Klippert v Shore Hire Holdings Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Klippert v Shore Hire Holdings Pty Ltd [2024] NSWPICMP 421
APPELLANT:	Matthew Thomas Klippert
RESPONDENT:	Shore Hire Holdings Pty Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	1 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Assessment of the lumbar spine; the worker appealed submitting insufficient findings and inadequate reasons for failing to find persistent radiculopathy post-surgery; Held – Medical Appeal Panel found error and a re-examination was considered necessary in the circumstances; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 January 2024 Mr Matthew Thomas Klippert (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 December 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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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, 4^th ed
1 March 2021 (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 Procedural Direction PIC7.
The appellant requested that he be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel found error. Absent a finding of error, the Appeal Panel has no power re require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

Fresh evidence

Section 328(3) of 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.
The appellant seeks to admit the following evidence:
(a) referral from general practitioner (GP) dated 13 December 2023 for MRI scan, and
(b) MRI scan dated 18 December 2023.
The appellant submits that the evidence is relevant to the assessment of permanent impairment because it is evidence of criteria supporting an assessment of persisting radiculopathy following surgery. The appellant submits that the evidence was not available and could not reasonably have been obtained because it took place after the medical assessment.
Shore Hire Holdings Pty Ltd (the respondent) objects to the admission of the further evidence, submitting the appellant could have reasonably obtained further investigation prior to the medical assessment taking pace and that it has no probative value because the findings are the same as the MRI already in evidence.
The Appeal Panel notes that the assessment took place on 3 December 2023 and the surgery took place in 2022. It was open and available to the appellant to obtain additional radiological investigations prior to commencing proceedings for lump sum compensation and prior to the medical assessment taking place. Rather they seek to rely on an investigation undertaken three days after the MAC dated 15 December 2023. It should be noted that a deterioration that would lead to a grater assessment of permanent impairment is not alleged and the appeal is not based on the ground of deterioration and the additional evidence is being used to support the argument that the medical assessor erred in his assessment. In these circumstances the Appeal Panel declines to admit the additional evidence.

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.

Further medical examination

Dr John Brian Stephenson of the Appeal Panel conducted an examination of the worker on 20 May 2024 and reported to the Appeal Panel.

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. 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 by the Personal Injury Commission to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):

•

Date of injury:

10 January 2022

•

Body parts / systems referred:

Lumbar spine

Scarring / TEMSKI

•

Method of assessment:

Whole Person Impairment”

The Medical Assessor issued a MAC 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)

Lumbar spine

10/01/2022

P 27 p 4.27

P 28 p 4.34

P 29 p 4.37

P 384 15.3

12%

0

12%

Scarring

10/01/2022

P 74 T 14.1

1%

0

1%

Total % WPI (the Combined Table values of all sub-totals)

13%

The worker appealed. The complaint on appeal does not concern the assessment for scarring but concerns only the assessment for the lumbar spine.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:
(a) failed to assess in accordance with the Guidelines residual radiculopathy following surgery which would have allowed a loading of 3% whole person impairment (WPI), and
(b) the examination and reasoning were inadequate.
In summary, the respondent ubmitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed for reasons which included the that the examination and reasoning was adequate and it is clear on the face of the examination findings that the criteria for radiculopathy were not satisfied.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with a adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applies.
The Medical Assessor recorded the following history including in relation to persistent symptomatology as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On the date of injury, Mr Klippert was at work. He bent over to hook up chains on his truck when he felt a pop in his back. He was able to drive his truck home, have dinner and have a shower but when he went to get out of bed the next day, he had severe pain. He had to go to work as he had the truck. He reported his injury at work and then went to Bankstown Hospital, where he was assessed. He was unhappy with the assessment there and then went to his GP, who organised for him to have an MRI. He was referred to Dr Suttor, Spinal Surgeon who initially referred him for physiotherapy and then epidural steroid injection. He returned to work and was having treatment with an exercise physiologist. At the end of a rehabilitation session, he got out of his car and felt a twinge in his back with worsening pain and about a month later, noted that he had a foot drop. He was reviewed by Dr Suttor, who proceeded to surgery on 21 June 2022. Subsequent to the surgery, his foot drop was improved. He has ongoing significant pain in his back and he has persistent pins and needles and numbness in both legs. Review by Dr Suttor has not recommended further surgical intervention. He has had a second surgical opinion which also did not recommended any further interventional treatment. He has been referred to a pain management specialist who has recommended an epidural steroid injection. He has had one injection, which was not successful and further approval has been sought for different injections.
Present treatment:
Mr Klippert is not engaged in an exercise based rehabilitation program but is doing some hydrotherapy. He is on Lyrica, tramadol and Mobic.
Present symptoms:
He has ongoing pain in his lower back. He has numbness in the anterior and posterior thighs, particularly when suiting. He describes the numbness as global in both legs down to the feet.
Details of any previous or subsequent accidents, injuries or conditions:
Nil relevant.
General health:
Mr Klippert has hypercholesterolaemia, for which he is on rosuvastatin. He has no allergies.
Work history including previous work history if relevant:
Nil relevant.
Social activities/ADL:
Mr Klippert previously enjoyed working on cars and riding a motorbike, which he is unable to do. He is unable to play soccer with his children. He needs help mowing his lawns or doing home maintenance.”
The Medical Assessor made the following comment in relation to special investigations:
“I was able to review no imaging related to the injury today.”
The Appeal Panel notes that the Medical Assessor did not refer to the report of the MRI dated 14 January 2022.
His examination findings were as follows:
“On examination he was a well looking man in no obvious distress. 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. There were minor tension signs at 90° in the right leg whilst sitting. Peripheral pulses were present.”
The Medical Assessor summarised the injury and diagnosis as follows:
“(a) Summary of injuries and diagnoses:
Mr Klippert sustained a disc protrusion at work and has subsequently undergone discectomy. He has had recovery of partial foot drop. He has ongoing pain in his back and numbness extending into both legs.
(b) Consistency of presentation:
Mr Klippert was cooperative throughout the assessment.”
The Medical Assessor explained his assessment of permanent impairment of the lumbar spine as follows:
“SIRA page 29, paragraph 4.37 directs that decompressive procedures on the lumbar spine be assessed as Lumbar DRE Category III (10% whole person impairment). A further 2% is assessed for restrictions of activities of daily living, according to SIRA page 28, paragraph 4.34.
Whilst Mr Klippert has persistent symptoms, he does not meet the criteria of radiculopathy as per SIRA page 27, paragraph 4.27. Specifically, he has had good recovery of motor and power in his legs. Whilst he has persistent numbness into his legs, it is not dermatomal in nature and does not correlate with specific nerve root distribution.”
The Medical Assessor explained where his opinion differed from other medical opinion as follows:
“With respect to the report by Dr Gehr dated 2 June 2023, I am in agreement with the assessment of Lumbar DRE Category III (10% whole person impairment). I have assessed 2% rather than 3% for restrictions of activities of daily living. Mr Klippert does not satisfy the diagnostic criteria for radiculopathy and hence, assessment of 3% impairment for persistent symptoms / radiculopathy is not appropriate.
I agree with the assessment of 1% whole person impairment for scarring / TEMSKI.
With respect to the report by Dr Waller dated 28 July 2023, again I am in agreement with the assessment of Lumbar DRE Category III (10% whole person impairment). I am also in agreement with the addition of 2% whole person impairment for restrictions of activities of daily living. Dr Waller has not assessed impairment for scarring / TEMSKI.”
The criteria for radiculopathy in the Guides at paragraph 4.27 are 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).”
Contrary to the submission of the respondent, it cannot be determined from the examination findings recorded by the Medical Assessor whether or not the criteria for radiculopathy were correctly applied by him.
In these circumstances error was found because of an inadequate path of reasoning and a re-examination was considered necessary.
In the circumstance of a finding of error, the Appeal Panel considered that a re-examination of the worker was necessary and Dr John Brian Stephenson a Medical Assessor who was also a member of the Appeal Panel was appointed to conduct the re-examination of the appellant and report to the Appeal Panel.
DR John Brian Stephenson conducted the examination on 20 May 2024 and reported to the Appeal Panel as follows:

“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	W8238/23
Appellant:	Matthew KLIPPERT
Respondent:	Sure Hire Holdings Pty Limited
Date of Determination:	20 May 2024

Examination Conducted By:	Dr J Brian Stephenson and member of the Appeal Panel
Date of Examination:	20 May 2024

Associate Professor Craig Waller reporting to the insurer EML 11 January 2023, he noted the conservative treatment at that stage, 11 January 2023. He developed a right-sided footdrop and underwent urgent L4/5 surgical decompression and right L5 neurolysis at Westmead Private Hospital on 21 January 2022 under the care of Dr Sean Suttor, orthopaedic neurosurgeon. The appeal noted report of Dr Waller and sought to have the MAC revoked, the MAC being by Dr Rob Kuru, neurosurgeon. So the appellant seeks to have the MAC revoked and have the worker assessed by a member of the Appeal Panel and hence this assessment.
1.    The workers medical history, where it differs from previous records
There is no difference. At work, he bent over to hook up chains on his truck when he felt a pop in his back and then subsequently developed a left lumbar disc sciatica diagnosis.
Operation Details: Dr Sean Suttor, 21 June 2022. Right posterior midline approach, partial L4 and L5 laminectomies. Discectomy was then performed at L4/5 level with neurolysis of the L5 nerve root completed. Satisfactory progress was made.
2.    Additional history since the original Medical Assessment Certificate was performed
He was followed up regularly at intervals by Dr Sean Suttor.
3.    Findings on clinical examination
Reference to AMA5, Page 384, Table 15-3. There is a DRE category III for the lumbar spine, baseline 10% for DRE III, plus 2% for ADLs, i.e. avoidance of or assistance with sport, recreation, yard, garden and homecare. Therefore, there is a 12% WPI.
Reference now to WorkCover Guidelines Page 27, Paragraph 4.27 where all requirements are met for diagnosis of radiculopathy, left lower extremity, which is defined as the impairment caused by malfunction of the spinal nerve 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).
On examination, all the relevant requirements were met as follows. On examination of lumbar spine, there was a small midline surgical scar of the order of 6 cm, not appealed.
·        Loss or asymmetry of reflexes.
Left lower extremity is affected where knee jerk L3/4 reduced, medial hamstring reflex absent (L4/5) and ankle joint reflex absent L5/S1. On the unaffected right side, all reflexes were present, they are reduced.
·        Muscle weakness anatomically localised to appropriate spinal nerve root distribution.
Power of dorsiflexion left foot and ankle in affected left lower extremity reduced to 3/5 compared with the normal 5/5 in unaffected right lower extremity. Incidentally, the scar is 8 cm. The 8 cm lumbar scar gains a 1% WPI.
·        Reproducible impairment of sensation that is anatomically localised to appropriate spinal nerve root distribution.
Sensation in the opposite right lower extremity normal and sharp to the Neurotip pinprick device compared with the affected left lower extremity where it was dull, i.e. absent over the lateral aspect of the calf.
·        Positive nerve root tension.
Straight leg raise left lower extremity caused acute pain, lumbar left gluteal, posterior thigh and posterior calf at only 40 degrees of active straight leg raise, reinforced by foot dorsiflexion.

The straight leg raise on the opposite right lower extremity was a cross straight leg raise, hit a 60 degrees causing pain down the right leg and hence a cross straight leg raise test.
· Muscle wasting – atrophy.
In the unaffected right lower extremity, mid-calf circumference was 47 cm compared with only 45 cm in the affected left lower extremity.
· Findings on imaging study are consistent with the clinical signs.
It is noted at the MAC Assessor, Kuru, has noted that he was able to review no imaging related to the injury.
In contrast, I note the MRI report post injury date 14 January 2022. MRI lumbar, Conclusion: At L4/5, there is moderate disc desiccation. Posterior annular tear is present. There is moderate-sized broad-based disc bulge with associated posterior central to paracentral disc extrusion which is measuring up to approximately 12 mm in craniocaudal height by 12 mm in AP dimension resulting in moderate flattening of the right anterior thecal sac. The disc is contacting displacing descending right L5 nerve root in the right subarticular zone. Moderate left subarticular zone narrowing noted where the disc is contacting but not displacing the descending left L4 nerve root. Dr Sanadgol, confirming by the MRI studies with some involvement of the unaffected right lower extremity and therefore the cross straight leg raise test, which I found.”

The Appeal Panel considers that Dr John Brian Stephenson has conducted a thorough examination and the Appeal Panel adopts the findings of Dr Stephenson on re-examination.
Applying the correct criteria to the findings of Dr Stephenson, the Appeal Panel notes that all the requirements for radiculopathy are met, there is a diagnosis-related category III, lumbar spine, reference AMA 5, page 384, Table 15-3. That carries a baseline of 10% WPI. To that the Appeal Panel adds 2% for activities of daily living (ADLs) i.e. persistence with an avoidance of sport, recreation, yard, garden and homecare. Therefore, there is a 12% WPI. Then with reference to page 27, paragraph 4.27, we look at the Moderator Table 4.2, page 29 of the Guidelines. The Moderator applying 3% for the lumbar spine and hence the combination of 12 with 3 gains 15% WPI plus 1% scarring, a final result of 16% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W8238/23
Applicant:	Matthew Thomas Klippert
Respondent:	Shore Hire Holdings Pty Ltd

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 Medical Assessor Dr Robert Kuru 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 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)
Lumbar spine	10/01/2022	P 27 p 4.27 P 28 p 4.34 P 29 p 4.37	P 384 15.3	15%	0	15%
Scarring	10/01/2022	P 74 T 14.1	1%	0	1%
Total % WPI (the Combined Table values of all sub-totals)					16%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2024] NSWPICMP 421

1 July 2024