Chowdhury v Ali

DETERMINATION OF APPEAL PANEL
CITATION:	Chowdhury v Ali [2022] NSWPICMP 420
APPELLANT:	Alanur Chowdhury
RESPONDENT:	Jomshed Ali
Appeal Panel
MEMBER:	William Dalley
MEDICAL ASSESSOR:	Dr Robin Fitzsimons
MEDICAL ASSESSOR:	Dr John Ashwell
DATE OF DECISION:	25 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Dispute referred respect of injury to the lumbar spine (including corticospinal tract impairment), the cervical spine and the digestive system (fatty liver, upper digestive tract, colon, rectum and anus); lead Medical Assessor (MA) declined to assess the lumbar spine and cervical spine noting “there is a question of myelomalacia” which required assessment by a neurologist or neurosurgeon; further referral to a neurologist MA limited to “myelomalacia of the spinal cord”; neurologist MA assessed 0% whole person impairment (WPI) in respect of the cervical spine and the lumbar spine on the basis that subject injury was confined to musculoligamentous strain and impairment did not result from the subject injury; appellant worker appealed submitting that the MA should not have assessed the lumbar spine or cervical spine but should have confined himself to the terms of the referral; Held – the Panel noted that the lead MA had not assessed the cervical spine or lumbar spine and the neurologist MA had correctly assessed the appellant worker in accordance with the original referral; Skates v Hills Industries Ltd and Yates v Flavorjen Pty Ltd applied; appellant worker further submitted that the neurologist MA had fallen into error in finding that the original injury was confined to musculoligamentous strain when the parties had agreed that there was corticospinal impairment to be assessed; that ground was established; the appellant worker was reassessed following examination by a Panel member; the Medical Assessment Certificate (MAC) issued by the neurologist MA was revoked and a fresh MAC issued which incorporated the impairments assessed in the MAC which the lead MA had issued in respect of the digestive system and sexual organs.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 May 2021 the appellant, Alanur Chowdhury, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 April 2021.
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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Chowdhury commenced employment with the respondent, Jomshed Ali, as a taxi driver in 1996. In the course of that employment on 10 October 2000 he was lifting heavy luggage from the boot of the taxi when he suffered the onset of back pain which extended into the left leg and neck pain. He attempted to continue driving but was forced to stop after a couple of hours.
Mr Chowdhury consulted his general practitioner, Dr Dang, the following day who prescribed medication and directed restricted duties, driving three days a week. After a period attempting to work four days per week in 2003, Mr Chowdhury found the pain increased and he reverted to working three days per week. Mr Chowdhury continued to suffer symptoms and struggled with driving and the requirement to handle baggage. In 2008 he was advised by his doctor to cease work. He continued to undertake physiotherapy and was prescribed medication.
Mr Chowdhury developed digestive tract symptoms and underwent a gastroscopy and colonoscopy in 2011 and again in 2017 and 2018. He continued to suffer neck pain radiating into the arms as well as pain in the back and down the legs.
Mr Chowdhury made a claim for lump-sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in 2002. He was assessed at that time as having 20% permanent impairment of the back and permanent loss of efficient use of the left leg of 15%.
In 2006 Mr Chowdhury again reduced his working hours to two 12 hour shifts per week. However, he continued to suffer symptoms and in 2008 was declared unfit for employment. In October 2009 he was assessed as having a further 7% permanent impairment of the back, 5% further loss of efficient use of the left leg at or above the knee and 1% loss of efficient use of the right leg at or above the knee.
In May 2017 Mr Chowdhury was examined by an occupational physician, Dr Derek Lee, in order to establish the extent of his impairment in terms of whole person impairment (WPI).
[1] That further assessment of interference with activities of daily living was contrary to paragraph 4.36 of the Guidelines.
Dr Lee reported to the insurer that Mr Chowdhury should be assessed as within DRE Cervical Category III warranting assessment of 15% WPI. A further 2% WPI was assessed in respect of interference with activities of daily living to give 17% WPI in respect of the cervical spine. Dr Lee assessed Mr Chowdhury as within DRE Lumbar Spine Category III, warranting 10% WPI. He added a further 2% WPI for interference with activities of daily living.[1]
Mr Chowdhury was assessed by a urologist, Dr Peter Maher, in July 2017 at the request of Mr Chowdhury’s solicitors. He assessed Mr Chowdhury as having 8% loss of use of sexual organs.
In August 2017 Mr Chowdhury was examined by a gastrointestinal specialist,
Associate Professor Terry Bolin to assess impairment in respect of the gastrointestinal tract. Associate Professor Bolin assessed Mr Chowdhury as having 4% WPI in respect of the upper digestive tract and a further 2% WPI in respect of “non-alcoholic fatty liver disease”.
In September 2017 Mr Chowdhury was examined by an orthopaedic surgeon, Dr James Bodel, at the request of Mr Chowdhury’s solicitors. Dr Bodel assessed Mr Chowdhury as having 15% permanent impairment of the back, 25% permanent impairment of the neck, 5% permanent loss of efficient use of the right leg at or above the knee and 5% permanent loss of efficient use of the left leg at or above the knee. He also assessed 15% permanent loss of efficient use of the left arm at or above the elbow.
In July 2018 Mr Chowdhury was examined by a neurologist, Dr Paul Teychenné, again at the request of Mr Chowdhury’s solicitors. Dr Teychenné assessed Mr Chowdhury as having 16% WPI respect of corticospinal tract impairment.
By letter dated 25 September 2018, in reliance on the reports of Dr Lee,
Associate Professor Bolin, Dr Maher and Dr Teychenné, Mr Chowdhury’s solicitors sought acknowledgement that Mr Chowdhury should be assessed as exceeding 30% WPI and accordingly be acknowledged as a worker with “highest needs”.
The insurer disputed that Mr Chowdhury should be assessed as a worker with highest needs but addressed the assessment of the neck, left arm and bowel as well as the additional loss of use of the left leg.
In mid-2019 Mr Chowdhury received further lump-sum compensation. At that time, he was assessed as also having 25% permanent impairment of the neck, 15% loss of use of the left arm at or above the elbow, 2% loss of sexual organs and a further 4% loss of use of the right leg at or above the knee. Following payment of the latest claim, Mr Chowdhury had received lump-sum compensation in respect of:
·        permanent impairment of the back – 27%;
·        permanent impairment of the neck – 15%;
·        loss of use of the left leg at or above the knee – 20%;
·        loss of use of the right leg at or above the knee – 5%, and
·        loss of sexual organs – 2%.
In October 2020 Mr Chowdhury’s solicitors filed an application in the then Workers Compensation Commission seeking an assessment as to whether the degree of permanent impairment is more than 30% for the purposes of s 32A of the 1987 Act. The dispute was referred to an Approved Medical Specialist[2], Dr Neil Berry, as lead assessor to assess WPI arising from injury to the lumbar spine (including corticospinal tract impairment), the cervical spine and the digestive system (fatty liver, upper digestive tract, colon, rectum and anus). Assessment of impairment arising from injury to the sexual organs was referred to a further Approved Medical Specialist, a urologist, Dr Edward Korbel.
[2] Until the commencement of the Personal Injury Commission on 1 March 2021 the medical expert to whom the medical dispute was referred pursuant to section 321 of the 1998 Act was known as an Approved Medical Specialist. From and after 1 March 2021 they were known as Medical Assessors.
Dr Berry declined to assess the lumbar spine and cervical spine noting “there is a question of myelomalacia”. Dr Berry noted; “this should be assessed by a neurologist or a neurosurgeon”.
The Commission then referred Mr Chowdhury for assessment by a neurologist, Medical Assessor Ross Mellick. The referral noted the date of injury as 10 October 2000 and the body part referred was specified as “myelomalacia of the spinal cord”.
Dr Mellick examined Mr Chowdhury on 1 April 2021[3]. Dr Mellick issued the MAC which is the subject of this appeal on 15 April 2021, assessing Mr Chowdhury as having 0% WPI in respect of myelomalacia of the spinal cord, the lumbar spine (including corticospinal impairment) and the cervical spine.
[3] Incorrectly recorded in the MAC as 1 April 2020.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Panel lacked sufficient information relating to findings upon physical examination to enable it to determine the extent of impairment resulting from the subject injury.

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.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor 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.
In summary, the appellant submits that the Medical Assessor fell into error in assessing the cervical spine and lumbar spine when those parts had not been referred for assessment. In the alternative, the appellant submits that the Medical Assessor fell into error in his assessment of the cervical and lumbar spine in failing to provide adequate reasons, failing to assess Mr Chowdhury in accordance with the Guidelines, failing to conduct the appropriate examination to determine a diagnosis related estimate (DRE) of the cervical spine and lumbar spine and failing to consider all relevant medical evidence available to him.
In reply, the respondent submits that it was open to and appropriate for the Medical Assessor to assess the lumbar spine and cervical spine. In answer to the alternative submissions of the appellant, the respondent asserted that, once the Medical Assessor had concluded that no part of Mr Chowdhury’s impairment in respect of the cervical spine and/or lumbar spine resulted from the subject injury, then the Medical Assessor was not required to enquire further.

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[4] 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.
[4] [2006] NSWCA 284.
The Panel does not accept the appellant’s submission that it was not appropriate or open to the Medical Assessor to assess impairment in respect of the lumbar spine and cervical spine. The Panel is satisfied that, notwithstanding the omission of reference to the lumbar spine and the cervical spine in the referral to Dr Mellick, it was clear from the original referral to Dr Berry that the matters in dispute between the parties concerned impairment as a result of the subject injury of the lumbar spine (including corticospinal tract impairment), cervical spine, sexual organs and digestive system (fatty liver, upper digestive tract, colon, rectum and anus)[5].
[5] See MAC dated 11 February 2021, paragraph 1.
The MAC dated 11 February 2021 issued by the Approved Medical Specialist, clearly stated that Dr Berry did not regard himself as appropriately qualified to assess the lumbar spine and cervical spine in view of the issue of possible spinal cord involvement. Accordingly, at the point that the MAC was issued in February 2021, there was no assessment of the lumbar spine or the cervical spine.
The appellant submits that the Medical Assessor exceeded the ambit of the referral which purported to request the Medical Assessor to assess the degree of permanent impairment arising from injury on 10 October 2000 in respect of “myelomaacia [sic] of the spinal cord”. That referral did not specifically refer to a body part or system but simply noted the basis on which Dr Berry had concluded that his own specialty, as a musculoskeletal and digestive system specialist, was inappropriate for the assessment of impairment resulting from injury to the cervical spine and the lumbar spine where there was a possibility of neurological involvement.
The task of a Medical Assessor assessing a medical dispute upon referral pursuant to s 321 of the 1998 has been the subject of judicial comment in Skates v Hills Industries Ltd[6] (Skates) and Yates v Flavorjen Pty Ltd[7]. In Skates, Basten and Leeming JJA drew attention to the reports and correspondence as evidence which establish the nature and extent of the medical dispute between the parties. Basten JA said at [30] “As the primary judge found, this material defined the proper scope of the referral”.
[6] [2021] NSWCA 142.
[7] [2022] NSWSC 388.
In Skates Leeming JA said:
“[46] The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a “medical dispute” because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.
………………
[48] The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the “referral” to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”
It is clear in the present matter that the medical dispute between the parties concerned the extent, if any, of permanent impairment resulting from injury to the lumbar spine (including corticospinal tract impairment), the cervical spine, sexual organs and digestive system (fatty liver, upper digestive tract, colon, rectum and anus).
The initial referral pursuant to s 321 of the 1998 Act included each of those body parts and systems. Once Dr Berry and Dr Korbel had assessed those parts appropriate to their respective specialties, the extent of impairment, if any, arising from injury to the cervical spine and lumbar spine remained to be determined.
Although the referral to Dr Mellick did not specifically refer to those parts, it was clear on the material available that they formed part of the medical dispute which had been referred for assessment and they had not yet been assessed, but were appropriate for assessment by a neurologist or neurosurgeon
The intention of the referral to Dr Mellick as Medical Assessor was clearly to complete assessment of the medical dispute in accordance with the original referral. The Medical Assessor appropriately purported to undertake that task.
For these reasons, the Panel does not accept the submission that the Medical Assessor should not have assessed the lumbar spine and cervical spine.
The appellant submitted in the alternative that the Medical Assessor had erred in a number of ways in his assessment of impairment arising from injury to the lumbar spine and cervical spine.
The Medical Assessor considered reports of the MRI scans of the cervical spine and lumbar spine on 2 September 2016, CT scan of the cervical spine performed on 19 March 2014, report of the MRI scan of the cervical spine dated 19 July 2013 and X-rays of the cervical spine and thoracic spine performed on 28 June 2010.
Upon examination the Medical Assessor noted:
“The examination of the upper and lower extremities was characterised by complaints of severe pain. Care was taken not to induce pain and the examination was in some measure abbreviated, however an adequate examination was successfully completed important signs were sought. There was considerable variability, and inconsistency regarding the complaints of pain induced by movement.
I found no muscle wasting but also did not detect any abnormalities of contour or tone. I did not find any impairment of power or of finger dexterity.
Mr Chowdhury was able to rise from a low chair and assume the seated position and exhibited no abnormalities with regard to ankle dorsiflexion and plantar flexion when ambulating. The deep tendon reflexes were sluggish in both the upper and lower limbs and the plantar responses were firmly flexor.
Position appreciation was intact in the fingers and toes and vibration appreciation was impaired in a distribution not consistent with an organic cause. Instead of using the 512 tuning fork, the usual one, I used a much coarser fork which vibrates at 128 and despite that very coarse vibration, he still reported impairment in a distribution which could not possibly be caused because of an organically determined process.
Testing the superficial modalities of sensation identified patchy impairment which, again, was not consistent with a spinal cord lesion nor with an organic mechanism.
The Romberg test was done and found to be normal.
On testing the range of cervical movement, there was an inconsistent decrease in movement to the right associated with complaints of pain.
The examination of the upper extremities did not identify abnormalities of superficial or deep sensation, normal muscle wasting and there was no discernible pattern of reflex changes allowing a diagnosis of radiculopathy or myelopathy to be applied. The distribution of the sensory impairments during testing was also inconsistent.”

The Medical Assessor reported:
“At the time of my examination, I found no evidence of a spinal cord lesion. Consideration of the documentation sent to me, including Dr Fairhall’s observations over a period of years, does not include any specific evidence of myelomalacia. The burden of Dr Fairhall’s careful report was his concern regarding the spinal cord compression and recommendation that a spinal decompression was indicated. No spinal decompression has been performed and there are currently no diagnostic signs of a spinal cord disorder, or organic disorder relevant to the body part requested to be assessed by the writer.
It is noted also that Dr O’Sullivan almost two and a half years ago performed a careful examination and considered the documentation then available, and his conclusions correspond closely with mine.
With regard, therefore, to the assessment I am required to make regarding a WPI assessment with regard to the presence of myelomalacia, I find no evidence of myelomalacia nor any neurological disorder involving the spinal cord, nor evidence of a cervical spine or lumbar spine disorder (including corticospinal impairment).”
The Medical Assessor noted and discussed the reports of Dr Fairhall, Dr O’Sullivan and
Dr Teychenné. He concluded:
“Because of the length of time which has elapsed since the injury in 2000 and the nature of that injury, I do not think it is justifiable to make an assessable impairment of the cervical spine or lumbar spine as a result of that injury. On the basis of probability, the injury at that time, more likely than not, involved muscular ligamentous strain. It is highly unlikely that that injury would have resulted in increased or acceleration of age-related degeneration which has evolved over 21 years since the injury in question occurred.”[8]
[8] MAC, para 10d.
The appellant submitted that the Medical Assessor fell into error in his assessment of the cervical spine and lumbar spine in failing to provide adequate reasons, failing to assess
Mr Chowdhury in accordance with the Guidelines, failing to conduct the appropriate examination to determine a diagnosis related estimate (DRE) of the cervical spine and lumbar spine and failing to consider all relevant medical evidence available to him.
The respondent submitted that the Medical Assessor was required to assess impairment resulting from the subject injury and he had correctly assessed that there was no such impairment. There was accordingly no need to assess impairment.
The Panel accepts that the Medical Assessor did fall into error with respect to his finding that the subject injury was confined to musculoligamentous strain and would have played no part in the increase or acceleration of age-related degeneration over the following 21 years.
That finding ignored the terms of the referral which stipulates that Mr Chowdhury had suffered injury to the cervical spine and lumbar spine including injury to the corticospinal tract. The Medical Assessor was required to consider the extent of impairment and the extent to which that impairment resulted from the subject injury. The Panel accepts that the Medical Assessor did not do this.
The Medical Assessor found on the balance of probabilities that the subject injury had been confined to musculoligamentous strain but did not go on to assess impairment which may have resulted from that finding. The Medical Assessor did not refer to the continuous history of back pain noted in the notes in evidence from the Marrickville Medical Centre which extend back to 2003. The fact that the parties had agreed, presumably on the basis of reasonably sound evidence, that Mr Chowdhury had suffered permanent impairment of the back and neck assessed under the Table of Maims was an undisputed fact which would reasonably be thought to require consideration by the Medical Assessor.
The Medical Assessor’s statement that the lapse of time since the injury in 2000 rendered it unjustifiable to make an assessable impairment of the cervical spine or lumbar spine as a result of that injury ignored the continuous history of symptoms and continuing treatment established by the general practice notes and the reports of the treating doctors in evidence.
The Medical Assessor’s conclusion that there was no impairment of the cervical spine or lumbar spine resulting from the subject injury was not supported by adequate reasons. The Medical Assessor explained that he could find no neurological compromise but then did not consider musculoskeletal causes for the symptoms reported by Mr Chowdhury since the subject injury.
While it was open to the Medical Assessor to find no neurological impairment, assessment of the cervical spine and lumbar spine in accordance with the Guidelines required consideration of alternative causes for impairment. In this respect demonstrable error has been established.

Further medical examination

Dr John Ashwell of the Appeal Panel conducted an examination of the worker on
24 August 2022 and reported to the Appeal Panel.
Following his examination of Mr Chowdhury on 24 August 2022, Dr Ashwell reported:
“Mr Alanur Chowdhury attended unaccompanied. Mr Farooque Ahmed Khan, an official interpreter, was present via telephone for the entire consultation from 11.38 am to 1.17 pm.
Mr Chowdhury was informed that the report findings could be made public and he was agreeable.
“1. The workers medical history, and where it differs from previous records.
The history of injury in the previous MAC by Dr R Mellick dated 15 April 2021 was confirmed with Mr Chowdhury, and nothing further was added.
He is 62 years of age and stated he had been working as a taxi driver since 1996. The work injury occurred on 10 October 2000 when he was lifting a passenger’s heavy suitcase out of the boot of his car. Within a few minutes he felt an electric shock and pain in his back followed later by pain involving the left side of his neck and left arm to the fingers. He kept driving for an hour or two but was then unable, so he returned home. He attended his general practitioner the next day. Later the pain extended down both legs and to the right shoulder, elbow and fingers. He had investigations and treatment of analgesics, physiotherapy, hydrotherapy and cortisone injections into the spine area. His neck and left shoulder symptoms did initially recover with treatment but recurred in 2010. He also had symptoms related to the gastrointestinal tract and urinary tract, erectile dysfunction and anxiety/depression. Surgery to the cervical and lumbar spine was recommended in August 2013 by Dr Jacob Fairhall (Neurosurgeon), but not undertaken as Mr Chowdhury did not have anyone to look after him post-surgery. He reduced his work hours and finally stopped work all together in April 2008. He denied any past history of spine symptoms.
2. Additional history since the original Medical Certificate was performed.
The statement of Mr Chowdhury dated 3 August 2020 was noted. His symptoms have been on going.
Since June 2021, he had daily recurring headaches across his forehead region and sore eyes. He saw an optometrist and ophthalmologist and was investigated with an MRI of his brain. He stated his vision was good and he only required reading glasses.
He denied any further injury. He has not had any spinal or other surgery and there were no plans for other treatment. He separated from his wife in 2014 and now lives with two other people in a house. He stated he does not do any physical activity and is not required to do any yard work or gardening. He was able to help with the housework and can manage his own self-care.
3. Present symptoms.
He had ongoing symptoms of constant pain in his neck, thoracic and lumbo-sacral area. He has pain radiating down his left arm and leg and intermittent pain in his right knee. He has loss of sensation and weakness of the left side of his body except the left little finger. He had permanent numbness in the left hand involving the thumb, index, middle and ring fingers. He has difficulty using the left arm above head height as it hurts his thoracic spine and shoulder blade area.
He can’t sleep on his left side. He wakes two or three times a night with pain. He did not have any dizziness or facial pain.
He has urinary frequency and urgency and consults a urologist every six months for injections. He sometimes has constipation and burning anal pain requiring medication. He has pain and erectile dysfunction.
He can walk only for 10 to 15 minutes before needing to rest due to left leg pain and paraesthesia in his whole left foot. Prolonged sitting also causes these symptoms. He can stand for no more than 15 minutes. He needs to use soft sole shoes.
His medical problems include hypertension and hypercholesterolemia requiring medication.
4. Present treatment
He does his own exercises at home. He only attended one session of physiotherapy in the last two years. He takes medication of Lyrica, Mobic, Endone, Norgesic, Endep and Valium. For his digestive and urinary system, he takes Nexium, Rosotense, Vesicare, Ractogesic Cream and Cialis.
He is under the care of his current general practitioner, Dr Dang.
5. Findings on clinical examination.
All movements were conducted in an active manner by Mr Chowdhury and he was advised to notify me of any increase in discomfort whereupon movement would be discontinued. Joint movements were measured using a goniometer and recorded. A full neurological examination was performed. He was advised that any physical examination would cause some discomfort but that would be short lasting.
During the examination he commented on pain with any movement or testing of his left upper and lower limbs.
There were variabilities when testing range of movement, power loss and sensory loss so these were repeated. Movement of joints and gait was noted through-out the entire consultation period and included in the findings. Inconsistencies were noted with the distribution of sensory loss, muscle weakness and absence of any significant muscle wasting.
His height was 176 cm and weight 82 kg. He was right hand dominant.
He walked slowly and unaided but with a normal gait and no limp. He was unable to walk on his toes or heels as this hurt his left foot. Romberg’s test for balance was within normal limits. He needed to use his right hand on the chair to help getting up as he stated he could not rely on the left side. He was able to undress and dress himself and get up and down from the examining couch without assistance. He could only half squat and was unable to one leg stand on his left leg.
There was equal circumference of muscle bulk when measuring the upper arms, forearms, thighs and calf area. There was normal muscle tone. He had equal leg length.
The cranial nerves were tested and found to be normal. There was no evidence of clonus. Vibration sense, temperature and position sense were normal and equal in upper and lower limbs.
There was inconsistent reduced sensation (grade 4 light touch) in most of his left side from behind the ear (C 3) down but not including the little finger which was normal. Sensation was also normal on the scalp, face and forehead. There was numbness (grade 3) in the left thumb, index, middle and ring fingers. There was slight wasting of the left thenar eminence but not the intrinsic muscles. There was weakness (grade 3) of thumb abduction, opposition and pincer action. Two-point discrimination was reduced to 10 mm in these fingers but normal at 6mm in the left little finger and right hand. Phalen’s test and tinnel’s sign at the wrist was negative. This most likely indicated a long standing left carpal tunnel syndrome. There was no ulnar nerve lesion.
There was generalized reduced power on the whole left side which was not consistent and appeared to be due to poor effort and complaining of pain. Finger dexterity was normal with observed writing, finger opposition and piano movements.
Examining the cervical showed normal posture but tenderness. There was reduced but symmetrical movement with no muscle guarding or spasm. Individual muscle power and reflex testing were normal. There was inconsistent global whole arm reduced sensation but not involving the little finger. There was no evidence of radiculopathy with insufficient criteria.
The thoracic spine had normal posture but tender. There was slight reduced but symmetrical rotation with no muscle guarding or spasm.
The lumbo-sacral spine was tender and with slight loss of lumbar lordosis. There was reduced but symmetrical movement with no muscle guarding or spasm. Individual muscle power was equal and normal with poor effort. The left knee reflex was reduced but the others including the adductor reflex were equal and normal on either side. There was inconsistent reduced sensation to light touch on the whole left side including the scrotum and buttock but not the right. There was equal and normal anal reflex, buttock muscle bulk and contraction. There was normal sensation on the right side. Straight leg raising was to 80 degrees both sides with no nerve root tension. Babinski sign was negative
The left shoulder had reduced range of movement with elevation to 90 degrees, extension 30 degrees, abduction 80 degrees, adduction 30 degrees and internal/external rotation 80 degrees each. There was no winging of the scapula and normal power of abduction. There was a negative impingement sign and no muscle wasting. Arm movement appeared inconsistently to cause pain in the shoulder blade and thoracic spine area. Other upper limb joint movements were normal and equal on both sides. Grip strength was slightly reduced on the left hand.
All lower limb joint movements were equal and normal. There was full bilateral knee joint movement with no effusion or crepitus. The left patella was enlarged inferiorly due to osteophytes and there was minor scarring of overlying skin. Peripheral pulses and capillary return were normal in the lower limbs.
At the end of the examination, he was asked if he had anything further to add and whether he had any increase in symptoms. He stated there was increased pain on his left shoulder and leg but nothing further to add to the report.
6. Results of any additional investigations since the original Medical assessment.
He has had further investigations since the last reported in the MAP brief.
2/8/2018 MRI of cervical and lumbar spine was viewed. C2/3 level was unremarkable. There was a posterior disc/endplate complex at C5/6 causing moderate canal stenosis. There was slight cord atrophy and a focus of myelomalacia to the right of the midline. There was bony foraminal narrowing mostly on the left side with effacement of the left C6 nerve root. There were similar but less severe findings at C6/7 and minor changes at C3/4 and C4/5. There was a focal atrophy of the cord at C3/4 in keeping with myelomalacia.
In the lumbar spine there was moderate to severe central spinal canal stenosis at L4/5 due to disc bulging, degenerative facet disease and congenital short pedicles. There was likely impingement of the L5 nerve roots and crowding of the cauda equina nerves. There were minor degenerative changes at L3/4 and L5/S1.
3/8/2018 MRI of left shoulder was viewed. There was mild osteoarthritis of the AC joint and sub-acromial bursitis. There was tendinosis without tear in the supraspinatus and infraspinatus tendons. The long head of biceps was intact with a small type 2 SLAP tear. The articular cartilage was intact.”

Assessment of impairment

The Panel accepts the findings at re-examination. The Panel noted the inconsistencies and variability of the clinical symptoms and signs that has been found over the years with different examiners. Despite this, there was evidence of cervical C5/6 spinal stenosis and lumbar L4/5 spinal stenosis, some evidence of cauda equina crowding and radiological suggestion of myelomalacia. There was no clinical evidence of radiculopathy in the upper limbs.
Mr Chowdhury stated that he prefers to continue with treatment directed at symptomatic management of his pain and had no plans to consider surgical treatment. Spinal surgery was initially offered by Dr Fairhall in August 2013 before Mr Chowdhury separated from his wife. Further recommendations for surgery were made but each time Mr Chowdhury declined to proceed.
The Panel therefore is of the opinion that the injuries are now stable and have reached maximum medical improvement (MMI) so impairment can be assessed as Mr Chowdhury has no intention of undergoing any further treatment and no further change is expected.

Cervical spine (including myelomalacia)

On assessing the cervical spine the DRE method (AMA 5 Page 392 Table 15-6) is used[9]. Table 15-5 of AMA 5 provides for classification as DRE Cervical Category I[10]:
“No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity and no other indication of impairment related to injury or illness, no fractures”
[9] Guidelines, chapter 4.1, page 24.
[10] Page 392.
Upon examination Dr Ashwell found the corticospinal long tract signs were inconsistent and inconclusive as sensory disturbance appeared to extend from cervical root C3 down, not consistent with the pathology evident on MRI scan of the spine, as the sensory loss was one sided and did not include the whole left hand. The motor loss was also variable and inconclusive. The Panel accepts those observations.
DRE I applies as there was restricted but otherwise symmetrical movement with no muscle guarding or spasm and no radiculopathy. The distribution of sensory loss and variable motor loss in the upper limbs was not consistent with any spinal cord involvement. Although radiological investigations suggested myelomalacia, the Panel is satisfied that the presence of myelomalacia does not give rise to any assessable impairment in this case and 0% WPI is applicable.
The Panel has considered the reports of Dr Fairhall, the treating neurosurgeon, who on examination on 3 December 2014 found C6 and C7 radiculopathies[11]. Dr Lee, in his report dated 10 May 2017 assessed Mr Chowdhury as DRE cervical class III, suggesting the presence of radiculopathy. However, on examination by Dr Ashwell, those signs were not present. The assessment of impairment is based on clinical assessment of
[11] Report of Dr Fairhall dated 3 December 2014 .
[12] Guidelines chapter 1.6.
[13] MAC, paragraph 5, page 4.
Mr Chowdhury as he presented on the day of assessment together with the relevant medical history and all available medical information.[12] The assessment is consistent with the conclusion reached by the Medical Assessor, Dr Mellick at the time of his examination[13].
The Panel considers that Dr Teychenné’s opinion that there is an incomplete cervical lesion is unsupported by evidence. In any event, assessment in accordance with the Guidelines does not result in a finding of assessable impairment attributable to the suggested incomplete lesion.
The Panel has considered the previous findings of permanent impairment in respect of the neck and back under the Table of Disabilities. The findings assist in understanding the areas which are considered to result from the subject accident. Those assessments of impairment were made on the basis of different guidelines and, in the absence of evidence by way of medical reports upon which those assessments were based, the extent of the earlier assessments cannot be given weight as they were not supported upon further examination in accordance with the Guidelines

Lumbar spine (including corticospinal tract impairment)

The Panel has considered the issue of causation, noting that Dr Mellick did not accept that any impairment arose from neurological injury. The radiological evidence discussed below establishes pathology at the L3/L4 and L4/L5 levels that potentially may give rise to neurological symptoms. Desiccation at L3/L4 was first noted in an MRI scan in 2003, with an overt lateral left sided disc protrusion impacting the left L3 nerve root being evident on the 2005 MRI scan.

The terms of the referral “lumbar spine (including corticospinal impairment)” are not limited to any particular lumbar spine level and the Panel accepts that the parties have agreed that corticospinal impairment is to be considered on the basis that the pathology present at the present date results from the subject injury[14]. This is consistent with Mr Chowdhury’s statement in which he describes the onset of pain in the lumbar spine extending down the thighs into the left and right knees within hours following the subject injury [15].
[14] Subject to any deduction authorised by section 323 of the 1998 Act or due to any subsequent, unrelated cause.
[15] Statement, paragraph 13.
The lumbar spine is assessed by reference to the DRE method (AMA 5 Page 384 Table 15-3). In assessing the lumbar spine, the Panel has had regard to the reports of the treating doctors, the reports of the respective independent medical experts and the imaging reports as well as the report of Dr Ashwell upon re-examination. The Panel did not have the benefit of the various scans themselves.
The records of the treating general practitioner from 2003 onward note complaints of lower back pain and left leg pain which are said to date from 10 October 2000. The MRI scan on
10 September 2003 is shortly reported as showing L3/4 and L4/5 disc desiccation.
The report of Dr Endrey-Walder dated 9 March 2009 reviewed scans of the lumbar spine. The report of an MRI scan dated 23 July 2001 of the lumbar spine showing “disc desiccation with diffuse bulging at the L4/5 level. Some degenerative changes were noted at the apophyseal joints resulting in narrowing of the sagittal end of the spinal canal”.
A CT scan of the lumbar spine on 18 December 2002 is reported as showing “developmental canal stenosis, particularly at L4/5 where the neuro exit foramen narrowing may be responsible for the left sided sciatica”.
The MRI scan of the lumbar spine performed on 8 September 2005 was reported to show:
“congenital narrowing of the canal due to short pedicles. At the L3-4 level there is a left foraminal disc protrusion with mass effect of the L3 nerve root. At L/5 there is mild central stenosis and some narrowing of the superior aspect of both the right and left lateral recess secondary to a disk bulge and posterior degenerative change. There is no foraminal nerve root compressive lesion.”
The report of the MRI scan performed on 3 April 2008 (Dr Schlapoff) was reported as showing significant narrowing of the posterior aspect of the L3/4 disc with small disc protrusion at L3/4 which did not appear to be impinging on nerves. At L4/5 there was a broad based posterior bulge which was reported as resulting in spinal stenosis “which contribution [sic] to this finding by the significant ligamentum flavum trophy and facet joint arthrosis noted”.
Dr Schlapoff, commented:
“The most significant findings of a high-grade spinal stenoses at the L4/5 level with associated impingement on the cauda equina. There is resultant thickening of the descending and then exiting L5 nerve roots bilaterally demonstrated and significant clumping of the cauda equina nerve roots involving the descending L4, as well as descending L5 and S1 nerve roots is suggested in the thecal sac bilaterally distributed more prominent on the right than the left.
Compared to the previous MRI report, this degree of arachnoiditis appears to have progressed as this was not found on the previous scan.
At the L3/4 level, there is a broad based disc bulge demonstrated which does not appear to significantly impinge on neural elements at this stage.
Bilateral facet joint arthrosis at the L3/4, L4/5 and L5/S1 level is noted.
The previously reported 2 mm intradural nodule opposite the L3/4 nerve root attached to the cauda equina is again noted to be unchanged and this may represent a small incidental intradural neurofibroma.”
An MRI scan on 19 December 2009 was reported as showing “developmental bony [illegible] stenosis [illegible] short pedicles at L3-4 and L4-5 with diameters [illegible] to 10 mm. Minor degenerative interbody change was noted at L4-five”.
The MRI scan of the lumbar spine on 19 July 2013 was reported:
“At L5/S1 there is posterior broad-based bulging of the disc. There is facet joint hypertrophy. The pedicles are congenitally relatively short. This has caused a moderate central canal stenosis. The neural foramina are preserved.
At L4/5 there is generalised posterior broad-based bulging of the disc. There is facet joint degenerative hypertrophy. The pedicles are congenitally short. This has resulted in a severe central canal stenosis and a slight degree of disk and bone encroachment extending into both neural foramina.
At L3/4 the [disc?] is narrowed and dehydrated. There is posterior and left lateral disc bulging with a left far lateral annular tear. The pedicles are congenitally short and this has resulted in mild narrowing of the spinal canal.
At all other levels the discs appear within normal limits and the spinal canal is of normal calibre.”
MRI scan of the lumbar spine on 2 September 2016 noted that the L1/2 and L2/3 levels were “unremarkable”. The radiologist recorded:
“At the L3/4 level, there is a small annular tear along the left foraminal aspect of the disc where there is a small foraminal protrusion. No posterior disc protrusion or central canal stenosis is present.
At the L4/5 level, there is moderate central canal stenosis due to a combination of broad-based posterior disc bulging, facet joint disease with bony hypertrophy, as well as some background congenital pedicular shortening. There is subsequent crowding of the cauda equina nerve roots. There is lateral recess narrowing on both sides, where there is potential impingement of both L5 nerve roots, more so on the right side.
At the L5/S1 level, no disc protrusion or significant central canal stenosis is present. There is degenerative facet joint disease on both sides with bony hypertrophy.”
The findings of Dr Ashwell upon re-examination with respect to the lumbar spine are set out above. Dr Ashwell’s findings with respect to the depressed left knee reflex are similar to those observed by the neurologist, Dr Dudley O’Sullivan, who examined Mr Chowdhury at the request of the insurer on 5 November 2018. Dr O’Sullivan reported[16]:
“Both knee jerks were preserved, although the left knee jerk was depressed compared to the right. Both ankle jerks were preserved and he had flexor plantar responses, i.e., there was no evidence in his lower limbs to suggest the cervical cord lesion. His abdominal reflexes were absent but he was significantly obese.”
[16] Application to Resolve a Dispute
Dr Lee, who examined Mr Chowdhury for the purposes of this claim, assessed him as falling within DRE lumbar category III. The relevant descriptors are found in Table 15-3 of AMA 5:

DRE Lumbar Category I

0% impairment of the Whole Person

DRE Lumbar Category II

5%-8% impairment of the Whole Person

DRE Lumbar Category III

10%- 13% impairment of the 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

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 non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings;

or

individual had a clinically significant radiculopathy and has an imaging study that demonstrates a herniated disc at the level and on the side that would be expected based on the previous radiculopathy, but no longer has the radiculopathy following Conservative treatment

or

fractures (1) less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondylolysis thesis) that is healed without alteration of motion segment integrity; (3) a spinous or transverse process fracture with displacement without a vertebral body fracture, which does not disrupt the spinal canal

Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, loss of relevant reflexes, loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location; impairment may be verified by electrodiagnostic findings

or

history of a herniated disc at the level and on the side that would be expected from objective clinical findings associated with radiculopathy, or individuals who had surgery for radiculopathy but are now asymptomatic

or

fractures (1) 25% to 50% compression of one vertebral body; (2) posterior element fracture with displacement disrupting the spinal canal; in both cases, the fracture has healed without alteration of structural integrity

The criteria with respect to radiculopathy are set out at paragraph 4.27 of the Guidelines,
“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 (AMA 5 Box 15-1, p 382)
·     muscle wasting – atrophy (AMA 5 Box 15-1, p382)
·     findings on imaging study consistent with the clinical signs (AMA 5, p382)
The Panel accepts that there is asymmetry of reflexes with partial loss in the left knee, satisfying one of the major criteria. As noted above there is radiological evidence from the MRI scans dating from 2005 showing left L3/4 foraminal disc protrusion with mass effect on left L3 nerve root. The Panel is satisfied that this constitutes concordant radiology satisfying one of the minor criteria.
Accordingly, the Panel is satisfied that Mr Chowdhury satisfies the criteria for assessment within DRE Lumbar Category III of the basis of “significant signs of radiculopathy” and is assessed pursuant to Table 15-3 as having 10% WPI.
On assessing the lumbar spine, the presence of symptoms indicating cauda equina involvement and the diminished left knee reflex make section 15.7 of AMA5 applicable – (“Cortico spinal tract damage”[17]). The Panel notes that various paragraphs of AMA 5 and the Guidelines use “corticospinal” also to include aspects of cauda equina assessment.
[17] AMA 5, paragraph 15.7, page 395
The left knee reflex is supplied from lumbar roots L2, L3 and L4. Narrowing at L3/4 is shown in the scans from 2005 onwards. The Panel accepts that the significant pathology at L4/5 has probably resulted in the fact that the earlier MRI scan does not refer to the L3/4 level.
Upon re-examination by Dr Ashwell, Mr Chowdhury’s gait was noted to be somewhat slow and restricted in distance, but he had no requirement for walking aids and was otherwise agile. There were no features of ataxia. The distance restriction was due to left leg pain under the left foot rather than any muscle weakness, calf pain or cerebral disorder.
Using Page 396 AMA5, Table 15.6, section C for station and gait, Mr Chowdhury is considered Class 1 using the best fit method based on clinical presentation. A value is obtained as indicated under s 15.7, to give an impairment of 5% WPI. The restrictions described by Mr Chowdhury in his statement and observations on re-examination support assessment at the middle of class 1 of section C giving impairment of 5%. That figure is then combined with DRE Lumbar Category III, as indicated on Page 396, of 10% to give a total figure of 15% WPI.
Mr Chowdhury reported on re-examination that he was managing homecare and self-care. He has reported difficulties with walking and inability to engage in social and recreational activities, but Table 15-6[18] does not allow an additional impairment in respect of impact upon his activities of daily living.
[18] AMA 5 page 396
There is no requirement for a deduction at either level as there was no evidence of any prior injury, abnormality or previous injury which contributes to the level of impairment assessed.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 April 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
The MAC issued by Dr Berry on 11 February 2021 specifically did not deal with impairment of the cervical spine or lumbar spine (including corticospinal tract/cauda equina impairment). That MAC was limited to assessment of:
·        sexual organs  5% WPI;
·        upper digestive tract          0% WPI;
·        lower digestive tract          0% WPI[19];
·        anal disease   2% WPI, and
·        fatty liver  0% WPI.
[19] The Guidelines refer to the "digestive tract", and direct assessment in accordance with Chapter 6 of AMA 5. AMA 5 provides for assessment of the “upper digestive tract” and “colon, rectum and anus”.
As noted above, the Panel has determined that impairment of the cervical spine is appropriately assessed at 0% WPI and the lumbar spine (including corticospinal impairment) at 15% WPI. In order to assess the total extent of impairment resulting from the subject injury it is necessary to include those assessments by reference to the Combined Values Chart[20].
[20] AMA 5 page 604.
The MAC issued by the Panel following revocation of the MAC dated 15 April 2021 by Medical Assessor Mellick, necessarily includes the assessments contained in the MAC dated 11 February 2021 and is intended to replace that MAC in order to complete the referral originally made in the proceedings.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Assessed for the purposes of section 32A of the Workers Compensation Act 1987 as injury occurring after 1 January 2002

Matter Number:	6007/20
Applicant:	Alanur Chowdhury
Respondent:	Jomshed Ali

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 Dr Ross Mellick and issues this new Medical Assessment Certificate as to the matters set out in the Table below, incorporating and replacing the incomplete Medical Assessment Certificate of Dr Neil Berry.

Table - Whole Person Impairment (WPI)

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 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)
1. Sexual organs	10/10/2000	Chapter 1, Page 6, Paragraph 1.31		Chapter 7, page 156, Table 7-5 Class 1		5	0	5
2. Upper digestive tract	10/10/2000	Chapter 16, page 78 – 79, Paragraph 16.9		Chapter 6 page 128, Table 6-4 Class 1		0	0	0
3. Lower digestive tract	10/10/2000	Chapter 16, page 78 – 79, Paragraph 16.9		Chapter 6 page 121, Table 6-3 Class 1		0	0	0
4. Anal disease	10/10/2000	Chapter 16, page 78 – 79, Paragraph 16.9	Chapter 6 page 131, Table 6-5 Class 1		2		0	2
5. Fatty liver	10/10/2000	Chapter 16, page 78 – 79, Paragraph 16.9	Chapter 6 page 133, Table 6-7 Class 1		0		0	0
6. Cervical spine including myelomalacia	10/10/2000	Chapter 4, pages 24, 25, 4.1 to 4.27	Chapter 15, Section 15.3, 15.6, Table 15- 5, 15.12,		0		0	0
6. Lumbar spine (including corticospinal impairment)	10/10/2000	Chapter 4, pages 24, 25, 4.1 to 4.16 4.34	Chapter 15, Section 15.3, 15.4, 15.7, Table 15-3 and 15.6, section C.		15		0	15
Total % WPI (the Combined Table values of all sub-totals)							21%

[2022] NSWPICMP 420

25 October 2022