State of New South Wales (South Western Sydney Local Health District) v Begley
[2024] NSWPICMP 618
•3 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (South Western Sydney Local Health District) v Begley & Anor [2024] NSWPICMP 618 |
| APPELLANT: | State of New South Wales (South Western Sydney Local Health District) |
| FIRST RESPONDENT: | Kaylene Begley |
| SECOND RESPONDENT: | Carrington Centennial Care Limited |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Michael Davies |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 3 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker sustained an injury to her cervical spine while employed by the second respondent in 2011 and a further injury to her lumbar spine in 2018 while employed by the first respondent; Medical Assessor (MA) assessed 4% whole person impairment (WPI) of the cervical spine as a result of the injury in 2011 and 18% WPI of the cervical spine as a result of the injury in 2018; MA deducted one-fifth from the assessment of 18% WPI of the cervical spine as a result of the injury in 2011 which resulted in an assessment of 14% WPI of the cervical spine in respect of the injury on 10 November 2018; appellant submitted that MA erred in not making a deduction for a pre-existing condition prior to the first injury in 2011; MA had considered the evidence relating to a pre-existing condition and his reasoning was adequate; no contribution to the current level of impairment from pre-existing degenerative change; Held – no demonstrable error found; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 July 2024 State of New South Wales (South Western Sydney Local Health District) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 June 2024.
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.
On 24 July 2024 the worker, Kaylene Begley (Ms Begley), lodged a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
On 2 August 2024 Carrington Centennial Care Limited (the second respondent), lodged a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Begley (the first respondent to the appeal) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 15 December 2023 in which she claimed an amount of $73,550 in respect of 27% whole person impairment (WPI) of the cervical spine and left upper extremity and scarring (TEMSKI) as a result of the injury on 10 November 2018. Ms Bailey also claimed $49,500 in respect of 27% WPI of the cervical spine and left upper extremity and scarring (TEMSKI) as a result of the injury on 19 January 2011.
Ms Begley alleged that on 10 November 2018, while employed by the appellant, she sustained an injury to her cervical spine, left elbow and left shoulder while moving a patient. Ms Begley also alleged that on 19 January 2011, while employed by the second respondent, she sustained an injury to her cervical spine from manually handling a resident.
In an Amended Certificate of Determination – Consent Orders (COD) dated 22 May 2024, Member Beilby made the following orders and Notations:
“1. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) Date of injury: 10 November 2018
(b) Body systems / parts: Cervical Spine
Left Upper Extremity (elbow)
Scarring (TEMSKI)
(c) Method of Assessment: Whole person impairment
(d) Date of injury: 19 January 2011
(e) Body systems / parts: Cervical Spine
Scarring (TEMSKI)
(f) Method of Assessment: Whole person impairment
2. The documents to be reviewed by the Medical Assessor are:
a. Application and attached documents;
b. Replies and attached documents and
c. Late documents dates 2/2/24, 18/3/24, 27/3/24 and 28/3/24
d. Reports from Dr Herald and Dr Darwish dated 27 March 2024 (if required)
3. Award for the first respondent in respect of the claim of injury to the left upper extremity (left shoulder).
4. The first respondent is to pay reasonably necessary medical expenses pursuant to s60 up to $12,333.95 upon production of receipts, tax invoices or Notice of Charge.
Notations
a. The claim in respect of weekly compensation is stood over pending the medical assessment process.
b. The Medical Assessor is requested to provide a non-binding opinion as to the apportionment of permanent impairment of the cervical spine between the dates of injury 19/1/11 and 10/11/18.
c. The first and second respondents agree that any apportionment provided by the Medical Assessor in respect Notation ‘b’ is to apply to the s60 expenses paid by the respondent (referred to in Order 4) up to $12,333.95.
d. The first and second respondents agree that any deduction pursuant to s323 made by the Medical Assessor is to apply equally to the first and second respondent”.
In the Amended Referral for Assessment of Permanent Impairment to Medical Assessor (the referral) dated 28 May 2024 the matter was referred to the Medical Assessor, Dr Mark Burns, for assessment of WPI of the cervical spine, left upper extremity (elbow), and scarring (TEMSKI) with the date of injury being 10 November 2018 and for assessment of WPI of the cervical spine, and scarring (TEMSKI) with the date of injury being 19 January 2011.
The Medical Assessor examined the appellant on 5 June 2024 and assessed 4% WPI of the cervical spine and 0.2% (reduced to 0%) for scarring as a result of the injury on 19 January 2011 and 18% WPI of the cervical spine, 1% of the left upper extremity (elbow) and 1% for scarring as a result of the injury on 10 November 2018. The Medical Assessor deducted
one-fifth from the assessment of 18% WPI of the cervical spine as a result of the injury on 10 November 2018, which resulted in an assessment of 14% (rounded) for the cervical spine and a combined total of 16% WPI as a result of the injury on 10 November 2018.
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.
The appellant did not request that Ms Begley to be re-examined by a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Begley to undergo a further medical examination because there was sufficient information upon which to make a determination.
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.
Medical Assessment Certificate
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
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) Ground 1 – the Medical Assessor failed to appropriately consider the entirety of the evidence before him and appropriately identify, consider and give weight to the evidence as to Ms Begley’s pre-existing degenerative condition prior to the subject work incidents. As a result, the Medical Assessor erred in failing to appropriately consider and apply s 323 of the 1998 Act in respect of the deduction to be applied in relation to her pre-existing cervical spine condition and in light of her prior history of symptoms.
(b) The Medical Assessor did not apply a deduction to his assessment of impairment of Ms Begley’s degenerative condition to her cervical spine pursuant to s 323 of the 1998 Act which is a demonstrable error when taking into account the evidence as to the extent of the pre-existing cervical spine condition (see assessments of Dr Bentivoglio and Associate Professor Miniter).
(c) The case law is clear that it does not matter if the pre-existing condition was asymptomatic, rather if the loss is to some extent due to the pre-existing condition, there must be deduction of the deductible proportion for that loss, (Government Cleaning Service v Ellul (1996) 12 NSWCCR 334 at [349]).
(d) The Medical Assessor is required to establish whether the pre-existing condition caused or contributed to the impairment “where there is evidence of ‘actual consequences’ of the earlier injury on the later impairment”.
(e) When addressing the application of s 323, the Medical Assessor confirmed “there is no deduction for pre-existing condition, but there is apportionment between the accident in 2011 and 2018 with respect to her cervical spine”. The Medical Assessor stated at Part 10.c on page 8 of the MAC that “there was no evidence to support a deduction prior to 2011”.
(f) The conclusion reached by the Medical Assessor is at odds with the available and significant medical evidence and the Medical Assessor erred in failing to make any deduction under s 323(2) of the 1998 Act.
(g) At Part 10.c. of the MAC, the Medical Assessor noted that:
“…most of [the worker’s] current symptomatology requiring surgery in 2019 came from the second injury and only a minor amount came from the first injury in 2011. Additionally, there was no evidence to support a deduction prior to 2011.”
The Medical Assessor has erred in this conclusion, as there is substantial evidence before him addressing the pre-existing degenerative issues in Ms Begley’s cervical spine prior to the initial work injury on 19 January 2011.
(h) There is also substantial evidence of Ms Begley’s not insignificant degenerative cervical spine condition which is evident some four months after her 2011 injury.
(i) The Medical Assessor has failed to refer to investigations pre-dating the work injury at part 6 of the MAC under “Details and Dates of Special Investigations”. The Medical Assessor has simply noted Ms Begley “did not have any investigations with her”.
(j) Following the work injury in 2018, a CT scan of the cervical spine on 3 January 2019 confirms “Slight retrolisthesis of C5 on C6 is noted...There are multiple degenerative loose bodies around the anterior arch of C1...facet hypertrophy and degeneration resulting nerve root compression as above. No spinal stenosis” at page 618 of the ARD. A further MRI of the worker’s cervical spine on 7 February 2019 (page 42 of the appellant’s reply) identified “Degenerative changes are seen in cervical spine at multiple levels as described”.
(k) Despite this and at odds with the evidence contained within the proceedings, Ms Begley’s initial signed statement at Page 2 of the ARD confirmed she “was in good health” prior to her injuries. In her supplementary statement at Page 3 of the worker’s AALD, she referred to her clinical records which pre-date the 2011 work injury and confirmed she was referred “due to stiffness of the neck” but noted she “sought medical treatment for her neck and left shoulder because the symptoms were relatively minor and resolved”. Ms Begley believed the problem went away by itself and had no symptoms by the time of her 2011 injury.
(l) The Medical Assessor specifically questioned Ms Begley in respect to the “details of any previous or subsequent accidents, injuries or conditions” at Part 4 of the MAC, and in direct contrast to the medical evidence and her signed statement evidence, she “reported that she had no previous injury or condition involving either her left arm, left elbow or neck before 2011”. The Medical Assessor however:
“…noted in the documentation provided that there was a previous x-ray of the cervical spine on 18 March 2009. She believed at the time that she had some muscular neck pain, which was secondary to stress. I noted from the documentation that there was no report of ongoing treatment for any period”.
(m) The Medical Assessor failed to adequately address Ms Begley’s pre-existing condition and its impact upon her physical state prior to the work injury, especially considering the ongoing history of the pre-existing condition which predates back to at least 19 March 2009.
(n) The failure to make any s 323 deduction by the Medical Assessor was a demonstratable error. There was not an absence of evidence, rather there was clear medical evidence before him reflecting a pre-existing condition prior to the 2011 injury and, as such, a deduction under s 323 should have been applied in the circumstances.
(o) The Medical Assessor erred in failing to make an appropriate deduction to reflect a significant pre-existing condition pursuant to s 323 of the 1998 Act.
(p) The Medical Assessor’s reasoning is inadequate to explain no deduction under s 323 and is a demonstrable error and based on incorrect criteria.
(q) In accordance with Notation (d) that any deduction pursuant to s 323 made by the Medical Assessor is to apply equally to the appellant and second respondent.
(r) For the reasons noted above, the Medical Assessor’s assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error.
(s) The MAC ought to be revoked and a new certificate issued.
The second respondent’s submissions include the following:
(a) the second respondent asserts that there is no error and the MAC should be confirmed. The existence of prior pathology does not mean that s 323 will apply in every case. The relevant test is whether that prior condition is contributing to the total level of impairment.
(b) The appellant submits that the radiological evidence demonstrates Ms Begley has pre-existing degenerative at her cervical spine predating the 19 January 2011 injury, and that this is evidence that a deduction is warranted. In this respect, the Medical Assessor stated a Part 10.c on page 8 of the MAC that “there was no evidence to support a deduction prior to 2011”.
(c) The context within which the Medical Assessor made these comments is relevant. They formed part of his review of the findings made by Dr Bentivoglio in his reports. The Medical Assessor engaged with Dr Bentivoglio’s reports and summarised that Dr Bentivoglio was of the view that a significant deduction should apply for a pre-existing abnormality and that the appropriate apportionment was one-fifth for the 10 November 2018 injury, one-third for the 10 January 2011 injury and “assessed the rest of her whole person impairment as being due to pre-existing degenerative changes from 2009 to 2011”. The Medical Assessor clearly indicated that he did not agree with this apportionment or with these conclusions, outlining his opinion that most of her symptomatology requiring surgery in 2019 came from the 10 November 2018 injury, with only a minor amount coming from the 2011 injury. He concluded “[a]dditionally, there was no evidence to support a deduction prior to 2011”.
(d) The Medical Assessor’s conclusion that no deduction was warranted is not at odds with any of the evidence. This opinion was based on the evidence before him and on his examination of Ms Begley.
(e) The Medical Assessor was clearly aware that Ms Begley had some degree of degenerative change at her cervical spine prior to the 2011 injury, as he mentions same at page 4 of the MAC.
(f) Though the Medical Assessor did not explicitly discuss a s 323 deduction in his reasons at page 7 of the MAC, it is clear that he was aware of the medical imaging predating the 2011 injury as he mentioned this in the MAC and raised it with Ms Begley. It must be inferred from the Medical Assessor’s decision not to apply a deduction accounting for the degenerative change on this March 2009
X-ray that he considered that this pre-existing condition did not contribute to the impairment present at the time of his examination of Ms Begley.(g) Ms Begley’s account of her pre-2011 medical history, is that she was referred to her doctor “due to stiffness of the neck” but she noted that though she sought treatment for the neck and left shoulder, those symptoms were relatively minor and resolved. She gave a history that she believed that earlier stiffness had resolved and she had no symptoms by the time of the 2011 injury. Her history is that she discussed her neck with her general practitioner (GP) in the context of “muscular neck pain, which was secondary to stress”.
(h) The pre-2011 neck complaint being simply “muscular neck pain, which was secondary to stress” which by Ms Begley’s own admission, was minor and had resolved entirely prior to the 2011 injury, demonstrates that this alleged “pre-existing condition” is entirely different to the appellant’s argument that the worker had pre-existing degenerative cervical changes prior to 2011 warranting a deduction.
(i) The Medical Assessor has clearly engaged with, and summarised this evidence in the MAC, and the decision not to apply a deduction is simply the Medical Assessor exercising his clinical judgment. It is evident that in the Medical Assessor’s professional opinion, Ms Begley’s cervical presentation pre-2011 did not contribute to the impairment present in such a way that a deduction was warranted.
(j) The appellant contends that the Medical Assessor failed to provide adequate reasons for his conclusion that a deduction was not warranted. The Court of Appeal has previously determined in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 at [531] that: “Error of law would also be involved if the reasoning disclosed in the judgment did not enable the reader to understand the essential steps in the decision-making process”.
(k) The evidence before the Medical Assessor, including the various Independent Medical Examiners (IME) medical reports and the March 2009 X-ray, indicate that Ms Begley had some degree of pre-existing cervical change predating the 2011 injury. However, the history provided by Ms Begley during the Medical Assessor’s clinical examination indicated that she had “no previous injury or condition involving either her left arm, left elbow or neck” and that she described having only muscular neck pain, secondary to stress, at the time of the March 2009 X-ray. The Medical Assessor also noted Ms Begley’s ability to return to her full pre-injury duties following the 2011 injury. The Medical Assessor clearly engaged with the medical evidence before him, as demonstrated by his summary and discussion of this evidence at pages 4-8 of the MAC. At page 8 specifically, he reported that he did not agree with Dr Bentivoglio’s apportionment which included the opinion that a significant portion of her impairment was attributable to pre-existing degenerative changes from 2009-2011. He also noted a lack of evidence supporting a deduction prior to 2011.
(l) It is evident on the face of the MAC that the Medical Assessor clearly did not consider that the evidence before him predating the 2011 injury, being the single X-ray in 2009, which Ms Begley herself dismissed as the result of stress-induced muscular pain, led to the conclusion that she had pre-existing degenerative change which had contributed to her impairment in such a way that a deduction was warranted.
(m) The role of a Medical Assessor is not to decide which of the medical opinions before him that he agrees with, but to review all of the evidence independently and come to an informed, binding assessment. The Medical Assessor is not required to accept that Ms Begley presented with pre-existing degenerative changes which contributed to her impairment to the extent that a deduction was warranted, simply because Drs Bentivoglio and Miniter believed that to be the case.
(n) The Medical Assessor’s implied conclusion that a deduction is not warranted are evident in his reasons and in his engagement with the totality of the medical evidence. The Medical Assessor has not erred in his failure to apply a deduction, nor failed to provide adequate reasons for same, and therefore has not made a demonstrable error nor based his assessment on incorrect criteria.
(o) The appeal should be dismissed and the MAC confirmed.
Ms Begley’s submissions include the following:
(a) there can be no argument that the Medical Assessor did not consider the evidence before him. Under “Documentary Evidence”, the Medical Assessor acknowledges receipt of the documents listed in the referral of the Commission which were as follows:
(i) Application and attached documents.
(ii) Replies and attached documents.
(iii) Application to Admit Late Documents dated 2 February 2024, 18 March 2024, 27 March 2024 and 28 March 2024.
(iv) Reports of Dr Herald and Dr Darwish dated 27 March 2024.
(b) On page 7 of the MAC, the Medical Assessor records as follows under “Reasons for Assessment”:
“In making that assessment I have taken account of the following matters:- The history I obtained from Mrs Begley specifically looking at her neck symptoms and her physical activities following the injury in 2011 and again looking at her physical symptoms and her ability to carry out activities following the second injury in 2018. My physical examination of Mrs Begley. My review of her documentation”.
(c) It is not incumbent on the Medical Assessor to reproduce in his reasons every item of evidence before him (noting the voluminous documents before the Assessor) (Reece v Webber (2011) 192 FCR 254 at [65]).
(d) The appellant's submissions do not engage with the opinions of Dr Herald and Dr Fearnside, neither of whom applied a deduction under s 323, and whose reports were considered by the Medical Assessor. The Medical Assessor dealt with the evidence relied upon by the appellant in its appeal submissions in detail noting the reports of Dr Bentivoglio from 12 March 2019 through to 26 April 2023 and the further medico-legal reports of Dr Bentivoglio dated 5 February 2024 and 14 March 2024. The Medical Assessor did not agree with Dr Bentivoglio’s apportionment.
(e) The Medical Assessor considered Dr Bentivoglio's opinion but came to a different view. He made specific reference to Dr Bentivoglio's opinion that there was a progression of degenerative change between 2009 and 2011 and provided his reasons for disagreeing with Dr Bentivoglio. A difference of opinion is not an error. Similarly, the Medical Assessor makes specific reference to the opinion of Dr Miniter and stated that he disagreed with Dr Miniter’s opinion. Once again, it is clear that the Medical Assessor gave consideration to the opinion of Dr Miniter, but ultimately came to a different opinion.
(f) The Medical Assessor explicitly deals with the x-ray of 18 March 2009 on page 4 of the MAC.
(g) The appellant refers to the opinion of Dr Mary Ann Nicolas (report dated 4 November 2011) however Dr Mary Ann Nicolas was not an orthopaedic specialist or neurosurgeon but a GP. Further, Dr Nicolas was ambivalent about the cause of the Ms Begley’s cervical spine injury, which reflects her limits as a GP and not a specialist.
(h) The appellant refers to X-rays of the cervical spine dated 31 May 2011 and a CT scan of the cervical spine dated 9 June 2011 but has not identified any evidence nor made any submission as to how the changes identified on the scans ought to result in a deduction under s 323.
(i) The appellant refers to a clinical note of Dr Jonathan Lee dated 17 January 2019 in which Dr Lee documents chronic neck issues from the 2011 injury exacerbated recently with elbow issues. This is consistent with the history taken by the Medical Assessor. The clinical note of Dr Lee does not support a deduction under s 323.
(j) The appellant submits that the Medical Assessor has "failed to refer to the above medical evidence", but contrary to the that submission, the Medical Assessor refers to the X-ray of the cervical spine dated 31 May 2011 in the first paragraph under “History relating to injury” on page 2. The Medical Assessor refers to the CT scan of 9 June 2011 in the same paragraph.
(k) While the Medical Assessor does not make specific reference to the clinical note of Dr Jonathan Lee dated 17 January 2019, he does refer to the treatment conducted by Dr Lee throughout the MAC. The clinical records of Dr Lee were referred to the Medical Assessor. However, this evidence does not support a deduction under s 323. Furthermore, the history recorded by the Medical Assessor is entirely consistent with the clinical entries of Dr Lee.
(l) The appellant refers to a solitary clinical note by a Dr Louise Adam dated 16 May 2019, but the history taken by Dr Adam does not support a deduction under s 323 and is consistent with the history taken by the Medical Assessor.
(m) The radiological findings were before the Medical Assessor and considered by him. The appellant refers to a CT scan of the cervical spine dated 5 January 2019 and an MRI of the cervical spine dated 7 February 2019, the latter of which the Medical Assessor makes specific reference to these reports on page 3, paragraph 1 of the MAC. Again, the appellant merely repeats the findings of the radiologists but does not identify how the changes support a deduction under s 323.
(n) There is no error disclosed and the appeal should be dismissed.
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.
Ground 1 – failure to give appropriate weight to the Ms Begley’s pre-existing condition and its ongoing effects and failure to appropriately address s 323 of the 1998 Act
The appellant submits that the Medical Assessor:
(a) failed to appropriately consider the entirety of the evidence before him;
(b) failed to appropriately identify, consider and give any weight to the evidence as to the worker’s pre-existing degenerative condition prior to the subject work incidents. and
(c) erred in failing to appropriately consider and apply s 323 of the 1998 Act in respect of the deduction to be applied in relation to the worker’s pre-existing cervical spine condition and in light of the worker’s prior history of symptoms.
The Appeal Panel reviewed the MAC and the evidence in this matter.
At part 4 under “History relating to the injury”, the Medical Assessor wrote:
“Mrs Begley reported that on the 19 January 2011 she was looking after a patient who needed to be log rolled to change compression stockings. The patient was extremely heavy. After completing the task she noted pain and discomfort in her neck. She reported the injury at work immediately. She subsequently attended a General Practitioner who recommended her to attend an osteopath. The osteopath she visited was doing a combination of chiropractic and physiotherapy. She stated that the treatment gave her short term relief and gradually the pain improved but never went away completely. Plain x-rays of the cervical spine on 31 May 2011 revealed cervical spondylosis with osteophytic encroachment on the left C4/C5 outlet foramen. A CT scan was subsequently carried out on 9 June 2011 and again revealed features consistent with cervical spondylosis and osteophytic encroachment of the left C4/5 outlet foramen. Following the investigations she continued treatment with the osteopath and was also taking Panadeine Forte or Panadol. She was off work for 3 months and then returned initially on suitable duties. Eventually she returned to full duties. She continued to see the osteopath for maintenance treatment with pain mostly in her neck and going to the left side. She had several further follow ups with her General Practitioner but had no specialist referral. She eventually left Carrington Centennial Care Ltd in approximately 2013 and commenced work as a Registered Nurse at Bowral Hospital. Prior to leaving Centennial Care she had completed her training as a Registered Nurse. She remained at Bowral Hospital from 2012 to 2015 and then from 2016 to 2019 was working at Campbelltown Hospital.
On 10 November 2018 she was moving a patient when she developed further pain in the left side of her neck, which radiated down to her left shoulder, left elbow and down the left arm. She was seen by Dr Scott, her General Practitioner at the time and was referred for an ultrasound of the left elbow. The ultrasound was carried out on 10 December 2018 and the findings were suggestive of tendinosis of the common extensor origin with partial thickness intrasubstance tearing with the largest tear measuring 6.9mms. These findings were consistent with lateral epicondylitis (tennis elbow). She commenced physiotherapy for her neck and elbow injury and was eventually referred for PRP injections, which were carried out in 2019.
She reported that Dr Scott was away for a period and recommended that she see Dr Lee, another General Practitioner. Dr Lee, due to the pain and discomfort in her neck and left shoulder region referred her to Dr Darwish, Neurosurgeon. Dr Darwish referred her for an MRI scan of the cervical spine, which was carried out on 7 February 2019. The scan was reported as showing degenerative changes seen in the cervical spine at multiple levels as described. At C5/6 there was a diffuse disc osteophyte bulge resulting in thecal sac indentation and bilateral foraminal compromise, the left worse than the right. There was an abutment of the exiting C6 nerve roots bilaterally, again the left worse than the right. Dr Darwish recommended she continue with physiotherapy and conservative management. He also arranged for injections into the left C6 nerve root area, which gave her 50% improvement in her neck pain. There was also improvement of pain into the left shoulder. This was followed up by an injection into the C7 nerve root area on the left side, which also gave her improvement. Both injections gave her short term relief only. Following the injections Dr Darwish recommended that she have 2 level decompressive surgery in her cervical spine.
Dr Darwish operated on 29 November 2019 and carried out a left C5/6 and C6/7 foraminotomy and decompression. She reported that the pain did improve significantly after the operation but never completely resolved. On questioning she reported she did have some pain into the left shoulder and down towards her left arm following the initial injury in 2011 but this was significantly worse after the second injury in 2018. Following the surgery, she returned to being treated by the osteopath and was also having physiotherapy. Both modalities only continued for a short period as the insurer would only pay for one and she eventually continued with physiotherapy only”.
At Part 4 under “Details of any previous or subsequent accidents, injuries or condition”, the Medical Assessor wrote:
“She reported that she had no previous injury or condition involving either her left arm, left elbow or neck before 2011. I noted in the documentation provided that there was a previous x-ray of the cervical spine on 18 March 2009. She believed at the time that she had some muscular neck pain, which was secondary to stress. I noted from the documentation that there was no report of ongoing treatment for any period”.
On page 7 of the MAC, under “Reasons for Assessment” the Medical Assessor stated that in making the assessment he had taken account of the following matters:
“The history I obtained from Mrs Begley specifically looking at her neck symptoms and her physical activities following the injury in 2011 and again looking at her physical symptoms and her ability to carry out activities following the second injury in 2018. My physical examination of Mrs Begley. My review of her documentation”.
The Medical Assessor wrote on page 8 of the MAC:
“I note the Independent Medical Examination reports of Dr Fearnside, Neurologist dated 13 March 2020 and 29 January 2021. Dr Fearnside has assessed the cervical spine as being DRE Category III with a range of 15% – 18%. He has decided on 17% whole person impairment. He then finds due to a second level of operation a further 1% whole person impairment to give 18% whole person impairment. I would agree with his findings. He then makes a further 1% whole person impairment for scarring to give 19% whole person impairment. I note that he makes no apportionment between the 2 injuries in 2011 and 2018.
I note the Independent Medical Examination reports of Dr Herald, Orthopaedic Surgeon dated 20 July 2022 (x2). Dr Herald assessed the left elbow as giving 2% upper extremity impairment with which I would agree. I note though that he also assessed both the left shoulder and left wrist, which I was not asked to assess. I note that Dr Herald then combined the assessment of Dr Fearnside with his own to give 27% whole person impairment. I note though that my findings today were slightly different to those of Dr Herald I note the Independent Medical reports of Dr Bentivoglio from 12 March 2019 through to 26 April 2023. He assessed Mrs Begley for her cervical spine as DRE Category 111 or 15% whole person impairment. Whilst he was looking at her for the 2018 injury, he did report that she had a previous cervical spine injury in 2011. I note that he made no apportionment between the 2 injuries. I note the further medicolegal reports of Dr Bentivoglio dated 5 February 2024 and 14 March 2024. In his final report he assessed Mrs Begley as having 17% whole\ person impairment for her cervical spine. In a complex apportionment under Point 5, he believed that a significant deduction should be made for pre-existing abnormality. He eventually assessed the 10 November 2018 injury as one fifth of the amount of the total thus finding 3% whole person impairment. For the 19 January 2011 incident he assessed one third as being a result of a specific incident. He therefore assessed 6% whole person impairment for the 19 January 2011 incident. It then appears that he assessed the rest of her whole person impairment as being due to pre-existing degenerative changes from 2009 to 2011. I do not agree with his apportionment. I believe that most of her current symptomatology requiring surgery in 2019 came from the second injury and only a minor amount came from the first injury in 2011. Additionally, there was no evidence to support a deduction prior to 2011.
I noted the Independent Medical Examination report of Dr Miniter, Orthopaedic Surgeon dated 25 January 2024. I note that Dr Miniter did not believe that her injury had in fact been caused by work. He stated under Point 11 that there was no clear evidence that this was a work-related matter at any time. I do not agree with Dr Miniter’s findings."
On page 9 at Part 11 of the MAC, the Medical Assessor wrote: “I believe there is no deduction for pre-existing injury but there is apportionment between the accident in 2011 and 2018 with respect to her cervical spine.”
In her statement dated 5 September 2023, Ms Begley said that she was working for the second respondent as an Assistant in Nursing when she manually handled a patient on 19 January 2011 and felt pain in her cervical spine. She stated that she made a claim for workers compensation and attended the Schwarz Family Practice for pain in the cervical spine. She wrote: “I would have a twinge in my neck every now and again after that incident, however it was manageable and did not prevent me from working. I did receive Osteopathic treatment on an ongoing basis thereafter”.
Ms Begley then stated that on 10 November 2018 she was working as a registered nurse for the appellant in a part-time permanent role. She wrote: “My previous neck injury did not prevent me from fully performing my duties as a registered nurse”. Ms Begley said that on this date she was doing a lot of physical work and was leaning over to roll and pull an obese patient towards her when she experienced sharp pain in her neck, left arm and shoulder.
In a supplementary statement dated 26 March 2024, Ms Begley wrote:
“2. I again confirm that, as relayed to Dr Fearnside, on 19 January 2011 I was rolling an obese patient to put stockings on his legs when I experienced the neck injury.
3. I am informed that the clinical records of Dr Jim Scott indicate I was referred for an xray of the neck due to stiffness of the neck, and the records of Mary-Ann Nicolas also refer to symptoms in my neck.
4. I had forgotten I sought medical treatment for my neck and left shoulder because the symptoms were relatively minor and resolved. Dr Nicolas thought it was related to workplace stress because I was carrying a lot of tension in my upper body. I may have seen a chiropractor a few times but I'm not sure.
5. As I recall my GP referred me for an x-ray. The problem went away by itself and I had no symptoms by the time of my 2011 injury.
6. Again, it had slipped my mind that I had made these complaints because the issue was minor and resolved independently”.
The Patient Medical History of Camden Medical Centre details a consultation on 24 March 2009 noting “neck stiff” and a consultation on 31 March 2009 noting “neck improved”. That practice did not appear to have any further reports of complaints concerning the neck until 13 September 2013 when it was noted “Us neck”.
Report of X-ray of the cervical spine by Dr Andrew Varnava dated 19 March 2009 identified “Mild diffuse degenerative changes of the cervical spine with mild narrowing of the C5/6 disc space”.
Report of X-ray of the cervical spine by Dr Andrew Varna dated 31 May 2011 identified “features consistent with cervical spondylosis are noted as outlined in the body of the report. There is osteophytic encroachment on the left C4/5 outlet foramen”. The body of that report identified “Slight retrolisthesis of C5 on C6; Narrowing of the C5/C6 disc space is noted, OA changes are noted involving bilateral facet joints. Osteophytes are noted encroaching on the left C4/C5 outlet foramen...”.
Report of a CT scan of the cervical spine by Dr Chaitowitz dated 9 June 2011 confirmed the worker suffered “features consistent with cervical spondylosis are noted with resultant osteophytic encroachment on the left C4/5 outlet foramen. No disc herniation was noted.”
In a report dated 4 November 2011, Dr Mary Ann Nicolas, GP, of The Schwarz Family Practice, noted that Ms Begley had attended Dr Arslan with neck pain on 19 January 2011 after helping a resident in a nursing home put on ted stockings. She noted that on examination she was found to have mild limitation to lateral rotation. Dr Nicolas wrote:
“Impression was muscular strain. A workcover certificate was issued. She was given analgesia and was referred to physio.
I saw her on the 24/1/2011, her neck pain persist. some improvement with physio. I added an anti-inflammatory and ask her to continue physio, advise her light duties in the next 2 wks.
She presented again on the 28/1 /11 as she was not able to go back to work because of pain on movement. I encourage her to cont anti-inflammatory/physio, light duty for a wk then full duties after.
The next date I saw her was on the 9/2/11. She has been seeing physio 2x/wk And her neck was improving at that time. She has good range of movement. I have ask her to continue anti-inflammatory/physic but gave her a final certificate For preinjury duties. (Attached copy)
On the 30/5/11 she came in with increasing neck pain, on and off and requested an xray. I explained that its most likely going to show osteoarthritic changes.I encourage her to do some stretching exercises and have physio which she finds helpful.
On the 8/6/11 she saw Dr A. Magdy another doctor in our practice with recurring neck pain. A Ct scan was arranged which showed degenerative changes.no disc prolapsed.
On the 10/6/11 she saw Dr Arslan again who explained the findings on the CT scan. She was then referred to Sally Watson(physio) On the 26/9/11 she saw Dr N. Islam requesting referral to physio/osteopath under workcover. Dr Islam’s recommendation after examination was cervical dysfunction. She was prescribed Panadol osteo and was referred back to physio”.
Dr Nicolas stated that it was difficult to know when the neck pain was from soft tissue injury on 19 January 2011 or from wear and tear secondary to osteoarthritis. She wrote: “Theoretically a muscle strain/ soft tissue injury from pulling a teds stockings would only cause temporary problem and not long term ongoing one”.
The clinical notes from Argyle Street Family Practice contained an entry by Dr Jonathan Lee on 17 January 2019, who noted: “neck problem has been ongoing since incident whilst working in Carrington in 2011 but recent exacerbation with left elbow injury”. On 24 January 2019, Dr Lee again confirmed Ms Begley had “Neck issues more chronic from 2011 but exacerbated recently with elbow issues”.
A report by Dr Louise Adam, orthopaedic consultant, dated 16 May 2019 recorded a history of persistent right neck pain “attributed to a work-related incident on 19/1/2011” and noted Ms Begley “had a previous work-related injury in 2008”. Ms Begley reported her neck pain and headaches had been “much the same as it had been since 2011”. Dr Davies reported that there had been significant improvement since the cortisone injections in the cervical spine.
Dr Nicolas stated that it was difficult to know when the neck pain was from soft tissue injury on 19 January 2011 or from wear and tear secondary to osteoarthritis. She wrote: “Theoretically a muscle strain/ soft tissue injury from pulling a teds stockings would only cause temporary problem and not long term ongoing one”.
Dr Balsam Darwish, treating neurosurgeon, in a report dated 5 February 2019, noted that Ms Begley had a work-related injury to her neck in 2011 and in November 2018 she had an aggravation of her neck pain with radiation to the left upper limb associated with paraesthesia over the whole left upper limb in non-dermatomal distribution.
In a report dated 27 March 2024, Dr Darwish wrote:
“The radiologically demonstrated changes in the cervical spine are most likely degenerative in nature aggravated by the nature of her employment and the two work related injuries in 2011 and 2018. After the injury in 2018 she developed neck pain radiating to the left upper limb associated with paraesthesia in the left forearm and the left hand. Her symptoms were highly suggestive of left C6 and C7 radiculopathy. She failed to respond to conservative treatment and hence I recommended left C5-C6 and C6-C7 foraminotomy and decompression of the left C6 and C7 nerve roots which was performed on the 29th of November 20 19 with significant improvement in her left upper limb radicular symptoms. I agree with Dr Miniter that the MRI did not show soft disc protrusion, however the injury resulted in left upper limb pain and paraesthesia. In my opinion, the nature of her employment and the to work related injuries are the main cause of her symptoms and the need for surgery. The radiculopathy developed after the work related injury in 2018. The absence of soft disc protrusion does not exclude that the injury is the cause of her symptoms”.
In a report dated 13 March 2020, Professor Fearnside, consultant neurological surgeon, noted that Ms Begley had sustained an injury to her neck on 19 January 2011 when performing her duties as an Assistant in Nursing and was rolling an obese patient in order to put some TED stockings on him. He noted that Ms Begley’s colleague was not assisting as she might have and Ms Begley took most of the weight of the patient herself as she pulled him towards her.
Professor Fearnside wrote:
“She experienced immediate neck pain which became progressively more severe that day. She went off work for about two weeks, she thought. During that time she saw her general practitioner who referred her to osteopathic treatment and this provided some benefit, reducing the episodes of sharp pain in her neck. She also required fairly regular Panadeine Forte for pain relief.
She returned to work on 9/2/11 but experienced ongoing neck pain and stiffness. Following the incident on 19/1 /11, within days, she developed left brachia! radicular pain with referred pain across the shoulder girdle down the left arm to the hand and involving all fingers. Despite the neck and left arm pain she worked on normal duties.
Since 2011, the symptoms persisted of neck and left arm pain. The right arm was asymptomatic. The symptoms in her neck and left arm were largely activity related. Over the years she had required intermittent osteopathic treatment but she said, fairly regularly every month or so. She also took analgesics on a needs basis”.
Professor Fearnside expressed the following opinion:
“Kaylene Begley experienced a history of neck pain and left brachia! Radicular pain stretching back to an initial workplace injury on 19/1/11 when she was an assistant in nursing at Carrington Centennial Aged Care. Although after the injury on that date her symptoms improved, they did not resolve and over the years she continued to experience neck pain and left brachia! radicular pain….
For the neck, there was a further injury on 10/11/18, a substantial aggravation which increased her neck and left arm pain and ultimately led to the need for a cervical foraminotomy on the left at CS/6 and C6/7 on 29/11/19, some four months ago. Postoperatively, her condition has improved and continues to improve so this condition has not yet stabilised.
Causation. The two injuries, 19/1/11 and 10/11/18 likely aggravated the cervical spondylosis. The only radiology I had was in 2019 (discussed above) and there were no other radiological reports in the papers provided so it is not possible to comment as to the state of her neck in years prior to 2019.
Both the injury on 19/1/11 (Carrington Centennial Aged Care) and 10/11/18 (Campbelltown Hospital) were substantial contributing factors to her present condition. The more significant of these would seem to be that of 10/11/18 where there was a significant increase in her symptoms, leading to the surgery performed by Dr Darwish”.
In a report dated 29 January 2021, Professor Fearnside assessed 18% WPI of the cervical spine and 1% WPI for scarring. He wrote:
“Prior to the original injury on 19 January 2011, Mrs Begley was independent and had no history of any injury, disorder or condition affecting her cervical spine…There is therefore no deduction for a pre-existing disorder or injury”.
Dr Jonathan Herald, consultant orthopaedic surgeon, in a report dated 20 July 2022 wrote:
“She did however have an initial injury to her neck in 2011. She was employed as an assistant in nursing at Carrington Centennial Age Care Facility where she had worked during her normal duties and on 19 January 2011 was putting on some TED stockings onto the legs of an obese patient and in doing so Ms Begley sustained an injury to her neck. She experienced radiculopathic symptoms and was referred to an osteopath and then had some Panadeine Forte, but despite this had radiculopathic symptoms to the left upper limb which gradually resolved over a short period of time with analgesics and osteopathic treatment and over the years her symptoms disappeared. This was until her workplace injury as described above”.
Dr Herald noted that Ms Begley had to stop work in about November 2019 as a result of her injuries but had worked from about 2013 to November 2019 as a registered nurse and prior to that as an Assistant in Nursing at an aged care facility. He noted that Professor Fearnside had assessed 19% WPI in respect of the cervical spine including scarring and added that assessment to the assessment of upper left extremity.
Dr John Bentivoglio, consultant orthopaedic surgeon, in a report dated 28 January 2023, noted that there was “no specific injury” and wrote:
“She was doing a lot of heavy manual handling of patients. She also started to note an increased amount of symptoms in her neck. This lady had ongoing problems in her neck dating from 2011. She had a specific injury to her neck at work in 2011. She underwent appropriate conservative treatment including osteopathic treatment and chiropractic treatment and her symptoms never settled completely. She did have some form of investigations done of her cervical spine. There was never any court settlement for her neck symptoms. Unfortunately, her neck symptoms worsened”.
Dr Bentivoglio provided the following opinion and diagnosis:
“This lady has developed degenerative changes present in her cervical spine producing radiation of her symptoms to her left upper limb. She underwent appropriate conservative treatment and when it failed to resolve her symptoms, she had surgical decompression on the left-hand side at the C4/5 and C5/6 levels. Although she did obtain some improvement in her symptoms, she still has considerable residual symptoms. These will remain with her indefinitely. I am doubtful further surgical treatment will make any difference to her symptoms. She has permanent weakness present in multiple levels of her cervical spine as a result of her initial injury to her neck at work in 2011 and worsening of her symptoms in 2018”.
Dr Bentivoglio considered it was unlikely that Ms Begley would be able to return to any form of employment for which she is suited by means of training, education or experience. He considered that Ms Begley’s neck symptoms related to her employment. He assessed 17% WPI of the cervical spine and wrote: “I would not make any deduction for pre-existing abnormalities.” He then wrote: “I would assess all of this lady’s neck and elbow symptoms relate to the deemed date of injury on 10 November 2018.”
In a report dated 5 February 2024, Dr Bentivoglio noted:
“She advised me she had a long history of neck complaints, and this is confirmed both in the local doctor’s notes as well as her osteopath’s notes dating from prior to 2011. She had a plain x-ray taken of her cervical spine in 2009 arranged by her local doctor which indicated she did have evidence of early degenerative changes at the C5/6 level of the cervical spine. There is also evidence of degenerative changes of neurocentral facet joints from C2 to C7.
She had a further plain x-ray taken of her cervical spine in May 2011 following an incident at work (she was employed by Carrington Aged Care). This indicated there had been progressive of degenerative changes, particularly on the left hand side at the C4/5 level. The degenerative changes were also noted by a CT scan taken of her cervical spine in June 2011. Her osteopath indicates ongoing intermittent symptoms present in her neck from 2011 onwards.
There was a further incident at work on 10 November 2018 when she was attempting to move a heavy patient. An MRI scan taken of her cervical spine in February 2019 showed evidence of C3/4 facet joint arthropathy. At the C4/5 level, there is evidence of facet joint hypertrophy producing left foraminal narrowing with abutment on the C5 nerve root on the left hand side. At the C6/7 level, there is evidence of disc osteophyte bulge with bilateral foraminal compromise with it being worse on the left hand side. There is also evidence of uncovertebral arthrosis producing foraminal narrowing at that level. There is evidence of degenerative changes at multiple levels and evidence of a grade I retrolisthesis of C5 on C6. It would appear there had been natural progression of degenerative changes in the period between June 2011 up until February 2019. The incident in November 2018 obviously aggravated these pre-existing degenerative changes and probably caused some degree of acceleration of the degenerative disease process at several levels.
Her investigations done of the cervical spine both in 2009 as well as 2011 indicate she would have some degree of permanent weakness present in her cervical spine which would produce intermittent symptoms possibly indefinitely”.
Dr Bentivoglio concluded that Ms Begley had evidence of pre-existing degenerative changes present in her cervical spine and with a further incident on 10 November 2018, he believed it was appropriate to attribute one third of the impairment rating for her cervical spine injury to the incident on 10 November 2018. It appears that Dr Bentivoglio had taken a more accurate history in this consultation and reported an incident on 10 November 2018 when Ms Begley had been trying to move an obese patient. In his earlier report dated 28 January 2023, Dr Bentivoglio noted that there was no specific injury.
In a report dated 14 March 2024, Dr Bentivoglio wrote:
“The fact that she did have x-rays taken of the cervical spine in 2009 and further one taken in June 2011 indicating there had been significant deterioration would support the hypothesis that the degenerative changes present in her cervical spine have worsened without a further incident”.
Dr Bentivoglio assessed Ms Begley as having a 17% WPI rating for her neck complaint. He considered an appropriate deduction for pre-existing abnormality should be considerable and not the normal 10%. He assessed the 10 November 2018 injury as having a one-fifth of the amount of total impairment rating for her neck complaint (3% WPI) and the 19 January 2011 incident as having one-third of the total impairment rating (6% WPI).
A/Prof Paul Miniter, consultant orthopaedic surgeon, in a report dated 25 January 2024, said that he examined Ms Begley on 23 January 2024 on behalf of the second respondent. A/Prof Miniter referred to radiological investigations undertaken in the period 2019 -2021 and noted that there were multilevel degenerative features. He considered that there was no evidence of disc prolapse or nerve root compression. He wrote: “I would add also that as far as I could determine, she has not had injections into the neck prior to the surgery and thus the true nature of her presentation has not been determined before the surgical treatment by Dr Darwish”. The Appeal Panel noted that Dr Darwish did organise left C6 perineural cortisone injection and Ms Begley had a 50% improvement in her left arm pain (Dr Darwish’s report of 1 April 2019). A/Prof Miniter concluded that the work injuries in 2011 and 2018 were “minor episodes” and any aggravation of the degenerative changes would have settled over a period of six to eight weeks. He noted that “the fact that she has continued to complain of symptoms over such a long period of time simply suggests that she has osteoarthritic disease”.
The appellant submits that the Medical Assessor failed to appropriately consider the entirety of the evidence before him.
It is not incumbent on the Medical Assessor to reproduce in his reasons every item of evidence before him (noting the voluminous documents before the Medical Assessor) (Reece v Webber (2011). 192 FCR 254 at [65]).
“[A]failure to expressly mention particular material is not conclusive that it has not been taken into account. A decision-maker is not normally required in its reasons for decision to refer to ‘every item of evidence that was before it’ and an ‘omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked”: cf.SZEHN v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. See also: SZHPI v Minister for Immigration and Citizenship [2008] FCA 306 at [15] per Branson J; Australian Postal Corporation v Sellick [2008] FCA 236 at [64]. 101 ALD at 259 per Bennett J.”
The Medical Assessor, under “Documentary Evidence”, in the MAC acknowledges receipt of the documents listed in the referral of the Commission which were as follows:
(a) Application and attached documents.
(b) Replies and attached documents.
(c) Application to Admit Late Documents dated 2 February 2024, 18 March 2024, 27 March 2024 and 28 March 2024.
(d) Reports of Dr Herald and Dr Darwish dated 27 March 2024.
On page 7 of the MAC, the Medical Assessor wrote under “Reasons for Assessment”:
“In making that assessment I have taken account of the following matters:- The history I obtained from Mrs Begley specifically looking at her neck symptoms and her physical activities following the injury in 2011 and again looking at her physical symptoms and her ability to carry out activities following the second injury in 2018. My physical examination of Mrs Begley. My review of her documentation”.
The Appeal Panel was satisfied that the Medical Assessor did consider the entirety of the evidence before him and, in particular, the evidence relating to the work injury in 2011 and the work injury in 2018 and the evidence relating to any history of neck complaints before the 2011 injury. The Medical Assessor was aware of the medical imaging predating the 2011 injury as he mentioned this in the MAC and raised it with Ms Begley.
The appellant submitted that the Medical Assessor failed to appropriately identify, consider and give any weight to the evidence as to Ms Begley’s pre-existing degenerative condition prior to the subject work incidents.
The Medical Assessor was clearly aware that Ms Begley had some degree of degenerative change at her cervical spine prior to the 2011 injury, as he noted this at page 4 of the MAC. The Medical Assessor was aware of the medical imaging predating the 2011 injury as he mentioned this in the MAC and raised it with Ms Begley.
Ms Begley’s account of her pre-2011 medical history, is that she was referred to her doctor “due to stiffness of the neck” but she noted that though she sought treatment for the neck and left shoulder, those symptoms were relatively minor and resolved. She gave a history that she believed that earlier stiffness had resolved and she had no symptoms by the time of the 2011 injury. Her history is that she discussed her neck with her GP in the context of “muscular neck pain, which was secondary to stress”.
The Medical Assessor has clearly engaged with and summarised this evidence in the MAC. His decision not to apply a deduction involved the exercise of clinical judgment. It was clear that the Medical Assessor had considered Ms Begley’s cervical presentation pre-2011 and formed the opinion that it did not contribute to the impairment present in such a way that a deduction was warranted.
The appellant relied on the opinions of Dr Bentivoglio and A/Prof Miniter. The Medical Assessor considered the reports of Dr Bentivoglio and A/Prof Miniter and provided reasons for disagreeing with the opinions expressed in those reports in relation to a deduction for pre-existing condition. The Medical Assessor dealt with the evidence relied upon by the appellant in its appeal submissions in detail noting the reports of Dr Bentivoglio from 12 March 2019 through to 26 April 2023 and the further medico-legal reports of Dr Bentivoglio dated 5 February 2024 and 14 March 2024. The Medical Assessor did not agree with Dr Bentivoglio’s apportionment. A difference of opinion is not an error.
Neither Dr Herald nor Professor Fearnside applied a deduction under s 323.
The Appeal Panel is satisfied that the Medical Assessor appropriately identified, considered and gave the appropriate weight to the evidence as to Ms Begley’s pre-existing degenerative condition prior to the subject work incidents.
The appellant submitted that the Medical Assessor erred in failing to appropriately consider and apply s 323 of the 1998 Act in respect of the deduction to be applied in relation to the worker’s pre-existing cervical spine condition and in light of Ms Begley’s prior history of symptoms.
Section 323 of the 1998 Act provides:
“(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.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section”.
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29 ...The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre- existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 ...That is a matter of fact to be assessed on the evidence led in each case”.
At [38] of Cole, Schmidt said:
“38. What s323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd [2013] NSWSC 365Schmidt J referred to her decision in Cole, stating:
“88. Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion: ‘on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526Campbell J considered the legislative and authoritative history of s 323. He said at [42]:
“In the present context the critical question is the causation question which, expressed by adapting the terms of the statute is whether a portion of the 15 per cent whole person impairment Ms Ryder suffered as a result of her work injury was due to a pre-existing condition or abnormality i.e. degenerative disc disease. The argument advanced on behalf of Ms Ryder is effectively that the proportion must be capable of assessment in accordance with the WorkCover Guides for s 323(1) to be satisfied. With respect this overlooks the requirement that the section must be read as a whole and in its legislative context. ...
43. I acknowledge that the express words of s 323(1) require that some definite part, even if it is difficult or costly to assess in precise terms, of the impairment has been caused by, in this case, a pre-existing condition. But the interpretation adopted by the Court of Appeal is that the section is engaged if the pre-existing condition, or previous injury where applicable, is a concurrent necessary condition, with the work injury, of the degree of permanent impairment.”
Consistent with this line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to “previous injury ... or ... pre-existing condition or abnormality”, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury.
On 19 January 2011, Ms Begley sustained a cervical spine injury while in the course of performing her employment duties with the second respondent when she was manually handling a heavy resident. Medical imaging revealed cervical spondylosis with osteophytic encroachment on the left C4/5 outlet foramen. Ms Begley was incapacitated for work for a short period, before returning to work over the following month and then being certified fit for pre-injury duties in February 2011.
Ms Begley resigned from employment with the second respondent and commenced employment with the appellant in 2016. On 10 November 2018, while working at Campbelltown Hospital, she sustained injury to her cervical spine and left upper extremity while leaning over to roll an obese patient towards her to assist the patient to sit up. Ms Begley took approximately two to three weeks off work before consulting Dr Darwish, neurosurgeon. Dr Darwish recorded a history of injury of a work-related injury to her neck in 2011. He noted that she was treated conservatively and her symptoms were controlled. He reported that in November 2018 she had aggravation of her neck pain with radiation to the left upper limb associated with paraesthesia over the whole left upper limb in non-dermatomal distribution. Dr Darwish arranged further scans that confirmed the presence of degenerative changes. at the cervical spine. Dr Darwish recommended left C5/6 and C6/7 foraminotomy surgery, which was undertaken in November 2019.
The Medical Assessor was clearly aware that Ms Begley had some degree of degenerative change at her cervical spine prior to the 2011 injury and in his summary of injuries and diagnoses wrote: “She had some spondylitic change in the cervical spine, mostly at C5/6 and C6/7”. It must be inferred from the Medical Assessor’s decision not to apply a deduction accounting for the degenerative change shown on the March 2009 X-ray that he considered that this pre-existing condition did not contribute to the impairment present at the time of his examination of Ms Begley.
This conclusion is supported by Ms Begley’s account of her pre-2011 medical history, that is, she was referred to her doctor “due to stiffness of the neck” but she noted that though she sought treatment for the neck and left shoulder, those symptoms were relatively minor and resolved. The Appeal Panel noted that she was working at that time between 2009 and the injury in 2011 as an Assistant in Nursing which involved heavy duties including the manual handling of patients. Ms Begley was asymptomatic at the time of the first work injury in 2011.
The Appeal Panel accept that a s 323 deduction can be made for an asymptomatic condition. The question is whether on the evidence, the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment assessed.
The Appeal Panel also note that s 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, “irrespective of outcome”, contribute to the impairment flowing from any subsequent injury. The Appeal Panel noted that Dr Bentivoglio, in his most recent report of 14 March 2024, referred to X-rays of the cervical spine in 2009 and June 2011 supporting the hypothesis that the degenerative changes present in her cervical spine have worsened without a further incident.
The assessment of a deduction under s 323 must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The Appeal Panel agree with the Medical Assessor that the pre-2011 neck complaint being simply “muscular neck pain, which was secondary to stress” which by Ms Begley’s own admission, was minor and had resolved entirely prior to the 2011 injury, does not support the making of a deduction.
While the Appeal Panel accept that there was a minor degree of pre-existing degenerative change based on the reports of the scans, the changes seen in the 2009 X-ray were minor and did settle. There were no ongoing consultations about her cervical spine. As noted above, Ms Begley continued to work as an Assistant in Nursing until her injury in 2011 and in our view would have been unable to do this if the degenerative change was causing impairment.
The Appeal Panel was satisfied that there was no real contribution to the current level of impairment from the pre-existing degenerative change.
The Appeal Panel is satisfied that the Medical Assessor discussed and summarised the evidence in the MAC, and it was evident that in his professional opinion, Ms Begley’s cervical presentation pre-2011 did not contribute to the impairment present in such a way that a deduction was warranted.
The submission that the Medical Assessor erred in failing to appropriately consider and apply s 323 of the 1998 Act in respect of the deduction to be applied in relation to the worker’s pre-existing cervical spine condition and in light of Ms Begley’s prior history of symptoms is not made out.
The appellant submitted that the Medical Assessor’s reasoning is inadequate to explain no deduction under s 323 and is a demonstrable error and based on incorrect criteria.
The Court of Appeal has previously determined in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 at [531] that: “Error of law would also be involved if the reasoning disclosed in the judgment did not enable the reader to understand the essential steps in the decision-making process”.
The evidence before the Medical Assessor, including the various IME medical reports and the March 2009 X-ray, indicate that Ms Begley had some degree of pre-existing cervical change predating the 2011 injury. The Medical Assessor clearly engaged with the medical evidence before him, as demonstrated by his summary and discussion of this evidence at pages 4-8 of the MAC. At page 8 specifically, he reported that he did not agree with Dr Bentivoglio’s apportionment which included the opinion that a significant portion of her impairment was attributable to pre-existing degenerative changes from 2009-2011. The Medical Assessor also noted a lack of evidence supporting a deduction prior to 2011.
The Appeal Panel is satisfied that the Medical Assessor’s reasoning was adequate and explained why he did not make a deduction under s 323 for pre-existing cervical change predating the 2011 injury. This ground of appeal is not made out.
Notation (d) – any s 323 deduction to be applied equally between the appellant and the second respondent
The appellant submits that in accordance with Notation (d) that any deduction pursuant to s 323 made by the Medical Assessor is to apply equally to the appellant and the second respondent.
In the COD dated 22 May 2024, the following notations were made:
“a. The claim in respect of weekly compensation is stood over pending the medical assessment process.
b. The Medical Assessor is requested to provide a non-binding opinion as to the apportionment of permanent impairment of the cervical spine between the dates of injury 19/1/11 and 10/11/18.
c. The first and second respondents agree that any apportionment provided by the Medical Assessor in respect Notation ‘b’ is to apply to the s60 expenses paid by the respondent (referred to in Order 4) up to $12,333.95.
d. The first and second respondents agree that any deduction pursuant to s323 made by the Medical Assessor is to apply equally to the first and second respondent.”
The Appeal Panel does not consider that this notation is binding on the Medical Assessor. The matter was referred to the Medical Assessor as follows:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 10 November 2018
Body part/s referred: Cervical spine, Left Upper extremity (elbow), scarring
(TEMSKI)
Method of assessment: Whole person impairment
Date of Injury: 19 January 2011
Body part/s referred: Cervical spine, Scarring (TEMSKI)
Method of assessment: Whole person impairment”
Although the notations were also included in the Amended Referral for Assessment of Permanent Impairment and General Medical Dispute to Medical Assessor dated 28 May 2024, the Appeal Panel regard the application of Notation(d) as a matter to be dealt with by the parties. It was also not clear from the Orders and Notations whether Notation(d) applied to any deduction made in respect of a pre-existing condition that pre-dated the work injuries or whether it applied to the actual work injuries in 2011 and 2018. This ground of appeal is not made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 June 2024 should be confirmed.
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