Hutchinson v Coles Supermarkets Australia Pty Ltd
[2025] NSWPICMP 107
•20 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hutchinson v Coles Supermarkets Australia Pty Ltd [2025] NSWPICMP 107 |
| APPELLANT: | Laurel Hutchinson |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 20 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by finding the appellant did not meet the criteria for radiculopathy; Held – Appeal Panel held that it could not be established from the findings the MA recorded in the Medical Assessment Certificate (MAC) from his examination of the appellant whether the MA had examined the appellant for all necessary signs of radiculopathy; the Appeal Panel held that either the MA’s examination was not thorough or his findings were not sufficiently detailed; either of those matters was an error; appellant re-examined; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 October 2024 Laurel Hutchinson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 September 2024.
The appellant relies on the ground for appeal found in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), specifically that 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.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was employed by Coles Supermarkets Australia Pty Ltd, the respondent, for a period of 21 years until she ceased her employment on 7 December 2023. On 26 May 2022 she was performing night filling that involved her bending repeatedly and lifting weights of up to 15kg. She developed severe low lumbar back pain that was more severe in her right buttock and that radiated down the anterior aspect of her right thigh to the dorsum of her right foot where she experienced a burning sensation. MRI investigations were done of her spine which revealed L5/S1 disc pathology with loss of disc height at L5/S1, exit foraminal stenosis more prominent on the right and with a bilateral L5 nerve compression more prominent on the right side, a grade 1 L5/S1 spondylolisthesis associated with a bilateral L5 pars interarticularis defect, and severe L5/S1 facet arthropathy.
On 21 February 2023 the appellant underwent a posterior L5/S1 interbody discectomy and fusion with stabilisation with pedicle screws and nerve decompression was done.
On 16 November 2023 the appellant’s solicitors notified the respondent that the appellant claimed compensation from it under s 66 of the WorkersCompensation Act 1987 (the 1987 Act) for 23% whole person impairment (WPI) that the appellant said had resulted from her injury on 26 May 2022. The appellant’s solicitors provided the respondent with a report of orthopaedic surgeon Dr Michael Long dated 18 September 2023, on which the appellant relied, and who had assessed the degree of the appellant’s permanent impairment from her injury to be of the order of 23% WPI.
To respond to those reports the respondent organised for the appellant to be examined by Associate Professor Anthony Buzzard on 13 February 2024. In a report of that date A/Prof Buzzard advised he assessed the degree of the appellant’s permanent impairment from her injury was 22% WPI. In a subsequent report dated 21 March 2024 he advised that the appellant had a “pre-existing or additional abnormality” of spondylolisthesis or spondylolysis and that he considered “it would be reasonable for an apportionment of 50% applied to the bottom-line impairment – as being due to the pre-existing non-work-related problem”. He indicated that his previous assessment of the degree of the appellant’s permanent impairment from her injury should be revised such that he assessed her as having 11% WPI from her injury.
On 18 April 2024 the respondent corresponded with the appellant’s solicitors by email offering to settle the appellant’s claim by paying the appellant compensation for 15% WPI.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 7 June 2024 seeking the Commission determine her claim for compensation for permanent impairment from her injury. On
26 July 2024 the Commission issued a Referral to the Medical Assessor to assess the medical disputes relating to the appellant’s claim for compensation.On 30 August 2024 the Medical Assessor examined the appellant in order to assess those medical disputes. As said, he issued a MAC on 19 September 2024. He recorded in that that he made the following findings from his examination of the appellant:
“On examination, she was a well-looking woman in no obvious distress.
Trendelenburg’s test is normal. Heel-toe stance is normal. Neurological examination of the lower limbs demonstrates symmetrical knee and ankle reflexes with down going Babinskis.
Peripheral power is intact. Straight leg raise is to 90° in the sitting position without tension signs.
There are 2 6cm, long incisions in the lumbar spine consistent with Wiltse approaches for fusion. There is a 2cm stab mark below the right incision from placement of navigation frame for surgery.”
The Medical Assessor considered that the appellant’s overall permanent impairment relating to her lumbar spine was 22% WPI. He said he made that assessment by reference to the material that had been provided to him and his examination of the appellant. He provided the following explanation for how he calculated the appellant’s overall permanent impairment:
“SIRA, page 29, paragraph 4.37 directs that surgical procedures undertaken for spinal
fusion be assessed as Lumbar DRE Category IV (AMA-5, page 384, Table 15-3) at 20% whole perosn [sic] impairment.
Accoridng [sic] to SIRA, page 28, paragraph 4.34, I assess a furtehr (sic) 2% for restriction of activities of daily living.
Whilst Ms Hutchinson has persistent symptoms, she does not meet the requirements
for radiculopathy as per SIRA, page 27, paragraph 4.27. Particularly I did not find loss
of asymmetry of reflexes, muscle weakness anatomically localised to a spinal nerve
root, positive nerve root tension sign, muscle wasting/atrophy or findings on an imaging study consistent with the clinical signs.”
The Medical Assessor said that he found the appellant had a pre-existing condition, which he identified as L5/S1 isthmic spondylolisthesis. He said that the appellant’s injury represented an aggravation of that “pre-existing developmental condition”. He explained that in the absence of that condition her spinal fusion would not have been required. He indicated that a proportion of her permanent impairment from her injury was due to that pre-existing condition. He also indicated it would be difficult or costly to determine what that proportion is and in accordance with s 323(2) of the 1998 Act he assumed the proportion was one-tenth and, hence, when assessing the degree of the appellant’s permanent impairment from her injury made a deduction of 10% under s 323(1) such that he assessed, and certified, that the degree of the appellant’s permanent impairment from her injury was 20% WPI.
He noted that he agreed with the assessment of Dr Long that the appellant’s lumbar spine impairment correlated with the criteria for DRE category IV. He also noted that Dr Long had added 1% WPI for the restrictions the appellant has with her activities of daily living, and noted that in his assessment he added 2% WPI. He said that he disagreed with Dr Long’s assessment in that Dr Long had added 3% WPI for residual symptoms and radiculopathy. The Medical Assessor said that “I did not make findings to satisfy the definition of radiculopathy according to SIRA, page 27, paragraph 4.27”.
The Medical Assessor also recorded that he agreed with the assessment of Dr Buzzard that the appellant’s overall permanent impairment was “2% WPI”.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel found that the MAC contained a demonstrable error, which the Appeal Panel would need to correct. The Appeal Panel considered that to do that it was necessary for it to obtain further clinical data relating to the appellant’s impairment and that that data could only be obtained through a further examination of her. The Appeal Panel appointed Medical Assessor Roger Pillemer to conduct that examination. He did so on 11 February 2025. His report to the Appeal Panel is extracted below under the heading Findings and Reasons.
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 submitted that the Medical Assessor wrongly found that she does not meet the requirements for radiculopathy. The appellant submitted this was contrary to all other available evidence. The appellant submitted that there is nothing within the MAC to determine what testing the Medical Assessor undertook to determine whether she had muscle weakness anatomically localised to a spinal nerve root or what testing he undertook to determine whether she had any muscle wasting. The appellant submitted that the Medical Assessor failed to consider properly the radiological investigations she had done following her surgery. The appellant submitted that the Medical Assessor was silent on whether she had any positive right sciatic tension sign, sensory changes in her right foot and left foot and whether there were findings on an imaging study consistent with clinical signs. The appellant submitted these were the findings of Dr Long.
In reply, the respondent submitted that the Medical Assessor provided reasons for finding the appellant did not meet the requirements of paragraph 4.27 of the Guidelines in that the Medical Assessor, in his explanation of how he computed the appellant’s overall impairment, said that the appellant did not meet the requirements of paragraph 4.27 and, particularly, that he did not find the appellant had loss of asymmetry of reflexes, loss or weakness anatomically localised to a spinal nerve root, positive nerve root tensions sign, muscle wasting/atrophy or findings of an imaging study consistent with a clinical signs.
The respondent submitted that the Medical Assessor assessed the appellant as she presented on the day of assessment and that his assessment took into account all relevant medical evidence and medical information. The respondent referred to an authority that established a Medical Assessor is entitled to give pre-eminence to his or her clinical observations of a worker. It is implicit from the respondent’s reference to that authority that it submits that the Medical Assessor gave prominence to his findings from examination, rather than the findings of other clinicians from their examinations.
The respondent referred to the findings the Medical Assessor recorded from his examination of the appellant and highlighted that the Medical Assessor found that the appellant’s peripheral power is intact.
The respondent noted that the Medical Assessor had viewed the actual scans of the radiology the appellant had done and the respondent submitted that the Medical Assessor had carefully considered the post-surgery radiology as much as possible.
The respondent submitted Dr Long had recorded that the appellant occasionally suffers grabbing pain in her left buttock and intermittent numbness that occurs when she undertakes excessive physical activity. The respondent submitted that those varying clinical signs the appellant suffers are consistent with the Medical Assessor’s findings that no radiculopathy was present at the day of assessment.
FINDINGS AND REASONS
The procedures on appeal are contained in s328 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.
Paragraphs 4.27-4.29 of the Guidelines provide the following criteria with respect to assessing whether a worker has radiculopathy:
“4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
• Loss or asymmetry of reflexes
• Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
• Reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
• Positive nerve root tension (Box 15-1, p 382, AMA5)
• Muscle wasting – atrophy (Box 15-1, p 382, AMA5)
• Findings on an imaging study consistent with the clinical signs (p 382, AMA5)
4.28 Note that radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain), do not alone constitute radiculopathy.
4.29 Global weakness of a limb related to pain or inhibition or other factors does not constitute weakness due to spinal nerve malfunction.”
In the Appeal Panel’s view, it cannot be ascertained from the findings the Medical Assessor recorded in the MAC from his examination of the appellant whether the Medical Assessor's examination was sufficient to establish if the appellant had muscle wasting or atrophy or impaired sensation that anatomically localised to a spinal nerve root distribution. If the appellant exhibited these signs, then a finding of radiculopathy should have been made, consistent with paragraph 4.27.
Whilst the Medical Assessor did state within part 10b of the MAC that he did not find any of the relevant criteria listed in paragraph 4.27 of the Guidelines to enable a finding for radiculopathy to be made, he did not detail what he had done during his examination of the appellant to establish that. In that circumstance, the Appeal Panel considers that the Medical Assessor’s explanation for his assessment of the degree of the appellant’s permanent impairment from her injury is deficient. That is to say, insofar as he has failed to detail the method by which he determined the appellant did not have muscle wasting or impaired sensation he has failed to explain sufficiently his assessment of the appellant’s permanent impairment. Simply it cannot be known from the reasons he has provided in the MAC how it is he was able to exclude that the appellant suffered radiculopathy. It cannot be ascertained from his findings from his examination of the appellant whether the Medical Assessor's examination was sufficient to establish if the appellant had muscle wasting or atrophy or impaired sensation that anatomically localised to a spinal nerve root distribution. If the appellant exhibited these signs, then a finding of radiculopathy should have been made, consistent with paragraph 4.27.
That is an error that amounts to a demonstrable error.
The Appeal Panel, having found that the MAC contains a demonstrable error, must correct that error. As said above, the Appeal Panel appointed one of its members, Medical Assessor Pillemer to conduct a further examination of the appellant to enable it to obtain the necessary clinical data to correct that error. Medical Assessor Pillemer’s report to the Appeal Panel is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W22402/24 |
Appellant: | LAUREL HUTCHINSON |
Respondent: | |
Date of Determination: |
Examination Conducted By: | Dr Roger Pillemer |
Date of Examination: | 11 February 2025 |
1.The workers medical history, where it differs from previous records
I read Ms Hutchison the history she gave to Dr Kuru at the time of her examination on 30 August 2024. She does add that she has not gone back to work after her spinal fusion.
As far as treatment is concerned, she has now also started taking Endone ‘when the pain is bad’.
Under the heading “Present symptoms” the MA has been very brief, being less than 2 lines, and Ms Hutchison had much to add to this as will be noted.
2.Additional history since the original Medical Assessment Certificate was performed
Ms Hutchison is having significant ongoing pain in her back which she describes as being constantly present and ranging between 5-10/10. She also gets referred pain down both lower limbs, on the right side into her anterior shin region and also into the middle three toes of her right foot. She feels a burning sensation or an ‘itch’ in this distribution.
Her left leg symptoms are also described as being constant, radiating all the way down and into the lateral border of her left foot, and into her left little toe.
Symptoms are aggravated by repetitive movements or bending and lifting, or standing for long, or excessive walking, and she does get some relief by lying flat in particular, and also by sitting, but not for long periods. She does have a ‘giant pillow’ which she puts under her knees for relief, and heat also gives her some relief of her symptoms.
3.Findings on clinical examination
Ms Hutchison is an adult female with a moderate increase in her body mass index. She walks without an obvious limp and is able to walk on heels and toes. She shows significant restriction of back movement, only getting her fingertips as far as her knees, and extension and lateral flexion to either side are also restricted.
Straight leg raising became uncomfortable at 40° on the right and 60° on the left. Her knee reflexes are present and equal, her left medial hamstring reflex is present, but the right side is absent, and her ankle reflexes are present and equal.
Ms Hutchison does have satisfactory motor power of both lower limbs but she does have an interesting sensory deficit on both sides.
On the right side she has hyperaesthesia to pinprick over the dorsum of her right foot extending up the lateral border of her distal leg in an L5 distribution.
On the left side she again has hyperaesthesia over the dorsum of her left foot in an L5 distribution, and then significant hypoaesthesia over the lateral border and lateral sole of her left foot in an S1 distribution.
There was no wasting to circumferential measurement.
I elected not to palpate her back today.
4.Results of any additional investigations since the original Medical Assessment Certificate
Ms Hutchison has not had any further investigations carried out.”
The Appeal Panel considers that Dr Pillemer has conducted a thorough examination of the appellant and specifically has examined her to enable the Appeal Panel to determine whether the appellant meets the criteria of 4.27 for a finding of radiculopathy. Medical Assessor Pillemer’s findings from his examination of the appellant revealed that the appellant has radiculopathy of both lower limbs involving an L5 nerve root on the right and L5/S1 nerve roots on the left. On the right side her radiculopathy is evidenced by the absent medial hamstring reflex, hypersensitivity in the L5 distribution and the restricted straight leg raising. On the left side it is evidenced by the hypersensitivity in the L5 distribution and hypoesthesia in the S1 distribution and restricted straight leg raising.
The Appeal Panel accepts the findings of Medical Assessor Pillemer’s examination of the appellant and based on them the Appeal Panel assesses the appellant has 22% WPI based on paragraphs 4.27 and 4.33-4.35 of the Guidelines. The Appeal Panel notes that no challenge was raised with respect to these elements of the Medical Assessor’s assessment, and in any event, the Appeal Panel agrees with that. In accordance with table 4.2 within paragraph 4.37 of the Guidelines, the Appeal Panel also assesses the appellant as having an additional 3% WPI because she has had spinal surgery and has residual symptoms and radiculopathy. That brings the total of her permanent impairment to 24% WPI. From that a deduction of one-tenth is to be made under s 323(1) for the proportion the appellant’s pre-existing L5/S1 spondylolisthesis contributes to her overall impairment. The Appeal Panel observes that neither party challenged the deduction the Medical Assessor made on account of that pre-existing condition. In any event, the Appeal Panel is of the view that that pre-existing condition does contribute to the appellant’s permanent impairment from her injury and that it is difficult to determine precisely what the proportion of her permanent impairment is due to that pre-existing condition and hence the deducted proportion is to be assumed in accordance with s 323(2) of the Act to be one-tenth.
For these reasons, the Appeal Panel has determined that the MAC issued on
9 September 2024 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
Matter number: | W22402/24 |
Applicant: | Laurel Hutchinson |
Respondent: | Coles Supermarkets Australia Pty Ltd |
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 Rob Kuru 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) |
| Lumbar spine | 26/5/2022 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 24% | 1/10 | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
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