Kacevski v Medina Property Services Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Kacevski v Medina Property Services Pty Ltd [2022] NSWPICMP 418
APPELLANT:	Ljupco Kacevski
RESPONDENT:	Medina Property Services Pty Ltd
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Dr Roger Pillemer
MEDICAL ASSESSOR:	Dr John Brian Stephenson
DATE OF DECISION:	24 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Lumbar spine injury; appellant alleged error in the assessment of diagnosis related estimate (DRE) II and submitted DRE III should have been found; Medical Assessor (MA) entitled rely on clinical findings on day of examination and MA found the criteria for radiculopathy not satisfied; Held – the assessment was made on the basis of correct criteria and there was no error; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 June 2022 Mr Ljupco Kacevski lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 20 May 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The 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, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error. Error must be found before conducting re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·        Date of injury: 21 January 2019
·        Body parts/systems referred: Lumbar spine and right lower extremity (DVT)
·        Method of assessment: Whole Person Impairment”
The MA issued a certificate as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in SIRA guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)		Sub-total/s % WPI (after any deductions in column 6)
1. Lumbar Spine	21/1/19	4.34	15-3	7%	1/10^th		6%
2.Right Lower Extremity	21/1/19	3.36	17-38	2%	0%		2%
Total % WPI (the Combined Table values of all sub-totals)						8%

The worker appealed.
The appeal concerns the assessment of the lumbar spine only. The MA placed the appellant in DRE Category II of his lumbar spine with 5% WPI, which is the subject of complaint on appeal, to which he has added an additional 2%, about which there is no complaint on appeal, giving a total of 7%. He has then made a one-tenth deduction, about which there was no complaint on appeal, leaving 6% WPI.
In summary, the appellant submitted on appeal as follows:
(a) the MA should have found that the appellant fell into DRE Category III of his lumbar spine as found by both Drs Dias and Breit, and
(b) the MA failed to provide sufficient reasons for his assessment.
In summary, the respondent employer submitted that the MA did not make a demonstrable error or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of a MA is to conduct an independent examination on the day of assessment.
The MA recorded a history consistent with the other evidence that was before him. He recorded the present symptoms as follows:
“Mr Kacevski states that he has persistent lower back pain which occasionally travels down his right and left legs and calves. He reported numbness in both toes which comes and goes. He struggles to walk for more than 20 minutes, struggles to stand for more then 20 minutes and struggles to sit for 20 minutes.
He stated that the right calf has stiff muscles but the swelling improved. He is not wearing any stockings. Mr Kacevski stated that the leg is no longer the problem but the back is more of the problem.”
An MA’s assessment cannot be based on self report. It must be the result of an independent clinical assessment on the day of examination and assessed in accordance with the criteria in the Guidelines.
The had regard to the special investigations relevant to the lumbar spine as follows:
“23 January 2019 – Xray lumbar spine
There is preservation of the lumbar lordosis. No spondylolisthesis.
Vertebral body heights are maintained without evidence of a compression fracture.
Background multilevel degenerative changes are noted with anterolateral marginal osteophytes and facet joint OA worse in the lower lumbar spine at L4-5 and L5/S1.
No paraspinal soft tissue swelling.
Mild degenerative changes of the sacroiliac joints are noted.
No focal lytic or sclerotic bony lesion.
5 February 2019 – MRI lumbar spine
L5/S1 left paracentral broad-based disc extrusion.
There is narrowing of the left lateral recess with displacement of the descending left S1 nerve root. Possible bilateral L5 nerve root contact/impingement, worse on the right.
6 October 2019 – CT lumbar spine
Multilevel lumbar spinal degenerative changes are noted with resultant mild to moderate central canal stenosis and multilevel neural exit foraminal stenosis and narrowing of the subarticular recesses with features concerning for exiting/descending nerve root contact/impingement.”
The MA conducted a thorough physical examination of the appellant and recorded his findings as follows:
“Passive range of motion formed part of the clinical examination to ascertain clinical status of the joints. For the purposes of impairment calculation, only active movement (i.e. performed under the voluntary control of the examinee, without physical input by the examiner) was measured and recorded below. Determinations were made in accordance with the patient’s apparent full effort and cooperation.
Mr Kacevski is a 63 year old male right hand dominant whose height was 176 cm and weight was 84 kg (BMI 27.1- Overweight). He was observed to sit and stand during the consultation with apparent distress and discomfort.
Examination of the Back
There was a fraction of normal active thoracic motion of ½ full flexion, ½ full extension, ½ full left rotation and ½ full right rotation. There was a fraction of normal active lumbar motion of ½ full flexion, ½ full extension, ½ full left lateral flexion and ½ full right lateral flexion. There was no dysmetria.
There was normal alignment, curvature, and pelvic symmetry. There was positive reported tenderness to palpation along the spine or paraspinal muscles. There was no observed muscle guarding or spasm.
Examination of the Lower Limbs
There was a normal gait, and no difficulty with walking on toes or heels unaided.
Power was 5/5 throughout all muscles groups. Muscle tone was slightly decreased in the calf on the left. Sensation was intact to light touch and pin prick in all dermatomal distributions. Reflexes were reduced and symmetrical in the ankle and normal and symmetrical in the knee. Babinski test caused down-going toes. Range of motion was pain-free and normal in hips, knees, and ankles.
Straight leg raise testing was performed both lying down and in the sitting position. There were positive reported symptoms with straight leg raise in lying down to 70 degrees or in the sitting position in the lower back but no nerve root tension signs.
The circumferences of the lower limbs were as follows:
Right  Left
Thigh 10cm above Patella                 46 cm  46 cm
Mid-calf  41 cm  40 cm
The right leg and left leg demonstrated no pitting oedema. Veins were visible and normal in the foot.”
The MA summarised the injury and diagnosis as follows:
“● Lumbar spine strain, L5/S1 disc herniation, aggravation of pre-existing condition.
· Right lower extremity DVT.”
The MA explained his impairment assessment as follows:
“Table 15-3 p. 384 AMA5 is used. A DRE II applies, due to the presence of non-verifiable radicular complaints without evidence of radiculopathy to satisfy section 4.27 the Guides. A DRE II also applies for those who had a radiculopathy but improved by conservative management. A DRE II results in a 5-8% WPI. Section 4.34 is used. He indicated that he is unable to do the gardening and struggles with dressings as a result of his injuries. I consider a 2% loading is reasonable to reflect overall ADL changes as a result of injuries. This results in a 7% WPI.”
He had regard to the other expert opinions that were before him and explained where his opinion differed as follows:
“I have reviewed the report of Dr Nigel Ackroyd 19 July 2019. Dr Ackroyd applied a Class 1 with reference to the same table. The percentage chosen is a clinical decision and differs perhaps based upon the symptoms and presentation at the time. At the time of this assessment Mr Kacevski had no lower extremity swelling and minimal symptoms related to a DVT. Dr Ackroyd makes a deduction for liability of 50% from smoking and deducted 50%. I disagree. As Mr Kacevski had no history of a pre-exisiting DVT, no deductions were made for this condition
I have reviewed the report of Dr Uthum K. Dias 9 April 2021. Dr Dias reported that a radiculopathy was present and deducted 1/10^th for a pre-existing condition. My assessments differs in that reflexes were symmetrical and straight leg raise test were normal and the SIRA section 4.27 criteria were not met to satisfy a radiculopathy. Taking into account that a radiculopathy was present, then with resolution by conservative means a DRE II applies.
Dr Dias reported moderate oedema of the right calf and gave a class 2 from table 17-38. Class 2 indicated persistent oedema of a moderate degree, incompletely controlled by elastic supports. My physical examination did not appreciate oedema, and therefore a class 1 was given.
I have reviewed the report of Dr Robert Breit 19 July 2021 and subsequent reports from 23 August 2021 and 15 February 2022. Dr Breit first provided an 11% WPI for a radiculopathy. Then in the subsequent report with evidence of injury 13 June 2020
Dr Breit provided an opinion that the lower back condition was not work related. Dr Breit then stated that the entire impairment was not related to work. My assessment differs from that of Dr Breit.
Mr Kacevski provided a history that the lower back pain persisted since the subject injury. An injury occurred 19 July 2021 while lifting which resulted in an exacerbation of the lower back pain which then returned to the pre-injury level.”
The appellant refers to reports of Drs U Dias (9 April 2021), and Dr R Breit (19 July 2021), highlighting that both of these doctors found evidence of radiculopathy, and both assessed DRE category III.
The MA has to conduct an independent assessment on the day of examination. He is entitled to rely on his clinical findings on the day of assessment. The Appeal Panel notes that the MA examined the appellant almost a year after these two doctors, which would certainly allow for any radiculopathy that was present, to have settled.
In this regard the Appeal Panel notes that patients who do present with low back pain and evidence of neurological involvement, the majority do improve on conservative treatment, which is what the MA has suggested has happened in this case.
The MA clinically did not find any evidence of radiculopathy, indicating that in his opinion this would place the appellant in DRE Category II, and even if he had had radiculopathy in the past, this had now settled down, and once again according to the Guides, he would be placed in DRE Category II. This is a correct assessment.
The appellant submitted that the MA failed to provide sufficient reasons for his assessment. However the Appeal Panel considers that that the MA has done this precisely, covering motor, reflex and sensory functions, as well as positive nerve root tension (normal straight leg raising). He has also noted no muscle wasting.
The Guidelines provide at paragraph 4.27 the criteria by which radiculopathy can be found by a MA as follows:
“4.27 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):
i.loss or asymmetry of reflexes
ii.muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
iii.reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
iv.positive nerve root tension (AMA5 Box 15-1, p 382)
v.muscle wasting – atrophy (AMA5 Box 15-1, p 382)
vi.findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
The MA has clearly considered the reports of Drs Dias and Breit, and has explained why his opinion differed from these. He has very clearly explained that his clinical findings on the day of assessment do not fit within the criteria of paragraph 4.27 of the Guidelines and therefore do not permit a finding of verifiable radiculopathy (DRE III) and permit only a finding of non- verifiable radicular complaints (DRE II). The MA has given a clear explanation as to why there is no residual evidence of radiculopathy.
When referring to the MA’s clinical findings, the appellant submitted that these were consistent with the assessments of both Drs Dias and Breit. The appellant notes for example that ankle reflexes were reduced, but as noted by the MA these were symmetrical and therefore not in keeping with radiculopathy. To be of significance they need to be asymmetrical. The MA clearly notes that motor power was normal throughout and sensation was intact in all dermatomal distributions. The fact that muscle tone was slightly decreased in the calf on the left is not really of clinical significance. The major factors were all negative.
The appellant also refers to the “great toe reflexes”, and these do not exist. Diminished sensation over the great toes might well have been significant at the time of examination by Dr Dias and Dr Breit, but it clearly settled by the time of the examination by the MA.
The MA has clearly given his reasons for placing the appellant in DRE Category II.
The appeal Panel notes that the clinical findings of the MA are detailed and that the MA is entitled to rely on his clinical findings and his clinical expertise on the day of assessment in assessing the degree of permanent impairment, if any, as a result of the injuries referred to him.
The Appeal Panel notes that the MA is charged with the statutory obligation to conduct an independent assessment. He has to assess impairment based on his clinical findings using his clinical expertise in accordance with the criteria in the Workcover Guides.
The MA is not bound to accept the opinion of the other experts whose opinions are in evidence although he needs to provide a brief explanation of why his opinion differs which he has done as set out above.
After thorough review the Appeal Panel can discern no error and accordingly the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 May 2022 should be confirmed.

[2022] NSWPICMP 418

24 October 2022