Harland (Nee Wrennall) v Adventist Healthcare Limited
[2023] NSWPICMP 118
•29 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Harland (NEE Wrennall) v Adventist Healthcare Limited [2023] NSWPICMP 118 |
| APPELLANT: | Sarah Elizabeth Lauren Harland (nee Wrennall) |
RESPONDENT: | Adventist Healthcare Limited t/as Sydney Adventist Hospital |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 29 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of permanent impairment of the lumbar spine; application to admit fresh evidence; whether evidence justified a finding of radiculopathy; whether Medical Assessor erred in making a deduction of 1/10th for pre-existing disc desiccation; Held – Medical Assessment Certificate revoked and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Harland, appeals from the Medical Assessment Certificate of Medical Assessor Kuru dated 2 December 2022.
The Medical Assessor assessed a 13% whole person impairment (lumbar spine 12%, scarring 1%) as a result of injury on 26 August 2020 (deemed date). He assessed the lumbar spine at 13% whole person impairment, and deducted 10% for pre-existing degeneration of the discs at L4/5 and L5/S1 demonstrated by three MRI scans in 2020 and 2021, to arrive at 12% whole person impairment for the lumbar spine.
Ms Harland seeks leave to put before the Appeal Panel a report of an MRI scan of the lumbar spine performed on 1 November 2022. The report was issued by radiologist Dr Lyons on 2 November 2022, and came to the attention of Ms Harland’s solicitor on
9 November 2022. All this occurred after Medical Assessor Kuru had examined the appellant on 25 October 2022, but before his Medical Assessment Certificate was issued on
2 December 2022. Ms Harland says the report supports a finding of radiculopathy into the left foot, justifying the addition of a further 3% whole person impairment with respect to the lumbar spine.She also submits that:
(a) the deduction of 10% for a pre-existing condition was ‘against the weight of the evidence’ and ‘completely at odds’ with it, because the worker was asymptomatic prior to injury, neither of the two independent medical experts relied on by the worker and insurer – Dr Davies and Dr Bentivoglio respectively – made any such deduction, and there was no evidence relating impairment to a degenerative condition;
(b) insufficient reasons were given for making the deduction, and
(c) the Medical Assessor failed to consider relevant evidence, namely the clinical history and the development of symptoms over time.
She seeks a finding that there is radiculopathy, justifying the addition of a further 3% whole person impairment. Alternatively, she seeks re-examination by the Panel.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines). Though error was identified with respect to the deduction of 10%, it was capable of correction without further examination.
Submissions
The parties made written submissions which have been taken into account. The appellant’s submissions are summarised above. The respondent submits in summary as follows:
(a) the report of radiologist Dr Lyons should not be admitted. It could reasonably have been obtained prior to assessment by Medical Assessor Kuru, there is no explanation as to why it was not obtained, and its admission would unfairly prejudice the respondent, because it would be denied an opportunity to put it to its independent medical expert for consideration and report;
(b) in the exercise of his discretion and applying his clinical judgment, the Medical Assessor found that the pre-existing degenerative condition was contributing to impairment. Where that is the case, a deduction is required even where the condition was asymptomatic prior to injury;
(c) the reasons given by the Medical Assessor in support of the deduction – namely, the existence of a pre-existing condition, the fact that it contribute to impairment, and that its effect was difficult or costly to determine – were sufficient, and
(d) based on his clinical examination, as described by him when comparing his assessment with that of Dr Davies, it was reasonably open to the Medical Assessor to find that there was no radiculopathy. His task was to assess the worker independently, as she presented at examination. He was not bound to reach the same conclusion as to radiculopathy as had Dr Davies on a previous examination on 4 April 2022.
Fresh or additional evidence – report of Dr Lyons
Section 323 of the Workplace Injury Management and Workers Compensation Act 1998 relevantly provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
As indicated, Medical Assessor Kuru examined the worker on 25 October 2022 and issued his Medical Assessment Certificate on 2 December 2022. The MRI scan was performed on
1 November 2022. Dr Lyons issued his report the next day, and it came to the attention of
Ms Harland’s solicitor on 9 November 2022.It could have been referred to the Personal Injury Commission on or after 9 November during the three weeks before the Medical Assessment Certificate was issued, with a request that it be submitted to the Medical Assessor for consideration. There is no evidence that that occurred, and no reason offered for the failure to do so.
Though it is submitted that the MRI could not reasonably have been obtained prior to examination on 25 October 2022, no reasons are offered to support that submission.
Dr Lyons indicates that this was a comparison study with scans performed in February 2021. In the absence of evidence to the contrary, we are satisfied that there was ample time to conduct comparison scans before examination on 25 October 2022. There is no evidence to support the submission that an MRI scan could not reasonably have been obtained.In all the circumstances, the requirements of s 328(3) are not satisfied, and the report may not be admitted on appeal.
Even if it were admitted, it would make no difference to the outcome. Though radiological evidence of radiculopathy is one of the three minor criteria for a finding of radiculopathy, it is alone insufficient to support such a finding: Guidelines at 4.27. It would require at least one of the three major criteria as well, each of which rely on clinical examination.
With respect to the three major criteria, Medical Assessor Kuru helpfully described his findings on clinical examination at [10c] as follows, when comparing his assessment with that of Dr Davies:
“I did not find loss or asymmetry of reflexes, muscle weakness that was anatomically localised to an appropriate spinal nerve distribution, reproducible impairment of sensation, positive nerve root tension signs, muscle wasting or findings on an imaging study consistent with clinical signs.”
In any event, the report of Dr Lyons does not itself describe or prove the existence of radiculopathy. Under the hearing ‘Axial scans’, Dr Lyons states with respect to the relevant levels:
“L4/5: Mild broad-based bulge with moderate facet arthropathy and ligamentum flavum thickening. The disc bulge abuts the descending L5 nerve roots. …
L5/S1: More prominent disc bulge which abuts both descending S1 nerve roots. No exiting nerve root impingement. Mild to moderate facet arthropathy.”
Abutment of a nerve root without impingement often occurs without clinical radiculopathy. It is not one of the criteria for assessment of radiculopathy. There is no mention of nerve root compression, as distinct from mere contact.
As indicated, Medical Assessor Kuru’s findings on clinical examination were negative in respect of each of the three major criteria. Even if Dr Lyons’ report were admitted, and even if – contrary to our view - it supported the existence of radiculopathy, it is not capable of justifying a finding of radiculopathy in accordance with the Guidelines, in circumstances where none of the three major criteria were satisfied.
Deduction for pre-existing condition or abnormality
As the respondent correctly submits, it was the task of the Medical Assessor to assess the worker as she presented on the day of examination. He was not bound to reach the same conclusions as did Dr Davies and Dr Bentivoglio, each of whom made no deduction for a pre-existing condition or abnormality.
In order to make a deduction for a pre-existing condition or abnormality, a Medical Assessor must first identify a condition that was present prior to injury, and find that it currently contributes to the assessed impairment.
A pre-existing condition may contribute to impairment even if it was asymptomatic prior to injury: Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43]. However, a Medical Assessor cannot merely assume that, because there was a pre-existing condition or abnormality, it must contribute to impairment: Cole v Wenaline [2010] NSWSC 78 at [13].
A finding that the pre-existing condition contributes to impairment is only available if the Medical Assessor is satisfied that, but for the pre-existing condition, impairment would be less than it currently is: Ryder v Sundance Bakehouse [2015] NSWSC 526.
At [6] Medical Assessor Kuru summarised the results of MRI scans performed in April 2020, September 2020, and February 2021. Each demonstrated disc desiccation at L4/5 and L5/S1. He concluded that there was a pre-existing degeneration of the discs. No challenge is made to this finding.
He noted at [7] that leg symptoms had resolved since decompressive surgery on
2 March 2021 at the hands of neurosurgeon, Dr Assaad. Intermittent back pain had persisted: [4].At [11], he gave the following reason for making a deduction of 1/0th for the pre-existing condition:
“The injury represents an aggravation of [a] pre-existing condition in her back.”
The mere fact that an injury consists of an aggravation of a pre-existing condition cannot alone justify the making of a deduction. The issue is whether, as at the date of examination, the pre-existing condition continues to contribute to impairment. That requires a finding that, but for the pre-existing condition, the impairment would be less. No such finding was made or considered by the Medical Assessor. This demonstrates error on the face of the certificate.
In this case, the Medical Assessor found that leg symptoms had resolved following surgery, though back pain persisted. The likely cause of the back pain is the desiccation of the discs from L4 to S1, consistently identified on MRI scans. Prior to injury, they were asymptomatic. There is no evidence to support the view that, but for the injury, they would have become symptomatic by this time. They were made so by injury. But for injury, it is entirely possible that the discs would have remained asymptomatic, and that there would be no impairment.
In this case, the injury consisted of traumata to the relevant discs over time due to the nature and conditions of employment from 20 October 2019 to 26 August 2020. Those dates are drawn from the referral to the Medical Assessor. Trauma to the discs can result in back pain, with or without pre-existing desiccation. There is no evidence before us to prove that, but for the pre-existing desiccation, the pain would be less than it now is. In other words, there is no evidence to support the proposition that current impairment is greater by reason of the pre-existing disc desiccation.
In those circumstances, we cannot be satisfied that the pre-existing disc desiccation contributes to impairment. No deduction is available.
Conclusion
For the reasons given, the Medical Assessment Certificate of Medical Assessor Kuru is revoked and replaced by the attached Medical Assessment Certificate.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W5777/22 |
Applicant: | Sarah Elizabeth Lauren Harland (nee Wrennall) |
Respondent: | Adventist Healthcare Limited t/as Sydney Adventist Hospital |
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 Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| 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) |
| 1. Lumbar spine | 26/8/20 (deemed) | Page 27 Para 4.27 Page 28 Para 4.34 Page 29 Para 4.37 Table 4.2 | Page 384 Table 15-3 | 13 | Nil | 13 |
| 2. Scarring (TEMSKI) | Page 74 Table 14.1 | 1% | Nil | 1% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
3
0