Khamis v State of New South Wales
[2021] NSWPICMP 99
•25 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Khamis v State of New South Wales [2021] NSWPICMP 99 |
| APPELLANT: | Sorya Khamis |
| RESPONDENT: | State of New South Wales |
| APPEAL PANEL: | Member Catherine McDonald Dr Mark Burns Dr Frank Machart |
| DATE OF DECISION: | 25 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury to right shoulder and lumbar spine; AMS did not record measurements of range of shoulder motion and inadequate record of examination re lumbar spine; re-examination required; inconsistency on right shoulder examination required assessment by reference to impingement; pre-existing spinal canal stenosis; determination by Workers Compensation Commission as to injury; Held- deduction of ¼ substituted for deduction of ½; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 December 2020 Sorya Khamis lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr George Weisz, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 30 November 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,
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that it was arguable there was a demonstrable error in the assessment of Ms Khamis’ lumbar spine. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made. Ms Khamis argued that there was also an error with respect to the assessment of her right upper extremity.
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). The Guidelines were reissued on 1 March 2021, after the date of the MAC but the provisions are not relevantly different.
RELEVANT FACTUAL BACKGROUND
Ms Khamis was employed at Prince of Wales Hospital as a Patient Services Assistant. She was injured on 31 October 2016 when she tried to stop an electric wheelchair moving forward whilst transferring a patient from the wheelchair to a chair.
As a result of a determination by the Commission and agreement between the parties, it was accepted that Ms Khamis suffered injuries to her lumbar spine and right shoulder and a consequential condition in her cervical spine.
The AMS assessed Ms Khamis’ right shoulder by analogy, on the basis that there were signs equivalent to impingement. He assessed 2% whole person impairment (WPI). He assessed 12% WPI in respect of her lumbar spine, assessing her in DRE Lumbar Category III, allowing 2% for the impact of the impairment on her activities of daily living. He deducted half of that amount under s 323 of the 1998 Act. He found no assessable impairment of her cervical spine. The AMS assessed a total of 8% 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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, we determined that it was necessary for the worker to undergo a further medical examination because the AMS failed to measure the range of movement of Ms Khamis’ right shoulder and because his findings on examination were poorly expressed and did not, on the face of the MAC, support the impairment assessed.
Dr Frank Machart of the Appeal Panel conducted an examination of the worker on 13 May 2021 and reported to the Appeal Panel. His findings are set out below.
In addition, the notes from Ms Khamis’ general practitioner, Dr Mundell were incomplete, commencing only from the date of the injury. We called for a complete copy of the notes but, while the notes supplied were up to date, they did not contain records of consultations before the date of the injury despite the past medical history.
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.
The parts of the medical certificate given by the AMS that are relevant to the appeal are set out below.
The MAC
The AMS described the examination, which took place under the Commission’s protocols for physical examination during COVID-19 Pandemic in force at the time. The AMS described the history of the injury and said that Ms Khamis underwent surgery for spinal canal stenosis in 2017. He said:
“Her symptoms then included left leg radiation, which appeared 2 weeks before her operation. She stated that after the operation her symptoms have minimally improved, despite physio- and hydrotherapy. She is not having treatment since, not taking any medication as they upset her stomach. There was a trial of return to work, that proved unsuccessful and she remained out of work.”
The AMS noted that Ms Khamis had not undergone treatment since 2018. He set out a history of her previous condition:
“Despite initial history, such as in para.3 of her Statement that ‘there were no previous neck, shoulder or back injuries’, on thorough review of the Family Practitioner records it becomes evident that there is a long history of injuries. Regarding the neck condition there is record in 2003 of complaints and investigations. Regarding the rt. shoulder there is a record in 2004 of investigation by ultrasound test, diagnosing ‘tendinitis in the rotator cuff system’. Further on in 2005, whilst having a carpal tunell operation, a WC case, she was investigated by prof. Cumming, a specialist in shoulder pathology. There was record of Ultrasound test in 2004 and MRI scanning in 2005. Another surgeon, Dr Kuo, suggested local injections, also recommended by Dr Cummings. An MRI in May 2017 detected supraspinatus inflammatory changes, old arthritis, in the acromio-clavicular joint of the right shoulder. It was diagnosed as restrictive shoulder arthritis, resulting from prolonged immobilization following the carpal tunnel operation. Regarding the low back, there is record dated 2014 of a CT scan diagnosing a ‘mild disc bulging, a narrow congenital canal with short pedicles (congenital) and hypertrophy of yellow ligament (namely old), with foramen narrowing, (old development) as reported from the S.E Sydney Health.’ “[sic]
With respect to the activities of daily living, the AMS said:
“Social activities/ADL: Mrs. Khamis stated to be restricted in all activities of daily life; she is only partly cooking at home, mostly done by her husband and daughter. She is not shopping but with assistance, she is restricted in cleaning at home, in prolonged standing, walking or even sitting for long. Her night time comfort is disturbed by pain in the neck and low back.”
The AMS set out his findings on examination:
“She walked with no limp and no support was required; she sat during the interview with no obvious discomfort. Movements of the neck were observed to be with no restrictions. No direct skin touch was applied, her active movements were not restricted and no spasm was observed. Extension, flexion and side torsion of the right shoulder were unlimited. She needed to remove two tight T-shirts, with full abduction, before I could measure the circumferences: the shoulders measured 54-cm on the right side, as opposed to 50-cm. The arms were 45 on the right as opposed to 36-cm and the forearms were 30 over 27-cm. Sensory was inconsistent, changing from one side to another. Grip power was not considered to be appropriate whilst in pain and was not measured. There was no sign of Complex Regional Pain syndrome; no vasomotor or sudomotor changes; no discoloration or temperature alteration, no allodynia no joint or muscles changes along the upper extremity. Reflexes were all positive. The lumbar spine was mobile, she stood stable on tip toes, heels and on one leg; there were no limitations to movements, she bent till the knees. She climbed to and down from the examination couch without assistance, but stated to be in increased pain. She was found with 90 degrees leg raising, no reflex changes in adductors, patellar and Achilles’ tests. She sat straight on the couch. No spasm but normal side torsions were recorded.”
When summarising his findings, the AMS said:
“The back and neck symptoms appeared as stated immediately after the accident. She was exposed to extensive medical treatment. However, left leg symptoms were experienced in 2017 that required decompressive surgery which, as stated, lead only to minor benefit. She has a long history prior to the accident of shoulder, neck and low back pain. Indeed, she was diagnosed with the disc pathology in a narrow spinal canal at L4/5 level already in 2014. It is accepted that aggravation occurred at the spinal level, a consequence of the twisting strain during the accident in October 2016, this despite the time gap between the date of the accident and the appearance of the left sided symptoms.
Consistency of presentation: there were numerous inconsistencies, like the change of sensory on repeated testing. The ability of arms raising whilst undressing and the stated disabilities are difficult to explain on organic basis.”
The AMS set out his reasons for the assessment:
“The right shoulder is presenting signs equivalent to impingement and is assessed accordingly by Para 2.16 in Workcover Guide (pg 12), equivalent to 2%WPI.
The lumbar spine is to be assessed based on DRE cat III (in AMA5 Guides) with 2% ADL totaling 12%; this assessment would require 1/2 deductible proportion as it was precisely diagnosed long before the date of accident, but acceptably aggravated by the accident in October 2016. The cervical spine was found with no assessable impairment, based on DRE system in AMA5 Guides.”The AMS briefly summarised the reports of treating doctors and those qualified by the parties.
The assessment made by the AMS was 12% WPI in respect of the lumbar spine from which he deducted one-half under s 323, resulting in an assessment of 6%. He combined that with his assessment of 2% WPI in respect of Ms Khamis’ shoulder to assess WPi of 8%.
Dr Machart’s report
Dr Machart’s report dated 13 May 2021 is as follows:
“RE-EXAMINATION:
Mrs Khamis was examined today. She attended alone. The purpose of the examination were issues which arose following appeal on MAC, Dr Weisz, orthopaedic surgeon, date of MAC 30/11/2020. The issues raised in preliminary discussion subject to reassessment were:
- Shoulder range of movement, not documented by Dr Weisz in assessing WPI
- Reassessment of radiculopathy from the lumbar spine
It was agreed that deduction was difficult to make. There was a scan from 2014. There was no documentation in the general practitioner’s records pertaining to that assessment. The report on CT scans post injury raised the issue that CT scans from 2014 and 2017 did not demonstrate additional pathology and the pathology was spinal canal stenosis at L4/L5 that there were degenerative changes at other levels.
HISTORY
Brief history was reiterated today, much in line with Dr Weisz’s assessment on 31/10/2016. Mrs Khamis was transporting a patient in an electric wheelchair. She tried to transfer the patient into a chair. The patient was unsteady on their feet. The chair started to move. She tried to stop the chair from moving. The wheelchair hit her on the back of the right calf. She twisted her torso. She experienced pain in the lower back, right shoulder, and in the neck.
She assessed at the Emergency Department of Prince of Wales Hospital. She experienced pain in the right leg, back of the calf where the wheelchair hit her.
She came under the care of Dr Mobbs. Dr Mobbs conducted an operation on the spine. She reported some improvement. The left leg pain was better. She was left with numbness in the left leg. The lower back pain remained virtually unchanged. The shoulder was assessed by Dr Harper. No operation was conducted.
PAST HISTORY
She reported that she was asymptomatic prior to the injury. After I pointed to her medical documentation, CT scan in 2014, she said that she was injured is similar circumstances at work and experienced lower back pain. The pain lasted a day or two. She saw her GP and had a CT scan ‘just to check up’. Pain resolved. She took one day off work and was subjected to no treatment.
She was treated for carpal tunnel syndrome in 2005. The pain extended into the right shoulder. She was not sure how long the right shoulder pain eased.
CURRENT SYMPTOMS
Constant pain in the back, neck, right shoulder. Pain radiation and numbness in the left foot. She has not worked since the time of injury. She reported difficulties doing housework because of the pain in the back and in the neck. She did minimal housework, some cooking and not shopping. She was restricted in cleaning and accepted help from her family. She was able to drive short distances.
EXAMINATION
General
There was substantial evidence of pain behaviour, hypersensitivity and inconsistency. Much of the examination was accompanied by repeated line, ‘pain, pain, pain’. essentially pain accompanied all active ROM, even gentle flexion of shoulders to few degrees, and turning the head with eyes closed, which was not consistent with ability to drive safely.
Right Shoulder
No specific point tenderness. Movements reported to be painful and were measured by a goniometer twice, and were found to be symmetrically restricted in both shoulders:
Movement Both Shoulders Flexion 60° Extension 10° Abduction 70° Adduction 10° External Rotation 30° Internal Rotation 70° Internal and external rotation was conducted with the arms by the side as sustained elevation was not achievable.
Cervical Spine
No spasm, no deformity, and no muscle guarding. Movement diminished symmetrically by third from expected normal, and conducted with eyes closed as if in severe pain through range of movement. Reflexes were present and symmetrical, biceps and triceps. Diminished sensation was reported at the tip of the right thumb where she suffered injury, unrelated condition. Strength examination was symmetrical.
Lumbar Spine
Minimal movement and painful. Straight leg raising unimpaired symmetrically at 60°, discomfort reported on the left side of the back at 60° and not in the leg. Diminished sensation on the left foot, global, stocking distribution, not radicular defined. Global weakness, testing muscle strength dorsi and plantar-flexion of ankles. Calf circumference equal in both legs.
OPINION
· Spinal canal stenosis treated by operation. I did not see evidence of neurologically defined radiculopathy.
· Shoulder movements complicated by pain behaviour, equal movement in both shoulders inconsistent with the objecting defined pathology. Range of movement could not be reliably used in determining WPI.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary and in submissions prepared by her solicitor, Mr Dougall, Ms Khamis submitted that the AMS failed to set out his measurements of the range of movement of her right shoulder, relying on his observations while she removed “two tight T-shirts”.
Ms Khamis submitted that the AMS made a significant deduction in respect of her lumbar spine based only on a CT scan from 2014 which provided a “precise diagnosis.” She also submitted that the AMS failed to provide an explanation for his assessment of the impact of the injury on Ms Khamis’ activities of daily living and failed to consider radiculopathy persisting after surgery.
In reply and in submissions prepared by its solicitor, Mr Orr, the State submitted that it was not necessary for the AMS to record the measurement of the range of movement of Ms Khamis’ upper extremity when examination revealed full movement.
With respect to Ms Khamis’ lumbar spine, the State accepted that the need for surgery was causally related to the work injury. However, it was clear that the incident on 31 October 2016 was an aggravation. The State noted the Certificate of Determination dated 27 August 2018 in which the Arbitrator made that determination and said that it was open to the AMS to make a deduction greater than 50%. The State noted that the allowance of 2% for the impact of the injury on the activities of daily living was the same as that made by Dr J G Bodel, who had prepared a report on behalf of Ms Khamis, and that the AMS had set out the activities which he considered when making the assessment.
With respect to radiculopathy, the State said that the references in the MAC to radiation of pain to Ms Khamis’ left leg were not evidence of radiculopathy persisting after surgery.
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[1] 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.
[1] [2006] NSWCA 284.
Right shoulder
The record of examination findings by the AMS does not include the range of motion of her shoulders. The Guidelines state in paragraph 2.21 that most shoulder disorders are assessed according to AMA 5 Section 16.4 “Evaluating abnormal motion.” Section 16.4i notes that the shoulder has three functional units of motion – flexion/extension, abduction/adduction and internal/external rotation.
An assessment which does not show that the AMS considered and measured each of those units of motion is an inadequate assessment. The only reference by the AMS to the range of movement is the comment about Ms Khamis’ ability to remove two tight T-shirts.
Paragraph 2.5 of the Guidelines sets out the method for assessing the range of motion, including use of a goniometer. If there is inconsistency, the range of motion should not be used as a valid parameter of impairment evaluation and that the assessor should use discretion in considering what weight to give other available evidence to determine if impairment is present.
Paragraph 1.36 provides:
“AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
Dr J G Bodel prepared a report on behalf of Ms Khamis dated 17 September 2019. He considered that there was impingement in both shoulders but recorded a far greater range of motion than was demonstrated to Dr Machart.
A/Prof P Miniter who examined Ms Khamis on 3 May 2017 for the State found no loss of the range of motion. On 27 March 2020, A/Prof Miniter considered there was “substantial and dramatic reduction of shoulder movement which has no plausible explanation.”
The AMS did not set out the range of motion so that re-examination was necessary.
On re-examination, Dr Machart undertook testing with a goniometer twice. The assessments on testing were consistent with the uninjured shoulder. Paragraph 2.20 of the Guidelines requires the contralateral joint to be used as a baseline. The equal findings suggest no loss of the range of motion. The range of motion on formal examination was inconsistent with Ms Khamis’ observed motion during other parts of the examination.
The range of movement now observed is inconsistent with the initial findings of Ms Khamis’ general practitioner and with the pathology found in the MRI scan dated 31 May 2017.
Because of the inconsistency, another method of assessment was required. Paragraph 2.16 of the Guidelines provides:
“Diagnosis of impingement is made on the basis of positive findings on appropriate provocative testing and is only to apply where there is no loss of range of motion. Symptoms must have been present for at least 12 months. An impairment rating of 3% UEI or 2% WPI shall apply.”
The appropriate method to assess Ms Khamis’ accepted shoulder injury is to assess by reference to impingement. The assessment of 2% WPI made by the AMS therefore stands.
Lumbar spine
Ms Khamis has undergone surgery to her lumbar spine. Ms Khamis does not dispute the assessment in DRE Lumbar Category II at 10% WPI. The controversy is with respect to the extent of the s 323 deduction, whether the matters considered in allowing 2% for the impact on the activities of daily living and the relevance of radiculopathy. It is convenient to consider the last two submissions first.
Activities of daily living
While the AMS did not directly specify which activities were considered, he did not
record any impact on Ms Khamis’ capacity to undertake self care. The Guidelines in paragraphs 4.34 and 4.35 make clear that an allowance of 2% takes into account an impact on sporting and recreational activities and an impact on household tasks.The assessment is consistent with that made by Dr Bodel who prepared a report on behalf of Ms Khamis. There is no evidence in the medical reports nor in her statements that she requires assistance with self-care. There is no error in the assessment of 2% for the impact of the injury on the activities of daily living.
Radiculopathy
The Guidelines clearly set out the principles for the assessment of persisting radiculopathy. Ms Khamis submitted that the AMS failed to consider radiculopathy persisting after surgery as required by paragraph 4.37 of the Guidelines when he recorded that she had left leg symptoms before decompressive surgery that led to only minor benefit.
The submission cannot be accepted.
The assessment of radiculopathy in respect of the lumbar spine requires more than a complaint of leg pain. Paragraph 4.37 must be read in the context of paragraphs 4.27 and 4.28 which provide:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
· loss or asymmetry of reflexes
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
· reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
· positive nerve root tension (AMA5 Box 15-1, p 382)
· muscle wasting – atrophy (AMA5 Box 15-1, p 382)
· findings on an imaging study consistent with the clinical signs (AMA5, p 382).
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.”
The paragraph in which the AMS set out his examination findings does not clearly say whether or not he observed radiculopathy on the day of his examination. That was one of the reasons why a reassessment was required.
At re-examination, Dr Machart did not observe signs consistent with ongoing radiculopathy defined by reference to the criteria in the Guidelines.
It is not appropriate to include a modifier for persisting radiculopathy in the assessment of impairment of Ms Khamis’ lumbar spine. The appropriate assessment before consideration of the s 323 deduction is 12%.
Section 323
Ms Khamis denied to the AMS and to other examiners, such as Dr Mobbs and Dr Bentivoglio, that she had a previous injury or condition in her lumbar spine.
The notes from Prince of Wales Hospital contain the report of a CT scan of her lumbar spine taken on 17 April 2014. The clinical history is “[i]ntermittent left leg weakness and stiffness. Exclude canal stenosis.” The report noted the presence of marked central spinal canal stenosis at L4/5 due to congenital short pedicles, a broad based posterior disc bulge and mild ligamentum flavum hypertrophy. The report also noted moderate neural exit foraminal narrowing on the left at that level.
The findings on that scan dictate that there must be a deduction under s 323 in respect of her pre-existing condition.
Dr Mundell’s notes do not contain the consultation records before the injury even though the past medical history suggests that Ms Khamis had seen him before 2016.
The first complaint of back pain following the injury was on 7 November 2016, the second time Ms Khamis saw Dr Mundell after the injury. He recorded that she “says now she has sore back also incl left thoracic paravertebral region and across lower back, says no PH of back problems.” On 25 November Ms Khamis said that her main problem now is lower back to left leg. Dr Mundell ordered a CT scan which was taken the same day and he recorded that it showed moderate L3/4 and marked L4/5 canal stenosis. He wrote
““says had no problems before this however the changes look longstanding (although I would appreciate specialist opinion on this if this is the case then it is more likely the accident as aggravated or caused exacerbation of an underlying problem”
Ms Khamis was referred to Dr A Loefler who reported on 15 December 2016. Dr Loefler said:
“This lady's history of low back pain is not specific. Some of her leg pain may well be coming from the spinal stenosis but the stenosis is a degenerative condition and is not caused by the said incident. I emphasised this to Mrs Khamis. In any case she is not inclined to consider surgery which is the only real treatment for stenosis.”
In March 2017, Ms Khamis saw Dr Mobbs for the first time. He did not record a history of the work injury but did seek approval from the State’s insurer for an MRI scan. The scan confirmed the presence of lumbar degenerative changes with severe spinal canal stenosis at L4/5.
Dr Mundell discussed the MRI scan with Ms Khamis on 12 June 2017 and noted that Dr Mobbs was going to write to the insurer “but ?is he going to claim that this is fully or partly related to work injury…MRIs do show what appear to be chronic findings.”
On 26 June 2017, Dr Chu in Dr Mundell’s surgery noted that Ms Khamis had pain radiating down her left leg laterally. On 11 July 2017, Dr Chu obtained a history of escalating back pain radiating down the left leg.
Dr Mobbs recommended surgery which the State’s insurer declined. Surgery was undertaken on 11 August 2017.
Ms Khamis saw Dr P Bentivoglio on 8 November 2017. His opinion was:
“I consider the main factor contributing to Ms Khamis' problems in her lumbar spine is the degenerative lumbar spondylosis at l45.[sic] This is constitutional and multifactorial in its aetiology, but undoubtedly the twisting injury and lifting injury at work has exacerbated this pain.”
On 27 August 2018, a Commission Arbitrator determined that Ms Khamis had suffered an injury to her lumbar spine, that surgery was reasonably necessary medical treatment as a result of the injury and that the injury was the “major driver” for the surgery.
The AMS deducted half of his assessment in respect of Ms Khamis’ lumbar spine because it was “precisely diagnosed” before the incident, referring to his earlier reference to “disc pathology in a narrow spinal canal at L4/5 already in 2014.” The AMS accepted that the condition had been aggravated by the incident.
Undoubtedly, Ms Khamis had a significant pre-existing condition in her lumbar spine, as Dr Mundell noted. It is possible that surgery would have been required for canal stenosis in any event but it is not possible to pinpoint when that might be. The presence of that condition requires a deduction under s 323.
However, the deduction made by the AMS is too high. While there was a pre-existing condition, Ms Khamis was able to work. She began to complain consistently of back pain very soon after the injury and left leg pain in mid 2017. The Commission has determined that Ms Khamis suffered an injury to her lumbar spine.
Considering s 323(2), the extent of the appropriate deduction is not difficult or costly to determine because of the 2014 CT scan report. A deduction of one-tenth would be at odds with the available evidence because of the extent of spinal canal stenosis.
Taking all of those matters into account, we consider that the appropriate deduction is one-quarter. The appropriate assessment in respect of Ms Khamis’ lumbar spine is therefore 9%.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 November 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 George Weisz and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Cervical spine | 31.10.2016 | Ch 4 p 24 | Ch 15.6 page 392 | 0% | Nil | 0% |
| Lumbar spine | 31.10.2016 | Ch 4 | Ch 15.4 page 384. Table 15-3 | 12% | ¼ | 9% |
| Right upper extremity (shoulder) | 31.10.2016 | Ch 2, p 2 | Ch 16 page 433 | 2% | Nil | 2 |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Catherine McDonald
Member
Dr Mark Burns
Medical Assessor
Dr Frank Machart
Medical Assessor
25 June 2021
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