State of New South Wales (NSW Health Pathology) v Cupac

[2025] NSWPICMP 114

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (NSW Health Pathology) v Cupac [2025] NSWPICMP 114
APPELLANT:	NSW Health Pathology
RESPONDENT:	Jasna Cupac
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	24 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; injury to lumbar spine and cervical spine; employer appealed; complaint on appeal concerned loading for activities of daily living (ADLs) and the extent of the deduction under section 323; Held – Appeal panel did not find error; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. NSW Health Pathology (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Home Holmes, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 October 2024.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.

4. 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.

5. 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).

   PRELIMINARY REVIEW

6. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

7. The appellant did not request that the worker be re-examined by a Medical Assessor who was also a member of the Appeal Panel.

8. As a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

3. The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):        

•	Date of injury:	2 August 2022
•	Body parts / systems referred:	Cervical spine, Lumbar spine
•	Method of assessment:	Whole Person Impairment”

1. The Medical Assessor issued a MAC as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Cervical spine	2 August 2022	Chapter 4, section 4.33-4.35	Chapter 15, Table 15-5, page 392	7	1/10	6
2. Lumbar spine	2 August 2022	Chapter 4,	Chapter 15, Table 15-3, page 384	5	1/10	5
Total % WPI (the Combined Table values of all sub-totals)					11

1. The  employer appealed.

2. The complaint on appeal does not concern the assessments of the diagnostic related estimate (DRE) categories for the lumbar and cervical spines but concerns the loading of 2% for activities of daily living (ADLs) which were added to the cervical spine and the extent of the s 323 deduction at one-tenth.

3. In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable errors in assessing 2% for ADLs and in limiting the extent of the deduction under s 323 to one-tenth for both the cervical and lumbar spine.

4. In summary, the respondent worker Jasna Cupac submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed for reasons which included the that the examination and reasoning was adequate and it is clear on the face of the examination findings that the criteria for radiculopathy were not satisfied.

5. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.

6. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with a adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applies.

7. The Medical Assessor recorded the following history including in relation to persistent symptomatology as follows:

   “•      Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   Ms Cupac confirms that on 2 August 2022, whilst working as a phlebotomist, she walked into a 4-bed hospital room. The room was dark, as it was early morning. As she walked towards a light switch, she slipped on a substance, later identified as a creamy substance on the floor. She recalls that she fell downward, landing on her buttocks, jarring her neck and back. She recalls that hospital staff helped her up.

   She reported the incident to her manager and later attended her general practitioner, Dr Todorovic. She was sent for imaging. She underwent physical therapy over a period of 12 months, with mild benefit.

   She recalls persisting neck and back pain.

   She attended Dr Matthew Giblin, orthopaedic surgeon, who discussed surgical management, but that did not proceed.

   She has since managed her symptoms with analgesia and anti-inflammatory medication. She currently takes Celebrex or Maloxicam, alternately she reports the use of Efexor.

   She has received psychological treatment.

   She has been provided with home exercise. She tries to walk 20-40 minutes a few days per week.

   ·        Present treatment:

   Ms Cupac states that she experiences frequent neck pain, present most of the time, of average intensity 6-7/10 on a Visual Analogue Scale (VAS). The pain is worse on the left side. There is no distal radiation. There are no complaints of upper limb paraesthesia or numbness.

   She describes an associated occipito-frontal headache, occurring frequently.

   She describes more restricted neck motion to the left side.

   She reports constant low back pain, present every day, of average intensity between 6/10 on a good day to 7/10 (VAS) on a bad day. The pain is worse on the left. There is exacerbation of back pain with coughing and sneezing.

   She describes radiation of pain to the back of the left thigh, as far as the knee. There is no complaints of pain distal for the knees. There are no complaints of lower limb paraesthesia or numbness. There is intermittent mid-back pain in the left low thoracic region.

   There is no bowel dysfunction. She describes urgency of micturition, with occasional incontinence.

   Ms Cupac describes a sitting tolerance of 30 minutes, a driving tolerance of 30 minutes and a walking tolerance of 30 minutes. She avoids deep forward bending at the waist. Her crouching and kneeling is adequate. She is able to perform stairs slowly, with normal cadence.

   She describes a poor sleep pattern. She estimates a lifting capacity of 3-4 kilograms.

   Social history

   Ms Cupac is separated but living under the same roof as her husband. She has non-dependent children, aged 28 and 33 years. She smokes 2-4 cigarettes daily.

   She does engage in her share of light domestic chores, such as food preparation, cooking, loading the dishwasher and bench-height cleaning. She places clothes in the washing machine. Her husband hangs the washing and performs the heavier chores.

   She has not resumed previous hobbies of dancing and socialising.

   Rehabilitation history

   She has not returned to work since the accident.

   ·        Details of any previous or subsequent accidents, injuries or condition:

   Ms Cupac confirms a past history of workplace injury in which she slipped in a kitchen in 2010, suffering neck and back pain, and complaints of right shoulder pain. She required a long period of treatment. She recalls the symptoms settled over a long period of perhaps 4 years. She was off work during that period.

   She recalls she later undertook training to become a phlebotomist. She was working as a phlebotomist (blood collector) at the time of the subject accident.”

8. The Medical Assessor made the following observations in relation to special investigations:

   “MRI cervical spine, dated 8 August 2022. Mild facet arthropathy at T2/3 and C3/4. At C4/5 marked facet and uncovertebral arthropathy with moderate to severe right foraminal stenosis. Mild left foraminal stenosis but no significant central canal narrowing. At C5/6 mild facet and uncovertebral arthropathy. At C6/7 mild uncovertebral arthropathy. At C7/T1 mild facet arthropathy. Thoracic alignment is normal. Vertical body haemangioma are noted at T4 and T7. There is also a small haemangioma in the right transverse process at T3.

   MRI lumbar spine, dated 8 August 2022. Lumbar and sacral alignment is normal. Vertical body and disc heights are preserved. Mild facet arthropathy at L1/2, L2/3 and L3/4. Slight disc bulge at L2/3 and L3/4. Minimal facet arthropathy at L5/S1.

   Pre-Accident MRI scans of cervical and lumbar spine, 30 April 2010. At C5/6 minimal posterior bulge of the disc annulus. At C6/7 minimal posterior annular disc bulge. Lumbar spine, at T12/L1 a small right posterolateral disc protrusion.

   Whole body Bone scan, dated 3 May 2023. On the SPECT CT images there is intense increased tracer uptake at C4/5, in keeping with severe uncovertebral and discovertebral arthritis. There is further moderate discovertebral and uncovertebral arthritis at C6/7.

   In the thoracic spine, diffuse mild to moderate changes of discovertebral arthritis with mild increased tracer uptake at T4, T7 and T9.

   In the lumbosacral spine there are further minor changes of discovertebral arthritis. There is mildly increased tracer uptake in the left L3/4 facet joint, in keeping with minor facet arthrosis.”

9. His examination findings were as follows:

   “Ms Cupac is a 55 year old, standing 160 centimetres, weighing 65 kilograms.

   Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. Cervical flexion is performed to full range, extension is performed to 3/4 normal range, right rotation is performed to 4/5 normal range. Left rotation is performed to
   3/5 normal range, right lateral flexion is performed to 1/2 normal range, and left lateral flexion is performed to 1/4 normal range.

   Neurological examination of the upper extremities reveals normal upper limb power when tested with reinforcement. There was normal sensibility throughout the upper extremities.  The deep tendon reflexes are symmetrically preserved. There is no muscle wasting.

   Examination of the lumbosacral spine reveals normal spinal curvature. There is no muscle spasm.

   Active spinal flexion is performed cautiously to 1/2 normal range, extension is performed to 1/4 normal range, right lateral flexion is performed to 1/4 normal range, left lateral flexion is performed to 1/4 normal range, right and left rotation are both
   1/4 normal range. There is no muscle guarding.

   Straight leg raise is performed to 50° bilaterally, restricted by tight hamstrings. Lasegue’s sign is bilaterally negative.

   Neurological examination of the lower extremities reveals normal sensibility throughout the lower extremities in all dermatomes. There is normal myotomal power. The deep tendon reflexes are symmetrically preserved. There is no measurable wasting. The calves are 35 centimetres in circumference on each side.”

10. The Medical Assessor summarised the injury and diagnosis as follows:

    “Diagnosis and causation:

    Ms Cupac was involved in a workplace fall, suffering a jarring injury of the back, aggravating underlying degenerative changes and rendering these symptomatic.

    There had been a prior workplace injury in 2010, with a long recovery period, after which she recalls she made a full symptomatic recovery eventually.

    In relation to the cervical spine, Ms Cupac suffered a jarring injury. She suffers from symptomatic cervical spondylosis, aggravated by the workplace fall.”

11. There is no complaint on appeal about the assessment of the lumbar spine and cervical spine at DRE II. There is a complaint about the allowance of 2% WPI for the cervical spine which the Medical Assessor explained as follows:

    “There is an additional impairment of capacity for activities of daily living, in accordance with Section 4.33-4.35 of the Workers Compensation Guidelines Sections 4.33 to 4.35.

    An additional 2% WPI rating arises from this.

    The Claimant cannot perform heavy domestic chores recreational activities, however she is independent for activities of personal care.”

12. There is complaint on appeal about the extent of the s 323 deduction which the Medical Assessor explained as follows in respect of the cervical spine.

13. I have considered a deduction for the pre-existing condition as follows:

    “In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. The deduction is 1/10^th of the assessed impairment, unless that is at odds with the available evidence.

    For the injury being assessI have determined a 1/10 deduction, for the pre-existing degenerative change and noting the severity of the changes and the fact that the underlying degenerative changes are contributing to the permanent impairment rating. A 1/10^th deduction is not at odds with the avbailable evidence.”

14. The Medical Assessor explained the deduction in respect of the lumbar spine as follows:

    “I have again determined a 1/10 deduction, for the underlying and pre-existing degenerative changes that were previously symptomatic.”

15. The Medical Assessor explained where his opinion differed from other medical opinion as follows:

    “The Report of Dr Mendelsohn, dated 4 December 2023, sets out previous injuries to the neck and lower back in 2010, with incapacity for 4 years and further problems in the right shoulder. She then commenced studies to become a blood collector, and worked independently part time, progressing to a full time position for 6 years before the incident. She denied neck or back pain during the time working as a blood collector.

    At the accident she suffered neck and back pain, was off work for 3 months and then carrying out desk-based work for 3 months, before being dismissed as she was unable to return to her normal duties.

    He assessed cervical spine at DRE Category 2 and lumbar spine with evidence of radiculopathy at DRE Category 3. He assessed 20% deduction for pre-existing condition.

    Whilst I note the findings of Dr Mendelsohn, the clinical findings for lumbar radiculopathy were not found at the current assessment. None of the criteria were met for radiculopathy, in accordance with Section 4.27 of the WorkCover Guidelines.

    In the report of A/Professor Paul Miniter, dated 20 March 2024, he diagnosed an unusual behaviour pattern, with incidental findings on MRI scans.

    He assessed DRE Category 1 impairment for the cervical spine and the lumbar spine.

    Whilst I note that Dr Miniter appears to have determined that Ms Cupac simply suffers from behavioural dysfunction, I find that she did suffer spinal injury and I do find that there were objective clinical signs of spinal injury for which an impairment rating has been determined as set out above.”

16. The appellant submitted that the Medical Assessor did not record a history of a difference in the worker’s activity level and there is no suggestion that the worker previously did her own washing, or undertook heavier chores.

17. The appeal panel notes that the Medical Assessor has based his assessment of the 2% for ADLs on the history taken that the worker is restricted in the relevant areas and that this accords with the clinical assessment made by him on the day of examination. As noted in the MAC, at the time of the worker’s injury she was working full time as a phlebotomist. He also notes the history that after a period of four years her previous injury in 2010 had settled down. In addition, she had worked on a full time basis at Liverpool Hospital for seven years. In the Appeal Panel’s opinion it was entirely appropriate for the Medical Assessor to allow an additional 2% for ADLs which accords with the correct criteria in the guidelines. The Appeal Panel can discern no error in this regard.

18. The appellant complained on appeal about the extent of the s 323 deduction being limited to one-tenth for both the lumbar spine and the cervical spine. The appellant points out that Dr Mendelson, the independent medical examiner (IME) who had been qualified to provide an opinion on behalf of the respondent worker had made a 20% (one-fifth) deduction for both spinal regions.

19. A deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. In this case there is no cavilling on appeal with a s 323 deduction having been made but rather the extent of same. However a deduction cannot be at odds with the available evidence.

1. According to the history taken by the Medical Assessor the worker’s prior symptoms settled down after four years after her prior injury in 2010 and that she was not having problems prior to the injury in August 2022, and that she was unrestricted in her work activities. The Appeal Panel notes from the worker’s statement dated 24 July 2024 that she had been employed by NSW Health on a full time basis for seven years, working seven  days a week, eight hours a day. She goes on to note that in regard to her previous injuries in 2010, “I had fully recovered from this injury”. The Appeal Panel considers that the Medical Assessor was entitled to make a one-tenth deduction for both spinal regions, noting the previous history as well as the extent of degenerative change, and noting that she was doing her normal duties prior to the injury. The deduction of one-tenth was not at odds with the available evidence and indeed was the appropriate deduction on the available evidence to take proper account of the contribution of the pre-existing condition to the overall level of permanent impairment assessed for both spinal regions. The Appeal Panel can discern no error in this regard.

2. For these reasons, the Appeal Panel has determined that the MAC issued on 15 October 2024 should be confirmed.