Bedford v N Alchin & H Doll t/as Nathan Alchin Shearing

DETERMINATION OF APPEAL PANEL
CITATION:	Bedford v N Alchin & H Doll t/as Nathan Alchin Shearing [2024] NSWPICMP 169
APPELLANT:	Lucas Noel Bedford
RESPONDENT:	N Alchin & H Doll t/as Nathan Alchin Shearing
APPEAL PANEL
MEMBER:	R J Perrignon
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment; whether Medical Assessor erred in omitting to assess radiculopathy in the cervical spine; whether he erred in omitting to assess the lumbar spine by reference to left foot drop and radiculopathy; whether he erred in omitting to assess both knees in accordance with AMA5 Table 17-10; whether he erred by omitting to assess the right hip by reference to bursitis; whether he erred in making a deduction of one half for pre-existing conditions of the knees; Held – Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Mr Bedford, appeals from the Medical Assessment Certificate of Medical Assessor Kuru dated 25 October 2023. The Medical Assessor assessed a 21% whole person impairment (lumbar spine 12%, cervical spine 0%, left shoulder and wrist 9%, left knee 1%, right hip and knee 0%) as a result of injury on 15 December 2019 (deemed date).
Mr Bedford worked as a shearer for about 30 years from about the age of 18 until
15 October 2019, when he was working for the respondent as a shearer, and experienced back pain with left foot drop. He has not worked as a shearer since. By then, he had been experiencing back pain with flare-ups for some years. On 29 June 2020 he came to L5/S1 laminectomy, flavectomy and decompression at the hands of neurosurgeon Dr Fairhall.
In these proceedings, he claimed compensation for whole person impairment as a result of injury on 15 October 2019 (deemed date). It is not clear why the Medical Assessor inserted a different date in his assessment table, but nothing turns on it. The worker alleged:
(a) that his employment as a shearer over many years had caused, aggravated, accelerated, exacerbated or made to deteriorate disease conditions in respect of the neck, back, both arms, both knees, both ankles and both hips, and
(b) that the respondent was the last employer to employ him in employment (ie shearing) to the nature of which the disease was due.
The insurer did not dispute injury to the lumbar spine, but disputed injury to all other body parts claimed as a result of the nature and conditions of employment. The matter came to arbitration. The dispute was determined ex tempore by Member McGrowdie on
18 August 2023. He observed that the worker alleged that injury was a disease of gradual process – that is, that the worker relied on s 15 of the Workers Compensation Act 1987. The Member determined that:
“… the work performed by the applicant was work to the nature of which the disease processes are due, namely, in respect of conditions in the applicant’s cervical spine, lumbar spine, both wrists and shoulders, both knees and right hip, and that the work was the main contributing factor to the development of these conditions.”
He made orders referring the relevant body parts for assessment of whole person impairment.
As indicated, Medical Assessor Kuru assessed a 21% whole person impairment.

He declined to assess the right upper extremity on the basis that maximum medical improvement (MMI) had not been reached, because an MRI demonstrated ‘comparatively minor rotator cuff disease’ and the diagnosis was frozen shoulder, which was expected to resolve with 12 to 18 months.
In respect of the cervical spine, he deducted one-tenth for a pre-existing (but unspecified) condition or abnormality. This made no difference to the outcome, as he had assessed 0% whole person impairment.
In respect of the left shoulder and wrist, he deducted one-tenth for ‘constitutional degenerative pathology’ at [11].
In respect of the left knee, he deducted half for ‘constitutional pathology consistent with age’ seen on imaging at [11]. As he had assessed 1% whole person impairment, and the resulting impairment of 0.5% was round up to 1%, that deduction made no difference to the outcome.
He deducted one half also in respect of the right hip and knee. As he had assessed 0% whole person impairment, it likewise made no difference to the outcome.
The appellant worker submits that the Medical Assessor erred in the following respects:
(a)    In his assessment of the cervical spine, by omitting to assess 5% whole person impairment having regard to non-verifiable radicular complaints, in accordance with page 392 of the Guidelines and the opinion of Dr Dixon.
(b)    In respect of his assessment of the lumbar spine, by:
(i)omitting to assess 15% whole person impairment in respect of the applicant’s left foot drop resulting from disc protrusion at L5/S1 in accordance with AMA5, Table 17.37, and
(ii)omitting to find there was left leg radiculopathy, which was diagnosed by both Dr Dixon (on whose opinion the worker relied) and Dr Doig (on whose opinion the insurer relied), applying the Guidelines at [4.27] and [4.28].
(c)   In his assessment of both knees:
(i)by omitting to assess 5% whole person impairment in accordance with AMA5 Table 17-10, and with the opinion of Dr Dixon, and
(ii)by making a deduction of one half which was excessive and at odds with the available evidence. Having regard to the fact that the appellant worked for 30 years as a shearer, he says, no deduction was available.
(d)    In his assessment of the right hip, by omitting to assess 3% whole person impairment, in accordance with table 17-33 and the opinion of Dr Dixon.
No error is alleged in respect of:
(a)    the assessment of the cervical spine, except to the extent that there was an omission to identify and assess radiculopathy,
(b)    the assessment of the lumbar spine, except to the extent there was an omission to identify and assess left foot drop;
(c)    the assessments of the shoulders, and
(d)    the deduction of one-tenth for a pre-existing condition of the right hip, the finding that MMI of the right upper extremity had not been reached.

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.

SUBMISSIONS

The parties made written submissions which have been taken into account. They are not repeated in full, but the appellant’s submissions are briefly summarised above.
In brief summary, the respondent employer submits as follows:
(a)    With respect to assessment of the cervical spine, the Medical Assessor recorded no findings on clinical examination which would satisfy the criteria for a DRE category II impairment.
(b)    With respect to assessment of the lumbar spine:
(i)left foot drop must have been absent because the Medical Assessor found in examination at peripheral power was intact, and
(ii)the Medical Assessor was not bound by the findings of previous assessors with respect to radiculopathy, mere complaints of numbness in the left leg does constitute radiculopathy, and there was ‘no history taken of muscle wasting and no findings of loss of asymmetry or reflexes or muscle weakness or reproduceable impairment of sensation’.
(c)    With respect to assessment of both knees:
(i)there was no ‘acute injury’ to either knee;
(ii)1% was assessed for partial medical meniscectomy of the left knee;
(iii)there were no restrictions in range of motion for either knee, and no valgus or varus deformity present, and
(iv)the Medical Assessor identified pre-existing constitutional pathology of both knees and considered that a deduction of 1/10^th was at odds with the available evidence. His deduction of one half was ‘justified ... on the available evidence; and ‘appropriate as the appellant did not describe a specific injury to his knees which could account for the degenerative pathology shown on the imaging’.
(d)    With respect to assessment of the right hip, it was not open to the Medical Assessor to assess a 3% whole person impairment for trochanteric bursitis as alleged, because range of motion was normal and symmetrical, and no abnormal gait was observed.

Cervical spine

Medical Assessor Kuru assessed a DRE category I impairment of the cervical spine, on the basis of a ‘reasonable range of motion for age without asymmetrical restriction’: at [10b]. DRE category I equates to 0% whole person impairment.
The finding that range of motion was ‘reasonable … for age without asymmetrical restriction’ does not necessarily preclude the presence of some restriction of motion. Unfortunately the Medical Assessor did not disclose his measurements of the cervical spine in his findings on examination. In their absence, we are not able to discern the factual basis on which he drew the inference that there was ‘reasonable range of motion for age’. In those circumstances we are not in a position to discern whether the inference was affected by error. This amounts to an insufficiency of reasons.
Dr Dixon assessed a DRE category II impairment on the basis of cervical stiffness and radicular complaint in the left upper extremity with left arm weakness. DRE category II equates to 5% whole person impairment.
The task of the Medical Assessor was to assess the cervical spine as the worker presented at examination. He was not bound by the assessments of previous assessors, including
Dr Dixon. However, in the absence of detail as to his findings on examination, we are not in a position to know whether the stiffness noted by Dr Dixon persisted (whether or not it was symmetrical), or whether there was non-verifiable radicular complaint meriting a DRE category II assessment. We are not in a position to discern whether the assessment of DRE category I was affected by error.
This, too, amounts to an insufficiency of reasons, demonstrating error and requiring that the certificate be set aside.

Lumbar spine – left foot drop

The appellant submits that a 15% whole person impairment was assessable for left foot drop under table 17.37 AMA5, as a motor deficit of the common peroneal nerve.
Table 17.37 prescribes assessments of 15%, 2% and 2% whole person impairment for motor deficit, sensory deficit and dysesthesia of the common peroneal nerve.
The Medical Assessor took a history at [4] that ‘his left foot was floppy’ in October 2019. At [7] he confirmed that the worker had ‘sustained a left L5/S1 disc protrusion with foot drop’. In his findings on examination at [5], he did not say whether left foot drop was present or not. His observation that heel-toe stance was normal did not address the issue.
If left foot drop persisted at examination, it should have been assessed. We are unable to discern from the Medical Assessor’s reasons whether left foot drop was present or not. The reasons do not put the Panel in a position to know whether the assessment was affected by error. That amounts to an insufficiency of reasons, demonstrating error, necessitating the setting aside of the Medical Assessment Certificate.

Lumbar spine – left leg radiculopathy

The Medical Assessor was not bound by the findings of previous assessors that left leg radiculopathy was present. His task was to make his own assessment in accordance with the Guidelines, as the worker presented at examination.
[4.27] of the Guidelines requires that, for a finding of radiculopathy to be made, at least two of six criteria must be satisfied, or which at least one must be a ‘major criterion’, of which there are three.
As to radiculopathy, the Medical Assessor expressed the following conclusion at [10b]:
“Whilst Mr Bedford has persisting symptoms, I did not make clinical findings consistent with persistent radiculopathy as per AMA 5 page 27, paragraph 4.27.”
That was a shorthand way of saying that he was not satisfied that two criteria of the six at [4.27] were met, of which one was a major criterion.
His findings on examination at [5] included the following in respect of the lumbar spine:
“Trendelberg’s test was normal. Heel-toe stance was normal. Neurological examination of the lower limbs demonstrated symmetrical knee and ankle reflexes with downgoing Babinskis. Peripheral power was intact. Straight leg raise was to 90° in the sitting position without tension signs.”
This does not explain whether two of the six criteria were met or, if so, whether at least one of them included a major criterion. The reasons are insufficient to explain the assessment. This demonstrates error, requiring that the assessment of the lumbar spine be set aside.

Lower extremities - knees

The Medical Assessor assessed 1% whole person impairment in respect of the left knee, having regard to the fact that the worker had (presumably) undergone partial medial meniscectomy: at [10b]. No error is alleged in respect of this finding.
He assessed a 0% whole person impairment in respect of the right lower extremity (knee and hip).
Error is alleged in respect of his failure to assess an additional 5% whole person impairment in respect of each knee in accordance with AMA5 table 17-10, as did Dr Dixon.
The Medical Assessor explained his reasons for not doing so at [10b]:
“No impairment was assessable for restricted range of motion, varus or valgus or anterior posterior instability.”
On examination at [5], he had measured 120 degrees of flexion and 0 degrees of extension in respect of both knees. He added:
“The knees were anatomically aligned. There was no varus, valgus or anteroposterior laxity. Quadriceps circumference was 38cm. Gastrocnemius circumference was 34cm.”
These examination findings demonstrated no restrictions in range of motion, no varus, no valgus and no anterior or posterior instability. The criteria in table 17-10 were not satisfied. There was no clinical basis for assessing a greater impairment in either knee than he did, notwithstanding Dr Dixon’s previous assessment.
We can discern neither error nor the application of incorrect criteria in these assessments.

Right lower extremity (hip)

The Medical Assessor noted at [4] that Mr Bedford told him his right hip is ‘worn’ and feels tight. He noted there had been no treatments of the right hip. He did not detail any findings on examination of the right hip at [5]. He listed no imaging of the right hip at [6]. He noted complaints of pain in the hips at [7]. He did not explain his calculation of 0% whole person impairment (right hip) under the heading, “An explanation of my calculations, if applicable” at [10b]. At [10c], he said:
“Dr Dixon has assessed 3% whole person impairment for bursitis in the right hip. AMA 5 page 546, Table 17.3 notes that bursitis must be associated with abnormal gait. I did not observe an abnormal gait on examination today.”
Table 17-33 prescribes 3% whole person impairment for ‘trochanteric bursitis (chronic) with abnormal gait”. The Medical Assessor did not say whether chronic trochanteric bursitis was present, though he did not take issue with Dr Dixon’s diagnosis. However, he made it clear that abnormal gait was absent. That is sufficient explanation for his omission to make the same assessment of the right hip as Dr Dixon.
We can identify neither error nor the application of incorrect criteria.

Lower extremities – deduction for pre-existing conditions

For reasons give above, the deduction of one half in respect of the left lower extremity (knee) and right lower extremity (knee and hip) made no practical difference to the outcome. It can make no practical difference now, as the assessment of the lower extremities is undisturbed on appeal. However, we deal with the deduction of one half as follows, as it forms one of the grounds of appeal.
To make a deduction, in the absence of prior injury an assessor must first identify a previous injury or pre-existing condition or abnormality, and find that it now contributes to impairment. To make the latter finding, the assessor must be satisfied that, but for the pre-existing condition or abnormality, current impairment would be less than it now is: Ryder v Sundance Bakehouse [2015] NSWSC 526.
In this case, Member McGrowdie had found, in accordance with s 15, that:
(a) the arduous work of a shearer was employment to the nature of which the disease condition of the knees (among other body parts) was due, and
(b) shearing work was the main contributing factor to the development of these conditions.
There was no need for him to make a finding that the appellant injured his knees in the employ of the respondent. No such finding was made.
The ‘work’ to which the Member was referring was Mr Bedford’s work as a shearer over 30 years. The finding that the conditions of the knees were caused by his work as a shearer for 30 years was a finding as to injury, within the exclusive jurisdiction of the Commission. It binds the parties.
The ‘conditions’ to which the Member was referring were the conditions of the knees (among other body parts) current as at the date of his decision on 18 August 2023. There is no evidence that those conditions changed between then and the Medical Assessor’s examination on 6 October 2023. We are not satisfied that they did.
The task of a Medical Assessor is to assess the degree of permanent impairment currently suffered and whether the whole or any part of it results from injury. The assessor has no power to decide that injury did not occur as found by the Commission.
In this case, the Commission had found that the conditions of the knees, which were evident on examination by the Medical Assessor, had been caused by working as a shearer for 30 years. The assessor had no power to make a finding inconsistent with the Member’s finding as to injury.
At [8f], he indicated that both knees were affected by a pre-existing condition or abnormality. At [11a] he identified the pre-existing conditions as osteoarthritis. At [11b] he said it had developed ‘from a constitutional degenerative pathology in the … knees’.
At [11c], he said of the left knee:
“The imaging reports on Mr Bedford’s knee are suggestive of a constitutional pathology consistent with age. Mr Bedford describes no specific injury to his knee to account for the degenerative pathology seen on imaging.”
At [6], he indicated that he had been ‘able to review no imaging related to the injuries at the time of assessment’. He listed a report of a left knee MRI dated 30 September 2021 which, he said, showed mild to moderate compartmental osteoarthritis with medial meniscal tear.
At [11c], he also said of the right knee:
“The imaging reports on Mr Bedford’s knee are suggestive of a constitutional pathology consistent with age. Mr Bedford describes no specific injury to his knee to account for the degenerative pathology seen on imaging.”
He listed no imaging reports of the right knee. However, in his report of 7 September 2022, Dr Dixon had noted X-rays of both knees dated 28 May 2021 which showed mild degenerative change of the knee joint more marked on the right. This report was before the Medical Assessor. There can be no doubt that he was aware of it, as he commented on
Dr Dixon’s assessment. We are satisfied the Medical Assessor was aware of the right knee imaging, but omitted to mention it in his Medical Assessment Certificate.
To find that there was pre-existing arthritis of the knees, as he did, the Medical Assessor would have to find that it was present prior to the commencement of Mr Bedford’s work as a shearer. That is, prior to about 1988. He made no such finding. In the absence of such a finding, it was not open to him to make a deduction. The making of a deduction in the absence of such a finding demonstrates error in respect of the assessment of both knees.
The presence of mild degenerative change in the right knee in an X-ray taken in 2021 is not capable of supporting an inference that there was degenerative change in or about 1988. As Mr Bedford was then 18 years of age, and was sufficiently healthy to work in arduous physical employment for a further 30 years as he demonstrated, it is highly unlikely that degenerative change was then present. Any conclusion to the contrary was not reasonably open on the evidence. Even if the Medical Assessor had found that right knee osteoarthritis predated 1988, it would have demonstrated error.

The same can be said of the left knee MRI scan of 30 September 2021. In all the circumstances, it is incapable of supporting an inference that there was osteoarthritis in the left knee as early as 1988. Such a finding would itself demonstrate error, even if it had been made.
For those reasons, there was no basis for making any deduction pursuant to s 323 in respect of either knee. There is no basis for making one now.
There is a further reason why the deductions were impermissible. Any finding that an osteoarthritic condition of the knee predated the commencement of employment as a shearer would necessarily be inconsistent with the Commission’s finding that the condition of each knee – that is, the arthritic condition of each knee – had been caused (as distinct from mere aggravation, exacerbation, acceleration or deterioration) by employment as a shearer. As indicated, findings on injury and its nature are within the exclusive jurisdiction of the Commission. Any finding inconsistent with the Commission’s findings on injury would be beyond the power of the Medical Assessor.
For all those reasons, the deductions in respect of the lower extremities must be set aside.

Referral for assessment

For the reasons given, the Panel identified demonstrable error in the assessment of the cervical spine, the lumbar spine (left foot drop and radiculopathy), and the making of deductions for pre-existing conditions of the lower extremities. It referred the worker for examination to Medical Assessor Home, who is a medical member of the Panel. His report follows:
“Mr Bedford attended unaccompanied. He was seen in the Pitt Street Sydney rooms of Dr Alan Home.
HISTORY OF CONDITION AND TREATMENT
Mr Bedford confirmed a history of work as a shearer, from the age of 20, having previously worked in a wool shed for two years.
He experienced a gradual onset of pain in both wrists, both shoulders, his neck, lower back and both knees.   He confirms treatment for his lower back condition from October 2019, including specialist treatment under the care of a neurosurgeon, Dr Fairhill. This included a requirement for surgical decompression of the lumbar spine to address symptoms of chronic left L5 radiculopathy associated with early foot drop.
He underwent a left L5/S1 discectomy at Prince of Wales Hospital on 26 June 2020. He reports a progressive improvement in left leg strength since the operation.
He states that he did receive subsequent periods of physiotherapy, supervised exercise and home exercise. There was no requirement for a further operation or spinal injection.
Post-operative MRI scans were performed on 4 September 2020, which demonstrated post operative scarring but no recurrent disc protrusion.
He also reports surgical management of his left knee condition, where he underwent a partial medial meniscectomy under the care of Dr Anthony Bradshaw.
For his shoulder complaints, he underwent treatment including bilateral corticosteroid injection and supervised physical exercise.
He required a bilateral elbow cubital tunnel release, under the care of Dr Hatfield, performed in November 2021 to address symptoms of bilateral ulna neuropathy.
This is mis-reported as bilateral carpal tunnel release in several of the reports of
Dr Hatfield. He confirms that he has not required wrist surgery.
He also describes right hip pain and bilateral knee pain.
He reports the current use of Paracetamol, two to four tablets daily. He reports the use of ibuprofen several days weekly. He is no longer taking Palexia analgesia.
CURRENT SYMPTOMS
He reports constant neck pain, of average intensity of 6-7/10 using a visual analogue scale (VAS). The pain is evenly felt on each side. There is stiffness in neck motion. He reports associated occipitofrontal headache, occurring most days.
In the lower back, he describes constant pain, average intensity of 7-8/10. The pain is felt evenly on each side. There is restricted motion of spinal motion and in particular, difficulty with forward bending and arching his back. He reports radiating pain to the back of the left thigh and intermittent pain in the left calf and the sole of the left foot. There is no bowel or bladder dysfunction.
He describes permanent numbness at the lateral aspect of his left calf and the dorsum of his left foot.
He has regained good strength at his left ankle, however, he does experience fatigue with prolonged walking, with a tendency to scuff his left hallux.
The profound foot drop that he experienced pre-operatively has resolved.
In the right leg, he describes occasional numbness in the lateral right calf.
FUNCTIONAL CAPACITY AND REPORTED TOLERANCES
He is right hand dominant.
He describes a sitting tolerance of 10 to 15 minutes and a walking tolerance of 15 minutes. He is careful with bending at the waist. There is great difficulty with crouching, kneeling and stairclimbing due to his hip and knee complaints.
He is woken from his sleep frequently.
He is independent for activities of self-care. He estimates a lifting tolerance of 10kg.
SOCIAL HISTORY
Mr Bedford is divorced and living with his daughter, aged 21. He smokes 15 cigarettes daily.
He is able to perform light domestic chores such as cooking, dishwashing and bench height cleaning. He makes his own bed. He does not engage in laundry tasks, bathroom cleaning, mopping and vacuuming. These are performed by his daughter. Gardening is delegated to an external provider. He performs grocery shopping in a piecemeal fashion through the week.
He was not engaged in any sporting activities whilst he was shearing. He played football in his youth.
He has not worked since ceasing work around October 2019.
PHYSICAL EXAMINATION
On examination, Mr Bedford is a 50 year old male standing at 170cm and weighing 70kg.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. There is a reduced range of active motion, flexion 1/4 normal range, extension 1/2 normal range, right rotation 5/6 normal range, left rotation 3/4 normal range, right lateral flexion 2/3 normal range and left lateral flexion 1/2 normal range. There is muscle guarding during active spinal motion.
The neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is reduced sensibility in the entire right hand in a non-dermatomal pattern. The deep tendon reflexes are symmetrically preserved in the upper extremities. There is no local muscle wasting. Spurling’s test is negative.
Lumbar spine
As indicated, the left foot drop previously reported has now resolved.
On neurological examination of the lower extremities, there is grade 4/5 power of resisted left hallux extension. There is MRC grade 5/5 power of resisted extension at the ankle and of hindfoot eversion. There is grade 5/5 power of ankle flexion and grade 5/5 power of the proximal musculature. There is a full range of active motion at the left ankle and in particular, dorsiflexion is measured at 20°, symmetrical to the right side. There is no restriction of hallux motion. There is reduced sensibility along the lateral border of the left calf and the dorsum of the left foot, conforming to an L5 dermatomal pattern. The left ankle reflex is diminished. The right ankle reflex is brisk.
There is 5mm disparity between the left calf and the right calf, which is within normal limits (less than 1cm).
DIAGNOSIS AND CAUSATION
There is symptomatic cervical spondylosis.
There has been spinal surgery to correct a left L5 radiculopathy. There are residual signs of a left L5 lumbar radiculopathy.
At the right hip, there is symptomatic moderate degenerative change.
At the right knee, there is symptomatic osteoarthrosis with clinical signs of chondromalacia.
At the left knee, there has been a medial meniscus tear, superimposed by an underlying degenerative change requiring a partial medial meniscectomy.
The conditions arise from his workplace activities over twenty years.
PERMANENT IMPAIRMENT
Assessment of permanent medical impairment is determined using the methodology set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th Edition) and the Workers Compensation Guidelines to the Evaluation of Permanent Impairment NSW (4^th Edition).
Cervical spine
The clinical findings required for a diagnosis of cervical radiculopathy are not met in accordance with Section 4.27 of the Workers Compensation Guidelines, because none of the three major criteria are met: loss or asymmetry of reflexes, muscle weakness anatomically localised to an appropriate nerve root distribution or reproducible sensation impairment similarly localised.
Lumbar spine
The MA has assessed a 12% WPI.
There is a further impairment determined using Section 4.37, Effects of surgery and Table 4.2 in the Workcover Guidelines, page 29 as follows:
There has been spinal surgery with residual symptoms and signs of radiculopathy satisfying the criteria in [4.27] of the Guidelines. This attracts a further 3% WPI rating.
Residual radiculopathy is determined using Section 4.27 as follows.
·    There is reduced sensibility in an L5 dermatomal pattern.
·    There is reduced power of left hallux extension (L5 myotome).
·    There is a positive nerve root tension sign.
·    There are findings on post operative imaging of residual scarring in the region of the left sided L5 and S1 nerve roots.
·    There is also a loss or asymmetry of the S1 reflex (major criterion).
A residual L5 radiculopathy is determined.
Combining the 3% with 12%, gives a total whole person impairment rating of 15% for the lumbar spine condition.
Lower extremities
COMBINED WHOLE PERSON IMPAIRMENT
The whole person impairment ratings are combined as follows. All except the lumbar spine are the same as the assessments made by Medical Assessor Kuru:
lumbar spine 15%,
left upper extremity 11%,
right lower extremity (hip, knee) 0%,
cervical spine 0%, and
left lower extremity (knee) 1%.
Using the combined values chart, the total whole person impairment rating equals 24%.
There is no evidence of a pre-existing condition before he commenced work as a shearer.”

Assessment of the Appeal Panel

Having regard to his specialist expertise and clinical experience, the Panel accepts the clinical observations and findings of Medical Assessor Home. In respect of the cervical spine, it agrees that the criteria for radiculopathy are not satisfied, for the reasons given by him. It follows that the assessment of 0% whole person impairment remains unchanged.
The Panel accepts that the pre-operative condition of left foot drop has resolved, and that the criteria for radiculopathy of the lumbar spine are met. This attracts 3% whole person impairment which, when combined with the 12% assessed by Medical Assessor Kuru, yields 15% whole person impairment.
For the reasons already given, the Panel finds that no deduction is available for pre-existing conditions of the knees or the right hip. This is reflected in the attached Medical Assessment Certificate, though it makes no practical difference to the ultimate assessment.
The Medical Assessment Certificate of Medical Assessor Kuru is revoked and replaced by the attached Medical Assessment Certificate.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1678/23
Applicant:	Lucas Noel Bedford
Respondent:	N Alchin & H Doll t/as Nathan Alchin Shearing

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Cervical spine	15/10/2019 (Deemed)	P 392 T 15.5	0	1/10^th	0
Lumbar spine	15/10/2019 (Deemed)	P 28 P 4.34 P 27 P 4.27 P 29 P 4.37	P 384 T 15.3	15	nil	15
Left upper extremity (shoulder, wrist)	15/10/2019 (Deemed)	P 476 16.40 P 477 16.43 P 479 16.46 P 467 16.28 P 469 16.31 P 439 16.03	10	1/10^th	9
Right upper extremity	15/10/2019 (Deemed)	P 476 16.40 P 477 16.43 P 479 16.46 P 467 16.28 P 469 16.31 P 439 16.03	Not MMI	Not MMI
Left lower extremity (knee)	P 546 17.33	1	nil	1
Right lower extremity (hip, knee)	0	nil	0
Total % WPI (the Combined Table values of all sub-totals)					24%

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Citations

Bedford v N Alchin & H Doll t/as Nathan Alchin Shearing [2024] NSWPICMP 169

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Cases Cited

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Ryder v Sundance Bakehouse [2015] NSWSC 526

[2024] NSWPICMP 169

21 March 2024