David v MD Scopes Pty Limited
[2022] NSWPICMP 322
•10 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | David v MD Scopes Pty Limited [2022] NSWPICMP 322 |
| APPELLANT: | Dennis David |
| RESPONDENT: | MD Scopes Pty Limited |
| APPEAL PANEL: | Member Deborah Moore Medical Assessor Gregory McGroder Medical Assessor J Brian Stephenson |
| DATE OF DECISION: | 10 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant appealed the diagnosis-related estimate (DRE) II categorisation in respect of the cervical spine and submitted DRE III was appropriate; Panel found two criteria (of which one must be major) must be present to satisfy a DRE III categorisation; no evidence to support DRE III; Held — Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 May 2022 Dennis David (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on
6 April 2022.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested in the cover document of the appeal, the submissions confirmed that no re-examination was required, and in any event, we consider that we have sufficient information before us to enable us to determine this appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
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 MA erred in placing the appellant in DRE Category II in respect of the cervical spine rather than DRE III.
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the cervical spine resulting from an injury on 6 June 2018.
The MA obtained the following history:
“At 8.15 am in June 2018 he was carrying and lifting a 40kg box going up to the second floor with his work colleagues and after three days started to feel neck pain and numbness radiating down to all the digits of his left hand. During the course of his employ he had to study laparoscope lenses repetitively which also caused some neck strain. He saw his local doctor and a cervical spine MRI was arranged which showed disc protrusions at C5/6 and C7/T1. He had physiotherapy treatment and did exercises at home using pulleys and Therabands. He did exercise physiology but lifting weights aggravated his left elbow and left side of his neck. He required anti-inflammatories.”
After setting out details of Mr David’s present treatment, the MA then noted present symptoms as follows:
“He reports left sided neck pain with intermittent paraesthesia in his left hand. He reports intermittent pain in the region of the lateral epicondyle of his left elbow and reports this is exacerbated by repetitive activities lifting and carrying.
His neck pain can disturb his sleep. His neck pain and stiffness impact on his ability to drive, reverse park, change lanes and check his blind spots. He reports a driving tolerance of over half an hour. He has residual muscle pain and reports his shoulder stiffness has settled.”
In setting out “Details of any previous or subsequent accidents, injuries or conditions” the MA said:
“He did have an ultrasound of his left shoulder in May 2016 which showed a rotator cuff tear and this was transiently exacerbated in the subject accident. He has had no subsequent accidents.”
After setting out details of Mr David’s general health and the impact of his injuries on his activities of daily living, the MA then set out his findings on examination as follows:
“On examination on March 29, 2022 there was mild stiffness of his neck with flexion decreased by one quarter and extension decreased by one third and lateral rotation to the left decreased by one third and to the right by one quarter. Lateral flexion was decreased by one third bilaterally. There was tenderness of the mid and lower cervical facet joints on the left and the lower cervical spinous processes including the vertebra prominens. There was mild tenderness of the left trapezius muscle. The left supraclavicular brachial plexus was non tender. His cervical foraminal compression test was negative as was his brachial stretch test.
The biceps and supinator jerks were present in his left upper extremity but his left triceps jerk was difficult to elicit. His distal power was satisfactory, grade five out of five, thenar power, intrinsic power and grip strength was grade five out of five bilaterally and there were no objective sensory losses in either hand today.
His proximal power of shoulders and elbows was grade five out of five. There was 1cm of wasting of his left upper arm and 1cm of wasting of his left forearm.
There was tenderness adjacent to the left lateral epicondyle and radio-humeral joint and his provocation test for tennis elbow was mildly positive. He reports this area becomes more inflamed after repetitive activity.
He had a full symmetrical range of motion of both shoulders, elbows, wrists and hands and a good range of motion of both thumbs and fingers.”
The MA then documented the radiological material he had before him as follows:
“MRI of his cervical spine on May 1, 2019 showed a posterior disc protrusion at C6/7 nudging the anterior cord and at C6/7 a high grade left and moderate grade right neural foraminal stenosis with contact of the exiting C7 nerve roots and a left neural foraminal soft tissue disc protrusion at C7/T1 contacting the left C8 nerve root. The disc height was slightly reduced at the C5/6 level.
Ultrasound of the left elbow on December 11, 2020 was reported on as normal.
Old ultrasound of the left shoulder on May 27, 2016 showed small tears involving the supraspinatus, subscapularis, infraspinatus tendon without impingement. The labrum appeared intact.”
The MA summarised the injuries and diagnoses as follows:
“This claimant was lifting a heavy carton at work and sustained a neck and left shoulder strain injury and subsequently developed lateral epicondylitis of the left elbow.
His left shoulder injury has settled.
He has had a significant neck strain injury with discal protrusions and residual shoulder brachalgia, trapezial muscle pain and left sided facet arthralgia. The left triceps jerk is absent today and while he has good power in the left upper extremity he has been working hard with Therabands and pulleys to maintain the strength of his left upper extremity. He has had intermittent epicondylitis of the left elbow without obvious tear of the ECRB tendon on ultrasound.”
The MA assessed 7% WPI from which he deducted one-tenth for the pre-existing condition, leaving a total of 6% WPI.
He explained his reasons as follows:
“The cervical spine is DRE Category II with impaction on driving and sleeping giving 7% whole person impairment, less one tenth for pre-existing cervical spondylosis, giving 6% whole person impairment.
In making that assessment I have taken account of the following matters:- The examination findings of dysmetria on active neck motion, investigation findings showing disc protrusions in his lower cervical spine and the matter of history of the lifting strain injury putting traction on his left shoulder and left neck, and residual trapezial muscle pain and facet arthralgia clinically.”
The MA then turned to consider the other medical opinions, stating:
“The IME report of Dr Uthum K Dias on March 17, 2020 noted that at the time of the his injury, the claimant was working for MD Scopes Pty Ltd., as a technician on a full time basis and his job was to use a microscope to examine microscopic components in the laparoscope which involved prolonged sitting, prolonged neck flexion and repetitive fine manual tasks with both hands. He worked in a laboratory type environment…
He recalled that he had sustained a work related injury to his neck in November 2010 due to the nature and conditions of his such employ and was diagnosed with degenerative changes in the cervical spine which was managed with physiotherapy and analgesia and his symptoms of neck pain and radicular pain in the left upper limb resolved within six months, by mid 2011…
In the subject workplace accident on June 6, 2018 he was assisting his employer who was moving, and was carrying a box containing components of a side table, the box weighing 40kg up a flight of stairs to the floor above, and developed immediate pain in his neck with became more severe, saw a physio and sent to the medical centre.
Dr Dias noted that he continued to have pain and saw a Neurosurgeon on one occasion, Dr Jonathon Parkinson regarding his neck condition on July 13, 2018 and saw a Pain Specialist, Dr Lewis Holford on two occasions, May 21, 2019 and August 26, 20190 due to his cervical spine condition and left upper limb radicular complaint.
After examination Dr Dias found that there was tenderness in the claimant’s neck on the left side with tenderness of the trapezius muscle and that extension was limited and lateral flexion and lateral rotation were limited on the left, and restricted on the right. He found that there was altered sensation in the C7 and C8 dermatomes with reduced left biceps jerk which was not found today.
[Dr Dias] found that the claimant qualified for DRE Category III for the cervical spine with objective sensory radicular signs in the left C7 and left C8 dermatomes On review today it was felt that the claimant did have radicular complaint…
Today, although it was difficult to elicit there appeared to be no thenar weakness or intrinsic weakness in the left hand and no sensory changes and the claimant was DRE Category II.
Dr Johnathon Parkinson, Neurosurgeon noted in his report of July 13, 2018 that the claimant had a cervical disc herniation and that he recommended a left T7 periaspect of the arm in keeping with C7 distribution with which I concur. He initially had tingling in all his fingers, although this has now largely settled which is consistent with what the claimant related today. He found that sensation in the upper limb was grossly intact and that there was no neurological deficit. He noted the foraminal herniation at C6/7 and C7/T1 on the left and thought there may be C7 nerve impingement and suggested the peri-neural cortisone injection. He did not see the claimant again.
His presentation to Dr Parkinson was similar to that found today.
The IME report of Dr Ron Muratore on February 9, 2021 noted the claimant reported that there was increased pain in the neck due to his gym exercise program and that the numbness in the left hand was intermittent. He reported no night pain but did use a low pillow and that on examination there was a reasonable active range of motion of the left shoulder without signs of impingement and that sensation to pin prick was normal bilaterally with which I would concur and that his assessment for the cervical spine was DRE Category II with which I concur…”
The appellant makes the following submissions:
(a) the MA found verifiable radiculopathy and/or criteria consistent with DRE Category III;
(b) this consisted of intermittent paraesthesia in the left hand (pg 2); decreased range of movement (pg 2 – 3); shoulder brachialgia (pg 3); trapezial muscle pain (pg 3); left sided facet arthralgia (pg 3); dysmetria (pg 4);
(c) MA Dixon concluded that “On review today it was felt that the claimant did have radicular complaint” (pg 5);
(d) MA Dixon also referral to Dr Parkinson, who opined “…He felt the claimant’s pain radiated down the posterior aspect of the arm in keeping with C7 distribution with which I concur. He initially had tingling in all his fingers, although this has now largely settled which is consistent with that the claimant related today…[he] thought there may be C7 nerve impingement….His presentation to Dr Parkinson was similar to that found today”;
(e) this is important, as MA Dixon specifically found that “His left shoulder injury…settled”. That is, any symptoms into the left extremity could only be explained by the neck;
(f) DRE Category III for a cervical spine impairment says:
“Significant signs of radiculopathy, such as pain and/or sensory loss in a dermatomal distribution, loss of relevant reflexes(ex), loss of muscle strength, or unilateral atrophy compared with the unaffected side, measured at the same distance above or below the elbow; the neurologic impairment may be verified by electrodiagnostic findings
Or
individual had clinically significant radiculopathy, verified by an imaging study that demonstrates a herniated disk at the level and on the side expected from objective clinical findings with radiculopathy or with improvement of radiculopathy following surgery…”;
(g) the radiology confirmed herniations (i.e protrusions) at the relevant levels (MRI dated 1 May 2019);
(h) Dr Merey (ARD p 33), confirmed nerve compression at the C7 and C9 level;
(i) Dr Holford (ARD p 35), said there was “….resultant contact with the existing C7 and C8 nerve roots”;
(j) Dr Parkinson (ARD p 73) said “….The pain radiates down the posterial aspect of the arm in keeping with a C7 distribution. He initially had tingling in all of his fingers although this has largely settled”;
(k) Dr Dias also noted that the findings correlated with the MRI;
(l) given the findings (referred to) above, the MA ought to have found a DRE Category III impairment;
(m) the MA:
(i)either incorrectly failed to assign DRE Category III; or
(ii)failed to disclose an adequate pathway in his reasoning process in rejecting that conclusion;
(n) it is true that MA Dixon commented that:
(i)he did find a reduced left bicep jerk (p 5);
(ii)there was “difficulty” eliciting a left tricep jerk (which suggests that there was a tricep jerk, albeit it was difficult to reproduce);
(iii)there was an appearance of an absence of thenar weakness or intrinsic weakness in the left hand (which again stops short of saying there was no such weakness); and
(iv)there were no sensory changes (p 5).
(o) however, that does not answer the relevant question: i.e whether the findings he actually found fit within DRE Category III. Indeed, the guides do not say that the above MUST BE present for DRE Category III to be found;
(p) even if he was entitled to assign DRE Category II on the basis of his clinical skill and judgment, his reasoning process ought to have been set out. At present, the claimant is simply left to speculate that the MA considered the radicular findings that he did find were simply not “significant” enough to satisfy the criterion;
(q) moreover, the conclusion that at least the second aspect of DRE Category III was satisfied is compelling. That merely required “….clinically significant radiculopathy, verified by an imaging study that demonstrates a herniated disc at the level…”;
(r) the radiology confirmed the relevant level. Three treating doctors, together with Dr Dias, also considered the findings matched the relevant level, and
(s) as such, the MA was:
(i)wrong to reject that conclusion (if that is what he did); and/or
(ii)wrong to not provide clear and cogent reasons in not applying that category.
Chapter 4 of the Guidelines deals with assessment of the spine.
Chapter 4.20 states:
“While imaging and other studies may assist medical assessors in making a diagnosis, the presence of a morphological variation from ‘normal’ in an imaging study does not confirm the diagnosis. To be of diagnostic value, imaging studies must be concordant with clinical symptoms and signs. In other words, an imaging test is useful to confirm a diagnosis, but an imaging study alone is insufficient to qualify for a DRE category (excepting spinal fractures).”
Chapter 4.27 provides:
“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).”
In short, two criteria (of which one must be major) must be present to satisfy a DRE III categorisation.
The MA’s findings on examination are set out in paragraph 18 above.
The MA noted: “The biceps and supinator jerks were present in his left upper extremity but his left triceps jerk was difficult to elicit”. In short, the left triceps jerk was present albeit difficult to elicit.
The MA further noted that there was no thenar weakness or intrinsic weakness in the left hand and no sensory changes.
There was no evidence that the appellant met the criteria in Chapter 4.27 apart from the issue surrounding the triceps jerk.
In these circumstances, it was appropriate for the MA to allocate DRE II.
As stated earlier, the evidence needs to support two conditions (of which one must be major) to satisfy the presence of radiculopathy for DRE III to apply.
In the present case, the appellant appears to have confused symptoms with clinical findings on examination.
We agree that radiological material is of course an important tool in confirming a diagnosis, but as the respondent correctly points out, “not for the purposes of allocation of a DRE category”.
We also agree with the respondent’s submission that:
“The findings of the MA are consistent with the reported findings of Dr Muratore and
Ms Alvarez Carasco and justify an allocation of DRE category II…There were not significant signs of radiculopathy present on physical examination by the MA to warrant the allocation of a DRE category III.”Finally, we do not agree that the MA “failed to disclose an adequate pathway in his reasoning…”.
He provided detailed findings on examination and explained why he disagreed with the opinion of Dr Dias which the appellant urges us to accept.
It must be remembered that Chapter 1.6 of the Guidelines states:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…”
And a mere difference of medical opinion is not a valid ground for appeal.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 April 2022 should be confirmed.
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