Fyvie v Grant Fyvie Electrical Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Fyvie v Grant Fyvie Electrical Pty Ltd [2024] NSWPICMP 826
APPELLANT:	Benjamin Fyvie
RESPONDENT:	Grant Fyvie Electrical Pty Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	John O’Neill
MEDICAL ASSESSOR:	Michael Davies
DATE OF DECISION:	4 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Assessment of all levels of the spine (cervical thoracic and lumbar at DRE I (0% whole person impairment)) and the worker appealed alleging inadequate explanation for failing to find non-verifiable radiculopathy; Appeal Panel satisfied as to adequacy of reasons when Medical Assessment Certificate (MAC) read as a whole and found no error; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 July 2024 the worker Mr Benjamin Fyvie (the appellant) 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 25 June 2024.
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).

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 that she be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
The appellant requested a re-examination by a medical assessor who is also a member of the Appeal Panel. However, as a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

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.

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 by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·    Date of injury:                       7 May 2019
·    Body parts/systems referred:        cervical spine
thoracic spine
lumbar spine
Method of assessment:               Whole Person Impairment”
The Medical Assessor issued a MAC assessing 0% whole person impairment for each level of the spine (cervical, thoracic and lumbar).
The worker appealed.
The appeal concerns all of the assessments of 0% whole person impairment (WPI) for the spine (cervical, thoracic and lumbar).
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:
(a) he has not been properly assessed and he should be reassessed or more properly the appellant’s consistent history of radiating pain should be noted together with observed restriction of movement in the lumbar, thoracic and cervical spine, such that the appellant’s condition should properly meet the criteria of diagnosis-related estimate (DRE) II.
In summary, the respondent employer Grant Fyvie Electrical Pty Ltd (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied.
The Medical Assessor recorded the following history:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: The injury occurred when Mr Fyvie was in the process of loading a truck with electrical equipment. He was carrying a switchboard in both upper extremities and holding it against his chest. He slipped and fell backwards. He can recall events sequentially, there was no unconsciousness and he was able to get to his feet. No ambulance was called and he did not attend hospital, he simply resumed his activity. The accident occurred in the morning. He continued loading the truck and, to the best of his recollection, performed the tasks he needed to do.
He did not seek medical attention until about a week later. He was working with a team for his father and his job was directing pedestrians around a cherry-picker being used to repair a neon sign. He had done this work all day and about 3.00pm he reported pain to have been of such severity that he told his father ‘I’m in pain, I’ve got to go’. He had been working for his father for 19 years prior to this event.
To the best of his recollection, he consulted a general practitioner on the following day and then saw his usual doctor. Dr Chow filled out workers compensation forms and arranged a scan to be done. He is unable to recall what Dr Chow had to say. He has not resumed employment since that time.
Mr Fyvie has seen many doctors over the years complaining of the symptoms which he reports began at the time of the injury, which involved pain in the midline of the cervical region extending down between the shoulder blades to the lumbar region and further down the full extent of both legs to the feet. In addition, pain extending from the lateral aspect of the neck across to the convexities of the shoulders and down the upper extremities to the fingers bilaterally.
He advised me that he has followed whatever medical advice he has been given and the advice has been helpful. However, the symptoms overall continue.
·        Present treatment: Mr Fyvie is taking Targin, diazepam and Lyrica. He sees a chiropractor on occasions.
·        Present symptoms: The symptoms of pain in the wide distribution described above have persisted with the passage of time and are now reported to be worse than when the accident occurred in 2019. Despite the symptoms, he is not experiencing any abnormalities of gait or of hand or arm function. However, he said that he ‘struggles’ with his upper extremities and indicated that when he was in a relationship, his partner was obliged to massage his hands during the night because of the severity of pain.
On direct enquiry, there is no abnormality of bladder or bowel sensation or function.
·        Details of any previous or subsequent accidents, injuries or condition: In March 2024 he was attacked and hit from behind on the back of the head. He stumbled but was not rendered unconscious and did not attend hospital. He said that the symptoms reported above were not substantially changed by the assault but ‘mentally it’s taken its toll’.
·        General health: Good. In particular, there is no history of high blood pressure, cardiac disorder or psychiatric problems.
·        Work history including previous work history if relevant: He has worked in his trade as an electrician since 2000 until 2019.
·        Social activities/ADL: Mr Fyvie lives alone and has two children aged 17 and 10 who are living with their mother.
He is able to use his hands normally and is responsible for all of his personal needs and activities of daily living. He has recently had his driving licence returned to him. He does not have any hobbies but attends the gym when able to and generally performs muscle strengthening exercises there.
He smokes about 10 cigarettes a day, drinks a moderate amount of alcohol and takes no recreational drugs.”
The Medical Assessor made the following comment in relation to special investigations:
“An MRI scan of the cervical spine was performed on 18 June 2019 and reported to reveal mild degenerative changes at C5/6 with diffuse disc bulge, small posterior central subligamentous disc protrusion and annular tear and minimal uncovertebral joint osteoarthritis. Mild disc bulges were noted from C2/3 to C4/5 levels.
An MRI scan of the lumbosacral spine was performed on 8 August 2019 and reported to reveal an intact lumbar spine. No disc bulge or protrusion.
An MRI scan of the cervical and thoracic spine was performed on 30 August 2019 and reported to reveal minor disc dehydration and subtle disc bulging at T6/7 and T7/8 with tiny annular tears. There was no evidence of central canal or foraminal compromise. Dural irritation cannot be entirely excluded. Minor foraminal narrowing was noted at C7/T1 to the right of the midline due to minor facet joint hypertrophic change without impinging the C8 nerve root.
An MRI scan of the thoracic and lumbar spine was performed on 7 October 2022 and no cord lesion was noted. Superior endplate at T2 signal hyperintensity was noted at T4 and subtle T1 shortening indicating a small haemangioma. No cord lesion was noted on examining the thoracic spine. No disc protrusion or other neural compression was seen in the lumbar spine. Reference was made to mild L5/S1 arthropathy.”
The Medical Assessor conducted an examination and recorded his findings as follows:
“On examination, Mr Fyvie gave a clear history and exhibited no abnormality of cognition or mood.
Examination of the cranial nerves revealed no abnormality.
There was no abnormality of the normal rhythm of gait or of accessory upper extremity or truncal movements.
There was no limitation of the range of cervical movement, performed without caution or muscle guarding. Thoracic and lumbar movements were performed normally through all planes without caution or guarding.
There was no abnormality of the range of shoulder, elbow, wrist or finger movements nor of hip, knee or ankle movements.
There was no abnormality of contour, posture, tone, coordination or deep or superficial sensation. The deep tendon reflexes were symmetrical and normally brisk and the plantar responses were flexor.
No soft tissue abnormalities were found.
Rombergism was absent.”
The Medical Assessor summarised the injury and diagnosis as follows:
“summary of injuries and diagnoses:
No assessable spinal injury is now present in the cervical, thoracic or lumbar region. See further comments below.
· consistency of presentation
There is consistency of presentation in regard to the details of history, radiological evidence and my clinical findings today.”
The Medical Assessor explained that in making the above assessment of 0% WPI for all of the body parts referred he has taken into account the following:
“The history obtained by me, my findings on physical examination and a consideration of the results of investigations and other documentary evidence sent to me.”
The Medical Assessor made brief comments on the other evidence that was before him as follows:
“I have considered the documents sent to me and will not refer to each separately.
·        A report was prepared by Dr Khong, Neurosurgeon, dated 15 March 2023 and includes a table indicating a whole person impairment of 5% for the cervical spine, 5% for the thoracic spine and 5% for the lumbar spine. He records that the impairment for the cervical spine and lumbar spine are due to non-verifiable radicular complaints and the thoracic spine is due to muscle guarding and spasm, giving a whole person impairment of 16%.
·        A previous report prepared by Dr Khong dated 22 September 2021 records ‘Mr Fyvie’s exacerbation of pre-existing degenerative changes has not resolved because his pain has not improved – in fact, he reports worsening pain. I agree that a psychological and social worker may be of benefit’. The doctor records that he disagrees with the opinion expressed by Dr Casikar, Neurosurgeon.
·        Dr Casikar has provided three reports, the most detailed of which is dated 12 July 2023 following a consultation with Mr Fyvie on 3 July 2023. Dr Casikar makes a WPI assessment of 5% for the cervical spine, 0% for the thoracic spine and 5% for the lumbar spine, and adds 2% for impairment of activities of daily living. He also writes ‘in short, it is reasonable to accept that Mr Fyvie had a soft tissue injury to his neck and back and these have recovered and now it is superseded by very significant emotional factors which, in my opinion, are the main cause. Dr Duke, Psychiatrist, has also come to a similar conclusion’.
At the bottom of page 5 Dr Casikar writes ‘the current diagnosis is soft tissue injury to the cervical, thoracic and lumbar spine which, in my opinion, has recovered’. He also writes ‘the diagnosis is consistent with the opinion expressed by Dr Khong and his treating physician. The only difference is that Dr Khong insists that all his present symptoms are directly related to his injury. I beg to differ. I believe the present complaints are due to overwhelming emotional factors. This requires further evaluation by a psychiatrist. This is outside the area of my expertise’. I do not identify any abnormalities on examination and regard the injury which occurred on 7 May 2019 to have not caused any structural injury clinically or radiologically, nor is there evidence of exacerbation of pre-existing degenerative changes or non-verifiable radiculopathy.
Dr Casikar writes at the bottom of page three of his report dated 12/7/23 ‘the clinical examination did not indicate any diagnostic feature which would explain his multiple symptoms…his problem is emotional in nature, and this was my problem earlier’ yet Dr Casikar makes a WPI assessment of 12%. I disagree with his WPI assessment.
I do not now identify any assessable impairment of function caused by the injury on 7 May 2019.
I disagree with Dr Khong’s findings and those of Dr Eftekhar, none of which were present at the time of my examination today.
Dr Casikar’s report is somewhat contradictory. However, I agree with his remarks that ‘any soft tissue has resolved’ and also his comments regarding the role of non-organic factors.
·        A report prepared by Prof Eftekhar refers to the physical examination in these terms: ‘I could not reveal any objective motor deficits or upper motor neuron signs. Extension of the neck and back is painful and restricted. The spine was tender to touch.’
Those signs were not present today.”
The appellant complains on appeal that the Medical Assessor did not adequately explain why he did not find a rateable impairment when the appellant complained of radiation of pain in all limbs.
The Medical Assessor recorded a history of present symptoms as follows:
“The symptoms of pain in the wide distribution described above have persisted with the passage of time and are now reported to be worse than when the accident occurred in 2019. Despite the symptoms, he is not experiencing any abnormalities of gait or of hand or arm function. However, he said that he ‘struggles’ with his upper extremities and indicated that when he was in a relationship, his partner was obliged to massage his hands during the night because of the severity of pain.
On direct enquiry, there is no abnormality of bladder or bowel sensation or function.”
The Medical Assessor is clearly cognisant of the appellant’s complaints of wide distribution of pain and he notes that he is also cognisant that “despite the symptoms, he is not experiencing any abnormalities of gait or of hand or arm function”.
The MAC must be read as a whole. What the Medical Assessor has done is assess, in accordance with the correct criteria, the impairment on the day of assessment applying his clinical judgment to his examination findings.
The Medical Assessor is entitled to rely on his examination findings on the day of assessment and in respect of the thoracic spine, there was a normal range of movement (ROM) found and guarding and spasm were not found to be present.
In respect of the thoracic spine Dr Casikar, the independent medical examiner (IME) qualified to provide an opinion on behalf of the respondent, also assessed 0% WPI.
In respect of the thoracic spine Dr Khong, the IME qualified to provide an opinion on behalf of the appellant, has assessed DRE II (5% WPI) on the basis of findings of muscle guarding and spasm. The Medical Assessor is entitled to rely on his findings on the day of assessment which found no muscle guarding and spasm. The assessment of DRE I (0%) is justified on the basis of these findings and no further explanation is required. There is no error.
The Medical Assessor has made clear when the MAC is read as a whole that there are no positive findings present when the cervical spine and lumbar spine have been examined by him. There is a normal ROM found throughout the whole spine. There are no neurological deficits found by the Medical Assessor. What is reported by the appellant is a report of diffuse pain which upon examination by the medical examiner was clearly found to not follow any known anatomical distribution. It is not radicular pain, it is diffuse pain.

The Medical Assessor has clearly recorded his examination findings as set out above. The examination was thorough and covered all requisite aspects.
He has explained adequately why his opinion differs from the other medical opinion that was in evidence before him.
He points out that Dr Casikar’s reports are contradictory because, despite Dr Casikar recording no positive signs on examination and considering that the soft tissue injuries had resolved and that any complaints related to emotional factors and required psychiatric evaluation, assessed DRE I (5%) for each of the lumbar and cervical spine.
The Medical Assessor is clearly cognisant that Dr Khong has assessed DRE II for the lumbar spine and cervical spine on the basis of complaints of pain which he classifies as non-verifiable radicular complaints.
The Medical Assessor very clearly explains as follows:
“I do not identify any abnormalities on examination and regard the injury which occurred on 7 May 2019 to have not caused any structural injury clinically or radiologically, nor is there evidence of exacerbation of pre-existing degenerative changes or non-verifiable radiculopathy.”
The appellant has referred to the criteria in the Guides at par 4.27 to verify radiculopathy. Not one of the criteria referred to therein are present on examination by the Medical Assessor.
The appellant then refers to par 4.28 of the Guides stating that “radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
However it is important to note that non-verifiable radicular pain still has to follow anatomical pathways. The Medical Assessor findings on examination do not support that the complaints of pain follow anatomical pathways. What is complained of by the appellant is diffuse pain as opposed to radicular pain, verifiable or non-verifiable.
What the Medical Assessor has found in accordance with his examination findings on the day of assessment is that there is no rateable impairment for the cervical and the lumbar spine. This is adequately explained when the MAC is read as a whole. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment. There is no error and the Appeal Panel considers that the reasoning given by the Medical Assessor was adequate.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 June 2024 should be confirmed.

[2024] NSWPICMP 826

4 December 2024