King v Dark Red Frames & Trusses Pty Ltd
[2024] NSWPICMP 878
•19 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | King v Dark Red Frames & Trusses Pty Ltd [2024] NSWPICMP 878 |
| APPELLANT: | James King |
| RESPONDENT: | Dark Red Frames & Trusses Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 19 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment (lumbar spine); whether Medical Assessor erred in omitting to identify radiculopathy; whether he erred in omitting to conduct a straight leg raising test; whether inadequacy of reasons; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
BACKGROUND
The appellant worker, Mr King, appeals from the Medical Assessment Certificate of Medical Assessor Kuru dated 24 June 2024. He assessed a 14% whole person impairment (13% lumbar spine, 1% scarring) as a result of injury on 19 January 2021.
Mr King appeals from the assessment of 13% whole person impairment with respect to the lumbar spine only.
The grounds of appeal are summarised below. Essentially, he says that the Medical Assessor erred by failing to add 3% whole person impairment for radiculopathy in accordance with Table 4.2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines). The failure to find that radiculopathy was present, he says, flowed from an omission to conduct a straight leg raising test, or alternatively an omission to do so in the supine position.
He relies on his own statement of 2 July 2024, made after the assessment on 18 June 2024. Dark Red Frames & Trusses Pty Ltd (the respondent) objects to its being received on appeal. It submits that, if the statement is received on appeal, procedural fairness would require that the Medical Assessor at least be given an opportunity to respond to it.
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.
Fresh evidence
Section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Mr King’s statement of 2 July 2024 sets out in detail what he alleges occurred at examination. So far as relevant, he alleges that the Medical Assessor did not conduct a straight leg raising test at all:
“24. I have since reviewed the Medical Assessment Certificate issued by Dr Kuru. He reports on things which did not happen during the consultation.
25. For example, he refers to having completed a straight leg test and that my straight leg raise was to 90 degrees in the sitting position without tension signs. I do not know how he has produced this result, because he did not perform a straight leg test with me during the consultation.
26. I am familiar with the straight leg test because, due to my long standing back injury, I’ve seen multiple specialists who have performed this test.
27. Dr Kuru did not perform a straight leg test or anything that I could recognise as being a straight leg test.”
As the statement relates to things that occurred (or did not occur) at the assessment examination, it was not available before the assessment, and could not reasonably have been obtained prior to it. However, though s 328(3) permits an Appeal Panel to receive evidence subject to certain requirements, it does not oblige it to do so. Guideline 43 empowers the Appeal Panel to reject otherwise relevant evidence on discretionary grounds: Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 at [102] and [103].
In this case, as in Lucacevic, if the evidence as to what did or did not occur at examination was received on appeal, procedural fairness would require that the Medical Assessor have an opportunity to reply to the evidence, and receiving all of the new evidence would run counter to the importance of finality in litigation. For those reasons, in exercising our discretion, we do not consider it appropriate to receive the statement on appeal.
It makes no difference to the outcome, for reasons which are given below.
In his submissions at [28], the appellant also relies on a study published in 2007, which he says concluded the performance of a straight leg test while seated “has been known to reduce the sensitivity of the test, particularly in patients who have presented with evidence of radiculopathy on MRI”. A full citation is given, though a copy of the study itself is not provided. In effect, this constitutes an application to rely on the study as expert evidence. It is not admissible on appeal, because the study was published in 2007, and was therefore available prior to the examination. Similarly, receiving the article on appeal would make no difference to the outcome, for reasons given below.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits as follows.
(a) Ground 1: with respect to his finding that radiculopathy was not present:
(i)he failed to “engage with” paragraph 4.27 of the Guidelines;
(ii)he failed to explain the tests used for range of motion;
(iii)he failed to explain his conclusion that there was no loss or asymmetry of reflexes;
(iv)he failed to explain his conclusion that there was no relevantly localised muscle weakness;
(v)he failed to explain his finding that there was no positive nerve root tension signs, muscle wasting or atrophy;
(vi)he failed to explain how sensory impairment in the lateral left thigh was not consistent with the L5 nerve root distribution;
(vii)he failed to explain how findings on an imaging study were now resolved;
(viii)he failed to take a history with respect to the lumbar spine;
(ix)he failed to refer to Dr Ghabrial’s report of 4 April 2024, and his finding that there was straight leg raising to 30 degrees with positive tension signs, spasm and loss of lumbar lordosis;
(x)he failed to refer to Dr Ghabrial’s findings of positive tension signs, weakness in the left leg and sensory changes in the right L5 dermatome, and
(xi)he failed to refer to Dr Ghabrial’s finding that there was radiculopathy.
(b) Ground 2: the Medical Assessor failed to conduct a straight leg raising test. the appellant alleges that no such test was conducted, because he is familiar with the test from experience, and could not recognise any such test being conducted by the Medical Assessor.
(c) Ground 3: if a straight leg raise test was conducted, it was conducted in the sitting position, and
(i)it was “not adequately assessed and/or explained”;
(ii)a study (Rabin, A, Gerszten, PC, Karausky, P, Bunker, AH, Potter, DM, Welch, WC (2007) The Sensitivity of the Seated Straight-Leg Raise Test Compared With the Supine Straight-Leg Raise Test in Patients Presenting with Magnetic Resonance Imaging Evidence of Lumbar Nerve Root Compression) has concluded that, in patients whose MRI has demonstrated radiculopathy, straight leg raising tests in the supine position are more sensitive than in the sitting position;
(iii)a report of an MRI dated 12 February 2021 disclosed disc herniation at L4/5 “which may be affecting the descending L5 nerves”. The Medical Assessor failed to explain how his finding was consistent with that MRI report;
(iv)he failed to explain how he distinguished his findings from those of other experts, particularly Dr Ghabrial, who performed the test in the sitting and supine positions, and
(v)he failed to engage with the report of Dr Ghabrial with respect to the straight leg test.
(d) Ground 4: with respect to the Medical Assessor’s finding that Trendelenburg’s test was normal:
(i)he failed to explain why it was performed;
(ii)the study quoted suggests there is no established standard for a positive test, so “this may be a problematic measure”, and
(iii)in the absence of an adequate rationale for applying the test, it is difficult to follow the Medical Assessor’s path of reasoning.
(e) Ground 5: the Medical Assessor failed to provide reasons for his finding that peripheral power was intact, or to specify the test he applied.
The respondent’s submissions in reply may be summarised as follows.
(a) At t page 4 of the Medical Assessment Certificate, the Medical Assessor explained that the criteria for radiculopathy at [4.27] of the Guidelines were not met, and why they were not met. His reasons were adequate.
(b) Professor Ghabrial had examined the appellant nine months beforehand on 20 September 2023. The Medical Assessor explained why he reached a different conclusion on radiculopathy.
(c) The appellant’s allegation that no straight leg testing was performed is inconsistent with the Medical Assessor’s findings on examination at [4] and is without merit.
(d) The Medical Assessor acknowledged the findings of both Professor Ghabrial and Dr Spittaler. He agreed with the findings of Dr Spittaler that there was no clinical evidence of radiculopathy, and disagreed with the contrary findings of Professor Ghabrial.
(e) The appellant attacks the method applied by the Medical Assessor in assessing him on 18 June 2024. The appeal lacks merit.
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.
As indicated, Medical Assessor Kuru examined the worker on 18 June 2024. He took a history of injury to the lumbar spine on 19 January 2021, noting at [4]:
“After inserting a nail, he flexed to a standing position and felt a pop in the right hand side of his lower back. He immediately had acute pain in his lower back which, over the course of ten minutes, started radiating from his buttock into his hamstring, calf and down to his foot on the right hand side. He presented to his doctor and was referred for an MRI. The MRI showed a right sided L4/5 disc protrusion consistent with his symptoms. He was referred to a physiotherapist and exercise physiologist and then ultimately to Dr Hansen, Neurosurgeon. With persistence of his symptoms, he underwent surgical discectomy on 10 November 2021. Subsequent to the discectomy, he had some improvement in his right sided symptoms but unfortunately had worsening pain extending down his left leg.”
Under the heading, “Present symptoms”, he recorded – emphasis added:
"He has pain across his lower back radiating down the posterior aspect of his left leg, which he says rates between 7 and 9 out of 10. He still has symptoms in his right leg, which he says has ‘dropped a few notches’. He has numbness in the lateral aspect of his thigh.”
On examination, he noted “very restricted in movements of his lumbar spine”, and observed – emphasis added:
“On examination, Trendelenburg’s test was normal. Heel-toe stance was normal. Neurological examination of the lower limbs demonstrated symmetrical knee and ankle reflexes with downgoing Babinskis. Peripheral power was intact. Straight leg raise was to 90° in the sitting position without tension signs. Gastrocnemius circumference was 49cm and symmetrical.”
At [6], he diagnosed a right sided L4/5 disc protrusion as a result of injury, adding:
“He underwent surgical discectomy but unfortunately has had persistent symptoms in both legs.”
He assessed 13% whole person impairment in respect of the lumbar spine. He explained his calculations at [9b] – emphasis added:
“SIRA page 29 paragraph 4.37 directs that decompressive procedures in the lumbar spine be assessed as DRE Lumbar Category III. According to AMA 5 page 384, Table 15.3 I assess 10% whole person impairment. According to SIRA page 28, paragraph 4.34 I assess a further 3% for restrictions of activities of daily living, given Mr King’s documented restriction of self-care.
Whilst Mr King has residual symptoms into both legs, they do not meet the criteria for radiculopathy as per SIRA page 27, paragraph 4.27. Mr King does not have loss or asymmetry of reflexes, muscle weakness that is anatomically localised to a spinal nerve root distribution, positive nerve root tension signs, muscle wasting or atrophy. His sensory impairment in the lateral aspect of the thigh is not consistent with distribution of the L5 nerve root. Whilst he did initially have findings on an imaging study, they are now resolved.”
No error is alleged in respect of the assessment of the lumbar spine as diagnosis-related estimate (DRE) Category III in accordance with [4.37] of the Guidelines. No error is alleged in respect of the addition of 3% for activities of daily living (ADL’s). The allegation of error is confined to the Medical Assessor’s omission to add a further 3% for radiculopathy. At [42] to [43] of his submissions, the appellant invites the Appeal Panel to add 3% for:
“…persistent symptoms due to radiculopathy, as detailed by Professor Ghabrial”.
At [10c] the Medical Assessor expressed agreement with the assessment of 13% whole person impairment (lumbar spine) made by Dr Spittaler on 14 December 2023, and with his finding that “there was no clinical evidence of radiculopathy on assessment”.
He also expressed agreement with Dr Ghabrial’s assessment of 10% whole person impairment (lumbar spine) in accordance with DRE category III and his addition of 3% for impact on the ADLs. He disagreed with Dr Ghabrial’s addition of 3% for “persistent symptoms due to radiculopathy” on the basis that:
“I did not make findings consistent with radiculopathy at the time of my assessment.”
Ground 1: radiculopathy
The criteria for assessing the spine are set out in Chapter 4 of the Guidelines, which relevantly provides – emphasis original:
“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):
•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).
4.28 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.”
In order to make a finding that radiculopathy was present for the purposes of the Guidelines, the Medical Assessor was required to find, first, that at least one of the three major criteria was present:
(a) loss or asymmetry of reflexes;
(b) muscle weakness localised to an appropriate spinal nerve root distribution, or
(c) similarly localised and reproducible impairment of sensation.
In the passage at [9b] quoted above, he explained that he could find neither “loss or asymmetry of reflexes”, nor “muscle weakness that is anatomically localised to a spinal nerve root distribution”.
The only sensory impairment he could find was “in the lateral aspect of the thigh”. He observed that this was “not consistent with distribution of the L5 nerve root” – which is the relevant nerve root for this injury. Symptoms at the lateral aspect of the thigh are within the L2 or L3 dermatome, not the L5 dermatome. The Medical Assessor’s finding was correct.
In summary, he found that none of the three major criteria was present. In those circumstances, the Guidelines prohibited a finding that radiculopathy was present. In finding that radiculopathy was not present, the Medical Assessor applied the Guidelines correctly. His approach does not disclose error of any kind.
It remains to address the balance of the appellant’s submissions listed under the heading, “Ground 1”:
(a) we do not accept that the Medical Assessor failed to address the Guidelines at [4.27]. He did so expressly at [9b] of the Medical Assessment Certificate, in the passage quoted above. He found, in effect, that none of the major criteria was satisfied, and that two of the three minor criteria – nerve root tension and muscle wasting – were not satisfied. It would not matter whether the remaining minor criterion – findings on an imaging study consistent with the clinical signs – was satisfied. In our view, he engaged with the requirements of [4.27].
(b) There was no need to explain the tests used for range of motion. The methods of measuring ranges of motion are well known to the medical profession. It is not necessary to explain every measurement or how it was done. In any event, the measurements of ranges of motion were not relevant to whether the criteria for radiculopathy in [4.27] were satisfied.
(c) There was no need for the Medical Assessor to explain the conclusion that there was no loss or asymmetry of reflexes. The presumption of regularity operates. We are satisfied that he tested the worker’s reflexes in the appropriate manner – that is, with a tendon hammer.
(d) Likewise, the presumption of regularity operates with respect to testing for relevantly localised muscle weakness, nerve tension signs, muscle wasting or atrophy. There being no evidence to the contrary, having regard to his specialist expertise as a spinal surgeon, we are comfortably satisfied that he applied the appropriate tests in each case.
(e) As indicated, at [9b] the Medical Assessor observed, “Whilst he did initially have findings on an imaging study, they are now resolved.” We interpret that as a finding that the third and final minor criterion in [4.27] was not satisfied, because the clinical signs observed on examination (that is, the absence of radiculopathy) were not consistent with findings on an imaging study. He did not identify the study to which he was referring, or the findings of that study. Of the three radiological reports to which he referred at [5], only the report of MRI dated 22 May 2022 referred to neural compression. It found there was “no significant ongoing neural compression”. In those circumstances, the negative findings on clinical examination were consistent with the study. The Medical Assessor did not refer to the report of MRI dated 12 February 2021 which concluded, “There is a moderate central disc herniation at L4-L5 effacing the lateral recesses which may be affecting the descending L5 nerves”. As indicated, that suggested a mere possibility of radiculopathy, and fell short of a finding that it was present. If that is what he had in mind, the third minor criterion would still be unsatisfied because, read in context, it requires that positive clinical signs be consistent with the imaging study, not (as here) negative clinical signs. A negative clinical sign consistent with a negative finding on radiological investigation could not possibly satisfy any criterion for the presence of radiculopathy. In any event, the pathology at L4/5 referred to in the MRI report of 12 February 2021 was addressed by discectomy on 10 November 2021. It was irrelevant to the assessment of radiculopathy by the Medical Assessor when he examined the worker on 18 June 2024.
(f) At [4], the Medical Assessor took a history of injury to the lumbar spine and its treatment. The appellant does not explain in submissions what further history he says should have been taken with respect to the lumbar spine, or how it could have affected the outcome with respect to Ground 1, which concerned the finding that radiculopathy was not present. The task of the Medical Assessor was to assess the worker as he presented at examination, not as he may have presented to other clinicians on previous occasions. That is what he did.
(g) Contrary to the appellant’s submissions, the Medical Assessor referred to Professor Ghabrial’s report of 4 April 2024 at [9c], together with two previous reports of Professor Ghabrial. The Medical Assessor explained that, unlike Professor Ghabrial, he did not find radiculopathy to be present – emphasis added:
“Dr Ghabrial has added 3%, which he describes as a surgical level in his initial two reports but subsequently clarifies this by indicating that this assessment, in fact is for persistent symptoms due to radiculopathy. I did not make findings consistent with radiculopathy at the time of my assessment.”
He had already explained at [9b] the reason for that finding – namely, that the criteria in [4.27] were not satisfied.
(h) When read together with [9b], the above passage at [9c] was sufficient to explain why the Medical Assessor’s findings differed relevantly from those of Professor Ghabrial. It was unnecessary to refer specifically to the latter’s different findings concerning tension signs, left leg weakness and sensory changes in the right
L5 dermatome which Professor Ghabrial had found on examination on 20 September 2023. The mere fact that Professor Ghabrial had identified radiculopathy on 4 April 2024 does not mean that it was necessarily present when the Medical Assessor examined the worker over two months later.(i) Contrary to the appellant’s submissions, the Medical Assessor did refer to Professor Ghabrial’s finding of radiculopathy, by indicating that the two assessments differed because the Medical Assessor “did not make findings consistent with radiculopathy”.
Grounds 2 and 3: the straight leg raise test
As indicated, the appellant alleges error in respect of the omission to conduct a straight leg raising test or, alternatively, omission to do so in the supine position. We have declined to allow evidence of that alleged omission on appeal. However, even if it were received on appeal, and we were to accept it as accurate, the evidence would make no difference to the outcome for the following reasons.
(a) In his findings on examination, the Medical Assessor recorded, “Straight leg raise was to 90° in the sitting position without tension signs.” Having regard to his specialist expertise as an orthopaedic surgeon, we are confident that the Medical Assessor is familiar with the straight leg raise test. Though the applicant claims to have that knowledge as a result of undergoing the test at the hands of other clinicians, as he does not describe what he means by it, we are not certain what he means by it, or how he has determined that it was not conducted. For that reason, even if his evidence were received, we would prefer that of the Medical Assessor. We are comfortably satisfied that a straight leg test was conducted, at least in the sitting position.
(b) Assuming that the appellant has correctly summarised the views of the authors of the study on which he relies, it was not necessary for the Medical Assessor to conduct the test in a supine position for the purposes of determining whether there were sensory signs. A straight leg raise test in the sitting position is a well recognised test in medicine, and commonly used by clinicians to detect signs of radiculopathy. Clinicians often prefer to apply the straight leg in the sitting position for many practical reasons. The authors of the study are entitled to their opinion, but it is not one necessarily accepted generally by the profession. Even if they were correct in concluding that the test is “more sensitive” when conducted in the supine position, it does not prove that tests in the sitting position are generally unreliable, or that in this particular case the results were unreliable. We are satisfied the test was a reliable one, whether or not conducted in the sitting position.
(c) The report of MRI dated 12 February 2021 expressed a view that disc herniation at L4/5 “may be affecting the descending L5 nerves”. An MRI report alone is not capable of proving radiculopathy without confirmation on clinical examination. In any event, that report did no more than express the view that radiculopathy was a possibility, and (as indicated above) the identified pathology was addressed by laminectomy at L4/5. The Medical Assessor had taken a history at [4] of the MRI followed by discectomy on 10 November 2021. It is not surprising that radiculopathy was not confirmed on examination, particularly as a later MRI of 22 May 2022 described no significant ongoing neural compression at L4/5. It was the task of the Medical Assessor to assess the worker as he presented at examination. That is what he did. He referred to the MRI and subsequent surgical history at [4]. We can discern neither inadequacy of reasons, nor any other error in his approach.
(d) For the reasons expressed in the context of our findings with respect to Ground 1, we are satisfied that the Medical Assessor engaged sufficiently with the assessment of Professor Ghabrial.
Ground 4: Trendelenburg’s test
The Medical Assessor indicated at [4] that he applied Trendelenburg’s test. As the appellant correctly submits, he did not explain why that test was applied. Trendelenburg’s test is used to assess the hips, which were not referred for assessment. In the absence of any rationale, the reasons for applying it are not patent.
The appellant does not explain how it affected the result of the assessment, and we cannot be satisfied that it did. Even if the test was irrelevant, the fact remains that the requirements for radiculopathy in [4.27] were not satisfied, for reasons which have nothing to do with the application of Trendelenburg’s test. We are satisfied that the use of that test has not affected the outcome.
Ground 5: findings on peripheral power
The Medical Assessor found peripheral power to be intact. He did not detail the tests which he used to reach that conclusion, but the presumption of regularity applies. In the absence of evidence to the contrary, we are satisfied that he applied the appropriate tests.
Conclusion
For these reasons, the MAC issued on 24 June 2024 is confirmed.
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