Corestaff NSW Pty Ltd v Lashbrook

DETERMINATION OF APPEAL PANEL
CITATION:	Corestaff NSW Pty Ltd v Lashbrook [2024] NSWPICMP 860
APPELLANT:	Corestaff NSW Pty Ltd
RESPONDENT:	Jack Lashbrook
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	13 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal against findings of non-lead Medical Assessor (MA) in respect of assessment of 2% whole person impairment (WPI) for interference with ADLs; Medical Appeal Panel (Panel) satisfied that MA erred in not providing adequate reasons for the assessment of 2% for ADLs; worker re-examined; the assessment of total WPI by the Panel was the same as that made by the MA; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 September 2024 Corestaff NSW Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Rob Kuru (Non-Lead Assessor) and Medical Assessor Kerrie Meades (Lead Assessor), who issued Medical Assessment Certificate on 6 August 2024 consolidating her assessment and the assessment of Medical Assessor Kuru.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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

Jack Lashbrook (Mr Lashbrook) suffered an injury to his cervical spine, lumbar spine, right upper extremity (shoulder), right lower extremity (hip) and visual system during his employment with the appellant on 26 March 2020.
Mr Lashbrook lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 6 December 2022 in which he claimed an amount of $55,600 in respect of 21% WPI of the cervical spine, lumbar spine, right upper extremity, right lower extremity and visual system with a date of injury of 26 March 2020.
The matter was heard by Member Karen Garner who issued a Certificate of Determination on 5 April 2024 in which she made the following determinations and orders:
“The Commission determines:
1. The applicant sustained injury to his lumbar spine, cervical spine and right shoulder on 26 March 2020 arising out of and in the course of his employment with the respondent pursuant to s4(a) of the Workers Compensation Act 1987 and his employment was a substantial contributing factor pursuant to s9A (1 of the of the Workers Compensation Act 1987.
2. The matter is remitted to the President to be referred to a Medical Assessor for an assessment of whole person impairment in respect of the cervical spine, lumbar spine, right upper extremity (shoulder), right lower extremity (hip) and visual system in respect of injury on 26 March 2020.
The Commission orders:
3. The matter is remitted to the President to be referred to a Medical Assessor for assessment as follows:
Date of injury: 26 March 2020.
Body parts: cervical spine; lumbar spine; right upper extremity (shoulder); right lower extremity (hip), and visual system.
Method: whole person impairment.
4.The materials to be referred to the Medical Assessor are to include:
(a) Application to Resolve a Dispute and all attachments;
(b) Reply and all attachments, and
(c) Application to Admit Late Documents dated 18 January 2023 and all attachments.”
In accordance with a Certificate of Determination dated 5 April 2024, Mr Lashbrook’s claim for whole person impairment (WPI) resulting from injury on 26 March 2020 was referred to two Medical Assessors. The body parts referred were recorded as: “cervical spine, lumbar spine, right upper extremity (shoulder), right lower extremity (hip) and visual system”.
The Commission appointed two Medical Assessors to assess Mr Lashbrook’s WPI resulting from the injury on 26 March 2020. Medical Assessor Rob Kuru, orthopaedic surgeon was appointed Non - Lead Assessor (Non-Lead Assessor) and Medical Assessor Kerrie Meades, ophthalmologist, was appointed Lead Assessor. Medical Assessor Kuru was appointed to assess the cervical spine, lumbar spine, right upper extremity (shoulder) and right lower extremity (hip). Dr Meades was appointed to assess the visual system.
The Non-Lead Assessor examined Mr Lashbrook on 1 May 2024 and issued an undated MAC (the MAC) in which he assessed 7% WPI of the lumbar spine, 0% WPI of the cervical spine, 2% WPI of the right upper extremity (shoulder) and 0% WPI of the right lower extremity (hip). The Lead Assessor examined Mr Lashbrook on 15 May 2024 and assessed 14% WPI of the visual system but deducted one half for a previous condition, which resulted in an assessment of 7% WPI of the visual system. Therefore, the total WPI assessed as a result of the injury on 26 March 2020 in the Medical Assessment Certificate issued by the Lead Assessor was 15%.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and that Mr Lashbrook should undergo a further medical examination because there was insufficient information upon which to make a determination.

EVIDENCE

Documentary evidence

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

Further medical examination

Medical Assessor Roger Pillemer of the Appeal Panel conducted an examination of the worker on 19 November 2024 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessors 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.
The appellant’s submissions include the following:
(a)    In the Non-Lead Assessor MAC (undated), the assessment of 7% WPI in respect of the lumbar spine was made up of 5% WPI under DRE category II and 2% WPI for the impact on activities of daily living (ADLs).
(b)    The appeal is bought against the Non-Lead Assessor’s assessment of 2% WPI for the impact on ADLs on the basis that the assessment is inconsistent with the Guidelines, the MAC and the available evidence. Paragraph 4.35 of the Guidelines provides a guide in relation to assessment of impairment for restriction on ADLs.
(c)    The Non-Lead Assessor did not comment on any of Mr Lashbrook’s self-care restrictions, household or domestic capabilities or make any reference to what restrictions the lumbar spine injury had on his ADLs.
(d)    The Non-Lead Assessor did not record Mr Lashbrook to be restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances. Nor did the Non-Lead Assessor record Mr Lashbrook to be restricted in any other tasks similar to that provided in the Guidelines in relation to an assessment of 2% WPI
(e)    Under social activities and ADLs on page 3 of the MAC, the Non-Lead Assessor noted that Mr Lashbrook’s walking endurance was now less than one hour, and he was no longer able to surf. No other ADL restrictions were recorded in the MAC and this more squarely falls within the Guidelines applicable for an assessment of 1% WPI, rather than an assessment of 2% WPI.
(f)    The Non-Lead Assessor diagnosed Mr Lashbrook with soft tissue injuries to the neck, right shoulder and lumbar spine. The Non-Lead Assessor’s physical examination as reported did not reveal any findings that would indicate restriction of ADLs beyond the limited restrictions recorded by the Non-Lead Assessor.
(g)    The appellant’s Independent Medical Examiner (IME), Dr Robinson, in a report dated 3 January 2023 assessed 5% WPI in respect of the lumbar spine and did not consider any additional impairment for the impact on ADLs was warranted.
Dr Robinson reported that that Mr Lashbrook’s activities had been diminished but mainly due to his right hip symptoms.
(h)    In Dr Robinson’s earlier report dated 27 July 2022, he noted that Mr Lashbrook was interested in returning to diving activities, undertook fishing activities on occasion, lived with his parents so had no requirement to undertake lawnmowing or gardening, occasionally cooked meals, and had not returned to driving due to losing his licence. The description provided by Dr Robinson supported his decision not to apply a WPI assessment for ADLs.
(i)    Accordingly, the description of Mr Lashbrook’s current ADLs and the findings of the Non-Lead Assessor does not support a finding of 2% WPI for the impact on ADL as a result of impairment in respect of the lumbar spine. This constitutes an error in the MAC.
(j)    Whilst Mr Lashbrook may have some limited restriction on recreational activities (i.e. surfing) there is no evidence in either the MAC or any of the other evidence that such restriction is due to the lumbar spine injury.
(k)    Therefore, the assessment of the Non-Lead Assessor was made on the basis of incorrect criteria and/or that the MAC contained a demonstrable error.
(l)    The MAC should be revoked, and a new MAC issued excluding any impairment assessment for ADLs.
The respondent’s submissions include the following:
(a)    Ground 1 – incorrect criteria. The appellant did not submit that the Non-Lead Assessor failed to apply incorrect or wrong guidelines in making his assessment, rather that the Non-Lead Assessor ‘s classification of the impact on ADLs caused by injury to the lumbar spine in accordance with paragraph 4.35 should have been different.
(b)    Therefore, this ground of appeal was not established because the Non-Lead Assessor clearly applied the correct Guidelines, namely, paragraph 4.34 of the Guidelines. The appellant alleges errors in the factual data that the Non-Lead Assessor applied to the appropriate criteria.
(c)    This ground of appeal is not made out.
(d)    Ground 2 – demonstrable error. In this matter, the ground of appeal concerns a mere difference of opinion and does not reveal a demonstrable error; there was no glaringly improbable classification, the Non-Lead Assessor was not unaware of significant matters, there was no clear misunderstanding on the Non-Lead Assessor’s part and no unsupportable reasoning process.
(e)    The Non-Lead Assessor relied upon a thorough history, a comprehensive physical examination and a review of all available documentation as well as his clinical judgment when assessing the impact on Mr Lashbrook’s ADL caused by the injuries to the lumbar spine.
(f)    While the Non-Lead Assessor did not document specific impacts on ADLs, he stated that Mr Lashbrook suffered from the following present symptoms:
(i)right-sided pain in the buttock , radiating into his hamstring and later lower leg;
(ii)pain that radiates from the buttock down his leg and up into his neck if he sits;
(iii)walking endurance is less than one hour, and
(iv)he previously enjoyed surfing which he is no longer able to do.
(g)    Documents available to the Non-Lead Assessor included evidence which demonstrated how the lumbar spine injury impacted on ADLs (report of Dr James Bodel dated 20 June 2022 and report of Dr Robinson dated 27 July 2022).
(h)    In light of this evidence, which was available to the Non-Lead Assessor, the Non-Lead Assessor’s finding of 2% WPI for impact on ADLs was clearly open on the evidence, based on clinical judgment and not tainted by an error of fact or law. It is consistent with the totality of the evidence including the opinion of Dr Bodel who found 2% WPI for impact on ADLs.
(i)    The recorded impairments would reasonably be expected to adversely affect
Mr Lashbrook’s ADLs and cause restrictions with usual household tasks such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances (the examples contained in Clause 4.35 of the Guidelines).
(j)    The assessment is correct and should be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

Ground 1 – assessment of ADLs

The appellant submitted that the Non-Lead Assessor made the assessment of 2% WPI for interference with ADL on the basis of incorrect criteria and the assessment contained a demonstrable error. In particular, the appellant submitted that the description of
Mr Lashbrook’s current ADLs and the findings of the Non-Lead Assessor did not support a finding of 2% WPI for the impact on ADLs as a result of impairment in respect of the lumbar spine.
The interpretation of activities of daily living is set out in paragraphs 4.33, 4.34 and 4.35 of the Guidelines. Paragraph 4.34 provides that the diagram below should be used as a guide to determine whether 0%, 1%, 2% or 3% should be added to the bottom of the appropriate impairment range.
Paragraph 4.33 provides:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
Paragraph 4.34 also provides: “This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury”.
Paragraph 4.35 provides:
“The diagram is to be interpreted as follows: Increase base impairment by:
• 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
• 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
• 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
The Appeal Panel reviewed the evidence in the matter.
In the undated MAC of the Non-Lead Assessor, the Non-Lead Assessor under present symptoms noted that Mr Lashbrook “has right sided pain in his buttock, heading into his hamstring and lateral lower leg.” The Non-Lead Assessor noted that if Mr Lashbrook “sits, he gets pain that arises from his buttock and heads down his leg and up into his neck”.
Under “Social Activities/ADL” the Non-Lead Assessor wrote: “Mr Lashbrook reports his walking endurance is now less than an hour. He previously enjoyed surfing, which he is no longer able to do”.
On examination, the Non-Lead Assessor made findings including:
“Neurological examination of the lower limbs demonstrated symmetrical knee and ankle reflexes with down going Babinskis. Peripheral pulses were intact. There were positive tension signs in the right leg.
The hip range of motion was normal and symmetrical bilaterally. Quadriceps circumference was 49cm and equal. Gastrocnemius circumference was 36cm and equal.”
The Non-Lead Assessor, noting that Mr Lashbrook was thrown forcefully against an electrical switchboard when an electric motor exploded, made a diagnosis of soft tissue injury to the lumbar spine.
The Non-Lead Assessor, at Part 9 of the MAC, noted that his assessment of impairment was based on “A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5.”
In explaining his calculations of impairment, the Non-Lead Assessor wrote:
“The lumbar spine is assessed according to AMA 5 page 384, Table 15.3 as DRE Lumbar Category II (5% whole person impairment). According to SIRA page 28, paragraph 4.34, a further 2% is assessed for restrictions of activities of daily living.
The hip is assessed according to AMA 5 page 536, 17.9 and 527, 17.3. 0% whole person impairment is assessable due to restricted motion in the hip. Clinically, symptoms attributable to the hip are likely originating from the lumbar spine.”
Dr Bodel, consultant orthopaedic surgeon, in a report dated 20 June 2022, noted that current complaints included lower back pain and right buttock and hip pain. Under “Social History”, Dr Bodel noted that Mr Lashbrook used to enjoy running and surfing and had not been able to return to those activities and was unable to return to a gymnasium-based program which he used to enjoy.
Under “Activities of Daily Living”, Dr Bodel wrote: “He can drive an automatic motor vehicle and his driving tolerance is about 20 to 30 minutes. He struggles with household maintenance and cleaning activities”.
On examination, Dr Bodel wrote:
“There is tenderness at the lumbosacral junction on the right side and guarding in that area and he reaches forward in flexion with his hands to the knees and there is backache at this point and also on extension with a reduced range of lateral bending to the left.”
Dr Bodel considered that the ADLs had been moderately compromised in accordance with Item 4.24 and Item 4.35 of the Guidelines giving a 2% loading to his assessment of the cervical spine. Dr Bodel assessed the lumbar spine as DRE Lumbar category II.
Dr Paul Robinson, consultant orthopaedic surgeon, in a report dated 27 July 2022, under “Present Condition” noted:
“He states he has constant pain varying from a maximum of 6/10 to 9/10. The latter is present if he sits with his hip at 90° as in a normal chair. If he has the hip extended, it does not result in severe pain. The pain passes down into his legs and is particularly present after walking for approximately 30 minutes. He complains of a paraesthesia only in his right foot in the above areas - the second to fourth toes. Bending and lifting will increase the pain. He states he is able to lift objects but not when he bends from the floor.”

Under “Activities”, Dr Robinson noted:
“He believes he would like to return to dive activities - he is a dive master and he did work as such in 2016 but he has not undertaken this because of the fear of diving with the psychological problems he has.
He lives with his parents and has no requirement to undertake mowing or gardening. He occasionally cooks.
He lives on Russell Island and does fish on occasions. He has not returned to driving having lost his licence and he is also unable to jet ski at present.”
On examination, Dr Robinson made the following findings:
“He has no change in his normal lumbar lordosis. There is no scoliosis, no muscle spasm and there is only mild tenderness which is present in the right sacroiliac joint.
The range of movement of his spine allows him to reach to below his knees on forward flexion. Left lateral rotation allows him to reach to below his knee but less so when he does so on the right. Rotation is normal. Extension is normal.
He is able to walk on his toes but he has trouble standing on his heels.
Straight leg raising is 60° on the right and 90° on the left. All reflexes are present and equal.
Power of all muscle groups so tested is normal, particularly those supplied by the L5/S 1 nerve roots.
Sensation is altered but in no definitive nerve root distribution. There is an increase in sensation in the right first toe and decreased sensation in the second to fifth toes.
When he sits at 90°, he complains of pain and also when the right leg is stretched to more than 60°. I could detect no evidence of hip flexion loss. Straight leg raising does produce pain in his right sacroiliac joint. Rotation from a clinical point of view is normal, although he states it is painful.”
In commenting on Dr Bodel’s assessment, Dr Robinson wrote:
“Commenting on Item 16, Dr Bodel has classified him as having DRE Cervical Category II and an impact on ADLs. I do not believe that this is present at this stage.
His activities have been diminished but mainly by his right hip symptoms. He thus does have a DRE Category II with 5% impairment of whole person relating to my examination.
With respect to his lumbar spine, he does have asymmetric loss of movement, he has a history of injury to this area and a complaint of radicular pain without serious objective findings of such. I believe he thus does satisfy the requirements for DRE Lumbar Category II and 5% impairment of his whole person.”
In a report dated 3 January 2023, Dr Robinson under “Lumbar Spine” wrote:
“From Table 15-3 on page 384 of AMA Fifth Edition, he has symptoms which classify him as having DRE Category II impairment with 5% whole person impairment related to these symptoms.
There is no pre-existing condition to require a decrease in such.
There is no additional impairment for impact on ADLs.”
The Appeal Panel is satisfied that the Non-Lead Assessor applied the correct criteria, that is, the correct Guidelines, namely, paragraph 4.34 of the Guidelines.
However, the Appeal Panel considered that the Non-Lead Assessor failed to provide adequate reasons for his assessment of 2% WPI for interference with ADLs. The Non-Lead Assessor did not take a proper history of interference with ADLs and merely referred to an inability to surf and reduction in walking endurance. The Appeal Panel is satisfied that the failure to provide adequate reasons for the assessment of 2% for ADL was a demonstrable error.
The Appeal Panel concludes that it was necessary for Mr Lashbrook to undergo a further medical examination because there is insufficient evidence on which to make an assessment of ADLs.
As noted above, Medical Assessor Roger Pillemer re-examined Mr Lashbrook on
19 November 2024. Medical Assessor Pillemer provided the following report:
“1. The workers medical history, where it differs from previous records
Mr Lashbrook was examined by Dr R Kuro (orthopaedic surgeon) on 10 May 2024. I read Mr Lashbrook the history obtained by Dr Kuru and he noted that he does not take Tapentadol for pain relief anymore and the only other alteration was that his asthma medication has been changed.
As noted under the heading ‘Social activities/ADL’, Mr Lashbrook reported that his walking endurance was less than an hour, and that he previously enjoyed surfing which he was no longer able to do.
On specific questioning Mr Lashbrook is significantly restricted because of his low back and right lower limb in particular, and also because of his neck and right arm. His maximum walking time would be half an hour and he would get symptoms in his buttock and right lower limb after 20 minutes. He drives an automatic.
He lives at home with his partner and he can help with the housework and he can cook, and he can vacuum with his left arm. He tries to vacuum with his right but cannot do this for more than a few minutes. He does not hang washing on the line but he hangs this over the balcony. All bending and lifting activities with regard to housework such as making the bed, are limited because of his ongoing back problems.
2. Additional history since the original Medical Assessment Certificate was performed
Cervical Spine
Mr Lashbrook complains of significant discomfort in the right side of his neck and right side of his head going down to the base of his neck. These symptoms are described as being constantly present. He also gets numbness and pins and needles radiating down his right arm and into the fingers of his right hand, particularly the medial three digits.
His neck pain and arm pain are described as being constantly present and ranging between 4-10/10, and symptoms increased for the first three months and have been fairly stable since then.
Lumbar Spine
Mr Lashbrook says that his main discomfort is actually in his right buttock region radiating down his right leg and into the toes of his right foot, particularly the little toes. These symptoms were also noted soon after his injury and gradually became worse, and are fairly stable at this stage. Symptoms range between 4-10/10 and are constant.
Symptoms are aggravated by sitting for long and interestingly, Mr Lashbrook notes that he tends to sit on his left buttock cheek, taking the pressure off his right buttock cheek. This was also noted during the consultation.
Symptoms are aggravated by extension of his back, and he does get some relief by leaning forward and by sitting on his left buttock as mentioned.
3. Findings on clinical examination
Mr Lashbrook is a strongly built adult male who undresses and dresses without any particular problem and walks with a slightly antalgic gait on the right side. He is able to walk on heels and toes and gets his fingertips 6cm below his knees in flexion and lateral flexion to the right is significantly restricted compared to the left.
Straight leg raising is present to 80° on the left and becomes uncomfortable at 50° on the right. Reflexes are generally depressed but his left ankle reflex was just present with facilitation, but I was unable to elicit his right ankle reflex.
Importantly, Mr Lashbrook has hypoaesthesia to pinprick over the dorsum of his right foot extending to the lateral border and sole of his right foot in the L5 and S1 distributions. Equally importantly, he has weak extension of extensor hallucis longus (EHL) and softening of extensor digitorum brevis (EDB). He also has significant weakness of eversion of his right foot.
There was no muscle wasting to measurement.
Mr Lashbrook does not complain of any discomfort to palpation in the lower lumbar region but does complain of marked discomfort in his right buttock area over the sciatic nerve. Percussion in this region causes paraesthesias to radiate all the way down his right leg and into his right foot, particularly the lateral foot and toes.
Mr Lashbrook has a satisfactory range of flexion and extension movements of his cervical spine, and rotation to the left was slightly restricted, but rotation to the right is significantly restricted because of pain.
He has a satisfactory range of left shoulder movement but was reluctant to flex or abduct beyond 90° on the right side because of discomfort. Rotational movements however in the dependent position were unrestricted with slight discomfort on internal rotation.
Importantly, Mr Lashbrook has hypoaesthesia to pinprick of the whole of the right side of his lower face with the involvement of three of the four nerves that enter the posterior triangle behind the posterior border of sternomastoid, namely the transverse cervical, great auricular, and lesser occipital. Supraclavicular sensation was equivocal. Percussion over these nerves as they enter the posterior triangle causes significant paraesthesias to radiate in the whole right side of his head and face, and towards his right eye (very positive Tinel’s sign).
In addition, he has diffuse hypoaesthesia to pinprick of the whole of his right upper limb in the distribution of the brachial plexus, with sparing of the medial aspect of his right upper arm which is supplied by the intercostobrachial nerve (T2), and not by the brachial plexus.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Lashbrook has not had any further investigations carried out.”
The Appeal Panel adopts the report and findings of Medical Assessor Pillemer in relation to the lumbar spine.
The Appeal Panel notes that assessment of the effect of the injury on ADLs is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports. The clinical findings by Medical Assessor Pillemer, together with the history of restriction in bending and lifting activities with regard to housework such as making the bed because of his ongoing back problems, and restriction in surfing and walking warrant an addition of 2% WPI for interference in ADLs to the assessment made in respect of the lumbar spine.
The Appeal Panel noted that according to Dr Robinson, Mr Lashbrook was seen by a neurologist, Dr Sheikh, who performed nerve conduction studies which were normal.
However, Medical Assessor Pillemer noted that Mr Lashbrook could not recall the Non-Lead Assessor carrying out any sensory testing. Medical Assessor Pillemer formed the opinion that Mr Lashbrook has:
(a)    A sciatic nerve lesion on the right side with involvement particularly of the L4 and L5 components of the sciatic nerve. This is evidenced by:
(i)the distinct sensory loss;
(ii)the motor weakness;
(iii)the wasting of extensor digitorum brevis;
(iv)the restricted straight leg raising, and
(v)in addition as noted, percussion over the sciatic nerves that leaves the pelvis causes the paraesthesias to radiate down into his right foot.
(b)    Mr Lashbrook also has sensory involvement of the brachial plexus with involvement of the whole of his right arm confirmed by the sensory sparing of the medial aspect of his right upper arm which is supplied by the intercostobrachial nerve (T2).
(c)    In addition, he has involvement of the sensory nerves entering the posterior triangle behind the posterior border of sternomastoid.
In view of these findings by Medical Assessor Pillemer of widespread neurological involvement, the Appeal Panel recommends that Mr Lashbrook see his general practitioner for further management and investigation. Medical Assessor Pillemer was of the view that
Mr Lashbrook needs to see a neurologist with a specific request that a sciatic nerve lesion on the right side be considered, as well as widespread sensory involvement of the right side of his head and right arm, extending from C2 to T1.
In summary, the assessment of total WPI by the Appeal Panel was the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on 6 August 2024 should be confirmed.

[2024] NSWPICMP 860

13 December 2024