Akdeniz v Greenheart Solar Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Akdeniz v Greenheart Solar Pty Ltd [2023] NSWPICMP 153
APPELLANT:	Atilla Akdeniz
RESPONDENT:	Greenheart Solar Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Alan Home
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	24 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in his assessment of both the cervical spine and the lumbar spine, in particular that he failed to properly consider the evidence regarding radiculopathy; Appeal Panel found no evidence of radiculopathy consistent with the MA’s assessment; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 February 2023 Atilla Akdeniz (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27January 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons that will become apparent in due course.

EVIDENCE

Documentary evidence

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in his assessment of both the cervical spine and the lumbar spine, in particular, he failed to properly consider the evidence regarding radiculopathy
In reply, Greenheart Solar Pty Ltd (the respondent) submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of the cervical spine and the lumbar spine resulting from an injury on 15 December 2019.
The Medical Assessor set out the history he obtained as follows:
“Mr Akdeniz stated that on 15.12.19 he had installed solar panelling on a roof of a single storey residential dwelling. He had reportedly been utilising a harness. After removal of the harness, he was about to step down onto a ladder. He stated that there was ‘slime’ on a roof tile which caused him to slip and fall onto a driveway through a distance of approximately 5-6m. He indicated that he landed onto his right- hand side. He reportedly struck his head but did not lose consciousness.
An ambulance was called and he was transported to the Emergency Department of Liverpool Hospital where he was an inpatient for approximately two days.
Treatment included investigation and appropriate analgesia. Nil fractures were reportedly identified upon radiological investigation.
He indicated that he had pain to multiple regions inclusive of the neck, right upper extremity, low back and right lower extremity inclusive of the knee.
He stated that he was discharged with advice to use a wheelchair and subsequent use of crutches.
He had follow up medical review with his usual General Practitioner, Dr Alaaddin Emin of Blacktown. Treatment included further analgesia, investigations and referral for physiotherapy and chiropractic treatment.
Mr Akdeniz was subsequently referred to Dr Medhat Guirgis, Consultant Orthopaedic Surgeon of Auburn. Multiple consultations followed
Mr Akdeniz underwent further physiotherapy treatment. He was also provided assistance by a Psychologist and Psychiatrist…
Regular review is attended to by his General Practitioner. I understand that he continues to be certified fully unfit for work.
There has been nil recent review with Dr Guirgis who reportedly has now retired.
He continues in the care of the Psychologist and Psychiatrist.
Physiotherapy reportedly ceased approximately two months prior to the current assessment.”
Present symptoms were reported as follows:
“Mr Akdeniz states that he experiences intermittent headaches.
There is intermittent pain arising to the region of the cervical spine more to the right postero-lateral area of a moderate to ‘strong’ degree.
He indicates that he experiences intermittent pain extending to the right upper extremity to hand level which may persist for periods of up to approximately 20 minutes when present. This may have a ‘sharp’ quality.
He reports that there is limitation with active range of motion at the neck as a consequence of pain.
Mr Akdeniz is continuing to also experience intermittent pain extending across the low back which when present may persist for periods of up to approximately one hour. This may be of ‘strong’ intensity.
Pain reportedly negatively impacts upon active truncal range of motion.
Mr Akdeniz also experiences intermittent pain extending to the right buttock, right postero-lateral thigh and lateral aspect of the right calf.
He also reports intermittent ‘pins and needles’ affecting the right upper and lower extremities to a similar distribution as described in relation to pain.
He indicates that the right upper limb may feel weak at times…”
After setting out details of Mr Akdeniz’s work history and the impact of his injuries on his daily activities, the Medical Assessor then set out his findings on physical examination as follows:
“Mr Akdeniz was a cooperative man in nil apparent physical distress while at rest…
Examination of the cervical spine demonstrated active range of motion to be approximately as follows: Left axial rotation half that of normal; right axial rotation two-thirds that of normal; left coronal rotation two-thirds that of normal; right coronal rotation two-thirds that of normal; posterior and anterior sagittal rotation unrestricted.
Discomfort appeared to negatively impact upon these manoeuvres.
Mr Akdeniz reported tenderness to be present with palpation overlying the upper neck and occipital regions. Nil muscular spasm or guarding was evident in relation to the paracervical musculature.
There was satisfactory symmetric active range of motion in relation to the shoulder girdles except for mild limitation with abduction to the right side…
Motor system examination within the upper limbs was non-contributory except for mild reduction with grip strength of the right hand which appeared to be as a consequence of discomfort arising with the examination.
Sensory system examination within the upper limbs demonstrated mild reduction with light touch and point pressure sensation of the right upper extremity distal to the elbow of a non-dermatomal distribution.
General inspection of the trunk demonstrated a normal thoracolumbar curve. There was mild global symmetric limitation with active truncal range of motion. Anterior sagittal rotation (forward flexion) was such that he could reach to knee level with his fingertips while standing. Discomfort arising appeared to negatively impact upon these manoeuvres.
There was reported tenderness with palpation overlying the upper to mid posterior thoracic spinous processes and overlying the lower lumbar spine. Nil muscular spasm or guarding was evident to these regions.
Active straight leg raising was approximately to 50° right side and 60° left side…
Motor and sensory systems examination within the lower limbs was non-contributory…”
In reviewing the documentation he had, the Medical Assessor said:
“It has been indicated that Mr Akdeniz did not have with him any radiological investigations or reports at the time of the assessment. I have, however, had the opportunity of reviewing radiological reports contained in the referral documentation.”
The Medical Assessor summarised his findings as follows:
“It is evident that Mr Akdeniz sustained a fall in the course of his work duties on 15.12.19 through a significant distance. It is likely that multiple soft tissue trauma arose from that incident.
Radiological investigation has demonstrated degenerative changes/spondylosis to be present to the regions of the lower cervical spine and lower lumbar spine. It is considered that Mr Akdeniz has suffered an aggravation of this condition as a consequence of the subject incident.”
The Medical Assessor assessed 12% WPI.
He explained his calculations as follows:
“With respect to the region of the cervical spine, the clinical presentation is inclusive of that of non-verifiable radicular complaints in the absence of neurological dysfunction/ radiculopathy. As such, a DRE Category II rating is applicable, ie 5-8%. When taking into account negative impacts upon activities of daily living, a 2% weighting is considered appropriate. As such there is a 7% whole person impairment with respect to the region of the cervical spine.
With respect to the region of the lumbar spine, it is also considered that the clinical presentation is inclusive of a non-verifiable radicular complaints in the absence of neurological dysfunction/radiculopathy. On this basis, a DRE Category II rating is also applicable, ie 5-8%. Given that the ADL weighting has been attributed to the region of the cervical spine, a 5% whole person impairment has been determined with respect to this region.
When taking into account the above determinations, a final whole person impairment of 12% has been determined.”
The Medical Assessor then turned to consider the other medical opinions and said:
“I have had the opportunity of reviewing the medical report (16.8.21) prepared by Dr James Bodel, Consultant Orthopaedic Surgeon of Sydney. The doctor had determined similar findings with respect to the spinous regions. Impairments were also outlined with respect to the regions of the right shoulder and right knee such that a final combined whole person impairment of 20% is documented.
I have also reviewed the medical report (19.5.22) prepared by Dr Stephen Rimmer, Consultant Orthopaedic Surgeon of Sydney. Dr Rimmer has outlined 0% whole person impairments with respect to the regions of the cervical spine, lumbar spine and right knee. He felt that he was unable to provide an opinion in this respect in relation to the right shoulder girdle without further investigation being performed.
I have also reviewed multiple further medical documentation prepared by Mr Akdeniz’s various treating health professionals.
I have also reviewed administrative and related documentation prepared by the other parties.”
Chapter 4 of the Guidelines deals with the spine.
Chapter 4.27 provides as follows:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
·loss or asymmetry of reflexes
·muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
·reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
·positive nerve root tension (AMA5 Box 15-1, p 382)
·muscle wasting – atrophy (AMA5 Box 15-1, p 382)
·findings on an imaging study consistent with the clinical signs (AMA 5, p 382).
4.28 Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
The appellant acknowledges these provisions and notes that: “in order to succeed the appellant must show that there existed, at the time of his examination by the MA, at least one of the above major criteria (shown above in bold).”
However, the appellant adds that “in addition to the muscle wasting seen and the findings of the MRI Scan “there is evidence of radiculopathy “consistent with his clinical signs.”
The appellant’s submissions are somewhat convoluted, and overlap, but their thrust seems to be that the Medical Assessor “has either not properly acknowledged the existence of relevant findings on examination or failed to give proper or adequate reasons for his opinions.”
The appellant makes the following submissions:
i.With respect to the cervical spine, the Medical Assessor found:
1.no asymmetry of reflexes can be identified because there is no indication that the Medical Assessor conducted any relevant examination with respect to that criterion;
2.a possible reference could be where the Medical Assessor describes “motor examination within the upper limbs” describing such as “non-contributory except for mild reduction with grip strength on the right hand”;
3.or even in the following paragraph where he describes “sensory system examination and the other limbs demonstrated mild reduction with light touch and point pressure sensation of the right upper extremity”, however the reasoning is neither evident nor clear;
4.neither of these descriptions however, expressly refer to the necessary major criteria concerning reflexes in the upper limbs and it cannot be ascertained from the certificate whether or not a proper examination was conducted, and
5.the examination of the trunk and thoraco-lumbar curve is said to be symmetric, but no explanation is given as to how this is relevant to the upper limbs or the cervical spine.
ii.With respect to the lumbar spine, the Medical Assessor found but did not explain the relevance of:
1.asymmetric findings and testing of straight leg raising, and
2.asymmetric findings confirming wasting (where one would expect the right dominant thigh to be greater than the left) with respect to girth measurements as between left and right lower limbs, at both the thigh and the calf;
3.the effect on the reflexes of any of his testing, and appears to have conducted motor and sensory examinations, which are blandly stated to be “non-contributory”, and
4.likewise, no specific testing appears to have been done, or if so no disclosure made of any results with respect to the lower limb reflexes. This crucial and essential criterion has not been expressly articulated in the Medical Assessor’s reasons.
iii.With respect to both the cervical and lumbar spines and any examination of the reflexes undertaken, no articulation can be found of any reasoning process revealed by the Medical Assessor.
iv.One cannot know from the certificate issued by the Medical Assessor, whether or not the relevant criteria were addressed and if they were, what the specific finding were, as distinct from a concluded judgement without revelation or explanation of its factual basis.
v.The Medical Assessor referred to muscle weakness in only the most vague of terms. He stated that the concluded clinical judgement he has made with respect to grip strength, describing it as a “mild reduction” of the right hand only, but approaches the issue in a dismissive manner, discounting any “discomfort” experienced by the examinee and presumably expressed in some form, not with any observation but rather an entirely opaque conclusion that it was a result of the “examination”.
vi.Does this description mean that there was weakness that was anatomically consistent or not? It is impossible to tell.
vii.Likewise, with the assessment of sensation impairment the Medical Assessor describes with respect to his examination of the sensory system and the upper limbs that the patient did demonstrate mild reduction in the right upper extremity but declared that it was in a non-dermatomal distribution.
viii.The appellant is entitled to know what a legitimate dermatomal distribution would have consisted of and what the examiner found that was different, regarding the appropriate nerve root distribution and any radiological findings, in order to justify his findings with respect to this criteria. This is especially so with respect to the lumbar spine and the MRI scan findings.
ix.The Medical Assessor makes it clear that he has not seen the physical films and has referred correctly to the fact that he has reviewed radiological reports. However, he has not commented upon nor given any explanation for, or detail of, radiological investigations undertaken in the case nor has he made any comparison between historical investigations and the current, if any relevant changes can be seen in the reports over time.
x.The Medical Assessor has offered no reasons explaining whether the imaging studies are consistent with any of the clinical signs that he may or may not have elicited during his examination. It is submitted that it is necessary for him to comment upon the radiological evidence and explain how it is either consistent or not with the patient’s presentation on the day of examination. In particular he should state what clinical signs would have been consistent with DRE category III, or comment whether the assessment of radiculopathy, made by the IMEs is reliable.
xi.The Medical Assessor has commented on evidence provided by other professionals, all that is except the opinion of a chiropractor that did reveal radiculopathy in March 2020. It does not suffice that he has stated that he has “reviewed multiple further medical documentation prepared by … various treating health professionals”, it is necessary for him to express an opinion and give the appellant a sound basis for understanding whether such opinion is valid.
xii.Notwithstanding the fact that other Medical Assessor have declared there exist only non-verifiable radicular complaints, it is the obligation of the medical assessor to determine, for himself at the examination and for the appellant, whether or not the relevant criteria have been fulfilled.

To begin with, it must be remembered that the task of an Medical Assessor, set out in Clause 1.6 of the Guidelines, is to make “a clinical assessment of the claimant as they present on the day of assessment…”
In addition, Clause 4.18 of the Guidelines states:
“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment (our emphasis) include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present....”
The Medical Assessor explained his findings clearly when he said:
“With respect to the region of the cervical spine, the clinical presentation is inclusive of that of non-verifiable radicular complaints in the absence of neurological dysfunction/radiculopathy. As such, a DRE category II rating is applicable...”
There cannot be stated more clearly.
Moreover, as the respondent points out:
“There can be no confusion that the Medical Assessor found non-verifiable radicular complaints on examination. On page 3 of the MAC, the Medical Assessor detailed the appellant’s complaints of symptoms and on page 8 of the MAC the Medical Assessor confirmed he had reviewed all the documentation that was provided to him.”
The Medical Assessor’s findings on examination were clearly explained. He said:
“Examination of the cervical spine demonstrated active range of motion to be approximately as follows: Left axial rotation half that of normal; right axial rotation two-thirds that of normal; left coronal rotation two-thirds that of normal; right coronal rotation two-thirds that of normal; posterior and anterior sagittal rotation unrestricted.”
These findings are consistent with asymmetric loss of range of movement. They are also consistent with the criteria under DRE category II that localised (not generalised) tenderness may be present.
In summary, the Medical Assessor clearly found evidence of non-verifiable radicular complaints, asymmetric loss of range of movement and localised tenderness in the cervical spine. This is consistent with a DRE category II assessment.
Similar comments can be made about the appellant’s submissions regarding the lumbar spine.
The Medical Assessor said:
“With respect to the region of the lumbar spine, it is also considered that the clinical presentation is inclusive of a non-verifiable radicular complaints in the absence of neurological dysfunction/radiculopathy.”
Clause 4.17 of the Guidelines sets out DRE definitions of clinical findings. For DRE category II it states: “In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips…”
The Medical Assessor also noted on examination “active straight leg raising was approximately to 50° right side and 60° left side.”
Although he was not furnished with radiological films, he clearly stated: “I have, however, had the opportunity of reviewing radiological reports contained in the referral documentation.”
In order for a finding to be made under DRE category III, there must be significant signs of radiculopathy as per the Guidelines.
There is simply no evidence of this.
Neither Dr Bodel, nor Dr Rimmer found any such evidence. Indeed, the Medical Assessor noted that he made similar findings with respect to the spinous regions to that of Dr Bodel.
Although of course not bound by the opinions of other medical specialists, it is nonetheless of note that all three specialists came to the same conclusion.
The appellant emphasises the relevance of the opinion of a chiropractor “that did reveal radiculopathy in March 2020.” This is evidence almost three years prior to the assessment, and as we have repeatedly said, the task of a Medical Assessor is to make “a clinical assessment of the claimant as they present on the day of assessment…”
So many of the appellant’s submissions amount to no more than criticisms of the findings and assessments made by the Medical Assessor, in addition to his reasons.
Mere disagreement with the findings of a Medical Assessor is not a proper basis for appeal.
It is clear law that the reasons for an administrative decision “are not to be minutely and finely construed with an eye keenly attuned to the perception of error…” (See Vitaz vWestform (NSW) Pty Ltd and Ors [2010] NSWSC 667 and also Woolworths Ltd v Howarth [2015] NSWSC 1624).
In addition, it is trite law that a decision maker does not have to refer to every piece of evidence in detail.
Mifsud v Campbell (1991) 21 NSWLR 725 stated this:
“It is plainly unnecessary for a judge to refer to all the evidence led…or to indicate which of it is accepted or rejected….
A failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests on him or her…”
It is perhaps timely at this point to set out the task of an appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’ (our emphasis).
[24] The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
[25] The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’…
[37] The descriptors, or examples, describing each class of impairment in the various We are required to determine if the Medical Assessor made an error, regardless of other ‘reasonable minds’ that may differ.”
In our view, there is nothing to suggest that the findings and assessments by the Medical Assessor were “glaringly improbable” or that the Medical Assessor “was unaware of significant factual matters” or that “an unsupportable reasoning process could be made out.”
In our view, the Medical Assessor’s findings and reasons were adequate to enable the appellant to understand the basis for the assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 January 2023 should be confirmed.

[2023] NSWPICMP 153

24 April 2023