Graeme Pocock and Asciano Services Pty Ltd
[2014] AATA 256
[2014] AATA 256
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0912
Re
Graeme Pocock
APPLICANT
And
Asciano Services Pty Ltd
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member Date 30 April 2014 Place Melbourne The Tribunal affirms the decision under review.
...................[sgd].....................................................
Mr John Handley, Senior Member
WORKERS’ COMPENSATION – Applicant suffered L5/S1 disc prolapse in 2004 – claims permanent impairment pursuant to Table 9.17 of the Guide – evidence led concurrently from three medico legal specialists – applicant satisfies the criteria against an impairment of 8% – did not have significant signs of radiculopathy at the date of review – decision affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988
CASES
Ashley and Comcare [2012] AATA 4
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment, Table 9.17
Guidelines for the Use of Concurrent Evidence in the Administrative Appeals Tribunal
REASONS FOR DECISION
John Handley, Senior Member
Mr Pocock, the applicant in this review, suffered injury on 2 March 2004. He was then employed by Pacific National Rail which was later succeeded by the respondent.
Immediately before the injury, at about 7:30 PM, when it was dark, he was shunting a ‘C’ class locomotive engine. When alighting from it by vertical steps he anticipated the distance between the bottom step and the ground to be between 6 and 8 inches. Unfortunately at the bottom of the steps was a deep depression. Rather than place his left foot on the ground, as he anticipated, he descended into the depression and took the weight of his body on his left leg. He described a crunching pain in his back and left leg.
The applicant fell and experienced severe pain which left him unable to move for 10 to 15 minutes. He attended a local clinic and was informed that he had suffered a sprain. The T documents lodged by the respondent record that he was given a certificate for two days incapacity (page 5).
The following day his pain was worse and he was taken by his wife to the Emergency Department of the Werribee Hospital. Painkilling medication was provided. He did not return to work for three months. During that time he had severe pain in his back, left buttock, left leg and foot and the three outside toes of his left foot. He said he continues to suffer pain in all of those locations. He has never had pain in his right leg.
The applicant eventually returned to work on alternative duties. He has subsequently been treated extensively by a number of doctors. He retired from employment as medically unfit in March 2010. He continues to receive weekly compensation.
This application seeks a review of a decision made by the respondent on 25 January 2013, subsequently affirmed by reviewable decision on 21 February 2013, to deny lump sum compensation for permanent impairment pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
The parties agree that any entitlement to compensation for permanent impairment is to be determined pursuant to Table 9.17 (Lumbar Spine) of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide).
The applicant contends that his whole person impairment (WPI) should be assessed at 13%. The respondent contends that the WPI should be assessed at 8%. The respondent accordingly contends that by reason of the impairment of the applicant being less than 10%, he is not entitled to compensation pursuant to sections 24 and 27 of the SRC Act.
The scope of this review is narrow, namely whether he continues to suffer radiculopathy.
The Guide states:
8% WPI
Clinical history and examination findings compatible with a specific injury. Findings may include: significant muscle guarding or spasm; asymmetric loss of range of motion; or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings.
No alteration of the structural integrity and no significant radiculopathy
or
Prior clinically significant radiculopathy and radiologically demonstrated disc herniation, consistent with the radiculopathy, but radiculopathy no longer present following conservative treatment
or
Fractures:
> Compression fracture of one vertebral body of less than 25%
> Posterior element fracture without dislocation (not developmental spondylolysis) that has healed without alteration of motion segment integrity
> Spinous or transverse process fracture with displacement without a vertebral body fracture, with no disruption of the spinal canal.
10-13% WPI
Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, alteration of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side of the same location (may be verified by electrodiagnostic findings)
Or
History of a herniated disc at the level and on the side consistent with objective clinical findings, associated with radiculopathy, or employees who have had surgery for radiculopathy but are now asymptomatic
Or
Fractures:
> Compression fracture of one vertebral body of 25% to 50% – healed without alteration of structural integrity
> Posterior element fracture with displacement disrupting the spinal canal – healed without alteration of structural integrity.
The applicant
The applicant said he feels pain in his left foot with every step he takes when walking. He said he feels a blast of heat in his left foot and, also when walking, his fifth toe feels as if it will explode. He said he can only walk short distances and described climbing stairs as agonising. He has constant left sided back pain extending from the top of his pelvis to below his shoulder blade and also suffers spasms. Relief is obtained by resting and taking medication. Walking, sitting and, on occasions, sneezing causes increased pain in his back. He said the pain in his back is now worse than it was in 2004 when he suffered the injury, and the back pain is worse than the pain he experiences in his left leg.
Radiology
The applicant has had four magnetic resonance images (MRIs) in 2004, 2006, 2010 and on 24 February 2014, approximately two weeks before the hearing. The first three MRIs reports are found at pages 187-190 of the T documents. The last MRI report was received as exhibit R7. The content of them and the language used by the radiologists was of significance, not only of the findings but especially in regard to Associate Professor Chambers’ (Dr Chambers) evidence, who noted the use of the words displacement and compression, which were used to describe the pathology, at L5/S1. Despite the radiologist’s also finding pathology at L4/L5, he said that was a red herring because any radiculopathy from that level would affect the right leg only.
Nerve conduction studies
Mr John Hart, a consultant orthopaedic surgeon who was engaged for a medico legal opinion by the respondent, arranged for the applicant to undertake nerve conduction studies by Professor Bruce Day at the Alfred Hospital on 20 September 2013. A very poor photocopy of the report following those studies is appended to a report of Mr Hart of 21 September 2013 (Exhibit R9). Professor Day concluded that:
The study is essentially normal. There is an incidental finding of a low amplitude [illegible] on the right probably related to an old tibial fracture. The H reflexes (a quantitative electrophysiological measure of the ankle jerk) are entirely symmetrical. The lack of power in the left lower limb muscles is due to failure of central drive (i.e. failure of volitional effort). There is no evidence of either acute or chronic denervation in the muscles examined.
Dr Chambers
Dr Chambers completed two reports at the request of the respondent dated 6 January 2014 and 28 February 2014. They were received as Exhibits R5 and R6 respectively.
In evidence he said he had read the medico legal reports completed by Mr John Hart and one report by Mr Geoffrey Klug at the request of the respondent and applicant respectively. He also observed the MRI films of 2010 and 2014.
Dr Chambers said that the films that he observed were similar in their findings. However, despite the opinion of the radiologists who completed the MRI in 2014, he was not satisfied that the applicant had compression of the left S1 nerve root at the L5/S1 level. He said that nerve root was displaced. He said the nerve root at that level depicted in the MRI film of 2010 also showed displacement. He said displacement demonstrated a nerve root which was out of normal line. If there was pinching of a nerve root there would be compression.
Dr Chambers was satisfied the applicant did not have radiculopathy because there was no compression of the S1 nerve root and he was able to elicit a left ankle jerk, which he said would not occur if that nerve root was compressed. He said the absence of a left ankle jerk was a classic indicator of radiculopathy. He was also aware of the nerve conduction studies and needle electromyography of the applicant’s lower limbs undertaken on 20 September 2013 by Professor Bruce Day, which he said were essentially normal.
In his most recent report (Exhibit R6) Dr Chambers recorded that Professor Day is a well trained, highly competent and very experienced neurophysiologist. Dr Chambers was confident that if S1 radiculopathy was present, it would have been detected by the electrophysiological examination.
Mr Brearley, Mr Klug and Mr Hart
On the second day of hearing, evidence was heard concurrently from Mr Kenneth Brearley and Mr John Hart, both orthopaedic surgeons and Mr Geoffrey Klug, a neurosurgeon. Each of those witnesses had been engaged by the solicitors for both parties to provide medico legal opinions. They had each lodged reports prior to commencement of the hearing.
Mr Brearley reported on 7 March 2012 (T documents pages 144-148) that he found the applicant’s left ankle jerk was slightly reduced at consultation. He was satisfied that there were other significant signs of radiculopathy being sensory loss over the outer side of his left leg and a positive nerve root tension sign. His interpretation of the MRI reports satisfied him that the applicant also suffered herniation of the disc at L5/S1. He assessed the applicant as having a 13% WPI under table 9.17.
In a report of 3 March 2014 (Exhibit A3), Mr Brearley reported that the MRI of 23 February 2014 demonstrated displacement of the left S1 nerve root which reassured him that his findings at previous clinical examination of weakness in the left ankle jerk had their origin in the injury to S1 nerve root. He noted that the nerve conduction study of 20 September 2013 was reported as essentially normal but declined to express an opinion upon its relevance to a diagnosis of radiculopathy because he did not have the expertise to comment usefully upon it.
Mr Hart examined the applicant on 9 January 2013 and provided a report of the same date to the respondent’s solicitors (T documents pages 162-174). He found, on examination, that reflexes of the applicant’s lower extremities were equal and active. The left ankle reflex was equal to the right side. He was satisfied the applicant suffered an 8% WPI. His opinions were reaffirmed in reports of 12 June 2013, when he reviewed reports of Mr Brearley and Mr Klug (Exhibit R8); 21 September 2013 (Exhibit R9) which was completed after he obtained the nerve conduction report and 28 February 2014 (Exhibit R 10) after he reviewed the MRI report of 24 February 2014.
Mr Klug examined the applicant on 14 May 2013 at the request of his solicitors and provided a written report on 3 June 2013 (Exhibit A4). He found there was some minimal weakness of the applicant’s ability to dorsiflex and plantarflex his left foot and toes but there was no reflex change with each of left and right sides being present and equal. He found, on examination, that the applicant had other clinical features which satisfied him the applicant did have signs of radiculopathy affecting his left lower limb. He was satisfied the applicant should be assessed as having a WPI between 10 and 13%.
Mr Klug provided another report on 27 February 2014 following a request made to him to consider the MRI report of 24 February 2014 and the results of the nerve conduction study.
Mr Klug reported the MRI continued to demonstrate S1 nerve root compression consistent with a person suffering radiculopathy.
In relation to the nerve connection conduction study he concluded:
I would see no reason to doubt the accuracy of this report. I have to be of the opinion that this finding, when taken in conjunction with my finding of a normal ankle tendon reflex, raise some doubt as to whether or not this person does indeed have a radiculopathy involving the first sacral nerve root.
Immediately prior to the doctors giving their evidence, I drew their attention to the Tribunal Guidelines (published 9 November 2011) for the use of and procedure for giving concurrent evidence. I also informed them that the Guide was a Legislative Instrument and I was obliged to have regard to the criteria within table 9.17 of the Guide and notes within it to assist interpretation and application of the criteria found against each of the applicable assessments (8% and 10-13%).
The doctors agreed that Table 9.17 of the Guide is concerned with clinical radiculopathy and a diagnosis must be made on the basis of objective and subjective signs. The objective signs were the presence of any wasting, reflex changes and electro diagnostic findings. The subjective signs are alteration to sensation and motor weakness. Mr Klug was also of the opinion that the objective signs, especially any changes in reflexes, were important in making a diagnosis. He was also of the opinion that a diagnosis of radiculopathy cannot be made on the basis of, although may be supported by, findings on radiology.
The doctors agreed that the MRI reports, especially the most recent of 24 February 2014 demonstrated the presence of a disc protrusion at L4/5 and L5/S1. The most significant, in the context of any diagnosis of radiculopathy in the applicant, is the protrusion at L5/S1 because it is responsible for symptomology in the left leg. The protrusion at L4/5 would be of relevance to any symptomology in the right leg; however the applicant did not have any symptoms in that limb.
The doctors agreed that the most important feature in diagnosing radiculopathy would be the absence of an ankle jerk and loss of sensation on the sole of the applicant’s left foot.
When the doctors were reminded that the criteria applicable to 10%-13% whole person impairment – significant signs of radiculopathy and objective clinical findings associated with radiculopathy – Mr Hart said, by way of agreement, that the diagnosis could not be made on a single clinical finding only. He said attention would need to be given to reflexes, sensation, motor power, wasting and muscle strength.
Mr Klug agreed. He said a focus on muscle weakness alone could be misleading because it is entirely subjective, especially with a patient who suffers pain. He said the ankle jerk is the key one that one looks at (Transcript page 42).
I informed the doctors that Dr Chambers’ attention was drawn to the use, by some of the radiologists who had reported upon MRI films, of the words compression and displacement (which he said had different meanings) when referring to the S1 nerve root. No less in the most recent MRI where the radiologist had used both of those words.
Mr Klug said another word commonly used by radiologists is contact. He said the emergence of relevant pathology occurs by a disc bulging and contacting a nerve. The nerve may then become displaced, and eventually become compressed and deformed. He said amongst radiologists there is a huge amount of observer error involved to which he understood Dr Chambers was referring. In his opinion the S1 nerve root was displaced but was not compressed (Transcript page 44).
Mr Hart said that he did not make a big difference between those terms. He said if the nerve is displaced it has been pressed upon. In his experience the word compression implies that there has been a squeezing. Both he and Mr Klug said a person with a small spinal canal could have the nerve root pinched (compressed) yet a person with a larger spinal canal could have displacement without compression (Transcript pages 44-45).
Mr Brearley said that if the nerve root is displaced by [a] disc then there is quite significant compression on the nerve. Whether the compression is observed on the films, he said, is another issue. He said he had seen some of the films of the MRIs and was satisfied that there had been definite displacement of the nerve, there is no doubt about that (Transcript page 46).
The doctors were asked to comment on the findings of the nerve conduction study.
Mr Brearley agreed with the conclusions reached by Professor Day. He said the findings of that study may suggest [that it is] likely to have relevance or influence upon a finding of the presence of radiculopathy (Transcript page 46).
Mr Klug was concerned that Professor Day had used the expression essentially normal which implied that there was a possibility of some doubt. However, whilst he did not regard the studies as conclusive and could on occasions be misinterpreted, if the result was normal, he would defer to the expertise of Dr Chambers, who he regarded as being an expert in interpreting nerve conduction reports. He said the results of the study suggested that the applicant did not suffer radiculopathy. He maintained the opinion expressed in his first report that there was other evidence of radiculopathy, however, the presence of an ankle jerk caused him to have some doubts (Transcript pages 46-47).
Mr Hart said a number of medical reports found within the T documents, giving a history of the applicant’s treatment with many doctors over a number of years demonstrated a number of inconsistencies in the clinical findings. He decided to recommend that the applicant undertake a nerve conduction study. It was his view that the result of such a study would provide objective information that had not otherwise been obtained. Having read the results of the study he was satisfied that there was an absence of sufficient objective evidence to make a finding of radiculopathy.
I asked Mr Hart to offer an opinion or explanation, in the absence of a diagnosis of radiculopathy, of symptoms described by the applicant of pain extending into his left buttock, left leg and foot, including three toes of his foot, burning sensation on the sole the foot and leg pain worsened by walking, standing and climbing stairs.
Mr Hart said he would need more information about the distribution of pain and its location, especially in the lower leg. Nonetheless, he acknowledged that sensory changes on the sole of the left foot would be consistent with an S1 lesion but not on the outer aspect of the leg. He said symptoms of that description, also found in other medical reports, caused him to recommend the nerve conduction study.
Mr Klug said that the symptoms described by the applicant were significant; they are probably consistent with radicular pain and also with irritation of the S1 nerve root. He described the burning sensation as neuropathic pain. He said, in their own right they don’t indicate a radiculopathy…. But if they were present with objective signs of radiculopathy that would be – they’d be consistent (Transcript page 50).
Mr Brearley said the symptoms described by the applicant were consistent with L5/S1 disc prolapse, S1 nerve root irritation and either nerve root displacement or compression.
In response to questions from counsel for the applicant, Mr Horner, Mr Hart acknowledged that Mr Malham, an orthopaedic surgeon treated the applicant in 2006, reported that the applicant was experiencing S1 radicular pain (and surgery was offered). Mr Hart acknowledged that the applicant may now be suffering radicular pain but there was no objective clinical sign pointing to it especially in the absence of positive findings by the nerve conduction study.
Mr Hart said there could be a difference in the severity or the intensity of signs over a period of time but he would not expect that there would be changes in areas where there was sensory loss.
Mr Klug said that he had also read the medical reports from the doctors treating the applicant some years earlier and found it difficult to understand the variation in the reported symptoms and findings. He said swelling in a lumbar disc, causing compression of a nerve root, may reduce or settle without surgical intervention which would also reduce the extent of symptoms. However, initial damage to a nerve root does not recover despite improvement in function. In his experience, careful examination will reveal some residual impairment. Mr Brearley held a similar opinion.
Mr Horner drew the doctors’ attention to the comment within the Guide (page 150)-
Electromyography does not detect all compressive radiculopathies and cannot determine the cause of the nerve root pathology
He asked them whether they were aware of any limitations in the nerve conduction studies.
Mr Hart acknowledged that comment and said the assessment may not be of a compressive radiculopathy. He agreed that there may be limitations but at an objective level, the report following a nerve conduction study is a very important document. Mr Klug said that the study is not 100 per cent accurate and he did not believe it’s infallible in excluding compressive radiculopathy due to a disc disorder. However, he accepted that if it was conducted confidently it has a reasonable degree of accuracy … it can’t be ignored. Mr Brearley said that it is a useful test but it is hardly infallible (Transcript pages 55 – 56).
Counsel for the respondent, Mr Richards, drew the doctors’ attention to the Guide at page 151 where, in terms of making a diagnosis of radiculopathy, it is stated that radiology images alone would be insufficient to justify the diagnosis and there must also be clinical evidence …. Their attention was also drawn to part of the criteria against a finding of 8% WPI (page 156) where it is recorded that such a finding would be made if there had been prior clinically significant radiculopathy and radiologically demonstrated disc herniation, consistent with the radiculopathy, but radiculopathy no longer present following conservative treatment.
The doctors agreed that radiculopathy could not be diagnosed upon images or findings upon radiology. Clinical findings were also critical before a diagnosis could be made.
The doctors had agreed (Transcript pages 53 and 74-75) that the radiology undertaken by the applicant (MRIs) did show disc herniation at L5/S1 (the doctors agreed that the expression prolapse is often used and has the same meaning). They also agreed that the diminished ankle jerk, found by Mr Brearley in 2012 which had not subsequently been found by Mr Hart, Mr Klug or Dr Chambers pointed to the applicant no longer suffering radiculopathy, although Mr Klug thought it was unlikely that resolution would occur within a two year period, but acknowledged that it was possible. Mr Hart added that the nerve conduction study and the absence of ankle jerk upon his assessment pointed to a significant change in the applicant, subsequent to his first consultation with Mr Brearley (Transcript pages 59-60).
The doctors agreed that the applicant did suffer muscle spasm and clinically there was an asymmetrical loss of range of motion however there was no unanimity concerning the remaining criteria against an 8% WPI as to whether the applicant had non-verifiable particular complaints, defined as complaints of radicular pain without objective findings. More precisely, non-verifiable radicular root pain is described at page 150 of the Guide as pain that is in the distribution of a nerve root but has no identifiable origin (that is, there are no objective physical, imaging, or electromyographic abnormal findings).
The doctors agreed that the applicant did have radicular pain. Mr Hart said there was no objective physical finding during his clinical examination. He said if the nerve conduction studies had detected an abnormality he would have recommended a 10% WPI.
Mr Klug said there was a difference in measurement of the circumference of each of the applicant’s calves by 1 cm which satisfied the description of atrophy for the purposes of the Guide. That is, he did find an objective physical finding which was suggestive of radiculopathy (Transcript page 65). He maintained his opinion that the applicant did suffer radiculopathy but acknowledged that in the absence of an ankle jerk and the findings of the nerve conduction study (which he agreed, and recorded in his report that he had no reason to doubt) did raise some doubts about the accuracy of his diagnosis (Transcript page 67 and page 70). Consistent with his opinion that the applicant did suffer from radiculopathy, Mr Klug said the applicant should be assessed at between 10% and 13% WPI (Transcript page 71).
Mr Brearley reaffirmed his finding of a reduced ankle jerk was abnormal at the time of his examination, however he conceded that in the absence of that finding his conclusion (as to whether the applicant did suffer radiculopathy) probably would have been different (Transcript page 66). He said on the basis of his assessment the applicant would be entitled to a 10% WPI but if he was to be assessed at the date of the hearing, having regard to the evidence heard, probably the best fit this time would be 8% WPI (Transcript page 72).
Conclusion and reasons for decision
The applicant suffered a very serious back injury in the course of his employment in 2004. The MRIs confirm the presence of disc prolapse (herniation) at L4/5 and L5/S1. Attempts at returning to work were partially successful but eventually the applicant was retired as medically unfit in March 2010. He continues to receive weekly compensation and his rights to medical like expenses remain the responsibility of his employer. Those rights are not at risk by this review.
The applicant claims lump-sum compensation pursuant to sections 24 and 27 of the SRC Act. He asserts that he has suffered between 10% and 13%WPI pursuant to Table 9.17 of the Guide. The respondent asserts that any assessment should be no greater than 8% WPI of the same table. The applicant will succeed in this review only if he establishes a WPI of 10% or greater. That objective will be achieved if he satisfies the criteria within Table 9.17 against an entitlement between 10% and 13%.
Essentially the issue for determination is whether the applicant now suffers from radiculopathy.
The applicant’s symptoms, for the purposes of this review, affect his left leg only. The medical witnesses were uniform in their opinion that pathology at the L5/S1 level is responsible for left leg symptoms. The pathology at L4/5 would be responsible for right leg symptoms which are not experienced by the applicant.
The medical evidence heard in this review was from four very senior practitioners holding orthopaedic and neurology qualifications. Their reports and evidence during the hearing was of considerable assistance and helped me to comprehend the medical issues. I do not disregard any of the applicant’s evidence. I am satisfied he is a witness of truth who gave his evidence honestly and did not embellish. I am satisfied that he does suffer radicular pain. But the issue under consideration is of a medical nature and I have deferred to the medical evidence in reaching the conclusions which are found later.
Dr Chambers said that radiculopathy would only be present if there was compression of the L5/S1 nerve root. He said compression is the phenomena of the nerve being pinched and producing symptoms. He found a left ankle jerk, on examination in 2013 and concluded the applicant did not have radiculopathy. He said that opinion was later confirmed by the findings of the nerve conduction study.
Mr Brearley found the applicant had a diminished or reduced ankle jerk at examination in 2012, together with sensory loss over the outer left leg which he said was consistent with the L5/S1 pathology.
Mr Hart and Mr Klug found the applicant’s reflexes were equal and active.
Mr Hart noted from medical reports of doctors who treated the applicant within a few years of the initial trauma that there was a variation in the clinical histories. He concluded that nerve conduction studies would provide an objective basis as to whether a diagnosis of radiculopathy could be made. When the nerve conduction study results became known he was satisfied, no less than by his clinical finding of an ankle jerk being present, that a diagnosis of radiculopathy could not be made.
Mr Klug found the applicant to have minimal weakness of his ability to dorsiflex and plantarflex his left foot. He obtained a history of the applicant having shooting pains into his lower left leg after walking 500 metres together with pain also over three toes of his left foot, a reduced sensation in his left foot and reduction in the circumference of his left calf of 1 cm compared to the right calf. Despite the presence of ankle jerk on his examination and the findings of the nerve conduction study he remained satisfied that the applicant did have radiculopathy although he did concede that the results of that study did cause his diagnosis to be in doubt.
During the concurrency of the evidence, Mr Hart, Mr Klug and Mr Brearley agreed that the presence or absence of an ankle jerk was a critical finding in making a diagnosis of radiculopathy.
Mr Brearley was the only medical witness who found an alteration in the left ankle reflex. He found there was a diminished or reduced ankle jerk. The other witnesses, including Dr Chambers, found the ankle jerk to be present without diminution.
The doctors also agreed that the results of the nerve conduction studies were important in determining diagnosis.
Dr Chambers and Mr Hart, who gave evidence independently of each other, were satisfied that the applicant did not suffer radiculopathy because of the absence of an ankle jerk and the findings of the nerve conduction study.
Mr Brearley was of the opinion that the results of the nerve conduction study were likely to influence the making of a diagnosis of radiculopathy. He was also satisfied that the presence of left ankle jerk subsequent to his examination of the applicant by Dr Chambers, Mr Hart and Mr Klug might suggest that if radiculopathy had been present, it had resolved by conservative treatment.
The criteria in Table 9.17 of the Guide against a 10-13% WPI has two components.
The first component is of significant signs of radiculopathy. The words significant and signs are important. Signs of radiculopathy are of course objective as opposed to symptoms. That those signs must be significant, points to them being of some consequence. I think that word should also be understood as meaning the signs continue to be present especially when compared to the criteria against an 8% WPI in Table 9.17 (which will be discussed later).
Secondly, there must be more than one significant sign. The criteria in the first component recites a number of signs which are suggested, by the words such as, that if present and significant would satisfy the criteria. I do not adopt a submission put at the conclusion of the hearing that any one of the listed signs would suffice. I agree with the conclusions reached by Professor Senior Member Creyke and Member Shanahan in Ashley and Comcare [2012] AATA 4 at [76-77] that signs should be taken to mean at least 2 objective indicators of radiculopathy…
The criteria within the relevant table must be satisfied and achieved at the date of hearing (the review) and on the material then before the Tribunal – refer Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37; 43-44; 53 and 55].
On the basis of the evidence heard from the doctors and the contents of their reports, I am satisfied and find as a fact that at the date of hearing the applicant did not suffer an alteration in the reflex of his left ankle. There is scant evidence concerning the loss of muscle strength. The evidence of atrophy (wasting) of his left leg is confined to a 1 cm difference of his calf compared to the right calf. There was some evidence of altered sensation in the outer aspect of the lower left leg and the sole of his foot. I do not regard the signs that were present to be significant. The criteria refers to verification of signs by electrodiagnostic findings. Consistent with the interpretive assistance at pages 150 – 151 of the Guide, I do not conclude that this part of the criteria will rise or fall on the basis of the nerve conduction studies alone, however the evidence from the doctors and the conclusion of Professor Day does satisfy me that there was symmetry between the left and right legs and also explains the ability of three of the four doctors to have been able to elicit an ankle jerk.
Mr Klug did find some symptoms which, despite the presence of an ankle jerk and the findings of the nerve conduction study, satisfied him that the applicant did suffer radiculopathy. The symptoms upon which he relied – the atrophy of the lower left leg and minimal weakness of ability to dorsiflex and plantarflex – in my view are not significant.
In concluding this component I am not satisfied that the applicant at the date of review suffers radiculopathy.
I found the evidence of Mr Klug of atrophy of 1cm of the left calf to be unreliable. It assumes that each doctor took the measurement on the same position of the calf and makes no allowance for altered symmetry of the calf muscle between consultations.
The altered sensation on the sole of the left foot is the only sign pointing to radiculopathy which is significant. For reasons given above, this singular finding does not satisfy the criteria within the Guide.
The other component of the table applicable to an assessment of 10% – 13% WPI is of a History of a herniated disc… consistent with objective clinical findings associated with radiculopathy….
The medical witnesses agreed that the applicant does have a herniated or prolapsed disc at L5/S1. But this component will only be satisfied if there are objective clinical findings which are associated with radiculopathy.
I have found above that the applicant does not suffer radiculopathy. I have also found that the objective clinical findings demonstrated by the nerve conduction study, together with the presence of left ankle jerk are consistent with the absence of radiculopathy. I am therefore satisfied that the applicant does not meet the criteria applicable to a finding of 10% – 13% WPI.
On the probabilities I am satisfied that the applicant does satisfy the criteria against a finding of 8% WPI within Table 9.17.
The applicant does have muscular guarding or spasm (although I am unable to find whether it is significant); there is asymmetric loss of range of motion and he does have non-verifiable radicular complaints (as defined and described at page 150 of the Guide). I am unable to determine whether he has alteration of the structural integrity. No attention was given to that criteria and I do not know what is intended by it. He does not suffer from significant radiculopathy.
In concluding this part I am satisfied on the evidence from the medical witnesses that there may have been prior clinically significant radiculopathy (with radiologically demonstrated disc herniation), either during the years when the applicant was initially being treated by some orthopaedic surgeons and perhaps on the occasion of the examination with Mr Brearley when a reduced ankle jerk was detected. But at the date of this review, radiculopathy was not present.
Decision
The decision under review is affirmed.
87. I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member
........................[sgd]................................................
Associate
Dated 30 April 2014
Dates of hearing 6 & 7 March 2014 Counsel for the Applicant Nick Horner Solicitors for the Applicant Jim Palmos, Ellis Palmos & Co Counsel for the Respondent David Richards Solicitors for the Respondent Damian Clarke, Clarke Legal
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