Lykos v City of Sydney - [2021] NSWPICMP 29

DETERMINATION OF APPEAL PANEL
CITATION:	Lykos v City of Sydney [2021] NSWPICMP 29
APPELLANT:	Helen Lykos
RESPONDENT:	City of Sydney
APPEAL PANEL:	Member Carolyn Rimmer Dr Margaret Gibson Dr John Brian Stephenson
DATE OF DECISION:	19 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Referral for assessment of injury to cervical spine and thoracic spine deemed to have occurred on 28 June 2019; AMS assessed 5% for the cervical spine and 8% WPI for the thoracic spine resulting in a total assessment of 13% WPI; whether the AMS obtained a proper history and whether the significant factual inaccuracies in the MAC were demonstrable errors; AMS erred in reporting various details including present symptoms, and misquoted the report of a treating doctor concerning activities of daily living; worker re-examined; Held- Panel made same assessment of WPI as that made by the AMS and MAC confirmed as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403); MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 October 2020 Helen Lykos (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Drew Dixon, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 24 September 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):
·        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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

In these proceedings, the appellant is claiming lump sum compensation in respect of an injury to the cervical spine, thoracic spine, lumbar spine and chronic pain as a result of an injury deemed to have occurred on 28 June 2019. The appellant alleged that she was injured due to the nature and conditions of her employment duties involving working at a computer with a mouse for long periods of time without adequate rest breaks and without a suitable work station.
In a Certificate of Determination – Consent Orders dated 5 May 2020, Arbitrator Perrignon remitted the matter to the Registrar to refer to an AMS for assessment of whole person impairment (WPI) of the cervical spine and thoracic spine as a result of injury deemed to have occurred on 28 June 2019 due to the nature and conditions of employment from 2003 to 2 November 2018.
The matter was referred to the AMS, Dr Drew Dixon, in the Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 12 August 2020, for assessment of WPI of the cervical spine and thoracic spine as a result of the injury deemed to have occurred on 28 June 2019 due to the nature and conditions of employment from 2003 to 2 November 2018.
The AMS examined the appellant on 16 September 2020. He assessed 5% WPI of the cervical spine and deducted one tenth for pre-existing injury, condition or abnormality which resulted in an assessment of 4.5% which was rounded up to 5% WPI. The AMS assessed 8% WPI for the thoracic spine. Therefore, the total assessment was 13% WPI in respect of the injury deemed to have occurred on 28 June 2019.

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.
The appellant did request that she be re-examined by an AMS, who is a member of the Appeal Panel.
The appellant requested that she be given an opportunity to make oral submissions to the Appeal Panel. However, in a letter to the Registrar from her solicitors, Turner Freeman Lawyers, dated 22 January 2021, the request to present oral submissions was withdrawn and the appellant advised that she relied upon her written submissions.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because there was insufficient evidence by way of medical reports and clinical investigations in relation to assessment of the cervical spine and thoracic spine on which to make a determination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional 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 admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota [2006] NSWWCCMA077. In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
The appellant seeks to admit the following evidence:
(a) Undated “Summary of factual inaccuracies” by Helen Lykos, and
(b) report of Dr Robinson dated 14 October 2020.
The appellant submitted that the AMS obtained a faulty clinical history from her and conducted a faulty clinical examination of her. The appellant submitted that the undated document prepared by the appellant headed “Summary of factual inaccuracies recorded the significant factual inaccuracies in the AMS’s report”. The appellant also obtained a report from Dr Robinson dated 14 October 2020 in which the doctor expressed the view that the AMS lacked the expertise to examine patients for mechanical/functional disabilities such as SIJ dysfunction and rib ring dysfunction. Dr Robinson also proceeded to question whether the AMS carried out a thorough clinical examination of the appellant and noted various alleged factual errors in the report of the AMS.
The respondent submitted that the appellant has summarised her view of factual inaccuracies in the MAC, however, the history taken by the AMS was not dissimilar to the history recorded by Dr Khan, the appellant’s independent medical examiner (IME), and Dr Home, the respondent’s IME.
The respondent argued that if there were inaccuracies in the reports of Drs Khan and Home then the appellant could have addressed these issues in her statement included within the Application to Resolve a Dispute (ARD). The respondent submitted that there was more detail provided in the appellant’s critique of the MAC than in her own statement evidence attached to the ARD.
The Appeal Panel considered that the parts of summary of factual inaccuracies prepared by the appellant that described her condition was evidence that could reasonably have been obtained by the appellant before the medical assessment.
The report of Dr Robinson was evidently obtained by the appellant in response to the MAC. It challenged the MAC in (a) joining the appellant in criticising the history recorded by the AMS and (b) in questioning the credentials of the AMS. Given the history recorded by the AMS was similar to that taken by Dr Khan and Dr Home, it was open to the appellant to have obtained a further report from Dr Robinson before lodging the ARD. The last report of Dr Robinson was dated 29 October 2018. Dr Khan’s WPI assessment is dated 30 October 2018, and the report of Dr Home was dated 6 August 2019. It appeared that Dr Robinson last saw the appellant on 11 November 2019. The MAC was dated 24 September 2020 following an assessment on 16 September 2020. There was ample time for the appellant to have obtained an updated report from Dr Robinson before the commencement of these proceedings on 7 April 2020, and before the assessment by the AMS on 16 September 2020.
The appellant challenged the credentials of the AMS who conducted this assessment. The AMS, Dr Dixon, is a qualified orthopaedic specialist, and an AMS assessor of impairment. He was asked to assess the appellant’s cervical and thoracic spines, and he was a suitably qualified AMS to assess those of body parts.
The appellant sought to introduce by way of her criticism of the AMS’s assessment fresh evidence, namely the undated “Summary of factual inaccuracies”. The respondent submitted that the fresh evidence should not be admitted.
The issue concerning “additional relevant information” which is a separate ground of appeal under s 327(3)(b) was addressed by Hoeben J in Petrovic v BC Serv No 14 Pty Limited t/as Broadlex Cleaning Services [2007] NSW SC1156 (Petrovic). Hoeben J held that a statutory declaration addressing the way in which an AMS carried out his examination was not “additional relevant information” as it was not information of a medical kind or which directly related to the decision made by the AMS. At [31], Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs327(3)(b).
32. It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
Hoeben J did note that once the matter came before an Appeal Panel, the matter in the statutory declaration could be considered by the Appeal Panel.
As noted in Pitsonis v Registrar of WCC & Anor (2008) NSWCA 88 (Pitsonis) at [48] an appeal under s 327 is not an opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than aa Appeal Panel being invited to decide an application afresh. Allowing the introduction of the fresh evidence is not consistent with the statutory process of resolving medical disputes. The purpose of referral to an AMS is to bring finality to medical disputes, other than where there are legitimate grounds of appeal. It is expected that the parties will place all relevant documents before an AMS in the referral documents.
In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 1122 (Lukacevic) at [78], Hodgson JA said:
“A dispute by the workers as to the history set out in the certificate, or the observations made by the AMS, can be readily raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. …”
Allowing the evidence to be admitted would unfairly prejudice the respondent, who would not be capable of adducing evidence to respond to the allegations concerning the manner in which the assessment was undertaken.
The appellant has filed a statement dated 24 February 2020 in the proceedings, which addressed in some detail matters such as her symptoms and restrictions, daily activities, household activities and interference with social and recreational activities. These were all matters that could have been addressed in further detail by her before the examination and assessment by the AMS.
Although the undated “Summary of factual inaccuracies” of the appellant came within the literal definition of “fresh evidence” as referred to in s 328(3) in that it contained comments as to what took place in the examination by the AMS, the Appeal Panel decided to disregard that evidence since it was quite contrary to the purpose of the Act. The Appeal Panel does not understand the intention of the legislature to be that such criticisms of an AMS ought to be admitted as fresh evidence. The Appeal Panel believes that the purpose of the legislation is to give some prima facie credence to the opinion of an AMS in situations where he has examined the worker and all the competing medical views. The system would not be able to operate properly if the AMS’s view could be overturned merely because of some untested documentary evidence as to the events that occurred during the examination.
It should also be noted that the appellant in her statement of 24 February 2020 said that she suffered from interference with domestic and household activities, including general cleaning, laundry duties, home maintenance, gardening, yard maintenance, shopping, meal preparation, and cooking but she did not actually set out what activities she was unable to do and what she could do.
Further, the appellant is not a medical practitioner and no real weight could be attached to her views concerning the actual medical examination. In those circumstances, the Appeal Panel considered that her evidence concerning the details of the examination by the AMS would have little, if any, probative value.
The Appeal Panel determined not to admit the undated “Summary of factual inaccuracies” by the appellant. The Appeal Panel decided that the summary by the appellant was not evidence of such probative value that it was reasonably clear that it would change the outcome of the case.

In relation to the report of Dr Robinson dated 14 October 2020, the appellant did not make submissions as to how this report was relevant to the question of how the examination by the AMS was conducted and the actual assessment of WPI. Dr Robinson addressed various matters in her report, such as low back pain, sacroiliac joint dysfunction and psychological issues, that were not relevant to the assessment that the AMS was required to make, that is, an assessment of the cervical spine and thoracic spine.
The Appeal Panel accepts that this evidence, the report of Dr Robinson dated 14 October 2020, was not available before the examination by the AMS and could not have been reasonably obtained as it related to events that took place during the examination by the AMS.
In this case the Appeal Panel formed the view that Dr Robinson’s report of 14 October 2020, because of its nature and content, was not of such probative value that it was reasonably clear that it would change the outcome of the case. We agreed with the approach taken by the Medical Appeal Panel in Lord v University of Technology [2008] NSWWCC MA 132:
“In the Panel’s view, the appellant, who is legally represented in these proceedings, has been provided with an opportunity to present her symptoms to the AMS by way of the examination and also in the medical reports provided in support of her ‘Application to Resolve a Dispute’. In the Appeal Panel’s view the appellant was not denied an opportunity to obtain medical evidence prior to the assessment. The appellant’s attempt to obtain and admit further ‘commentary’ in respect of the MAC may be achieved by way of submissions and this opportunity has been provided.”
The Appeal Panel has therefore determined not to admit Dr Robinson’s report dated 14 October 2020 as evidence before the Appeal Panel. In coming to this decision we noted that part of Dr Robinson’s report was, in effect, adopted in the submissions made by the appellant. These submissions were considered below.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) the undated “Summary of factual inaccuracies” by the appellant, and
(b) report of Dr Robinson dated14 October 2020.

EVIDENCE

Documentary 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.

Further medical examination

Dr Margaret Gibson of the Appeal Panel conducted an examination of the worker on 11 March 2021 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the AMS 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.
The appellant’s submissions include the following:
(a)    The AMS obtained a faulty clinical history from the appellant and conducted a faulty clinical examination of her. The undated document prepared by the appellant headed “Summary of factual inaccuracies” attached to the Appeal Against a Decision of Approved Medical Specialist recorded the significant factual inaccuracies in the AMS’s report.
(b)    The appellant also obtained a report from Dr Robinson dated 14 October 2020 in which the doctor: (a) noted that the AMS incorrectly diagnosed her cervical spine injury, especially in relation to her left sided complaints; (b) opined that the AMS lacked the expertise to examine patients for mechanical/functional disabilities such as Sacroiliac Joint Dysfunction (SIJ) and rib ring dysfunction; (c) questioned whether the AMS carried out a thorough clinical examination of the appellant, and (d) noted various factual errors recorded by the AMS.
(c)    When Dr Robinson's report is taken in conjunction with the appellant’s document regarding the significant factual inaccuracies in the AMS’s report, the only conclusion that can be reached is that the report contains sufficient inaccuracies, such that there are demonstrable errors in the report.
(d)    The AMS used incorrect criteria in assessing WPI due to his incomplete clinical examination of the appellant.

The respondent’s submissions include the following:
(a)    The additional evidence relied upon by the appellant is the appellant’s summary of factual inaccuracies in the MAC and the report of Dr Robinson. This further evidence should not be admitted, and there is no evidence of the application of incorrect criteria and/or demonstrable error in the MAC.
(b)    In support of her submissions the appellant has summarised her view of factual inaccuracies in the MAC. However, the history taken by the AMS is not dissimilar to the history recorded by Dr Khan, the appellant’s IME, and Dr Home, the respondent’s IME.
(c)    If there were inaccuracies in the reports of Drs Khan and Home then the appellant should have addressed these issues in her statement included within the ARD.
(d)    The report of Dr Robinson was evidently obtained by the appellant in response to the MAC. Dr Robinson joined the appellant in criticising the history recorded by the AMS. It was open to the appellant to have obtained a further report from Dr Robinson before lodging the ARD. There was ample time for the appellant to have obtained an updated report from Dr Robinson before the commencement of these proceedings on 7 April 2020, and before the AMS assessment on 16 September 2020. Secondly, the appellant challenged the credentials of the AMS to have conducted this assessment. That challenge must fail. The AMS is a well-regarded, and qualified, AMS assessor of impairment. He was asked to assess the appellant’s cervical and thoracic spines, and he is a suitably qualified AMS to assess those of body parts.
(e)    In relation to the issue of the application of incorrect criteria, it was not evident from the appellant’s submissions the basis upon which she asserted application of incorrect criteria other than that there was incomplete examination of the appellant.
(f)    It is evident from the MAC that the AMS assessed the appellant with reference to the DRE categories in AMA 5 and the SIRA Guidelines. Those Guides and assessments are referred to and reflected in the MAC. There is no support of the proposition that the AMS applied incorrect criteria.
(g)    In relation to the issue of demonstrable error, it is not evident from the appellant’s submissions where she asserted demonstrable error in the MAC beyond her view of factual inaccuracy.
(h)    If demonstrable error is reference to Dr Robinson’s criticism that the AMS did not assess the appellant’s lumbar spine, then that contention cannot be supported. At the top of page 4 of the MAC there was reference to tenderness in the lower lumbar region, and to straight leg raising within the findings on physical examination. It was also relevant that only the cervical and thoracic spines were referred to the AMS for assessment. Dr Robinson commented that there was no mention of symptoms or signs associated with the lumbopelvic region but neither the lumbar spine nor the pelvis were referred to the AMS for assessment.
(i)    The appellant’s summary of the MAC and Dr Robinson’s assessment report post-dated the MAC, their criticisms of the MAC in so far as history is concerned overlooks the fact that Drs Khan and Home obtained very similar histories. To that extent the appellant and Dr Robinson could have raised these issues about those reports before the filing of the ARD and the AMS assessment.
(j)    Accordingly, the additional evidence relied upon by the appellant was obtainable before the AMS assessment, albeit that it was prepared after the issue of the MAC.
(k)    There was no evidence as to the application of incorrect criteria and/or demonstrable error. The AMS was directed to assess the cervical and thoracic spines. He has done so in accordance with the AMA 5 and SIRA Guidelines and there was no error disclosed in his assessments.
(l)    What the appellant and Dr Robinson seek to do is cavil with the MAC, the history recorded by the AMS, the examination of the appellant by the AMS, and the assessments of impairment.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In this matter, the Registrar has determined that he is satisfied that a ground of appeal under s 327(3 (d) is made out in relation to the AMS’s assessment of permanent impairment.
The Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Assessment of the cervical spine and thoracic spine

Under “Present symptoms” the AMS wrote:
“She reports persisting pain in her neck with stiffness with bilateral shoulder brachalgia with trapezial muscle pain and reports recurrent occipito-parietal migraine like headaches on the right and muscle spasm of the trapezius muscles.
She reports her neck pain disturbs her sleep and impacts on her ability to drive, reverse park, change lanes and check her blind spots. She felt that the cortisone injection previously did not five (sic) sustained benefit. She has had some pain radiating down her arms at times, mainly on the lateral aspect of the forearms and occasionally into the middle and ring fingers.
She reports pain in her upper back with interscapular thoracic pain, particularly on trunk rotation an radiates towards the right scapular area and both these areas are painful at night and disturb her sleep. She finds it difficult to sit for prolonged periods of time because of thoracic and low back pain and she has a sitting tolerance of half an hour and when standing has to move about. Her driving tolerance is no more than half an hour, and on the journey today she was in the car for almost one hour, and this was associated with increasing neck and back pain. She has difficulty tasks at home such as heavy cleaning, and is assisted by her husband who also does the yard work. Repetitive bending and stooping aggravate her back pain and she is aware of crepitus in the right scapular region. She has been using a wheat pack and a cushion for her back when sitting in a chair or the car and her physiotherapy program has been restricted by Covid-19.”
Under “Findings on physical examination” the AMS wrote:
“On examination on September 16, 2020 she was 16cm tall and weighed 76kg. She reports she has put on weight as she is normally 58kg.
There was stiffness of her cervical spine with flexion and extension decreased by one half and lateral rotation to the right decreased by one half and that to the left by one third.
Lateral flexion to the right was decreased by one half and that to the left by one third. She had tenderness of the trapezius muscles, more marked on the right today, where there was spasm. Her brachial plexus stretch test was positive and her cervical foraminal compression test was positive. She had tenderness of the mid and upper cervical facet joints, more marked on the right and of the lower cervical spinous processes, including the vertebra prominens. There was tenderness of the supraclavicular brachial plexuses.
There was no neurological deficit of either upper limb. Her reflexes were brisk and
symmetrical. There was no objective sensory loss. Thenar power and intrinsic power was grade five. Grip strength on the right was grade five out of five, and on the left grade four plus out of five (she is right handed). There was no wasting of either upper extremity.
There was stiffness of the thoracic spine with trunk rotation to the right decreased by one third, and that to the left by one quarter. She experienced pain in the right scapular region extending down the right ribs. There was grating of the scapular on trunk movement and right shoulder elevation and tenderness of the erector spinae muscles with spasm more marked on the right. Extension was decreased by one half, forward flexion decreased by one third, and lateral flexion decreased by one third bilaterally. There was tenderness in the lower lumbar region but no spasm, and her straight leg raise was 70 degrees bilaterally. Her normal gait was slow and she had difficulty with toe and heel walking and difficulty arising from the chair due to right scapular and thoracic pain and difficulty using the steps when entering and leaving the consultation rooms.”
Under “Summary of injuries and diagnoses” the AMS wrote:
“In summary during the course of her work duties, as a Revenue Officer doing
sustained IT work with her neck in a fixed position while watching the computer
screen and data entry at pace, as well as doing spread sheets, developed neck and
upper back pain despite ergonomic changes to her workplace, including a new chair
and she has been shown to have C5/6 and C6/7 disc lesions in her neck. At one stage
she was reported to have a radiculopathy on the left but there are no features of
radiculopathy today.
Her diagnoses are:
1.Neck strain injury with post traumatic stiffness with radicular complaint with right sided occipito-parietal migraine like headaches, with shoulder brachalgia with trapezial muscle pain and spasm on the right.
2.Thoracic back strain injury with post traumatic stiffness with dysmetria on trunk rotation with pain extending into the inter-scapular area with erector spinae muscle spasm more marked on the right and pain radiating from the inter-scapular area to her right lower ribs.
3. Impaction of her neck and back on her activities of daily living, including foot care.”

Under “Reasons for Assessment”, the AMS wrote:
“That for the cervical spine is DRE II, 5% whole person impairment where there was post traumatic stiffness with dysmetria, less one tenth, giving 5% WPI.
That for the thoracic spine is DRE II plus impaction on ADL’s giving 8% whole person impairment. There was no pre-existing condition in the thoracic spine.

In making that assessment I have taken account of the following matters:-
The examination findings of post traumatic stiffness with radicular complaint with transient C6/7 radiculopathy on the left with C5/6 and C6/7 disc lesions and aggravation of cervical spondylosis which is ongoing and radicular complaint with right sided occipito-parietal migraine like headaches.
In the thoracic spine there was post traumatic stiffness with dysmetria on trunk rotation and tenderness of the paraspinal muscles in the interscapular region more marked on the right and trapezial muscle pain extending over the scapular region and pain radiating down the region of the lower ribs on the right and the history of increasing back pain after prolonged sitting, doing data entry and spread sheets, and impaction on activities of daily living, including housework, gardening and personal care such as doing her toenails.”

In commenting on other medical opinions, the AMS wrote:
“In his IME report of December 22, 2016 Dr Sikander Khan noted the claimant had been reviewed by Dr Diane Robinson, Sports Physician on April 7, 2016 and did not think the claimant would be fit to do any duties involving prolonged sitting or standing for more than 10 minutes and would not be able to lift, and he also noted the report of Dr timothy Steele (sic), Neurosurgeon on March 31, 2016 who recommended a C5/6 anterior cervical discectomy and fusion but at that point, the claimant did not wish to have surgical intervention, and he also mentioned the report of Dr Ralph Mobbs, Neurosurgeon dated March 23, 2016 who felt the claimant would benefit from operative intervention at C5/6 and C6/7 levels based on her bone scan findings. Dr Khan however, felt that the claimant required review with a multi-disciplinary Pain Management Clinic for ongoing conservative management and that the claimant had a limited standing, walking and lifting tolerance and that there was an Injury Management Assessment which concluded that the claimant would be disabled permanently to engage in work for which she was reasonably fitted by education, training and experience.
In his later report of October 30, 2018, Dr Sikander Khan did an impairment assessment for the cervical spine of DRE III but since that time her radiculopathy has resolved and she is now DRE II, 5% whole person impairment.
With regard to the thoracic spine, Dr Khan noted the claimant had chronic pain in the thoracic region with thoracic rib dysfunction with asymmetric restriction of movement without evidence of radiculopathy and assessed DRE Category II for the thoracic spine. I concur with that assessment. He also found there was no pre-existing condition with which I also concur but he did not allow for impaction on activities of daily living, including foot care which I have included in my assessment today of 3% WPI for ADL’s including home duties, gardening and foot care.
Dr Ralph Mobbs in his report of March 23 2016 viewed the MRI scan and felt there Was a posterior annular tear at C6/7 with a subligamentous disc bulge and at C5/6 a posterior based annular tear and while he felt she would be suitable for operative intervention for the C5 and C6/7 discs, however, based more on her bone scan findings, thought she required review by a multi-disciplinary Pain Management Team.Dr Timothy Steel in his letter of July 10, 2015 felt that on MRI of May 8, 2015 there was a central 6cm disc protrusion distorting the cord, and narrowing the foramina with a small C5/6 disc protrusion and sought approval for a left C6/7 foraminal cortisone injection which has subsequently been performed and at later review on March 31 felt her symptoms had improved where she did not require surgical intervention.
Dr Diane Robinson, Sports Injury Physician in her report of September 15, 2015 noted the claimant had reduced range of motion of her cervical spine and pain in the left parathoracic region and requested the MRI of the cervical spine which showed disc protrusion on the left at C6/7 and at that stage, felt the claimant had significant radicular pain and referred her to Dr Steele (sic), Neurosurgeon.
In her further report of November 10, 2015 she noted the claimant had ceased doing spread sheet related work and had moved to more data entry based activities and was using a standing desk and rotating between standing and sitting which helped her do her work duties, and that the claimant was to move to physiotherapy to exercise physiology based strengthening program, and when she saw the claimant on April 7, 2016 she noted the claimant had been reviewed by Dr Ralph Mobbs, Dr Jacob Fairhall and Dr Tim Steel, and recommended the ADEPT pain management program at Royal North Shore Hospital and felt at that stage the claimant was not fit for her usual duties and on later review on December 3, 2019 Dr Robinson recommended therapeutic massage and psychological counselling and cognitive behavioural therapy to give her some strategies to deal with anxiety and stress, and on March 28, 2017 she noted the claimant had been unable to access the ADEPT pain management program and had joined the ‘Regain’ program run by Prince of Wales Hospital where she did an 8 week program and was taking Cymbalta as an anti-depressant and Paracetamol based medication and Mobic as required and Sandomigrain (sic) for her migraine like headaches and not for her neck pain. She was having no hands on therapy but was given some stretching exercises over a ball, and noted she was not working as her workplace had no ongoing suitable duties. She noted that the physio prescribed basic exercises to help with cervico-throracic (sic) and scapula-thoracic strengthening.
In her IME report, Dr Robinson noted the claimant was dealing with someoverwhelming bio-psycho social issues within her family and was suffering from chronic neck pain, and headaches and stiffness and pain in the mid thoracic spine as well as low back pain and was having difficulty with tasks such as washing her hair, putting on her shoes and socks and doing her household duties such as vacuuming, washing, sweeping, and was unable to dust, wash up, cook or fold clothes and had difficulty with prolonged sitting and standing at there was persisting spasm of the left trapezius muscle and restricted motion of her cervical spine as well as poor deep thoracic stabilisers (thoracic control). Her final diagnoses were; Resolved C5/6 disc prolapse and osteophytosis which had caused foraminal impingement and compression of the left C6 nerve root and a resolved C6/7 disc prolapse causing compression of the thecal sac and distortion of the cord and general global loss of deep truncal stabilisers particularly with thoracic spine dysfunction. This is consistent with the claimant’s presentation, where her radiculopathy had resolved and she still had pain in the right rib cage and in the scapular region.
Dr Alan Home, Occupational Physician in his IME report of August 6, 2019 concluded the impairment assessment of the cervical spine was DRE II, with which I concur and that there were no objective clinical signs of residual cervical radiculopathy with which I agree. He felt the thoracic spine was DRE I, however, based on her presentation today, the thoracic spine is DRE II, with impaction on activities of daily living. There was quite significant inter-scapular pain with tenderness of the right paravertebral musculature extending to the scapular region and to the ribs with stiffness of the thoracic segment, particularly on trunk rotation.”
The appellant submitted that the AMS lacked the expertise to examine patients for mechanical/functional disabilities such as SIJ dysfunction and rib ring dysfunction and the incorrectly diagnosed her cervical spine injury, especially in relation to her left sided complaints. The appellant alleged that the AMS did not carry out a thorough clinical examination and made various factual errors in the MAC.
The appellant argued that the only conclusion that can be reached is that (a) MAC contains sufficient inaccuracies, such that there are demonstrable errors in the MAC and (b) the AMS used incorrect criteria in assessing WPI due to his incomplete clinical examination of the appellant.
The Appeal Panel reviewed the evidence in this matter.
The appellant was referred to the AMS for assessment of the cervical spine and thoracic spine only. References to psychological issues or the lumbar spine were in general not relevant to the assessment of WPI in this case. The AMS carried out a very thorough review of the medical reports relied on by the parties in this matter.

The Appeal Panel accepted that there were a number of errors or inaccuracies in the MAC. The AMS referred to the date of injury on page 1 of the MAC and in Table 2 as being June 28, 2019 (deemed) due to nature and conditions of employment from 2003 to November 2, 2018 yet under “Workers Details” on page 1 of the MAC recorded the date of injury as “June 28, 2009 (deemed) due to nature and conditions of employment from 2003 to November 2, 2018”.
The AMS reported a history of driving under “Present symptoms” on page 2 of the MAC recording “She reports her neck pain disturbs her sleep and impacts on her ability to drive, reverse park, change lanes and check her blind spots.” This history was clearly incorrect as a number of other medical reports which referred to the fact that the appellant did not drive. Dr Home, in a report dated 6 August 2019, noted that the appellant stated that she had never driven a motor vehicle. Dr Khan, in a report dated 30 October 2018, noted that the appellant was unbale to drive.
The AMS stated that the appellant had “difficulty with tasks at home such as heavy cleaning and is assisted by her husband”. On page 7 of the MAC, the AMS referred to Dr Robinson’s IME report and her report that the appellant “was unable to dust, wash up, cook or fold clothes”. However, in the report dated 29 October 2018 to the appellant’s then solicitors, Buttar Caldwell & Co, Dr Robinson in fact noted that the appellant was unable to perform house duties such as ‘vacuuming, washing or sweeping’ but was able to ‘dust, wash up, cook and fold clothes’. The Appeal Panel accepts that the AMS did not correctly report what Dr Robinson had written in relation to ADLs.
There was a reference in the MAC on page 7 to a review with Dr Robinson on 3 December 2019. The AMS wrote:
“In her further report of November 10, 2015 she noted the claimant had ceased doing spread sheet related work and had moved to more data entry based activities and was using a standing desk and rotating between standing and sitting which helped her do her work duties, and that the claimant was to move to physiotherapy to exercise physiology based strengthening program, and when she saw the claimant on April 7, 2016 she noted the claimant had been reviewed by Dr Ralph Mobbs, Dr Jacob Fairhall and Dr Tim Steel, and recommended the ADEPT pain management program at Royal North Shore Hospital and felt at that stage the claimant was not fit for her usual duties and on later review on December 3, 2019 Dr Robinson recommended therapeutic massage and psychological counselling and cognitive behavioural therapy to give her some strategies to deal with anxiety and stress, and on March 28, 2017 she noted the claimant had been unable to access the ADEPT pain management program and had joined the ‘Regain’program run by Prince of Wales Hospital where she did an 8 week program and was taking Cymbalta as an anti-depressant and Paracetamol based medication and Mobic as required and Sandomigrain (sic) for her migraine like headaches and not for her neck pain.”
The Appeal Panel was satisfied that Dr Robinson reviewed the appellant on 10 November 2015, 7 April 2016 (not 17 April 2016), 13 September 2016 and then on 28 March 2017. There was no reference in any of the reports filed in this matter to a review with Dr Robinson on 3 December 2019 and it appears that the AMS had made an error when recording some of the dates of the reviews carried out by Dr Robinson.
The Appeal Panel accepted that there were a number of demonstrable errors in the MAC.
The Appeal Panel considered that re-examination was necessary as there was insufficient information on which to make a determination, particularly in relation to the assessment of the cervical spine.
As noted above, Dr Margaret Gibson re-examined the appellant on 11 March 2021.
Dr Gibson provided the following report:

1. The worker's medical history, where it differs from previous records.

Ms Lykos denied any prior history of musculoskeletal problems. There was no history of any prior work injuries. There was no history of any prior motor accidents. There was no relevant medical or surgical issues.

2. Additional history since the original medical assessment certificate was performed.

In relation to the subject work injury, she said at the time she was employed as a revenue officer with South Sydney Council. She was working between 8.30am and 4.45pm five days per week. She said she had returned from leave and found that her chair had been replaced. It was not long afterwards that she noticed some strain in her neck and discomfort over her left trapezius region. She said but she “didn’t think much of it” at the time, but her symptoms then progressed over the next few days. She alerted her supervisor that there was “something going on.” She said an assessment was undertaken by the HR department of her ergonomic setup and she advised that she had “an uneven seat pad” and furthermore that her whole ergonomic setup was “unsatisfactory.”

Sometime later she was referred to the in-house doctor at IMMEX in Green Square, came under treatment with their physiotherapist. She was told that she had a musculoligamentous strain. Unfortunately, following physiotherapy treatment “nothing was improving” and she was “getting worse.” She said her supervisor was also objecting to her attending physiotherapy during working hours. She said as she had finally become frustrated with her progress and so she told the treaters that she was “feeling a bit better.” She said this was in order to visit her own doctor. She was subsequently referred to various specialists including neurosurgeons Dr Ralph Mobbs and Dr Tim Steel. She had visited Dr Ian Sutton, a neurologist.

She had begun to visit Dr Robinson, a sports physician. My understating was this was in 2013. Dr Robinson eventually diagnosed “rib ring dysfunction.”

ADDITIONAL HISTORY SINCE THE ORIGINAL MEDICAL ASSESSMENT CERTIFICATE WAS PERFORMED

Ms Lykos remains under the care of her general practitioner. She visits Dr Robinson, and her last visit was in February 2021. She said Dr Robinson doesn’t prescribe any medication, but recommends physiotherapy measures, and at last assessment was suggesting she try Pilates.

She also visits Dr Yu, pain physician, last visit February 2021. She said at the recent visit he had increased her dose of Norflex and also another of her pain medications.

Ms Lykos is also under the care of psychologist, Dr Williamson, but because of Covid has been having telephone consults.

She visits physiotherapist Kate McLeod, before Covid every few weeks, understating is only just recently been able to resume a steady regime of therapy due to Covid.

Her current medications include Cymbalta, Norflex, Celebrex and Sandomigran at night. She would take Prodeine, Nuromol and paracetamol as required. She also takes Nexium, and various other over the counter medications and vitamins.

She described her current symptoms pertaining to her cervical spine. She said that, since the injury she has “always got problems with my neck.” She said “all my neck is involved,” more on the left side but more on the right side today. There is shooting, stabbing, burning pain spreading from her neck into her head. The pain has now been spreading into both her eyes. She added that she feels like there is “no circulation in the back of my head.” She said that even if she is using a mobile phone for more a few minutes the pain becomes increasingly severe and she develops “debilitating headaches”. Therefore she “avoids trying to look down at all.” She said her arms “kill me” and there is “nerve pain running down my arms.” On attempted clarification, she described a “deep” pain. There was also tingling in her fingers, but both hands and all of her fingers are involved. On clarification, she confirmed the distribution was “like a glove.” She said if she lifts her arm her circulation “cuts out” and the arms feel numb.

In relation to the thoracic spine, she said she had “pinched nerves” affecting her whole back and she said that is why the physiotherapist was performing some needling treatment. There is constant midline thoracic pain but in addition the pain is felt “everywhere” in her upper back although she feels her “pinched nerve” was more into the right side.

In relation to her home circumstances, I confirmed that she has never had a driving licence. When asked why this was so, she said she “just never did.” At home she does some light housework including folding clothes and light dusting. She said she dresses herself most of the time but does so seated in a chair. She said if she has a “tight” top her husband helps her put it on. She said her husband washes her feet in the shower. She said she can wash her own hair but feels as she is doing so that she has to hold or stablise her head. She prepares light meals including tuna sandwich, boiled egg and some meals in the microwave.

3. Findings on clinical examination.

Ms Lykos was seen alone due to Covid restrictions. Unfortunately, due to the wrong phone number being supplied, pre-examination phone history-taking was not possible, so unfortunately the history had to be taken on the day. At the start of the assessment Ms Lykos was reminded as to the body regions that the Commission had referred for assessment, being her cervical and thoracic spine. She expressed her dissatisfaction that only these two regions were to be assessed.

When Ms Lykos entered the examination room, she was holding her left hand to her left lower loin and left sacroiliac joint, and this was the situation through most of the examination. Movements were generally slow. She refused to climb onto the examination couch because this was “too hard for me.” When I approached her in order to palpate the painful areas, she warned “very careful please.” She was wearing a loose-fitting top but, when asked she said that she was unable to remove this. She also said she was unable to remove her shoes and she couldn’t put them back on. When I explained it would be difficult to do her lower limb reflexes with her shoes on, she said “You can do it with the shoes on, can’t you?”.

When asked how the original assessor was able to examine her, she said that she “gets my days” and “I go up and I go down.” When asked whether she would prefer to reschedule the appointment to a day when she was feeling better, she said she didn’t want to come back.

On examination of the cervical spine, virtually no pressure could be or was applied, only very light palpation was possible. Forward flexion and extension were to 5% of normal range. Rotation was 50% normal to the right but only 5% of normal to the left. Lateral rotation was negligible bilaterally. There was no muscle spasm or guarding evident with movements, but this was not surprising given the negligible range demonstrated.

On examination of the thoracic spine, spinal movements in flexion and extension were to 5% of normal range. When asked to bend sideways (lateral flexion), she said “no” because it “causes me pain.” She said it “feels stiff” so it was not possible to test this plane of movement at all. Rotation was only a few degrees to the right and zero degrees to the left. There was no muscle spasm or guarding evident with movements, but this was not surprising given the negligible range demonstrated.

Circumferential measurements of the upper limbs: 29 cm bilaterally upper arms and 25 cm forearm, 24 cm forearm on the left.

Testing of upper limb power was marked by minimal effort but no dermatomal loss was identified. Upper limb reflexes were present and normal bilaterally. There was no dermatomal sensory loss.

When asked about specific symptoms in her lower limbs, she said it is “not usually my legs.” Given there was no referral for the lumbar spine, and she refused to get onto the couch, sciatic stretch testing was not performed.
4. Results of any additional investigations to original medical assessment certificate.

There were no additional investigations.

5. Clinical findings and reason for %

Cervical spine DRE II, 5% whole person impairment where there was dysmetria.

Thoracic spine DRE II plus impaction on ADLs, including self- care giving 8% whole person impairment.

Total impairment 13%.”

The Appeal Panel has adopted the report and findings of Dr Gibson. The Appeal Panel agreed with the assessment made by Dr Gibson in this matter.
The Appeal Panel has rated the appellant as DRE Cervical Category II and made an assessment of 5% WPI of the cervical spine. The Appeal Panel has rated the appellant as DRE Thoracic Category II and added 3% for ADLs resulting in 8% WPI of the thoracic spine This results in a total impairment of 13% WPI as a result of the injury deemed to have occurred on 28 June 2019.
In summary, the assessment of total WPI by the Panel was the same as that made by the AMS. In those circumstances the Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).

For these reasons, the Appeal Panel has determined that the MAC issued on 10 March 2020 should be confirmed.

Carolyn Rimmer
Member

Dr Margaret Gibson
Medical Assessor

Dr John Brian Stephenson
Medical Assessor

19 March 2021