Port Stephens Veterans & Citizens Aged Care Ltd t/as Harbourside Haven Villages v Sprague

DETERMINATION OF APPEAL PANEL
CITATION:	Port Stephens Veterans & Citizens Aged Care Ltd t/as Harbourside Haven Villages v Sprague [2024] NSWPICMP 239
APPELLANT:	Port Stephens Veterans & Citizens Aged Care Ltd t/as Harbourside Haven Villages
RESPONDENT:	Narelle Sprague
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	24 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) said that some documents not included; failure to call for them was a demonstrable error; role and consequences of subdural haematoma; nature of medical dispute; Procedural Direction PIC 6 clause 29; referral to MA by consent; assessment of impact of injury on ADL and of radiculopathy; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 November 2023 Port Stephens Veterans & Citizens Aged Care Ltd t/as Harbourside Haven Villages (Harbourside Haven) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor David Lewington, who issued a Medical Assessment Certificate (MAC) on 1 November 2023.
Harbourside Haven 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Sprague was employed by Harbourside Haven as a care service employee. On 12 June 2018 she suffered an injury to her lumbar spine when she bent to lift a large fruit bowl. She was referred to Dr Hansen, neurosurgeon, who undertook an L2/3 microdiscectomy and rhizolysis on 1 August 2018.
While she recovered and returned to work, Ms Sprague gradually experienced numbness and weakness in her left leg, causing her to fall from time to time In September 2019 she fell at home when her left leg gave way and suffered an injury to her head.
In about mid-November 2019 while at work, Ms Sprague felt numb and weak in her right arm and leg. She was taken to hospital by ambulance and diagnosed with a left sided subdural haematoma (a blood clot between layers of the meninges of the brain) and Dr Ferch performed emergency surgery.
Ms Sprague claimed permanent impairment compensation in respect of her lumbar spine, based on an assessment by Dr Granot, neurosurgeon, and her claim was referred to the Medical Assessor, who assessed 15% whole person impairment (WPI).
It was clear from the file that Harbourside Haven relied on reports by Dr Casikar, neurosurgeon. The Medical Assessor said in the MAC that he did not have those reports but went on to issue a MAC rather than calling for the reports under s 324(1)(b) of the 1998 Act.
Harbourside Haven lodged an appeal and the President’s delegate determined to refer the matter to an Appeal Panel rather than to provide Dr Casikar’s reports to the Medical Assessor and requesting that he reconsider the MAC.

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 Sprague to undergo a further medical examination. While the failure to obtain and consider Dr Casikar’s reports was a demonstrable error, the assessment of WPI made by the Medical Assessor was open to him.

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, Harbourside Haven submitted that it was denied procedural fairness because the Medical Assessor did not consider Dr Casikar’s reports. It submitted that the Medical Assessor applied incorrect criteria and made a demonstrable error in making an allowance for the impact of the injury on Ms Sprague’s activities of daily living (ADLs) because Ms Sprague had returned to her normal work and made no complaint to Dr Riley or Dr Casikar about any impact of the injury on her ADLs.
Harbourside Haven also argued that the Medical Assessor was in error to allow 3% under Table 4.2 of the Guidelines for radiculopathy. It noted that Dr Casikar said that Ms Sprague’s radicular symptoms arose as a result of the subdural haematoma which was not work related and that the evidence of the treating doctors suggested that Ms Sprague suffered an increase in radicular symptoms after the fall due to that condition.
In reply, Ms Sprague agreed that the Medical Assessor appeared not to have Dr Casikar’s reports but submitted that reconsideration of the MAC was appropriate. She said that the allowance for the impact of the injury on ADLs was appropriate, relying on the decision of another Medical Appeal Panel in Goonan v State of New South Wales (NSW Police Force)[1] to argue that the assessment of the impact of an injury on ADLs is not solely dependent on self-reporting but is based on clinical findings and other records. Ms Sprague referred to the reports of Dr Granot and Dr Riley as well as her statement.
[1] [2022] NSWPICMP 389.
With respect to the application of Table 4.2, Ms Sprague submitted that the Medical Assessor was correct to apply an additional 3%, contrasting Dr Casikar’s opinion with those of Dr Granot, Dr Riley, Dr Hansen, Dr Curtis and Dr Ferch.

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,[2] 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.
[2] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[3] 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.
[3] [2006] NSWCA 284.

The medical dispute

We agree that the MAC contains a demonstrable error because the Medical Assessor did not refer to Dr Casikar’s reports. If the Medical Assessor was satisfied that the reports were not attached, the appropriate action was to call for the reports under s 329(1)(b) and defer the preparation of his MAC until he had considered them.
Harbourside Haven’s submissions fall into two broad categories and we will consider each separately below. There is one important issue which should be highlighted first. Harbourside Haven’s submission that the Medical Assessor should have determined that the subdural haematoma was not work-related is a submission that the Medical Assessor was required to find that it was not a consequential condition arising from the injury on 12 June 2018. The determination as to whether a consequential condition has been suffered is a liability dispute and is a matter for determination by a member of the Commission, not a Medical Assessor.[4]
[4] Jaffarie v Quality Castings Pty Limited [2018] NSWCA 88, The Star Entertainment Group Ltd v Samaan [2023] NSWPICPD 50.
The history apparent from the file is that Ms Sprague claimed permanent impairment compensation which was declined in a s 78 notice dated 30 March 2023 because Dr Casikar considered that any left leg weakness that Ms Sprague suffered was due to a non-work-related subdural haematoma, and that her radicular symptoms were not related to her lumbar spine surgery. The issue as to whether the subdural haematoma was a consequential condition was obliquely raised by that s 78 notice.
Ms Sprague filed an Application to Resolve a Dispute, making a claim for permanent impairment compensation on the basis that the degree of permanent impairment was in dispute. A Reply was filed just after the period allowed for its filing.
A preliminary conference before a Personal Injury Commission member was held on 16 October 2016, most likely to determine if the late Reply was to be send to the Medical Assessor. The orders made in a Certificate of Determination dated 16 October 2023 were that a referral to the Medical Assessor, which had already been prepared, be amended. The Medical Assessor was to assess the usual questions referred in a permanent impairment dispute:
“•      the degree of permanent impairment of the worker as a result of an injury (s319(c));
·        whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d));
·        whether impairment is permanent (s319(f)), and
·        whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))”.
If there was a dispute about what constituted the injury in 2018 or whether there were consequential conditions arising from it (or an application under s 289A(4) of the 1998 Act to squarely raise the issue), the Member was required to determine the liability dispute before remitting the matter for referral to a Medical Assessor. Procedural Direction PIC 6 provides in cl 29:
“A liability dispute in relation to a claim for permanent impairment compensation must be resolved, either by agreement between the parties or determined by a member of the Commission, before the degree of permanent impairment is assessed.”
It is common that liability disputes raised in s 78 notices are resolved by consent when a matter is listed before a Member. If that occurs, the matter is remitted for referral to a Medical Assessor. The consequence of the orders made at the preliminary conference on 16 October 2023 is that there was no liability dispute about whether the subdural haematoma was a consequential condition resulting from the injury. Whether or not the Medical Assessor had Dr Casikar’s reports, the relationship between the injury and the subdural haematoma was not a question for him to determine.

The MAC

The Medical Assessor recorded a history of the injury:
“On 12 June 2018 when bending down to lift a large fruit bowl, experienced sudden back pain with paraesthesia radiating to her left leg. The bowl weighed approximately 10 to 15 kg.
She was diagnosed with an L 2-3 disc protrusion and proceeded to a microdiscectomy on 1 August 2018. There was good initial improvement but weakness and paraesthesia gradually increased in the left leg resulting in a number of falls.
There was an exacerbation of back pain and left leg symptoms when slightly bending forwards on 6 November 2020 to pick up a food tray. She was reviewed by neurosurgeon, Dr Curtis on 4 December 2020 who diagnosed probable L 2 nerve root irritation. There was reference to imaging and with post contrast pictures suggesting scarring about the nerve root (perineural fibrosis). She underwent an L 2 perineural injection on 21 December 2020.”
Describing Ms Sprague’s present symptoms, the Medical Assessor said:
“Ongoing low back pain with mainly paraesthesia including numbness and tingling in the left calf and foot. There is a feeling of weakness in the left leg and occasional falls.”
With respect to her general health, the Medical Assessor said:
“Fall in September 2019 sustaining a closed head injury and left sided subdural haematoma which required left posterior frontal craniotomy and drainage performed by neurosurgeon Dr Ferch on 22 November 2019. Symptoms included paraesthesia and weakness over the right arm and leg. The operation report from John Hunter Hospital listed symptoms as ‘right sided weakness and paraesthesia for about one week’. She underwent 3 months of post-operative rehabilitation and thereafter return to her normal work duties.”
The Medical Assessor said:
“Lives alone In a Duplex at Salamander Bay. Her daughter or sister helps with the heavier domestic chores such as making the bed or changing bed linen, cleaning bathrooms, et cetera. She has a hand rail installed in the shower.”
Describing his examination, the Medical Assessor noted the range of motion he observed and said:
“Straight leg raising was 70° on the right and 30° on the left. There was a 4+/5 weakness in left hip flexors, deep tendon reflexes were symmetrical, both ankle jerks being reduced. Pinprick sensory examination was inconclusive. Planter responses down going. Examination findings overall consistent with left L 2-3 radiculopathy.”
The Medical Assessor’s diagnosis was:
“L 2-3 disc protrusion 12 June 2018 and microdiscectomy 1 August 2018 complicated by perineural fibrosis and persisting radiculopathy.”
The Medical Assessor explained the reasons for his assessment:
“Lumbar Spine was assessed commencing with Table 4.1, Page 26 of the W.C.C Guides, 4^th Edition; Clinical Findings Definitions, Box 15.1, A.M.A 5, Pages 382 -383 and D.R.E Categories for Lumbar Spine, A.M.A 5, Table 15.3, Page 384. Radiculopathy, when present, is assessed in accordance with Box 15 - 1 of A.M.A 5 (Page 382) and Paragraphs 4.27-4.29 of W.C.C Guides, 4th Edition (Revised March 2021).
In the Lumbar Spine there is D.R.E Category III equivalent to 10% W.P.I (prior to adding A.D.L contribution). This impairment level relates to the effects of spinal decompression surgery in accordance with Paragraph 4.37 and Table 4.2 of the W.C.C Guides, 4th Edition.
A 2% impairment has been added for A.D.L restrictions in accordance with Paragraphs 4.33 - 4.38, Pages 27-28, W.C.C Guides, 4th Edition (Revised March 2021). I consider this percentage to be commensurate with the level of impairment. Regarding the latter, it is noted under Paragraph 4.33 that Paragraphs 4.34 and 4.35 are to be used as guides only and that A.D.L is not solely dependent on self-reporting but is based on all clinical findings and other reports.
There are modifiers for the Effect of Surgery in accordance with the W.C.C Guides, 4^th Edition, Page 29, Paragraph 4.37. In this case there is 3% for persisting radiculopathy. There are no modifiers in respect to multiple surgeries or multiple spinal levels.
12% combines with 3% for a Total Lumbar Spine W.P.I of 15%.”
The Medical Assessor commented on other medical reports:
“Dr Granot, neurosurgeon medicolegal report 12 August 2022: assessed 15% W.P.I. The I.M.E assessed D.R.E Category III with 2% A.D.L contribution and 3% modifier for radiculopathy.
This is the same outcome as my assessment today.
I have noted various other medical reports including from Dr Riley. The medicolegal report from Dr Riley 1 July 2022 assessed 13% W.P.I. This was on the basis of D.R.E Category III and persisting radiculopathy. The I.M.E did not offer any contribution for A.D.L.
I have noted that there is reference to a medicolegal report of neurosurgeon Dr Casikar on 2 February 2023 and 9 March 2023 with assessment of 10% W.P.I. Unfortunately, these reports did not appear to be included in the M.A brief. I therefore cannot directly comment on these reports other than that today’s findings support W.P.I 15% in line with that of Dr Granot’s assessment.
I have however, noted a letter from the insurer E.M.L dated 30 March 2023 stating ‘Dr Casikar considered your left leg weakness was due to your non work related subdural haematoma. He did not consider the evidence of her radicular symptoms were related to her lumbar spine surgery’. In principle, there are 2 issues with this statement. The 1st is that anatomically a leftsided subdural haematoma would be expected to potentially produce right sided limb symptoms, not left-sided. Indeed, right sided symptoms were reported in reference to the subdural haematoma. Left-sided symptoms are expected and were reported following the lumbar spine injury.
The 2nd issue is that it is not anatomically possible for subdural haematoma to produce radicular symptoms. The latter can only originate at the level of the spine. If one is hypothesising non work related radicular symptoms (for example in relation to deductible proportion) then another cause would need to be in evidence apart from subdural haematoma. On today’s assessment there was no evidentiary basis for deductible proportion for either preexisting or subsequent condition to explain radiculopathy.
I would add that today’s examination, in line with other examiners, is consistent with signs of a lower motor neuron disorder, specifically radiculopathy. Today’s examination does not reveal signs of upper motor neuron disorder such as emanating from an (intracranial) subdural haematoma.”

Activities of daily living

The Medical Assessor was required to assess Ms Sprague as she presented on the day of the examination.[5] Therefore, the submission that there should be no allowance for the impact of the injury on ADLs merely because other assessors, on different days, had not made that allowance cannot be accepted.
[5] Guidelines paragraph 1.
Paragraph 4.33 of the Guidelines says that “[a]n assessment of the effect of the injury on ADL is not solely dependent on self-reporting, it is an assessment based on all clinical findings and other reports.”
In its submissions, Harbourside Haven emphasised those words but referred only to the medico-legal reports in the file. We do not agree that the reference to other reports is intended to require the Medical Assessor to make an assessment having regard to the assessments made by other medico-legal examiners. To do so would be contrary to the Medical Assessor’s obligation to be independent and to exercise his own clinical judgement on the day of his examination.
The Guidelines provide further explanation in paragraph 1.25:
“The assessment of the impact of the injury or condition on ADL should be verified, wherever possible, by reference to objective assessments – for example, physiotherapist or occupational therapist functional assessments and other medical reports.”
In this case, there are no contemporaneous reports from treating allied health professionals, or Ms Sprague’s general practitioner, providing any information about her ability to perform ADLs. The Medical Assessor was therefore required to make his assessment based on the history he obtained and the results of his examination.

Paragraph 4.34 of the Guidelines provides a diagram to be used as a guide (our emphasis) to determine the percentage WPI which should be added to the bottom of the appropriate impairment range “if there was a difference in activity level as recorded and compared to the worker’s status prior to the injury.” Because the diagram is a guide, the Medical Assessor was entitled to use his discretion in applying it.
Paragraph 4.35 reads:
“The diagram is to be interpreted as follows:
Increase base impairment by:
·3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
·2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
·1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
There is no requirement in the Guidelines that a worker be incapacitated for work before an allowance can be made for the impact of the injury on ADLs. The Medical Assessor obtained a history that Ms Sprague works on a part time basis and on restricted duties.
Dr Riley, orthopaedic surgeon, saw Ms Sprague on 1 July 2022. He noted that Ms Sprague could perform ADLs including self care, housework, driving and shopping.
Dr Granot saw Ms Sprague and reported on 12 August 2022. He said that Ms Sprague was able to walk down stairs, holding onto a handrail on one step at a time. She is no longer able to garden, and she cannot make the beds all at once, needing a break and not tucking her sheets in. Despite that, Dr Granot considered that Ms Sprague remained fit for her pre-injury duties so long as heavy lifting was avoided.
The history is more detailed than that Dr Riley recorded and the limitations Dr Granot recorded are more specific than those recorded by Dr Riley. They are not inconsistent with being able to perform restricted part time duties..
Dr Casikar saw Ms Sprague and reported on 2 February 2023. He referred to an earlier report dated 9 May 2022. It does not appear in the index to Harbourside Haven’s reply, and we therefore draw the conclusion that it was not relied on. In 2023 Dr Casikar said that Ms Sprague was working normal hours without restrictions. That does not accord with the other evidence in the file, and in particular, the history provided to the Medical Assessor in late 2023. The only reason Dr Casikar gave for declining to include a component for ADLs was that Ms Sprague had returned to work. As indicated above, that is a different question.
It was open to the Medical Assessor in the exercise of his clinical judgement to make an allowance for ADLs on the basis of the history he obtained on the date of his examination. The assessment does not disclose error.

Subdural haematoma

Before considering Harbourside Haven’s argument about radiculopathy, it is important to review the evidence concerning the subdural haematoma and its treatment.
Ms Sprague said in her statement that she initially recovered well following lumbar spine surgery at L2/3 on 1 August 2018. Over time she began to experience more numbness and weakness in her left leg, which began to give away more often, causing her to fall repeatedly. She said that she fell at home in her bathroom in September 2019, suffering the injury to her head when she fell backwards because her left leg collapsed. In about mid-November 2019, when at work, she began to feel numbness, paraesthesia and weakness over her right arm and her right leg, and she was taken to John Hunter Hospital by ambulance. Dr Ferch undertook surgery to drain the subdural haematoma and she recovered well and was able to return to work after three months.
The contemporaneous medical evidence supports Ms Sprague’s statement. Dr Hansen treated Ms Sprague following the injury in 2018. He said:
“She has terrible pain down her left leg. She can’t sit or stand properly, and she finds it difficult to walk. The pain goes around the hip and into her thigh, and this is made her weak and given her some numbness.
The MRI that was done shows a foraminal disc at L2/3 level on the left it is and is almost certainly the cause of her pain.
I think that, as she’s so debilitated with her pain, it would be best if she urgently one underwent microdiscectomy and rhizolysis…”
After the surgery, Dr Hansen noted that Ms Sprague’s pain improved and that is consistent with her statement.
Ms Sprague was admitted to John Hunter Hospital on 22 November 2019 with a history of right sided weakness for three days, including that she had difficulty mobilising because she was dragging her leg. A CT scan of her brain showed an acute on chronic subdural haematoma on the left. Ms Sprague was transferred to Lingard Private Hospital and surgery undertaken.
Another CT scan was undertaken on 28 January 2020 and Dr Long noted the clinical history was:
“Recent drainage of left sided SDH. Right sided symptoms. Now has left sided symptoms with normal MRI lumbar spine. Exclude central cause of her left sided symptoms.”
The result of the scan was:
“Small residual left subdural collection located anterosuperior to the left craniotomy site.
No other finding of note.”
On 30 January 2020 Dr Ferch wrote to Ms Sprague’s general practitioner and said:
“I had the opportunity to review Narelle in my rooms on 30/01/2020 two months following her craniotomy and subdural evacuation. Narelle is making good progress following her surgery. She tells me that the precipitant for her initial fall was a feeling of weakness in her left leg. She did undergo microdiscectomy surgery in 2018 and has been troubled by a feeling of weakness in the thigh despite the surgery.
…
I had the opportunity to review Narelle's recent brain CT scan which shows resolution of her subdural with only a minimal amount of post operative change. I was able to review Narelle's recent lumbar MRI scan which shows an optimal post surgical result at the L2/3 level. There is no longer any ongoing neural compromise and her spinal alignment is well preserved. Narelle has arrangements to see Mitch Hansen in regards to her spine and I have reassured her that the findings show an optimal appearance.”
Dr Hansen was Ms Sprague’s first treating neurosurgeon and he undertook surgery in 2018. His report dated 17 February 2020 appears in the Reply. On that occasion, he had history of the fall at home in 2019 and the removal of a left-sided subdural haematoma. Ms Sprague reported left L5 numbness and sporadic loss of sensation in her left foot. He noted that a recent MRI scan showed good decompression at L 2/3, and he referred Ms Sprague for nerve conduction studies.
At the request of her general practitioner, Ms Hansen saw Dr Curtis, neurosurgeon, who reported on 4 December 2020 after an exacerbation of the injury on 6 November 2020. Dr Curtis said:
“Narelle was working in catering on behalf of one of the nursing homes that she services and was lifting a lower tray and experienced immediate lower back discomfort and recurrent paraesthesias affecting the left leg and pain affecting the anterior thigh, but she also complained of some pins and needles affecting the lateral calf and foot. She said that in 2018 following her initial injury after a similar event she experienced almost identical symptoms with lower back pain and left-sided paraesthesia in the same distribution. I know that she went on to have a microdiscectomy procedure at this time in Newcastle. She said that the paraesthesias never completely resolved but she reported they were somewhat improved and her discomfort was improved to the point of being able to return to work. Since her more recent injury in November she has managed to continue working but is doing so with reduced hours and with some restrictions. Paraesthesias remain a concern to her and she also feels that the leg is weak and that weakness may have been relevant to the fall which resulted in her subdural haematoma. I note also in your letter that you saw her in January of this year with recurrent paraesthesias and discomfort which are also reminiscent of her prior 2018 injury but these gradually resolved. Narelle does also mention as have you in your letter that she experiences paraesthesias on the right, however she consistently indicated to her left leg during the consultation and continually pointing to this and it appears the predominate symptoms are on the left.
…
On physical examination I noted that Narelle frequently stood during the consultation because she said this was more comfortable. She had an antalgic gait preferring not to walk on the left side. There was mild weakness but this was of a painful nature and present more proximally. I thought she was normal neurological distally. On raising the leg, she experienced a worsening of her paraesthesias affecting the left leg and also lower back pain. On the right side she experienced some lower back discomfort on straight leg raising test but no alteration to the paraesthesia. She has no overt lower back.
Based on the history that Narelle gives, it would certainly appear that the most likely source is irritation of the left L2 root or its ganglion. Hopefully this will settle with time and I think she is having the correct treatment so far with physiotherapy. I agree with a CT guided injection in the region of the L2 nerve root.
…
Ultimately, if the paraesthesias do not improve we could consider imaging the cervical spine or brain given her absence of upper motor neuron signs I think this is probably a low yield at this point.” [sic]
Ms Sprague saw Dr Hansen again on 4 January 2021. He took a history of the exacerbation in November 2020 and said:
“Her main concerns are issues with feelings of left leg, hip and knee instability, and some paraesthesia. It should be noted that she is having issues with some falls, and she did have a fall, which resulted in a left-sided chronic subdural haematoma, which was evacuated by Dr Ferch in early 2020. Since then, she’s had issues ongoing with his left leg weakness, particularly with squatting and going up stairs.”
In his medico-legal report dated 28 June 2022, Dr Riley said:
“Following the injury, Narelle made a reasonable recovery and was able to resume her work duties, but she did suffer several subsequent falls and developed a left sided chronic subdural haematoma. The latter was drained at Lingard Private Hospital on 26th November, 2019 by Dr Richard Ferch.
…
Clinically, Mrs Narelle Sprague has been left with weakness related to the left L2 and L3 myotomes. Weakness is graded power Grade 4/5 affecting the ilio-psoas and hip flexors and knee extensor muscles. This does predispose the patient to recurrent falls which has been clinically evident as evidenced by the chronic left sided subdural haematoma. There is sensory alteration and diminution of the knee jerks, particularly on the left side.
All of the above findings are consequent to the left sided L2/3 disc protrusion and this has caused some scarring and possible damage of the associated nerve roots with ongoing radiculopathy and functional impairment. Weakness in the affected muscle groups will be most evident when attempting to rise from a low chair or a squatting position and also when descending stairs or steep inclines. This does render Mrs Sprague at risk of recurrent falls.
…
The injury which occurred on 12th June, 2018, resulted in a left sided L2/3 disc protrusion which required surgical management. In spite of timely and reasonable and necessary surgery, Mrs Sprague has been left with weakness in her left L2 and L3 nerve root distributions and with ongoing radiculopathy. As a consequence of the weakness, Mrs Sprague is susceptible to recurrent falls and did suffer a chronic left sided subdural haematoma. The latter required surgical management, and clinically there is no ongoing sequalae of the subdural or its treatment.”
Dr Granot reported on 12 August 2022. He also had a history that Ms Sprague’s left leg was numb and weak after the surgery in 2018 and gave way and she fell repeatedly. He said:
“Mrs Sprague sustained a work-related injury due to bending to move and lift a heavy fruit bowl, feeling a pop consistent with the L2/3 disc protrusion. The residual thigh weakness is compatible with the L3 radiculopathy consequent to this injury, which has not resolved following surgery.
However, on MRI, there is no clear ongoing compression, only scar tissue, so no further operative intervention is likely to be of benefit. Therefore, this is a chronic, persistent deficit.
This is likely the cause of her numerous falls, requires likely a walking stick and ongoing allied health to minimise the risk of falls, and the sequelae of the falls, which included her subdural haematoma. Fortunately, this has left no ongoing deficit (the right side is neurologically normal).”
Dr Casikar said that his report dated 2 February 2023 should be read with his earlier report dated 9 May 2022 but Harbourside Haven did not rely on that report. Dr Casikar said:
“In my previous report I had concluded that the lumbar disc surgery was related to her employment. I also indicated that the subdural hematoma occurred following a fall about nine months after the surgery. Therefore, I did not think that the subdural hematoma was related to her workplace injury.
…
Since my previous examination, Ms Sprague indicated that she has returned to work on normal hours. She still gets weakness in the left leg. It improves with walking. She gets a burning sensation in the left foot, which is more than the right foot. She has no dizziness. She has deafness but this is unrelated to her fall.
She indicated that the weakness in the left leg became obvious when she had a fall at home. This is not work related.
…
On examination she was limping on the left side. The left quadriceps was weak 4/5. The reflexes were equal on both sides.
She has had a few falls at home mainly because of the left weakness.
Apart from the obvious weakness of the left quadriceps, I did not find any other neurological findings.”
Dr Casikar considered that Ms Sprague “indicated that most of the falls that she had were at home and were not work related.” However, he went on to say:
“I am not sure if the weakness in the left leg is a residual feature of the subdural hematoma or residual features of the L2/3 surgery. Considering the fact that she has recovered and returned to work after the lumbar surgery, in my opinion, the present weakness is probably the result of the subdural hematoma. I find it very difficult to indicate that she had a weakness after the lumbar surgery and was still able to return to her normal work duties.
As far as the falls are concerned, it is difficult to indicate if these were due to her other medical issues.”
Asked about a fall at home in January 2022, Dr Casikar said:
“I believe that her radicular symptoms and weakness are related to the lumbar spine injury on 12 June 2018. Her pre-existing bilateral foot numbness or vestibulopathy are not responsible for this injury. On the balance of probabilities, I find that the left leg weakness is due to residual symptoms of lumbar surgery.”
In that report Dr Casikar assessed 13% WPI, allowing 3% for persisting radiculopathy. He stressed that the subdural haematoma was not work related but did not provide the reasoning to support that statement.
He prepared a further report dated 9 March 2023 in response to a request which noted an inconsistency in the previous report. He said:
“At the outset, I need to indicate it is not very easy to indicate whether the problems are due to subdural hematoma or due to problems relating to the surgery.
It is my opinion that her left leg weakness is related to the subdural hematoma.
I note in my earlier report I had indicated that the leg weakness was probably due to surgery. I must correct that opinion and maintain that her leg weakness was due to the subdural hematoma and not due to the surgery.
I therefore wish to clarify my opinion that Mrs Sprague’s symptoms at the moment are now mainly due to the subdural hematoma. The evidence of radicular symptoms related to lumbar spine surgery is difficult to justify.”
Dr Casikar did not provide the reasoning for that opinion. He withdrew the 3% modifier for radiculopathy but said:
“Please note that it is very difficult to be very certain given that her neurological problems overlap due to two different pathologies. It would be a controversial issue. I have attempted to clarify the points that you have raised.”

Radiculopathy

We explained above why we do not consider there was a medical dispute with respect to the relationship between Ms Sprague’s work injury and the subsequent falls, one of which led to a head injury and subdural haematoma. The only opinion in the file to the contrary is that of Dr Casikar whose opinion is not explained, except perhaps on the basis that the fall which caused the subdural haematoma occurred at home.
Dr Casikar’s opinion that the persisting radiculopathy Ms Sprague suffers is a result of the haematoma is inconsistent with the contemporaneous information. At John Hunter Hospital, Ms Sprague reported right sided arm drift, dragging her right leg and slight right sided facial droop which are consistent with a left sided subdural haematoma subsequently diagnosed. She told Dr Ferch that she fell because of weakness in her left leg.
Harbourside Haven’s submissions focus on what it says are increased complaints of radiculopathy after the subdural haematoma. The medical evidence sought to be relied on in support of its contention that the radiculopathy increased after the subdural haematoma does not show that the increase was because of the fall, merely that it occurred after the fall.
Harbourside Haven did not engage with the Medical Assessor’s very clear explanation that a subdural haematoma will not produce radicular symptoms because radicular symptoms originate at a level of the spine.
Our review of the evidence shows that Ms Sprague did experience left sided weakness after the surgery which led to falls. Ms Sprague’s history to multiple medical practitioners of numbness in her left thigh are consistent with the L2/3 nerve root distribution, which was the level at which surgery was undertaken. It is consistent with the results of the subsequent investigations. She has consistently said that she has suffered falls because of left sided numbness, both before and after the subdural haematoma. She has experienced more than one exacerbation of L2/3 pain which has been treated.
Harbourside Haven did not take issue with the manner in which radiculopathy was assessed. Paragraph 4.27 of the Guidelines provides:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
·loss or asymmetry of reflexes
·muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
·reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
·positive nerve root tension (AMA5 Box 15-1, p 382)
·muscle wasting – atrophy (AMA5 Box 15-1, p 382)
·findings on an imaging study consistent with the clinical signs (AMA5, p 382).
The Medical Assessor recorded signs of L2/3 radiculopathy. Though his examination findings are recorded in short form, they include the necessary two of the criteria set out in paragraph 4.27 of the Guidelines being muscle weakness in the left hip flexors (a major criteria) and findings on radiology concordant with physical findings (minor).
Under paragraph 4.37 of the Guidelines and Table 4.2 it was appropriate for the Medical Assessor to assess 3% for persistent radiculopathy following surgery.

While the MAC does clearly set out the Medical Assessor’s path of reasoning, and does not disclose error beyond the failure to obtain Dr Casikar’s reports, it is brief and it may have been easier for the parties to understand if that reasoning had been set out in greater detail.
For these reasons, we have determined that the MAC issued on 1 November 2023 should be confirmed.

[2024] NSWPICMP 239

24 April 2024