Eid v Thoreb Australia Pty Ltd
[2024] NSWPICMP 79
•20 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Eid v Thoreb Australia Pty Ltd [2024] NSWPICMP 79 |
| APPELLANT: | David Eid |
| RESPONDENT: | Thoreb Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 20 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal in respect of the impairment assessment for cervical spine; Medical Assessor found radiculopathy criteria not met; error alleged due to inadequacy of examination findings; Appeal Panel found error and considered a re-examination was necessary; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 July 2023 Mr David Eid (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 July 2023.
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 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 (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, 4th ed
1 March 2021 (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 Procedural Direction PIC7.
The appellant requested a re-examination by a Medical Assessor member of the Appeal Panel. The Appeal Panel found error and considered that a re-examination was necessary.
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.
Further medical examination
Medical Assessor Stephenson of the Appeal Panel conducted an examination of the worker on 20 December 2023 and reported to the Appeal Panel.
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.
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 matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
•
Date of injury:
03/06/19
•
Body parts / systems referred:
Cervical spine
Lumbar spine
•
Method of assessment:
Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine | 03/06/19 | Chap 4 P 24 | P 392 T 15-05 | 7 | 1/10th | 6 | |
| Lumbar spine | P 384 T 15-03 | 5 | 1/10th | 5 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 11 | ||||||
The worker appealed. The appeal concerns only the assessment of 6% whole person impairment (WPI) for the cervical spine. There is no appeal from either party about the assessment of 5% WPI for the lumbar spine.
In summary, the appellant submitted on appeal that the Medical Assessor made demonstrable errors which included the following:
(a) in circumstances where both the independent medical expert (IME) qualified on behalf of the appellant and the IME qualified on behalf of the respondent assessed DRE category III for the cervical spine with findings of radiculopathy, the Medical Assessor failed to adequately explain his findings on physical examination, his finding that the criteria for radiculopathy were not satisfied leading to an assessment of DRE category II for the cervical spine.
The respondent employer, Thoreb Australia Pty Ltd (the respondent) made submissions which included that the Medical Assessor did not make a demonstrable error, he was entitled to rely on his own clinical findings on the day of examination, his reasons were adequate and the MAC should be confirmed.
The Appeal Panel was satisfied that error had been made by the Medical Assessor because his recorded findings on examination that there were “no significant neurological features in the upper limbs” were inadequate to explain why the criteria for radiculopathy were not found, particularly in circumstances where both IMEs qualified on behalf of the parties had found the criteria for radiculopathy to have been satisfied and assessed DRE category III for the cervical spine. The Appeal Panel was satisfied that an error had been made by the Medical Assessor in failing to delineate all the requirements for radiculopathy in paragraph 4.27 of the Guidelines by not carrying out all the tests as required in paragraph 4.27. In the circumstances the Appeal Panel considered that a re-examination was necessary and
Dr Stephenson a Medical Assessor member of the Appeal Panel was appointed to conduct the re-examination.The re-examination took place on 20 December 2023 and Medical Assessor Stephenson reported to the Appeal Panel as follows:
“Matter No: M1-W3534/23
Appellant: Mr David Eid, now aged 50 years
Respondent: Thoreb Australia Pty Ltd
Examination Conducted By: Dr J Brian Stephenson and member of the Appeal Panel
Date of Examination: 20 December 2023
The appeal is for the cervical spine only, not the lumbar spine. The medical assessor, Dr Tim Anderson, assessed cervical spine diagnosis related Category II following date of 3 June 2019 at 7% WPI and a fraction reduction of one-tenth leaving 6% WPI.
The appellant noted at clause 21 regarding the medical assessor, he states that “no significant dermatomal or peripheral features” were demonstrated, however, he does not explain what this means.
The worker's medical history, where it differs from previous records
There was no further medical history in that regard. Mr David Eid advised he has not worked with Sydney Trains as a customer service officer since February 2020. On date of injury, he moved the crate out of the way to make way for forklift. He complains of pain referred down the left upper extremity from the neck.
Neurosurgical Reporting - Dr Ali Gahreman 30/10/19 diagnosed:
1.Left sided C7 radicular pain.
2.Right sided C6 radiculopathy.
Additional history since the original medical assessment certificate was performed.
There is no additional history.
Findings on clinical examination.
Reference now to WorkCover Guidelines page 27, paragraph 4.27, regarding radiculopathy which is defined as the impairment caused by malfunction of the spinal 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).
My comment: The first three criteria are in bold.
Loss or asymmetry of reflexes.
I have confirmed there is a reduction of reflexes in both right upper extremity and left upper extremity: Triceps C7 decreased amplitude, biceps C5/6 reduced in both arms, forearm C6/7 reduced in both arms.
Muscle weakness anatomically localised to appropriate spinal nerve root distribution.
Grip strength:
Right upper limb 32.5 kilogram/force using Jamar dynamometer.
Left upper extremity 30 kilogram/force.
Muscle weakness anatomically localised to appropriate spinal nerve root distribution is not confirmed.
Reproducible impairment of sensation that is anatomically localised to appropriate spinal nerve root distribution.
On pinprick testing using the Neurotip device, sensibility was diminished in the right C5 dermatome (lateral right arm above the elbow).
Sensibility was also diminished in the right C6 dermatome bilaterally at the lateral ½ of right and left forearms extending to thumb and index fingers.
Positive nerve root tension.
There is positive nerve root tension in both upper extremities when traction was applied. The pain was over the right and left humerus including shoulder and upper arm medially and laterally.
Muscle wasting – atrophy.
There was left arm wasting of1.5cm, 38 on left and 39.5 cm on right.
In the affected left upper extremity, the circumference was reduced to 38 cm i.e. 1.5 cm less than the right.
●There were findings of positive nerve root tension in both upper extremities.
Findings on imaging study consistent with the clinical signs.
See MAC at page 4 RE: MRI cervical spine on 19/11/18 and 22/7/19 protrusions at C4/5, C5/6, and C6/7. The significant MRI is the MRI 22/7/19 as it is the most recent one.
I refer to the MRI studies, generally I found on the initial MRI cervical spine 19 November 2018: ‘Conclusion there is moderate central canal stenosis at C5/6. This appears due to a combination of posterior disc bulge eccentric to the right, posterior endplate osteophyte as well as a probable right extruded disc. This changes the low signal on T2 and considerably part of the appearance may be due to ossification of the posterior longitudinal ligament, Dr W Brown Radiologist.’
With the recent MRI on 6 December 2023 which he referred to there was no focal disc protrusion in the upper cervical C2/3 or C3/4. There was mild disc height narrowing C5/6 and C6/7. Radiologist, Dr C Chu, noted mild cervical discovertebral spondylotic changes most conspicuous at C5/6 level.
Osteophytic encroachment of the exit foramina most marked at C5/6 on the right and to a lesser extent C3/4 and C4/5 on the right resulting in potential impingement corresponding right C6, right C4 and C5 nerve roots respectively.
The MRI studies are consistent with cervical radiculopathy of C6 to C5/6 nerve roots compression. The initial MRI that is right side pathology at C5/6. There was no mention on the left side. There was mild to moderate foraminal stenosis recorded at C6/7. Therefore radiology is useful in being considered as one of the parameters for radiculopathy. I have found sufficient clinical findings for radiculopathy. The more significant MRI is the second one.
Results of any additional investigations following original medical assessment certificate.
MRI cervical spine on 11 November 2018, conclusion by radiologist, Dr W Brown, ‘There is moderate central canal stenosis C5/6. This appears due to a combination of posterior disc bulge eccentric to the right, posterior endplate osteophyte as well as a probable right inferior extruded disc” – radiologist, Dr W Brown.
MRI cervical spine, recent study 6 December 2023. Comment: Mild reversal of normal cervical lordosis. Mild cervical discovertebral spondylotic changes most conspicuous at C5/6 level. Osteophyte encroachment of exit foramina most marked at C5/6 level on the right and to a lesser extent C3/4 and C4/5 levels on the right resulting in potential impingement of corresponding right C6, right C4 and C5 nerve roots, respectively. No myelopathy is seen. Dr C Chu, radiologist.
My opinion is that the cervical radiculopathy of C6 is due to C5/6 nerve compression.
Summary:
My opinion is that there are sufficient clinical findings to confirm a C6 radiculopathy due to nerve root compression at the C5/6 level on both sides. The left side is more symptomatic than the right however at least two major and two minor signs were found:
These are:
Major signs:
Reduced reflexes (C6)
Impaired sensibility (C6)
Minor signs:
Positive nerve root tension
Muscle wasting (left arm)
Concordant imaging of C5/6-disc pathology with neural encroachment on the right.
Reasons:
The medical assessor found a one-tenth deduction in section 323 which itself was not appealed. Therefore, fraction reduction one-tenth will be undertaken here.
With reference to AMA5, Table 15-5, Page 329 there is a diagnosis related cervical Category III at 15% WPI.
To that I have added 2% for ADLs in accordance with the WorkCover Guidelines Section 4.33 to 4.35 as did the medical assessor. This takes it to 17% WPI.
There is a 17% WPI with a fraction reduction one-tenth.
17% minus 1.7% equals 15.3% WPI.
That rounds to 15% WPI as a final result.
Signed Dr J Brian Stephenson”
The Appeal Panel adopts the findings and the report of Medical Assessor Stephenson.
There was no appeal against the assessment of the lumbar spine at 5% WPI. Using the combined values table, AMA5 pages 604-606, 5% for the lumbar spine plus 15% for the cervical spine equals 19%.
This means that a new MAC will be issued as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine | 03/06/19 | Chap 4 P 24 | P 392 T 15-05 | 17 | 1/10th | 15 | |
| Lumbar spine | P 384 T 15-03 | 5 | 1/10th | 5 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 19 | ||||||
For these reasons, the Appeal Panel has determined that the MAC issued on
12 July 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3534/23 |
Applicant: | David Eid |
Respondent: | Thoreb Australia Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine | 03/06/19 | Chap 4 P 24 | P 392 T 15-05 | 17 | 1/10th | 15 | |
| Lumbar spine | P 384 T 15-03 | 5 | 1/10th | 5 | |||
| Total % WPI (the Combined Table values of all sub-totals) | 19 | ||||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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