Medlab Pathology Pty Ltd v Ristevski

DETERMINATION OF APPEAL PANEL
CITATION:	Medlab Pathology Pty Ltd v Ristevski [2022] NSWPICMP 332
APPELLANT:	Medlab Pathology Pty Limited
RESPONDENT:	Julianna Ristevski
Appeal Panel:	Member Deborah Moore Medical Assessor John Brian Stephenson Medical Assessor Drew Dixon
DATE OF DECISION:	18 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - The appellant claimed the Medical Assessor (MA) failed to apply an appropriate section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction to account for the worker’s pre-existing impairment in the lumbar spine arising from prior work injuries; Held — it was open to the MA to make a one-tenth deduction having regard to the nature and extent of prior injuries; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 June 2022 Medlab Pathology Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Gregory McGroder, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 9 May 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (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 WorkCover Medical Assessment Guidelines 2006.
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA 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 submits that the MA “failed to apply an appropriate section 323 deduction to account for the worker’s pre-existing impairment in the lumbar spine arising from prior work injuries.”
In reply, Julianna Ristevski (the respondent) submits that no errors were made.

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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the lumbar spine, the right upper extremity (shoulder), the left lower extremity (knee and ankle) and the right lower extremity (knee) resulting from an injury on 14 February 2008.
The MA obtained the following history:
“On 14 February 2008, on her way home from work, Mrs Ristevski was getting off a train. She put her right leg on the platform but her left leg went between the train and the platform when she overbalanced. There were obvious abrasions and severe pain involving her left leg at the time. She was assisted by by-standers and then transported by ambulance to Bankstown Hospital.
X-rays of the left leg demonstrated a fracture of the mid tibia and fibula. She was admitted under the care of Dr Clarke, Orthopaedic Surgeon. She was put into a full leg plaster and then discharged on crutches.
She continued to see Dr Clarke and after three months the plaster was removed. It was noted that there was delayed healing of the fracture and she spent a considerable time on crutches. She had a special boot.
She said that during this time she developed problems with her right knee because of favouring the left leg and also pain in her shoulders and her neck and back.
Dr Clarke organised an arthroscopy of the left knee which was done in July 2009 because of on-going pain there. He performed a patella chondroplasty. She said that this didn’t help.
Because of on-going problems with her right knee, in December 2009 she had an arthroscopy there, once more with a patella chondroplasty but on this occasion she developed septic arthritis. She was treated for a considerable period of time on intravenous and then oral antibiotics.
She was then non weight-bearing and she said that during this time her widespread symptoms all worsened.
On one occasion Dr Clarke drained some fluid from her right knee.
Scans involving her shoulders demonstrated bilateral impingement and bursitis. Investigations involving the knees demonstrated arthritic changes. Investigations involving the spine demonstrated spondylitic changes.
In 2011 she received a settlement from the Workers Compensation Commission for injuries to the lower back and both lower extremities.
She said that since that time her condition has deteriorated.
She said that the only specific incident that occurred during this time was when she was hit by a vehicle that reversed into her in 2016. She said that this gave her a temporary increase in her back pain but then it returned to background level.
It appears that little happened after 2011 until she changed her GP’s from Dr Hui to Dr Gill. She was subsequently referred to Dr Paolini, Sports Physician, who she saw in December 2018. Dr Paolini organised further investigations and bone scans demonstrated significant uptake in the facet joints throughout the spine. She had cortisone injections into the cervical and lumbar spines.
Dr Paolini then organised a series of Traumeel injections and she has been having these until the present time. They have been into her right shoulder, into her hips, her neck and her knees. The last of these was done two weeks ago into the neck. She will continue to see Dr Clarke and have more of these. This is despite the fact that she says that they have made no difference to her condition.
Her most recent investigations were done only a matter of weeks ago. An MRI of the lumbar spine demonstrated spondylitic changes with discosteophyte complexes, exit foraminal narrowing and potential nerve root impingement bilaterally at L5 and to the left at S1. An ultrasound of the right shoulder suggested supraspinatus tendinopathy and bursitis and a possible longitudinal split/tear of the biceps tendon. It demonstrated no evidence of adhesive capsulitis. She will be showing these investigations to Dr Paolini when next she sees him.”
After setting out details of the respondent’s treatment, the MA then noted present symptoms as follows:
“She said that at the moment her worst problem involves her lower back with pain through both her hips and down through both her legs into her knees and her ankles. She finds that she has difficulty bending and lifting because of her back pain and difficulty maintaining fixed positions. She cannot find a comfortable position on occasion and has to move around and mobilise but most mobilisation creates problems with her legs. She cannot kneel or squat because of knee pain. She has difficulty with stairs, both going up and down. She gets pins and needles in her feet, mostly on the left. Her legs generally feel weak and she thinks that they will collapse.
She has constant neck pain radiating through to both shoulders and she has restricted range of movement of both her shoulders. She said that she has been told that she has a frozen shoulder on the left. Her right at the moment is more painful than the left and there is restriction of range of movement and all movements create pain. “
The MA then turned to consider “Details of any previous or subsequent accidents, injuries or condition” stating:
“She had a number of claims with regard to nature and conditions of her employment in March 2001, February 2002 and February 2003. They involve predominantly her lower back and her right arm. She was investigated with regard to her lower back and there was evidence of disc pathology at L4/5 and L5/S1 but medical reports demonstrate no evidence of radiculopathy. Because of these problems, however, she was re-deployed into a pathology collector from her usual work in a nursing home
In 2016 she was knocked over by a car that reversed into her and she said that this increased her low back pain but only temporarily. She was treated with analgesics at the time.”
Findings on examination were reported as follows:
“She presented with flat affect and was teary throughout her assessment.
She was of average build. She had normal spinal alignment. She had even though unsteady gait. She could walk on heels and toes, although with some difficulty. She could only perform part of a squat because of knee and back pain. On assessment of range of movement of the thoracolumbar spine, forward flexion was to three-quarters of the expected range but it was noted that there was deviation towards the right on movement and subsequently lateral movement and rotation were restricted toward the left more so than the right. Backward extension was minimal. Straight leg raising was 30 degrees on the left and 50 degrees on the right. She could extend her legs from a seated position with negative neural tension tests. Generalised weakness was noted on specific testing of the lower extremities but nothing specific. The left calf was, however, 1cm less in circumference than the right at 39cm compared to 40cm. Thigh circumference measured 10cm suprapatella was 46cm bilaterally. Reflexes were equal and normal. There was a sock distribution of increased sensation of the left foot relative to the right.
She demonstrated restriction of range of movement of the cervical spine in all directions although this varied at different times during her assessment. On assessment of range of movement of the shoulders she displayed minimal movement on the left. On the right flexion was to 110 degrees an extension 30 degrees. Abduction was 110 degrees and adduction 30 degrees. Internal rotation was 60 degrees and external rotation 70 degrees. She complained of increasing pain throughout the range of movement. There was tenderness to light touch globally around the neck and shoulder areas. There was no neurological abnormality involving the upper extremities, although general decreased strength was noted in both upper extremities.
On examination of range of movement of the knees, this was equal bilaterally. She was reluctant to flex her knees on the examination couch but it was noted that when testing in a seated position for crepitations that she could flex her knees to 110 degrees and there was full extension. There was no instability. There was a mild effusion on the right. There were crepitations noted throughout the range of movement including retropatellar crepitations. There was tenderness on patella glide and tenderness in both patellofemoral areas.
With regard to the ankles, there was equal range of movement bilaterally with plantar flexion being to 60 degrees and extension to 15 degrees. Hindfoot measurements demonstrated inversion to 30 degrees and eversion to 20 degrees. There was no ankle tenderness and no instability noted.
The MA then set out in detail all the radiological material he had before him before summarising the injuries and diagnoses as follows:
“In an accident on 14 February 2008 Mrs Ristevski sustained a fracture to her left leg in the form of a fractured tibia and fibula. This was treated conservatively with plaster. Whilst there was a primary injury to the left leg there were consequential injuries to the right leg and the back and right shoulder.
Her current presentation with regard to the lumbar spine is multifactorial back pain. She has rotator cuff tendinopathy involving the right shoulder and bursitis. She has bilateral chondromalacia patella.”
He added: “Significant pain behaviour was noted but overall no relevant examination inconsistencies.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied “Yes…the lumbar spine.”
He added: “There was a road traffic accident in 2016 but Mrs Ristevski said that there was only a temporary increase in her lower back condition.”
The MA then set out his opinion and assessment of WPI stating:
“For the lumbar spine I have assessed 5% WPI.
For the right upper extremity I have estimated 7% WPI.
For the left lower extremity I have estimated 2% WPI.
For the right lower extremity I have estimated 2% WPI.
This is a combined total of 16% WPI.”
He explained his calculations as follows:
“With regard to the lumbar spine, according to Table 15.3, Mrs Ristevski qualifies in DRE Lumbar Category 2 at 5 to 8% WPI. There is a history of injury with dysmetria noted on examination. There is no evidence of radiculopathy that would suggest a higher category. I have added 1% for the effect on ADL’s as the relevance of her lumbar condition to the effect on ADL’s is minimal compared to her other complaints. This is 6% WPI. After a one-tenth deduction, this is 5% WPI.
With regard to the right upper extremity, range of movement has been used to assess impairment, according to Figures 16.40, 16.43 and 16.46. Flexion to 110 degrees is 5% UEI and extension to 30 degrees is 1% UEI. Abduction to 110 degrees is 3% UEI and adduction to 30 degrees is 1% UEI. Internal rotation to 60 degrees is 2% UEI and external rotation to 70 degrees is 0% UEI. This is a total of 12% UEI, which converts to 7% WPI.
With regard to the lower extremities, there is no impairment for restricted range of movement as I noted that the range of movement involving the knees and the left ankle were outside the range that qualified for impairment.
Both knees, however, qualify under the Arthritis Table 17.10, where the footnote suggests that with a history of direct patella trauma with retropatella pain and crepitations a 2% WPI is given. On the left leg, according to Table 17.6, 1cm wasting of the calf is 2% WPI. This cannot be combined with the Arthritis Table and the impairment remains at 2%. There is no deduction for a pre-existing condition.”
The MA then turned to consider the other medical opinions stating:
“Dr Philippa Harvey-Sutton saw Mrs Ristevski on behalf of the Workers Compensation Commission on 9 May 2011. The referred body parts were the lumbar spine, the right and left lower extremities. Dr Harvey-Sutton on that occasion estimated DRE Lumbar Category 1 at 0% WPI. Dr Harvey-Sutton noted some restriction of range of movement of the knees and ankles which qualified for impairment, although I found a full range of movement today. Dr Harvey-Sutton found assessment under the Arthritis Table as I did. She noted the muscle-atrophy which could not be combined and subsequently her total WPI was 6% for the left lower and 4% for the right lower extremity. She was not referred the shoulders.
Dr Z Poplawski, Orthopaedic Surgeon, supplied a medico-legal report dated 5 September 2018. Dr Poplawski, for the lumbar spine, assessed DRE Category 2 with no addition for ADL’s as he attributed this to the cervical spine. I added 1% for ADL’s for somewhat the same reason as Dr Poplawski. For the right shoulder he assessed 8% WPI and this is not dissimilar to my findings. He used the Arthritis Table to assess 2% WPI for both knees. Overall, my findings are not dissimilar to those of Dr Poplawski, although the main difference is that I was not referred the cervical spine or the left shoulder.
Dr V Panjratan, Orthopaedic Surgeon, supplied a medico-legal report dated 2 September 2019. Dr Panjratan estimated DRE Lumbar Category 1 because of lack of clinical findings, although I felt that she qualified for DRE Category 2 based on my assessment today. Dr Panjratan, for the shoulders, estimated by analogy 2% WPI but did not feel that this was work related. For the knees, he estimated 2% WPI for each knee under the Arthritis Table and I would agree with Dr Panjratan on this.
There are numerous medico-legal reports in this lady’s file prior to her 2011 settlement with regard to her injury that is the subject of this report with conflicting opinions.
There are a number of medico-legal reports in her file with regard to work related injuries on 4 March 2001, 20 February 2002, 25 February 2003 and nature and conditions of her work from January 2000 to March 2004. They include Dr Fearnside and Dr Nash. They note that investigations involving the lumbar spine from injuries sustained at that time demonstrated disc pathology at L4/5 and L5/S1. She was placed in DRE Lumbar Category 2.
A treating doctor report from Dr J O’Neill, Neurologist, from 27 May 2005 was provided and he noted that this lady sustained injuries to predominantly her right upper extremity and her lumbar back and that her lumbar pain was a result of the disc pathology at L4/5 and L5/S1.
Dr J Paolini, Sports Physician, supplied treating doctor reports from 10 December 2018. He noted widespread pain which he attributed predominantly to arthritis. He documented administering facet blocks in the cervical and lumbar spines and Traumeel injections into various body parts.”

The MA added:
“(a) In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)A history of prior low back pain from 2001 with disc pathology noted on investigations.
(b)The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(ii)The back condition pre-existing the accident that is the subject of this report and would be contributing to her current level of impairment.
(c) 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. (can only be used when not at odds with available evidence).”
The s 323 deduction issue raised by the appellant relates principally to prior work injuries. The appellant submits as follows:
“This includes an injury on or about 20 February 2002, in respect of which the worker received lump sum compensation for 6% WPI (lumbar spine) as evidenced by the Certificate of Determination dated 28 July 2005…
The MA observed that there were medico-legal reports available to him which addressed the prior work-related injuries on 4 March 2001, 20 February 2002, 25 February 2003 and nature and conditions from January 2000 to March 2004…
The MA further detailed that the worker ‘was placed in DRE lumbar category 2.’
The Appellant notes the evidence of the worker’s pre-existing impairment includes:
a. Report of Dr Paul Miniter dated 23 May 2005 which provides an assessment of 6% WPI lumbar spine.
b. Report of Dr Peter Kendall dated 2 December 2004 which provides an assessment of 7% WPI lumbar spine.
c. Report of Dr Michael Fearnside dated 15 November 2004 which provides an assessment of 6% WPI lumbar spine (pg. 175 Reply.
d. Report of Dr Thomas Nash dated 29 November 2004 which provides an assessment of 5% WPI lumbar spine.
Despite this, the MA went on to apply only a one-tenth deduction under section 323. The Appellant submits that this was inappropriate as it was clearly at odds with the evidence; given the above assessments, the prior award for 6% WPI and the fact the MA observed that the worker had been assessed as falling into DRE lumbar category II for the pre-existing condition/injury.
The Appellant refers to the decision of Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole) which provides (at [32]):
‘It does not matter that the pre-existing condition was asymptomatic, and if the loss is to some extent due to the pre-existing condition there must be deduction of the deductible proportion for that loss. But it is necessary that the pre-existing condition was a contributing factor to causing the loss. And, of course, it is necessary that there was a pre-existing condition’.
It was further stated, at [16]: ‘In making an assessment as to whether any deduction should be made under s323, consideration must be given to the evidence as to the impairment suffered. Even if a previous injury was asymptomatic, if it is concluded on the evidence that it contributed to the impairment present after the second injury, it must lead to a deduction. If the previous injury was, however, not a contributing factor to that impairment, there can be no deduction made.’
In line with the principles in Cole, the Appellant submits that a deduction of 6% WPI ought to have been applied by the MA as this pre-existing impairment is clearly evidenced from the agreement reflected in the Certificate of Determination dated 28 July 2005 (pg. 18 Reply). Noting the contemporaneous medical evidence in line with the prior award, the Certificate of Determination provides an accurate reflection of the deductible proportion.
In accordance with section 323(2) of the 1998 Act, a one-tenth deduction should only be used where the extent of the deduction would have been difficult or costly to determine. This was not the case in the circumstances, whereby the evidence of pre-existing impairment in the lumbar spine was clear and allows for a precise calculation of the pre-existing impairment to be applied.”

The respondent submits as follows:
“The appellant’s submissions do not refer to the MAC of Dr Philippa Harvey-Sutton of 9 May 2011 which is also referred to by the MA and which gave a finding of DRE 1 for the Respondent’s lumbar spine at that time. There were also other doctors who have over the years given the Respondent a rating of DRE 1 for the lumbar spine and these are referred to in the MAC of the MA.
The Appellant has in effect referred to the evidence of the doctors it has referred to above. This evidence is not binding on the MA and the passages of Cole make this clear. The MA must assess to what extent the pre-existing condition contributes to the WPI that he finds on his/her examination. It is not a mathematical equation that is applied.
In this case a 10% deduction is appropriate because of the wide variety of medical opinions that predate the MA’s assessment on 26 April 2022.”
At the outset, we point out that Chapter 1.6 of the Guidelines provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment,,,”
It is not disputed that the respondent sustained a number of prior injuries to her back but they were different types of injury, and considerable dispute amongst various doctors who have examined her over the years as to the nature and extent of the various injuries.
For example, when Dr Harvey-Sutton saw the respondent on 29 April 2011 she reported her findings on examination as follows:
“On inspection of the back, the posture, alignment and contour were normal. There was generalised reported tenderness over the lumbar spine centrally and paracentrally. There was no muscle spasm and no muscle guarding. There was no asymmetry of back movements; with half normal range of forward flexion and extension and half normal range of latera! bending to the right and left and symmetrical rotation…
A CT scan of the lumbar spine dated 7 May 2009 reports: Degenerative changes through the lumbar spine, with mild canal stenosis at the L3/4 and L4/5 levels. No neural foraminal stenosis…
In relation to the LUMBAR SPINE, there are no clinical signs of injury-no muscle spasm, no muscle guarding, no asymmetry of back movements, and no non verifiable radicular complaints, and no signs of clinical injury, and thus there is a DRE Impairment Category Rating 1 of the lumbar spine…”
On 2 September 2019 Dr Panjratan opined: “Ms Ristevski also falls into DRE Lumbar Category I for the lumbar spine, which is consistent with the findings of Dr Phillipa Harvey-Sutton who examined her on 9 May 2011…”
He added: “Regarding the low back pain, again it was controversial and Dr Robert Breit… put her in DRE Lumbar Category I. He also gave her 2% WPI for each knee.”
The appellant accepted liability “in relation to injuries to your left and right lower extremity and lumbar spine arising from the work incident.”
Earlier agreements between the parties were by way of consent, with no specific findings made by the Workers Compensation Commission or its predecessor.
The current claim was essentially in respect of a deterioration of the respondent’s condition.
The radiological material certainly supports such a deterioration.
We also observe that the respondent returned to work after the earlier injuries with different employers, but was unable to following her injuries with the appellant.
In our view, it was open to the MA at the time of his assessment to conclude that on physical examination, she fell into DRE Category II.
In terms of the deduction, the MA clearly noted “A history of prior low back pain from 2001 with disc pathology noted on investigations” and accepted that “The back condition pre-existing the accident that is the subject of this report would be contributing to her current level of impairment.”
Again, having regard to the history going back to 2001, the respondent’s continued work (indicating that her earlier injuries settled down to a degree as is often the case) together with the findings on examination and the radiological material confirms to us that it was open to the MA to apply a one-tenth deduction.
This is particularly so given the earlier assessments of DRE 1.
As the respondent points out:
“The MA must assess to what extent the pre-existing condition contributes to the WPI that he finds on his/her examination. It is not a mathematical equation that is applied. In this case a 10% deduction is appropriate because of the wide variety of medical opinions that predate the MA’s assessment on 26 April 2022.”
We agree.
For these reasons, the Appeal panel has determined that the MAC issued on 9 May 2022 should be confirmed.

[2022] NSWPICMP 332

18 August 2022