished her shift. Her back pain became severe and she was not able to complete her shift the following day.
Ms Fawcett consulted her general practitioner, Dr Marion Magee, who ordered scans, issued a WorkCover certificate and prescribed pain killing medication. The applicant undertook physiotherapy and light exercise. The back pain worsened and over a period of time her right leg began to swell. By about the middle of 2017 Ms Fawcett had difficulty walking and suffered falls.
Dr Magee referred Ms Fawcett for investigation and treatment to Dr Kathryn Over, a rheumatologist, to Dr ShuhYing Tan, a haematologist, and finally to Dr Brett Todhunter, a pain specialist. Dr Todhunter canvassed treatment options with the applicant and recommended Scrambler Therapy as the best non-invasive option. The respondent’s insurer at the time, Allianz, declined to meet the cost of such treatment and Ms Fawcett did not undergo it.
The applicant was independently medically examined on 8 July 2020 by Dr Tim Anderson, occupational physician, who produced a report of that date[1] which included an assessment or whole person impairment. Dr Anderson diagnosed Ms Fawcett as having developed a chronic pain condition, mostly affecting her right leg and to a much lesser extent, her lower back. He assessed whole person impairment (WPI) on the basis of restricted range of movement of the right knee and the dysaesthesia experienced by the applicant in her right leg. The combined assessment for the right lower extremity and dyaesthesia was 32% Lower Extremity Impairment (LEI), equivalent to 13% WPI. Based on this assessment the applicant made a claim for lump sum compensation on 29 July 2020[2].
[1] Application to Resolve a Dispute (ARD) p 38, noting that references to page numbers are to those in the Commission’s electronic record of the documentation.
[2] ARD p 5.
The applicant was independently medically examined on 23 October 2020 by Dr Anthony Smith, orthopaedic surgeon, who produced a report dated 9 November 2020[3]. Dr Smith diagnosed the injury sustained by Ms Fawcett as an aggravation of lumbar degenerative disease which he said would have resolved of its own accord after a matter of days or weeks, three months at the most. He also said that the applicant had bilateral knee osteoarthritis in all probability and bilateral hip osteoarthritis. He said that the only assessable impairment he could find, knee osteoarthritis, is a familial inherited condition unrelated to the injury of 22 November 2016.
[3] ARD p 11.
Dr Smith was asked to provide an assessment of any WPI suffered by Ms Fawcett and express an opinion as to whether or not such impairment is a result of the work injury. He assessed 5% WPI consequent to lumbar degenerative disease, not consequent to the work injury of 22 November 2016. He also assessed 8% WPI for fixed flexion in the right leg, unrelated to the injury of 22 November 2016.
On 23 December 2020 the respondent’s insurer, GIO, issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998[4] in which it disputed the applicant’s claim for compensation for the alleged right knee injury on 22 November 2016 and that the claimed consequential condition of the right knee resulted from the accepted injury to the lumbar spine on that date.
[4] ARD p 7.
The applicant remains off work and has not undergone any further treatment since December 2017 apart from continuing to take a significant range of different types of analgesic medication. She considers her condition is essentially stable, neither getting better nor worse.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute.
(a)Did the applicant sustain an injury to her right lower extremity (including knee) on 22 November 2016?
(b)Although the respondent notes that there has been no specific allegation of a condition in the right knee consequent upon the undisputed injury to the lumbar spine on that day, is the existence of such a condition an issue before the Personal Injury Commission (the Commission) for determination in the proceedings?
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration on 26 July 2021 conducted via telephone conference. Mr T Abbott, solicitor, appeared for the applicant, who attended on a separate line. Mr A Combe of counsel appeared for the respondent briefed by Ms A Davis. A representative of GIO also attended.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral Evidence
There was no application to adduce oral evidence of to cross-examine the applicant.
SUBMISSIONS
The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.
Applicant
The applicant refers to the occurrence of injury and her subsequent treatment as outlined at [1]-[5] above, noting in particular:
(a) the bilateral sciatic nerve root symptoms, right worse than left, diagnosed by
Dr Magee and noted in her referral to Allied Health dated 16 December 2016[5], and the proposal for some imaging to be carried out;(b) the report of Dr Over dated 18 July 2017[6] in which the doctor said that she suspected that the applicant had a chronic pain response to the acute injury and that she had arranged for an MRI scan of the lumbar spine and sacro-iliac joints;
(c) the report of Dr Tan dated 31 August 2017[7] in which as a result of blood tests carried out which did not show anything untoward from a haematological perspective, he discharged her from his care, suggesting that Ms Fawcett may benefit from the input of pain specialists if pain management remained difficult, and
(d) the report of Dr Todhunter dated 20 December 2017[8] in which the doctor recommended Scrambler Therapy, the cost of which was declined by the insurer.
[5] ARD p 20.
[6] ARD p 27.
[7] ARD p 32.
[8]ARD pp 37 and 46, noting that in the agreed corrected version of the report at p 46, Dr Todhunter records the applicant as developing subsequent right leg pain.
The applicant refers to the report of Dr Anderson dated 8 July 2020 and specifically:
(a) his recording that Ms Fawcett was in a lot of discomfort, some of which was focussed around her back but mostly down the right leg;
(b) his diagnosis of a wrenching injury sustained to the lower back, with no apparent significant discogenic pathology and no compressive neuropathy;
(c) the development of a chronic pain condition focussed down her right leg, which had some of the features of complex regional pain syndrome (CRPS) but not sufficient features to unequivocally diagnose this condition;
(d) that the injury suffered at work on 22 November 2016 developed into this chronic pain condition, and
(e) that, when asked if the injury was a disease condition, said that it was a one-off injury which had become quite severe and that there had been no significant improvement.
The applicant notes the WPI assessed by Dr Anderson in accordance with American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) at p 537, Table 17-10 and p 552 Table, 17-37. The findings and opinion of Dr Anderson are confirmed in his supplementary report dated 21 May 2021[9] in which Dr Anderson notes the report of
Dr Anthony Smith and takes issue with the diagnosis and opinion expressed therein.[9] ARD p 44.
The respondent submits that the Commission should not accept anything in Dr Smith’s report and that an inference adverse to the respondent should be drawn as a result of the failure of the respondent to put into evidence the report of Dr Panjratan dated 17 September 2017 to which Dr Smith refers.
The applicant submits that the referral to a Medical Assessor should be for the assessment of permanent impairment as a result of injury to the back and right lower extremity, including the knee, on 22 November 2016.
Respondent
The respondent submits that the referral to a Medical Assessor should be for assessment of permanent impairment as a result of injury to the back (lumbar spine) on 22 November 2016 only. It submits that the applicant has failed to discharge the onus on her to prove that she suffered an injury to the right lower extremity, including the knee, on that date. The applicant relies of a frank incident occurring on 22 November 2016, which is confirmed by the opinion of Dr Anderson, so it is not a case of aggravation of a condition in the knee.
The respondent submits that what is significant is that there has been no clear diagnosis of injury to the right leg, or what is still the problem in that leg. Dr Anderson does not provide a diagnosis of the right leg condition apart from finding that the condition in the applicant’s lower back radiated into the right leg. He excludes CRPS. The respondent submits that the chronic pain condition found by Dr Anderson is not based on any finding of a pathological change in the applicant’s body, relying for support of this submission on Castro v State Transit Authority (NSW)[10]. That is, for “personal injury” to be found, there must either be either internal or external pathological change in the body.
[10] (2000) 19 NSWCCR 496 (Castro).
The respondent submits that Dr Anderson has not diagnosed any pathology in the right knee or lower extremity which would demonstrate injury such as to result in permanent impairment. The respondent submits that the closest Dr Anderson gets to a diagnosis of injury is what he says at [11. a.] of his report dated 8 July 2020. That is the restrictive range of movement of the right knee and the dysaesthesia experienced down the right leg which Ms Fawcett experiences down her right leg[11].
[11] ARD p 42.
The respondent emphasises the radiation of symptoms down the right leg, which could result in a finding of radiculopathy, in accordance with one of the requirements to be satisfied for this condition in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines). Dr Anderson identifies no pathology in the right knee and excluded instability in either knee.
In respect of Dr Anderson’s opinion that the applicant suffers from a chronic pain condition, the features of which are insufficient to satisfy a diagnosis of CRPS, the respondent notes that there is no objective evidence of signs such as discolouration, temperature change or sweating in the right lower limb, signs required by AMA 5 and the Guidelines for a diagnosis of CRPS. There are only the symptoms down the right leg described by the applicant.
The respondent submits that in his report Dr Smith records a history of the incident on 22 November 2016 and symptoms experienced by the applicant thereafter consistent with those recorded by Dr Todhunter and Dr Anderson. There is no record of a frank injury to the right knee. The applicant is simply complaining of symptoms down the right leg emanating from the back, and such symptoms may (emphasis added) be taken into account in assessing permanent impairment as a result of injury to the lumbar spine.
Dr Smith finds that the frank injury which occurred on 22 November 2016 is an aggravation of pre-existing and asymptomatic lumbar degenerative disease. The 8% WPI assessed by
Dr Smith in respect of the right knee is not referable to the back injury.In response to the applicant’s submission that an inference adverse to the applicant should be drawn by the absence of the report of Dr Panjratan dated 17 September 2017, the respondent submits that:
(a) Dr Smith refers to the contents of Dr Panjratan’s report and the applicant does not take issue with Dr Smith’s summary of the contents of Dr Panjratan’s report;
(b) the applicant acknowledges that the report is of no assistance to the cases of either the applicant or the respondent, and the applicant cannot demonstrate prejudice by the absence of the report;
(c) in any event the report dates from 2017, and for that reason is of no assistance to the Commission in its current deliberations, and
(d) the Commission is not a tribunal governed by the rules of evidence, and that it is therefore a question of the weight that is to be placed on a report rather that its admissibility. The applicant did not object to the admission of Dr Smith’s report into evidence.
The respondent submits that there should be an award in its favour in respect of the injury claimed by the applicant to the right lower extremity including the knee, and that the referral to a Medical Assessor should be for an assessment of permanent impairment as a result of injury to the lower back (lumbar spine) on 22 November 2016.
The respondent submits that the reference to a consequential condition in the right knee in the s 78 notice dated 23 December 2012 is superfluous, as Dr Anderson does not refer to any such condition. There is therefore no issue before the Commission in respect of any condition in the right knee consequent upon injury to the back on 22 November 2016.
The respondent agrees with the applicant that the documents to be referred to the Medical Assessor are the ARD and attachments and the Reply and attachments.
FINDINGS AND REASONS
Injury to right lower limb?
On 16 December 2016 Dr Magee noted that Ms Fawcett had bilateral nerve root symptoms, right worse than left and arranged for her to undergo radiological investigation. On 23 March 2017 Dr Magee signed a request for CT scans of the cervical spine, lumbar spine, thoracic spine and the brain[12]. The “Clinical History/Provisional Diagnosis” in the referral is:
“Severe 7/10 pain radiating into into cervical
spine, back of head, with severe headaches,
and raised BP for investigation” [sic]
The report of this investigation is dated 7 April 2017[13].
[12] ARD p 21.
[13] ARD p 23.
Ms Fawcett first saw Dr Over on 18 July 2017 who commented on the scans “…which showed mild degenerative change only. It certainly would not account for her ongoing issues.” These issues were noted earlier in the doctor’s report of 18 July 2017 of persisting and increasing pain which was throbbing in nature down the right leg which affected mobility. Ms Fawcett “…felt her left leg was swollen. She is unable to sleep because of the pain, she has never been pain free since the acute incident.”
Dr Over recorded that the applicant had seen Dr Tan, haematologist, as she was noted to have an abnormal paraprotein which Dr Tan did not think was significant. Dr Tan arranged an ultrasound scan of the right leg due to perceived swelling that was reported as normal. An isotope bone scan showed no significant abnormality. Dr Over suspected that Ms Fawcett had a chronic pain response to the acute injury and arranged for an MRI scan of the lumbar spine and sacroiliac joints, although she anticipated that these would show just mild degenerative change with no obvious nerve root problem.
The report of the MRI scan dated 2 August 2017 is in evidence[14]. In her report dated 15 August 2020[15] Dr Over confirmed that the MRI scan of the lumbar spine and sacroiliac joints showed just mild degenerative change, with certainly no nerve lesions. She arranged an ultrasound scan to investigate significant symptoms in the right hip, wondering if the applicant had a degree of gluteal tendinopathy or trochanteric bursitis.
[14] ARD p 29.
[15] ARD p 31.
An x-ray of the right hip and pelvis was taken at the same time as the ultrasound of the right hip[16]. Dr Over reported on 12 September 2017[17] that the x-ray of the right hip showed a degree of osteoarthritis but certainly nothing which would cause the degree of problems
Ms Fawcett had.[16] ARD p 34.
[17] ARD p 35.
Dr Todhunter saw the applicant for the first time on 7 December 2017 and reported to
Dr Magee on 20 December 2017. In view of the agreement between the parties that the reference to the left leg in the doctor’s first report dated 20 December 2017 (ARD p 37) was a typographical error, it may be that Dr Over was not correct in recording in her report dated 18 July 2017 that Ms Fawcett felt that her left leg was swollen (see [34] above). This was not mentioned in submissions by the parties but swelling of the right leg is consistent with the applicant’s statement evidence and also with the history recorded by Dr Anderson in his report dated 8 July 2020 that the condition in the back predominantly radiated down the right leg where Ms Fawcett experienced swelling.In any event, Dr Todhunter recommended Scrambler Therapy, details of which were given in his report dated 12 July 2018[18]. This was not approved by the respondent’s insurer.
[18] ARD p 36.
When Dr Anderson examined the applicant on 8 July 2020 he recorded a history of the incident on 22 November 2016 consistent with that recorded by the treating doctors, and also by Dr Smith, who Ms Fawcett saw on 23 October 2020. The history of treatment recorded by Dr Anderson accords with the history recorded by Dr Smith. Dr Anderson diagnosed:
(a) a wrenching injury sustained to the lower back, with no apparent significant discogenic pathology and no compressive neuropathy;
(b) the development of a chronic pain condition focussed down her right leg, which had some of the features of complex regional pain syndrome (CRPS) but not sufficient features to unequivocally diagnose this condition, and that
(c) the injury suffered at work on 22 November 2016 developed into this chronic pain condition. It was a one-off acute injury which had become quite severe with no significant improvement.
In his assessment Dr Anderson said that there were two features which would contribute to the applicant’s WPI, namely, the restrictive range of movement of the right knee and the dysaesthesia which Ms Fawcett experienced down the right leg. Notwithstanding no finding of injury in the right knee, Dr Anderson assessed that knee in accordance with AMA 5 p 537, Table 17-10, which is in respect of “Knee Impairment”. He found 10% LEI for flexion and 20% LEI for fixed flexion deformity.
Dr Anderson notes that dysaesthesia is addressed in AMA 5 p 552, Table 17-37. He says that the closest that can be obtained with the existing condition is dyaesthesia of the sciatic nerve which carries 12% LEI for a maximum condition, half of which he found appropriate, giving 6% LEI.
In the Glossary of terms in AMS 5[19], “Dyesthesia” [sic] is defined as “Impairment of sensitivity, especially to touch.”
[19] AMA 5 p 600.
It is quite clear that the chronic pain condition diagnosed by Dr Anderson mostly affected the right leg and to a lesser extent the lower back. It emanated from the back. This is confirmed by Dr Anderson in his supplementary report dated 21 May 2021. In that report Dr Anderson confirms that, with the extent of Ms Fawcett’s condition, he assessed her WPI as a combination of several specific issues including:
(a) fixed flexion deformity of the right knee;
(b) reduced flexion of the right knee, and
(c) neurological dysfunction down the right leg.
When Dr Anderson combined the LEI values of 20, 10 and 6 using the Combined Values Chart in AMA 5, 32% LEI was the result. According to Table 17-3 on p 527 of AMA 5 this converts to a final figure of 13% WPI.
In his report dated 9 November 2020 Dr Smith summarises the reports of the radiological evidence, acknowledging that he has not seen the radiology. He says that on the description in the reports Ms Fawcett has less in the way of lumbar degenerative disease than the average person her age. He refers to the report of Dr Anderson dated 8 July 2020 and the summary therein of the applicant’s treatment by her general practitioner, rheumatologist
Dr Over and pain management specialist Dr Todhunter. Dr Smith notes that the applicant complains of a swollen sensation and tightness in the right lower limb for which she wears special tight slacks to control. He also notes a description of a sunburnt like sensation of numbness in the right leg and an inability to balance very well, and that the left leg and knee gave way from time to time. There was occasional low back pain.On examination Dr Smith found the mild fixed flexion deformity of the right knee which was absent from the left knee. He noted a lot of pain in any attempt to examine the knees, gross power loss in active movement with regard to the right lower limb, gross weakness of hip flexion and extension, knee flexion and extension and ankle dorsiflexion and plantar flexion, in the absence of any wasting or reflex change. Dr Smith’s opinion was:
“This woman has spinal degenerative disease affecting her neck, her thoracic spine, and her lumbosacral spine. She also has bilateral knee osteoarthritis in all probability and bilateral hip osteoarthritis. Hip and knee arthritis always occur bilaterally. They are familial and inherited conditions; the precise mode of inheritance is not yet fully understood . The incidence of degenerative disease in the spine in her age group is 100%.”
Dr Smith said that the injury sustained on 22 November 2016 was an aggravation to the applicant’s lumbar degenerative disease, and that post injury MRI examination does not demonstrate any post-traumatic lesion, so that one could assume that she had an aggravation to her previously asymptomatic lumbar degenerative disease, for the first time, on that date. The doctor said that the aggravation would have resolved of its own accord after a matter of days or weeks, three months at most. Dr Smith said that there is no treatment that anyone can have that will prevent one from aggravating one’s spinal degenerative disease or hip or knee arthritis.
Dr Smith said that at the time of writing his report Ms Fawcett did not describe typical non-verifiable radicular symptoms but accepting that her symptoms could be construed to be just that, it would appear to him that one could suggest that DRE Category II in Table 15.3 of AMA 5 on p 384 would apply to the applicant. In respect of the lumbosacral spine he said that would result in 5% WPI consequent to her lumbar degenerative disease, but that such impairment was not consequent to the injury of 22 November 2016.
In respect of the fixed flexion deformity in the right leg noted by him and Dr Anderson,
Dr Smith assessed 8% WPI consequent to the knee osteoarthritis which he said was unrelated to the injury of 22 November 2016.The respondent relies on Castro, a decision of Armitage J in the Compensation Court of NSW, to submit that for injury to be found within the definition of that term in s 4 of the 1987 Act there must be either internal or external pathological change in the body. The respondent submits that there is no such change demonstrated in the applicant’s right lower limb, including the knee. I agree with this submission. The applicant has not proved on the balance of probabilities that she suffered an injury to the right lower limb, including the knee, on 22 November 2016. The respondent correctly concedes injury to the lumbar spine, as found by Dr Smith, that is, aggravation of the pre-existing asymptomatic degenerative change in the lumbar spine. It will be a matter for the Medical Assessor to assess the degree of WPI suffered by Ms Fawcett as a result of that injury.
There must therefore be an award in favour of the respondent for the applicant’s claim that she suffered an injury to her right leg and knee on 22 November 2016.
Consequential condition in the right leg or knee?
The letter of claim dated 29 July 2020 forwarded by the applicant’s solicitors to the GIO enclosed the report of Dr Anderson dated 8 July 2020 and claimed on behalf of the applicant $30,166.50 in respect of 13% WPI (including 5% uplift for back) pursuant to s 66 of the 1987 Act.
GIO in its s 78 notice dated 23 December 2020 under “Summary of Decision” says:
“We are disputing your claim for compensation for alleged right knee injury on 22 November 2016. We are disputing that your claimed consequential condition of the right knee resulted from your accepted injury on 22 November 2016.
We are disputing that you are entitled to permanent lump sum compensation for injury on 22 November 2016”
The “accepted injury” is referred to in the notice as to the lumbar spine.
There is no reference in Dr Anderson’s report to any condition in the right knee being consequent upon injury to the lumbar spine on 22 November 2016.
The “Injury Description/Cause of Injury and Death” in the ARD contains the following description:
“Was moving a patient to another chair and the patient fell on her causing the worker to twist her back and she felt a popping sensation in her lower back, therefore causing injury to her right leg and knee”
That description, on one reading of it, may suggest that injury to the right leg and knee resulted from, or was consequent upon, injury to the back. However the applicant did not present her case at the arbitration hearing on 26 July 2021 on this basis.
The respondent does not submit that any finding or order should be made in respect of a consequential condition in the leg or right knee. Accordingly no finding will be made in respect of any condition in the right leg or knee consequent upon injury to the lumbar spine on 22 November 2021.
SUMMARY
Award for the respondent in respect of injury to the right lower limb, including the knee.
The matter is remitted to the President for referral to a Medical Assessor for assessment of WPI as a result of injury to the back (lumbar spine) on 22 November 2016.
The documents to be referred to the Medical Assessor are:
(a) ARD and attachments, and
(b) Reply and attachments.
The matter is not suitable for video assessment.
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