Allouche v M & B Moses Investments Pty Ltd t/as Murphys Produce

DETERMINATION OF APPEAL PANEL
CITATION:	Allouche v M & B Moses Investments Pty Ltd t/as Murphys Produce [2022] NSWPICMP 524
APPELLANT:	Khaled Allouche
RESPONDENT:	M & B Moses Investments Pty Ltd t/as Murphy’s Produce
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Brian Stephenson
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	20 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - Lumbar spine injury and scarring assessment; appellant alleged error in the assessment of diagnosis related estimate (DRE) I and submitted DRE II should have been found; the other experts rated DRE II; the Medical Assessor (MA) has very clearly explained why he did not agree with them, and he has clearly based upon his clinical findings on the day of assessment upon which he is entitled to rely; the MA has undertaken a through physical examination and recorded detailed findings; Held – the MA is entitled to rely on his clinical findings on the day of assessment; these findings do not reveal neurological deficits and the criteria for DRE II are not satisfied; radiological findings of the kind in this case do not suffice on their own to satisfy the criteria for DRE II; the MA does not need to refer to each piece of evidence; read as a whole, it is clear that the MA has had regard to material that was in evidence before him; the Appeal Panel discerned no error in the rating of DRE I or 0% whole person impairment (WPI) on the basis of the MA’s clinical findings on the day of examination; this accords with the criteria for DRE I in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed; there was no error in the assessment of 0% WPI for scarring; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 August 2022 Mr Khaled Allouche (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Phillip Truskett, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 25 July 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (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 WorkCover Medical Assessment Guidelines 2006.
The appellant sought a re-examination by a MA member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because the Appeal Panel did not find error and absent a finding of error, the Appeal Panel has no power to require a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

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

The MAC

The parts of the medical certificate given by the MA 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.

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 matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
Date of injury:   16 July 2009
·    Body parts/systems referred:                    Lumbar Spine
Scarring – TEMSKI – to right foot and lumbar spine
·    Method of assessment:   Whole Person Impairment”
The MA issued a certificate as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Lumbar Spine - Dr Truskett	16 July 2009	Chapter 4, Page 24-29.	AMA Guides, 5th Edition, Chapter 15, Section 15.4, Page 384, Table 15-3	0	0	0
Scarring – Dr Truskett	16 July 2009	TEMKSI, Table 14.1.	Table 8.2	0	0	0
Upper digestive – Dr Berry	16 July 2009	1%	1%
Right lower extremity – Dr Truskett	16 July 2009	12%	12%
Total % WPI (the Combined Table values of all sub-totals)					13%

The worker appealed. The appeal concerns the assessment of the lumbar spine and scarring only.
In summary, the appellant submitted on appeal as follows:
(a)    the MA did not consider all of the evidence available to him;
(b)    the MA fell into error when assessing the lumbar spine, and
(c)    the MA failed to properly assess the scarring.
In summary, (the respondent employer) submitted that the MA did not make a demonstrable error or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The MA recorded a history consistent with the other evidence that was before him as follows:
“Mr Allouche was previously assessed by me on 18 December 2019. Contents of this report have been reviewed and substantiated.
To summarise, Mr Allouche sustained an injury at work on 16 July 2009 at approximately 11.30am. At that time, he was stepping off a forklift onto his right leg, when he twisted it. He did not fall to the ground. His ankle was immediately painful. He attended first aid. His ankle was bandaged.
Mr Allouche then drove himself to Wentworthville to a medical centre and he was assessed by the Duty Officer. This was Dr Hirani.
Imaging was performed. He was advised there were no fractures. His ankle, however, became more swollen and painful.
Soon after, Mr Allouche attended Dr Maniam (Orthopaedic Surgeon) and an MRI scan was performed. He was advised that he had a ligamentous injury.
Mr Allouche then attended Dr Kuo (Orthopaedic Surgeon) who performed an arthroscopy on his right ankle and ligament reconstruction on 18 January 2010 at Holroyd Private Hospital.
Mr Allouche’s foot was placed in a CAM boot, and he used crutches for 3 months. Following this, he wore the CAM boot for a further 3 months.
He then had physiotherapy. His ankle, however, was still painful and unstable.
Mr Allouche further attended Dr Kuo, who advised after some 2 years, that no further treatment was available.   He was also advised to see a pain therapist and hypnotherapist.
In 2014, Mr Allouche attended Dr Mohammad Mourad (Orthopaedic Surgeon of Yagoona). An MRI scan of his ankle was performed.
Mr Allouche underwent a further procedure at Hurstville to remove a piece of bone in his ankle, which caused him discomfort.
He spent 16 days following this in a CAM boot and it did improve his pain to some degree.
In 2017, Mr Allouche attended for Dr Alan Nazha (Pain Specialist of Bella Vista), who provided him with medication and some cream to apply to his ankle. He also had four injections into his back to improve his foot pain.
Mr Allouche also complained of back pain which commenced in mid 2017. He said that he attended multiple doctors and had multiple investigations.
In early November 2019, Mr Allouche had a spinal cord stimulator implanted by Dr Nazha at Norwest Hospital. This has improved his ankle pain. It remains in situ.
In relation to his left knee, Mr Allouche began to experience pain in his left knee some time in 2013, some 4 years after his accident. He stated this was because he walked awkwardly. He was assessed by D Mourad some 3 years ago, and he was advised that his knee did not require surgery.
Since last reviewed by me, Mr Allouche stated that he has had multiple injections into his back, some six or seven times, by Dr Nazha. The last time was approximately 8 months ago. This would give relief to his back pain for a short period. He is reviewed by Dr Nazha every 3 to 4 months and may have further injections under anaesthesia.
·    Present treatment:
Mr Allouche takes the following medications:
oNeurontin 300mg, one tablet three times a day for 4 years.
oAxit 15mg, one at night.
oSyquet, half a tablet per day.
oCrestor, one at night for 10 years.
oNexium, one per day for 3 years.
oKalma, half a tablet at night for 12 years
oEfexor, one tablet in the morning for 2 years.
Mr Allouche continues to see Dr Nazha. There is no other planned treatment.
·    Present symptoms:
Mr Allouche complains of lumbar pain and scarring in relation to his right ankle and back.
Back
Mr Allouche experiences pain in his lower back since the time of operation to his ankle. Pain is present all the time at the site of implant surgery. The area where the inserted box becomes hot from time to time, and he will get numbness in the area. He would score this back pain as 5/10 all the time.   He will also occasionally experience numbness of both feet, but no sciatic radiation.
Scarring
Mr Allouche said that the scarring does not look nice, but it does not break down or cause him any symptoms.
·    Details of any previous or subsequent accidents, injuries or condition:
Mr Allouche sustained a motor vehicle accident in 2005, where he injured his right hip, chest, upper back, and right wrist. He received $51,000 compensation. These injuries got better over a period of 3 months. He was off work for 3 weeks.
·    General health:
Mr Allouche is known to have elevated cholesterol.
·    Work history including previous work history if relevant:
Mr Allouche was born in Lebanon where he completed 3 years of school. He is unable to read or write. He worked on his family farm for 5 years. He then worked as a truck driver for 10years.
He immigrated to Australia in 1986. He worked in the same job although the company changed names on many occasions.
He has not worked since his injury to his ankle. He receives income from superannuation. Worker’s compensation payments have ceased. There has been no settlement.
·    Social activities/ADL:
Mr Allouche is unable to run or jog. He can walk for 10 minutes, for approximately 250m. He cannot walk up hills or stairs. He can stand for 15 minutes and sit for 20 minutes. He can drive a motor vehicle. He is unable to do housework and cannot cook or make a bed. He lives in a house and cannot mow his lawn. This is done by his son. He states his wife helps him dress and undress, but he can perform all acts of daily living.
He has been married for 33 years. His wife is a housewife. They have twin children, a son and daughter, aged 23. Both have left home. Mr Allouche and his wife live in a single storey house which they own. “
An MA’s assessment cannot be based on self report. It must be the result of an independent clinical assessment on the day of examination and assessed in accordance with the criteria in the Guidelines.
The MA conducted a thorough physical examination of the appellant and recorded his findings relevant to the lumbar spine as follows:
“Mr Allouche again walked with an unusual gait. He appeared to have a limp associated with his right leg, with his foot externally rotated approximately 40°, for reasons that were not clear. He walked with a walking stick in his right hand.
He sat throughout the interview.
He had black hair and a beard. He wore thongs. He was helped to undress by his wife when asked to do so.
Mr Allouche was 174cm tall and weighed 81kg. This provided him with a body mass index of 26.8kg/m², which placed him in the overweight category.
He smokes 13 to 14 cigarettes per day and does not drink alcohol.
He climbed on and off the examination couch unassisted.
On examining his back, there was a transverse 8cm scar in his left loin. This scar was barely perceivable with no suture marks and a good colour match. There was a 5cm longitudinal scar in his back which was slightly widened and pigmented, but not tethered and with no hypertrophy.
There was no kyphosis or scoliosis. There was no loss of lumbar lordosis. There was no paravertebral muscle guarding.
There was global reduction in back movement. Back flexion and extension were one quarter normal. Lateral flexion to the left and right was one quarter normal. Rotation to the left and right was one quarter normal.
He could walk on his toes and his heels. He could manage a full squat.
There was no wasting of the muscles of the lower limbs. Both thighs measured 41cm in circumference, 10cm above the patella. Both calves measured 34cm at their widest point.
Straight leg raising was possible to 75° bilaterally which led to back pain. This was not a positive straight leg raising test.
There was reduced sensation of his right lower limb at 7/10 compared to 10/10 on the left. This reduced sensation commenced from the groin crease. This was not a radicular distribution.
Knee jerks, medial hamstring jerks and ankle jerks were present and equal.
Mr Allouche wore a brace on his right ankle which was removed for assessment.
There was some scarring around his right ankle consistent with arthroscopic repair. The scars were barely perceivable with a good colour match. In addition, there was a 5cm scar which was slightly broadened by not tethered and no hypertrophy, no suture marks and was not easily discernible.”
The MA had regard to the special investigations relevant to the lumbar spine as follows:
“A bone scan performed by Superscan on 28 February 2020 was reported by Dr Vincent Caristo and was concluded as follows:
“There are features of facet arthropathy in the lower lumbar spine at the L4/5 and L5/S1 levels and L3/4 level. There were also changes of mildly active Schmorl’s nodes at the L3/4 level.”
(My comment: Constitutional disorder)
An MRI scan of the lumbar spine by PRP Diagnostic Imaging on 6 July 2012 was reported by Dr Rohan Sabharwal as follows:
“Comment:
No evidence of lumbar nerve impingement. Mild degenerative change, diffuse lower three lumbar vertebrae with mild facet joint arthritis.”
The MA summarised the injury and diagnosis as follows:
“In relation to assessment requested today, Mr Allouche has the following:
o Lumbar spine, soft tissue injury
o Scarring to back and right ankle as a consequence of surgery.”
The MA commented on the appellant’s presentation as follows:
“●     Mr Allouche’s abnormal gait with external rotation of his right foot could not be explained.
·        Loss of sensation of the right lower limb to the groin cannot be explained by a peripheral nerve or radicular injury.
·        Limitation of back movement, although global, was not in keeping with absence of muscle guarding or loss of lumbar lordosis.”
The MA explained his impairment assessment in respect of the lumbar spine and scarring as follows:
“Lumbar Spine:
Stable: Yes
Reference: AMA Guides, 5^th Edition, Chapter 15, Section 15.4, Page 384, Table 15-3, and
NSW Workers Compensation Guidelines, Chapter 4, Page 24-29.
Whole Person Impairment: 0%
Reason for Assessmnt:
A 0% whole person impairment has been assigned as there is no muscle guarding, no neurollogical signs, no non-verifiable radicular complaint, no dysmetria and no bony injury to the lumbar spine.
Scarring
Stable: Yes
Reference: AMA Guides, 5^th Edition, Table 8.2, and WorkCover Guides, TEMKSI, Table 14.1.
All scars have been assessed involving the back and right ankle. Mr Allouche is conscious of the scars, there is good colour match, no trophic changse, no staple marks, anatomic location of skin is not clearly visible although the scar on the back can be seen in the midline, there are no contour defects, no effects on ADLs, no treatment required and no adhesion. This fulfils the majority of 0% whole person impairment.”
He had regard to the other expert opinions that were before him and he explained where his opinion differed from the other IMEs whose opinions were in evidence as follows:
“Report by Dr Uddin Dias dated 29 August 2018, where he described a 7% whole person impairment of Mr Allouche’s back. He described, when examined, that there was moderate muscular guarding, which was not present today. There was some dysmetria, which was not present today. He did demonstrate sensory change, but there was not a radicular distribution demonstrated today. Therefore, Category II is not considered appropriate on today’s assessment. Dr Dias made no comment on scarring.
Report by Dr Robert Breit (Orthopaedic Surgeon) dated 24 June 2021, where when examined, Dr Breit described Mr Allouche’s back scars accurately. He stated that he maintained his back bent, which was not the case today. He also noted marked loss of flexion, but he did not describe dysmetria. He also described significant inconsistency in relation to straight leg raising. He found loss of sensation in the right ankle and foot, but no radicular distribution. On today’s assessment, Mr Allouche did stand upright but inconsistent signs were noted. On this basis, I do not agree with the DRE Category II assessment as made by Dr Breit. He was not asked to comment on scarring.
Report by Dr James Bodel (Orthopaedic Surgeon) dated 6 August 2021, where when examined in relation to Mr Allouche’s back, he described pain over his right buttock but over a video assessment described reduced back movements but did not document dysmetria and no radiculopathy. On this basis, though not explained, he assessed him as DRE Category II. This was not the case today. In relation to scarring, Dr Bodel described, “Collectively all areas including ankle moderately complex surgical scars attract a 2% whole person impairment”. He did not, however, describe these scars and how he came to this conclusion. I do not support a 2% whole person impairment in relation to scarring based on TEMSKI scoring.”
The MA has rated DRE I at 0% whole person impairment (WPI) and the appellant submitted it should have been DRE II in line with the other experts. The MA is required to undertake an independent assessment.

The MA explained that the appellant on his clinical findings did not qualify for DRE II.
The MA is entitled to rely on his clinical findings on the day of examination when rating impairment. He must conduct an independent assessment. He cannot base his opinion on self report. He must exercise his clinical judgment on the day of assessment. He is not bound by the opinions of other experts whose opinions are in evidence. The impairment must be rated correctly according to the Guidelines.
The MA assessed DRE I or 0% WPI. He based this assessment on his clinical findings. The appellant submitted that the MA erred in failing to have regard to all of the evidence.
The MA does not need to refer to each piece of evidence.
Paragraph 4.2 of the Guidelines makes it clear:
“The DRE method relies especially on evidence of neurological deficits and less common, adverse structural changes, such as fractures and dislocations. Using this method, DREs are differentiated according to clinical findings that can be verified by standard medical procedures.”
The Guidelines provide as follows:
“4.18DRE 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 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. 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. In assigning category DRE II, the assessor must provide detailed reasons why the category was chosen.
4.19Symmetric or non-uniform loss of ROM may be present in any of the three planes of spinal movement. Asymmetry during motion caused by muscle guarding or spasm is included in the definition.
Asymmetric loss of ROM may be present for flexion and extension. For example, if cervical flexion is half the normal range (loss of half the normal range) and cervical extension is one-third of the normal range (loss of two thirds of the range), asymmetric loss of ROM may be considered to be present.
4.20While imaging and other studies may assist medical assessors in making a diagnosis, the presence of a morphological variation from ‘normal’ in an imaging study does not confirm the diagnosis. To be of diagnostic value, imaging studies must be concordant with clinical symptoms and signs. In other words, an imaging test is useful to confirm a diagnosis, but an imaging study alone is insufficient to qualify for a DRE category (excepting spinal fractures).”
The other experts rated DRE II. The MA has very clearly explained why he did not agree with them, and he has clearly based upon his clinical findings on the day of assessment upon which he is entitled to rely.
The MA has undertaken a through physical examination and recorded detailed findings. He is entitled to rely on his clinical findings on the day of assessment. These findings do not reveal neurological deficits and the criteria for DRE II are not satisfied. Radiological findings of the kind in this case, do not suffice on their own to satisfy the criteria for DRE II.
The MA does not need to refer to each piece of evidence. Read as a whole, it is clear that the MA has had regard to material that was in evidence before him. He has relied on clinical findings on examination and made an assessment using his clinical judgment. He has very clearly explained his assessment, he has clearly explained the inconsistencies in the appellant’s presentation and why these make a difference to the finding of any true neurological deficit. As well the MA has clearly explained why his opinion differs from the other experts who have been qualified on behalf of each party. The Appeal Panel can discern no error in the rating of DRE I or 0% WPI, on the basis of the MA’s clinical findings on the day of examination, which accords with the criteria for DRE I in AMA 5 as follows:
“AMA 5, Page 384, Table 15-3 DRE Lumbar Category I 0% Impairment of Whole Person. No significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures.
AMA 5, Page 385, DRE Category I 0% Impairment of Whole Person. No significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures.”
Turning to the complaint on appeal assessment in respect of scarring.
The appellant submitted that the scarring should have been assessed at 2% WPI or at the minimum 1% WPI.
The Guidelines relevantly provide at Chapter 14 as follows:
“14.6 A scar may be present and rated as 0% WPI.
Note that uncomplicated scars for standard surgical procedures do not, of themselves, rate an impairment.
14.7The table for the evaluation of minor skin impairment (TEMSKI) (see Table 14.1) is an extension of Table 8-2 in AMA5. The TEMSKI divides class 1 of permanent impairment (0–9%) due to skin disorders into five categories of impairment. The TEMSKI may be used by trained assessors (who are not trained in the skin body system), for determining impairment from 0–4% in the class 1 category, that has been caused by minor scarring following surgery. Impairment greater than 4% must be assessed by a specialist who has undertaken the requisite training in the assessment of the skin body system.
14.8The TEMSKI is to be used in accordance with the principle of ‘best fit’. The assessor must be satisfied that the criteria within the chosen category of impairment best reflect the skin disorder being assessed. If the skin disorder does not meet all of the criteria within the impairment category, the assessor must provide detailed reasons as to why this category has been chosen over other categories.
14.9 Where there is a range of values in the TEMSKI categories, the assessor should use clinical judgement to determine the exact impairment value.”
The MA assessed 0% WPI on the basis of his findings as follows:
“All scars have been assessed involving the back and right ankle. Mr Allouche is conscious of the scars, there is good colour match, no trophic changse, no staple marks, anatomic location of skin is not clearly visible although the scar on the back can be seen in the midline, there are no contour defects, no effects on ADLs, no treatment required and no adhesion. This fulfils the majority of 0% whole person impairment.”
The Appeal Panel can discern no error in the MA’s assessment of 0% WPI for scarring. It accords with his clinical findings and is a “best fit” on the basis of correct application of the assessment criteria in the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 July 2022 should be confirmed.

[2022] NSWPICMP 524

20 December 2022