BRS v Bxi

DETERMINATION OF APPEAL PANEL
CITATION:	BRS v BXI [2024] NSWPICMP 104
APPELLANT:	Khodr Abdul Kader
RESPONDENT:	BS-BC Pty Ltd ATF BS-CR Trust
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Roger Pillemer Linsell
DATE OF DECISION:	26 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of lumbar spine impairment; assessment on the day of the examination; application of AMA 5 and the Guidelines for Evaluation of Permanent Impairment; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 November 2023 Khodr Abdul Kader lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 October 2023.
Mr Abdul Kader relies on the ground of appeal in s 327(3)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the assessment was made on the basis of incorrect criteria.
The delegate was satisfied that, on the face of the application, the ground of appeal that the Medical Assessor had applied incorrect criteria was made out. We conducted a review of the original medical assessment, limited to the grounds 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).

RELEVANT FACTUAL BACKGROUND

Mr Abdul Kader was employed by BS-BC Pty Limited ATF BD-CR Trust (BS-BC) when he suffered an injury falling about 5.5m from scaffolding to the ground on 6 August 2019. He suffered a fracture of the occipital condyle, a left distal radius and ulnar fracture, fractures of the right sixth and seventh ribs and an aortic haematoma. He had neck and back pain.
The Medical Assessor was asked to assess Mr Abdul Kader’s cervical spine, lumbar spine, left upper extremity (wrist) and scarring under the table for the evaluation of minor skin impairment (TEMSKI). He assessed 12% whole person impairment (WPI) comprised of 6% in respect of the cervical spine, 5% in respect of the left wrist and 1% for scarring. The Medical Assessor assessed Mr Abdul Kader’s lumbar spine at 0%.
The appeal is limited to the assessment of the lumbar spine.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Mr Abdul Kader to undergo a further medical examination because the assessment made by the Medical Assessor was open to him in the exercise of his clinical judgement and does not disclose error. In the absence of error, we have no power to conduct an examination.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in submissions prepared by Mr G Young of counsel, Mr Abdul Kader submitted that the Medical Assessor’s assessment was made on the basis of incorrect criteria and that he erred in respect of the assessment of his lumbar spine in that he failed to correctly apply AMA5 with respect to the examination, including to have proper regard to the straight leg raising test. He said that the Medical Assessor did not consider the asymmetric findings on straight leg raising and asymmetric spinal motion and had he properly done, so Mr Abdul Kader’s restricted range of motion and neurological signs would have been objectively measured.
Mr Young said that the Medical Assessor failed to have regard to the evidence of an L3/4 annular tear on an MRI scan dated 14 March 2020 and observations of radiculopathy by Mr Abdul Kader’s physiotherapist in his report dated 4 May 2020. Had he done so, he would have assessed Mr Abdul Kader in DRE lumbar category II with an assessment of “5% - 8% WPI plus ADLs”. Mr Abdul Kader sought re-examination.
In reply, BS-BC noted that the Medical Assessor did consider the MRI scan dated 16 March 2020 and that he set out his examination findings. He said that the Medical Assessor based his assessment on the correct criteria, being the correct table in AMA 5 and that his findings correctly aligned with DRE category I. BS-BC noted the requirement in paragraph 1.6 of the Guidelines to assess a worker as they present on the day of examination and which is not consistent with Mr Abdul Kader’s reliance on findings made three years earlier.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.

The MAC

The Medical Assessor described the injury and Mr Abdul Kader’s initial treatment, noting that his low back pain was treated conservatively. He saw Dr Gray and continues to undergo physiotherapy and take analgesic medication. The Medical Assessor recorded Mr Abdul Kader’s present symptoms:
“He said that there is constant low back pain and this also increases and decreases in intensity. He finds that he avoids bending and lifting and he finds sitting and standing for prolonged periods increase his symptoms. The pain is in a band across his back, more marked on the left than the right. There is no radiation to the lower extremities.”
Setting out his findings on examination the Medical Assessor said:
“He was of solid build and fit appearance. Well established callus formation was noted on both hands. He had normal spinal alignment. He had even gait. He could walk on heels and toes and perform a squat. On assessment of range of movement of the thoracolumbar spine, this was through a full range although he complained of a stretching sensation towards the extreme of all movements. Straight leg raising was 50 degrees on the left and 70 degrees on the right, ceased due to back pain. He could extend his legs from a seated position with negative neural tension tests. Reflexes were equal and normal. There was no muscle wasting or weakness. There was no altered sensation. There was some tenderness over the lower lumbar intervertebral spaces.”
The Medical Assessor described the MRI scan undertaken on 16 March 2020:
“16 March 2020 MRI Lumbar Spine
At C6/7 there is a posterior central disc extrusion noted measuring approximately 9.2mm in craniocaudal height x 3.4mm in AP dimension, resulting in mild indentation of the thecal sac. There is mild to moderate right and moderate proximal left foraminal stenosis seen. Disc is contacting the exiting left C7 nerve root. No cervical cord compression. No cervical cord syrinx. No site of definite lumbar nerve root impingement.”
Summarising the injuries and disabilities, the Medical Assessor said:
“Mr Kader’s current presentation is of multifactorial neck and low back pain. This is following a fall at work on 6 August 2019. There is no evidence of radiculopathy in the upper or lower extremities.”
The Medical Assessor assessed 0% WPI with respect to Mr Abdul Kader’s lumbar spine because:
“With regard to the lumbar spine, Mr Kader qualifies according to Table 15.3 in DRE Category 1 at 0% WPI. There is no dysmetria. There is no muscle guarding or spasms. There are no non-verifiable radicular complaints and no other features upon which to assess impairment.”
The Medical Assessor considered the other medical reports in the file and said that he did not find the features that Dr Conrad did to assess Mr Abdul Kader in DRE lumbar category II.

Medical evidence

Mr Abdul Kader was taken to Westmead Hospital with significant injuries though lumbar spine pain does not feature among the complaints in the records. He was referred to Dr Gray for treatment for his cervical spine and him for the first time on 6 August 2019. Dr Gray said:
“His return to work will be mostly dictated by his left distal radial fracture and I will leave this up to Dr Chan to advice on. From my point of view, he can return to work whenever he is able to do so. I have not organised any routine appointments with him but I am happy to be consulted at any stage if and when required.”
He saw Dr Gray on 12 March 2020 when his neck was still stiff and he told Dr Gray that he had been experiencing lumbar pain since December 2019. He told Dr Gray that he had significant dysfunction secondary to his low back pain and did not feel that he could tolerate returning to work. At that time, Mr Abdul Kader was still under treatment for other conditions, including his left wrist injury.
Dr Gray ordered an MRI scan and X-ray of his lumbar spine and cervical spine which was undertaken on 14 March 2020. The MRI was reported as showing:
“MRl/x-ray lumbar spine:
Conus medullaris tapers at the L 1 level. No cauda equina compression.
Mild disc desiccation present at L3-L4 and L2/L3 level. No cauda equina compression seen.
Thin fatty filum terminale is noted.
Minimal posterior epidural lipomatosis from level of L 1 up to L4-L5 level.
At L 1-L2 there is no disc herniation, central canal nor neural exit foramina narrowing seen.
At L2-L3 there is mild broad-based disc bulge with small posterior central to left paracentral disc protrusion. No neural exit foramina narrowing.
At L3-L4 no disc herniation, central canal nor neural exit foramina narrowing seen.
At the L4-L5 there is mild broad-based disc bulge. No central canal nor neural exit foramina narrowing seen.
At L5-S1 there is mild broad-based disc bulge with minimal posterocentral disc protrusion. No central canal nor neural exit foramina narrowing seen.
Anterior annular tear is noted at L3-L4 level.
There is a 6 mm interosseous haemangioma involving L2 vertebral body.
…
No site of definite lumbar nerve root impingement.”
On 2 April 2020 Dr Gray said:
“The lumbar spine x-ray showed normal alignment. His cervical spine x-rays including the dynamic views are within normal limits.
I have reassured Khodr that there Is no surgical pathology in his cervical or lumbar spines, He has some degenerative pathology which has been aggravated by his Injury and his occipitocervlcal region remains stable.
There is no neural compression. I am happy for him to commence a rehabilitation programme under the guidance of his physiotherapist and we will leave this In your capable hands to organise.
I have reassured him once again that he does not have any surgical pathology in his cervical or lumbar spines and does not need regular followup with me.”
Mr Abdul Kader was then referred for physiotherapy and on 4 May 2020 Mr Moutsallem noted:
“Mr Abdul-kader is reporting constant lumbar spine pain, the pain is described as a 'sharp' and 'stabbing' pain with a pain rating of 8/10 on the Verbal Analogue Scale (VAS).
Intermittent pain and paraesthesia referring down both legs (Left greater than Right) following the dermatomal distribution of L3/L4.
Restricted active range of motion noted in all directions:...”

Consideration

Mr Abdul Kader submitted that the Medical Assessor should have had regard to the presence of an annular tear shown on the MRI scan. The MRI scan report describes an anterior annular tear at L3/4 and Mr Abdul Kader sought to connect that finding with radiculopathy in the L3/4 dermatome, observed by a physiotherapist in 2020. Dr Gray was not concerned by it and we agree that was correct- an anterior annular tear does not impact on any neurological structures, which are only effected by posterior abnormalities.
The Medical Assessor was required to assess Mr Abdul Kader as he presented on the day of the examination[3] and to use his own clinical judgement in reaching a diagnosis and assessing permanent impairment. He was not required to adopt findings noted in 2020 if he did not observe them at his examination more than three years later.
[3] Guidelines paragraph 1.6.
Paragraph 4.18 of the Guidelines provides:
“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 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.”
Paragraph 4.21 reminds an assessor that “the clinical findings used to place an individual in a DRE category are described in AMA 5 Box 15-1 pp 382-83”. That box provides the definitions of the elements in the tables for each part of the spine – for the lumbar spine Table 15-3. For DRE lumbar category II the criteria are:
“Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy.”
Mr Abdul Kader submitted that the Medical Assessor noted his complaints of asymmetric spinal motion (more marked on the left than the right). However, that is not what the Medical Assessor found – he was very specific that there was no asymmetric spinal motion and it was only the pain that was more marked on the left than the right.
Box 15-1 of AMA 5 describes asymmetry of spinal motion:
“Asymmetric motion of the spine in one of the three principal planes is sometimes caused by muscle spasm or guarding. That is, if an individual attempts to flex the spine, he or she is unable to do so moving symmetrically; rather, the head or trunk leans to one side. To qualify, as true asymmetric motion, the finding must be reproducible and consistent, and the examiner must be convinced that the individual is cooperative and giving full effort.”
While the Medical Assessor did note that straight leg raising was asymmetrical and limited by pain, he noted that Mr Abdul Kader could extend his legs from a seated position with negative neural tension tests. In other words, the limitations on straight leg raising were inconsistent with Mr Abdul Kader’s ability to extend his legs. The Medical Assessor did not observe radiculopathy as defined by the paragraphs 4.27 and 4.28 of the Guidelines. Those paragraphs read:
“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 (AMA5, p 382).
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.”
Mr Abdul Kader’s submissions quoted part of the section on the evaluation of sciatic nerve tension signs in paragraph 15.1a of AMA 5, omitting the description of how the straight leg raising test is performed. The full paragraph reads:
“Sciatic nerve tension signs are important indicators of irritation of the lumbosacral nerve roots. While most commonly seen in individuals with a herniated lumbar disc, this is not always the case. In chronic nerve root compression due to spinal stenosis, tension signs are often absent. A variety of nerve root tension signs have been described. The most commonly used is the straight leg raising test (SLR). Performed in the supine position, the hip is flexed with the knee extended. In the sitting position, with the hip flexed 90°, the knee is extended. The test is positive when thigh and/or leg pain along the appropriate dermatomal distribution is produced the degree of elevation of which pain occurs is recorded.”
The Medical Assessor’s findings show that there were no signs or symptoms to warrant assessment in DRE lumbar category II. He dealt with each of the criteria for that category when he said:
“there is no dysmetria. There is no muscle guarding or spasm. There are no non-verifiable radicular complaints and no other features upon which to assess impairment.”
The Medical Assessor made clear that he has considered all signs or symptoms for assessment in DRE lumbar category III noting that there were no signs of radiculopathy. (This is the only relevant criterion for DRE category lll because post-operation and fractures do not apply to Mr Abdul Kader).
The Medical Assessor performed the careful and thorough physical examination required of him and documented the findings he made on the day. The assessment he made was the correct one on the basis of those findings and he explained why he assessed
Mr Abdul Kader in DRE lumbar category I.
We note that Mr Abdul Kader submitted that the assessment for DRE lumbar category II is 5-8% plus an allowance for the activities of daily living (ADL). Paragraphs 4.33 to 4.36 describe how an allowance for the impact on ADL is assessed and paragraph 4.33 explains how an allowance of 0%, 1%, 2% or 3% “should be added to the bottom level of the impairment range”. If an allowance had been appropriate, it would have been added to the 5% assessed under DRE lumbar category II.

For these reasons, we have determined that the MAC issued on 20 October 2023 should be confirmed.

[2024] NSWPICMP 98

26 February 2024