Karki v Woolworths Group Limited
[2023] NSWPICMP 583
•18 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Karki v Woolworths Group Limited [2023] NSWPICMP 583 |
| APPELLANT: | Chaman Karki |
| RESPONDENT: | Woolworths Group Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 18 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from 0% assessment for the lumbar spine; whether Medical Assessor (MA) failed to apply criteria entitling the claimant to a DRE II category entitlement; whether complaints recorded through the evidence capable of establishing non-verifiable radiculopathy; Held – whilst a rehabilitation consultant and a physiotherapist had made comments resembling complaints of radiating pain, the orthopaedic expert relied on did not find on his assessment in August 2022 that the claimant was experiencing non-verifiable radiculopathy; Medical Assessment Certificate was dated 2023, and the subject condition was consequential on an injury to the right foot; it was consistent that the claimant would have improved, as was noted by the MA. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 May 2023 Chaman Karki, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 29 March 2023 an amended referral was sent by the delegate of the President to the Medical Assessor seeking an assessment of WPI caused by injury to the right lower extremity, lumbar spine and scarring (TEMSKI) caused by injury on 24 May 2020. The referral followed an amended Certificate of Determination issued by Member Michael Inglis on 14 February 2023.
Mr Karki was employed as a Team Member in the warehouse for the respondent. He injured himself when he had a mishap driving his forklift, which ran over this right foot. He suffered a fracture dislocation of the middle of the right foot and developed lower back pain due to the abnormal gait that he had developed.
He came to surgery on 25 May 2020 for his right foot and as part of his recovery had to wear a cam boot.
Further surgery occurred on 12 March 2021 to remove the hardware.
Mr Karki also experienced right knee pain at the time of the subject injury and again when he was wearing the cam boot.
The Medical Assessor assessed 7% WPI in relation to the injury to the right lower extremity, 0% in respect of the injury to the lumbar spine, and 2% WPI for scarring, a total of 9% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
Mr Karki did not request to be re-examined by a Medical Assessor who is a member of the Appeal Panel. The issues to be decided in this appeal did not require a re-examination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which 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 appeal concerned the assessment of the lumbar spine.
The MAC
The Medical Assessor took a consistent history. He noted under “present symptoms” in [4] that “The pain in the lower back goes down to his buttocks.”[1]
[1] Appeal papers page 22.
On physical examination on [5] the Medical Assessor found:[2]
“…There was a fraction of normal active lumbar motion of ¾ full flexion, ¾ full extension, ¾ full left lateral flexion and ¾ full right lateral flexion. There was no asymmetrical loss of motion.
There was normal alignment, curvature, and pelvic symmetry. There was positive reported tenderness to palpation along the lumbar spine. There was no observed muscle guarding or spasm.”
[2] Appeal papers page 23.
The Medical Assessor noted the investigations including that of 22 February 2023 being an MRI scan of the lumbar spine. He noted that at L5/S1 there was a 3mm retrolisthesis and moderate sized broad-based disc bulge. He noted that the disc was minimally contacting the descending right S1 nerve root in sub articular zone.
In giving his reasons at [10] of the MAC the Medical Assessor said:[3]
“Table 15-3 p 384 AMA5 is used. A DRE I is applicable as there was no guarding, no asymmetrical loss of motion, and no radicular signs or symptoms. Thus a 0% WPI applies.”
SUBMISSIONS
[3] Appeal papers page 27.
Mr Karki
Mr Karki submitted that the Medical Assessor failed to properly assess the lumbar spine “when given the opportunity to do so”.
Mr Karki also submitted that the Medical Assessor had failed to have regard to the lay and medical evidence and particularly that Mr Karki had a consistent history of radiculopathy of the lumbar spine.
It was alleged that the Medical Assessor “declined or refused to acknowledge” the history recorded by Mr Karki of radiation symptoms. It was alleged that had the Medical Assessor done so, he would have found radiculopathy.
It was submitted that the Medical Assessor “declined or refused to acknowledge” an alleged history of radiculopathy found in the clinical records, treatment records and physiotherapy reports.
It was further submitted that the Medical Assessor “declined or refused to request” relevant information pursuant to s 324 of the 1998 Act. Mr Karki also alleged that the Medical Assessor did not adequately explain his reasons as to his failure to find radiculopathy, as we understood the submission.
As indicated, Mr Karki submitted that the Medical Assessor failed to have regard to the lay and medical evidence before him. We were referred to various parts of the evidence in that regard. Although Mr Karki did not tick the box in the appropriate form seeking, re-assessment,[4] he submitted that in fact he should be re-assessed or in the alternative, as we understand it, the “consistent history of radiating pain should be noted.” This would enable him to be assessed as meeting the DRE lumbar category II assessment which would entitle him to a combined WPI of more than 10%. As indicated above, no re-examination was required.
[4] Appeal papers page 3.
Respondent
The respondent submitted that there was no obligation on the Medical Assessor to seek further information/ evidence from anyone pursuant to s 324.
The respondent submitted that the complaint of mere radiation and pain into the legs did not of itself constitute radiculopathy (verifiable or not).
The respondent relied on the findings of the Medical Assessor in that regard. He had recorded a history of Mr Karki’s symptoms and complaints, examined Mr Karki and ultimately concluded there were no radicular symptoms.
It was submitted that the evidence relied on did not in fact support any suggestion that there was any radicular finding either. It noted that Dr Bodel’s assessment of DRE lumbar category II was because he found asymmetry of motion and some muscle guarding, not that there were any unverifiable radicular complaints.
The respondent at [17] submitted that prior examinations referred to by Mr Karki did not support any radicular findings. It was submitted that the mere presence of pain in the legs or hips does not constitute radicular complaints, particularly when there was a separate lower limb injury.
DISCUSSION
The criteria for the assessment of impairment to the lumbar spine is contained in Table 15 – 3 of AMA 5.[5]
[5] AMA5 page 384.
DRE category I provides:
“No significant clinical findings, no observed muscle guarding or spasm, no documentable neurological impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures.”
DRE category II provides relevantly:
“Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular complaints of radicular pain defined as complaints of radicular pain without objective findings; no alteration of structural integrity and no significant radiculopathy.”
DRE category III provides relevantly:
“Significant signs of radiculopathy, such as a dermatomal pain and/or in a dermatomal distribution, sensory loss, loss 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; impairment may be verified by electrodiagnostic findings
Or
history of a herniated disc at the level and on the side that would be expected from object of clinical findings, associated with radiculopathy, or individuals who had surgery for radiculopathy but are now asymptomatic.”
Chapter 4.1 of the Guides provides that this method is the applicable evaluation method. Chapter 4.27 of the Guides provides for a specific definition of what constitutes “radiculopathy”:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
· loss of asymmetry of reflexes
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
· reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
· positive nerve root tension
· muscle wasting – atrophy
· findings on an imaging study consistent with the clinical signs”
Chapter 4.28 provides:
“Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
We note the somewhat novel language employed by Mr Karki in his submissions. There is no evidence that the Medical Assessor “declined or refused” to either acknowledge the relevant history, acknowledge the medical evidence regarding radiculopathy, or to request further information pursuant to s 324 of the 1998 Act.
With regard to the latter point, we were not referred to any authority by which a Medical Assessor is required to utilise the provisions of s 324, which provides relevantly:
“(1) The medical assessor assessing a medical dispute may-
(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and
(b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the medical assessor considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and
(c) require the worker to submit himself or herself for examination by the medical assessor.
(2) …
(3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part.
(4) A medical assessor hearing the appeal or who is assessing the matter by way of further assessment has all the powers of a medical assessor under this section on an assessment of a medical dispute.”
It can be seen that the use of this power is entirely discretionary and there was no basis advanced by Mr Karki for his submission that the exercise of such power was called for. The evidence before the Medical Assessor was comprehensive and Mr Karki’s submission was that it was adequate in any event to support his challenge. We are therefore unable to follow why it was suggested that the alleged failure by the Medical Assessor to utilise this power constituted an appellable error. Moreover, we assume that Mr Karki was speculating that the Medical Assessor had “declined or refused” to use this power, simply because s 324 had not been mentioned by him. In the context of this case, we assume that the Medical Assessor neither declined nor refused to use his power, as it is probable that he never thought about it. As indicated, there was no need for him to do so.
We also had difficulty in following Mr Karki’s submission that the Medical Assessor had deliberately ignored Mr Karki’s complaints of radiating symptoms from his back to his legs. We have some difficulty in understanding the distinction between the alternatives of “declined or refused,” as they appeared to be a distinction without a difference. We were also somewhat perplexed by the submission that the Medical Assessor had been “given the opportunity” to “properly assess the lumbar spine.” We have extracted the findings on examination of the back given by the Medical Assessor. No submissions were directed at those findings, but Mr Karki argued that nonetheless the Medical Assessor had not noted his complaints of the radiation of symptoms. It may be that Mr Karki has confused the concept of radiating pain with radiculopathy. It is not correct, with respect, to state that the Medical Assessor did not note the complaint of radiation of symptoms. As indicated above, the Medical Assessor noted “pain in the lower back goes down to his buttocks.” Contrary to
Mr Karki’s submission such acknowledgement does not equate to “a consistent history of radiculopathy.” We have extracted above Chapter 4.27 of the Guides, and it can be seen that radiculopathy, as defined, has strict criteria.A complaint of radiating pain into both buttocks, or legs and thighs, as alleged by Mr Karki, does not constitute evidence of radiculopathy, or even non-verifiable radicular complaints, being complaints of radicular pain without objective findings, as Mr Karki’s complaints to the Medical Assessor were bilateral.
We note the evidence relied on by Mr Karki that is relied on to contradict the Medical Assessors findings. An Initial and Workplace assessment conducted by a Rehabilitation Consultant of “DOHS” (Ms Sung Lee) on 11 June 2021 was referred to.[6] Ms Lee noted that Mr Karki reported at that time “an overall improvement in his lower limb symptoms of 40%.” It was noted that he had developed “pain symptoms in his lower back” which was intermittent, but which caused him symptoms of numbness on the top of the foot, burning sensations and tingling. Ms Lee also noted:[7]
“Mr Karki reported pain symptoms and his lower back predominantly on the right side, with a sharp pain that travels down his right lower limb.”
[6] Appeal papers page 129.
[7] Appeal papers pages 130-131.
We were referred also to a report of Dr James Bodel, orthopaedic surgeon, dated
16 October 2021, who stated:[8]“[Mr Karki] has pain in the lower part of the back, right buttock and hip….”
[8] Appeal papers page 107 at 110.
Dr Bodel also noted in his “summary of injuries” that there was “referred pain into the buttocks and hips.”
Dr Bodel’s opinion on examination was that there was tenderness on palpation at the lumbosacral junction over the top of the right buttock, with guarding. There was no evidence of nerve root irritability. Dr Bodel was concerned with the Lisfranc fracture of the right foot at this point and made no further comment regarding the back. In a supplementary report however of the same date Dr Bodel was asked to assess the lumbar spine. He said:
“He has a DRE Lumbar Category II level of assessable impairment in accordance with the description in Table 15 – 3…. He has asymmetry of movement and guarding but no clinical signs of radiculopathy…”
A physiotherapist’s opinion was relied on. Ms Winnie Liang stated on 5 June 2021 a diagnosis of:[9]
“Diagnosis
1. R foot Lisfranc fracture, post surgery on 25/05/2020
2. R knee injury
3. Low back pain radiating down to bilateral hips due to compensatory mechanical alteration
4. R ankle strain due to compensatory mechanical alteration.”
[9] Appeal papers page 136.
Mr Karki also relied on a report by Dr Angela Lam, general practitioner (GP), of 2 July 2022.[10] She described Mr Karki’s symptoms as “pain radiates into the right buttock and hip…”
[10] Appeal papers page 416.
We note a supplementary report from Dr Bodel dated 3 August 2022.[11] An MRI scan dated 27 July 2022 was referred to him for comment. He said:
[11] Appeal papers page 422.
“This MRI scan confirms pathology at the L4/5 and L5/S1 level. It does not, however, confirm that there is nerve root compression or irritation, although it does indicate that there is a predisposition to this.
At the time of my physical examination, there were no signs to confirm the presence of nerve root irritation or radiculopathy, and therefore this additional information does not cause me to alter [Dr Bodel’s previous assessment].”
The assessment of an injured worker’s entitlement to compensation for injury to the back can be seen from the above to be a reasonably complex exercise. Observations by rehabilitation consultants or physiotherapists are of limited value, and must be read in the light of any expert evidence that is relied on. Whilst GP Dr Lam described symptoms on 2 July 2022 of radiating pain, Dr Bodel’s opinion was unambiguous. His assessment of a DRE category II entitlement was based on his finding that there had been asymmetry of movement and guarding. Dr Bodel did not find that there were any non-verifiable complaints of radiating pain, and therefore no non-verifiable radicular complaints.
We accept Dr Bodel’s observation that whilst the results of the investigations indicated some potential for nerve root irritation or radiculopathy, none was found on his assessment. This is consistent with the development of a consequential condition as a result of the subject right foot injury which by its nature was an intermittent condition and not sufficient to cause any relevant radicular complaints.
We note also that the MAC was dated 26 April 2023, by which time, as the Medical Assessor observed, there was no appreciable guarding or asymmetrical range of motion in the lumbar spine. It is quite common for symptoms of injury to improve, which is clearly what has happened in this case.
Accordingly no error has been established by Mr Karki.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 April 2023 should be confirmed.
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