Lifestyle Solutions (Aust) Ltd v Furness

DETERMINATION OF APPEAL PANEL
CITATION:	Lifestyle Solutions (Aust) Ltd v Furness [2023] NSWPICMP 375
APPELLANT:	Lifestyle Solutions (Aust) Pty Ltd
RESPONDENT:	Danielle Furness
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	7 August 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; lumbar spine injury; there was no complaint on appeal about the overall assessment of impairment; the Medical Assessor (MA) made a deduction of one-tenth under section 323 to account for the pre-existing condition, abnormality or injury; the employer appealed; the deduction was upheld but a mathematical error identified by the parties in the MA’s calculation of the deduction was corrected; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 May 2023 Lifestyle Solutions (Aust) Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Long, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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 (the 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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.
The appellant did not seek that the worker be re-examined. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent a finding of error the Appeal Panel has no power to require a worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

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.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Date of injury:   2 July 2008
·        Body parts/systems referred:      Lumbar spine
Scarring (TEMSKI)
·        Method of assessment:               Whole Person Impairment”
The Medical Assessor issued a MAC as follows:

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

2.07.2008

Chapter 4: The Spine;
Pages 24-30 – Page 29; 4.37

Page 384, DRE Lumbar Category IV

22%

1/10

20.78% rounded up to 21%

Skin (scarring)

2.07.2008

TEMSKI Chapter 14: The Skin,
Page 73-76; TEMSKI
Page 74

Guidelines Page 74; 14.6

0%

Nil

0%

Total % WPI (the Combined Table values of all sub-totals) Rounding off AMA5, Page 20; 2.5d

21%

The employer appealed.
There was no complaint on appeal about the assessment for scarring or the assessment of 22% whole person impairment (WPI) as the overall impairment assessment for the lumbar spine.
The Medical Assessor made a deduction of one-tenth under s 323 of the 1998 Act. The complaint on appeal concerned only the deductible proportion under s 323 of the 1998 Act.
There is a matter of agreement and that is the Medical Assessor made a deduction of one-tenth from the overall impairment assessment of 22% but made a mathematical miscalculation. It is agreed by the parties that the Medical Assessor made an error in calculation by calculating the deduction as resulting in 20.78% rounded to 21%. In fact a deduction of one-tenth represents a deduction of 2.2 % or 19.8% rounded to 20%. In the event the Appeal Pable confirmed the deduction of one-tenth it is agreed by the parties that the MAC will need to be revoked to correct this error.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and made a demonstrable error as follows:
·        By giving insufficient weight to the evidence as to the extent of the respondent’s pre-existing condition.
·        By giving too much weight to prior evidence assessing impairment that is not binding on the present assessment having regard to the changing situation of the respondent.
·        By failing to properly consider the evidence, the Medical Assessor has erred in concluding that it was too difficult or costly to determine the extent of the respondent’s impairment that was due to pre-existing, injury, condition or abnormality.
·        By failing to consider the extent to which the respondent ‘s pre-existing condition contributed to her current level of impairment by instead considering the extent of actual impairment the respondent worker had already sustained prior to her work injury.
·        By his conclusion that the application of the deductible proportion of one-tenth is at odds with the available evidence and inconsistent with the relevant tests relating to s 323.
In summary, the respondent worker submitted that the Medical Assessor, in making a deduction of one-tenth under s 323, did not make an assessment on the basis of incorrect criteria and did not make a demonstrable error and that the MAC should be confirmed.
The respondent worker points out in submissions that the appellant contends that a deduction of one-tenth was in error but fails to make any submissions about what the extent of the deduction should be. The appellant does not appear in submissions to seek to rely on the views of the independent medical expert (IME) qualified on their behalf Dr Smith who considered there was no impairment from injury and her condition was entirely a constitutional one.
The role of the Medical Assessor is to make an independent assessment in the day of examination using his or her clinical expertise.
A Medical Assessor can only make a deduction under s 323 if the preexisting condition, abnormality or injury has contributed to the overall level of permanent impairment assessed.
In the event it would be too difficult or costly to calculate the deduction, a deduction of one-tenth is to be applied as long as a one tenth deduction is not at odds with the available evidence.
The Medical Assessor recorded a history as follows:
“•      Ms Furness confirmed the following description, as described in her signed statement of 12 January 2023:
‘On 2 July 2008, during the course of my employment with Lifestyle Solutions, I was attacked by a large, strong male client. As a result, I suffered an aggravation of a pre-existing condition in my lower back. I had previously been diagnosed with spondylolisthesis with bilateral pars defects at L5/S1, which was well managed with pain relief medication when required and regular stretches and exercise. I was capable of working full-time without restrictions and I was not restricted from engaging in any of my recreational or domestic activities… In 2011, I received lump sum compensation in respect of 6% Whole Person Impairment… After my work injury, my symptoms never resolved and my condition gradually deteriorated over the years, until I eventually required surgery. The need for surgery was foreshadowed by Dr Giblin in his initial assessment of me in 2011 when I had my initial claim for lump sum compensation…’ (My emphasis.)
·        It was noted that Dr Peter Giblin, Orthopaedic Surgeon, in a report of 15 March 2011, found an impairment of the lumbar spine at 7% Whole Person Impairment from which he made a deduction of one-tenth for pre-existing injury conditions and abnormality resulting in a 6% Whole Person Impairment. There was no evidence of radiculopathy at that time.
·        Under “Prognosis”, Dr Giblin indicated:
‘Her condition is stable but her symptoms will persist indefinitely and will be associated with ongoing physical restriction… She remains fit for her current sedentary work environment, but would be permanently unfit for her normal pre-injury duties in an unrestricted fashion… In my view, she is not a candidate for imminent surgical considerations, but this cannot be excluded in the future. Surgical considerations would include, but not be limited to, a lumbosacral discectomy and fusion…’
·        Following the work injury of 2 July 2008, Ms Furness was off work for approximately three years and then returned to modified duties full time. She had continued working in spite of ongoing pain in her back with some radiation into the right lower extremity.
·        Ms Furness’ employment was terminated in March 2018.
·        A consultation with Dr David Wang, dated 3 May 2013, indicated:
‘Highly anxious, on Zoloft 50 mg daily… lower back pain had flared up.
Diagnosis: Spondylosis, lumbosacral. Depression/anxiety.’
Some further consultations in 2013 were because of her emotional symptoms and back pain.
Later consultations were with regard to left knee pain and lateral epicondylitis, as well as ongoing depression/anxiety. Later recorded symptoms were associated with a diagnosed uterine fibroid. Various injuries related to falls and associated with knee pain were recorded, but there was no record of increased lumbar back symptoms.
·        Ms Furness was referred on 22 February 2018, to Dr Mark Sheridan, Neurosurgeon, by Dr Fiona Elliott:
‘For opinion regarding chronic lower back pain. She has suffered from acute episodes since her early 20s. She has tried conservative treatments during acute episodes with physiotherapy and simple analgesics. Her most recent CT scan does show possible L5 nerve root compression and this correlates with her symptoms of right-sided sciatica…’
·        An MRI scan confirmed the L5/S1 spondylolisthesis with bilateral L5 nerve compression, consistent with her symptoms.
·        A bone scan revealed active inflammation at the L5/S1 disc. Surgical treatment was advised, but refused under workers’ compensation. However, as a public patient on 26 May 2020, Dr Sheridan performed a posterior L5 laminectomy, rhizolysis L5/S1 nerve roots, discectomy L5/S1 and interbody cage insertion with bone grafts.
·        Postoperative deep venous thrombosis of the left lower extremity required treatment with anticoagulants for three months. A subsequent ultrasound revealed the thrombosis had completely resolved.
·        Ms Furness’ postoperative course was uncomplicated. Symptoms of radiculopathy reduced, although she continued to have some lumbar back pain. Overall, her symptoms were diminished. She received postoperative physiotherapy and an exercise rehabilitation programme was undertaken.
·        Present treatment:
·Palexia 150 mg in the morning, 50 mg quick release Palexia at night
·Maxigesic (a combination of paracetamol and ibuprofen) up to six tablets a day
·Fortnightly “remedial massage”, which has been beneficial
·Regularly attends general practitioner for medication prescriptions
·Cymbalta 120 mg at night
·Endep 10 mg in the morning
·        Present symptoms:
·A burning pain across the buttocks and lower lumbar back, aggravated by physical activity, prolonged sitting and prolonged driving. The pain is aggravated by twisting motions, particularly the movements required when cleaning following a bowel action.
·Marked stiffness of the lumbar back in the morning, which gradually increases with activity throughout the day.
·No history of radiculopathy, although occasionally in cold weather there is non-specific pain in the right leg.
·        Sleep: Poor, because of back pain. The purchase of an expensive bed has not helped.
·        Micturition/Bowel/Gastrointestinal: No abnormal urinary, bowel or gastrointestinal symptoms.
·        Emotional Factors: Ms Furness has suffered with depression and anxiety throughout her life, but these symptoms were aggravated by the work injury and subsequent aggravation of her back pain. Apart from taking antidepressant drugs, she continues to consult by telehealth with a psychologist in Sydney since she moved to Queensland three years ago in order to be close to a supportive sister.
·        Details of any previous or subsequent accidents, injuries or condition:
·        Since the previous settlement for the work injury on 2 July 2008, there has been no specific injury to Ms Furness’ lumbar back and she was learning to live with her ongoing back and right leg symptoms until they were spontaneously aggravated in 2018.
·        Other injuries, including to her knees associated with a fall, were noted and in 2014/2015, Ms Furness sustained a fracture of the right ankle. Various right ear infections were recorded.
·        Ms Furness emphasised that although she had intermittent back pain prior to the work injury of 2 July 2008, that injury was responsible for subsequent increase in her lumbar back pain and right sciatica. These symptoms continued from the injury of 2 July 2008, but did not require specific treatment until they increased in 2018.
·        General health before the Injury:
·Tobacco:      20 cigarettes per day
·Alcohol:        Some intake
·Chronic exertional asthma, requiring long term treatment with Singulair 10 mg when symptoms are present.
·Allergic to morphine.
·Arthritis, troubled by pain in the right and left knees.
·        Other Operations:
·Appendicectomy aged about 15 years
·23 March 2016, open operation to remove uterine fibroid
·        Work history including previous work history if relevant:
·Ms Danielle Furness left school about Year 9 when she was aged 15 years. Initially, she undertook warehouse work, which continued on and off for about 10 years. She worked as a community support worker for approximately two years prior to the work injury of 2 July 2008. Following that injury, she was off work for approximately three years before returning to modified duties. Her employment was terminated in March 2012. She continues to care for two children aged 11 and 9 years, for which she receives a carer’s pension.
·Ms Furness continues to live alone with the children in rented accommodation provided by her supportive sister.
·Other Activities:
·Walking: Restricted to approximately five minutes because of increasing tightness and pain in the lumbar back.
·Running: Impossible.
·Standing: Limited to about five minutes.
·Bending: Is possible provided she has support.
·Kneeling/Squatting: Difficult because of her back stiffness.
·Sitting: It is necessary to move about and she prefers a seat with good lumbar support, particularly when driving.
·Lifting: She has been advised to avoid lifting.
·Stairs: Able to negotiate stairs with a supporting rail.
·Slopes/Uneven Ground: Negotiated with care.
·Driving: She is able to drive an automatic vehicle for up to 50 minutes, limited by back pain.
·Domestic Activities: All household chores are undertaken by herself in her own time.
·Social activities/ADL: Limited as her time is devoted to the children. She enjoys reading and watching television.”
The Medical Assessor conducted a thorough physical examination and recorded his findings about which there is no complaint on appeal.
The Medical Assessor had regard to the special investigations as follows:
“28 May 2018, Regional Bone Scan with SPECT/CT of the lumbar spine, reported by Dr I Brittain:
‘Discovertebral degenerative arthritis at L5/S1 level of the lumbar spine…’
28 June 2018, MRI scan of the lumbar spine, reported by Dr M Waterland:
‘Comment: There is a Grade 1 spondylolisthesis with bilateral pars defects at L5/S1. There has been an increase in the foraminal narrowing at L5/S1 bilaterally since the study of 15/8/2008 and there is effacement of the L5 nerve roots bilaterally within the foraminae…’
7 September 2020, CT scan of the lumbar spine, South West Radiology:
‘Conclusion: There has been a laminectomy at L5 with posterior fusion between L5 and S1. Disc spacer noted. Artefact limits assessment of soft tissues at the L5/S1 level. Minimal disc bulge posteriorly at the L4/L5 level. There is mild anterolisthesis of L5 on S1 of 9 mm. This appears to be due to pars defect. Otherwise normal CT scan examination of the lumbar spine…’’.
The Medical Assessor summarised the injury and his diagnosis as follows:
“As a result of an injury, Ms Danielle Furness, who is now 46 years of age, sustained an injury to her lumbar spine at work on 2 July 2008. This caused an aggravation of a pre-existing, symptomatic spondylolisthesis at L5/S1. She was treated conservatively, but remained off work for three years before returning to modified duties in spite of ongoing lumbar back pain and some right-sided sciatica. Because of her symptoms and the need to care for two children, she ceased work in March 2012 and has since worked as a carer for the children.
Ms Furness had ongoing pain in her lumbar back with sciatica, affecting the right leg, but required no specific treatment for this until the symptoms increased with radiculopathy in the right leg early in 2018.
Successful lumbar spinal fusion and rhizolysis of L5/S1 was undertaken on 26 May 2020, together with an interbody spinal fusion with cage and bone graft at L5/S1.
Ms Furness continues to have pain and stiffness in her lumbar back and occasional non-specific pain in cold weather, in the right leg.
Clinical examination revealed an uncomplicated posterior midline lumbar operation scar with restricted movement of the lumbar back, but there is no evidence of radiculopathy in the right or left lower extremities.
Throughout her life, Ms Furness has been troubled with emotional problems, which have been aggravated by the work injury of 2 July 2008 and subsequent events. She continues to take antidepressant and anxiety drugs and receive counselling. Apart from analgesics, she benefits with fortnightly massage.
· consistency of presentation
There were no inconsistencies throughout the consultation.”

In respect of the deductible proportion the Medical Assessor noted that there was “pre-existing symptomatic spondylolisthesis in the lumbar spine.” In making his assessment, he stated that he had:
“taken into account the lumbar spinal fusion with good result without radiculopathy, pre-existing, symptomatic degenerative changes and spondylolisthesis of the lumbar spine, prior to the work injury of 2 July 2008. Continuation of lumbar spinal symptoms and pain in the right leg since the settlement for the injury of 2 July 2008 made in October 2012 (6% WPI of the lumbar spine).”
The Medical Assessor provided the following reasons for making a deduction of one-tenth:
“The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.
This is based on the fact that prior to the work injury, although the worker had symptoms related to her lumbar spine, these had not interfered with her work or daily activities. This level of deduction was made in the previous settlement.”
The appellant complained that the Medical Assessor gave insufficient reason for limiting the deduction to one-tenth and that he simply relied on the previous settlement.
The MAC must be read as a whole. The deduction is based on the pre-existing condition contributing to the overall level of permanent impairment assessed, and noting that although the pre-existing L5 S1 pars defect is a congenital disorder, the respondent worker was able to work normally with only the occasional symptoms until her injury.
The Medical Assessor has taken account of the history given by the worker which, despite the submissions of the appellant to the contrary, is consistent with the other evidence before him, that although:
“she had intermittent back pain prior to the work injury of 2 July 2008, that injury was responsible for subsequent increase in her lumbar back pain and right sciatica. These symptoms continued from the injury of 2 July 2008, but did not require specific treatment until they increased in 2018 leading to surgery”.
The level of permanent impairment assessed results from the surgery because the surgery places takes her from Diagnosis -related Estimates (DRE) II to DRE IV. A deduction can only be made if there pre-existing condition has contributed to the level of permanent impairment assessed. While the pre-existing condition clearly has to be taken into account (and it is not argued otherwise by the respondent worker), the deduction of one-tenth is not at odds with the available evidence and is adequately explained when the MAC is read as a whole. The Medical Assessor made a statement that “this level of deduction was made in the previous settlement”. In the appeal panel’s view he is merely stating the fact that it was made without the Medical Assessor having obviated his own clinical judgment by deference to the previous settlement.
The deduction of one-tenth is confirmed by the Appela Panel but the mathematical error requires correction and accordingly the MAC will be revoked.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W364/23
Applicant:	Danielle Furness
Respondent:	Lifestyle Solutions (Aust) 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 Michael Long 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	2.07.2008	Chapter 4: The Spine; Pages 24-30 – Page 29; 4.37	Page 384, DRE Lumbar Category IV	22%	1/10	19.8% rounded up to 20%
Skin (scarring)	2.07.2008	TEMSKI Chapter 14: The Skin, Pages 73-76; TEMSKI Page 74	Guidelines Page 74; 14.6	0%	Nil	0%
Total % WPI (the Combined Table values of all sub-totals) Rounding off AMA5, Page 20; 2.5d					20%

[2023] NSWPICMP 375

7 August 2023