Gencer v Chelsam Joinery Pty Ltd
[2021] NSWPICMP 84
•3 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gencer v Chelsam Joinery Pty Ltd [2021] NSWPICMP 84 |
| APPELLANT: | Faruk Gencer |
| RESPONDENT: | Chelsam Joinery Pty Ltd |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Drew Dixon Dr Tommasino Mastroianni |
| DATE OF DECISION: | 3 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Arbitrator remitted matter to the Registrar to refer to an AMS for assessment of whole person impairment (WPI) of the cervical spine and thoracic spine as a result of injury on 22 February 2018; the AMS found that there had not been a significant injury to either the cervical spine or the thoracic spine and did not give any further consideration to the assessment of any impairment in the cervical spine or the thoracic spine; the AMS did not refer to any of his clinical findings in those body parts, did not identify which DRE category was appropriate to those two areas and gave no reasons why any particular DRE category was to be assessed; Held- in failing to make a proper assessment of both the cervical spine and thoracic spine, the AMS made a demonstrable error; worker re-examined and MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 February 2020 Faruk Gencer (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 24 January 2020.
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).
RELEVANT FACTUAL BACKGROUND
In these proceedings, the appellant is claiming lump sum compensation in respect of an injury to the cervical spine, thoracic spine and lumbar spine as a result of an injury in the course of his employment as a cabinet maker on 22 February 2018. The appellant alleged that he was injured when he was lifting a large cabinet weighting 30-40kilograms with a co-worker and he experienced an immediate onset of pain throughout his back.
In a Certificate of Determination dated 17 December 2019, Arbitrator Wynyard remitted the matter to the Registrar to refer to an AMS for assessment of whole person impairment (WPI) of the cervical spine and thoracic spine as a result of injury on 22 February 2018.
In the Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 18 December 2019, the matter was referred to the AMS, Dr Tim Anderson, for assessment of WPI of the cervical spine, thoracic spine and lumbar spine as a result of the injury on 22 February 2018.
The AMS examined the appellant on 16 January 2020. He assessed 7% WPI of the lumbar spine, 0% WPI of the cervical spine and 0% WPI of the thoracic spine. Therefore, the total assessment was 7% WPI in respect of the injury on 22 February 2018.
This matter was the subject of judicial review proceedings in the Supreme Court.
On 19 November 2020, Consent Judgment was entered into by the parties in the Supreme Court proceedings. The parties agreed that the decision of the Delegate of the Registrar dated 14 April 2020 be quashed and the plaintiff’s Application to Appeal against the decision of an Approved Medical Specialist dated 19 February 2020 be remitted to the Delegate of the Registrar to be determined according to law.
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.
The respondent requested that the appellant be re-examined by a MA , who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because there was insufficient evidence by way of medical reports and clinical investigations in relation to assessment of the cervical spine and thoracic spine on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Tommasino Mastroianni of the Appeal Panel conducted an examination of the worker on 28 April 2021 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS 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.
The appellant’s submissions include the following:
(a) The Application to Resolve a Dispute alleged that on 22 February 2018 the appellant sustained injuries to his cervical spine, thoracic spine and lumbar spine. The respondent did not dispute that there had been an injury to all three body parts alleged. The respondent contended that there was no assessable impairment in the cervical spine or the thoracic spine.
(b) The application was heard by Arbitrator Wynyard on 13 December 2019. The arbitrator found that there was no dispute that there was injury to the cervical spine, the thoracic spine or lumbar spine, and that all three body parts should be referred to an AMS for assessment.
(c) It followed that there had been a specific finding of injury to all three body parts. The AMS was required to accept the fact of those injuries and was to assess the impairment resulting from those injuries (see Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 and State of NSW (NSW Department of Education) v Kaur [2016] NSWSC 346.
(d) On examination of the cervical spine, the AMS said that the appellant described pain throughout his neck. The most minimal touch to his skin, which should not even dimple the skin, was described as being extremely painful. Movement in his head and neck was minimal.
(e) In respect of the thoracic spine, the AMS said, “pain was described as emanating throughout the whole of the spinal column. Again, minimalist physical examination seemed to cause him excessive pain. The same feature existed with his lumbar spine. Movement in any direction of any part of the spinal column was very grossly reduced.”
(f) The AMS had available to him an MRI scan of the cervical scan which showed a shallow posterior protrusion at C5-6. A CT scan of the thoracic spine showed degenerative changes in the mid-thoracic spine.
(g) Despite the fact that there had been a binding determination of injury to the cervical spine and the thoracic spine, and there was evidence of abnormality in both body regions, the AMS determined the issue of impairment in those body parts on the basis that there was no injury. This was apparent from a number of features of his reasons.
(h) In his summary of injuries and diagnoses, the AMS said, “in studying the extensive clinical file, there is no significant evidence of injury to his cervical spine, nor to his thoracic spine.”
(i) In his reasons for assessment, the AMS said, “as already identified, it was extremely difficult to accurately and effectively examine Mr Gencer. There was therefore a need to review all other assessments by specialists and to rely on at least some of their findings. To that end, it is identified that there has not been a significant injury to either his cervical spine or his thoracic spine.” Thereafter the AMS gave no further consideration to the assessment of any impairment in the cervical spine or the thoracic spine. The AMS did not refer to any of his clinical findings in those body parts. He did not identify which DRE category was appropriate to those two areas and gives no reasons why any particular DRE category was to be assessed. This was to be contrasted with the lumbar spine, where the AMS made a specific assessment of DRE Lumbar Category II and gave reason for that assessment. The AMS appeared to have assessed DRE Lumbar Category II on the basis of a lack of convincing evidence of radiculopathy but was otherwise satisfied that the criteria for Category II had been met. Yet his examination findings did not specifically describe the lumbar spine, other than to say the same features existed in the lumbar spine as existed in the thoracic spine. In fact, the AMS found the same restrictions and signs in all three parts of the spine.
(j) Given that the examination findings were essentially the same in all three parts of the spine, each part should have been assessed as DRE Category II. The only explanation for the AMS’s failure to do so is that he did not consider there had been an injury to the cervical spine or thoracic spine. In taking that course, the AMS made a demonstrable error in that he failed to accept the binding determination of the arbitrator that there had, in fact, been injury to both of those body parts.
(k) The MAC should be revoked. A new certificate should be issued which certifies a 5% WPI each in respect of the cervical spine and the thoracic spine, resulting in a total combined level of impairment at 16% WPI.
The respondent’s submissions include the following:
(a) The appellant's submissions did not disclose any grounds on which an Appeal Panel should interfere with the MAC and the MAC should be confirmed.
(b) Alternatively, the appellant should be reassessed by the Appeal Panel: Drosd v Nominal Insurer [2016] NSWSC 1053.
(c) The MAC did not contain demonstrable error or use of incorrect criteria; the AMS detailed his review of the key evidence submitted by both parties in the matter, including in the Table at page 1 of the MAC which noted:
(i)The appellant was recommended, and referred for, pain management.
(ii)Dr Panjratan's assessment of 0% WPI for the thoracic and cervical spine and Dr Panjratan detailing 'pain out of proportion for injury'.
(iii)The appellant's history of attendances on pain management specialists, Dr Manohar and Dr Wallace, with the AMS commenting "it was identified that there was a significant mental health component as well".
(iv)The appellant's IME, Dr Bodel, who had also assessed the appellant at 0% WPI for the cervical spine and thoracic spine.
(v)In doing so, Dr Bodel detailed that the appellant sustained a neck injury in the subject incident at 'C5/6 level and in the back, there are mild end plate changes at both L4/5 and L5/S1 but no major external rupture'.
(d) Such evidence demonstrated that the assessment of 0% WPI had a sound evidentiary basis. The assessment of 0% WPI, whilst disappointing for the appellant, did not equate with evidence of demonstrable error, particularly noting the issues of injury causation and WPI assessment are separate.
(e) A finding of 0% WPI did not mean the AMS considered there was no injury.
(f) The assessments of 0% WPI for the compensable cervical spine and thoracic spine injuries, were supported; sequentially:
(i)Dr Panjratan recorded 'extensive abnormal pain behaviour', which is consistent with the AMS' observations (discussed further below).
(ii)the AMS detailed, at MAC page 3, under 'present symptoms' that the appellant has 'pain, mostly in his lower back and to a lesser extent in his mid-back and his cervical spine'.
(iii) the AMS detailed at MAC page 4 under 'findings on physical examination' that the examination was 'extremely difficult' and the appellant described 'most volubly the extensive pain which he believes he is in, which seems to affect most parts of his body' (our emphasis).
(iv) the AMS, at MAC page 5, detailed 'the major focus appears to be in his lumbar spine, which is identified by all other specialists who have examined him ...'
(g) The AMS' observations including the above, provided context for the AMS's subsequent comments regarding the thoracic spine and cervical spine (on which the appellant relied on to assert error), including that 'the most minimal touch, which did not even dimple the skin, was described as being extremely painful'.
(h) The AMS at MAC page 5, 'under consistency of presentation' recorded that the appellant, on examination, was 'very high focus of pain and disability and extensive abnormal illness behaviour'.
(i) When the above comments were read in the context of the MAC overall, (and the observed issues with consistency in presentation), they supported the assessment of 0% WPI applied by the AMS was evidenced based, consistent with the medical reports relied on by both parties; the AMS' clinical expertise; and the assessment the AMS conducted on the date of the examination.
(j) Such evidence demonstrated the assessments were based on AMS's opinion on the impairment attributable to the compensable cervical spine and thoracic spine injuries, and not premised on the absence of injury. This was reinforced by:
(i)The AMS specifically noting, at MAC page 6, that he had to refer to the medical reports in evidence on account of the appellant's presentation during the assessment and 'to rely on at least some of their findings'.
(ii)The AMS detailing, at MAC page 6, that 'there does not appear to have been a significant injury to either the thoracic or cervical spine'.
(iii)The AMS did not state there had not been an injury, but was commenting on its severity, as shown by:
(a)Dr Anderson's recording that the Appellant's lumbar spine was reported to be causing him most difficulty.
(b)The AMS's comments, at MAC page 6, that 'no other specialist has convincingly demonstrated significant involvement or dysfunction of the cervical or thoracic spine' and that 'all specialists have indicated that the lumbar spine is the major area of concern'.
(c)The AMS, at MAC page 6, in commenting on 'other medical opinions' again noted that the specialists did not 'convincingly demonstrate evidence of significant involvement or dysfunction' of the thoracic or cervical spines' and 'all specialists have identified that the lumbar spine is the major area of concern'. This addressed the severity of the symptoms emanating from the respective body parts, and was not an opinion on causation of injury.
(d)Dr Bodel's assessment, dated 5 February 2019, that the appellant has 'pain in the whole body involving the neck, the middle back, and lower part of the back in particular'; and he stated 'that the lower part of the back is the worst area of pain'; and, 'no doubt there is more significant disc pathology particularly at L4/5 and L5/S1 with some disc height narrowing in both those two lower lumbar levels'.
(iv)The lumbar spine symptoms being considered the most troubling for the appellant was also supported by Dr Bodel's opinion concerning surgical intervention being limited to the lumbosacral spine.
(k) The AMS's assessment was consistent with the appellant's presentation on the day of the examination when viewed in the context of the documented history of the appellant's compensable injuries, symptoms, prior presentation, and evidence of WPI assessments; and, importantly, the consistency of the WPI assessments by the qualified IMEs for both parties.
(l) This demonstrated that AMS’s assessment was with respect to the relative signs and symptoms emanating from the injuries. This was not inconsistent with the findings of injury. The matter was therefore distinguishable to cases where an AMS has specifically commented that a compensable injury was not sustained, for example, in the recent MAP decision of Jan Neridah Kineally v State of NSW- Central Coast Local Health District, 2 March 2020, [2020] NSWCCMA 35.
(m) The MAC in not detailing DRE categories for the thoracic and cervical spine did not equate with the MAC being infected by demonstrable error or use of incorrect criteria; sequentially:
(i)The AMS detailed the difficulties in examining the appellant in the context of the AMS's concerns on the appellant's consistency of presentation and 'extensive abnormal illness behaviour'.
(ii)This provided a cogent reason for the AMS not referring to the DRE categories, because the AMS was prevented from undertaking such assessment given the above and therefore was justified in using his clinical expertise and judgement, in addition to the medical evidence before him, and concurrence in opinion from both IME doctors relied on by both parties that although the appellant suffered compensable injuries to his thoracic and cervical spine, he suffered 0% WPI for those injuries.
(iii)The MAC overall provided the reasoning by which the AMS assessed 0% WPI, including the matters detailed above, which, in turn, provided a justification for the DRE I rating of 0% WPI.
(iv)While it may be desirable to do so, there is no requirement in Guidelines for the Evaluation of Permanent Impairment that an AMS must reference the relevant differentiators and/or structural inclusions when allocating a worker to a DRE Category.
(v)There is a need for caution in construing MACs 'minutely with an eye for finding in error in terms expressed by Mason P' in Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88, as discussed in Unilever Australia (Holdings) Ply Ltd v David Thomas Bisson [2019] NSWWCCMA 150 at 47.
(n) In the alternative, if the MAC is found to have been infected by demonstrable error and or incorrect criteria, the appellant should be re-assessed by the MAP: Drosd v Nominal Insurer [2016] NSWSC 1053.
(o) It is appropriate to have the appellant re-assessed and it would not be accurate to assume that the assessments to the thoracic and cervical spine are the same as the lumbar spine. There are different diagnostic and other requirements for the DRE categories for the lumbar, thoracic and cervical spine in the applicable guidelines in AMA5. Some of the symptoms may emanate from the cervical spine; or relate to psychological, pain management or other issues that do have not have an orthopaedic basis.
(p) The AMS at MAC page 7 detailed that he was 'not persuaded that the 10% deduction applied by Dr Vijay Panjratan (for the lumbar spine) was appropriate, since there is no evidence of any pre-existing significant lumbar condition' and further on page 7 'although there are evidence of pre-existing Schmorls nodes, there is no history of any pre-existing physical condition which would necessitate a deduction'.
(q) A deduction of at least 10% was supported by the medical evidence including the report of the MRI to the lumbar spine, dated 5 June 2018, discussed at MAC page 4 which detailed 'extensive degenerative changes in the lower lumbar segments'.
(r) A 10% deduction as assessed by Dr Panjrartan was appropriate given
Dr Panjatratan detailed that a history of 'advanced degenerative changes in the lumbar spine which have contributed to his condition'. In providing this opinion,
Dr Panjratan considered 'the degenerative changes are not related to his work with the respondent’.(s) This opinion aligns with the case law on section 323, including: (a) Cole v Wenaline Ply Ltd which provides that a section 323 deduction can only occur if the pre-existing condition contributes to the permanent impairment assessed; and (b) Vitaz v Westform (NSW) Ply Ltd, which supports that that it is not necessary that the pre-existing condition be symptomatic in order for a deduction to be required: Vitaz v Westform (NSW) Ply Ltd; Unilever Australia Holdings Ply Ltd v David Thomas Bisson 25 October 2019 [2019] NSWWCCMA 150.
(t) The reasons by which the AMS reached his conclusions were clearly articulated in the MAC. The appellant's submissions do not satisfy that the MAC was infected by demonstrable error or use of incorrect criteria.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In this matter, the Registrar has determined that he is satisfied that a ground of appeal under s 327(3) (d) is made out in relation to the AMS’s assessment of permanent impairment.
The Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Assessment of the cervical spine and thoracic spine
Under “Present symptoms” the AMS wrote: “Pain, mostly in his lower back and to a lesser extent in his mid-back and his cervical spine.”
Under “Findings on physical examination” the AMS wrote:
“This was extremely difficult. Mr Gencer described most volubly the extensive pain which he believes he is in, which seems to affect most parts of his body. It was very difficult to get him on to the examination couch and he described that this was about the first occasion that this had successfully been achieved. Nevertheless, it was still an extremely difficult examination.
Cervical Spine. He described pain throughout his neck. The most minimal touch to his
skin, which did not even dimple the skin, was described as being extremely painful.
Movement of his head and neck was minimal.Thoracic Spine. Pain was described as emanating throughout the whole of the spinal
column. Again, minimalist physical examination seemed to cause him excessive pain.
The same feature existed with his lumbar spine. Movement in any direction of any part of the spinal column was very grossly reduced.Upper Limbs. He had a normal range of movement of the elbows, wrists, hands and all
digits. Movement of the shoulders was very grossly reduced, particularly with elevation
movements, which were bilaterally reduced to the horizontal.
No neurological features were identified.Lower Limbs. He walked with a very short paced toddling gait. While holding on to the
office furniture, he could stand on his heels and toes but could not walk on them and could not squat.
The legs were equivalent in length and in circumference at thigh and calf.
It was extremely difficult to examine the lower limbs, since this caused increasing irritation elsewhere, although there was no evidence of any significant dysfunction in the hips, knees or ankles.
Sensation was described as being reduced over the medial side of the right ankle and over the lateral side of the left ankle, although this was variable to pinprick. Straight leg raising was conducted in the sitting position. He was unable to fully extend each knee, describing that this caused increasing pain throughout. Nevertheless, reflexes were present and equivalent in the upper limbs and in the lower limbs.”Under “Summary of injuries and diagnoses” the AMS wrote:
“Mr Gencer gives a history of being hurt in late February 2018 when he was assisting with The lifting of a kitchen cabinet. He describes that this has affected his cervical spine, thoracic spine and lumbar spine. This was an extremely difficult assessment and was fraught with features of abnormal illness behaviour throughout. There are therefore
compliance issues in the overall assessment.
In studying the extensive clinical file, there is no significant evidence of injury to his
cervical spine, nor to his thoracic spine. The major focus appears to be in his lumbar
spine, which is identified by all other specialists who have assessed him.
Nevertheless, despite his protestations at this assessment, there was no convincing evidence of radiculopathy.”
Under “Reasons for Assessment”, the AMS wrote:
“As already identified, it was extremely difficult to accurately and effectively examine Mr
Gencer. There was therefore a need to review all other assessments by specialists and to rely on at least some of their findings. To that end, it is identified that there has not been a significant injury to either his cervical spine or his thoracic spine. There does appear to have been an injury to his lumbar spine.
Despite his clinical complaints, it was not possible to convincingly demonstrate
radiculopathy. He is therefore assessed in DRE Lumbar Category II on Page 384 of AMA 5. This provides a whole person impairment ranging between 5% and 8%, depending on the Activities of Daily living. For this, he would attract a further 2%. At this assessment, his wife assisted with his dressing and undressing, although there was no convincing evidence that Mr Gencer would not have been able to do this himself. He therefore has a whole person impairment of 7%.”
In commenting on other medical opinions, the AMS wrote:
“As advised, no other specialist has convincingly demonstrated significant involvement or is dysfunction of the cervical or thoracic spine. All specialists have indicated that the lumbar spine is the major area of concern.
Specialist Orthopaedic Surgeon, Dr James Bodel in his report of 05/02/19 is the only
specialist who has identified radiculopathy which results in a whole person impairment of 12%. All other specialists have not demonstrated this.
Specialist Orthopaedic Surgeon, Dr Vijay Panjratan in his report of 25/03/19 advises Lumbar Category II, with which I would agree. This gives a whole person impairment of 7%. Dr Panjratan also deducts 1/10th. I am not persuaded that this is appropriate, since there is no evidence of any pre-existing significant lumbar condition.
Specialist Neuro-surgeon, Dr Omprakesh Damodaran and also Dr Vijay Panjratan indicate the difficulty of accurate examination of Mr Gencer, with which I would completely agree.”The appellant submitted that the AMS determined the issue of impairment of the cervical spine and thoracic spine on the basis that there was no injury.
Arbitrator Wynyard had made a finding of injury to all three body parts, the cervical spine, the thoracic spine and the lumbar spine. The Appeal Panel agree with the appellant that the AMS was required to accept the fact of those injuries and was to assess the impairment resulting from those injuries (see Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 and State of NSW (NSW Department of Education) v Kaur [2016] NSWSC 346).
The AMS found that there had not been a significant injury to either the cervical spine or the thoracic spine. The AMS then did not give any further consideration to the assessment of any impairment in the cervical spine or the thoracic spine. The AMS did not refer to any of his clinical findings in those body parts, did not identify which DRE category was appropriate to those two areas and gave no reasons why any particular DRE category was to be assessed.
This was to be contrasted with the lumbar spine, where the AMS made a specific assessment of DRE Lumbar Category II and gave reasons for that assessment.
The Appeal Panel considered that the AMS’ failure to refer to clinical findings and identify what particular DRE category was appropriate in the cervical spine and thoracic spine reflected his opinion that there had been no significant injury to the cervical spine or thoracic spine and, therefore, no proper assessment need be made. Even if the AMS considered that there had been no significant injury to either the cervical spine or the thoracic spine, the AMS should have made an assessment as to which DRE category was appropriate to those two areas. In failing to make a proper assessment of both the cervical spine and thoracic spine, the AMS made a demonstrable error.
The Appeal Panel reviewed the evidence in this matter.
The Appeal Panel considered that re-examination was necessary as there was insufficient information on which to make a determination, particularly, in relation to the assessment of the cervical spine.
As noted above, Dr Tommasino Mastroianni re-examined the appellant on 28 April 2021.
Dr Mastroianni provided the following report:
“1. The worker’s medical history, where it differs from previous records
Mr Gencer confirmed the history as recorded by the AMS on 24 January 2020.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Gencer states that the back pain is getting worse. He now gets a pinching sensation in the back. He says he gets more spasms and pins and needles in his legs. On further questioning, he states the pins and needles sensation is global. He says his feet swell. He describes no other symptoms in the lower limbs.
He says he now gets a hot sensation in the thoracic spine. He cannot sleep on his back and can only sleep on his side.3. Findings on clinical examination
Mr Gencer is a man of stated age, not tall, of medium to large build. He is overweight. He walks with a slow gait and sometimes a waddle but does not favour either limb.
When relating the history, he sits and stands. While standing he rocks from side to side and when sitting the legs shake.
He has a flat affect.
He is wearing sandals and shorts. When asked to remove his top, his wife assisted him.
He stands erect with normal spinal curve. He has a large abdomen. He is pain-focussed and when he sees the percussion hammer he was apprehensive. He was reassured that I would not be hurting him, and he was very co-operative throughout the examination.
There was no muscle guarding or muscle tenderness in the neck or back.
There are complaints of discomfort on palpating the cervical spine. He is tender in the dorsal and lumbar spine with maximum tenderness at T6/7 level and lower lumber segments.
He has difficulty walking on heels and toes and partially squats.
Neck movements were normal with complaints of pain more so at the end of range of movement.
Low back movements were restricted with flexion allowing fingertips to just above knee level. Extension was a quarter of normal. Tilt and rotation were restricted bilaterally, right greater than left.
With the spine slightly flexed, rotation was also restricted with pain intensifying in the dorsal spine.
Examination of the upper limbs reveals normal sensation, normal power and normal reflexes (biceps, triceps and supinator jerks).
He gets and on and off the couch slowly and says he cannot lie on his back but with encouragement he was able to lie supine whilst examining the lower limbs.
Examination of the lower limbs reveals normal sensation, normal reflexes (knee, ankle and hamstring jerks) and normal power. Muscle tone was normal.
Straight leg raise supine was 30° bilaterally.
Straight leg raise was normal sitting. Nerve root tension signs were negative.
Mr. Gencer falls into DRE Cervical Category I. This equates to 0% WPI, (AMA 5, page 392, Table 15-5). He has symptoms but no muscle guarding, muscle spasm or tenderness. Neck movements were normal.
He falls into DRE Thoracic Category II. He has localised tenderness and asymmetric loss of range of movement (AMA 5, page 389, Table 15-4). This equates to 5% WPI. There is evidence of degenerative disease in the thoracic spine which, in my opinion, is a component of the current impairment. I have deducted one-tenth applying the provision of Section 323. This equates to 0.5% WPI. He therefore has 4.5% WPI which rounds up to 5%.
He falls into DRE Lumbar Category II (AMA 5, page 384, Table 15-3). There is tenderness and asymmetric movements.
ADLs are affected but he is independent in self-care. I assess 7% WPI.4. Results of any additional investigations
MRI of the thoracic spine dated 22 January 2020 reported by Dr Lee
There is loss of vertebral body height of 20% at T8. At T5/6 there is right paracentral herniation which contacts the cord but there is no signal change. At T10/11 there is broad right herniation without cord contact that is causing mild foraminal stenosis. A similar finding is noted at T12/L1.
Conclusion: Multilevel degenerate spine, changes most marked at T5/6 with herniation contacting cord.”
The Appeal Panel has adopted the report and findings of Dr Mastroianni.
The Appeal Panel noted that Dr Mastroianni was able to get full co-operation during the examination. Dr Mastroianni found marked tenderness in the dorsal spine but only slight discomfort in the neck. Dr Mastroianni found that there was no muscle guarding nor tenderness in the spine and neurology of both the upper and lower limbs was normal.
The Appeal Panel considered that the appellant falls into DRE Cervical Category I (AMA 5, page 392, Table 15-5). The appellant had symptoms but no muscle guarding, muscle spasm or tenderness and neck movements were normal.
The Appeal Panel considered that the appellant falls into DRE Thoracic Category II. The appellant had localised tenderness and asymmetric loss of range of movement (AMA 5, page 389, Table 15-4). This equated to 5% WPI. There was evidence of degenerative disease in the thoracic spine which, in the opinion of the Appeal Panel, was a component of the current impairment. The Appeal Panel deducted one-tenth applying the provision of s 323 of the 1998 Act. This equated to 0.5% WPI. The appellant, therefore, had 4.5% WPI which was rounded up to 5%.
The Appeal Panel considered that the appellant falls into DRE Lumbar Category II (AMA 5, page 384, Table 15-3). ADLs were affected but he was independent in self-care. The Appeal Panel assessed 7% WPI which accorded with the assessment made by the AMS of the lumbar spine and also agreed with the AMS that no deduction under s 323 of the 1998 Act was applicable.
In summary, the Appeal Panel has rated the appellant as DRE Cervical Category I, DRE Thoracic Category II and DRE Lumbar Category II. The Appeal Panel has made an assessment of 5% WPI of the thoracic spine and 7% WPI of the lumbar spine. This results in a combined total of 12% WPI as a result of the injury on 22 August 2018.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 January 2020 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
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 Dr 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 22/8/18 | Chapter 4 Page 24-29 | Chapter 15 Page 392 Table 15-5 | 0% | N/A | 0% |
| Thoracic spine | 22/8/18 | Chapter 4 Page 24-29 | Chapter 15 Page 389 Table 15-4 | 5% | 1/10th | (4.5%) |
| Lumbar spine | 22/8/18 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 7% | N/A | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
Carolyn Rimmer
Member
Dr Drew Dixon
Medical Assessor
Dr Tommasino Mastroianni
Medical Assessor
0
6
0