Gouveia v Coles Group Limited
[2023] NSWPICMP 632
•1 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gouveia v Coles Group Limited [2023] NSWPICMP 632 |
| APPELLANT: | Svetlana Gouveia |
| RESPONDENT: | Coles Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | R J Perrignon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| MEDICAL ASSESSOR: | Mohammed Assem |
| DATE OF DECISION: | 1 December 2023 |
| DATE OF AMENDMENT: | 14 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment; whether the assessor erred in his assessment of the thoracic spine or scarring; whether he erred in making a deduction of one tenth for pre-existing degeneration of the lumbar spine; Held – Medical Assessment Certificate revoked and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Gouveia, appeals from the Medical Assessment Certificate of Medical Assessor Ho dated 11 August 2023.
The Medical Assessor assessed a 25% whole person impairment (25% lumbar spine, 0% thoracic spine, 0% scarring), from which he deducted 1/10th for pre-existing degeneration of the lumbar spine, yielding 23% whole person impairment. The date of injury referred for assessment was 1 April 2019. That was a reference to the date of injury pleaded in the Application to Resolve a Dispute as 1 April 2019 (deemed date), due to the nature and conditions of employment from 1993 to 1 April 2019.
The appellant submits that the Medical Assessor erred in making a deduction pursuant to
s 323 of the Workplace Injury Management and Workers Compensation Act 1998, and in his assessment of the thoracic spine and scarring. She says that the evidence supports an assessment of 5% (thoracic spine) and 1% (scarring), without deduction for any pre-existing condition, and that the Medical Assessment Certificate should be corrected accordingly.The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. In summary, the appellant submits as follows:
(a) In respect of the deduction of 1/10th:
(i)injury was pleaded as a disease with a deemed date of injury. The respondent did not dispute the pleaded injury or its date;
(ii)any deduction must be considered by reference to the deemed date of injury: Jimenez v State of NSW [2016] NSWWCCMA 106;
(iii)the appellant had ‘no back issues’ when she commenced employment with Coles in 1993 at the age of 18, or for many years after;
(iv)her back issues being related to her employment, ‘should not have been used to reduce her impairment, and indeed, they were not’;
(v)the radiology relied on by the Medical Assessor to make the deduction was taken over 20 years after the commencement of employment and only after about 12 complaints or incidents concerning the back, and
(vi)the Medical Assessor should have asked whether there were any back symptoms when she commenced employment.
(b) In respect of the thoracic spine:
(i)injury to the thoracic spine was not in dispute;
(ii)in the absence of complaint by the appellant about the thoracic spine, the Medical Assessor concluded, ‘there is no thoracic spine problem …’;
(iii)he did not specify what was meant by ‘no … problem’ but, if he meant no impairment, he contradicted that conclusion b observing that ‘moving up to the mid-back … the back remains stiff’, which indicates there was stiffness in the thoracic spine;
(iv)it is not possible to identify from the reasons where the restriction of movement (stiffness) was found, and
(v)the reasoning is insufficient to explain a finding that there was no impairment of the thoracic spine.
(c) In respect of scarring:
(i)the Medical Assessor found that the scarring was 12cm long, ‘well healed and no tenderness upon palpation’;
(ii)he did not address the criteria for scarring in Table 8.1, or explain the tests or questioning that he used to reach this conclusion. His reasoning was inadequate to support the assessment;
(iii)‘Numerous records’ show that scarring was both tender and uncomfortable, and
(iv)he failed to consider the opinion of Dr Patrick that surgical scarring was extensive, with irritation and attracted a 1% whole person impairment.
The respondent submits in summary as follows:
(a) In respect of the deduction of one tenth:
(i)the ‘MA felt that not all changes evident on radiological scans were due to the nature and conditions of the Appellant’s employment, but rather a lot were due to age related and constitutional changes. The MA considered the age related and constitutional changes in the lumbar spine warranted a one tenth deduction’;
(ii)a pre-existing condition can attract a deduction even if it is asymptomatic;
(iii)Professor Myers on 6 July 2022 considered there were degenerative changes not related to employment;
(iv)the task of the Medical Assessor was to assess the worker as she presented on the date of examination, and to apply his own clinical judgment, and
(v)it was open to him to find that a deduction of one-tenth was warranted.
(b) In respect of the thoracic spine:
(i)the reasons given by the Medical Assessor for assessing a 0% whole person impairment were that there was no complaint by the appellant about the thoracic spine, and no complaint of pain moving up to the mid-back;
(ii)a Medical Assessor is not bound to provide extensive reasons for assessment or a detailed explanation of the criteria applied in reaching a professional judgement: Campbelltown City Council v Vegan [2006] NSWCA 284, and
(iii)Medical Assessor Ho provided sufficient reasons to follow his path of reasoning.
(c) In respect of scarring:
(i)from the lower lumbar spine to S1, the Medical Assessor observed that scarring was ‘well healed and no tenderness upon palpitation’;
(ii)he was not bound to agree with the findings or assessment of Dr Patrick, but rather required to make his own clinical judgment in assessing the appellant presented at examination, and
(iii)on all the evidence, it was open to him to find that there was no assessable impairment.
Deduction of one-tenth
The Medical Assessor summarised his findings at [7] as follows:
“Svetlana Gouveia had a fall [at work] in 2003 and then due to the nature and condition[s] of work, the pain got worse in 2016 and she ended up with repeated injections along with 3 operations altogether. She is still left with a failed back with pain and stiffness but no definite features of radiculopathy.”
At [8e], he answered ‘No’ to the question whether any proportion of impairment was ‘due to a previous injury, pre-existing condition or abnormality’.
At [8f], when asked to indicate the body part or system affected by the previous injury, pre-existing condition or abnormality’, he answered, “Low back”.
The two answers are inconsistent. We interpret the answer at [8e] to be a clerical error, meaning, ‘Yes’.
At [10b], he explained how he calculated a 25% whole person impairment in respect of the lumbar spine. That calculation is not the subject of appeal.
He then explained the reasons for making a deduction as follows:
“In my opinion, in regards [sic] to the MRI changes, a lot of them would be age related, consistent with constitutional changes so I think a 1/10 deduction is appropriate, despite the patient claiming to be asymptomatic before the injuries which will leave behind 23% whole person impairment.”
That passage indicates that the appellant told him that her back was asymptomatic prior to ‘the injuries’. He had taken a history at [4] of an injurious fall on 17 November 2003 followed by flare ups till 2016. Doing our best, and reading his reasons as a whole, we interpret him to mean that the appellant gave a history that her back was asymptomatic until the fall in 2003. The passage quoted does not disclose any doubt on the part of the Medical Assessor that the appellant’s back was asymptomatic until then, or purport to make any contrary finding.
The ‘MRI changes’ to which he referred were the changes disclosed by the two MRI scans of the lumbosacral spine listed by him at [6], performed on 10 April 2016 and 9 August 2017. Of the first, he noted ‘Broad based prolapsed disc in L4/5, minor disc bulging in L5/S1, similar to the finding in 2010’. Of the second, he said, ‘No changes compared to the one before, similarly MRI in 2018, 2019 no significant changes.’
In other words, he found that the MRI scans after 2010 did not disclose significant changes in the lumbosacral spine.
He did not say that degenerative changes were evident on any of these scans. The only explanation we can offer for his view that there were degenerative changes is that the pathology identified at L4/5 or L5/S1, or both, was degenerative in nature.
He gave no reason for coming to such a conclusion.
To attract a deduction, he would have to find that the degeneration pre-dated injury and contributed to her current impairment. In circumstances where he himself had taken a history of injury (with symptoms) in 2003 followed by flare ups until 2019, he would have to have found that the pathology dated at least to a date before 2003. He did not make any such finding.
Where, as here, a claim was made for injury caused by the nature and conditions of employment from 1993, he would have to find that the degenerative pathology pre-dated the commencement of employment in 1993. He did not do so.
His reasoning is inadequate to inform the Panel what was the degeneration that he identified, and why he considered that it pre-dated either the injurious event which he identified in 2003, or the commencement in 1993 of the nature and conditions of employment which were alleged in the Application to Resolve a Dispute to have caused injury. For those reasons it does not put the Panel in a position to discern whether or not there was error in the making of the deduction. That amounts to an inadequacy of reasons, demonstrating error and necessitating that the Medical Assessment Certificate be set aside.
He does not explain why he considers that the degeneration now contributes to the assessed impairment. That also demonstrates an inadequacy of reasons, requiring that the Medical Assessment Certificate be set aside.
Thoracic spine
Under the heading, “Present symptoms”, the Medical Assessor recorded:
“She feels pain in the back, in the belt area which goes down to the groin on the right side and the front of the right thigh but there is no pain shooting down on the left side. Certainly she has no pain below the knee level on either side. There is no complaint of pain moving up to the mid-back either but the back remains stiff.”
Under the heading, ‘Social activities/ADL’, he said, ‘… any heavy lifting is not possible and the back remains stiff’.
‘Stiffness’ in the thoracic spine can indicate restriction in the range of movement, assessable as permanent impairment. The Medical Assessor found recorded complaints of stiffness in the back, but did not identify the part of the spine in respect of which complaints of stiffness were made.
On physical examination he recorded at [5]:
“Back showed restriction of movement and in forward flexion, the finger can touch the mid-shin. All the movements are about 75% of normal and straight leg raising bilaterally is 70˚.”
He did not identify the part of the back which, on examination, demonstrated ‘restriction of movement’. We are comfortably satisfied that the thoracic spine was included in his examination, because he recorded at [1] that it had been referred for assessment.
In the absence of any indication from him as to which part of the back demonstrated restriction of movement on examination, the reasons are insufficient to allow the Panel to discern whether the measured 25% reduction in range of motion applied to the thoracic spine. For that reason, the Panel is unable to discern whether there was error in the assessment of 0% whole person impairment (thoracic spine).
That also demonstrates an inadequacy of reasons, necessitating that the Medical Assessment Certificate be set aside.
Scarring
Table 8.1 of the Guidelines lists the following criteria for the assessment of 1% whole person impairment (skin – TEMSKI). According to the Table, the Medical Assessor must ‘determine which impairment category best fits (or describes) the impairment’.
Criteria
0% WPI
1% WPI
Description of the scar(s) and/or skin condition(s) (shape, texture, colour)
Claimant is not conscious or is barely conscious of the scar(s) or skin condition.
Good colour match with surrounding skin, and the scar(s) or skin condition is barely distinguishable.
Claimant is unable to easily locate the scar(s) or skin condition.
No trophic changes.
Any staple or suture marks are barely visible.
Claimant is conscious of the scar(s) or skin condition.
Some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes.
Claimant is able to locate the scar(s) or skin condition.
Minimal trophic changes.
Any staple or suture marks are visible.
Location
Anatomic location of the scar(s) or skin condition not clearly visible with usual clothing/hairstyle.
Anatomic location of the scar(s) or skin condition is not usually visible with usual
Contour
No contour defect.
Minor contour defect
ADL/treatment
No effect on any ADL.
No treatment, or intermittent treatment only, required.
Negligible effect on any ADL
No treatment, or intermittent treatment only, required.
Adherence to underlying structures
No adherence
No adherence
At [5], the Medical Assessor observed as follows on physical examination of the skin:
“On inspection, there is a 12cm midline scar from the lower lumbar to the S1 level which is well healed and no tenderness upon palpation.”
He gave the following reasons at [10b] for assessing a 0% whole person impairment:
“There is no problem with the thoracic spine and I don’t think there is any permanent impairment from the scarring.”
In effect, the only reasons given for his assessment of 0% of the 12cm scar were that it was ‘well healed’ and there was ‘no tenderness upon palpation’. While these observations are not disputed, they lack specificity in addressing the criteria outlined in Table 8.1. The reasons given do not explain why the criteria for a 0% whole person impairment were met, why the criteria for a 1% whole person impairment were not met, or why, if some criteria were met from both classes of impairment, the observations best fit the criteria for 0%.
This amounts to an inadequacy of reasons, necessitating that that the Medical Assessment Certificate be set aside.
Contrary to the submissions of the appellant, the Medical Assessor’s reasons do not enable the Panel to make its own assessment of the thoracic spine or scarring. It has been necessary to refer the worker for examination to one of its members, Medical Assessor Gibson. Her examination report appears below.
Report of Medical Assessor Gibson
“Ms Gouveia attended as arranged. Her daughter had driven her from their home on the South Coast and she had remained in the waiting room while the assessment was conducted.
Ms Gouveia had worked with Coles for 33 years, between 1993 and 2019. She said she was initially employed on the checkout, and then in 1996 she started work in the deli. She commenced a traineeship and moved to Shellharbour store in 2000. Over the last ten years of her employment with Coles she was working in the online shopping area where she was picking and packing groceries for customers and loading these into a crate for delivery.
There was no prior history of accident or injury. She had been diagnosed with polycystic ovary syndrome, prescribed metformin. She had an ovariectomy left in 1997. She suffered with depression for about 20 years, she said, since the subject accident and is prescribed Effexor XR.
The subject work injury had occurred when she was working in the deli at the Coles Shellharbour store. She said that part of her job was transferring chicken pieces from the storage area into the deli display case. She said this involved lifting crates of chicken weighing up to 20kg and emptying this into the deli case. She said on this occasion, some of the blood from the chicken had spilled onto the floor. She had then lost her footing on the wet floor and then landed heavily on her buttocks.
She said she had reported the injury that day. She hadn’t required any immediate medical attention, but had later visited her general practitioner and had some physiotherapy.
Ms Gouveia said that after this incident, although she recovered and returned to work, she still was suffering flare-ups of the low back pain, particularly in relation to heavy lifting activities. She said she was on and off compensation payments and work restrictions over the ensuing years.
She was eventually referred to neurosurgeon, Dr Peter Moloney. She had first visited him in 2016. He had arranged for several cortisone injections to her lower back. She said the first injection gave her relief for 10-11 months, the second for six months, the third for six weeks and then the last for 2-3 weeks. It was then decided to pursue a surgical option. In 2019 Dr Moloney performed L4/L5 fusion.
Ms Gouveia said that her main symptoms prior to this surgery had been low back and right groin pain, but following the surgery there was no resolution of either of these complaints and she had then started to notice pain over both her inner thighs. There was further surgery in 2020, apparently due to a loose screw and non-union of the fusion. She had an L3/L4 stabiliser inserted and bone grafting to the fused vertebras. In September 2022 all the hardware was removed.Ms Gouveia didn’t seem to think that any of these procedures had brought about any lasting benefit for her low back and right groin pains. Currently, she said she is waiting for approval for some cortisone injection. She said this option was proposed in September of last year. She has of late been seeing Dr Michael Davies, pain physician. He had suggested a spinal cord stimulator, but she isn’t very keen to pursue this intervention.
She was having hydrotherapy, but this was ceased in March this year. She takes Palexia 50mg two tablets three times a day. She does stretches at home for her back.
Ms Gouveia is living with her husband, her 21-year-old daughter and 15-year-old son in Lake Heights. She said she is restricted in the chores she is able to perform at home.
She doesn’t do any mopping. She can’t vacuum carpets although she can vacuum the polished concrete floor in the kitchen. She finds she needs to take breaks after 5-15 minutes of performing housework. She said the kids help, they clean out the shower, and her husband does the bathrooms. Her husband had adjusted the position of the washing machine, so it is at a more comfortable height, so she can now take clothes in and out, and she would then hang them outdoors on a clothes airer.
She can’t do any gardening because the bending is too strenuous on her low back.
She is unable to perform any heavy lifting. She said she recently purchased a 3-litre bottle of orange juice and found this quite onerous to carry back to the car. She said she always shops with other people so they can push the trolley and she avoids bending down to access groceries on the shelves.
She can drive an automatic car for about 60 minutes before needing to take a break.
She is independent in self-care, but has modified how she does some activities, for instance she would sit down to shave her legs.
After about 15-20 minutes of walking, she needs to take a rest due to low back and right groin pain.
Currently, her symptoms were of pain across the low back with pain extending to her right buttock, right anteromedial thigh and right groin. She said her right calf has been sore at times. There is some sensitivity over the right buttock and over the lower end of the surgical scar.
PHYSICAL EXAMINATION
Ms Gouveia was 155cm tall. She weighed 74kg. She was able to walk on heels and toes and squat fully.
The spinal surgical scar was 15cm long. There was minor colour contrast with the surrounding skin. There were some suture marks visible, but these were pale and not prominent. The lower third of the scar was quite sensitive to touch. There was minor trophic change. There was no significant contour defect and there was no adherence. No treatment was required for the scar and she reported no effect on ADL.
On examination of the thoracic spine, there was no tenderness. There was normal range of thoracic movements. Rotation was normal range bilaterally There was no muscle spasm or guarding, and no asymmetry of movements.
On examination of the lower back, forward flexion was to two-thirds normal, extension was to one-third normal, lateral flexion was to two-thirds normal bilaterally, rotation was to three-quarters normal bilaterally. There was some guarding with extension.
On examination of the lower limbs, straight leg raise was 80 degrees when seated and 70 degrees bilaterally when lying supine due to back pain complaints. There was normal lower limb sensation. There was normal lower limb reflexes apart from reduced right knee jerk. There was normal power in both lower limbs.
Me Gouveia is a 48-year-old right-handed woman who had been employed with Coles for over 30 years. She sustained a fall onto her buttocks at work on 17 November 2003 and reports ongoing episodic low back pain since. She had undergone multiple steroid injections and then a surgical fusion at the L4/5 level.
IMPAIRMENT
Thoracic spine
There were no clinical signs in the thoracic spine. There was no thoracic radiculopathy. Based on Chapter 4 and Table 4.1 Workcover Guides and AMA 5, Table 15-4, p389 there were no clinical findings. Therefore the thoracic spine was assessed at DRE Thoracic Category I, thus 0% WPI.
Scarring
The impairment due the scarring was assessed with reference to the TEMSKI scale for the evaluation of minor skin impairment. The most appropriate assessment, applying the "best fit" principle, is 1% whole person impairment. This conclusion is based on the following criteria:
· The scars have no effect on any activity of daily living.
· The scars are not visible with usual clothing.
· There is minor colour contrast with the surrounding skin.
· Staple and suture marks are present, but not a major feature.
· There was no significant contour defect.
· No treatment for the scars is required.
· Adherence of the scars was not a factor.
...”
Assessment
Having regard to her expertise and experience as an orthopaedic surgeon, the Panel accepts the clinical findings of Medical Assessor Gibson. In the Panel’s view:
(a) her findings on clinical examination of the thoracic spine attract a 0% whole person impairment, and
(b) the characteristics of the scarring best fit the criteria for a 1% whole person impairment.
It remains to consider whether a deduction is available for a pre-existing condition. Attached to the Application to Resolve a Dispute are reports of MRI scans of the lumbar spine, X-rays and other investigations from 2016 to 2021. Of these, the earliest is a report by Radiologist Dr Gomes of an MRI scan performed on 10 April 2016. He noted that a previous MRI had been performed in 2010 and a CT scan in 2013.
In respect of the 2016 scan, he reported disc dehydration at L4/5, bilateral facet joint hypertrophy at L3/4 without nerve root impingement, and a broad based disc bulge at L5/S1 without nerve root impingement, though causing ‘minimal impingement’ of the thecal sac.
At L4/5, he observed disc dehydration with broad based disc bulge and mild impingement on the thecal sac, and minimal narrowing of the neural exit foramina.
There was a mild disc bulge at T10/11.
Of the results generally, he observed: “The appearances are similar to that of a previous MRI study in 2010”.
We accept that the appearances were likely to have been similar in 2010. There is nothing in his report which satisfies us that any of the observed changes were present prior to injury in 2003, still less prior to the pleaded date of injury or commencement of nature and conditions of employment in 1993. The scan does not provide evidence in support of a deduction for any pre-existing condition. None of the later scans attached to the Application to Resolve a Dispute do so.
We are unable to make any finding that there was a pre-existing condition, abnormality or injury for the purposes of s 323. It follows that a deduction is neither available nor warranted.
The Medical Assessment Certificate of Medical Assessor Ho is revoked and replaced with the attached Medical Assessment Certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4241/23 |
Applicant: | Svetlana Gouveia |
Respondent: | Coles Group Limited |
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 Ho 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 1/4/19 | Chapter 4 | Table 15-3, page 384 | 25 | 0 | 25 |
| Thoracic spine | 1/4/19 | Chapter 4, p 25-29 | Table 15-4, page 389 | 0 | 0 | 0 |
| Skin | 1/4/19 | Chapter 14. p73-74 | Chapter 8, p 173 | 1 | 0 | 1 |
| Total % WPI (the Combined Table values of all sub-totals) | 26% WPI | |||||
0