Medicine and the law: ongoing cognitive dissonance

Medicine and the law: ongoing cognitive dissonance

By Dr Roger Pillemer

One of the major problems for approved medical specialists doing medical assessment certificates and, to a lesser extent, specialists doing independent medical examinations, is how the doctor makes a deduction for a pre-existing condition. Section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) refers to ‘Deduction for previous injury or pre-existing condition or abnormality’.

From a medical point of view the issues may seem straightforward, however these determinations must be considered under the law as it stands because the law takes precedence.

Before discussing the difficulties that can arise, let me first provide an example and explain what we mean by ‘pathological fractures’. These are fractures that occur in abnormal bone and can occur spontaneously or following minor trauma. The most common cause of pathological fractures are bone tumours, either benign or malignant.

At a presentation given to a group of specialists by a senior arbitrator when trying to reconcile differences between the two groups regarding s323 deductions, the following extreme example was suggested, after much heated discussion.

A lady doing office work gets up and walks along a carpeted surface to get a glass of water. Halfway there she collapses in agony and is rushed to hospital where she is found to have a pathological fracture of her femur (thigh bone).

To address the issue of an s323 deduction it was first necessary to decide whether the injury should be regarded as a worker’s compensation injury. From a medical point of view the answer was unanimous and emphatic: this was not a work-related injury. The arbitrator however insisted that this was a work-related injury.

As suggested, this is an extreme case. What about all those cases that are not as clear-cut? For example, the typist who has typed for five hours a day, five days a week for five years, and develops carpal tunnel syndrome? Or the person with significant osteoporosis who is struck on the arm by a falling cupboard and sustains a fracture of the humerus (arm bone)? Or the man who has done heavy labouring work for 20 years and develops osteoarthritis of his knees without any history of injury?

How does one go about making an s323 deduction in these cases? We do not have the answer to these questions. The best thing the doctor making these decisions can do is to treat each case on an individual basis and then give as many explanatory reasons as possible to justify the decision that has been made.

To do this the doctor needs to consider several issues. These include the nature and conditions of the patient’s work, and the length of time they had been doing that work. Most importantly, the extent/force of the injury at the time; the extent of any pre-existing condition or abnormality; the immediate post-injury status (did the patient continue working or need to be taken to hospital by ambulance) and so on.

Currently then, and in the foreseeable future, s323 deductions remain one of the most difficult issues that doctors must deal with when assessing impairment. Noting all the above, it is understandable that most appeals in the Workers Compensation Commission in relation to the spinal and musculoskeletal systems are because of s323 deductions.

It would be wonderful if there was greater consensus regarding the relevant legal and medical issues in this regard!

Dr Roger Pillemer OAM is a highly experienced Consultant Orthopaedic Surgeon with extensive experience in general orthopaedics and is an expert provider of medicolegal assessments relating to matters of workers compensation and permanent impairment.