Garrick v Dnata Airport Services Pty Ltd
[2023] NSWPICMP 135
•11 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Garrick v Dnata Airport Services Pty Ltd [2023] NSWPICMP 135 |
| APPELLANT: | Patrick Garrick |
| RESPONDENT: | DNATA Airport Services Pty Limited |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 11 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Worker’s appeal against finding of diagnosis related estimate (DRE) Cervical Category II by Medical Assessor (MA); Panel concludes that at least one minor criterion and one major criterion necessary for a finding of radiculopathy; paragraph 4.27 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 were present on MA’s examination; on re-examination DRE III confirmed; Held – Medical Assessment Certificate (MAC) revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 August 2022, Patrick Garrick (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by, Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 July 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 grounds 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).
RELEVANT FACTUAL BACKGROUND
The appellant was formerly employed as a baggage handler by DNATA Airport Services Pty Limited (the respondent) at Sydney International Airport. At the time that he suffered injury to his neck on 11 October 2017, the appellant’s duties included unloading luggage from an AKE container onto a baggage carousel. By his statement, the appellant gives the following account of his injury:
“With my right hand, I had to grab a luggage that was jammed inside, at the top of the AKE. I pulled the stuck luggage out with force. It became unstuck and it started to fall. I held on to the luggage with my right hand to make sure it did not fall heavily onto the floor with the momentum of the weight of the luggage. In doing so I remember straining my neck and right shoulder.”
The appellant reported the injury at the conclusion of his shift and attended on the airport doctor, Dr Phonesouk. That doctor referred him for physiotherapy and certified him as fit to perform light duties. During the course of these duties he loaded the wrong AKE container on to a flight on 28 January 2018. He was given a show cause letter and subsequently his employment was terminated by the respondent.
Throughout this period the appellant continued to see Dr Phonesouk and continued to undertake physiotherapy. He was also referred to Dr Renata Bazina, a neurosurgeon who gave him a steroid injection. The appellant says that while the injection helped his pain:
“I was still having the numbness and tingling into the right thumb.”
On 3 July 2018, the appellant secured employment with Ceiling Logistics on Waiheke Island in New Zealand where he continues to work as a truck driver and crane operator. He says that he has continued to see his general practitioner and to receive physiotherapy at Waiheke Physiotherapy.
The appellant complains that he has tightness in his neck which affects his ability to move his neck, problems looking backwards when driving a truck and pain and numbness in the right thumb.
On 14 June 2019, the appellant saw Dr Mohammed Assem, a rehabilitation specialist, at the request of his solicitors. By a report of that date Dr Assem expressed the opinion that the appellant developed right C6 radiculopathy as a result of the injury on 11 October 2017. He continued:
“He has clinical signs of radiculopathy with absent right biceps jerk reflex and sensory loss in the right C6 dermatomal distribution with concordant evidence on radiological imaging of pathology at the same level.”
Dr Assem expressed the opinion that the appellant suffered 16% whole person impairment (WPI). His condition was consistent with DRE Cervical Category III. He also awarded him 1% WPI for a “minor limitation of activities of daily living”.
Dr Chris Walls, an occupational physician, saw the appellant at the request of the respondent on 26 August 2019 and provided a report of 28 August 2018. Dr Walls diagnosed:
“an aggravation of an underlying cervical spondylosis, maximal at the C5/6 level. This aggravation is slowly settling.”
Dr Walls expressed the opinion that the appellant’s neck injury was consistent with DRE Cervical Category II which gave rise to 6% WPI. However, as he was of the opinion that the appellant suffered from a pre-existing condition, he made a deduction of one half. Thus, his final assessment of WPI was 3%.
As the difference of opinion between Dr Assem and Dr Walls gave rise to a medical dispute, as that term is used in s 319 of the 1998 Act, it was referred to Dr Anderson, a Medical Assessor, for assessment. It is from his certification as to WPI that the appellant brings this appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that as there was prima facie error in the MAC, the worker should undergo a further medical examination.
The Panel concluded that the Medical Assessor had recorded signs on clinical examination which were consistent with C6 nerve root impingement but provided no explanation as to why this did not necessitate a finding that the appellant fell within DRE Cervical Category III in view of the radiological evidence.
EVIDENCE
The Appeal Panel has before it all the documents which 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 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.
In summary, the appellant submitted that the Medical Assessor had made a number of findings on examination that were consistent with the presence of radiculopathy in the distribution of the C6 nerve root. In particular, it referred to the Medical Assessor’s finding that:
“Sensation to pinprick was reduced over the radial surface of the right forearm, extending down over the dorsum of the right thumb. In comparison with the left hand, all other digits on the right side exhibited slightly less quality of sensation.”
The appellant noted that the Medical Assessor had commented that “there may still be neurological irritation from the right C6 nerve root”. Notwithstanding, these signs of radiculopathy the Medical Assessor erroneously certified that the appellant has fallen within DRE Cervical Category II.
The appellant also observed that the Medical Assessor had made a number of findings on examination which were consistent with the findings of his qualified specialist, Dr Assem. He had made a finding of sensory loss in the right C6 dermatomal distribution which was consistent with radiological evidence of pathology at the same level but gave no reasons why he did not reach the same conclusion as Dr Assem namely that the applicant had a right C6 radiculopathy.
The appellant also submitted that the Medical Assessor failed to give adequate reasons for his determination. He stated:
“In simply assessing that, although there are some neurological features in the right forequarter, these would be insufficient to place the appellant into DRE Cervical Category III, MA Dr Anderson has not provided any explanation why he preferred that conclusion, or how that conclusion was reached.”
The appellant argued that as this was a significant issue that materially affected the outcome of the assessment process and the statutory rights of the appellant, the Medical Assessor should have provided “an explanation as to how that assessment was reached”.
By its submissions the respondent disputed that there was error or incorrect criteria in the findings of the Medical Assessor. It referred to paragraph 4.27 of the Guidelines which enumerate the criteria for a finding of radiculopathy. It noted that in order to make a finding of radiculopathy at least two of six criteria must be evident to the Medical Assessor. It continued:
“Based upon the symptoms recorded by the MA in the MAC, and the findings on physical examination, in the respondent’s submissions only the 3rd of the minor criteria (re-producible impairment of sensation) is present.”
The appellant noted that the Medical Assessor found none of the other criteria of radiculopathy on examination. His consideration of the MRI scan of 3 November 2017 did not lead him to “put the proposition of nerve root irritation any higher than a possibility”. It noted that the Medical Assessor concluded that although there were some neurological features on examination, "these would not be sufficient to place him in DRE Cervical Category III”. This statement constituted a clear explanation as to why he differed from the findings and opinion of Dr Assem.
Further medical examination
Dr Roger Pillemer of the Appeal Panel conducted an examination of the appellant on 27 March 2023. Insofar as it is relevant, his report is as follows:
“1. The workers medical history, where it differs from previous records.
I read Mr Garrick the history that was taken by the Medical Assessor, Dr Tim Anderson at the time of his consultation on 7 July 2022, and Mr Garrick agreed with all of this history.
2.Additional history since the original Medical Assessment Certificate was performed.
Mr Garrick informed me that he continued with his work doing truck driving and hauling, but because this work was very physical he actually changed jobs on 21 December 2022, still doing truck driving but far less physical work.
Two months ago he stepped down from his truck and injured his right tendo-Achilles and had to have four days off work because of this, and also wore a boot for a period of time. These symptoms have now all settled down.
Mr Garrick continues to complain of ongoing discomfort in his neck and right arm, and he says he notices this particularly when he bends his neck forward such as when he is eating, and he will immediately get the tingling radiating down towards his right thumb. He is also more aware of the tingling in his right arm when he is relaxed, and the discomfort occurs fairly regularly throughout the day. He does say that while working he wears a brace, which tends to ‘hold me up straight.’
He does say that he had a cortisone injection which helped for a couple of months, and although he was improved, symptoms did not settle completely but the injection ‘faded it.’ He has applied for a further injection but this was not granted.
He was having physiotherapy which he was paying for himself, and this became too expensive.
3.Findings on clinical examination
Mr Garrick is an extremely well-built adult male and he puts this down to the fact that he has always been a fitness fanatic, and after his injury he lost a lot of muscle bulk on his right side, and he was determined to rebuild his muscles, which he has done, and simply puts up with his discomfort. He tries to avoid those particular activities which aggravate his symptoms.
He undresses and dresses without any particular problem and shows decreased range of movement of his cervical spine, particularly extension and rotation to the right, and it was interesting to note that as soon as he flexes his neck, he gets the tingling sensation radiating down his right arm and into his right thumb.
Importantly, he does have hypoaesthesia to pinprick down the radial border of his right arm and involving his right thumb (C6 distribution). In addition his right biceps reflex is noticeably depressed compared to the left side, once again in keeping with a C6 nerve root lesion.
Motor power was good in all groups tested and there was no obvious wasting to circumferential measurement.
He does have a positive Spurling’s test but this was noted with his neck in flexion and tilted to the right rather than in extension.”
FINDINGS AND REASONS
On his examination of the appellant, the Medical Assessor made the following findings:
“Sensation to pinprick was reduced over the radial surface of the right forearm, extending down over the dorsum of the right thumb. In comparison with the left hand, all other digits on the right side exhibited slightly less quality of sensation. Nevertheless, there did appear to be a distinct difference between the sensation experienced on the index finger and on the right thumb. This rather suggests that although there may have been (and also may still be) neurological irritation from the right C6 nerve root, I also gained the impression that there could possibly have been the effects of a minor (very minor) traction injury in the brachial plexus. This issue has not been mentioned in the clinical literature so far.”
The Medical Assessor explained his calculation of 6% WPI of the cervical spine as follows:
“Mr Garrick continues to have identifiable dysfunction of his cervical spine. Although there are some neurological features in his right forequarter, these would be insufficient to place him into DRE Cervical Category III. He is therefore assessed in DRE Cervical Category II.”
Chapter 4.27 of the Guidelines defines radiculopathy as follows:
“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)”
At the preliminary conference, the medical practitioners on the panel concluded that the Medical Assessor’s finding of reduced pinprick over the radial surface of the right forearm extending down to the dorsum of the right thumb was entirely consistent with radiculopathy in the distribution of the C6 nerve root.
The panel also noted the MRI of the cervical spine carried out on 3 November 2017 which demonstrated “minor foraminal stenosis bilaterally at C5/6 and on the right side at C6/7” fulfilled the criteria in 4.27 of the Guidelines of “an imaging study consistent with the clinical signs”.
Thus, the panel concluded that there was prima facie evidence of error on the part of the Medical Assessor. It noted that the Medical Assessor had observed that the appellant’s clinical picture did not seem to fully encompass features which would result from a C6 nerve root injury. He hypothesised that the appellant may also have a minor injury to the brachial plexus. While this might be the case, there is little room for doubt that the appellant had symptoms of a cervical injury and signs and an imaging study which were consistent with a finding of DRE Category III. The panel noted that both Dr Assem and the appellant’s treating neurosurgeon had documented paraesthesia down the right arm which the Medical Assessor stated “would be consistent with C6 nerve root impingement”.
Following Dr Pillemer’s examination of the appellant on 27 March 2023, the panel reconvened to discuss his findings. The panel noted that Dr Pillemer had also found hypoaesthesia to pinprick down the radial border of the right arm involving the right thumb on his examination. Dr Pillemer also found a depressed biceps reflex on the right side. Thus, there were two major criteria of radiculopathy evident on Dr Pillemer’s examination. The panel has previously noted that the appellant also had minor criteria namely an imaging study consistent with the clinical signs evident on the examinations of Dr Assem, Dr Bazina, the Medical Assessor and Dr Pillemer.
These findings led inexorably to the conclusion that the appellant should be classified as DRE Category III.
The panel noted that the appellant worked on a full-time basis. There was no evidence that his neck injury interfered in any way with his activities of daily living. He did regular vigorous physical exercise. In those circumstances the panel saw no basis on which to increase WPI for the impact of the injury on activities of daily living in accordance with 4.33 to 4.36 of the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 July 2022 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: | 2634/14 |
Applicant: | Patrick Garrick |
Respondent: | DNATA Airport Services |
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 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 11/10/2017 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 15% | Nil | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
0
0