Engisch v Torch Publishing Company Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Engisch v Torch Publishing Company Pty Ltd [2022] NSWPICMP 433
APPELLANT:	Christian Engisch
RESPONDENT:	Torch Publishing Company Pty Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	28 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against 11% whole person impairment assessment for lumbar spine injury; whether residual radiculopathy present following surgery; whether Medical Assessor (MA) had erred in not following assessment of worker’s medico-legal expert; Held – worker’s expert incorrect in his interpretation of chapters 4.7, 4.27 and 4.37 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4^th ed 1 April 2016); worker failed to refer to any Guidelines at all; observations on task of MA; Wingfoot Australia Partners Pty Ltd v Kocak and Western Sydney Local Health District v Chan referred to and applied; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 June 2022 Christian Engisch, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 May 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 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 8 February 2022 the delegate of the President referred this matter for an assessment of whole person impairment caused by injury to the lumbar spine on 12 September 2016.
Mr Engisch was employed by his family company and had been working as Press Manager since about 2000.
On 12 September 2016 whilst endeavouring to lift and slide a digital printer onto a skip in a loading dock area of the workplace with the assistance of three colleagues as the printer was about 200 kg Mr Engisch developed strain like pain to the region of the lower back whilst he was kneeling to perform that task.
He consulted a chiropractor but about one week after that incident whilst bending over in the garage he developed sharp pain in the lumbar region of the back.
He came to a left L5/S1 discectomy with Dr Parkinson, consultant neurosurgeon on
31 October 2016 and he underwent further surgery with Dr Ralph Mobbs, consultant neurosurgeon on 4 December 2018.
He again came to surgery on 17 February 2020.
The MA found an 11% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not seek to be re-examined by a MA who is a member of the Appeal Panel. The issues for determination did not require a re-examination.

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.

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions which 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 appellant submitted that the MA had fallen into error by “not taking into account the radiculopathy signs and complaints made to him by the Appellant”. It was alleged that the MA “failed to take into account” electrophysiology studies.
A further ground was alleged that the MA had failed to assess the scarring.

The MAC

On examination the MA found relevantly[1]:
“A healed longitudinal surgical scar of approximately 3cm was noted to be present to the region overlying the lower lumbar spine. This was mildly pale and flat in contour. A further oblique surgical scar of approximately 10cm was noted to be present inferior to the region of the lateral aspect of the left hip. This was also flat in contour with mild colour variation.
Sensory system examination within the lower limbs was non-contributory with light touch and point pressure sensation.”
[1] Appeal papers p 25.
In his summary the MA said:[2]
“It is evident that Mr Engisch had been found to have an L5/S1 disc protrusion that required surgical treatment. The clinical presentation appears to have included features consistent with a radiculopathy pre-operatively.
A further provisional diagnosis of left sciatic nerve compression/piriformis syndrome had also been considered with surgical treatment having been performed in this respect. Mr Engisch did not appear to obtain any clinical benefit from that further surgical intervention.
I do not consider that the current clinical presentation is indicative of features of residual radiculopathy or peripheral nerve injury/compression.
The residual feature of minimal reduction with the left ankle reflex response is now of limited clinical significance.”
[2] Appeal papers p 26.
In explaining his calculations the MA allowed 11% WPI for a DRE category III rating, with a 1% allowance for restriction in the activities of daily living.
In considering the opinions of other medical practitioners before him, the MA noted the report of Dr Mohammed Assem, consultant rehabilitation physician dated 16 September 2021. The MA said:[3]
“…In that report, the doctor had indicated that he did not identify major criteria to satisfy the relevant definition for radiculopathy. He did, however, give an additional weighting of 3% for radiculopathy in view of ‘probable damage to the sciatic nerve at the level of the piriformis confirmed on electrophysiological studies’….”
[3] Appeal papers p 27.
The MA also noted a report of Dr Graeme Doig, consultant orthopaedic surgeon, who did not consider there was evidence of radiculopathy, although he did comment on a slight sensory alteration in the toes on the lateral side of the foot.

SUBMISSIONS

The appellant

The appellant submitted that the MA had fallen into error by using the “wrong criteria” and in making a demonstrable error.
The appellant recounted his treatment history, referring particularly to the history taken by the MA that surgery had been performed by Dr Mobbs. Mr Engisch’s complaints to the MA were relied on, which included constant variable back pain, left buttock and left thigh pain with occasional extension to the foot.
The error alleged was that the MA did not take into account “the radicular signs and complaints made to him by the appellant…”
It was also alleged that the MA “failed to take into account, unlike Dr Assem, that the electrophysiological studies confirmed damage to the left foot”.
Error was also alleged on the basis that the MA had “failed to find that there has been any assessment for scarring given the appellant has undergone 2 surgeries”. A photograph of the scarring was attached.

The respondent

The respondent submitted that the MA had noted the nerve conduction study of
4 December 2018, which was normal. It noted the opinion of the neurologist, Dr Granot, that there was only a “possibility of left side piriformis syndrome”, and that the MA had acknowledged that opinion.
The respondent submitted that there was no evidence that would justify a conclusion of sciatic nerve damage, and that the MA had considered the complaints made by Mr Engisch and explained why he did not find any radiculopathy.
We were referred to Chapter 4.27 of the Guides. The appellant, it was argued, had failed to make any submissions regarding this guideline in terms, and he did not explain how the evidence before the MA complied with the Guideline.
The respondent referred to the MA’s findings on examination and his specific rejection of any features of residual radiculopathy or peripheral nerve injury/compression.
With regard to the submissions as to scarring, the respondent did not appear to notice that this injury had not been referred to the MA.
The respondent further objected to the admission of the photographs that were part of the appellant’s submissions into evidence. The appeal, it said, was confined to the evidence before the MA and the photographs had not been before him.
The MA described with some detail the scar which might establish the criteria under the TEMSKI table for any impairment assessment, as we understood the submission.

Discussion

It perhaps clarifies the issue by noting that the MA awarded a total of 11% WPI, whereas
Dr Mohammed Assem awarded a total of 15% WPI, which the appellant is seeking to establish by the grounds he has raised.
We note that both Dr Assem and the MA awarded 10%WPI in respect of a lumbar category DRE III assessment. Further, both Dr Assem and the MA awarded a further 1% in respect of minor restrictions in the appellant’s activities of daily living.
The appeal thus concerns the two further assessments made by Dr Assem of 3% WPI for radiculopathy persisting after surgery, and 1% WPI for scarring.
The further 3% WPI Dr Assem awarded purported to be pursuant to Chapter 4.7 and 4.37 of the Guides. Dr Assem explained it as follows in his report of 8 February 2021:[4]
“[Mr Engisch] had positive nerve root tension signs and concordant evidence on radiological imaging of pathology at the same level. Although I did not identify a major criteria that is preferable to satisfy the definition of radiculopathy³, I have accepted that there is probable damage to the sciatic nerve at the level of the pyriformis confirmed on electrophysiological studies⁴ and awarded 3% impairment for radiculopathy⁵ persisting after surgery as there was no other method to accurately calculate his impairment rating.”
[4] Appeal papers p 70.
Footnote³referred to Chapter 4.27 of the Guides, footnote ⁴to Chapter 4.7. and footnote ⁵ to Chapter 4.37.
Chapter 4.27 of the Guides provides:[5]
“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).”
[5] Appeal papers p 19.
Chapter 4.7 of the Guides says:
“4.7 If an assessor is unable to distinguish between two DRE categories, then the higher of those two categories should apply. The reasons for the inability to differentiate should be noted in the assessor’s report.”
Chapter 4.37 relevantly includes Table 4.2, which provides:
“4.37 Effect of surgery: AMA5 tables 15-3 to 15-5 (pp 384, 389 and 392) do not adequately account for the effect of surgery on the impairment rating for certain disorders of the spine. The assessor should note that:
• Surgical decompression for spinal stenosis is DRE category III (AMA5 Table 15-3, 15-4 or 15-5)
• Operations where the radiculopathy has resolved are considered under the DRE category III (AMA5 Table 15-3, 15-4 or 15-5).
• Operations for spinal fusion (successful or unsuccessful) are considered under DRE category IV (AMA5 Table 15-3, 15-4 or 15-5)
• DRE category V is not to be used following spinal fusion where there is a persisting radiculopathy. Instead, use Table 4.2 in the Guidelines
• Radiculopathy persisting after surgery is not accounted for by AMA5 Table 15-3, and incompletely by tables 15-4 and 15-5, which only refer to radiculopathy that has improved following surgery.
Table 4.2 indicates the additional ratings which should be combined with the rating determined using the DRE method where an operation for an intervertebral disc prolapse, spinal canal stenosis or spinal fusion has been
performed…”
Table 4.2 provides that where there are “residual symptoms and radiculopathy (refer to 4.27 in the Guidelines)” a further 3% is to be awarded in the case of the lumbar spine. Thus, where there has been surgery and radiculopathy is still a residual symptom, a further 3% WPI may be awarded. This was the basis for Dr Assem’s assessment of an additional 3% WPI.
Before embarking on a consideration of Dr Assem’s opinion, we would observe that an MA is under no obligation to accept any expert opinion that is referred to him. In the well-known dicta about the task of Medical Panels from the High Court in Wingfoot[6] (adopted in the NSW Supreme Court to the task of MAs also[7]), the Full Court said from [47]:
“47. The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[6] Wingfoot Australia Pty Ltd v Kocak[2013] HCA 43.
[7] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].
As to the reasons required, the Full Court said at [48]:
“….What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.”
The appeal must be rejected for the following reasons.
Firstly, the appellant has not engaged with any of the above guidelines. His submissions referred to “radiculopathy signs and complaints,” but did not attempt to identify them, let alone indicate their relevance.
Secondly, the appellant did not address Dr Assem’s admission that there was no major criterion present. We would observe that Dr Assem was incorrect when he said such a finding was “preferable”. Chapter 4.27 is mandatory in its term that a major criterion “must” be found.
Thirdly, the appellant did not seek to uphold Dr Assem’s reliance on Chapter 4.7. The guideline only applies where an MA “is unable to distinguish” between two DRE categories. We note that the modifier in Table 4.2 does not alter the applicable DRE category, which both Dr Assem and the MA agreed was lumbar category III.[8] Dr Assem was accordingly incorrect in his application of this provision.
[8] See AMA5 Table 15.3 p 384.
Fourthly, whether the nerve conduction studies supported Dr Assem’s diagnosis or not was irrelevant. Dr Assem referred to electrophysiological studies as support for his finding that there was “probable” damage to the sciatic nerve root, and the appellant submitted that the electrophysiological studies had not been taken into account by the MA. Dr Assem said that, following an MRI scan of the left sciatic nerve and piriformis study on 27 June 2018:[9]
“…..[Mr Engisch] was referred for nerve conduction studies that showed slowing of the S1 conduction along the piriformis muscle consistent with the left-sided piriformis syndrome.”
[9] Appeal papers p 66.
This diagnostic procedure is the subject of Chapter 4.21 of the Guides. It states:
“…(The use of electro-diagnostic procedures such as electromyography is proscribed as an assessment aid for decisions about the category of impairment into which a person should be placed. It is considered that competent assessors can make decisions about which DRE category a person should be placed in from the clinical features alone. The use of electro-diagnostic differentiators is generally unnecessary).”
Nerve conduction tests are therefore irrelevant as they are proscribed as an assessment aid in determining the DRE category (which is not in issue) and are not able to be used as an “imaging study” as described in Chapter 4.27 of the Guides.
Fifthly, the MA stated that (to repeat), whilst Mr Engisch appeared to have included features consistent with radiculopathy preoperatively, “I do not consider that the current clinical presentation is indicative of features of residual radiculopathy or peripheral nerve injury/compression”. He also gave clear and correct reasons why he did not accept
Dr Assem’s opinion.
Accordingly the challenge to the MAC is unsuccessful regarding the subject of radiculopathy.

Scarring

We note that the respondent did not raise any issue about the referral. An MA is restricted by the referral to assessing only the injuries that were therein nominated. There was no referral for an assessment of the scarring and therefore, unless it can be shown that the parties in fact agreed to a binding evaluation of the scarring, the question of scarring is irrelevant, and not a proper ground of appeal.[10]
[10] See Skates v Hills Industries Ltd [2021] NSWCA 142.
We assume that the referral for the scarring was not agreed to, as the respondent’s submissions clearly denied liability. We note that no claim was made for scarring in the Application to Resolve a Dispute. We accordingly reject this ground. The appellant cannot complain that the MA did not assess the scar when he was not asked to do so.

For these reasons, the Appeal Panel has determined that the MAC issued on 31 May 2022 should be confirmed.

[2022] NSWPICMP 433

28 October 2022