The State of New South Wales (Hunter New England Local Health District) (Armidale Hospital) v Lucas
[2025] NSWPICMP 444
•24 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | The State of New South Wales (Hunter New England Local Health District) (Armidale Hospital) v Lucas [2025] NSWPICMP 444 |
| APPELLANT: | The State of New South Wales - Hunter New England Local Health District (Armidale Hospital) |
| RESPONDENT: | Diana Aveley Lucas |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 24 June 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of cauda equina syndrome; where loss of efficient use of each leg at or above the knee was referred for assessment; whether Medical Assessor erred in failing to take account of restriction in motion and sensory symptoms; Held – error in failing to take account of both; worker examined and assessed by Appeal Panel; MAC revoked and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Honeyman dated 25 June 2024.
The respondent worker, Ms Lucas, worked for many years as a nurse at Armidale Hospital. On 19 September 2000 she experienced the onset of back pain and left leg pain in the course of her duties. In January 2021 she came to L5/S1 laminectomy and discectomy. In May 2021 she came to revision surgery at the same level.
She commenced these proceedings as a threshold dispute, seeking an assessment of permanent impairment compensation in order to qualify for continuing medical and related expenses in accordance with s 59A of the Workers Compensation Act 1987.
The President referred her to Medical Assessor Honeyman for assessment of whole person impairment (WPI) with respect to ‘Lumbar spine (cauda equina syndrome)’ as a result of injury on 19 September 2000.
In these proceedings, the applicant sought assessment of WPI as a result of injury on three dates, namely a back injury on 7 November 1994 when lifting a patient into a bed, an aggravation on 30 October 1997 when she tripped in a car park, and a further aggravation on 19 September 2000 while assisting an elderly patient. Though not entirely clear from the pleadings, the selection of the last of those dates in the referral seems to imply injury consisting in the aggravation of a disease, whose date is deemed by operation of s 16 of the Workers Compensation Act 1987 – the deemed date of injury being 19 September 2000. Nothing turns on it.
Medical Assessor Honeyman examined her on 1 May 2024, and issued the Medical Assessment Certificate which is the subject of appeal. He assessed a 39% WPI as a result of injury on 19 September 2020, from which he deducted 1/10th for a pre-existing condition, to arrive at 35% WPI.
In doing so, at [10b] he assessed:
(a) 10% WPI for a DRE category III impairment (lumbar spine);
(b) a modifier of 3% WPI for L5/S1 laminectomy and discectomy in January 2001 with residual symptoms and radiculopathy;
(c) a further modifier of 2% WPI for second surgery at the same level in May 2001, and
(d) 2% WPI for the effects on activities of daily living (ADLs).
Using the combination tables in American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA5), he combined these amounts to yield 17% WPI: reasons at [10c].
He diagnosed cauda equina syndrome at [10b], on the basis of bowel and bladder dysfunction, saddle anaesthesia and loss of motor and sensory function in the lower limbs, having regard to:
(a) the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) at [4.22], and
(b) the definition of cauda equina syndrome at page 383 of AMA5, box 15.1.
In respect of bladder dysfunction, he assessed a class 1 impairment - AMA5 page 397, Table 15-6(d) - yielding 9% WPI.
In respect of anorectal impairment, he assessed a class 1 impairment - AMA5 page 397, Table 15-6(e), selecting 19% WPI which was the maximum in the available range.
Using the combination tables, he combined 19% WPI with 17% and 9% to yield 39% WPI – at [10b] of his reasons.
The appellant says that the Medical Assessor erred by:
(a) failing to address and apply the criteria for cauda equina syndrome in the Guidelines at 4.22 and 4.23;
(b) failing to provide sufficient reasons for his assessment of cauda equina syndrome;
(c) incorrectly combining 10% for DRE class III impairment with 2% for ADLs, 3% for first surgery and 2% for second surgery to yield 17%, when ‘the MA should have assessed 16% WPI for the lumbar spine, comprised of 10% WPI for DRE III plus 2% WPI for impact on ADLs, combined with 3% WPI for persisting radiculopathy and 2% WPI for second surgery’ – submissions at [59];
(d) failing to provide reasons for assessing 19% WPI in respect of anorectal impairment, being the maximum permissible impairment within the range 1% to 19% in class 1 of AMA5 Table 15.6e, and
(e) failing to exclude from his assessment that part of the anorectal impairment which resulted, not from injury, but from surgery in December 2020 to address haemorrhoidal prolapse, in accordance with the opinion of Dr Kinny, who reported that only 6% WPI (anorectal impairment) resulted from injury.
No error is alleged in respect of the assessment of 10% WPI for DRE category III, 3% WPI for the first surgery, 3% WPI for the second surgery and 2% WPI for ADLs, or in respect of the deduction of 1/10th for a pre-existing condition.
The appellant submits that the Medical Assessment Certificate should be revoked and replaced with an assessment of 16% WPI in respect of the lumbar spine, and 0% WPI in respect of cauda equina syndrome. There being no challenge to the deduction of 1/10th made by the Medical Assessor, we read that submission as requesting an assessment of 14% WPI (14% lumbar spine, 0% cauda equina syndrome).
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.
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 necessary for the worker to undergo a further medical examination because, having regard to the error which it discerned, it needed to consider whether the criteria for cauda equina syndrome were met.
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.
Further medical examination
Medical Assessor Dixon and Medical Assessor Gibson of the Appeal Panel conducted an examination of the respondent. Their findings are listed in their report below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
At [16] of its submissions, the appellant indicates that it does not challenge the referral of cauda equina syndrome to the Medical Assessor, but says ‘the Medical Assessor has erred in his assessment of permanent impairment for cauda equina syndrome’. As the referral for assessment was authorised by consent orders of the Commission dated 19 April 2024, we interpret this submission to mean that the appellant accepts that the Medical Assessor had power to assess cauda equina syndrome but, for the reasons summarised below, erred in his assessment.
In summary, the appellant submits as follows.
(a) Ground 1: criteria for cauda equina syndrome: The Medical Assessor failed to apply the Guidelines at [4.22] for the assessment of cauda equina syndrome, because:
(i)he did not refer to any objective evidence of bowel and bladder dysfunction, saddle anaesthesia or loss of motor and sensory function in the lower limbs, did not record the presence of bilateral neurological signs in the sacral region, and did not refer to a radiological study which demonstrates a lesion in the spinal canal;
(ii)though it ‘is open for the Medical Assessor to accept the presence of cauda equina syndrome without imaging’ (submissions at [34]), ‘the Medical Assessor erred in justifying his assessment of cauda equina syndrome in the absence of radiological evidence supporting same’ - at [33], and
(iii)the Medical Assessor has made a demonstrable error in failing to address the relevant criteria for a rateable assessment of cauda equina syndrome.
(b) Ground 2 – adequacy of reasons: The Medical Assessor failed provide adequate reasons for his assessment of cauda equina syndrome ‘for a reader to understand the decision-making process applied by the Medical Assessor’, for the following reasons:
(i)he did not refer to objective evidence supporting a diagnosis of cauda equina syndrome, including cystometrograms;
(ii)he did not record examination findings consistent with saddle anaesthesia or sensory impairment of the lower limbs on examination;
(iii)there is no objective evidence, radiology or medical reports to confirm the presence of saddle anaesthesia;
(iv)the Medical Assessor did not refer to any medical reports or imaging to confirm the presence of saddle anaesthesia and loss of motor and sensory function in the lower limbs;
(v)the Medical Assessor did not refer to a radiological study which demonstrates a lesion in the spinal canal causing mass effect, but rather justified his diagnosis by referring to paragraph [4.22] to the effect that ‘cauda equina syndrome may occasionally complicate lumbar spine surgery when a mass lesion will not be present in the spinal canal on radiological examination’, and
(vi)the Medical Assessor erred in taking into account par [1.37], which cautions against ordering further imaging to aid assessment, in circumstances where that injunction was irrelevant because the worker did not otherwise satisfy the criteria in [4.22] and [4.23].
(c) Ground 3 – lumbar spine - error of calculation
(i)the Medical Assessor erred in combining 2% for ADLs with 10% for DRE category III impairment, 3% for the first surgery and 3% for the second surgery, to yield 17%. Chapter 4 of the Guidelines required him to add the 2% for ADLs to 10% for the DRE category III impairment, yielding 12%, which should then have been ‘combined with 3% WPI for persisting radiculopathy and 2% WPI for second surgery’ – submissions at [59] - yielding 16% WPI.
(d)Ground 4 – anorectal impairment:
(i)though there was sufficient evidence to support an assessment of a class 1 impairment under AMA5 Table 5.6e, the Medical Assessor failed to provide adequate reasons for assessing the highest WPI allowable within the allowance range for class 1 (19%);
(ii)he omitted to comment either on the opinion of Dr Frommer, or the assessment of Dr Kinny who attributed 2/3rds of anorectal impairment to haemorrhoidal surgery and only 1/3rd (6% WPI) to the effect of spinal injury, and
(iii)he failed to distinguish anorectal impairment resulting from spinal injury from such impairment resulting from other causes, ie haemorrhoidal surgery.
In reply, the respondent submits as follows:
(a) Ground 1:
(i)the fact that evidence was not referred to does not mean it was overlooked and nor is it required that each piece of evidence be mentioned: WAEE v Minister for Immigration and Citizenship (2003) 75 ALD 630 at [46];
(ii)the Medical Assessor recorded the presence of neurological signs in the lower limbs – namely, reduced and absent reflexes in both ankles and weakness in the left foot. So much was conceded by the appellant. These are objective signs;
(iii)he also recorded neurological signs relating to the sacral region, namely the dysfunctions in bladder and bowel: ‘There is no such thing as “bilateral neurological sacral signs”. The insurer does not dispute the presence of bladder and bowel symptoms: [43] of its submissions, and
(iv)the appellant does not state what criteria in [4.23] were not addressed by the Medical Assessor.
(b) Ground 2:
(i)the findings on examination provide sufficient reason for a finding of saddle anaesthesia;
(ii)such a finding is consistent with a number of medical reports (references given), and
(iii)the appellant’s submission that the Medical Assessor should not have applied the Guidelines at [1.37] has no merit.
(c) Ground 3 – whether 2% for ADLs should be added:
(i)whether the allowance of 2% for ADLs is added or combined, the result is still 17% WPI.
(d) Ground 4 – anorectal impairment:
(i)the Medical Assessor gave the following reasons for selecting a 19% WPI within the available range:
“She has reflex regurgitation but limited control. For the same reasons, this impairment requires much ongoing planning to avoid embarrassment”;
(ii)the fact that he has selected the highest available impairment, or that another assessor has selected a different impairment, does not demonstrate error, and
(iii)the allegation that the Medical Assessor has failed to distinguish impairment resulting from haemorrhoid surgery is unexplained and should be rejected.
FINDINGS AND REASONS
Ground 1: Diagnosis - whether incorrect criteria applied
The Guidelines relevantly provide as follows – emphasis added:
“4.22 The cauda equina syndrome is defined in Box 15.1 in Chapter 15 of AMA5 (p 383) as ‘manifested by bowel or bladder dysfunction, saddle anaesthesia and variable loss of motor and sensory function in the lower limbs’. For a cauda equina syndrome to be present there must be bilateral neurological signs in the lower limbs and sacral region. Additionally, there must be a radiological study which demonstrates a lesion in the spinal canal, causing a mass effect on the cauda equina with compression of multiple nerve roots. The mass effect would be expected to be large and significant. A lumbar MRI scan is the diagnostic investigation of choice for this condition. A cauda equina syndrome may occasionally complicate lumbar spine surgery when a mass lesion will not be present in the spinal canal on radiological examination.
4.23 The cauda equina syndrome and neurogenic bladder disorder are to be assessed by the method prescribed in the spine chapter of AMA5 Section 15.7 (pp 395–98). For an assessment of neurological impairment of bowel or bladder, there must be objective evidence of spinal cord or cauda equina injury.”
At [7] of his reasons, the Medical Assessor diagnosed cauda equina syndrome, noting that the definition at page 383 of AMA5 was satisfied.
As noted in the Guidelines at [4.22], that definition required that the condition be ‘manifested by bowel or bladder dysfunction, saddle anaesthesia and variable loss of motor and sensory function in the lower limbs’.
At [4], he took a history of L5/S1 surgery in January and May of 2001. He continued:
“since that time, she has continued with sciatic pain particularly into her left leg. She subsequently developed faecal and urinary incontinence, and this has been well investigated and assessed to differentiate what related to constipation from medication, [what was] prolapse related, or [what was] of neurologic [sic, neurological] in origin consistent with cauda equina.”
He added:
“She also manages her incontinence by diet, care to use suppositories, great care with double nappies, frequent changes, and with attention to timing of going to the toilet at specific points in planning her days. … Her current symptoms are that the incontinence is worse with coughing and sneezing.”
We interpret these passages as a finding of both bowel and bladder incontinence as a result of injury.
He continued:
“She complains now of numbness in the left leg going down to the foot.”
That amounts to a finding of loss of sensory function in the left leg and foot. In the absence of any suggestion that it was constant, we infer that it was variable.
On examination, he recorded at [5] that reflexes were ‘much reduced in the right ankle and absent in the left’. That amounts to a finding of loss of motor function in both ankles.
He also found ‘weakness in the left foot’. That amounts to a finding of loss of motor function in the left lower limb.
He dealt with [4.22] of the Guidelines at [10b] of his reasons:
“For the cauda equina there are criteria set out in 4.22 p26 guides. She has bowel and bladder dysfunction, saddle anaesthesia and loss of motor and sensory function in lower limbs.”
The above passages demonstrate that he was satisfied of the presence of bowel and bladder dysfunction, saddle anaesthesia and loss of motor and sensory function in the lower limbs, as required by AMA5 and [4.22] of the Guidelines.
He gave the reasons above for being satisfied of the dysfunction, and loss of motor and sensory functioning. However, we are unable to find any explanation of how he came to be satisfied of the presence of saddle anaesthesia.
The ‘saddle’ is that part of the anatomy which would touch a saddle, were the person sitting astride a saddle. It can be assessed in a number of ways – for instance, by touching the anatomical saddle and asking whether a sensation is felt, or asking the patient whether there is any sensitivity to touch in that region, without the need for physical touching. Such an approach would be particularly appropriate where, as here, the examinee is a registered nurse of many years experience, and able to converse with doctors about effects on identified parts of the anatomy. Though the Medical Assessor made an express finding of saddle anaesthesia, he unfortunately did not say how he arrived at it. As a result, we do not know how the finding of saddle anaesthesia came to be made, or whether it was affected by error.
The omission to explain how the finding was made itself amounts to error, necessitating that the assessment be set aside, and that the Panel conduct its own examination.
It is unnecessary to consider the remaining submissions in support of Ground 1 and 2.
Ground 3: Whether 2% for ADLs should have been added or combined
The appellant submits (at [59] of its submissions) that ‘the MA should have assessed 16% WPI for the lumbar spine, comprised of 10% WPI for DRE III plus 2% WPI for impact on ADLs, combined with 3% WPI for persisting radiculopathy and 2% WPI for second surgery.’
There is no controversy between the parties that 2% for ADLs should have been added to the bottom of the range, with the result that the assessment of 10% WPI for DRE category III is increased to 12% WPI. That is what the Medical Assessor did.
Table 4.2 of the Guidelines sets out modifiers for the DRE categories. The two selected by Medical Assessor Honeyman were 3% for spinal surgery with residual symptoms and radiculopathy, and 2% for the second operation. There is no challenge to the modifiers selected by him.
Using the Combined values chart at AMA5 page 604, the combination of 12%, 3% and 2% yields 17% as assessed, not 16% as submitted. We have not considered any other method of combination or addition, because no other method was submitted by the appellant. There is no error of the kind alleged. This ground fails.
Ground 4: assessment of anorectal impairment
Table 15-6 of AMA5 prescribes classes of impairment for rating anorectal dysfunction, in ascending order of dysfunction. Class 1 ranges from 1% to 19% WPI. The criteria are that the “individual has reflex regulation but only limited voluntary control’.
It is not alleged that the worker did not meet these criteria. It is alleged that insufficient reasons were given for selecting the top of the available range.
The Medical Assessor explained at [10b]:
“By way of example, example 15-18 p 398 [AMA5] is followed, that both bladder impairment and bowel impairment are both [sic] rated.
For bladder see “d” in T15-6, p 397. She has some degree of control but intermittent incontinence. This rates class 1, with 9% WPI.
For the anorectal impairment, see “e” p 397. She has reflex regulation but limited control. For the same reasons, this impairment requires much ongoing planning to avoid embarrassment. She is class 1, with 19% WIP.”
We interpret ‘the same reasons’ to mean the reasons expressed in the preceding paragraph, namely, ‘She wears double nappies to cope with the poor nature of control. This impairment causes major disruptions to her life.’ This is consistent with the ongoing symptoms recorded at [4] of his reasons, reproduced above.
In our view, those reasons are sufficient to explain why the Medical Assessor selected the highest available impairment within the range. In any event the selection of a particular figure within the available range is an evaluative judgment which the Medical Assessor is called on to make in the light of the evidence before him and in the exercise of his clinical judgment. The evidence before him supported his selection of 19%, and his selection was well explained.
We can discern no error.
The appellant also submitted that the Medical Assessor should have explained why he differed from the following opinion expressed by Dr Kinny in his report of 20 June 2022:
“I note that the claimant’s anorectal impairment in relation to incontinence arose after her haemorrhoid prolapse surgery of December 2020, and therefore the whole amount of her faecal incontinence should not be slated home to her spinal injury. …. The Class 1 impairment would grant the claimant an impairment of between 1% and 19% whole person impairment. As a large part of this must be due to the claimant’s haemorrhoidal surgery, and not her spinal injury, I believe that it would be reasonable to ascribe one-third of the impairment to the claimant’s spinal condition and two-thirds to her haemorrhoidal condition.”
This implies that Dr Kinny, like the Medical Assessor, assessed a 19% WPI in respect of anorectal impairment, but attributed one-third to injury (6.33%, which he rounded to 6%), and the remaining two-thirds to haemorrhoidal surgery alone.
The Medical Assessor attributed the whole of the assessed 19% WPI to the effects of injury. He made no reference to the assessment of Dr Kinny in his reasons, though he discussed the assessments of Prof Ghabrial, Dr Machart and Professor Courtenay at [10c]. Dr Kinny’s view that anorectal impairment resulted, at least in part, from surgery in December 2020 and not from injury was a matter relevant to the assessment, because it was necessary for the Medical Assessor to confine his assessment to impairment resulting from injury. That required him to exclude impairment which resulted not from injury, but from other causes.
There is no evidence that the Medical Assessor took into account Dr Kinny’s attribution of causation to surgery in December 2020 alone. We cannot be satisfied that the Medical Assessor did so. As it was relevant to his assessment, the failure to take into account a relevant consideration amounts to demonstrable error. We consider it in our assessment of cauda equina syndrome below.
Referral for examination – report of Medical Assessor Dixon and Medical Assessor Gibson
Having identified the error referred to above with respect to the diagnosis of cauda equina syndrome, the Panel referred the worker for examination to two of its members, Medical Assessor Dixon and Medical Assessor Gibson. Their report follows.
“Accident Details
This 74 former hospital nurse was originally injured at work when she was helping re-position a patient in bed, attempting to lift the patient into a higher sitting position while working as an RN at Armidale Hospital in the New England Area Health Service, where she had been since 1993, mainly in the medical and paediatric wards. She had immediate back pain and was assessed in the Casualty Department of Armidale Hospital and was given anti-inflammatories and took three days off work.
On return to work she noted pain radiating to the left hip area which was constant and then she aggravated her back significantly when she tripped in the car park at Tamworth Base Hospital on 30 October 1997 and she was attending a continued Professional Development training course. She sprained her ankle in that injury and had a week off work. She wrenched her back in the fall and suffered an exacerbation of her back pain.
Her x-rays excluded an ankle fracture and she had physiotherapy at Armidale Hospital. On returning to work, however, there was increased pain in her lower back with radiation to the left hip and she was referred for physiotherapy. A CT was arranged of her lumbar spine by her GP on 20 November 1997 which showed a disc bulge at L5/S1 and no abnormality of the left hip.
Her back pain problem was further aggravated by further injury on 19 September 2000 (the deemed date of injury) when she was working on the Medical Ward assisting a frail elderly woman on a walking frame from an awkward shower recess. She rotated her back severely and had further back pain. She took time off work and returned to restricted nursing duties. She worked for a while casually but this meant working on a sloping ramp and that aggravated her back pain and she developed paraesthesia in her left leg.
She had a further CT of her lumbar spine on 8 November 2000 which showed a narrowed lumbosacral disc with a left paracentral protrusion. She had further follow up with her GP, Dr Barnes, and she has referred her to Dr John Sheehy, a neurosurgeon at St Vincent’s Hospital and she had L5/S1 laminectomy and microdiscectomy on 8 January 2001.
She vomited repeatedly in the post-operative period and this caused repetitive back strains and she incurred further left sided sciatica with numbness and paraesthesia in her left leg towards her foot with some weakness of the leg, which did not improve with physiotherapy.
She had a further CT of the lumbar spine on 29 April 2001 that showed persisting left paracentral disc protrusion with lateral release soft tissue density, which was thought to represent disc material or scar tissue with some effacement of the S1 nerve root.
MRI of the lumbar spine on 14 May 2001 showed a recurrent left paracentral disc protrusion at L5/S1 with evidence of compression of the exiting left S1 nerve root.
Revision lumbosacral laminectomy and residual discectomy was performed at L5/S1 on 16 May 2001 and her surgeon, Dr John Sheehy, told her there were three separate disc fragments that had been removed at that operation.
Recurrent post-operative vomiting and retching was managed with Zofran as an anti-emetic and some Valium as a muscle relaxant and she was catheterised in the early post-operative period. She was in hospital for one week at St Vincent's and then two days convalescing at Armidale Hospital.
When she returned to work, she worked part-time in Infection Control but had ongoing low back pain with some stress incontinence and was prone to constipation due to analgesia and had paraesthesia with sensory loss in the left S1 nerve root and had some perineal sensory changes, mainly on the left and some on the right.
She suffered a further aggravation of her back problem on 30 August 2005 when a sash window fell heavily when she was working in Community Health. She had both arms above her head and felt not only pain in both wrists, but sudden increase in low back pain.
She developed post-traumatic stress disorder and had review by Dr Selwyn Smith, a psychiatrist. She last worked in December 2020, having worked as a Diabetes Educator in Coffs Harbour District from 2008 for three years and covered a large area which involved extensive car travel which not only exacerbated her back pain but also the numbness in the left leg.
She subsequently obtained a position as an ophthalmic practice nurse and worked in a casual part-time role in a Day Surgery Centre which subsequently went into full time work but with deteriorating back pain and left sciatica after three years of working in the day hospital at Coffs Harbour, she became a peri-operative RN. Her last shift was in December 2020 when her back pain and left sided sciatic symptoms deteriorated further.
She had a problem with faecal incontinence and haemorrhoids and in 2008 had an anopexy procedure performed of her lower bowel and had haemorrhoid banding in 2015 with injection in 2020. Dr Andrew Sutherland did haemorrhoid ligation and she had a rectal prolapse, which was put back into place at the same time as he did the haemorrhoid ligation.
For her stress incontinence she had pelvic sling procedure performed in 2020 with much improvement but she still has some residual stress incontinence on coughing and sneezing.
On consulting with her today on Microsoft Teams she reports that she takes a suppository each night for constipation and in the morning has a normal bowel opening, followed by flatus while she has a shower and with some soiling of the towels but that she has been able to control this by doing her own Pilates style exercises to provide self-management support of the pelvic muscles. For her stress incontinence she wears a peri pad and goes to the toilet before she goes out and avoids taking excessive fluids.
Treatment
Her current treatment includes the suppository at night and a high fibre diet and Calcium for osteoporosis and a vaginal cream as well as treatment for raised blood pressure.
She does not do physiotherapy but does her own exercises and will see her local doctor regularly. She will see her specialists as referred.
Work History
She is now retired from work since 2020 and was then aged 70 and is unlikely to return to nursing.
Diagnoses
Her diagnoses are:
1. Back strain injury with recurrent L5/S1 disc protrusion requiring revision laminectomy and discectomy;
2. Left S1 radiculopathy with sensory changes extending down to her left foot;
3. Partial cauda equina lesion with sensory changes in the left buttock and saddle area and in part of the right buttock;
4. Lower GIT dysfunction with constipation requiring suppositories and some diarrhoea requiring a high fibre diet; and
5. Urinary dysfunction with stress incontinence which has been improved since the sling operation in 2020.
There is both bowel and bladder dysfunction for the reasons given above.
We are satisfied there is saddle anaesthesia because we asked the worker, who is a registered nurse of many years experience, whether there was any sensation in the left perineal region and the vulva. She said she had sensory change in both, but only partial loss in the perineum on the right.
There is variable loss of motor and sensory function in the lower limbs because, after the L5/S1 discectomy in Jan 2001, she had recurrent sciatic symptoms on the left in an S1 distribution with sciatic pain in the left leg, requiring revision L5/S1 discectomy in May 2001.
There are ‘bilateral neurological signs in the lower limbs and sacral region’ because, on questioning, the worker said there was numbness in the perineum and buttocks, mainly on the left, and in the legs there was intermittent right sciatic pain extending into the calf, and sciatic pain on the left extending to the left leg and foot.’
Having regard to their specialist expertise, the Panel accepts the findings on examination of Medical Assessor Dixon and Medical Assessor Gibson, and their conclusions, which in our view satisfy the requirements of [4.22]. Accordingly, we are satisfied that cauda equina syndrome is present.
We make the following additional observations having regard to the matters raised on appeal:
(a) The Guidelines at [4.22] require radiology – preferably a lumbar MRI scan - demonstrating a lesion in the spinal canal, causing a large and significant mass effect on the cauda equina with compression of multiple nerve roots, unless the syndrome is a complication of lumbar spine surgery. In our view, in this case cauda equina was a complication of lumbar surgery which occurred on
8 January 2001 (L5/S1 laminectomy) and revision laminectomy on 16 May 2001, following MRI of 14 May 2001 which showed recurrent left paracentral disc protrusion at L5/S1 with evidence of evidence of compression of the exiting left S1 nerve root, which affects the perineum among other things. Revision surgery was necessary to remove further disc material which had not been successfully removed on original discectomy. By its nature, this revision procedure required surgical movement of the S1 nerve root. Despite removal of the disc material, sciatic symptoms have persisted. Those symptoms, as indicated, are necessary for a diagnosis of cauda equina lesion. In our view, there is no persuasive competing cause for the cauda equina syndrome. In the circumstances, we are satisfied that the cauda equina syndrome was a complication of lumbar spine surgery, and the Guidelines do not require radiological demonstration of a mass effect on the cauda equina.(b) [4.23] requires objective evidence of spinal cord or cauda equina injury in order to assess neurological impairment of bowel or bladder. Objective evidence of cauda equina syndrome in this case is provided by damage to the S1 nerve root, which is demonstrated by the large, recurrent paracentral L5/S1 disc protrusion, which was demonstrated by MRI and required revision surgery.
(c) Box 15-1, AMA5, page 383, provides that cystometrograms are ‘useful in individuals where a cauda equina syndrome is possible but not certain’. Neither AMA5 nor the Guidelines requires a cystometrogram as a precondition to the diagnosis of cauda equina syndrome. In our view, the signs and symptoms to which we have referred render a cystometrogram unnecessary in this case.
(d) We disagree with Dr Kinny’s view that bowel impairment results from haemorrhoidal surgery in December 2020. Haemorrhoidectomy does not cause incontinence, as the haemorrhoids are excised superficially at the myocutaneous junction, and the anal sphincter is not disturbed. The mere fact that bowel symptoms emerge some time after such surgery does not necessarily establish a causal link between the two. Still less does it establish that the symptoms do not result from spinal surgery. The kind of spinal surgery that occurred in January and May of 2000 is much more likely to have caused the incontinence involving as it did the disturbance of the exiting S1 nerve root. We are not satisfied that there is causal link between haemorrhoidectomy and incontinence, let alone an exclusive relationship of causation. We are comfortably satisfied that both bowel and bladder impairment results from lumbar spine surgery in January and May of 2000.
(e) Our view is consistent with the following expressed by gastroenterologist
Dr Frommer, in his report of 4 July 2022, on which the appellant relied in its submissions,‘Anal pain, numbness, paresthesia and incontinence are suggestive of a neurological damage to the sacral nerves 1, 2 and 3 which innervate the external anal sphincter and the nearby skin. The cause for this is uncertain but the posterior bulging of the L5/S1 disc and the 2 episodes of microdiscectomy and laminectomy at L5/S1 in 2001 to treat this may have damaged the sacral nerves.’
(f) We differ only to the extent that we consider it likely that the two episodes of microdiscectomy and laminectomy in 2001 damaged the sacral nerves, particularly S1.
Assessment: bladder impairment
In supplementary written submissions invited by the Panel, the parties agreed that we should adopt Medical Assessor Honeyman’s assessment of 9% WPI for bladder dysfunction. We do so.
Assessment: anorectal impairment
The appellant employer requests the Panel to make its own assessment of anorectal impairment and substitute it for the Medical Assessor’s assessment of 19% WPI.
The respondent worker submits the Panel should not disturb Medical Assessor Honeyman’s assessment, because in its initial submissions in support of the appeal the employer conceded that it was open to the Medical Assessor to assess a class 1 impairment, that a class 1 impairment assessment was justified by her symptoms, and, in the circumstances, the request for re-assessment amounts to a request for merits review.
We have considered in these reasons the allegations of error made with respect to the assessment of a 19% WPI (anorectal impairment). All those allegations have been dismissed, with the exception that the Medical Assessor failed to take into account Dr Kinny’s opinion that one-third of anorectal impairment resulted from haemorrhoidal surgery and not from injury.
For the reasons we have given, we consider that no part of anorectal impairment results from such surgery and not from injury. There being no other successful challenge to the Medical Assessor’s assessment of anorectal impairment, there is no justification for disturbing the existing assessment of 19% WPI. We include that assessment in our calculations below.
Assessment: lumbar spine
In respect of Medical Assessor Honeyman’s assessment of the lumbar spine, no error of the kind alleged has been demonstrated. We therefore adopt his assessment of 17% and combine it with the Medical Assessor’s assessments of 19% for anorectal dysfunction and 9% WPI for bladder dysfunction. This yields 39% WPI, as assessed by the Medical Assessor.
As the deduction made by Medical Assessor Honeyman is unchallenged on appeal, we deduct one-tenth, yielding 35% WPI.
That assessment is identical to the assessment in the Medical Assessment Certificate of
25 January 2024. Its revocation and replacement by an identical certificate would lack utility, notwithstanding the fact that our assessment is based on further examination findings and our reasons have differed slightly.For those reasons, the Medical Assessment Certificate of 25 January 2024 is confirmed.
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