Nadj v The Salvation Army (NSW) Social Work
[2024] NSWPICMP 723
•21 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nadj v The Salvation Army (NSW) Social Work [2024] NSWPICMP 723 |
| APPELLANT: | Mirjana Nadj |
| RESPONDENT: | The Salvation Army (NSW) Social Work |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | John Garvey |
| DATE OF DECISION: | 21 October 2024 |
| DATE OF AMENDMENT: | 14 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Lead Assessor assessed 0% whole person impairment (WPI) of the digestive tract, 0% WPI of the lumbar spine, 0% WPI of the right knee, and 4% WPI of the left knee; Non-lead Assessor assessed 6% WPI in respect of sleep disorder; worker appealed assessments of sleep disorder, lumbar spine, right and left lower extremities, and digestive tract; Held – Medical Appeal Panel (Panel) found no error in assessment of digestive tract, sleep disorder, lumbar spine; Panel satisfied that there was an error in the bilateral knee assessment; worker re-examined and Panel assessed 0% WPI in respect of the right knee and 4% WPI in respect of the left knee; assessment of WPI by the Panel is the same as that made by the Lead Assessor and review did not lead to a different result; Medical Assessment Certificate’s of Lead Assessor and Non-lead Assessor confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 June 2024 Mirjana Nadj (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Associate Professor Truskett (Lead Assessor), and by Professor Grainge (Non-lead Assessor), who both issued Medical Assessment Certificates on 23 May 2024.
The appellant has appealed against the non-Lead Medical Assessment Certificate (MAC) of Professor Grainge dated 23 May 2024 and the Lead MAC of Dr Truskett dated 23 May 2024.
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 in the Lead MAC of the Lead Assessor and in the non-lead MAC of the Non-lead Assessor. 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, 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 lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 20 September 2023 in which she claimed an amount of $181,500 in respect of 65% whole person impairment (WPI) of the left lower extremity, right lower extremity, left upper extremity, right upper extremity, respiratory system, nervous system and digestive system as a result of the injury on 29 July 2015.
In a Certificate of Determination – Consent Orders (COD) dated 18 December 2023, Member Peacock made the following orders:
“1. The proceedings in respect of the claim for compensation for weekly benefits and medical expenses discontinued.
2. Award for the respondent in respect of injury to and/or consequential condition in the neck/nervous system.
3. Award for the respondent in respect of injury to and/or consequential condition in the left upper extremity.
4. Award for the respondent in respect of injury to and/or consequential condition in the right upper extremity.
5. Award for the respondent in respect of injury to and/or consequential condition in the right lower extremity (ankle).
6. The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) Date of Injury: 29 July 2015
(b) Body systems/parts: right lower extremity (right knee); left lower extremity (left knee), scarring to right lower extremity (right knee); sleep disorder; gastrointestinal; lumbar spine.
(c) Method of assessment: whole person impairment.
7. The documents to be forwarded to the Medical Assessor are as follows:
(a) The Application to Resolve a Dispute and all documents attached.
(b) The Reply and all documents attached.”
The Commission appointed two Medical Assessors to assess WPI resulting from injury on 29 July 2015.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated 31 January 2024, Associate Professor Phillip Truskett, general surgeon, was appointed as the Lead Assessor and was directed to assess the right lower extremity (right knee), left lower extremity (left knee), scarring to right lower extremity (right knee), gastrointestinal system and lumbar spine. Professor Christopher Grainge, specialist in respiratory medicine, was appointed as the Non-lead Assessor and was directed to assess the sleep disorder.
The Lead Assessor examined the appellant on 11 March 2024 and assessed 3% WPI of the digestive tract, 0% of the lumbar spine, 0% of the right knee, 4% of the left knee, 0% in respect of the scar to the right knee and 6% for sleep disorder. The Lead Assessor deducted 3% WPI pursuant to s 323 of the 1998 Act in relation to the lower digestive tract which resulted in an assessment of 0% WPI for the lower digestive tract. The total WPI, as a result of the injury on 29 July 2015, was 10%. The Non-lead Assessor examined the appellant on 22 March 2024 and assessed 6% WPI in respect of the sleep disorder as a result of the injury on 29 July 2015.
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 submitted that she should be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and it was necessary for the appellant to undergo a further medical examination because there was insufficient information upon which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessors for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Mark Burns of the Appeal Panel conducted an examination of the worker on 18 September 2024 and reported to the Appeal Panel.
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.
The appellant’s submissions include the following:
(a) ground 1 – incorrect criteria and demonstratable error in the MAC of the Non-lead Assessor in respect to her sleep disorder. The Non-lead Assessor’s assessment of the sleep disorder category is incorrect. He contradicts himself when he reports that the appellant wakes once or twice a night before going on to review the sleep study report data which identifies that the appellant experiences 24 awakenings every night.
(b) On account of her work injury, the appellant has suffered a consequential sleep condition disorder which impacts her ability to perform her activities of daily living (ADL). The Non-lead Assessor failed to properly engage with the relevant guidelines contained in Table 13-4 by failing to engage with the overwhelming evidence and medical documents produced in the matter which indicate that the appellant’s sleep disturbance has had a significant impact on her ability to perform her ADL.
(c) The Non-lead Assessor has provided no comment on these matters in his assessment and has failed to provide any reasons as to the divergence in his opinion from the medical and medical expert evidence served in the matter to date. The Non-lead Assessor has failed to appropriately engage with the facts and evidence before him in the matter, which demonstrates that the appellant’s capacity to perform her ordinary personal care and ADL needs has been impacted on account of her sleep condition disorder injury.
(d) The Non-lead Assessor incorrectly assessed the appellant as being classified as at Class 1 impairment or 5% WPI under AMA 5. The Non-lead Assessor has concluded that the appellant’s sleep issues are primarily secondary to pain and attract no more than Class 1 Impairment or 6% WPI. The appellant submits this is clearly incorrect and not consistent with the factual and medical evidence as the appellant’s ability to perform her ADL, self-care, and personal hygiene remains impacted on account of her severe sleep issues.
(e) Ground 2 – incorrect criteria and demonstratable error in the MAC of the Lead Assessor in respect of the lumbar spine, right and left lower extremities. The Lead Assessor’s assessment of the appellant’s right and left lower extremities is incorrect.
(f) The appellant has suffered significant dysmetria and loss of function, which has caused her to suffer falls on multiple occasions on account of her work injury. She has lost her agility, mobility, normal balance, and ability to mobilise without risk of falling. The Lead Assessor reports that the appellant’s functional capacity has improved since the time of the prior assessments conducted in the matter, however, this is plainly contrary to the medical and medical expert evidence which notes the appellant’s condition has not significantly improved and has in certain ways deteriorated. It is unlikely that the appellant’s medical condition could have improved so significantly in the brief amount of time between her independent medical examiner (IME) reports and the Lead Assessor’s assessment.
(g) The Lead Assessor’s assessment of the appellant’s permanent impairment is inconsistent with the facts, the findings on examination, and the medical and expert evidence served in the matter. It is apparent that the appellant has suffered a severe reduction in her range of motion, functional capacity, dysmetria, and a significant loss in her mobility and balance which has resulted in her requiring the use of a mobility aid and suffering falls on multiple occasions previously.
(h) The Lead Assessor failed to engage with the factual and medical evidence served in the matter when he notes that the appellant’s medical condition with respect to her injured body parts has improved. The factual and medical evidence clearly demonstrates that the appellant continues to suffer significant restriction and difficulty with respect to all injured body parts. The Lead Assessor has provided a final evaluation of the appellant’s WPI which is clearly inconsistent with his medical examination and the evidence.
(i) The Lead Assessor wrongly assessed the appellant as having suffered no impairment with respect to her lumbar spine and right lower extremity and the Lead Assessor wrongly assessed the appellant as having suffered 4% WPI in respect of her left lower extremity. The Lead Assessor’s determination in the matter is clearly inconsistent with the factual, medical, and expert evidence and that his assessment of the appellant’s WPI is inconsistent with the findings of medical examination conducted by the Lead Assessor. The Lead Assessor provided no adequate reasons in the significant divergence in his findings when considering the evidence from the appellant’s treating doctors, specialists, and experts.
(j) The Lead Assessor states: “…at the right knee, Dr Gehr assessed 4% whole person impairment. I agree with this assessment”. The Lead Assessor then contradicts himself in stating: “In relation to the right knee, he [Dr Gorman] assessed Ms Nadj as having 0% whole person impairment. I agree with this assessment”. The Lead Assessor’s findings are inconsistent and contain demonstrable error.
(k) The Lead Assessor failed to take into account or otherwise give appropriate weight to the medical evidence, factual, and extensive treatment history relevant to the appellant’s injuries noting she has required multiple cortisone injections, interventions, and surgery to her bilateral knees due to the severe nature of her injuries.
(l) The Lead Assessor failed to appropriately engage with and apply the correct criteria as noted at Clause 3 of the Guidelines. The Lead Assessor has provided an inconsistent assessment upon examination and has made demonstrable errors in respect of his determination of the appellant’s WPI.
(m) Ground 3 – lower digestive tract. The Lead Assessor assesses the appellant as having suffered 3% impairment in respect of her lower digestive tract. The Lead Assessor states: “She has signs and symptoms of colonic disease with no systemic manifestations of limitations of activity”.
(n) The Lead Assessor contradicts himself in making this statement when he notes: “She opens her bowels daily but on occasions she will have loose motions passing three to four motions per day, for which she will need to run to the toilet” and “due to her gastrointestinal tract, Ms Nadj has difficulty socialising as she may need to use toilets quickly when she has diarrhoea”. The Lead Assessor notes the appellant had suffered diverticular symptoms prior to her work injury and deducts 3% due to the appellant’s pre-existing medical condition.
(o) The Lead Assessor states that Dr Bolin did not consider the appellant’s pre-existing condition. However, Dr Dias in his medical report dated 20 December 2019 noted:
“Ms Nadj’s utilisation of analgesia and anti-inflammatory tablets over the course of the past four years has resulted in a significant aggravation of her pre-existing gastrointestinal condition of diverticular disease and has also resulted in Ms Nadj suffering from gastro-oesophageal reflux on a consistent basis”.
(p) The Lead Assessor failed to consider the expert medical and clinical evidence served in the matter and failed to consider or engage with the evidence and opinions provided by the medical experts.
(q) The Lead Assessor states the appellant suffers: “Diverticular disease … due to longstanding diet low in fibre. There is no known association with the use of medications”. This is clearly inconsistent with the evidence and the prior medical expert assessment evidence served in the matter which the Lead Assessor failed to engage with. The Lead Assessor failed to provide any reasoning as to the clear inconsistency in his assessment in the matter.
(r) The Lead Assessor has based his assessment on incorrect criteria and has provided an assessment of WPI that is inconsistent with his medical examination when he notes that the appellant’s lower digestive tract injuries have had no systemic manifestations or limitations to the appellant’s activities. The appellant’s injuries and restrictions are ongoing and her digestive tract injuries have caused her to suffer regular and ongoing incontinence which impacts her ability to undertake her ADL, social life, lifestyle, and independence as documented in the medical and factual evidence.
(s) The evidence in the matter indicates the appellant’s pre-existing condition was well-controlled at the time of her work injury and that her symptoms have substantially increased in severity since the time of her work injury and use of pain medications.
(t) Had the Lead Assessor considered the relevant material, the appellant’s degree of impairment would have at least been consistent with that assessed by Dr Bolin; particularly given the factual and medical evidence that her medical condition has remained consistent or otherwise deteriorated. The Lead Assessor has not provided any or any adequate reasons as to the divergence in his conclusions from the medical and expert evidence at hand.
(u) The Lead Assessor’s assertion that the appellant has 3% WPI in respect of her lower digestive tract injuries with a 3% deduction for her pre-existing condition is incongruent with the factual and medical evidence served to date. The Lead Assessor incorrectly assessed the appellant as having suffered no impairment with respect to her lower digestive tract injuries. The Lead Assessor failed to provide adequate reasons and based his assessment on incorrect assumptions in the circumstances and noting the evidence made available in the matter.
(v) The appellant should be re-assessed by the Appeal Panel.
The respondent’s submissions include the following:
(a) The Lead Assessor and Non-lead Assessor did not overlook or did not afford proper weight to the material available to them.
(b) The complaint about a lack of consistency between the assessment of the Lead Assessor and Non-lead Assessor and other specialists and investigation reports does not amount to an application of incorrect criteria or a demonstrable error by the Lead Assessor and Non-lead Assessor.
(c) The Lead Assessor and Non-lead Assessor appropriately applied the Guidelines and AMA 5 based on their clinical assessment of the appellant on the day of the assessment and consideration to the available documentary material.
(d) The appellant’s submissions urge for a reversal of the primacy that ought to be given to the clinical assessment of the appellant on the day of the assessment by the Lead Assessor and Non-lead Assessor over the historical clinical material also available to the Lead Assessor and Non-lead Assessor which will also inform their assessment (see Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140) These are findings entirely open to the Lead Assessor and Non-lead Assessor on the clinical examination of the appellant and it was entirely appropriate for the Lead Assessor and Non-lead Assessor to prefer his own clinical findings over those reported by practitioners who have examined the appellant in the past.
(e) There is no inconsistency in findings, report or assessment of the Lead Assessor and Non-lead Assessor which amount to an application of incorrect criteria by the Lead Assessor and Non-lead Assessor.
(f) The Lead Assessor clearly stated that the divergence of his assessment by comparison to those provided by the other IMEs is due to his assessment of the appellant’s range of motion which is open to the Lead Assessor to do.
(g) While the appellant has asserted consistently that the Lead Assessor failed to take into account or otherwise give appropriate weight to the medical evidence, factual evidence and extensive treatment history relevant to her injuries, the appellant has not provided adequate reasoning of same other than to suggest the Lead Assessor has reached an incorrect conclusion by not reaching a conclusion consistent with their independent medical examiners.
(h) The Lead Assessor provided sufficient reasoning for his findings.
(i) With respect to the appellant’s lumbar spine, the Lead Assessor assessed a 0% WPI as there was no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no meaningful neurological signs and no bony injury. As with the appellant’s bilateral knee injury, the Lead Assessor has used his judgement “based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guides criteria as intended” with careful consideration of the available evidence in order to reach his conclusion with respect to the appellant’s lumbar spine.
(j) Digestive system – the appellant again submits that if the Lead Assessor had appropriately considered the evidence provided, he would have made an assessment that was at least consistent with that of Dr Bolin. Dr Bolin did not engage with the appellant’s long-standing history of diverticular disease. In support of the submission that the Lead Assessor has failed to consider the expert medical and clinical evidence, the appellant has referred to the following opinion of Dr Uthum Dias, in his report dated 20 December 2019. However, the conclusions reached by the Lead Assessor are consistent with the assertions made by Dr Damodaran Kumar in his report dated 16 January 2023.
(k) The Lead Assessor has not made a demonstrable error in his assessment by failing to make an assessment in accordance with the reports served by the appellant in support of their claim. It is not apparent how the Lead Assessor’s conclusions are improbable, ignorant of relevant factual matters or are unsupported in establishing a path of clinical reasons.
(l) Non-Lead Assessor – the appellant submits that the Non-lead Assessor has failed to properly engage with the relevant guidelines contained in Table 13-4 by failing to engage with the overwhelming evidence and medical documents produced in the matter which clearly indicate that the appellant’s sleep disturbance has had a significant impact on her ability to perform her ADL.
(m) The appellant submits the Non-lead Assessor incorrectly assessed the appellant as being classified as Class 1 impairment or 5% WPI under the AMA 5 and she would more accurately be assessed within a Class 2 category impairment rating of 10%-29% WPI.
(n) A complaint about a lack of consistency between the assessment of the Non-lead Assessor and other specialists and investigation reports does not amount to an application of incorrect criteria by the Non-lead Assessor. The Non-lead Assessor has accurately applied Table 13-4 of the AMA 5 in accordance with his review of the medical and factual evidence tendered, in line with his own assessment of the appellant during examination.
(o) The Non-lead Assessor indicated that he assessed a Class 1 impairment “…such that in the absence of pain, she would have been able to perform most of her activities of daily living with the majority of her issues coming from pain.” The Non-lead Assessor further noted that the appellant had an Epworth Sleepiness Score of 2 on the day of assessment, however her degree of sleep fragmentation and her tiredness during the day impacts on her ability to perform ADL. The Non-lead Assessor acknowledged the appellant’s sleep study showed very poor sleep with minimal rapid eye movement (REM) sleep.
(p) Dr Freiberg, in his report dated 4 November 2022, assessed Class 2 impairment. However, Dr Anthony Johnson in his report dated 20 March 2023, assessed Class 1 with respect to the appellant’s sleep condition. Dr Johnson opined the appellant has tiredness during the day but noted that her inability to do ADL is due to pain. This opinion was shared by the Non-lead Assessor who similarly asserted that “in the absence of pain, she would have been able to perform most of her activities of daily living with the majority of her issues coming from pain.”
(q) The appellant has not successfully established that the MAC discloses error and the MAC should be confirmed.
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.
Ground 1 – assessment of impairment with respect to the sleep disorder
The appellant submits that the Non-lead Assessor’s assessment of the sleep disorder category is incorrect.
The Non-lead Assessor assessed 6% WPI for Sleep Disorder Condition Injury under Table 13-4 Criteria for Rating Impairment Due to Sleep and Arousal Disorders.
Under “Present symptoms” the Non-lead Assessor wrote:
“Ms Nadj noticed sleep issues starting soon after the injury with difficulty both initiating and staying asleep. Now, she describes her sleep as disturbed but she spends a lot of the day lying down in order to try and control her knee and back pain.
She attempts to get to sleep at around 23:00 hours with a latency of 2-3 hours, predominantly caused by pain in her knees and back. She wakes overnight once or twice usually and has difficulty re-initiating sleep and rises permanently between 8 and 10 o’clock in the morning. She takes no naps. She self-estimated her weight as 95kg”.
Under “Details and Dates of Special Investigations”. The non-lead Assessor wrote:
“Ms Nadj had a polysomnogram performed on 12/04/2022 which demonstrated a sleep latency of 160 minutes with sleep fragmentation. During this sleep study, she had a sleep efficiency of only 38% with 24 awakenings and an arousal index of 16/hour. Of these arousals, 10 were spontaneous, 4 were due to leg movements and 2 were due to respiratory events. Her overall respiratory disturbance index was 8/hour which were predominantly obstructive apneas. There was a reduction in REM sleep.
Overall, the sleep study demonstrated truncation of sleep and fragmentation of sleep”.
The Non-lead Assessor made a diagnosis of sleep fragmentation due to ongoing pain. Under “Reasons for Assessment” he wrote:
“Ms Nadj has an Epworth Sleepiness Score of 2 on the day of assessment, however, her degree of sleep fragmentation and her tiredness during the day is impacting on her ability to perform activities of daily living. Her sleep study shows very poor sleep with minimal REM sleep.
Using the AMA Guides to the Evaluation of Permanent Impairment, Table 13.4, I consider she is in Class I impairment, 1%-9% impairment of the whole person due to her sleep disorder such that in the absence of her pain, she would have been able to perform most of her activities of daily living with the majority of her issues coming from pain but an additional 6% of the whole person impairment due to her sleep disorder.”.
In commenting on the other medical opinions, the Non-lead Assessor wrote:
“I note the report from Dr Johnson dated 20/03/2023 giving a whole person impairment of 5%. My estimate of 6% is within the accepted error range.
I note the report from Dr David Freiberg dated 04/11/2022 giving a whole person impairment of 20%. This assessment of 20% impairment of the whole person is despite a normal Epworth Sleepiness Score. I believe Dr Freiberg conflates Ms Nadj’s symptoms of pain and discomfort which are significant and disabling with her sleep issues which are secondary to that pain and should therefore be considered primarily under the heading of her pain disorder. Her innate sleep issues are more in the order of the Class I impairment, hence the 6% award”.
The Non-lead Assessor noted that the appellant had an Epworth Sleepiness Score of 2 on the day of assessment, and that her degree of sleep fragmentation and her tiredness during the day impacts on her ability to perform ADL.
The Appeal Panel reviewed the evidence in this matter.
In her signed statement dated 14 September 2023, the appellant stated: “I wake up un-refreshed from my sleep and am constantly tired and lethargic during the day”.
Dr Ian Sutton, consultant neurologist, in a report dated 22 April 2020 noted the appellant indicated that lumbar back pain and left knee pain cause her to wake from sleep at night. Dr Sutton expressed the view that chronic pain appeared to be the main barrier in continuing to perform domestic activities independently.
Dr David Freiberg, consultant physician respiratory and sleep medicine, in his report dated 4 November 2022, assessed Class 2 impairment.
Dr David Freiberg, consultant physician respiratory and sleep medicine , in his medical report 4 November 2022, noted:
“She [the Appellant] reports that her concentration, memory, and cognitive function are significantly affected. For example, if she watches a movie, she cannot follow the plot and she has to rewind the movie again. She can no longer read a book. She avoids socialising. She finds it difficult to comprehend and follow conversations. She is too tired and lethargic and in too much pain to do a lot of the self-care including preparing her own meals and housework which are undertaken by her adult children”.
Dr David Freiberg assessed Class 2 impairment.
Dr Freiberg noted that the appellant underwent a supervised sleep study on 12 April 2022. He wrote:
“Therefore in summary the major findings of the sleep study were severe truncation and fragmentation of sleep due to pain and to some degree due to periodic limb movements. There was no history of the latter prior to her work related injury. The etiology of the periodic limb movements is likely to be due to her musculo skeletal injuries and the medications she uses for these”.
Dr Freiberg provided the following opinion:
“This woman's work related injuries have resulted in a significant sleep and arousal disorder and impairment.
The American Medical Association Guidelines to the Evaluation of Permanent Impairment 5th Edition Page 4 Table 1-2 states a restful nocturnal sleep pattern is essential to activities of daily living.
The patient symptomatically and objectively no longer fulfils this requirement. She sleeps approximately 1/3 of the duration of her preinjury sleep time. She reports that her concentration, memory and cognitive function are significantly affected. For example, if she watches a movie she cannot follow the plot and she has to rewind the movie again. She can no longer read a book. She avoids socialising. She finds it difficult to comprehend and follow conversations. She is too tired and lethargic and in too much pain to do a lot of the self care including preparing her own meals and housework which are undertaken by her adult children.
According to Table 13-4 Criteria for Rating Impairment due to Sleep and Arousal Disorders on page 317 of the abovementioned Guidelines ‘A class 2 impairment is a 10%-29% impairment of whole person. This results in reduced daytime alertness and interferes with the ability to perform some activities of daily living.’
This would clearly be the case for Ms Mirjana Nadj. Her Epworth Sleepiness Scale score is only 2/24 however this does not reflect her symptomatic impairment. She is unable to doze during the day because of her pain level and because she avoids this in case it will affect her ability to sleep at night. I would therefore classify this woman as a 20% impairment of whole person due to sleep and arousal disorders”.
Dr Nagesh, in a report dated 17 February 2023, noted that the appellant reported her sleep “to be good on most days, but reports sleep to be bad on some days”.
Dr Anthony Johnson, in his report dated 20 March 2023, assessed Class 1 with respect to the appellant’s sleep condition. Dr Johnson opined the appellant has tiredness during the day but noted that her inability to do ADL is due to pain.
Table 13-4 of the AMA 5 provides that Class 1 of the Criteria for Rating Impairment Due to Sleep and Arousal Disorders is assessed where there is: “Reduced daytime alertness; sleep pattern such than individual can perform most activities of daily living”. Table 13-4 of the AMA 5 provides that Class 2 of the Criteria for Rating Impairment Due to Sleep and Arousal Disorders is assessed where there is: “Reduced daytime alertness; interferes with ability to perform some activities of daily living”.
The appellant argues that the Non-lead Assessor contradicts himself when he reports that the appellant wakes once or twice a night before going on to review the sleep study report data which identifies that the appellant experiences 24 awakenings every night. The Appeal Panel rejects this submission and finds no contradiction. The Non-lead Assessor simply reported that the appellant told him that she “wakes overnight once or twice usually”. He then proceeded to set out the results found in the sleep study report.
The Appeal Panel notes the following at paragraph 5.16 of the appellant’s submissions:
“This is clearly reflected in the medical evidence and by way of example we refer to the letter from Dr Abhishek Nagesh, Psychiatrist, dated 05 July 2019 who notes the following:
‘It is respectfully submitted that the MA contradicts himself when he reports that the Appellant wakes once or twice a night before going on to review the sleep study report data which identifies that the Appellant experiences 24 awakenings every night’”.
The Appeal Panel notes that Dr Nagesh made no such reference in his report dated 5 July 2019, which pre-dated the examination by the Non-lead Assessor by nearly five years. Dr Nagesh, in that report, does refer to the appellant having sleep disturbances “from her chronic pain and depression”.
The appellant submits that the Non-lead Assessor failed to properly engage with the relevant Guidelines contained in Table 13-4 by failing to engage with the overwhelming evidence and medical documents produced in the matter which clearly indicate that the appellant’s sleep disturbance has had a significant impact on her ability to perform her ADL. The Appeal Panel notes that the appellant fails to specifically identify what evidence and medical documents the Non-lead Assessor failed to engage with. Reference is made in other parts of the appellant’s submissions to the reports of Dr Freiberg, Dr Anthony Johnson and as noted above, Dr Nagesh. The Non-lead Assessor addressed the reports of Dr Freiberg and Dr Johnson when commenting on other medical opinions. The Non-Lead Assessor referred to the sleep study performed on 12 April 2022 and noted that it demonstrated truncation of sleep and fragmentation of sleep. The Non-lead Assessor did not address the report of Dr Nagesh (who is a psychiatrist), but it is not the function of a Medical Assessor to refer to every piece of evidence before him. The Appeal Panel considers that there is no requirement on the Non-lead Assessor to discuss each and every piece of evidence in the MAC, and any lack of reference should not be taken as the Non-lead Assessor not having had regard to the material.
Further, the Appeal Panel considers the reports of Dr Nagesh referred to by the appellant were not material to the Non-lead Assessor’s task of assessing WPI of the sleep disorder.
The Appeal Panel rejects the appellant’s argument that the Non-lead Assessor provided no comment on the above matters in his assessment and failed to provide any reasons as to the divergence in his opinion from the medical and medical expert evidence served in the matter to date and failed to appropriately engage with the facts and evidence before him.
The appellant submits that the Non-lead Assessor incorrectly assessed the appellant as being classified as at Class 1 impairment or 5% WPI under AMA 5 because he concluded that the appellant’s sleep issues are primarily secondary to pain and attract no more than Class I Impairment or 6% WPI. The appellant submits this is clearly incorrect and not consistent with the factual and medical evidence as the appellant’s ability to perform her ADL, self-care, and personal hygiene remains impacted on account of her severe sleep issues.
The Appeal Panel notes that the Non-lead Assessor assessed a Class 1 impairment “such that in the absence of pain, she would have been able to perform most of her activities of daily living with the majority of her issues coming from pain.” The Non-lead Assessor proceeded to note that the appellant had an Epworth Sleepiness Score of 2 on the day of assessment, however her degree of sleep fragmentation and her tiredness during the day impacts on her ability to perform ADL. The Non-lead Assessor acknowledged the appellant’s sleep study showed very poor sleep with minimal REM sleep.
While Dr Freiberg, in his report dated 4 November 2022, assessed Class 2 impairment, Dr Anthony Johnson in his report dated 20 March 2023, assessed Class 1 with respect to the sleep condition. Dr Johnson was of the view that the appellant has tiredness during the day but her inability to do ADL is due to pain. The Non-lead Assessor expressed a similar view that “in the absence of pain, she would have been able to perform most of her activities of daily living with the majority of her issues coming from pain.”
Dr Nagesh also considered that the appellant had sleep disturbances “from her chronic pain and depression”.
The Appeal Panel notes that the Epworth Sleepiness Score of 2 on the day of assessment was 2/24, which was in the normal range.
Clause 5.10 of the Guidelines provides:
“Assessment of arousal and sleep disorders (AMA5 Section 13.3c, pp 317–319): refers to assessment of primary sleep disorders following neurological injury. The assessor should make ratings of arousal and sleep disorders based on the clinical assessment that would normally have been done for clinically significant disorders of this type (ie sleep studies or similar tests)”.
Table 13.4 of AMA 5 therefore applies when sleep disturbance is caused by neurological conditions. However, in this case, sleep is clearly also affected by pain. The Diagnostic Sleep Study Report dated 12 April 2022, following a sleep study performed on 12 April 2022, found a sleep latency of 160 minutes with sleep fragmentation. During the sleep study she had a sleep efficiency of only 38% with 24 awakenings and an arousal index of 16 per hour. Of these arousals 10 were spontaneous, four were due to leg movements, two were due to respiratory events. Her overall respiratory disturbance index was eight per hour, which were predominantly obstructive apnoeas. There was a reduction in REM sleep. It was also noted that her Epworth Sleepiness Scale Score at the time of the sleep study was 2/24. Dr Freiberg conclude that there was overall mild obstructive sleep apnoea
In the report dated 4 May 2022, annexing the diagnostic polysomnogram or sleep study, Dr Freiberg reported that only two arousals an hour were due to respiratory events, 10 arousals per hour were spontaneous and likely due to her pain and four arousals per hour were due to periodic limb movements which would be clearly related to the musculoskeletal injuries and the medication taken for those.
In a case where only a few episodes per hour are due to respiratory events, Class 1 of Table 13-4 of AMA 5 is the appropriate class for assessment of a sleep disorder. The Epworth Sleepiness score would not put the appellant in Class 2 from Table 13-4 of AMA 5 because arousals due to pain do not in themselves give an impairment rating. In Class 1 of Table 13-4, Grade 1 is from 1% to 9% WPI. Considering her ability to avoid sleeping during the day and the fact that her ADLs are restricted by chronic pain but not sleepiness, the mid-range in Class 1 is appropriate and the Appeal Panel agree with Non-lead Assessor’s assessment of 6% WPI.
The Appeal Panel finds no error in the assessment made by the Non-lead Assessor in relation to the assessment of the sleep disorder and is satisfied that the assessment was made on the correct criteria. This ground of appeal is not made out.
Ground 2 – assessment of the knees and lumbar spine
The appellant submits that the Lead Assessor’s assessment of the appellant’s right and left lower extremities is incorrect.
The appellant argues that Lead Assessor’s assessment of the appellant’s permanent impairment is inconsistent with the facts, the findings on examination, and the medical and expert evidence served in the matter. The appellant submits that it is apparent that the appellant has suffered a severe reduction in her range of motion, functional capacity, dysmetria, and a significant loss in her mobility and balance which has resulted in her requiring the use of a mobility aid and suffering falls on multiple occasions. The appellant submits that the Lead Assessor wrongly assessed the appellant as having suffered no impairment with respect to her lumbar spine and right lower extremity and wrongly assessed the appellant as having suffered 4% WPI in respect of her left lower extremity.
The Appeal Panel reviewed the evidence.
Lumbar spine
The Lead Assessor reported the following symptoms in the lumbar spine:
“Ms Nadj has pain in the lower back which is present all the time. She would score this pain as 8/10 and will extend to 9/10 which will occur three to four times per month and may last a few hours. Pain is made worse by sitting, standing, and walking for long periods. She also experiences pain in her hands. She describes no radicular lower limb symptoms”.
The Lead Assessor made the following findings on physical examination:
“On examining Ms Nadj’s back, there was no kyphosis or scoliosis. There was no loss of lumbar lordosis. There was no paravertebral muscle guarding. Power and tone was normal.
There was sensory change of the left leg from the groin, scoring 8/10 compared to 10/10 on the right. This did not follow an anatomic or radicular distribution.
In addition, a similar reduction in sensation occurred at the abdomen and on her forehead. This did not follow an anatomical sensory distribution without a cerebral cause, for which there is no evidence.
There was reduction in straight leg raising, being 30° on the right and 70° on the left. This led to back pain. This was not a positive stretch test.
There was some reduction in back movement but no dysmetria. Ms Nadj arched her back when doing so. Back flexion and extension were two thirds normal, lateral flexion left and right was normal, and rotation left and right was normal.
She could walk on her toes and heels, but only managed a half squat with support due to knee discomfort.”
The Lead Assessor made a diagnosis of degenerative disease in the lumbar spine. He noted that the sensory changes demonstrated on the left side of the body did not follow a known anatomical distribution.
The Lead Assessor assessed 0% WPI of the lumbar spine providing the following reasons: “A 0% whole person impairment has been assigned as there is no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no meaningful neurological signs and no bony injury”.
Dr Clive Sun, rehabilitation and pain physician, in a report dated 7 May 2018, assessed 5% WPI of the lumbar spine due to a restricted range of movement in extension and flexion.
Dr Dias, occupational physician, in a report dated 20 December 2019, found the appellant was Diagnosis-Related Estimate (DRE) Category II in relation to the lumbar spine due to dysmetria and added 2% WPI for loss of ADLs.
Dr Ian Sutton, consultant neurologist, in a report dated 22 April 2020 commented that there was no evidence of any injury to the lumbar spine in the work related incident. Dr Sutton reported that a neurological examination was normal with the exception of an apparent reduction in power secondary to reported pain.
In a report dated 13 January 2023, Dr Sutton confirmed that there was no neurological injury and made a diagnosis of chronic pain syndrome. Dr Sutton was of the view that no WPI was attributable to “neurological injury, lumbar or cervical spine”.
Dr David Gorman, pain specialist, in his report of 21 July 2023, assessed DRE Lumbar category II in relation to dysmetria, to which he added 2% WPI for loss of ADLs.
In his report dated 7 August 2023, Dr Eugene Gehr, consultant orthopaedic surgeon, assessed the appellant as DRE Lumbar category II due to dysmetria. Dr Gehr added an additional 3% WPI for interference with ADL, which resulted in an assessment of 8% WPI for the lumbar spine.
Dr Derek Lee, occupational physician, in a report dated 12 January 2023, expressed the view that the lower back complaint was not a direct result of the work injury.
In a report dated 28 February 2023, Dr Richard Powell, consultant orthopaedic surgeon, stated that he believed there was insufficient evidence to conclude the appellant’s symptoms in her lumbar spine were related to the subject injury. Dr Power noted that the examination of the lumbar spine was characterized by diffuse tenderness and mild stiffness though no localizing signs or features of radiculopathy.
The appellant submits that the appellant had suffered severe and permanent medical impairment on account of her injuries and the Lead Assessor failed to adequately address these matters in his assessment of WPI in respect of the lumbar spine injury. The Appeal Panel reject this submission and are satisfied the Lead Assessor properly addressed the appellant’s history, complaints, current symptoms and carried out a thorough examination. Although the appellant argues that it is inconceivable that the appellant’s condition could have improved to the extent that at the of the Lead Assessor’s assessment there was no impairment of the lumbar spine, the appellant does not identify any specific problems with the examination carried out by the Lead Assessor or challenge any particular aspect of his examination. The Appeal Panel does not accept that it was inconceivable that the appellant’s back problems had improved so that she was assessed as DRE Lumbar category I by the Lead Assessor as there is often some variation from time to time in a condition.
The Appeal Panel agrees that based on the findings on examination by the Lead Assessor, the appellant would be placed into DRE Lumbar category I. The Appeal Panel accepts that there were complaints of back pain by the appellant, however, there was no evidence of dysmetria, muscle guarding or non-verifiable radicular complaint.
The Appeal Panel agrees with the Lead Assessor that from his examination findings, under Table 15-3 of AMA 5, the lumbar spine is classified as DRE Lumbar category I – 0% WPI.
The Appeal Panel is satisfied that there was no error in the assessment of the lumbar spine and the assessment was made on the basis of correct criteria.
Knees
The Lead Assessor reported the following symptoms in the lower extremities:
“Ms Nadj has pain at the right of her right knee which is present all the time. This has been present for the last 3 years and would score 7/10 most of the time, It is worse with activity. It does not swell. She states it will on occasions lock, but this is rarely, and does not give way.
….
Ms Nadj has pain in her left knee all the time. The left knee is more painful than the right. It will also have episodes of swelling. The pain involves the whole knee and radiates down the front of the shin to the foot. She would score this pain as 8/10 all the time and will get worse with walking and standing. When it is exacerbates, it would score 10/10. Her left knee with also lock and has done so on three occasions between 2019 and 2022, which have caused her to fall”.
The Lead Assessor under “Social Activities/ADL” wrote:
“Ms Nadj is unable to run or jog. She can walk for 10 to 15 minutes. She can sit for 10 to 15 minutes. She can walk hills and stairs but with difficulty. She does not drive as she does not have a license. She can do light housework but said that she is unable to cook. This is done by her children as she cannot stand. She can do light laundry. She can no longer engage in dancing and has trouble concentrating”.
The Lead Assessor made the following findings on physical examination:
“On examining both lower limbs, there was no wasting of the muscles of the thighs. Both thighs measured 46cm in circumference, 10cm above the patella, and both calves measured 36cm at their widest point.
…
There were no knee effusions of either knee.
Active Range of Movement Active Range of Movement
Right Knee Left Knee
Flexion 110° 90°
Extension 0° 0°
At both knees, the anterior and posterior cruciate ligaments were intact. The medial and collateral ligaments were intact. McMurray’s test was negative. There was global
tenderness at both knees. There was mild varus deformity, less than 5°. There was no patellar crepitus”.
The Lead Assessor made a diagnosis of aggravation of patellar chondromalacia in the left knee and degenerative change in the right knee.
The Lead Assessor assessed the appellant as having suffered 4% WPI in respect of her left knee as there was a loss of knee flexion at less that 110 degrees, which is described as 4% WPI. He assessed 0% WPI of the right knee “as the range of movement of the right knee is greater than is considered a mild impairment by this Table. Her knee is stable.”
At 10 c of the MAC, the Lead Assessor referred to the report of Dr Gehr dated 7 August 2023 and commented: “At the right knee, Dr Gehr assessed 4% whole person impairment. I agree with this assessment”. The Lead Assessor then referred to the report of Dr Gorman dated 21 July 2023 and commented: “In relation to the right knee, he assessed Ms Nadj as having 0% whole person impairment. I agree with this assessment”.
The Appeal Panel accepts that those two comments are inconsistent in that the Lead Assessor agrees with an assessment of 4% WPI for the right knee but then agrees with an assessment of 0% WPI for the right knee. This inconsistency is a demonstrable error.
The Appeal Panel notes that the Lead Assessor at page 7 of the MAC in his examination findings described the knees as having a mild varus deformity, less than 5 degrees. However, in his assessment of impairment on page 11 of the MAC, the Lead Assessor makes an assessment under Table 17-10 of AMA 5. Table 17-10 provides for assessment of range of motion impairment in the knees by reference to flexion and flexion contracture and also deformity measured by femoral-tibial angle for varus and valgus. The Lead Assessor makes an assessment based on valgus deformity not varus. A mild varus deformity, less that 5 degrees, would rate as moderate (1 degree to 7 degrees varus) and be assessed at 8% WPI whereas a valgus deformity of less that 5 degrees would not attract a rating, as a 10 degrees to 12 degrees deformity is required to rate as mild (4% WPI) and a 13 degrees to 15 degrees deformity is required to rate as moderate (8% WPI).
There is a significant difference between the impairment to be assessed for a mild varus deformity and a mild valgus deformity. There is an inconsistency in the MAC in relation to whether the deformity is varus or valgus. The assessment of impairment in the knees is inconsistent with the findings made on examination by the Lead Assessor in respect of the knees. The Appeal Panel considers that this was a demonstrable error.
The Appeal Panel notes that the appellant would require re-examination of the knees to determine whether she had a varus or valgus deformity.
Ground 3 – assessment of the lower digestive tract
The appellant submits that the Lead Assessor failed to consider the expert medical and clinical evidence served in the matter and entirely fails to consider or engage with the evidence and opinions provided by the medical experts. In particular, the statement by the Lead Assessor that “Diverticular disease … due to longstanding diet low in fibre. There is no known association with the use of medications” is inconsistent with the evidence which the Lead Assessor failed to engage with. Further, the appellant argues that the Lead Assessor failed to provide any reasoning as to the clear inconsistency in his assessment in the matter.
The appellant submits that the Lead Assessor based his assessment on incorrect criteria and has provided an assessment of WPI that is inconsistent with his medical examination when he notes that the appellant’s lower digestive tract injuries have had no systemic manifestations or limitations to her activities.
The Lead Assessor under “History relating to the injury” wrote:
“I have also been requested to assess her diverticular disease.
Ms Nadj advised me that her first episode of diverticulitis occurred in 2013. This was treated with antibiotics. She subsequently had a colonoscopy by Dr Tucker of Camden, which confirmed the presence of diverticular disease.
She had a subsequent episode of diverticulitis in August 2016. She was hospitalised at Campbelltown Hospital for 3 days under the care of Dr Fulham (General Surgeon). She was treated with antibiotics. She subsequently had a colonoscopy in November 2016, performed by Dr Fulham, who confirmed she had diverticular disease. Some polyps were incidentally found and removed.
Since that time, Ms Nadj states that she has intermittent diarrhoea and constipation and other episodes of diverticulitis, treated by her local doctor with antibiotics”.
The Lead Assessor under “Present symptoms” wrote:
“Ms Nadj is of the view that her diverticular disease is because of her medication, although she did admit that she had diverticular symptoms as long ago as 2007. She would experience lower abdominal transverse bowel like pain, which is stabbing in nature, which may occur every few days. She opens her bowels daily but on occasions she will have loose motions passing three to four motions per day, for which she will need to run to the toilet. This occurs every few weeks. Over time she has a firm to formed motion. These symptoms have been present for 8 1/2 years. She believes that they are getting worse. She can distinguish flatus from faeces. When her motions are watery, she may have difficulty with bowel control.
In relation to her upper digestive tract, Ms Nadj experiences retrosternal burning which may occur twice a week. She has some nausea but no vomiting. She is on no special diet. Her weight is stable.”
Under “Social Activities/ADL” the Lead Assessor noted that “Due to her gastrointestinal tract, Ms Nadj has difficulty socialising as she may need to use toilets quickly when she has diarrhoea”.
The Lead Assessor made a diagnosis of diverticulitis secondary to diverticular disease (present since 2007) and irritable bowel syndrome, diarrhoea predominant.
The Lead Assessor assessed the appellant as having suffered 3% impairment in respect of her lower digestive tract. The Lead Assessor states: “She has signs and symptoms of colonic disease with no systemic manifestations of limitations of activity”.
Under the “Reasons for Assessment” the Lead Assessor wrote:
“Lower Digestive Tract
A 0% whole person impairment has been assigned as according to AMA 5, Ms Nadj would be considered to be Class I with 0-9% impairment, according to Table 6-4, as she has signs and symptoms of colonic disease with no systemic manifestations or limitations of activity. She would therefore be considered lower range at 3% whole person impairment.
However, it is clear that at least two documented episodes of diverticulitis have occurred prior to her injury. Diverticular disease is due to a longstanding diet low in fibre. There is no known association with the use of medications. This 3% whole person impairment would therefore be fully deducted.
She also has diarrhoea predominant irritable bowel syndrome. Reference is made to the WorkCover Guides, Paragraph 16.9, Page 78, which states that irritable bowel syndrome should be assessed as 0% whole person impairment.
The whole person impairment after deduction is therefore 0%”.
In commenting on the other medical opinions, the Lead Assessor referred to the report of Professor Bolin, dated 17 December 2019 and wrote: “This was a gastrointestinal assessment. He assessed Ms Nadj as having 7% whole person impairment of the gastrointestinal tract, but he did not refer to preceding episodes of diverticulitis prior to her injury”.
At Part 11 of the MAC, the Lead Assessor wrote:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Diverticular disease, occasioning recurrent diverticulitis. As this is fully ascertainable as a pre-injury event, it is fully deducted. The 3% whole person impairment assigned for diverticulitis, complicated by diverticulitis, is fully deducted in my calculations.
In my opinion the deductible proportion is 100% for the above reasons.”
The appellant submits that the Lead Assessor contradicts himself when he notes: “She opens her bowels daily but on occasions she will have loose motions passing three to four motions per day, for which she will need to run to the toilet” and “due to her gastrointestinal tract, Ms Nadj has difficulty socialising as she may need to use toilets quickly when she has diarrhoea”. The Appeal Panel notes that the Lead Assessor was reporting symptoms described by the appellant and problems with ADL. The Appeal Panel sees no inconsistencies in these reports.
The appellant submits that her work injury significantly aggravated her diverticular disease condition. The appellant in her signed statement dated 14 September 2023 wrote: “I have had recurrent episodes of diverticulitis over the course of the eight year period of opiate based analgesia and anti-inflammatory tablets usage”. She also stated: “In or around 2006, I had a Colonoscopy at Camden Hospital and a further one in or around November 2016 at Campbelltown Hospital”.
Dr Terry Bolin, gastroenterologist, in his medical expert report dated 17 December 2019, noted: “Symptoms referable to the gastrointestinal tract began soon after the original injury.” He noted that the appellant had been hospitalised in 2016 after she developed left-sided diverticular disease. He wrote: “…I would presume the diverticulitis is a consequence of needing to use non-steroidal anti-inflammatory drugs which are a well-recognised cause of aggravation of diverticular disease”. Dr Bolin assessed the appellant’s degree of impairment as at 7% WPI in respect of the lower digestive tract.
The Lead Assessor notes that that Dr Bolin did not consider the appellant’s pre-existing condition.
The Appeal Panel accepts that Dr Uthum Dias, in his report dated 20 December 2019 wrote:
“Ms Nadj’s utilisation of analgesia and anti-inflammatory tablets over the course of the past four years has resulted in a significant aggravation of her pre-existing gastrointestinal condition of diverticular disease and has also resulted in Ms Nadj suffering from gastro-oesophageal reflux on a consistent basis”.
The Appeal Panel notes that a CT scan of the abdomen and pelvis on 22 April 2013 was reported by Dr Eugene Hsu as follows: “Clinical History: Left iliac fossa pain for about two weeks, getting worse yesterday with pelvic ultrasound only showing a small fibroid”. Under “Findings” Dr Hsu noted “There is minor focal inflammatory thickening at the left lateral wall of the proximal sigmoid colon, with a few adjacent colonic diverticulae, consistent with mild diverticulosis.” Dr Hsu concluded that the mild focal proximal diverticulitis located in the left iliac fossa accounted for the appellant’s symptoms.
In a report dated 16 November 2016, Dr Stephen Fulham, Colorectal Surgeon, noted that the appellant had undergone a colonoscopy and polypectomy at Campbelltown Public Hospital “done for diverticular disease”. He described the procedure as: “Small polyp in rectum. Hot biopsied. Some moderate diverticula in the sigmoid. The rest of the examination is normal”. The Appeal Panel notes that Dr Fulham described only “some moderate diverticula in the sigmoid” and the rest of the examination was normal apart from a small polyp.
The appellant submits that Dr Bolin had stated that the appellant had two colonoscopies, both of which demonstrated diverticular disease as did a number of radiological studies. However, Dr Bolin appeared to be unaware that the first colonoscopy was in 2006, some nine years before the work injury, and that a CT scan in 2013 also showed mild diverticulitis.
The conclusions reached by the Lead Assessor are consistent with the assertions made by Dr Damodaran Kumar in his report dated 16 January 2023. Dr Kumar reported that the applicant’s long-standing diverticular disease predates the injuries of 29 July 2015 and 25 July 2016 and he considered this condition “to be totally unrelated to the injuries sustained, or the medication used” and are therefore not “plainly contrary to the medical and medical expert evidence” and “profoundly unlikely.”
Dr Damodaran Kumar, consultant surgeon, in a report dated 16 January 2023, noted:
“Her main digestive tract symptoms appears to be bloating, which she finds uncomfortable and is particularly centred in the left lower part of the abdomen. This is the site of the sigmoid and descending colon where more diverticular disease is centred as confirmed by both CT scan and colonoscopy in past examinations. Unfortunately, diverticular disease does not resolve by itself, however, attacks of infection called diverticulitis can be prevented with appropriate dietary measures”.
Dr Kumar noted that he has seen reports of various imaging studies, including CT scans, which confirmed that the appellant had had diverticular disease for more than a decade and prior to her accidents. He noted that the colonoscopy report of 16 November 2016 confirmed long standing diverticular disease.
Dr Kumar provided the following opinion:
“She has long standing diverticular disease which predates her injuries of 29 July 2015 and 25 July 2016. While she claims that the medication she has taken has caused and aggravated her diverticular disease, I consider the diverticular disease to be totally unrelated to the injuries sustained, or the medication used.
This is a common problem in western cultures, including Australia. Roughly 10% of people over the age of 40 in Australia will have diverticular disease. It is not related to trauma or any medication. Surgery is rarely indicated for this condition but there is a 10% chance that some surgical intervention may be required. There are some reports that nonsteroidal anti-inflammatory tablets could aggravate the condition. However, they are not the cause of diverticular disease”.
The appellant submits that the Lead Assessor’s assessment of 3% WPI in respect of her lower digestive tract injuries with a 3% deduction for her pre-existing condition was incorrect and plainly incongruent with the factual and medical evidence. This submission ignores the opinion expressed by Dr Kumar.
The appellant submits that the Lead Assessor’s opinion that “Diverticular disease … due to longstanding diet low in fibre. There is no known association with the use of medications” is inconsistent with the evidence. Again, this submission ignores the opinion expressed by Dr Kumar.
The Appeal Panel agrees with the Lead Assessor that the appellant had diverticular disease prior to the work injury in 2015. This disease was not caused by the work injury but was a pre-existing condition. She underwent a colonoscopy in 2006, some nine years before the work injury and investigations in 2013.
The Appeal Panel notes that diverticular disease is prone to recurrent episodes of diverticulitis. While the Appeal Panel accept that the ingestion of nonsteroidal anti-inflammatory tablet could have aggravated the disease at times, and caused acute episodes, such episodes were treated by the prescription of antibiotics by a colorectal surgeon and resolved.
The Lead Assessor placed the appellant in Class 1 of Table 6.4 in AMA 5.
Paragraph 1.6(a) of the Guidelines provides that: “Assessing permanent impairment involves clinical assessment of the appellant as they present on the day of the assessment taking into account the appellant’s relevant medical history and all available relevant medical information…”.
The Lead Assessor was satisfied based on the appellant’s presentation on the day of assessment and his examination that the appellant should be rated in Class 1 of Table 6-4. The assessment was consistent with the Example 6-18 provided in AMA 5 (page 128).
The appellant submitted that her injuries and restrictions are ongoing and her digestive tract injuries have caused her to suffer regular and ongoing incontinence which impacts her ability to undertake her activities of daily living, social life, lifestyle, and independence. The Appeal Panel does not accept that the evidence indicates the appellant’s pre-existing condition was well-controlled at the time of her work injury. She had undergone a colonoscopy in 2006 and further investigations in 2013. While the applicant had a further colonoscopy in 2016, there was no evidence that she underwent any further colonoscopies since 2016.
The Lead Assessor considered the opinion expressed by Dr Bolin. He provided adequate reasons for his difference in opinion. The Appeal Panel noted that Dr Bolin’s assessment was carried out in December 2019, nearly 4 years ago. Further, in terms of the ability to undertake activities of daily living, Dr Bolin merely noted that the appellant obtained help with housework duties from friends and was unable to work because of her musculoskeletal issues.
In terms of the deduction made under s323, the Appeal Panel agrees with the Lead Assessor. The Appeal Panel is satisfied that none of the impairment assessed by the Lead Assessor was due to any aggravation caused by ingestion of nonsteroidal anti-inflammatory tablet. The Appeal Panel notes that the appellant was also diagnosed with irritable bowel syndrome, but Chapter 15, Cl 16.9 of the Guidelines provides that irritable bowel syndrome without objective evidence of colon or rectal disease is to be assessed at 0% WPI.
As noted above, the Appeal Panel determines that the appellant should be re-examined in relation to her knees.
The Appeal Panel concludes that it was necessary for the appellant to undergo a further medical examination because there is insufficient evidence on which to make a determination of degree of impairment in her knees. The Appeal Panel considers the re-examination be limited to left knee and right knee.
As noted above, Dr Mark Burns re-examined the appellant on 18 September 2024. Dr Burns provided the following report:
“1. The workers medical history, where it differs from previous records
With respect to the history obtained by Assessor Truskett concerning both knees she has agreed that this history is correct. This included subsequent falls on 19 February 2016 and 25 July 2016.
2. Additional history since the original Medical Assessment Certificate was performed
She reported that since the assessment of Assessor Truskett she has had a further fall in April 2024 when she fractured her right wrist. He wrist was in a cast for a period of 6 weeks and when the cast was removed x-rays revealed that the fracture was not quite fully healed. Apart from pain medication she has had no further treatment for the wrist. She also reported several further falls since that one where she has obtained bruising to both her knees. She was adamant that on each occasion her left knee had given way,
3. Findings on clinical examination
Current symptoms:
With respect to the right knee the pain is on and off and the pain is just below the patella. With respect to the left knee she has swelling over the front of the left knee and also occasional locking. She has good and bad days. The knee also clicks on a regular basis.
Left and right knees:
With respect to the right knee the pain is on and off and the pain is just below the patella. With respect to the left knee she has swelling over the front of the left knee and also occasional locking. She has good and bad days. The knee also clicks on a regular basis.
Examination:
Ms Nadj was noted to walk with a walking stick in her right hand. She was noted to favour her right leg. She was 158cms tall and weight 88.2kgs.
Lower extremity:
Examination of both knees revealed tenderness on both sides, worse on the left than the right. There was marked pain behaviour with reports of severe pain to light touch in the left knee. In the supine position she was reluctant to bend either knee beyond 20°. I noted though that in the supine position when doing straight leg raising for her back examination that she had full extension in both knees. When she was in the seated position with her legs over the side of the examination couch, she was able to bend her knees with the feet partially under the couch.
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
110°
90°
Extension
0°
0°
It was noted that both legs were in just less than 5° valgus angulation. There was no laxity in the cruciate or collateral ligaments on either side. The circumference of the right quadriceps 10cms above the patella was 49cms, which was equal to the left. The circumference of the right mid-calf was 39.5cms compared to 40cms on the left.
4. Results of any additional investigations since the original Medical Assessment Certificate
Ms Nadj did not report any further investigations since her original assessment in May 2024”.
The Appeal Panel adopts the report and findings of Medical Assessor Burns in relation to the bilateral knee assessment.
The Appeal Panel noted that whilst initially there was marked decrease in range of movement in both knees, examination of both knees with the legs over the bed and lying flat for the straight leg raise revealed significantly better active range of movement.
Medical Assessor Burns noted that each knee was in just below 5° Valgus. He found that there is no evidence of cruciate or collateral ligament laxity on either side, no assessable impairment of muscle atrophy above or below either knee and no sensory impairment in either leg following a peripheral nerve distribution. He noted that the appellant did report some occasional numbness in the left foot but that was not present on the day of the examination.
Medical Assessor Burns observed that the appellant displayed substantial pain behaviour on examination of the knees. However, he found that by repeated measuring of the knee range of movements in different positions (supine, seated), the range of movement was the same as found by the Lead Assessor. The only difference in his findings from that of the Lead Assessor was in the angulation of the knees. The Lead Assessor had stated just “less than 5 degrees varus” but had assessed her as having just less than 5 degrees valgus. The Appeal Panel infers that the Lead Assessor made a typographical error in his findings and the correct measurement was less than 5 degrees valgus, which was the measurement the Leda Assessor used in his calculations of impairment.
The Appeal Panel concludes that using the assessment of range of movement in both knees, from Table 17-10 there would be 0% WPI in the right knee and 4% WPI in the left knee.
The Appeal Panel finds no error in the assessment of impairment in lumbar spine, digestive system and sleep disorder. On re-examination of the knees, the Appeal Panel finds the same degree of impairment as found by the Lead Assessor.
The Appeal Panel assesses the appellant as having 10% WPI as a result of the injury on 29 July 2015.
In summary, the assessment of total WPI by the Appeal Panel is the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on 23 May 2024 by the Lead Assessor and the Medical Certificate dated 23 May 2024 by the Non-lead Assessor should be confirmed.
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