Opacic v State of New South Wales (South Western Sydney Local Health District Liverpool Hospital)
[2024] NSWPICMP 99
•26 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Opacic v State of New South Wales (South Western Sydney Local Health District - Liverpool Hospital) [2024] NSWPICMP 99 |
| APPELLANT: | Danijela Opacic |
| RESPONDENT: | State of New South Wales (South Western Sydney Local Health District – Liverpool Hospital) |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Andrew Porteous |
| DATE OF DECISION: | 26 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of upper extremities where Medical Assessor observed inconsistency on repeated testing; assessment by analogy; allowance for activities of daily living in respect of cervical spine; section 323 deduction where one complaint of pain before employment commenced; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 November 2023 Danijela Opacic lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Thomas Rosenthal, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 October 2023.
Ms Opacic 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.
Ms Opacic’s employer, State of New South Wales (South Western Sydney Local Health District – Liverpool Hospital) (Liverpool Hospital), also lodged an application to appeal on 16 November 2023, relying on the same sub-sections of s 327(3) of the 1998 Act.
The President’s delegate was satisfied that, on the face of each application, at least one ground of appeal was made out . The delegate was satisfied that there were special circumstances to extend time for the filing of Liverpool Hospital’s appeal.
We conducted a review of the original medical assessment, limited to the grounds 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
Ms Opacic was employed by Liverpool Hospital as a Technical Assistant, sterilising equipment in the Neonatal Intensive Care Unit. She began working at Liverpool Hospital in 2010, having done similar work at Royal North Shore Hospital from 2005. She began to suffer pain in her neck and shoulders in 2012 and was treated with physiotherapy. Ms Opacic’s condition flared in 2015 and 2017 and she had treatment though continued to perform her normal duties. In 2021, her workload increased and she suffered increasing problems in her shoulders. She ceased work in August 2021, which is the deemed date of injury.
The Medical Assessor was asked to assess Ms Opacic’s cervical spine and left and right shoulders. He assessed 7% whole person impairment (WPI) in respect of her cervical spine. He found that Ms Opacic’s shoulder movement was inconsistent and, relying on paragraph 2.16 of the Guidelines, assessed by analogy, using the method appropriate for impingement. He assessed 3% upper extremity impairment (UEI), which converts to 2% WPI, for each shoulder. The total impairment was 11% WPI and the Medical Assessor did not make a deduction under s 323.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Ms Opacic to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary and in her application to appeal, Ms Opacic submitted that the Medical Assessor made assumptions about her medical condition rather than considering her current clinical status. She said that the Medical Assessor’s reference to frozen shoulder being self-limiting was an erroneous approach and that the Medical Assessor should have considered whether the condition had become chronic.
Ms Opacic said that the Medical Assessor’s reference to her sometimes needing assistance with her personal care meant that 3% should have been allowed for activities of daily living. She said that the Medical Assessor’s allowance was inconsistent with paragraph 4.31 of the Guidelines, Dr Gothelf’s observations and the history in the MAC.
In reply, Liverpool Hospital said that the Medical Assessor made an appropriate diagnosis of Ms Opacic’s condition and did have regard to her current status. It submitted that the Medical Assessor appropriately allowed 2% for the activities of daily living.
Both in reply and in respect of its own appeal, Liverpool Hospital said that the Medical Assessor’s failure to make a deduction under s 323 of the 1998 Act was inconsistent with the evidence and was a demonstrable error and the application of incorrect criteria. It said that Dr Guirgis referred to Ms Opacic being investigated in 2008 for a transient episode of pain in her neck with pins and needles in her right thumb and index finger. Liverpool Hospital said that there was evidence of a prior incident in two independent medical reports and that Ms Opacic had performed the same tasks in previous employment at Royal North Shore Hospital. It did not suggest the amount of deduction which should be made.
In reply on Liverpool Hospital’s appeal, Ms Opacic said that the episode in 2008 was transient and there was no evidence it resulted in investigations, treatment or periods off work. She said there should be no deduction.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
Assessment of the shoulders
The Medical Assessor took the following history:
“Her history dates back to 2012 when she first developed problems with her neck and shoulders which required physiotherapy at the time. She kept working. She believed this was due to her work activities. She continued to have ongoing problems on and off.
Her condition flared up in 2015 requiring more physical treatment but she continued working her normal duties.
She saw a chiropractor in 2017 for more treatment.
In 2021, there was an increase in workload and there were increasing problems with both her shoulders. She said the left shoulders is worse than the right although the right had been more problematic prior to this. She required more physiotherapy. She saw her GP who did an ultrasound which found pathology in her left shoulder. She was treated by Dr Medhat Guirgis, an orthopaedic surgeon, and then Dr Murrell, a shoulder specialist. Dr Murrell wanted to operate on her left shoulder. She was sent for physiotherapy.
…
She said the physiotherapy helped somewhat and she improved with that but this was stopped in February 2022. She self-managed her condition after that but there are continuing ongoing symptoms.”
He set out the present symptoms:
“Both shoulders are painful with reduced movement. The left is worse than the right. She has constant neck pain but the pain levels vary. She said the shoulder movements also vary depending on levels of pain. She is getting pins and needles in the left hand middle, ring and little fingers at night. She did not describe any numbness but generally feels weak in her arms.”
The Medical Assessor set out his findings on examination of Ms Opacic’s shoulders:
“There were no neurological deficits in the upper limbs although global left arm weakness due to lack of effort was present. Reflexes were normal. She reported some marginal sensory reduction in the middle, ring and little fingers of her left hand.
Upper arm measurements were 3cm on both sides, 10cm above the olecranon. Forearm measurements were 25.5cm on both sides, 10cm below the olecranon.
There was no evidence of wasting around either shoulder girdle. Impingement at the left shoulder was marginally positive.
Range of motion was inconsistent at both shoulders and variable on repetitive testing. The best ranges of motion are recorded in the table below:
Shoulder Movement
Right
Left
Abduction°
120°
70°
Flexion
120°
80°
Extension
40°
30°
Adduction
30°
40°
External rotation
80°
70°
Internal rotation
60°
not measurable
The inconsistencies in movement were mentioned to her on repetition and she said pain was the factor affecting her movement.
There was no evidence of radiculopathy in her upper limbs.”
The Medical Assessor set out his summary of injuries and diagnoses:
“Ms Opacic has developed inflammatory soft tissue injuries to her cervical spine and both shoulders. ...
The shoulder injuries have an element of capsulitis but are both consistent with a chronic bursitis/tendinopathy.”
Explaining his assessment the Medical Assessor said:
“The shoulders are affected by inconsistency. It is not appropriate to assess impairment with range of motion which is admitted to be variable and was inconsistent on repetition.
Movements have been variable between various medical assessments noted within the documents. Repeat testing of movement showed significant inconsistency and variability.
I have assessed impairment by analogy. Her shoulder conditions would be consistent with impingement and thus, in reference to paragraph 2.16 of the NSW Workers Compensation Guides (Fourth Edition), I allocate an impairment rating of 3% upper extremity impairment which converts to 2% whole person impairment for the right shoulder and 3% upper extremity impairment which converts to 2% whole person impairment for the left shoulder.”
The Medical Assessor compared his assessments to others in the file:
“I have noted the report of Dr Greg McGroder dated 18 August 2022. Dr McGroder also found restricted range of motion of both shoulders and also no specific muscle wasting was detected despite the noted loss of motion. Dr McGroder found a different range of motion to that which I found at both shoulders. His opinion was that the restrictions were consistent with adhesive capsulitis or frozen shoulder. However, frozen shoulder is self-limiting and normally resolves within 18 months and clearly this has not occurred. He noted that the capsulitis was secondary to rotator cuff tendinopathy which he thought was related to the nature and conditions of her work.
The assessment of Dr Medhat Guirgis dated 27 October 2022 was noted. He found radiculopathy for the cervical spine which was not present on my examination He accepted the shoulder range of motion as reasonable to assess impairment. However, this range of motion he found was quite different to that which I found. He did not indicate the diagnosis of the shoulders which would be consistent with the level of impairment that he found in both shoulders.
Dr Todd Gothelf, in his report dated 25 January 2022, believed she had frozen shoulders not caused by her work.”
Consideration
Ms Opacic’s submissions focussed on the Medical Assessor’s discussion of the other medical reports in the file and the question of whether or not she suffered frozen shoulders. The Medical Assessor’s comment that adhesive capsulitis normally resolves within 18 months is not the crux of his assessment. Dr McGroder did not make an assessment of permanent impairment in his report dated 18 August 2022 and he was not asked to do so, the questions asked of him being directed to Ms Opacic’s capacity to work.
The Medical Assessor was required to assess Ms Opacic as she presented on the day of his assessment and use his own clinical judgement in reaching a diagnosis.[3] The role of the Medical Assessor was not to choose between the opinions of the other doctors whose reports appear in the file but to form his own opinion, explaining the reasons for his assessment. In State of New South Wales (NSW Department of Education) v Kaur[4] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[3] Guidelines paragraph 1.6 (a) and (b).
[4] [2016] NSWSC 346.
The Medical Assessor did what he was required to do by the Guidelines, diagnosing shoulder injuries which have an element of capsulitis but are consistent with a chronic bursitis. The Medical Assessor considered those injuries consistent with the mechanism described.
The Medical Assessor was then required to assess impairment in accordance with the Guidelines and the MAC reveals that he attempted to do so, using the range of motion method. Paragraph 2.5 provides:
“2.5 Range of motion (ROM) is assessed as follows:
· A goniometer or inclinometer must be used, where clinically indicated.
· Passive ROM may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active ROM measurements. Impairment values for degree measurements falling between those listed must be adjusted or interpolated.
· If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
· If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Introduction.
· If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
The Medical Assessor explained that there was inconsistency, both on repeated testing of the range of movement of Ms Opacic’s shoulders and with respect to other assessments in the file. He set out only the best range of motion in the MAC and he was not required to set out every measurement he made. As required by paragraph 2.5 when there was inconsistency he had regard to paragraph 1.36 which reads:
“1.36AMA5 (p 19) states:
Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.
This paragraph applies to inconsistent presentation only.”
Paragraph 2.5 gave the Medical Assessor a discretion to determine how to make his assessment. He did so and determined to apply paragraph 2.16 of the Guidelines which provides:
“2.16 Diagnosis of impingement is made on the basis of positive findings on appropriate provocative testing and is only to apply where there is no loss of range of motion. Symptoms must have been present for at least 12 months. An impairment rating of 3% UEI or 2% WPI shall apply.”
That method of assessment was open to the Medical Assessor in the exercise of his clinical judgement. He set out the path of his reasoning and there is no error in his assessment of Ms Opacic’s shoulders.
Cervical spine – activities of daily living
Under the heading Social activities/ADL (and referring to Activites of Daily Living), the Medical Assessor said:
“She lives with her husband. She has two daughters aged 32 and 28. She is living in a flat in Liverpool. She can do light household chores but is restricted with a lot of household activities. She can shower and dress herself and manage her personal care generally although she said she sometimes needs assistance. She does a little bit of walking but she is not driving. She does not push the trolley when she goes shopping due to pain. She does no other significant physical activities. She is not motivated, she said, to do any hobbies.”
When assessing impairment the Medical Assessor said:
“The cervical spine is assessed under Table 15-3. There is asymmetry of neck movement but there are no clear reports of radicular symptoms or radiculopathy. She is classified as DRE II and gets a base 5% whole person impairment. For loss of activities of daily living, an additional 2% is added resulting in 7% whole person impairment for the cervical spine.
There is no pre-existing condition. No deduction is made.
The total whole person impairment for the cervical spine is 7%.”
An allowance of 2% shows that the Medical Assessor considered that Ms Opacic’s neck impairment impacted on her ability to undertake household tasks in accordance with paragraphs 4.33 and 4.35 of the Guidelines.
The Medical Assessor noted that Ms Opacic sometimes needs assistance with personal care. Paragraph 4.33 of the Guidelines reads:
“4.33 Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
Paragraph 4.34 says that the diagram which follows is to be used as a guide to determine whether an allowance for ADL is appropriate. Both of those paragraphs provide a discretion to the Medical Assessor as to the allowance to be made. It is not mandatory that an allowance be made in any case where a worker has ever had difficulties with aspects of personal care. The Medical Assessor recorded that Ms Opacic can manage her personal care generally and sometimes needed assistance. In those circumstances it was open to him to allow only 2%.
The allowance for ADL is part of the assessment of impairment arising from the cervical spine so that if the impact on the personal care aspects of ADL arises from the impairment of Ms Opacic’s shoulders, it is not assessable in respect of the cervical spine.
Paragraph 1.24 of the Guidelines says:
“1.24 Many tables in AMA5 (eg in the spine section) give class values for particular impairments, with a range of possible impairment values in each class. Commonly, the tables require the assessor to consider the impact of the injury or illness on activities of daily living (ADL) in determining the precise impairment value. The ADL which should be considered, if relevant, are listed in AMA5 Table 1–2 (p 4). The impact of the injury on ADL is not considered in assessments of the upper or lower extremities.”
The passage in Dr Gothelf’s report dated 4 May 2023 to which Ms Opacic referred needs to be read in context. Dr Gothelf had noted that Ms Opacic told him that she:
“cannot lift her left arm as it is restricted in its movement, and it is painful. The right arm is somewhat better since the previous assessment, and the status of the neck is unchanged.”
When describing his physical examination Dr Gothelf said:
“She was observed to remove her sweater and shirt with help from her daughter so as not to lift her left arm upward and was in mild apparent distress.”
Dr Gothelf said that the physical examination of Ms Opacic’s neck did not reveal guarding but in respect of her left shoulder “[t]he physical examination revealed smooth passive range of motion and reported pain with overhead movements.”
When those statements are read together, it is clear that the restriction in dressing or undressing that Dr Gothelf observed related to Ms Opacic’s left shoulder and not to her cervical spine.
We do not consider that the Medical Assessor erred in his assessment of the impact of ADL on Ms Opacic’s cervical spine.
Section 323
Liverpool Hospital submitted that there should be a deduction under s 323 of the 1998 Act, essentially because of a reference in Dr Guirgis’ report to a complaint of neck pain and pins and needles in Ms Opacic’s hand in 2008. The submissions do not clearly state whether the deduction should have been made in respect of Ms Opacic’s neck or her shoulders. We presume it to be in respect of her cervical spine because the submission that is that there was evidence of a “history of injury pre-dating” Ms Opacic’s employment. There is no history of a shoulder condition before 2012, when Ms Opacic was already working at Liverpool Hospital.
The relevant passage from Dr Guirgis’ report dated 9 November 2021 is:
“She gave me the history of being investigated in 2008 for a transient episode of pain felt in her neck associated with pins & needles felt in the right thumb and index fingers in the course of her employment with the Royal North Shore Hospital as a full time service support officer (same duties under a different name) which she did in 2005. This episode lasted for few hours, and she got scared and went to her GP.”
The Medical Assessor said:
“Dr Todd Gothelf, in his report dated 25 January 2022, believed she had frozen shoulders not caused by her work.
He provided a report on 4 May 2023 diagnosing chronic cervical/neck pain, left frozen shoulder and right shoulder impingement. He considered that she had aggravated pre-existing conditions in the neck and shoulders. He assessed impairment of the neck as 0%, 7% for the right upper extremity with 100% deduction and 12% for the left upper extremity with 100% deduction, resulting in 0% whole person impairment.”
The Medical Assessor said he did not agree with Dr Gothelf and that there was no deductible proportion.
There is no evidence of any chronicity of symptoms arising from Ms Opacic’s cervical spine. The work of a sterilising technician which Ms Opacic performed at both hospitals sterilising equipment is reasonably heavy work, often requiring the manipulation of trays of instruments and equipment and restocking stores. She described the work as heavy in her statements. Despite that, the only relevant history is of one, short-lived event in 2008 before Ms Opacic commenced employment with Liverpool Hospital.
There are no clinical notes in the file to provide any further information about that event. In 2008 Ms Opacic was working for the State of New South Wales at Royal North Shore Hospital performing the same work. By the time of episodes of pain in 2012, 2015 and 2017 Ms Opacic was working at Liverpool Hospital. Ms Opacic continued to perform that work until 2021, which is the deemed date of injury.
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…”
In Cole v Wenaline Pty Ltd[5] (Cole) Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[6]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”
[5] [2010] NSWSC 78 at [29] and [38].
[6] At [29]-[30].
In Ryder v Sundance Bakehouse[7] (Ryder) Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[7] [2015] NSWSC 526 at [45].
The submission made on behalf of Liverpool Hospital is inconsistent with the passage in Cole set out above. It is not the case that every previous complaint must result in a deduction. We explain below why Dr Gothelf’s opinion does not provide a sound basis to make a deduction or for Liverpool Hospital’s submissions. For a deduction to be made, there must be evidence; not merely of a similar complaint but evidence which allows a determination to be made as to the actual consequences of that complaint and whether it contributed to the impairment. It must, as Campbell J said in Ryder, have made a difference to the outcome.
In his report dated 7 January 2022, Dr Gothelf said that Ms Opacic recalled her first problems with her shoulder in 2012 and 2015. He said:
“Danijela confirmed a history of neck pain in 2008 with pins and needles in the right thumb and index finger during her employment with Royal North Shore Hospital” (our emphasis).
Dr Gothelf’s diagnosis in his first report was that the neck condition was pre-existing but exacerbated by her duties. In his second report he considered that the aggravation had ceased.
It is probable that Dr Gothelf directed Ms Opacic’s attention to the relevant part of Dr Guirgis’ report. He reviewed notes from Ms Opacic’s general practitioner which do not form part of our file and which describe one consultation for neck and right shoulder pain in 2012 attributed to work and three consultations in 2015. He did not refer to any note about a consultation in 2008. Under the heading Diagnosis, Dr Gothelf said:
“Danijela gave a history of a pre-existing neck pain from 2008 with recurrences of neck pain in 2012 and 2015” (our emphasis).
Dr Gothelf’s opinion is based on an assumption and on a different history to that which he actually obtained from Ms Opacic. A history of an episode of pain in 2008 is not the same as pain from 2008. He repeated those statements in his report dated 4 May 2023. His report does not provide a sound basis to challenge the Medical Assessor’s assessment.
It was open to the Medical Assessor to decline to make a deduction under s 323.
For these reasons, we have determined that the MAC issued on 17 October 2023 should be confirmed.
0
6
0