Secretary, Department of Communities and Justice v Richards

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Communities and Justice v Richards [2022] NSWPICMP 250
APPELLANT:	Belinda Richards
RESPONDENT:	Secretary, Department of Communities and Justice
APPEAL PANEL:
MEMBER	William Dalley
MEDICAL ASSESSOR	Nicholas Glozier
MEDICAL ASSESSOR	Michael Hong
DATE OF DECISION:	14 June 2022 (Amended 30 June 2022)
CATCHWORDS:	WORKERS COMPENSATION - Injury referred lumbar spine, thoracic spine (station and gait) and urinary system; the worker appealed against the assessment of the thoracic spine (station and gait) alleging demonstrable error and use of incorrect criteria; Lead Assessor (neurologist) assessed 0% whole person impairment (WPI) in respect of thoracic spine (station and gait) as the nature and extent of impairment observed on examination could not be said to result from the subject injury in the absence of any observable/demonstrable pathology; the insurer appealed against the assessment of the Non-Lead Assessor who assessed 41% WPI in respect of the urinary system (bladder) as the findings of the Lead Assessor were incompatible with the diagnosis of the Non-Lead Assessor of neurogenic bladder leading to error in the combined Medical Assessment Certificate (MAC); Held – the Lead Assessor had used language which could be understood as indicating a finding that there had been no injury which could be termed “thoracic spine (station and gait)” and to that extent error was made out however, the Lead Assessor had correctly assessed the worker; the Panel accepted that terms of the referral indicated a neurological condition; the impairment of station and gait exhibited by the worker required demonstrable injury to the spinal cord apparent on electromyography (EMG) and other testing; Magnetic Resonance Imaging (MRI) scans and subsequent EMG testing was normal; the impairments to station and gait exhibited by the worker could not be attributed to the subject accident; with respect to the insurer’s appeal the Panel was satisfied that the diagnosis of neurogenic bladder was appropriately made; the Non-Lead Assessor recognised that the condition did not arise from damage to the spinal cord or thoracic spine but was likely consequential upon the subject injury leading to the worker self-catheterising following the subject accident; Combined MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

The medical dispute in this matter was assessed by Medical Assessors, Dr Robin Fitzsimons, neurologist, as Lead Assessor and Dr John Garvey, surgeon, as non-Lead Assessor. On 26 October 2021 the Lead Assessor issued a Medical Assessment Certificate (MAC) incorporating the assessment of the non-Lead Assessor of the same date.
On 23 November 2021 Belinda Richards (the first appellant) lodged an Application to Appeal Against the Decision of the Lead Assessor, (M3-5713/15). That appeal was lodged on the following grounds, the assessment was made on the basis of incorrect criteria (section 327(3)(c)) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and the MAC contains a demonstrable error (section 327(3)(c) of the 1998 Act).
On 23 November 2021 the Secretary, Department of Communities and Justice, (the second appellant) lodged an Application to Appeal against the Decision of the non-Lead Assessor, Dr Garvey (M4-5713/15). That appeal was also lodged on the grounds that the assessment was made on the basis of incorrect criteria (section 327(3)(c)) of the 1998 Act) and the MAC contains a demonstrable error (section 327(3)(c) of the 1998 Act).
The delegate is satisfied that, on the face of the respective applications, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the respective appeals are made.
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 section 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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 first appellant, Ms Richards, suffered an injury 10 September 2012 in the course of her employment as a youth worker with the Department of Communities and Justice, the respondent to the first appeal and second appellant (the Department).
Injury occurred when Ms Richards was struck on the back by an 18-year-old inmate in the course of her employment as a Youth Officer. Shortly afterwards the young person threatened to kill her, having armed himself with a broken broom handle. Ms Richards was removed from the situation. She completed a report of the incident and then drove herself to Dubbo Base Hospital. She continued to experience severe pain in her back.
Over the following weeks the pain worsened, extending into the left leg, forcing her to drag the leg. She was prescribed opioid (Endone and OxyContin) and anti-convulsant medication (Gabapentin). Ms Richards experienced increasing problems with mobility. She started to require a walking stick but deteriorated, requiring the use of a walking frame and eventually, the use of a wheelchair. She developed bowel and bladder problems.
Ms Richards also developed a psychiatric condition and was admitted to hospital in December 2012. She was referred to a psychiatrist for treatment as well as a neurologist, Dr Stening, then Dr Blackwood, and a urologist, Dr Whelan.
In March 2014 Ms Richards was examined by a neurological surgeon, Associate Professor Fearnside, at the request of her solicitors. Associate Professor Fearnside assessed Ms Richards as having 40% whole person impairment (WPI) when assessed by reference to station and gait. In June 2014 Ms Richards was examined by a urologist, Dr Odillo Maher. Dr Maher assessed Ms Richards as having 39% WPI as a result of injury to the bladder.
Ms Richards’ solicitors made a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 based upon the assessments of Associate Professor Fearnside and Dr Maher. At the same time, the solicitors also made a claim for lump-sum compensation in respect of psychological injury.
In October 2015 Ms Richards was examined by a neurosurgeon, Dr Casikar, at the request of the insurer. Dr Casikar reported that there was no neurological diagnosis to explain Ms Richards’ symptoms. He regarded diagnosis as “mainly a chronic pain disorder”.
Pursuant to consent orders made on 17 May 2016, the medical dispute between the parties was referred to Dr Fitzsimons, then appointed as an Approved Medical Specialist (AMS) to assess impairment arising from injury to the body parts “lumbar spine, thoracic spine (station and gait)” and to Dr Taylor (at that time an AMS) to assess impairment arising from injury to the urinary system. Dr Fitzsimons was appointed as the Lead Assessor.
Dr Taylor, in a MAC dated 17 August 2016, assessed Ms Richards as suffering 39% WPI as a result of injury to the urinary system. Dr Taylor diagnosed an atonic neurogenic bladder.
Dr Fitzsimons, in a separate MAC, reported that she was unable to certify the degree of permanent impairment on the basis of the present information stating, “That is because the diagnosis of her neurological condition is not established, and there is no evidence of relevant investigations having been performed which would investigate other possible causes of her neurological deficits.”
The second appellant lodged an Application to Appeal Against the Decision of the non-Lead Assessor, Dr Taylor (M1-5713/15). Pursuant to section 329(1A) of the 1998 Act, the Delegate of the Registrar referred the matter back to Dr Taylor for reconsideration in the light of the report of the Lead Assessor, Dr Fitzsimons.
Upon reconsideration, the non-Lead Assessor issued a MAC dated 8 March 2017 in which he certified impairment arising from the urinary bladder as “not assessable”.
Ms Richards lodged an Application to Appeal Against the Decision of the Lead Assessor (M2-5713/15). That application was not granted by the Delegate of the Registrar and that appeal did not proceed.
On 9 December 2020 further consent orders were made and the respective disputes were once again referred for assessment in the following terms:
“1      MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
ð        the degree of permanent impairment of the worker as a result of an injury (s319(c))
ð        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))
ð        whether impairment is permanent (s319(f))
ð        whether the degree of permanent impairment of the injured worker is fully ascertainable (s3199g))
Date of Injury:  10 September 2012*
Body part/s referred:         Lumbar spine
Thoracic spine (station and gait)
Urinary system
Method of assessment:     Whole Person Impairment
Issues Determined by Arbitrator:
–Certificate of Determination – Consent Orders dated 17 May 2016
–*Certificate of Determination – Consent Orders dated 17 May 2016 contained a typographical error in respect to the date of injury.
–Certificate of Determination – Consent Orders dated 9/12/20 issued by the Arbitrator, Paul Sweeney.”
The Lead Assessor appointed to assess “lumbar spine and thoracic spine (station and gait)” was again the neurologist, Dr Robin Fitzsimons, now appointed as a Medical Assessor. The non-Lead Assessor appointed to assess the urinary system was the general surgeon, Dr John Garvey, also appointed as a Medical Assessor.
The Lead Assessor examined Ms Richards on 16 February 2021. In addition to the material supplied to her pursuant to the consent orders, the following information was obtained in accordance with section 324(1) of the 1998 Act:
Orange Base Hospital records.
Correspondence from Firths Solicitors (21 July 2021) concerning available information.
Reports of Dr Stening dated: 19 October 2012, and 4 December 2012.
Reports of Dr Blackwood dated: 26 February 2013, and 5 April 2013.
Dubbo Base Hospital medical records.
Reports of Dr Dutta dated: 28 September 2012, 13 November 2012, 20 November 2012;and 4 December 2012.
Dr Dutta's Progress Notes dated: 14 September 2012, 21 September 2012, 28 September 2012, and 21 November 2012.
Swift Medical Centre Records which also show blood test results from 5/11/2010 (24 months prior to DOA).
Dr Michelle Telfer,
Dr Arundathy Mayooran,
Dr Niranjala Nandakumar,
Dr Mahishi Nanayakkara.
Reports of Dr Whelan dated: 25 June 2013 , 6 March 2014, 25 March 2014 (x2), together with Urodynamic Studies reports of Dr Yuhico dated: 11 March 2014, 29 March 2014
Reports of Dr Fearnside dated: 4 March 2014, 9 May 2014, and 22 April 2016.
Blood test results for the period 4 November 2010 - 10 October 2013.
(x2) Surveillance Investigation reports dated: 20 December 2012, and 5 June 2013.
Statements Sandra Weyer dated 13 November 2012, and Carol Read dated 13 November 2012.
The Lead Assessor conducted a physical examination of Ms Richards and noted her observations which she had made on the previous occasion when she had examined Ms Richards in 2016. After extensive review of the various reports, she concluded that the “spine injury was soft tissue in nature and not due to spinal cord caused by fibrocartilaginous embolus or cauda equina injury, the assessment for spine (station and gait) is 0% WPI.” The Lead Assessor then considered impairment arising from injury to the lumbar spine. She concluded that Ms Richards did not have radiculopathy. On the basis of asymmetry of movement, the Lead Assessor assessed lumbar spine impairment at 7% WPI.
The non-lead assessor, Dr Garvey, examined Ms Richards on 1 March 2021. He diagnosed Ms Richards as having a neurogenic bladder and assessed her as suffering 41% WPI in respect of the bladder. He deducted one tenth as due to a pre-existing condition or abnormality, yielding a final assessment of 37% WPI.
Combining her own assessment of lumbar spine impairment with the latter impairment assessed by the non-Lead Assessor, Dr Garvey, the Lead Assessor issued a MAC certifying 41% WPI after application of the Combined Values Chart.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessments in the absence of the parties.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was ample material before the Panel to enable it to perform its function. Further examination of Ms Richards would be unlikely to yield any further relevant information.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessors for the original medical assessments and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeals 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 first appeal (M3-5713/15)

In summary, the first appellant submits that the parties had agreed that Ms Richards had suffered injury to the thoracic spine (station and gait) as well as the lumbar spine and the urinary system. The Lead Assessor, Dr Fitzsimons, had erred in finding “no injury in the nature of thoracic spine (station and gait) contrary to the conciliated agreement of the parties” and “contrary to the terms of the referral”.
The first appellant also submitted that the Lead Assessor had erred in offering a diagnosis of conversion disorder when that diagnosis was outside her specialty and had failed to confine her assessment of a station and gait disorder as a peripheral neurological impairment as required by AMA 5.
In reply, the Department submits that the assessment of impairment made by the Lead Assessor was open on the evidence. The MAC set out appropriate reasons why a finding of no impairment resulting from injury to the thoracic spine assessed by reference to station and gait was appropriate and necessary.

The second appeal (M4-5713/15).

The second appellant, the Department, submitted, in summary, that the MAC combining the assessments of the Lead Assessor and the non-Lead Assessor was based upon demonstrable error and/or the adoption of incorrect criteria insofar as it adopted the assessment of the non-Lead Assessor, Dr Garvey, with respect to assessment of the urinary system.
It was alleged that the non-Lead Assessor had fallen into error in failing to consider that there was no evidence to support impairment in respect of the urinary system as a result of the subject injury. The second appellant also submitted that there was no spinal cord injury as a result of the assault on Ms Richards.
In reply, Ms Richards submitted that it was agreed between the parties that Ms Richards had suffered injury to the urinary system. The non-Lead Assessor had appropriately assessed impairment arising from that injury upon the basis of his professional knowledge and no error or adoption of incorrect criteria was made out.

FINDINGS AND REASONS

The procedures on appeal are contained in section 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[1] 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.
[1] [2006] NSWCA 284.

The first appeal – M3-5713/15

Ms Richards’ submissions assert that the medical dispute had been referred to the assessors pursuant to section 321A of the 1998 Act, but the Lead Assessor had incorrectly assessed Ms Richards as if the referral had been made pursuant to section 321 of the 1998 Act:
”Given the conciliated agreement the Commission was asked, by consent, to exercise its discretion to make a s.321A referral to assess the conceded thoracic spine (station and gait) injury for impairment on a whole person impairment basis”[2] and “The assessment to be conducted by the medical assessor was to be an ‘Assessment of Whole Person Impairment,’ that is a limited assessment under section 321A, and not a broader assessment under section 321 of the 1998 Act.”[3]
[2] Submissions paragraph 4(f).
[3] Submissions paragraph 10(d).
The Panel did not immediately understand the reference to section 321A, as the Panel considered that this section did not confer a power of referral. Further submissions were sought from the parties with respect to the first appellant’s assertion. Those submissions made it clear that Ms Richards was intending to assert that the referral was one to which section 293 of the 1998 Act applied. Section 293, as in force at the time of referral, provided:
“293 MEDICAL ASSESSMENT
(1)    When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may (subject to the regulations under section 321A) (Referral of medical dispute concerning permanent impairment)) refer the medical dispute for medical assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.
(2)    Repealed
(3)     The Registrar may not refer for assessment--
(a) Repealed.
(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”
(The Panel notes that no regulations have been made under section 321A of the 1998 Act).
Ms Richards also asserted that the respective Medical Assessors had incorrectly identified that “the following matters have been referred for assessment (s 319 of the 1998 Act)”. The Panel does not accept that assertion. The reference to section 319 is a reference to the medical dispute(s) which are to be referred for assessment. In each case the Lead Assessor and the non-Lead Assessor correctly identified that the assessment required was in respect of injury on 10 September 2012 involving the lumbar spine and thoracic spine (station and gait), and the urinary system which are to be assessed by whole person impairment method.
Section 319 of the 1998 Act defines the “medical dispute” to be assessed, and reference to that section forms part of the “form approved by the President” mandated by section 325(2) of the 1998 Act. The reference to that section by the respective Medical Assessors does not indicate any error. The Panel accepts that the respective Medical Assessors were to assess the degree of permanent impairment of the worker as a result of an injury (section 319(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 (section 319(d)),whether impairment is permanent (section 319(f)) and whether the degree of permanent impairment of the injured worker is fully ascertainable (section 319(g)).

An important provision of section 319(c) is that the Medical Assessor is required to assess the degree of permanent impairment of the worker as a result of an injury. Ms Richards submitted:
“Dr Fitzsimons fell into or was led into error in that she believed, and more importantly certified, that what had been referred to her was a medical dispute encompassing all matters under section 319 including aetiology and injury, and that the terms of the referral were no more than an assumption that she could ignore.
The terms of the order of referral, and section 321A, required Dr Fitzsimons to confine herself to the referral ‘according to the following’. That is that injury had occurred on 10 September 2012 resulting in injury to the lumbar spine and thoracic spine (station and gait), and urinary system.”[4]
[4] Submissions paragraphs 24, 25.
The Panel accepts that the inclusion of the expression “station and gait” in the referral was intended to convey agreement between the parties that Ms Richards had suffered an injury to the central or peripheral nervous system[5] and that impairment resulting from that injury was to be assessed. The Panel does not accept that the Medical Assessors were bound to accept that impairment, which was noted upon examination, resulted from the injuries referred for assessment. The question of whether impairment results from a particular injury is, necessarily, a question of causation. In Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd[6] (Bindah), Emmett JA said (at [110]):
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).”
[5] Guidelines 5.1, page 31.
[6] [2014] NSWCA 264.
That view was approved by the Court of Appeal in Jaffarie v Quality Castings Pty Ltd[7] (Jaffarie) where White JA said (at [73]) in reference to Bindah:
“Emmett JA also held that the approved medical specialist and the Appeal Panel had jurisdiction to determine the medical dispute that encompassed whether permanent impairment was the result of an injury (as defined) or whether any proportion of it was due to any previous injury or pre-existing condition. On the construction of the consent order his Honour said:
‘[107] The language of Order 3 should be construed as doing no more than recording acceptance by the parties that the Employer was liable for compensation for permanent impairment, if an approved medical specialist appointed by the Registrar determined that any permanent impairment suffered by Mr Bindah was the result of the incident that occurred on 28 January 2009, when he sustained a direct blow to his right eye by a closing metal door, as described in the Application of 24 August 2011. Order 3 should not be construed as a determination that that incident caused the impairment that he now suffers.’
At [110], quoted at [70] above, his Honour noted that the language of causal connection fell squarely within the definition of ‘medical dispute’.
What was said by Emmett JA at [109], quoted above at [70], must be understood in the context of the issues before the court in Bindah. I do not understand his Honour to mean that anything which falls within the definition of ‘medical dispute’ in s 319 will necessarily be outside the jurisdiction of an arbitrator.
[7] [2018] NSWCA 88.
The first appellant noted the Lead Assessor’s reasons set out in the earlier MAC dated 17 August 26, submitting that she had failed to identify “the limited medical dispute between the parties” and “that the referral was limited to a section 321A referral”. The first appellant set out the findings recorded by the Lead Assessor upon examination in 2016, noting that the Lead Assessor at that time had reported:
“The nature of the referral makes it implicit that the assumption is that this disturbance of station and gait derives from the thoracic spine (although other sites of source are necessarily considered by her treating doctors). Within this range I would nominate a 40% WPI because she can still manage to do some things – such as getting into a bath. However, for reasons argued elsewhere in the report, I am not at present in a position to ascertain that this impairment is due to the accident/incident which I acknowledge occurred.”
The first appellant submitted that, in respect of the 2016 certificate, the Lead Assessor had failed to consider the findings of Dr Taylor, the AMS who had assessed impairment arising from injury to the urinary system. It was submitted that Dr Taylor’s reconsideration had not exercised his clinical judgement in that later MAC, but had followed the opinion of the Lead Assessor. Ms Richards submitted “That is that he failed to appreciate that the further matters raised by Dr Fitzsimons were not part of a medical dispute between the parties and they were not referred for medical assessment.”
The first appellant noted the findings of Dr Garvey, the non-Lead Assessor, in his MAC dated 26 October 2021. In that MAC Dr Garvey had diagnosed a neurogenic bladder and submitted that this was consistent with the terms of the referral.
The first appellant then submitted that the Lead Assessor “by reason of the errors identified herein above, continued to investigate and prognosticate on aetiology and injury.” The Lead Assessor, in the MAC dated 26 October 2021, had “certified” (numbering as submitted);
“e.     A further history of autonomic dysreflexia (a condition consequent upon spinal cord damage which can cause swings in blood pressure amongst other autonomically controlled modalities).
f.      Examination of the optic nerves did not take place due to COVID cautions,
g.     The right knee and ankle reflexes were present and normal.
h.     The left knee reflex was absent.
i.       The left ankle reflex appeared absent on first testing but on repeated testing and reinforcement was able to be elicited.
j.       The left calf measured 2 cm less than the right.
k.     Position sense was absent at the left foot/ankle.
I.      The diagnosis of fibrocartilaginous embolus was plausible but not accepted.
m.     A psychiatrist might diagnose a conversion disorder.
n.     Dr Vaux (October 2016) reported on the premise of a fibrocartilaginous embolus to the spinal cord with ‘sensory changes at T2’. ‘A urodynamics study demonstrated a compliant detrusor which had imperfect sensation. There was no rise in bladder pressure indicating no contraction of the bladder which means that the bladder is partly denervated. She had demonstrable stress incontinence due to the weakness of the outlet of the bladder. Putting this all together she has developed weakness of the sphincteric mechanism due to the denervation following the fibrocartilaginous embolisation and damage the spinal cord and the sacra/centres (sic – sacralcentres) for micturition.’”
The first appellant then submitted:
“At paragraph 8a (note this appears between paragraphs numbered 7 and 3) Dr Fitzsimons does not certify that the assessment was within her field of expertise. Dr Fitzsimons, in answer to the usual question, ‘Is the worker claiming for any body part outside your field of experience? If so, please indicate the body part,’ answers, ‘No (other than as otherwise referred (sic)).’"
The question and answer at 8a would have been a demonstration of further error by Dr Fitzsimons had aetiology and injury been in dispute and had the parties not agreed that injury to the lumbar and thoracic spine (station and gait) had been occasioned. As the Lead Assessor it would have been her obligation to coordinate non-Lead Assessors who were suitably qualified. The circumstances and terms of the referral and the limited nature of the medical dispute did not permit any basis for a neurologist medical assessor to speculate as to a psychiatric diagnosis. Had it been necessary a psychiatrist could have been also appointed as a non-Lead Assessor. It may have been that a psychiatrist would identify a flaw, from a psychiatric point of view, in Dr Fitzsimons' reasoning thus causing Dr Fitzsimons to reconsider her opinions otherwise. Of course this is speculation as to what might have been had different circumstances existed.”
The first appellant summarised her submissions as follows:
“a.     Ms Richards suffered an injury in the nature of an injury to her lumbar spine and thoracic spine (station and gait), and urinary disorder on 12 September 2012.
b.     The alleged injuries were pleaded in the ARD and disputed in the Reply.
c.     The dispute was conciliated at a Conciliation/Arbitration and the injuries: lumbar and thoracic spine (station and gait) and to the urinary system were conceded by the Respondent/insurer.
d.     The Commission in the exercise of its discretion made a referral under section 321A for the impairments of the conceded injury to be assessed.
e.     Neither Dr Taylor nor Dr Fitzsimons recorded in their reasons that they appreciated that the referral was limited to a section 321A assessment of injuries conceded.
f.     Dr Taylor and Dr Fitzsimons in their 2016 MACs respectively recorded that the WPI assessment should be 40% and 39%. These assessments combine to provide a whole person impairment assessment of 63%.
g.     No fair reading of Dr Fitzsimons's MAC's allows the reader to understand whether Dr Fitzsimons understood her task was not one of a general referral assessing each any and every matter which might be a medical dispute under section 319.
h.     No fair reading of Dr Fitzsimons's MAC's allows the reader to understand that Dr Fitzsimons was or considered herself restrained or that she had any appreciation of the fact that the referred injuries were the subject of orders made after Conciliation.
i.       No fair reading of Dr Fitzsimons's MAC's allows the reader to understand that Dr Fitzsimons understood that following a Conciliation, that even where there is a consent position reached between the parties, that the Commission itself still retained a discretion, and in this case the Commission exercise that discretion to refer a limited medical dispute. The medical dispute was limited by:
i.The terms of s.321A (being narrower than s.321) of the 1998 Act.
ii.Injury to thoracic spine (station and gait) was not in dispute.
iii.Injury to lumbar spine was not in dispute.
iv.Injury to the urinary system was not in dispute.
j.     No fair reading of Dr Fitzsimons's MAC's demonstrates that any regard was had for the terms of the referral and the words ‘according to the following.’
k.     No fair reading of Dr Fitzsimons's MAC's demonstrate that any regard was had for the finding by Dr Taylor that Ms Richards had a neurogenic bladder disorder caused by the injury.
l.     Dr Fitzsimons failed to consider, and it was beyond her expertise in any event, whether a conversion disorder could explain a neurogenic bladder disorder. At the definitional level, it seems improbable.
m.    The referred impairments were ultimately not assessed. The Registrar, in breach of Medical Dispute Guideline 4.4, failed to ensure before issuing the MAC that the MAC addressed the matters referred for assessment. (Original emphasis)”.
In further submissions the first appellant submitted:
“Dr Fitzsimons in her 2021 MAC:
i.made a diagnosis of no injury in the nature of thoracic spine (station and gait) contrary to the agreement of the parties;
ii.made diagnosis of no injury in the nature of thoracic spine (station and gait) contrary to the terms of the referral to her;
iii.speculated that the claimant may be suffering a conversion disorder when such was beyond her qualification as she was not a psychiatrist;
iv.failed to confine her assessment to AMA 5 which relevantly defines a station and gait disorder as peripheral neurological impairment.”

The Lead Assessor MAC dated 26 October 2021

The Lead Assessor examined Ms Richards on 16 February 2021. In the MAC she noted that
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·Date of injury: 10 September 2012
·Body parts/systems referred: lumbar spine and thoracic spine (station and gait), urinary system
·Method of assessment: Whole Person Impairment.”
The Lead Assessor recorded that she had called for further reports and information which had been supplied and which were listed in the MAC (as noted above). She noted the history that she had recorded on the previous occasion in 2016 when she had assessed Ms Richards and then recorded the history reported by Ms Richards since the previous examination.
The Lead Assessor noted the current treatment regime and recorded current symptoms. These included pain between the shoulder blades radiating down the centre of the back to the lumbar spine area, absence of sensation in the left leg and awareness of light sensation in the right leg. Ms Richards was able to move her right leg but had lost muscle mass particularly around the buttocks. She had developed contractures of the left ankle preventing dorsiflexion and had no bladder function. The Lead Assessor noted that Ms Richards was expecting to have a suprapubic catheter inserted because Ms Richards was experiencing “too many urinary tract infections”. Ms Richards’ bowel function was compromised. There were no episodes of visual loss and no hand clumsiness.
The Lead Assessor noted general health issues and activities of daily living. She recorded that Ms Richards was using a Nitrolingual spray for management of blood pressure, cephalexin for urinary tract infections, Palexia SR as required for pain and Baclofen for muscle spasm. Ms Richards used heat packs for pain control and had found hydrotherapy helpful. Ms Richards was making use of an adjustable electric wheelchair which she had had for the past two years. She had undergone a pain management program.
On physical examination the Lead Assessor noted that ocular and facial movements were normal. There were no objective neurological abnormalities in the upper limbs and biceps, supinator and triceps reflexes were normal and symmetrical. Power in the upper limbs was normal and no spasm or guarding was detected in the thoracic or lumbar regions.
The Lead Assessor noted that Ms Richards could not move her left leg at all. She reported “considerable preserved power in the right leg”. Tone in the upper and lower limbs was normal and there was no ankle clonus. Knee and ankle reflexes were present in the right leg. Left knee reflex was absent. Left ankle reflex was “unequivocally present” on repeated testing although appearing absent at first. The Lead Assessor noted that the right plantar reflex was flexible and the left mute.
The right calf circumference was measured as 2cm greater than the left but there was no measurable thigh muscle wasting. The Lead Assessor noted that position sense at the right ankle was present but absent at the great toe and also absent at the left foot/ankle. There was an absence of vibration sense in the legs and absence of light touch sensation in the left leg and up the torso to just below the breast. Temperature sensation was absent in a similar distribution and there was patchy loss of sensation on the right leg and up to a similar level.
The Lead Assessor noted that Ms Richards had not had any neurophysiological electrical studies since seeing Dr Hammond in July 2014. She noted the following reports of radiological investigation which she recorded as follows:
“CT brain scan 3 May 2013. History of loss of consciousness. No abnormality seen. CT scan lumbar spine 17/1/13. Minor degenerative changes. ‘No other features’
CT thoracolumbar spine 21 September 2012. Ongoing thoracolumbar back pain. Small L4/5 protrusion. No radiological cause for her symptoms identified.
Bone scan thoracic and lumbar spine 12 October 2012. No relevant abnormality reported. MRI thoracic spine 9 November 2012. No spinal abnormality relevant to paraplegia.
MRI scan cervical and lumbar spines 12 March 2013 C5/6 level. Diffuse broad based disc herniation associated with moderate canal stenosis with anterior cord abutment. Trace of CSF anterior and posterior to cord. Foraminal narrowing at this level with potential right nerve root abutment. Cord signal normal in cervical region. Diffuse L5/Sl disc herniation, slightly more on left with bilateral Sl nerve root abutment but not impingement.
MRI scan brain and whole spine. 9 September 2016. Royal Ryde Spinal Unit. The scan was undertaken with gadolinium contrast. There was no contrast enhancement. There was no gliosis. There was no thoracic spinal cord atrophy. ‘Other than a minor posterior disk bulge at C5/C6 with mild to moderate bilateral foraminal narrowing, more marked on the right, no significant cranial or spinal abnormality is seen on this study.’
MRI scan spine 1 December 2017. Dr Marshall. No cause for paraplegia identified.”
The Lead Assessor noted results of laboratory studies which she said were relevant to investigation of paraplegia or neuropathy as well as summarising the neurophysiology studies conducted by Dr Hammond with comments as follows:
“Dr Simon Hammond Neurologist. Neurophysiology studies. 27 March 2013. Somatosensory evoked responses. Recording over cerebral cortex. Upper limbs normal. Evoked response from right posterior tibial nerve normal. Evoked response from left posterior tibial nerve showed a well-formed wave form but with ‘mildly prolonged’ latency. Dr Hammond commented that this was consistent with a conduction delay in central sensory pathways and thus with a demyelinating lesion (as in multiple sclerosis) within these pathways.
Dr Simon Hammond Neurologist. Neurophysiology studies. 23 July 2014. SSERs (somatosensory evoked responses) from all 4 limbs. 23 July 2014. Normal. (my emphasis[8]).
‘The somatosensory evoked potentials from the posterior tibial nerves were within normal limits bilaterally - thus providing no electrical evidence of compromise of the afferent sensory volley within the peripheral or central pathways from stimulation of either lower limb on this occasion. In comparison with the previous study of 27/3/13, the minor abnormality in conduction in central sensory pathways is no longer evident’. (I note the numerical values of conduction in the earlier report and that right and left measurements are very close).”
[8] That is, the Lead Assessor.
The Lead Assessor then summarised the various reports which were in evidence that she considered relevant, commenting on, or noting by italics, the significance of the observations in those reports. With respect to the report of Professor James Middleton, Director of Statewide Spinal Outreach Service, dated 21 August 2018, the Lead Assessor noted:
“He [Professor Middleton] notes that there have been variations and differences in specialist opinions regarding diagnostic uncertainties and explanations of her presentations. He makes it very clear to Ms Richard's referring GP that his is not a medicolegal opinion, and he refers to a need to exclude certain conditions (eg polycystic ovaries and endocrine disorders).
He opines that her symptoms are a combination of psychiatric, iatrogenic and possibly endocrine factors. Notes that symptoms attributed to dysreflexia were actually not associated with recorded high blood pressure when in hospital. He does not mention spinal cord injury as a cause of her symptoms.
He notes the bladder and bowel manifestations but does not diagnose neuropathic bladder. He notes treatments for stress incontinence.
Regarding the asserted autonomic dysreflexia with hypertension, he comments:-
‘I think other causes of hypertension should be excluded, since I do not believe there is any physiological reason or cord damage to make her prone to ‘autonomic dysreflexia’ and it is unhelpful to continue to label episodes of hypertension as such.’
He makes presumably routine practice references to resources in relation to spinal cord injury.”

With respect to the report of Associate Professor Michael Fearnside dated 4 March 2014 the Lead Assessor recorded:
“History noted. No sensation or movement in left leg. Reasonable power in right leg. Requires assistance to stand. ‘Bowel function relatively normal with Movicol (a laxative)’. Says that she is now wheelchair bound, and requires assistance to stand. Notes radiological investigations (see also above).
Importantly, notes report of somatosensory studies performed by Dr Simon Hammond (neurologist, 2/4/13). Responses were normal from the upper limbs and from right posterior tibial nerve. However, (CNS recording from) stimulus from the left posterior tibial nerve were abnormal, and ‘Dr Hammond was satisfied that the findings were consistent with a conduction delay in the central sensory pathways and thus with a demyelinating lesion within those pathways’.
Professor Fearnside recorded an asymmetry of reflexes, with normal right knee reflex, and repeatedly absent left knee reflex (even with reinforcement). The right ankle reflex was decreased compared with the left. The right plantar reflex was flexor (normal), and the left equivocal. Dissociated sensory loss in right leg with relative preservation of light touch.
Vibration and position sense retained in right lower leg. Anaesthesia to all modalities in left leg, Impaired sensation on buttocks and saddle area.
Notes that discharge summary from Orange Base Hospital (6/8/13 -12/9/13) records increased left knee and ankle reflexes and spasticity treated with Baclofen (no further details re this). Self-catheterizing bladder.
Professor Fearnside cites Dr Blackwood (neurologist 26/2/12) Loss of power left lower limb as recorded. Reflexes increased in both lower limbs, with two beats of clonus bilaterally. Some inconsistent sensory impairments. Dr Blackwood reportedly opined that there were some signs and symptoms of spinal cord injury, but also some inconsistencies. She had considered FCE the most likely cause of a spinal cord injury in September 2012. Prof Fearnside opined that there had been a deterioration in her ability to stand/walk since she was seen by Dr Blackwood (my current underlining), and that such deterioration would not be expected with spinal cord injury sustained in September 2012. He opined that she had a mixture of organic and nonorganic signs, which made it difficult to determine the extent of her injury. Indicators of functionality included the progression of her condition and the total loss of sensation in the left leg. Nevertheless he considered her disability to be more severe than that inferred by Dr Casikar. Dr Fearnside noted that there is spinal cord abnormality on MRI when fibrocartilaginous embolus causes symptoms (see para 9.9 of report, and cited literature) Assesses 40% WPI in relation to station and gait.
Papers on fibrocartilaginous embolis by Tosi et al (1996) , Mateen et al (2011) noted.”
With respect to Associate Professor Fearnside’s subsequent reports dated 9 May 2014 and 22 April 2016 the Lead Assessor commented:
“Note - I have already cited his earlier report in my MAC of 2016 (see above) and I repeat the reference to this report here. However, his reports were not provided and appeared to have been ‘blacked out’ with the initial brief for my 2021 assessment:
Professor Fearnside noted that Dr Whelan's report of bladder symptoms coming on four months before she saw her would imply an onset earlier in 2013 - which would be unusual given the injury was in September 2012.
His report of March 2014 records a number of inconsistencies of evidence of functional overlay - for instance in the varying reported ‘sensory level’, the progressive nature of the condition and the complete anaesthesia of he left leg (see, for instance, para 9.5 of his report). The fact that she had previously been able to walk whereas she was now in a wheelchair was evidence of this progressive nature of her condition. (see also above more detailed commentary as cited in my 2016 MAC).
Assoc Professor Fearnside received four additional documents, including urology/urodynamic reports and commented in his report of 9 May 2014. He felt that detailed interpretation of the urodynamic studies was not within his field of expertise, and commented ‘I am not sure whether the urodynamic findings reported in paras 2 and 3 are consistent with a neurogenic bladder’. (my italics).
On 22 April 2016 he noted that there was no movement or sensation in her left leg- being unchanged since last seen. There were spasms or jerks of her right leg associated with headache and perspiration - raising the possibility of autonomic dysreflexia. The right knee jerk was present with re-enforcement and the left was absent.
However, whereas previously the left leg had been "spastic" (i.e. displayed increased tone) it was now flaccid.
The right ankle reflex was decreased and the left absent. The right plantar response was flexor (normal) and the left was ‘mute’.
Professor Fearnside has concluded that on balance of probabilities she displayed a mixture of organic and non-organic signs. He was unable from his reading of the literature to confirm Dr Blackwood's assertion that fibrocartilaginous embolus may be present without there being an abnormality on MRI.
He also found it difficult or confusing to localize the lesion, as she appeared to have both upper motor neurone (i.e. spinal cord) signs in the form of his finding of increased tone (at earlier examination) and lower motor neurone signs (eg peripheral nerve or nerve root) as manifest by decreased reflexes in the left leg. ‘Assuming the veracity of the physical signs as organic’ (my italics) he therefore localized the site of the lesion as being at the conus medullaris - i.e. at the tip of the spinal cord at around T12-Ll level. (I note that higher sensory level - at around Tl or T6 - with which she presented at times to various examiners - does not correlate with this).
He attributed 40% WPI to gait and did not consider a deduction. He considered that assessment/interpretation of the urological manifestations was outside his area of expertise.”
The Lead Assessor noted the papers which formed part of the Swift Practice records, the abstract of the paper Han et al, “Fibrocartilaginous embolus – an uncommon cause of spinal cord infarction and review of literature” and Omar et al, “Fibrocartilaginous embolus – an unusual cause of spinal cord infarction”, noting that she had considered these in conjunction with the papers cited by Associate Professor Fearnside.
Under the heading “Summary”, the Lead Assessor noted that, since she had last seen Ms Richards in 2016, she had been observed for some months at Royal Rehab and investigated with two further MRI scans and serum B12 and other haematological examinations which had been normal. She noted the records from the Royal Rehab “notably do not include review by a neurologist or neurosurgeon” which she said was consistent with a letter that had been supplied to her from Ms Richards’ solicitors stating that no report from a neurologist or neurosurgeon since 2014 had been located. The Lead Assessor noted that Ms Richards had not had further neurophysiological (evoked potential) studies of the kind undertaken in 2013 and 2014 by Dr Hammond.
The Lead Assessor noted that the MRI scans had consistently been normal which she felt disposed of the earlier suggestion that Ms Richards had suffered demyelination. She explained her reasons for that conclusion. The Lead Assessor noted that, following the subject injury, no MRI scan was carried out although Ms Richards saw her general practitioner on multiple occasions as well as many other doctors including the neurosurgeon Dr Stening who Ms Richards saw in October 2012. The Lead Assessor commented:
“It is virtually inconceivable that none of these practitioners would have recorded leg weakness or considered immediate MRI scanning if there had been overt leg weakness (as opposed to a painful limp,) in the context of reported spinal injury. In fact her clinical presentation then was dominated by back pain, which has continued, and is the most likely cause of her early limp. When she first saw her GP (Dr Dutta) she was able to walk on her toes and there was no sensory loss.”
(The Panel notes that the then treating neurologist, Dr Stening, did request an MRI scan of the thoracic spine, which was reported on 9 November 2012. That scan showed “no significant findings”.)
The Lead Assessor concluded:
“On the available evidence Ms Richards did not commence having symptoms which might be attributed to spinal cord pathology until several months after she was slapped. These symptoms then varied and progressed over a period of at least a year.
It is obvious that the time to onset in time to progress of her leg weakness and sensory loss and not at all compatible with these reported trajectories of symptoms in FCE [9] . Quite apart from this reporting, it is evident that a ‘spinal stroke’ due to embolus is an immediate and not a gradually progressive condition”
[9] fibrocartilaginous embolism.
The Lead Assessor discussed the literature dealing with the possible diagnosis of fibrocartilaginous embolism and concluded:
“It is the absence of subsequent chronic atrophy spinal cord evident in Ms Richard's many later MRI scans which is most difficult to explain, both on general principles and in the light of the available literature. As noted above, all the cases reported by Mateen et al exhibited relevant changes on spinal MRI imaging.
No articles from the literature have been presented in the brief to support a different conclusion concerning the significance of the ongoing normal MRI scanning.
If her dense sensory impairment and paralysis, which is complete in the left leg, is due to spinal cord lesion, then it is remarkable that none of her MRI scans show any evidence of spinal cord atrophy, which might be asymmetrical, or of signal heterogeneity within that general area of the cord.
Neither of the two MRI spine scans she has had since I last saw her have shown irregular spinal cord abnormality- whether atrophy or signal change. Nor did prior MRI scans in 2012 and 2013.” (original emphasis).
The Lead Assessor then considered the evidence of Dr Hammond’s evoked potential studies which she felt “showed a minor abnormality on stimulation of the left dorsal tibial nerve, which suggested a possibility of central (cord) demyelination”. The Lead Assessor noted the normal sensory evoked potentials on repeat study in 2014 which she said were difficult to reconcile with the profound sensory impairment with which Ms Richards at that time presented. She concluded “The presence of a completely normal evoked potential is very strong evidence of a non-organic cause (such as a ‘conversion’ disorder) being relevant.” (original emphasis).
The Lead Assessor discussed the relevant research papers and noted the absence of any neurophysiological evoked potential study since 2014. She commented “It is remarkable that since 2015 reliance has been placed on the first, mildly abnormal, evoked potential study to ‘confirm’ a diagnosis of FCE, without any apparent cognizance of the second, normal, 2014 study”. She noted the statements of Ms Richards and others that were in evidence.
The Lead Assessor expressed the view that “the diagnosis of fibrocartilaginous cartilage embolus following the assault is essentially one of exclusion.” She said that while this had been a plausible explanation by Dr Blackwood, “subsequent investigations (MRI spine and repeat neurophysiology) did not provide any supportive evidence for this diagnosis.” She observed:
“…it is very clear from Dr Spencer’s serial correspondence and especially that of August 2015, when contrasted with that of 2013, that ongoing observations had led him to progressively doubt the diagnosis of an organic neurological disorder secondary to a spinal cord fibrocartilaginous embolus such that he finally concluded that she had a ‘conversion disorder’ – which is a psychologically-based disorder”.
The Lead Assessor provided further reasons why she felt that the diagnosis of fibrocartilaginous cartilage embolus was not applicable. The Lead Assessor recognised that Ms Richards had identified abnormalities on urodynamic studies which had been interpreted as neuropathic and which had been attributed to spinal cord injury. She stated that, like Associate Professor Fearnside, she did not feel competent to comment on the detailed interpretation of the urodynamic studies. She noted alternative causes due to unrelated general health conditions, discussing the effects of diabetes mellitus.[10]
[10] MAC page 24
The Lead Assessor drew attention to the course of treatment following the subject injury. She said:
“There are five reasons not to accept the present profound paraplegic presentation as being due to a fibrocartilaginous embolus consequent upon the slap on the back in September 2012:-
1.    Explicit neurological symptoms did not develop until about three months later (see correspondence from Dr Spencer (August 2015) and other GP records from Dr Dutta, as well as Dubbo Hospital inpatient records and the reports of Dr Stenning). Indeed, her own initial ‘Statement’ (13 November 2012) makes no reference to paraplegia.
2.    When symptoms did develop they did not reach their maximum within hours to days, as is the case for a spinal cord infarction due to embolus, and as is well documented in the literature on fibrocartilaginous embolus. Rather her paraplegic manifestations developed progressively over months to a year.
3.    There have been no spinal cord abnormalities on multiple MRI scans over the years since the event.
4.    The first spinal sensory evoked potential study (2013) showed only minor abnormalities and there was no concomitant peripheral nerve conduction study. The second evoked potential study (2014) was entirely normal.
5.    Physical signs have varied very significantly and inconsistently over the years, as many observers have noted. Observed sensory levels have varied between Tl (in Ryde) to T6 (observations of Prof Siddall) to lower levels.”[11]
[11] MAC page 28, 29.=
On the basis of these observations the Lead Assessor concluded that “the evidence for physical train of causation from accident to her current state is highly implausible.” She concluded: “It is likely that she sustained a spinal soft tissue injury – manifested initially by pain and bruising. I accept that this could have caused limping associated with asymmetry of movement.” (original emphasis).
In respect of assessment of the thoracic spine (station and gait) the Lead Assessor assessed Ms Richards as having 0% WPI as a result of the subject injury. She explained:
“I am required to assess station and gait, described in the context of the referral as ‘thoracic and lumbar spine (station and gait)’, with the clear implication that the gait disturbance being assessed is that consequent upon a spine injury. I have determined that she had a soft tissue injury of her spine and not a spinal cord (corticospinal tract) injury or cauda equina injury.
The natural history of such soft tissue injury is largely for resolution, but that it is now impossible to determine the actual trajectory of resolution (given the later supervening factors separately leading to disordered gait).
However, only an injury involving corticospinal tracts will give rise to an assessment above 0% WPI in relation to station and gait in terms of Table 15-6c, ch 15, AMAS - see p 381 AMAS. Class 1(1-9% WPI) assessment for station and gait applies where there is difficulty in walking distances and would be considered if her condition in the early months after the accident had been due to spinal cord injury. However as I have determined that her spine injury was soft tissue in nature and not due to spinal cord caused by fibrocartilaginous embolus or cauda equina injury the assessment for spine (station and gait) is 0% WPI.”[12]
[12] MAC, pages 31, 32.
The Lead Assessor correctly noted that the referral of injury to the “thoracic spine (station and gait) required assessment in accordance with section 15.7 and Table 15-6c in AMA 5 “Criteria for Rating Impairment Due to Station and Gait Disorders”. The Guidelines provide:
“If a person has spinal cord or cauda equina damage, including bowel, bladder and/or sexual dysfunction, he or she is assessed according to the method described in AMA 5 section 15.7 in AMA 5 Table 15.6 (a) – (g) (pp 395-98).”[13]
[13] Guidelines, page 24, paragraph 4.6..
In her further submissions, the first appellant submitted that the Lead Assessor:
“I. made a diagnosis of no injury in the nature of thoracic spine (station and gait) contrary to the agreement of the parties;
II.made diagnosis of no injury in the nature of thoracic spine (station and gait) contrary to the terms of the referral to her;
III.speculated that the claimant may be suffering a conversion disorder when such was beyond her qualification as she was not a psychiatrist;
IV.failed to confine her assessment to AMA 5 which relevantly defines a station and gait disorder as peripheral neurological impairment.”
The Panel accepts that the terms of the referral required the Lead Assessor to accept that injury had occurred to the thoracic spine, affecting station and gait. The terms of this referral imply that the parties had agreed that there had been a neurological injury which affected station and gait. To the extent that the Lead Assessor determined that there had been no neurological injury then that determination was contrary to the referral and constitutes error.
However, the Panel accepts the reasoning of the Lead Assessor with respect to the absence of pathology resulting from the subject injury giving rise to impairment of station and gait. the Panel is satisfied that there was no evidence of spinal cord or cauda equina pathology at the time of the Lead Assessor’s examination and it must be assumed that the symptoms exhibited by Ms Richards with respect to station and gait do not have a physiological basis and could not be said to result from the subject injury.
The Lead Assessor was satisfied that the injury gave rise to problems involving the left leg which were immediately apparent when Ms Richards drove herself to hospital following the subject injury. She said, “It is likely that she sustained a spinal soft tissue injury – manifested initially by pain and bruising. I accept this could have caused limping associated with asymmetry of movement.”[14]
[14] MAC, page 30.
The Lead Assessor was not obliged to accept that the effects of the injury referred were continuing at the time of examination. The task of the Lead Assessor was to assess the extent of impairment resulting from injury to the thoracic spine (station and gait). In the absence of relevant pathology, it could not be said that the impairment to Ms Richards’ station and gait resulted from injury to the thoracic spine or to the central nervous system. The decisions in Bindah and Jaffarie establish that it is appropriate for a Medical Assessor to consider causation when performing an assessment of the task pursuant to section 319(c), “the degree of permanent impairment of the worker as a result of an injury” (emphasis added).
Although it is accepted that Ms Richards suffered an injury to her thoracic spine affecting station and gait, for the reasons set out by the Lead Assessor, it is apparent that, at the time of examination, the signs and symptoms could not be attributed to any pathology arising from injury to the thoracic spine and the associated nervous system.
The Panel accepts that it was open and appropriate for the Lead Assessor to find that the signs and symptoms noted upon examination did not result from the subject injury because, if that were the case, there would be evidence by way of radiological imaging, neurophysiological studies and testing of reflexes. That evidence was not present at the time of examination. The history of the onset of the symptoms over a lengthy period was inconsistent with those symptoms having arisen as a result of the injury. The evoked potential studies, which at first suggested the presence of pathology, were found to be normal upon further testing in 2014.

The Panel is satisfied that the Lead Assessor understood that her task was to assess impairment arising from injury to the thoracic spine, to be assessed by reference to injury affecting station and gait. The Lead Assessor performed her assessment accordingly. The assessment was made in accordance with Chapter 4 of the Guidelines and Chapter 15 of AMA 5 and no use of incorrect criteria is made out.
The first appellant submitted that it was not open to the Lead Assessor to diagnose a non-organic cause such as a conversion disorder. The Panel does not accept that submission. A neurologist is appropriately trained to recognise when psychological/psychiatric or other causes may be giving rise to symptoms. In this respect, the Lead Assessor was supported by the opinion of Dr Vickery who diagnosed a somataform disorder[15]. The Lead Assessor did not diagnose a psychiatric condition but simply suggested that this was a likely explanation for Ms Richards’ presentation.
[15] MAC, page 27, Report Dr Vickery 18 December 2012, page 10 (Page 25 of Reply)
Although the Lead Assessor may have fallen into error to the extent that she has not accepted that injury to thoracic spine affecting station and gait originally occurred, it does not appear that injury of this nature has continued to give rise to pathology affecting station and gait. The Panel is satisfied that the evidence establishes no physiological basis for impairment arising from that injury and the Lead Assessor’s assessment of 0% WPI is appropriate in respect of “thoracic spine (station and gait)”.

The second appeal – M4-5713/15

The second appellant submitted that the non-Lead Assessor, in effect, fell into error by failing to consider whether the impairment which he assessed in respect of the bladder resulted from the subject injury. The second appellant submitted:
“The lack of significant pathology in the lumbar spine (as well as the lack of any rateable pathology at all in the thoracic spine or in the ‘station and gait’ body system) mean that there is no causal link with the bladder injury and the index injury in circumstances where no significant neurological pathology was caused in the strike to the back. The matters identified by Dr Fitzsimons (who is a neurologist) do not permit the findings made by Dr Garvey to stand.”
The second appellant submitted that, if this ground were made out, then the MAC combining the assessments of the Lead Assessor and the non-Lead Assessor would need to be revoked.

The Non-Lead Assessor MAC dated 26 October 2021

The MAC of the non-Lead Assessor was issued by general surgeon, Dr John Garvey. Dr Garvey noted the referral pursuant to section 319 of the 1998 Act as follows
“Date of injury:  September 10, 2012
Body parts/systems referred:     Urinary system (Bladder)
Method of assessment:              Whole person impairment”
Dr Garvey examined Ms Richards by video conference on 1 March 2021. He noted that Ms Richards reported:
“Worsening difficulties with urination and defecation due to lack of sensation and urinary incontinence and difficulty urinating. Bladder test on February 11, 2014 show that she had no bladder function at all and would have to self catheterise and possibly have a suprapubic catheter permanently.”
Dr Garvey recorded the history of injury by way of a blow to the back and the course of treatment and symptoms which followed. He recorded that, following her attendance at Dubbo Hospital,
“The pain became worse and more intense, but she had to keep going and push herself and after being treated with medication, she was referred by her GP to a Neurosurgeon. She had to wait for 3 months to see the Specialist Neurosurgeon, but the Specialist Neurosurgeon did not want to get involved and did not examine her. She was referred to another Neurosurgeon who did some electronic testing and nerve conduction studies and she was diagnosed with a spinal cord injury by Dr Emma Blackwood and treated by Spinal Outreach at Orange Base Hospital for rehabilitation. But they did not have much experience with spinal cord injuries and the equipment supplied was ill fitting and she had to learn how to dress and wash herself. At this time, she noted that her bladder function was deteriorating to ‘little drizzles’ and she could not pass urine and it took so long that she would fall asleep on the toilet.”
Dr Garvey noted the reports of the renal ultrasound performed 19 June 2013 and the urodynamics report dated 6 September 2016. Dr Garvey diagnosed a “neurogenic bladder”.
Dr Garvey also diagnosed a pre-existing condition which he described as “diabetic genitourinary autonomic neuropathy contributing to her neurogenic bladder.”
Dr Garvey assessed Ms Richards as having 41% WPI as a result of the subject injury. He explained “This worker has to self catheterise up to 6 times per day and merits a low-level class 3 impairment of 41% under the Guidelines for no voluntary control of micturition and areflexic bladder on urodynamics studies”. From that assessment he deducted one tenth, explaining “1/10 is deducted for diabetes associated bladder dysfunction characterised by decreased bladder sensation, increased bladder capacity and impaired detrusor contractility.”
Dr Garvey noted the opinion of urologists who had examined Ms Richards, Dr Peter Marr in his reports dated 25 June 2014 and 16 February 2016, Dr Edward Korbel in his report dated 13 October 2015 and Dr Kenneth Vaux in his report dated 11 October 2016. He also noted the report of the surgeon Dr Patrick reported on 6 January 2020. He noted that each of those practitioners diagnosed significant problems with the bladder.
The second appellant noted the findings of Dr Fitzsimons, the Lead Assessor, summarising them:
“1.     Explicit neurological symptoms did not develop until about three months later”. In this regard, Dr Fitzsimons had regard to various treating evidence, including correspondence from Dr Spencer from August 2015 and from GP notes from Dr Dutta, among others. Dr Fitzsimons also took into account the respondent’s own account per her initial statement dated 13 November 2012 which did not refer to paraplegia.
2.     The symptoms, when they did manifest, did not reach their maximum within hours or days which is what would be expected if the symptoms were the result of the assault.
3.     Multiple MRIs have been conducted over the years which reveal no spinal cord abnormalities. One must consider here what Dr Garvey made of the spinal cord injury question which he appears to have accepted (for example in point 5 he refers to present symptoms including ‘spinal cord pain’ - but there was no spinal cord injury as a result of the assault as is made clear from the absence of such injury despite radiological investigations being carried out).
4.     Spinal sensory studies in 2013 and 2014 indicated, initially minor abnormalities and then a completely normal result. The appellant submits this is a remarkable objective diagnostic background in a case where a worker presents as paraplegic.
5.     Finally, ‘[p]hysical signs have varied significantly and inconsistently over the years’.”
In reply, Ms Richards repeated the submissions made in support of the first appeal, submitting that the assessment was supported by the agreement of the parties that there had been injury to the urinary system as a result of the subject injury and that Dr Fitzsimons had erred when she had diagnosed no neurological injury.
The Panel does not accept that Dr Garvey failed to appreciate that Ms Richards had no objective evidence of neurological pathology likely to affect the urinary system. The non-Lead Assessor specifically recorded:
“This Worker's history and urodynamic studies are consistent with the presentation of a neuropathic bladder, yet the file lacks radiological evidence of spinal cord injury or bilateral nerve root entrapment by either CT scan of September 21, 2012 (pages 181-182) or MRI scan of March 12, 2013 (pages 194-195) and September 9, 2016 (pages 301-302),) and it is for this reason that the Worker has been assessed under the urinary and reproductive systems and not the spine.”[16] (emphasis added).
[16] Non-Lead Assessor MAC, Page 3.
That observation establishes that Dr Garvey accepted the diagnosis of “neurogenic bladder”, but considered that it arose from a cause other than neurological injury. The Panel accepts that a neurogenic bladder can have other causes such as repeated infection.
The second appellant submitted that:
“Judging the diagnosis relevant to the urinary system to be neuropathic bladder was demonstrably erroneous where there was no neurological problem upon which to attribute the bladder condition to any neurological source arising from what occurred in the course of employment in 2012.”
That submission relies upon an assumption that the diagnosis of “neurogenic bladder” can only be caused by neurological injury. As noted above, there can be other causes for this condition.
The parties have agreed that there has been injury to the urinary system or, alternatively, the injury to the spine has resulted in the onset of a pathological condition in the urinary system. The Non-Lead Assessor has appropriately assessed Ms Richards as having 41% impairment with respect to the urinary system. However, it does not appear from the MAC of the Non-Lead Assessor that he considered whether that impairment arose from the subject injury.
To that extent, the non-Lead Assessor has failed to give reasons for his assessment and demonstrable error is made out in this respect. It is therefore necessary for the Panel to consider the whole of the evidence to assess the extent of impairment resulting from injury to the bladder.
The testing reported by the urologists, Dr Manuel Yuhico, Dr Claire Whelan, Dr Kenneth Vaux and Dr Edward Korbel establishes that Ms Richards is appropriately diagnosed as having a neurogenic bladder. For the reasons explained by Dr Fitzsimons, that condition arises from causes other than spinal cord or cauda equina damage.
Ms Richards in her undated and unsigned statement refers to the onset of bladder problems following the subject injury. She stated that she did not mention this to medical practitioners initially as she was more concerned with her back symptoms. The general practice records in evidence record consultations from 6 January 2010. There is no indication of any problem with the urinary system up to the date of injury. An entry on 10 November 2010 records “nil urinary or bowel problems”.
The history recorded by Dr Whelan in her report of 25 June 2013 is:
“..from a bladder point of view, she denies any previous bladder dysfunction, no stress or urge incontinence prior to a back injury in September 2012. Thereafter the exact evolution of the bladder symptoms is somewhat unclear but it would appear are mainly over the last four months that she has noted urinary incontinence.”
The neurologist, Dr Blackwood, in her report dated 26 February 2013 recorded “Linda also has urinary symptoms. She does not have a sensation of needing to urinate until her bladder is very full. She also cannot feel when it is emptying. She tells me she has had several urinary tract infections.”
In the light of the agreement between the parties that there has been damage to the bladder resulting from the injury, it is likely that the impairments that Ms Richards was assessed as suffering at the time of the examination by the non-Lead Assessor result from that injury, most probably by way of repeated infections which followed and which are a problem which can be associated with self-catheterisation which Ms Richards performs about six times daily.
In the circumstances, on the balance of probabilities, the impairment of the bladder assessed by Dr Garvey can be said to result from the effects of the subject injury. The testing performed in relation to the bladder establish that physical harm has been caused and that physical harm appears to be consequential upon the effects of the subject injury.
The AMS, Dr Stuart Taylor, in his MAC dated 17 August 2016, assessed Ms Richards as suffering 39% WPI, assessing her pursuant to paragraph 4.6 of the Guidelines and Table 15.6 (d) of AMA 5. Paragraph 4.6 of the Guidelines applies “if a person has spinal cord or cauda equina damage, including bowel, bladder and/or sexual dysfunction, he or she is assessed according to the method described in AMA 5, Section 15.7 and AMA 5 Table 15.6 (a) – (g) (pp 395 – 98).”
The Panel is satisfied that there is no continuing spinal cord or cauda equina damage and the causes of the neurogenic bladder condition are consequential upon a perception of injury to the thoracic spine leading to bladder dysfunction which in turn has led to permanent damage, most probably by way of infection. As noted by Dr Garvey, in the absence of spinal cord or cauda equina damage, Ms Richards is to be assessed in accordance with Table 7.2 pursuant to paragraph 7.5 of the Guidelines.
The statement of Ms Richards and the history provided by her to the AMS, Dr Stuart Taylor, Dr Garvey and Dr Fitzsimons together with the reported results of testing and observations by the urologists, Dr Peter Maher, Dr Edward Korbel and Dr Kenneth Vaux, establish that Ms Richards meets the criteria to be classified as Class 3 with respect to bladder disease in accordance with Table 7.2 in the Guidelines, replacing AMA 5, Table 7-3. Those criteria are “abnormal (i.e. under or over) reflex activity (e.g. intermittent urine dribbling, loss of control, urinary urgency and urge incontinence once or more each day) and/or no voluntary control of micturition, reflex or areflexic bladder on urodynamics” and warrants assessment of 41% WPI.
Dr Garvey applied a deduction of one tenth, stating “1/10 is deducted for diabetes associated bladder dysfunction characterised by decreased bladder sensation, increased bladder capacity and impaired detrusor contractility.” Neither party has questioned, or made submissions in respect of, that assessment. The Panel accordingly accepts that a deduction of one tenth is appropriate having regard to the established pre-injury history of diabetes. There is 37% WPI resulting from injury.
Neither party has questioned or made submissions in respect of the assessment of impairment in the lumbar spine and the Panel accepts that an assessment of 7% WPI is appropriate. There is no evidence of any basis for a deduction pursuant to section 323 of the 1998 Act in respect of that body part.
Although error has been established with respect to the issue of whether the Non-Lead Assessor has considered causation, the Panel considers that his conclusion was correct as to the extent of impairment resulting from injury.
Ms Richards is accordingly assessed as suffering 0% WPI in respect of thoracic spine (station and gait), 7% WPI in respect of the lumbar spine and 37% WPI in respect of the urinary system (bladder). Applying the Combined Values Chart[17] yields a total assessment of 41% WPI.
[17] AMA 5, page 604.
That assessment accords with the assessment recorded in the MAC issued by the Lead Assessor. For these reasons, the Appeal Panel has determined that the MAC issued on 26 October 2021 by the Lead Assessor should be confirmed.

[2022] NSWPICMP 250

14 June 2022 (Amended 30 June 2022)