Illawarra Linen Service v Trevena
[2024] NSWPICMP 717
•17 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Illawarra Linen Service v Trevena [2024] NSWPICMP 717 |
| APPELLANT: | Illawarra Linen Service |
| RESPONDENT: | Karlyn Trevena |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Brian John Stevenson |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 17 September 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment (right hip, lumbar spine); whether Medical Assessor (MA) erred in omitting to make a deduction for pre-existing degenerative disease; whether the MA erred in allowing 2% for effects on activities of daily living; whether any part of permanent impairment resulted from a pre-existing condition and not from injury; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer, Illawarra Linen Service, appeals the Medical Assessment Certificate of Medical Assessor Crocker dated 19 June 2024. He assessed a 26% whole person impairment (20% right hip, 7% lumbar spine) as a result of injury on 26 November 2012.
On that occasion, the appellant Ms Trevena had injured her right hip and lumbar spine while pulling a trolley in the course of her employment as a process worker. On 2 November 2018, she came to right total hip replacement surgery at the hands of orthopaedic surgeon, Dr Nouh.
The Medical Assessor found that, prior to injury, there had been pre-existing degenerative conditions in the right hip and lumbar spine, which had been aggravated by injury on 26 November 2012. The appellant does not challenge these findings.
The Medical Assessor made no deduction for those pre-existing conditions because, prior to injury, they had remained asymptomatic, and the worker was able to undertake her “usual work duties of a physical nature”.
The appellant says that the Medical Assessor erred by omitting to make a deduction for the pre-existing conditions. In respect of the right hip, it says that the evidence merits a deduction of one-quarter to one-half. In respect of the lumbar spine, it says that a deduction of at least one-tenth is supported by the evidence.
It also alleges error in the allowance of 2% for the effect on activities of daily living (ADLs) made by the Medical Assessor in his assessment of the lumbar spine. It says that:
(a) on the evidence, an allowance of no more than 1% was warranted, and
(b) such limitations as were recorded “are attributable to her right hip as opposed to the lumbar spine”, and were “rated by the MA as applicable to the assessment of the outcome of the worker’s right total hip replacement”, with the result that no allowance should have been made for ADLs.
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 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).
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 it was not necessary for the worker to undergo a further medical examination because the Medical Assessment Certificate was to be confirmed, though for reasons which differed in some respects from those of the Medical Assessor.
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.
The appellant’s submissions may be summarised briefly as follows.
(a) with respect to the omission to make any deductions pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
(i)there was ample radiological and other expert evidence before the Medical Assessor to support a finding of pre-existing conditions in the right hip and lumbar spine.
(ii)Independent orthopaedic surgeon Dr Burrow, on whose assessment the worker relied, deducted one-tenth in respect of both body systems.
(iii)Independent orthopaedic surgeon, Dr Rimmer, on whose assessment the insurer relied, diagnosed pre-existing osteoarthritis of the lumbar spine and considered that right hip replacement surgery was due to degenerative osteoarthritis.
(iv)As there was evidence of pre-existing impairment in both body systems, it was not appropriate to fail to make a deduction pursuant to s 323.
(v)In respect of the right hip, the Medical Assessor expressly found that a portion of impairment was due to previous injury, pre-existing condition or abnormality, yet failed to make a deduction.
(vi)In respect of both body systems, the reason given for not making a deduction was that the pre-existing conditions were asymptomatic. This does not preclude the making of a deduction: Cole v Wenaline Pty Limited [2010] NSWSC 78.
(vii)In respect of the lumbar spine, a deduction of at least one-tenth ought to have been made.
(viii)In respect of the right hip, the clinical notes indicate that left hip osteoarthritis became symptomatic at the same time as the right hip, both required hip replacement surgery, and failing to make a deduction for the right hip was in error.
(ix)A deduction of one-tenth for the right hip would be at odds with the evidence, because hip replacement surgery would have been required at about the same time regardless of injury, as demonstrated by the arthritis in the uninjured left hip.
(x)A deduction of at least one-quarter to one-half for the right hip is appropriate.
(b) With respect to the 2% allowance for ADLs:
(i)an allowance of only 1% should have been made, as the Medical Assessor failed to account for the impact of the hip injury on these restrictions.
(ii)The history taken by the Medical Assessor is inconsistent with a 2% allowance and consistent with a 1% allowance, because the worker undertakes limited walking of her dog, did not highlight difficulties with sitting or standing, is independent in relation to aspects of personal care, and shares household tasks with her flatmate.
(iii)Some of the recorded limitations result from injury to the right hip and not from injury to the lumbar spine. They are walking with a limp, limits on extended walking and difficulty with stair use. These were all relied on by the Medical Assessor in rating the result from hip replacement surgery as “fair” under Table 17-34 AMA 5.
(iv)No allowance for ADLs should have been made, because all relevant restrictions result from injury to the right hip.
In reply, the respondent submits in summary as follows.
(a) with respect to the lumbar spine and right hip:
“The Respondent concedes that in light of the findings of the MA, and other IME’s in this matter, that there must be a deduction pursuant to s323 in respect of the right hip and lumbar spine. Moreover, the Respondent concedes that the relevant deduction with respect to the lumbar spine should be 1/10 as per [12] of the Appellant’s submissions. Hence, with respect to the lumbar spine, there is no dispute.”
(b) With respect to the right hip:
(i)on the evidence, as at the date of injury there was “at the most mild and asymptomatic osteoarthritis of the right hip and a 1/10th deduction is appropriate”.
(ii)It “can not be accepted that the level of pre-existing degenerative change … was minimal to mild at the most”. [Notwithstanding the language used, we interpret this to mean that, at most, there was minimal to mild pre-existing degenerative change.] A bone scan taken on 4 November 2015, three years after injury, did not identify degenerative change. An MRI of 27 April 2016 described only mild osteoarthritis.
(iii)The argument that the need for arthroplasty of the right hip resulted from pre-existing osteoarthritis because there has been a need for similar surgery to the uninjured left hip “holds no weight”, because the need for left hip surgery did not occur at the same time as the need for right hip surgery. On the contrary, it arose seven years after injury and three years after right hip arthroplasty.
(c) With respect to ADLs:
(i)in her statement of 24 June 2022, the respondent said the can no longer shop for groceries and carry heave bags due to injury to her back and hip, that she cannot sit in a vehicle for more than 20 minutes and struggles to walk more than 15 minutes, that she cannot lie on her right side for more than five minutes and struggles with toileting alone, that she relies on one of her children to help her vacuum and clean the house, and that she has difficulty sleeping because of the pain.
(ii)On 20 April 2023, Dr Burrows recorded that she had difficulties with home chores and requires gratuitously provided assistance for cleaning, home chores and cooking.
(iii)On 7 December 2023, Dr Rimmer recorded that her housemate assisted her with housework and shopping, and that her swimming had been affected.
(iv)The evidence should be considered as a whole.
(v)Dr Burrows and Dr Pillemer also allowed 2% for ADLs.
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.
Deductions for pre-existing conditions – right hip and lumbar spine
As indicated, there is no challenge to the findings of the Medical Assessor that there were pre-existing degenerative conditions of the right hip and lumbar spine. As the appellant submits, those findings are amply supported by the radiological and other expert evidence which was before the Medical Assessor, listed at [4] of the appellant’s submissions.
The power of the Appeal Panel to assess an appropriate deduction for pre-existing conditions arises only if it first identifies relevant error in the Medical Assessment Certificate. We interpret the respondent’s concession that “there must be a deduction pursuant to s323 in respect of the right hip and lumbar spine” as a concession that, if the Appeal Panel identifies error in the omission to make a deduction and assesses an appropriate deduction either in respect of the right hip or lumbar spine, it should make a positive deduction of some kind.
The parties are in dispute as to the appropriate amount of the deduction.
In respect of the lumbar spine, the respondent accepts that one-tenth is appropriate. The appellant contends that “at least a one tenth deduction ought to have been applied” by the Medical Assessor, and does not nominate the deduction which the Appeal Panel should assess, if error is identified.
With respect to the right hip, the appellant submits at [16] that “a section 323 deduction of at least one quarter to one half should be applied”. The respondent says that only a one-tenth deduction is indicated.
For the reasons which follow, we are satisfied that the Medical Assessor’s findings with respect to the application of s 323 demonstrate error. As the parties do not agree on the appropriate assessments to be made, it falls to the Appeal Panel to make its own assessment.
At [10b], the Medical Assessor gave the following reasons for declining to make a deduction to take account of those conditions – emphasis added:
“It is considered that deductions are not applicable by way of contributory impairment. Degenerative/arthritic changes are apparent with respect to the regions in question. Ms Trevena, however, had been able to undertake usual work duties of a physical nature prior to the subject incident. There does not also appear to have been a history of symptomatology arising to these regions prior to this.”
At [8f], he nominated the right hip as being affected by a pre-existing condition without mentioning the lumbar spine, but the passage above indicates that he considered both the right hip and the lumbar spine to be affected by pre-existing degenerative disease.
The fact that a pre-existing condition was asymptomatic prior to injury does not preclude a finding that it contributes to permanent impairment, or the making of a deduction for that contribution: Cole; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43]. That is so, even if it did not compromise work capacity prior to injury.
Having found that there was pre-existing degenerative disease in both body systems, the task of the Medical Assessor was to determine whether those conditions currently contributed to whole person impairment. They could only do so if, but for the pre-existing conditions, whole person impairment would not be so great as it currently is: Ryder v Sundance Bakehouse [2015] NSWSC 526.
The Medical Assessor’s reasons do not reveal any consideration of that issue. The omission to consider whether either of the pre-existing conditions currently contributes to impairment, applying the test in Ryder, demonstrates error. That necessitates the revocation of the Medical Assessment Certificate.
It is unnecessary to consider the appellant’s further arguments in favour of a finding of error, including the argument advanced with respect to the condition of the uninjured left hip.
ADLs
In respect of the lumbar spine, the Medical Assessor allowed 2% for effects on ADLs.
An allowance of 2% is permitted by the Guidelines at [4.35]:
“…if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances”.
Under the heading, “Social activities/ADL”, the Medical Assessor found as follows:
“With respect to activities of daily living, Ms Trevena stated that she is a poor sleeper and has difficulty getting comfortable at night.
She did not highlight particular difficulty with sitting and standing postures.
She reported that she walks ‘with a bit of a limp’. She limits more extended walking. She has difficult [sic] with stair use and utilises a handrail where possible.
She shares household tasks with her flatmate.
She undertakes limited driving.
She is independent in relation to aspects of personal care.”
The finding that she was independent in relation to “aspects of personal care” is not inconsistent with an allowance of 2%. On the contrary, the Guidelines at [4.35] only allow 2% for ADLs, “if the worker can manage personal care”. Otherwise, the allowance can be higher.
The Medical Assessor recorded that the worker shared her household duties with her flatmate. As the respondent submits, the evidence should be read together with the evidence recorded by Dr Burrow on 20 April 2023 and Dr Rimmer on 7 December 2023.
Dr Burrow recorded:
“Ms Trevena has difficulties with home chores and requires assistance provided gratuitously for cleaning, home chores and cooking.”
Dr Rimmer recorded:
“She has a housemate to assist her with housework and shopping.”
Read together with the history recorded by the Medical Assessor, these passages indicate that the respondent requires gratuitous assistance (from her flatmate, so far as the evidence goes) with usual household tasks, such as cleaning and cooking. That is sufficient to engage paragraph 4.35 of the Guidelines, and justifies a 2% allowance as made. That is so even if, as the respondent submits, the worker conceded that she undertakes limited walking of her dog, and did not highlight difficulties with sitting or standing.
The Medical Assessor was also satisfied that worker was restricted with respect to tasks of equal magnitude to household tasks, namely stair use and walking reasonable distances. That also engages paragraph 4.35 and justifies the 2% allowance made. We can identify no error in this regard.
The appellant also alleges error on the basis that there was no causal nexus between the identified restrictions and injury to the lumbar spine, as distinct from injury to the right hip. The fact that an allowance was made necessarily implies that the Medical Assessor was satisfied that the restrictions resulted from injury to the lumbar spine.
Under the heading, “Present symptoms”, he found:
“Ms Trevena is experiencing intermittent pain to the lower lumbar region, more so to the right side. This arises on a daily basis and can be of ‘strong’ intensity. She reports that pain can impact upon truncal range of motion at times.”
As indicated, he also recorded that she reported walking “with a bit of a limp”.
Intermittent pain to the lower lumbar region on a daily basis, which can be of strong intensity, is quite capable of interfering with stair use and walking reasonable distances. So, too, is walking with a limp. The finding, albeit an implied one, that the identified restrictions resulted from injury to the lumbar spine was not inconsistent with the evidence, and was at the very least reasonably open to the Medical Assessor.
The appellant also submits that, in rating the result from right hip replacement surgery as “Fair” in terms of Table 17-34 AMA 5, “the MA recorded her function included a slight limp, distance walked three blocks, and stair climbing using a rail”. That is an accurate summary of the contents of the worksheet attached to the Medical Assessment Certificate, so far as relevant, and suggests he was satisfied that these restrictions also resulted from injury to the right hip. That finding, however, is not inconsistent with a finding that there was also a causal nexus between them and injury to the lumbar spine. It was a reasonable inference that the conditions of both body systems contributed to the difficulties with stair use, restrictions on extended walking and to the limp. The Medical Assessor drew that inference, which was reasonably open on the evidence.
We can identify neither demonstrable error nor the application of incorrect criteria. This ground fails.
Assessment: deductions for pre-existing conditions
It falls to the Appeal Panel to assess whether and, if so, what deductions are to be made for the pre-existing degenerative conditions identified by the Medical Assessor.
In order to find that those pre-existing conditions contribute to permanent impairment, we must first be satisfied that, but for the pre-existing conditions, permanent impairment would be so great as it now is: Ryder.
That test cannot be not satisfied merely by a finding that a pre-existing condition contributed to injury: Southwell v Qantas Airways Limited [2024] NSWSC 497. The Medical Assessor must first:
“… conclude that a part or portion [of the assessed permanent impairment] was due to the pre-existing condition and not the workplace injury and a part or portion of the level of impairment was due to the workplace injury (alone or together with the pre-existing condition). If the only finding was that no level of impairment would have been suffered but for both the pre-existing condition and the workplace injury, it follows that no part or portion of the level of impairment was due to the pre-existing condition and not the workplace injury and, thus, s 323(1) was not engaged and no deduction was required under that section.” Southwell at [64].
Wright J added at [69]-[70]:
“[69] In practical terms in Mr Southwell’s case and on the proper construction of s 323 set out above, consideration of the required questions or issues could have been addressed by the Second Appeal Panel [by]:
(1)identifying each of the elements giving rise to the assessment of 15% WPI, namely 10% WPI attributable to the compression surgery, 3% WPI attributable to radiculopathy and 2% WPI due to the impact on his activities of daily living; and
(2)determining whether there was any part or portion of the impairment relevant to each those elements, compared to the total for each assessment, which was solely due to the pre-existing condition and not the workplace injury (alone or together with the pre-existing condition).
[70] If there were no evidentiary basis for finding that there was such a part or portion referred to in subpar (2) of the preceding paragraph, then it could not be relevantly concluded that there was ‘any proportion of the impairment … due to any pre-existing condition’. This is the substance of Campbell J’s reasoning in Ryder at [45] (which has been quoted above).”
In this case, whole person impairment with respect to the right hip was measured solely by reference to the outcome of hip replacement surgery. The Medical Assessor found at [10b] that surgery had yielded a “fair result”. Applying Table 17-33 of AMA 5, he assessed 20% whole person impairment.
As indicated, the MA found that injury to the right hip aggravated a pre-existing degenerative disease. In our view, the surgery resulted from a combination of that pre-existing disease and its aggravation on 26 November 2012. It cannot be said that any part of the surgery resulted from the pre-existing disease, and not from injury by way of its aggravation.
Applying the reasoning in Southwell, we cannot be satisfied that any of the whole person impairment, assessed by reference to the outcome of right hip replacement surgery, results from the pre-existing condition and not from injury.
It follows that the test in Ryder is not satisfied. No deduction is available in respect of the right hip.
Similarly with respect to the lumbar spine, the MA found that injury aggravated a pre-existing degenerative disease. Even if, but for the pre-existing degeneration, the effects of the injurious event of 26 November 2012 (including permanent impairment) would not have been so great as they are, it cannot be said that any part of the current impairment resulted from the pre-existing disease and not from injury. Because injury consisted in the aggravation of a pre-existing degenerative disease, we consider that the whole of the permanent impairment resulted from a combination of the pre-existing disease and injury by way of aggravation.
Applying the principle in Southwell, a deduction is not available in those circumstances.
In the result, though we have identified error in the way in which the Medical Assessor approached the issue of deductions for pre-existing conditions of the right hip and lumbar spine, the correct application of s 323 yields the same result.
There is no utility in revoking the Medical Assessment Certificate in order to replace it with an identical certificate. Though our reasons differ from those of the Medical Assessor, his Medical Assessment Certificate is confirmed.
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