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

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (NSW Health Pathology) v Markovska [2023] NSWPICMP 634
APPELLANT:	State of New South Wales (NSW Health Pathology)
RESPONDENT:	Ivana Markovska
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	John Garvey
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	1 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in failing to make a deduction under section 323 contrary to the weight of evidence with respect to the lumbar spine, and further erred in respect of the gastrointestinal injury; Panel found no error as regards the lumbar spine but error in respect of the gastrointestinal injury; Panel required further evidence and eventually the pathology material was made available; Panel found on review of the endoscopy findings, the that the respondent’s symptoms are due to helicobacter pylori not to her medication intake; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 June 2023 State of New South Wales (NSW Health Pathology) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 May 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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

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.
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 none was requested, and following review of documents produced by Bankstown Lidcombe Hospital, we are now satisfied that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that:
“(a) The MA failed to have regard to and failed to make any deduction on account of pre-existing pathology in the worker's lumbar spine.
(b) The MA took an incorrect history of injury with respect to the worker's claimed gastrointestinal condition. Specifically, he failed to record that the worker's gastrointestinal symptoms onset during her pregnancy and approximately one year before her planned surgery.
(c) The MA failed to have regard to the above history when providing his diagnosis of the claimed gastrointestinal condition, when providing his assessment of permanent impairment, and when considering whether a deduction was applicable in respect of his assessment of permanent impairment.”
In reply, the respondent submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the lumbar spine, scarring (TEMSKI), left upper extremity (shoulder) upper gastrointestinal tract and lower gastrointestinal tract resulting from an injury on 4 February 2014.
The Medical Assessor obtained the following history:
“On 10 August 2012 Ms Markovska felt a sharp pain at the lumbar spine while collecting a patient's blood at Bankstown Hospital. She consulted a doctor at Bankstown and had physiotherapy to the lumbar spine. She returned to her normal work around 22 November 2012 with intermittent low back pain.
On 4 February 2014, while bending down to collect a patient’s blood sample, Ms Markovska felt a sharp throbbing pain in her lower back. When the pain persisted, she consulted a general practitioner, Dr Angela Lam in Bankstown. Ms Markovska was treated with physiotherapy and pain medications included Nurofen Plus, Panadol Osteo and Mobic, Lyrica and Valium.
Around July 2014, Ms Markovska consulted Neurosurgeon Dr McKechnie who recommended surgery after failure of conservative treatment. The surgery was delayed because of her pregnancy. The lumbar spine pain deteriorated after the birth of her baby. Further MRI was performed on 13 December 2016 and Dr McKechnie performed L5/S1 partial laminectomy and micro discectomy on 21 November 2017.
Due to persistent severe low back pain, a bilateral breast reduction surgery was performed by plastic and cosmetic surgeon Dr Ellis Choy on 21 November 2018 at Concord Hospital. The surgery did provide some improvement in symptoms of the back and left shoulder.
In about January 2020 Ms Markovska developed severe low back pain, pain at the knees and right buttock. Further injections to the lower back were not successful in relieving her symptoms, Dr McKechnie performed another laminectomy on 18 November 2020. There was some but not substantial improvement after the second spinal surgery.
During one of the physiotherapy sessions, Ms Markovska was advised to hold onto the metal rail at the edge of the swimming pool with her outstretched arms to help lifting her legs up in order to float in the water and she felt a sharp pain in her left shoulder. When the pain persisted, she consulted her general practitioner Dr Lam and had cortisone injection to the shoulder after an Ultrasound study in February 2018. The injection was painful and provided only temporary relief.
Ms Markovska developed bloating, acid, reflux and constipation attributed to her analgesic/anti-inflammatory medications. She was referred to gastroenterologist Dr Hank Chen and on 7/11/2018 Dr Justine Mill performed Upper GI endoscopy and reported that Grade A oesophagitis was found at 38 to 39 cm from the incisors, normal stomach and normal duodenum. There was no colonoscopy performed.”
After documenting Ms Markovska’s current treatment, the Medical Assessor then set out present symptoms as follows:
“Ms Markovska complains of following symptoms:
Upper Digestive Tract - She has acid reflux symptoms and upper abdominal pain.
Lower Digestive Tract – She suffers from constipation. She needs to take laxatives every day. Her motion is hard. She experiences colicky abdominal pain when she needs to go to the toilet. She has occasional blood on the paper.
Back - She experiences constant moderate to severe lower lumbar pain which radiates to the anterolateral aspect of the left thigh and back of the left leg to include the lateral two toes. The [sic-there is] no loss of touch sensation. The right leg has similar and milder symptoms. Her back pain is improved by medication and rest.
Left Shoulder - She has pain around her left shoulder and deltoid region. Pain is present all the time and is worse with activity.”
The Medical Assessor then set out details of the impact of her injury on her social activities and activities of daily living (ADL’s) as follows:
“Ms Markovska lives with her husband and an adult son and a 7 year old son. She has restricted social activities and she cannot perform most of her domestic duties such as vacuuming and bed making mainly due to her lower back problem. Left shoulder has pain affecting some daily activities. Ms Markovska can manage her self-care activities without help.”
Findings on examination were reported as follows:
“Ivana Markovska appeared well in no apparent physical distress. She was walking normally. She sat comfortably throughout the interview…
Lumbar Spine
Ivana Markovska was able to walk on her heels and on tip toes. Examination of the lumbosacral spine revealed normal alignment. There was mild tenderness at L4 level. There was muscle guarding at the lumbar region.
Range of movement:
There was significant pain on flexion of the lumbar spine. There was asymmetry of motion at the extension/flexion plane.
Flexion: Mildly restricted
Extension: Severely restricted.
Left lateral flexion: normal Right lateral flexion: normal.
Neurological examination was normal with no sensory or motor deficits. The knee reflexes were normal and symmetrical and the ankle reflexes were symmetrically absent. Left straight leg raising test was restricted to 30 degrees with positive nerve tension test. Right straight leg raising test was restricted to 50 degrees with negative nerve tension test.
Shoulders
The shoulders were positioned symmetrically. There was no unilateral atrophy. On palpation, there was tenderness at the front of the left shoulder. The goniometric measurements obtained in this examination are tabled below…
GIT examination
Ivana Markovska had a normal nutritional status. She had no abnormal coloration. She was well hydrated. Abdominal examination showed moderate tenderness at the epigastrium with no guarding. The abdomen was soft on palpation with no abnormal masses. Per rectal examination was not performed.
Scarring
At the lumbar region, there was a well healed 3 cm vertical scar. I considered this scar to be an uncomplicated scar for a standard surgical procedure. Scars from breast reduction- The anchor, or “inverted T” technique was employed for both breasts. The scars consisted of three components; 1/ an incision placed around the nipple areola complex, 2/ an incision vertically from the bottom of the areola to the crease beneath the breast, and 3/. A horizontal scar along this crease. The first two components had healed well at both breasts. The scar beneath the left breast measured at 29 cm and at 19cm for the right breast. This scar at the left breast had healed well however at the lateral end of the right breast, the scar had widened up to 1 cm with pinkish discoloration for about 2.5cm. These scars were not visible with her normal clothing. The worker could locate these scars easily. There is no effect on any ADL. I have rated the scarring at 2% WPI.”
The Medical Assessor then noted the investigations he had as follows:
“7/11/2018 Upper GI endoscopy by Justine Mill - LA Grade A oesophagitis was found 38 to 39 cm from the incisors. The entire examined stomach was normal. Normal examined duodenum.”
The Medical Assessor summarised the injuries and diagnoses as follows:
“Ivana Markovska is a 46-year-old woman who sustained soft tissue injury to her lumbar spine, left shoulder and scarring from surgery. She also has upper and lower digestive systems symptoms from medication.
There is no inconsistency found in this examination.”
The Medical Assessor assessed 27% WPI.
He explained his assessment as follows:
“Lumbar spine was assessed as DRE III at 10% WPI based on decompression surgery performed. Additional 2% WPI was rated for restrictions in performance of her domestic tasks. Modifiers for DRE allows 2% WPI for second operation. The total lumbar spine was 14% WPI.
The left upper extremity had injury to the left shoulder. The left shoulder had 21% UEI based on the goniometric data obtained in this examination. This was reduced to 18% UEI after adjustment based on the “normal” right shoulder. The final left upper extremity was 11% WPI.
The upper gastrointestinal tract has reflux oesophagitis confirmed by gastroscopy dated 7/11/2018. I rated the upper digestive system at 3% WPI.
The lower digestive system has constipation and it was rated at 0% WPI in accordance with SIRA 4 Section 16.9.
Scaring was rated at 2% WPI being the best fit category to the characteristics of the scars detailed in this report (SIRA4 T14.1).”
He then turned to consider the other medical opinions and evidence and said:
“30 April 2019 Dr Anthony Greenberg rated the upper gastrointestinal tract at 3% WPI and lower gastrointestinal tract at 3% WPI based on the diagnoses of Gastro-oesophageal reflux disease, Probable analgesic gastropathy and Medication-induced gastrointestinal motility disorder. The reasons given for his assessments were not within the guidelines.
6 July 2022 Dr Philip G Truskett considered the reflux symptoms not work-related. He rated 0% WPI for symptoms of constipation.
14 April 2022 Dr Drew Dixon assessed the lumbar spine as DRE III at 13% WPI based on two surgeries performed and ADL rating at 2% WPI. He rated scarring at 2% WPI based on characteristics of the scars at the lumbar spine and disfigurement from the scars at the breasts. He rated the left shoulder at 8% WPI based on range of motion restrictions. The doctor rated the upper gastrointestinal tract at 2% WPI.
9 February 2022 Dr Michael J McGlynn Plastic surgeon rated the scarring at 3% WPI.
Based on the findings of this examination, I agree with the lumbar spine DRE III assessment and with the ADL restrictions rating of 2% WPI. The left shoulder has deteriorated since Dr Dixon’s examination and it has now an 11% WPI. For the upper digestive system, I have rated 3% WPI for symptoms and signs consistent with NSAID induced oesophagitis. The lower digestive system has symptoms of constipation and I rated it at 0% WPI based on SIRA4 Section 16.9. I rated scarring at 2% WPI in agreement with Dr Dixon.”

The submissions

Turning firstly to the issue of a deduction pursuant to s 323 in respect of the lumbar spine, the appellant notes the following:
(a)    The Medical Assessor when detailing the worker's history of injury with respect to her claimed lumbar spine injury recorded as follows with respect to pre-injury symptomatology: “On 10 August 2012, the worker felt a sharp pain at her lumbar spine while collecting a patient's blood. She consulted a GP and was referred for physiotherapy. She returned to her usual duties on 22 November 2012 but continued to experience intermittent lower back pain." [emphasis added].
(b)    Having regard to this history, the Medical Assessor proceeded to assess the worker to present with 14% WPI arising out of her lumbar spine. However, he did not apply any deductions despite the worker's pre-existing complaints.
(c)    Dr Frank Machart in his report dated 5 September 2022 recorded a similar history of injury, noting the following: ‘I asked her for more detail about the pain in 2012. She recalled having suffered pain a couple of years before the DOI. She did not remember circumstances or the mechanism of injury. She recalled having suffering pain for a month or so. She required physiotherapy.’
(d)    Having regard to this history, Dr Machart assessed the worker to present with 12% WPI arising out of her lumbar spine following the application of a one quarter deduction in light of the above-mentioned prior injury.
(e)    The Medical Assessor did not comment on the opinion expressed by Dr Machart as to the worker's lumbar spine pathology and his reasoning for why he applied a one quarter deduction in respect of his assessment of permanent impairment.
(f)    The Medical Assessor failed to have adequate regard to the significant pre-existing pathology in the worker's lumbar spine despite recording that she ‘continued to experience intermittent lower back pain’ in the period leading up to the 4 February 2014 incident.
(g)    This pre-existing pathology is demonstrated by the material before the Medical Assessor including but not limited to the following:
(i)MRI of the lumbar spine dated 12 March 2018 demonstrating mild degenerative dis disease and disc desiccation at the L5/S1 level.
(ii)MRI of the lumbar spine dated 13 December 2016 demonstrating disc degeneration.
(iii)MRI of the lumbar spine dated 1 July 2014 demonstrating prominent disc degeneration at L5-S1.
(iv)MAC of Dr Ryan dated 31 March 2015 noting a history of left sided low back pain at work in 2012 (not the subject of an accepted worker's compensation claim).
(h)    The application of a deduction would not be difficult or costly to determine, and that a nil deduction is manifestly inadequate having regard to the prior injury to the worker's lumbar spine.
(i)    The appellant then referred to a number of authorities on the proper application of s 323, noting: “There is nothing in s 323(1) that authorises exclusion of asymptomatic pre-existing conditions as causative or partially causative of a subsequent impairment.’”
The respondent submits:
(a)    The respondent relies on the decision in Cole v Wenaline Pty Ltd [2010] NSW SC78 (23 February 2010) (Cole) in submitting that the MAC could not make deductions for pre-existing impairments if those impairments had not been identified by medical evidence and factual evidence that they contributed to the level of impairment being assessed. In the case of Cole, the worker had a previous lumbar surgery but went back to work with minimal or no symptoms. The court held in that case that a deduction of 50% could not be made in those circumstances because the doctor and the Appeal Panel had to make an enquiry in relation to any pre-existing impairment and rely upon appropriate facts rather than make assumptions.
(b)    Objective evidence of pre-existing impairment would be required rather than a doctor making assumptions of the existence of such pre-existing impairment.
(c)    In this instance, the respondent has stated following the prior incident of injury at work on 10 August 2012 she returned to her usual duties on 22 November 2012 but continued to experience intermittent lower back pain. That is not objective evidence of there being pre-existing impairment with respect of the lumbar spine.

Discussion

Turning firstly to the submissions regarding the lumbar spine, in our view it was open to the Medical Assessor to decline to make a deduction for the following reasons.
Firstly, symptoms of themselves do not necessarily indicate impairment.
Following the previous episode of back pain in August 2012, the respondent returned to her usual duties with “intermittent” symptoms only.
In her statement she said:
“After the subject accident of 10 August 2012, I returned to work just before December 2012, around 22 November 2012, and was able to work as per normal. I was working 5 days per week, 4 hours per day. During this time the pain in my back had resolved temporarily. When I returned to work around December 2012, the pain in my lumbar spine was intermittent. I was able to continue working even though there were days where the pain in my back would come back as a dull ache.”

In the incident in February 2014 Ms Markovska said she felt “a sharp throbbing pain in her lower back.” It was when “the pain persisted” she consulted a general practitioner
Around July 2014, Ms Markovska consulted Neurosurgeon Dr McKechnie who recommended surgery after failure of conservative treatment. The surgery was delayed because of her pregnancy. The lumbar spine pain deteriorated after the birth of her baby. Further MRI was performed on 13 December 2016 and Dr McKechnie performed L5/S1 partial laminectomy and micro discectomy on 21 November 2017.
Section 323 of the 1998 Act states:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Cole is relevant authority for s 323 of the 1998 Act. It is noted that in order for a deduction to be made under s 323 there must be evidence that a pre-existing abnormality; condition; or previous injury contributes to the impairment (our emphasis).
In short, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s 323 is engaged.
In Ryder v Sundance Bakehouse [2015] NSWSC 526, Campbell J said:
“What s.323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of degree of impairment resulting from the work injury.”
A pre-existing condition or injury, even to the same body part, does not automatically invoke a deduction under s 323. The test is whether the pre-existing condition or injury actually contributes to the current impairment. If the evidence does not establish that the previous injury contributes to the impairment then no deduction can be made.
In this case, as the respondent correctly points out, “objective evidence of pre-existing impairment would be required rather than a doctor making assumptions of the existence of such pre-existing impairment.”
For these reasons we do not see any error by the Medical Assessor in his assessment of the lumbar spine.
Turning next to the issue of the respondent’s gastrointestinal condition, the appellant submitted that:
“The MA took an incorrect history of injury with respect to the worker's claimed gastrointestinal condition. Specifically, he failed to record that the worker's gastrointestinal symptoms onset during her pregnancy and approximately one year before her planned surgery.”
the Panel was unable to determine the nature and extent of this condition in the absence of the full biopsy and histology reports from Justine Mill, VMO.
After considerable delays, the documents were finally obtained.
The findings state:
“1. Upper GI endoscopy:
LA Grade A reflux oesophagitis.
Normal stomach. Biopsied.
Normal examination duodenum. Biopsied.
2. Gastric Biopsy.
Moderate active helicobacter pylori gastritis.
3. Small bowel biopsy: no significant pathological abnormality.”
In her statement dated 10 June 2021, Ms Markovska said:
“From the date of the subject accident to date, I have also been consuming a large amount of anti-inflammatory and pain -relieving medication such as Nurofen Plus, Panadol Osteo and Mobic…
Since my work injury, I have had symptoms in the stomach/ digestive in the form of bloating, acid, reflux and constipation. The symptoms became worse after the surgery as I was taking stronger pain killing medication. My GP referred me to see a gastroenterologist, Dr Hank Chen, who I saw at Bankstown Hospital in October 2018. Dr Chen recommended I have an endoscopy done which I underwent at Bankstown Hospital on 7 November 2018. Following that, I was advised that I had inflammation and that I tried to change the pain relieving medication that I was taking because that was likely to be the cause. It was recommended that I continue to take Somac which I had started to take. My symptoms in the stomach, unfortunately, continue.
As a result of consuming anti-inflammatory and pain- relieving medication since the date of the accident, I also feel pains in my stomach. I am often bloated and experience reflux and constipation. I have dull aches in my upper and lower abdomen and sometimes feel nauseous. I have become reliant on medication to assist with the pain in my lumbar spine and left leg.”
Nowhere does she suggest that these symptoms began during her pregnancy. She clearly stated that her symptoms began “since my work injury.”
We therefore have some difficulty with the appellant’s submissions regarding the onset of symptoms.
Nevertheless, on review of the endoscopy findings, the Panel has concluded that the respondent’s symptoms are due to Helicobacter pylori not to her medication intake.
In these circumstances, there can be no impairment of Ms Markovska’s upper digestive tract.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 May 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7210/22
Applicant:	Ivana Markovska
Respondent:	State of New South Wales (NSW Health Pathology)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor SK Cyril Wong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1.Lumbar spine	4 February 2014	Chapter 4 P24-30	Chapter 15 Table15-3	14%	Nil	14%
2. Left upper extremity (shoulder)	4 February 2014	Chapter 2 P10-12	Chapter 16 P433-521	11%	Nil	11%
3. Upper gastrointe stinal tract	4 February 2014	Chapter 16	Chapter 6	0%	Nil	0%
4. Lower gastrointe stinal tract.	4 February 2014	Chapter 16	Chapter 6	0%	Nil	0%
5. Scarring (TEMSKI),	4 February 2014	T14.1 P74	2%	Nil	2%
6.
Total % WPI (the Combined Table values of all sub-totals)					25%

[2023] NSWPICMP 634

1 December 2023