Lynch v D & J Mikkelsen Pty Ltd
[2022] NSWPICMP 18
•11 February 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lynch v D & J Mikkelsen Pty Ltd [2022] NSWPICMP 18 |
| APPELLANT: | Steven Denis Lynch |
| RESPONDENT: | D & J Mikkelsen Pty Ltd |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Margaret Gibson Dr Roger Pillemer |
DATE OF DECISION: | 11 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker sustained injury to lumbar spine and left lower extremity; Approved Medical Specialist (AMS) assessed 8% whole person impairment for the lumbar spine and deducted one fifth for pre-existing condition; on examination AMS found loss of asymmetry of reflexes, positive nerve root tension and muscle wasting; failure to provide reasons as to why the criteria found on clinical examination did not satisfy the requirements for radiculopathy as set out in clause 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 was a demonstrable error; Held – Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 July 2021 Steven Denis Lynch (the appellant) made an application to appeal against a medical assessment (the appeal) to the Personal Injury Commission (the Commission). The medical assessment was made by Dr Drew Dixon, Medical Assessor (the MA) and issued on 25 June 2021.
The respondent to the appeal is D & J Mikkelsen Pty Ltd.
The appellant relies on the following grounds of appeal under s 327(3) of the Workers Compensation and Injury Management Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In these proceedings, the appellant is claiming lump sum compensation in respect of an injury to the lumbar spine and left lower extremity as a result of the injury on 12 October 2017.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated 3 June 2021, the matter was referred to the MA, Dr Drew Dixon, for assessment of whole person impairment (WPI) of the lumbar spine and left lower extremity as a result of the injury on 12 October 2017.
The MA examined the appellant on 17June 2021. He assessed 8% WPI of the lumbar spine and deducted 1/10th pursuant to s 323 of the 1998 Act for pre-existing injury, condition or abnormality. The MA assessed 4% WPI for the left lower extremity. Therefore, the total assessment was 11% WPI in respect of the injury on 12 October 2017.
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 requested that he be re-examined by a MA, who is a member of the Appeal Panel. The respondent disputed the appellant's request for a re-examination and submitted the appeal could be heard “on the papers”.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the appellant worker to undergo a further medical examination because there was insufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Roger Pillemer of the Appeal Panel conducted an examination of the appellant on 7 February 2022 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificates given by the MA 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 included the following:
(a) Ground 1: the MA made a finding that there was no radiculopathy. The task of the MA was to first establish whether one or more of the three major criteria in Paragraph 4.27 of the Guidelines were satisfied and, in this case, MA found loss or asymmetry of reflexes. The MA was then required to consider the other criteria in paragraph 4.27 and he found both positive nerve root tension and muscle wasting. The MA clearly found two or more criteria to confirm radiculopathy.
(b) Dr Gregory Burrow in his report of 12 October 2017 found clinical evidence of persisting radiculopathy as per paragraph 4.27 of the Guidelines specifically by way of reproducible impairment of sensation that was anatomically localised to an appropriate spinal nerve root distribution combined with imaging study consistent with the clinical signs. Dr Burrow therefore found impairment regarding the lumbar spine for DRE Lumbar Category III, 10% WPI (radiculopathy on examination), as well as impact of ADL.
(c) The MA assessed DRE II (no radiculopathy) acknowledging non-verifiable radicular complaints. However, in his physical examination the MA described 'straight leg raise ... and right thigh sciatica', an asymmetric depressed right knee jerk, combined with wasting of the right leg below the knee, and 'his sciatic nerve root stretch test was positive on the right'. That is, the MA found as per paragraph 4.27 of the Guidelines, loss of asymmetry of reflexes, positive nerve root tension and muscle wasting-atrophy. The MA found two or more of the criteria to confirm radiculopathy;
(d) Despite these positive findings consistent with radiculopathy as per the Guidelines paragraph 4.27 definition and criteria, the MA assessed impairment for radicular-type pain.
(e) Given MA’s physical findings, there is inconsistency between the physical findings consistent with radiculopathy and the eventual conclusion of there being no radiculopathy.
(f) Ground 2: the MA has a statutory obligation to provide reasons pursuant to s 325 of the 1998 Act (El Masri v Woolworths Ltd [2014] NSWSC 1344). The failure to give reasons, where the MA finds three of the criteria for radiculopathy, then opined there was no radiculopathy and did not show his path of reasoning, was a demonstrable error.
(g) The MAC should be revoked and a finding based on the MA’s findings on physical examination of DRE III should be combined with the left lower extremity impairment.
The respondent’s submissions include the following:
(a) There was no evidence the examination by the MA was in any way materially defective. The MA’s examination amounted to a proper medical examination.
(b) Radiculopathy is defined in paragraph 4.27 of the Guidelines. Without referring to the full definition, it is usually defined as a significant alteration in the function of a nerve root or nerve roots and is usually caused by pressure on one or several nerve roots. There are three major and three minor criteria in defining radiculopathy. To satisfy the definition, the appellant must have at least two criteria, one of which must be a major criterion.
(c) In relation to the criteria for rating impairment due to lumbar spine injuries, Table 15- 3 of the AMA5 confirms that in order to be classed in DRE Lumbar Category Ill there needs to be significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, loss of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side of the same location.
(d) The appellant relied upon the medical assessment from Dr Gregory Burrow, who reported during his examination of the lumbar spine that the appellant had normal alignment in the coronal and plains with some paraspinal guard but no spasm. Lumbar movements were symmetrically reduced by about one third with straight leg raising producing back pain but no true sciatica.
(e) Dr Burrow took a history of the appellant reporting altered sensation to the dorsum of the right foot but particularly over the lateral aspect of his thigh although Dr Burrow noted no wasting of the quads or calf musculature on either side. There was no radicular pattern weakness and the reflexes at the knee and ankle were present and symmetrical. Dr Burrow based his assessment that radiculopathy was present due to reproducible impairment of sensation that is anatomically localised to the dorsum of the right foot.
(f) The respondent relied upon a medical assessment from Dr Richard Powell, who noted following his examination that the appellant was sensitive to palpation at the posterior bony elements of the lumbosacral spine and midline L4/5 however there was no paraspinal muscle tenderness or spasm. Dr Powell further recorded that the neurological examination of the lower limbs revealed normal tone and power. Dr Powell noted the appellant had reduced sensation to light touch below the knee on the right side in a nondermatomal distribution. Deep tendon reflexes were present, equal and symmetrical.
(g) Dr Powell concluded the appellant sustained a musculoligamentous injury of the lumbar spine and aggravation of some underlying spondylitic change at L4/5. Examination revealed mild tenderness and restricted range of motion, with no definitive features of radiculopathy.
(h) Following his examination, the MA noted the appellant:
"had stiffness of the lumbar segment with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm and pain on back extension, which was decreased by one half, lateral flexion to the left was decreased by one quarter and that to the right by one third. He had tenderness adjacent to the Jumbo-sacral facet joints and mild tenderness in the midline at the L5 level. Straight leg raise on the left was 60 degrees and on the right 50 degrees associated with low back pain and right thigh sciatica. His knee jerk was depressed on the right and brisk on the left and his ankle jerks were present. There were no objective sensory losses. There was 1 cm of wasting of his right leg below the knee and 1 cm of his left thigh. Power was grade five out five. His sciatic nerve root stretch test was positive on the right."
(i) In relation to the appellant's appeal ground:
(i)whilst the MA may have observed asymmetry of movement in the lumbar spine, on examination of the lower limbs, the MA found no asymmetry of reflexes as required by the Guidelines;
(ii)neither Dr Burrow nor Dr Powell recorded loss of asymmetry of reflexes during their examinations, nor did they report any positive nerve root tension or muscle wasting as a result of the work injury;
(iii)the MA confirmed review of a number of scans, including an MRI of the lumbar spine dated 1 June 2018 which showed lumbar spondylitic changes with disc desiccation and L4/5 loss of disc height, a broad-based disc bulge and facet joint arthropathy. There was no suggestion in the MRI of any nerve root compression or pathology which could lead to significant signs of radiculopathy as required by Table 15-3 of the AMA5 Guides;
(iv)the appellant is left hand dominant. Any alleged atrophy or asymmetry in the right lower extremity is unrelated to the work injury and is likely to relate to the appellant's extremity dominance and/or issues relating to both knees;
(v)any alleged atrophy in the left lower extremity does not meet the criteria as wasting of the left thigh must be 2 cm or greater;
(vi)the MA was clear in his conclusion that the appellant did not suffer radiculopathy, diagnosing "back strain injury with post-traumatic stiffness with dysmetria, erector spinae muscle spasm and radicular complaint with right sciatica and depressed right knee jerk, but no radiculopathy";
(vii)the MA confirmed he agreed with Dr Powell that the appellant fell within DRE II for the lumbar spine. The MA commented that whilst
Dr Burrow noted there was sufficient criteria for radiculopathy, there appeared to be some improvement since Dr Burrow assessed the appellant, and(viii)following his clinical examination and review of the radiological evidence before him, the MA was clear in his conclusion that the appellant did not meet the criteria for radiculopathy.
(j) The respondent submits the appellant has failed to make out any demonstrable error in the MAC.
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 Vegan 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 section 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.
The MAC
Under “History Relating to the Injury”, the MA wrote:
“This 66 year old claimant was taking a hot water system down
the steps on a trolley and was below and in front, and the apprentice was behind.
The apprentice accidentally let go and the claimant was crushed by the 400 litre hot
water system while coming down the wooden steps of a pole home. He had been
acting as a brake while the apprentice slid the trolley down one step at a time and
after resting half way down the apprentice let go and the claimant fell down the
remaining stairs, landing on the right side, injuring his ribs and his knees, the hot
water tank and trolley falling on top of him, sustaining a lower back injury.
He was able to extricate himself out from under the hot water system and was taken
by ambulance to Gosford Hospital where after observation he was discharged
home. He saw his local doctor the following week complaining of ongoing pain in
his lower back and his right sided ribs and subsequent imaging showed four rib
fractures on the right and he returned to Gosford Hospital Emergency Department
for re-assessment. He then had physiotherapy. He required analgesia.
After two months he attempted to return to work but while trying to lift a vanity unit
from the floor, felt further pain in his left knee in December 2017 and was unable to
continue work and had further review with his local doctor and was referred for an
MRI which showed a lateral meniscal tear. He was referred to an orthopaedic
surgeon who recommended conservative management and he had further
physiotherapy treatment.
He was unable to return to work with his original employer and changed to another
firm, working in plumbing maintenance, a less physically demanding role, however,
most of the jobs are in the city or southern suburbs which means prolonged
driving from the Central Coast and he is reliant on an apprentice for heavy lifting
and carrying.”
Under “Findings on physical examination” the MA wrote:
“He walked with a limp on the left and had difficulty with toe and heel walking and pain in his left knee and lower back on squat testing.
He had stiffness of the lumbar segment with flexion decreased by one third with slow
and jerky recovery with erector spinae muscle spasm and pain on back extension,
which was decreased by one half, lateral flexion to the left was decreased by one
quarter and that to the right by one third. He had tenderness adjacent to the lumbosacral facet joints and mild tenderness in the mid line at the L5 level. Straight leg raise on the left was 60 degrees and on the right 50 degrees associated with low back pain and right thigh sciatica. His knee jerk was depressed on the right and brisk on the left. and his ankle jerks were present. There were no objective sensory losses.
There was 1cm of wasting of his right leg below the knee and 1cm of his left thigh.
Power was grade five out five. His sciatic nerve root stretch test was positive on the
right.
Range of motion of his left knee today was restricted by pain with flexion 0 through to
100 degrees. There was a mild effusion and there was popliteal fullness. There was
tenderness of the antero-lateral joint line with a positive McMurray’s sign. There was
no gross collateral instability and his anterior and posterior drawer signs were
negative. He did have difficulty arising from a squat position due to pain in his knee
and had difficulty getting on and off the examination couch due to his left knee and
lower back conditions. There was retro-patellar crepitus in the left knee which was
audible on squat testing and the measured range of motion, both sitting and on the
examination couch was 0 through to 100 degrees.
His right ribs were non tender today, but his chest expansion was restricted to 3cm out of 5 without pleuritic pain.”
Under “Summary of injuries and diagnoses” the MA wrote:
“This claimant had a major accident at work when he was leading a hot water system down the stairs on a trolley when the apprentice holding the trolley let go, and the claimant was crushed as he fell down the stairs with the hot water service landing on top of him with fractured right ribs 7 to 10 and a low back strain injury and contusion to both knees. While the right knee settled, he had ongoing pain in his left knee.
His diagnoses are:
1. Healed fractured right ribs, 7, 8, 9, and 10 with reduced respiratory excursion
without pleuritic pain.
2. Back strain injury with post traumatic stiffness with dysmetria, erector spinae
muscle spasm and radicular complaint with right sciatica and depressed right
knee jerk, but no radiculopathy.
3. Internal derangement of his left knee with a tear of the lateral meniscus and
lateral collateral ligament strain and post traumatic stiffness.
4. Impaction of his injuries on his activities of daily living.”
Under “Reasons for Assessment” the MA wrote:
“That for the lumbar spine where he has had a severe low back injury with post
traumatic lumbar stiffness with dysmetria, and radicular complaint with right thigh
sciatica, without concurrent disc protrusion is from Table 15-3, AMV V, DRE II, with
impaction on activities of daily living, including foot care, 8% whole person impairment, less one tenth for pre-existing lumbar L4/5 facet arthrosis, giving 7% whole person impairment.
That for the stiffness of his left knee where he is unable to actively flex the knee
beyond 100 degrees is from Table 17-10, 4% whole person impairment.
This gives a total from the Combined Values Chart of 11% whole person impairment.
He has reached maximum medical improvement.
There was no symptomatic pre-existing conditions in left knee.
In making that assessment I have taken account of the following matters:-
The examination findings of lumbar stiffness with dysmetria, erector spinae muscle
spasm and radicular complaint with right thigh sciatica and post traumatic stiffness of the left knee and the investigation findings showing internal derangement of the left knee with a lateral meniscus tear, and the matters of history of the severe nature of the accident when he fell down several steps with a water tank landing on top of him with such severity that he had fractured ribs on the right, a marked low back strain injury and internal derangement of his left knee.”
The MA, in commenting on the other medical opinions wrote:
“Dr Richard Powell in his IME report dated March 15, 2021 has found DRE II for the lumbar spine with impaction on activities of daily living with which I agree, giving 7% whole person impairment.
…
In the report of Dr Gregg Burrow, of December 8, 2020 he noted there was sufficient
criteria for radiculopathy. There appears to have been some improvement since he
assessed the claimant. The radicular complaint remains with the right sciatica.”
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Assessment of radiculopathy
In accordance with paragraph 4.18 of the Guidelines,
“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips.”
The Guidelines at paragraph 4.27 provide:
“Radiculopathy is the impairment caused by malfunction of a 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):
•Loss of asymmetry of reflexes;
•muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
•reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution;
•positive nerve root tension (AMA5 Box 15-1, p 382);
•muscle wasting - atrophy (AMA5 Box 15-1, p 382);
•findings of an imaging study consistent with the clinical signs (AMA5, p 382).”
The Guidelines at paragraph 4.28 provide:
“Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
The appellant submitted that given MA’s physical findings, there was inconsistency between the physical findings consistent with radiculopathy and the eventual conclusion of there being no radiculopathy. Further, the appellant argued that the MA failed to give reasons, after he found three of the criteria for radiculopathy, as to why he then opined that there was no radiculopathy.
The MA in his finding on examination found that the appellant’s knee jerk was depressed on the right side (a major criterion), that there was reduced straight leg raising on the right side compared to the left, that is, positive nerve root tension as well as noting that there was some wasting of the right calf.
The Appeal Panel concluded that the MA in his examination found one major criterion and two other criteria as set out in paragraph 4.27 of the Guidelines, which, in general, would be sufficient to conclude that radiculopathy was present. The MA failed to give reasons as to why, having made those findings on examination, he did not conclude that radiculopathy was present and assess the appellant as DRE lumbar spine III. The failure to give adequate reasons for concluding that radiculopathy was not present after the making the examination findings referred to above was a demonstrable error.
The Appeal Panel concluded that it was necessary for the appellant worker to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Dr Roger Pillemer re-examined the appellant on 7 February 2022.
Dr Pillemer provided the following report:“1. The workers medical history, where it differs from previous records
I read Mr Lynch the history taken by the Medical Assessor, Dr D Dixon (orthopaedic surgeon) on 17 June 2021 and he was basically in agreement with this although pointing out that he was 56 years old at the time and not 66 years old, and is now 57. The history of injury was confirmed noting that at the time he feels he injured his low back and had some fractured ribs on the right side.
I note in Dr Dixon’s report he indicates that Mr Lynch attempted to return to work after two months ‘…while trying to lift a vanity unit from the floor, felt further pain in his left knee in December 2017 and was unable to continue work…’. Mr Lynch however informs me that he injured his left knee at the time of the fall and has had ongoing problems since then.
As will be noted below, his right knee is now worrying him more than the left at the present time. He agreed with the rest of the history as given by the AMS.
2. Additional history since the original Medical Assessment Certificate was performed
As far as treatment is concerned, at the present time he is still taking Panadol and ‘herbal stuff’, and he did have some physiotherapy which he is not having at the present time. He is not having any further treatment.
Work History
Mr Lynch changed jobs and is now doing plumbing maintenance as a sub-contractor for the Department of Housing, and he has been doing this work for the past three years. He works eight hours a day, five days a week, and the work can be very heavy at times and when questioned how he felt he was able to do this, he simply explained that he has ‘no choice’. He says that at least once a week he will have to install a hot water system which would weigh over 100kg, and he would have to move this on a trolley. Previously he had an apprentice, which he has not had for 18 months, and he will have to get ‘the guy who delivers it to help me’.
His other main concern is with regard to both knees, the right knee worrying him at the present time, and he says if he gets down he has great difficulty getting up, and he even has difficulty getting up from the toilet when his knees are worrying him. Similarly, he has great difficulty dressing when his knees are worrying him.
On specific questioning with regard to his lumbar spine, he does get some referred pain down both lower limbs as far as his knees, and possibly also his calves, and he is aware of ‘numbness in both feet’. He feels this numbness has been present ever since his injury.
Back pain is described as ranging between 3-7/10, and aggravated by lifting or sitting for long, or getting out of a car or having to push and pull the trolley. He does get some relief by lying down.
His main concern at the present time is with his right knee and he feels this is a problem because he is placing more stress on the right side because of the problems with his left knee. In addition he showed me a photograph of his left knee taken in January of this year, and it shows the left knee to be very swollen and clinically today the left knee was not swollen but his right knee was very swollen.
General Health
Mr Lynch is a diabetic on tablets and he has slightly raised blood pressure but feels that he is otherwise well.
Activities of Daily Living
He has significant problems with walking mainly because of his knees and also with long distance driving, and he says his first job in the morning is a 100 kilometre drive and his back is always very stiff when he gets out of the car, and his knees certainly worry him.
He lives at home with his 26 year old son who does all the housework at this stage, and he says he manages with his self-care but this is ‘a struggle’, and he has particular difficulty putting on his pants and underwear when his knees are troubling him.
3. Findings on clinical examination
Mr Lynch is a strongly built adult male with a significant increase in his body mass index at the present time.
As suggested above his right knee was very swollen and he was walking with an antalgic gait on the right side today.
He showed significant restriction of back movement only getting his fingertips as far as his knees in flexion and lateral flexion to the left was more restricted than to the right.
Straight leg raising was present to 50° on the right and 70° on the left, but the right knee reflex is depressed compared to the left side. All other reflexes are present and equal and generally depressed, and motor power was good in all groups tested.
Importantly Mr Lynch has hypoaesthesia to pinprick, extending from below his knees going distally and involving both feet, with the sensation becoming increasingly marked as one moves distally.
There was no wasting to circumferential measurement.
Mr Lynch showed significant restriction of right knee movement today, from 15° to 70°, and as noted he has a large effusion present in his right knee.
On the left side the knee range was from 5° to 80° and there was no effusion present. The knees themselves are stable.
Mr Lynch complains of discomfort to palpation in the lower lumbar region.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Lynch has not had any further investigations carried out.”
The Appeal Panel has adopted the report and findings of Dr Pillemer.
The Appeal Panel noted that the MA in his examination on 17 June 2021 did suggest that the right knee jerk was depressed and brisk on the left side, and this was confirmed in the examination on 7 February 2022 by Dr Pillemer. The MA had also noted significant restriction of straight leg raising being more on the right than the left, and this was also confirmed in
Dr Pillemer’s examination.Dr Pillemer noted that the appellant had generalised hypoaesthesia to pinprick below the knees in a typical peripheral neuropathy distribution, and more likely than not due to his diabetes.
The Appeal Panel considered from Dr Pillemer’s examination that the appellant had features in keeping with nerve root involvement (that is, radiculopathy), as evidenced by the depressed knee reflex on the right side (major criterion), and the positive nerve root tension (minor criterion).
The Appeal Panel concluded that the appellant fell into DRE Category III of the lumbar spine, with 10% WPI and an additional 1% should be added for interference with activities of daily living noting that he is working full time as a plumber often doing heavy lifting and working eight hours a day, five days a week.
While the MA made a one-tenth deduction for pre-existing condition, but there was no history of any previous problems with his lumbar spine prior to his injury in October 2017, and the Appeal Panel did not consider that there was any basis for a deduction for pre-existing condition particularly given the appellant’s work history.
The Appeal Panel noted that there was an assessment of 4% made in respect of the left lower extremity. Therefore, the total percentage of WPI assessed is 15% as a result of the injury on 12 October 2017.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 June 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Drew Dixon and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 12/10/17 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 11% | nil | 11% |
| Left lower extremity | 12/10/17 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 4% | nil | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Carolyn Rimmer
Member
Dr Margaret Gibson
Medical Assessor
Dr Roger Pillemer
Medical Assessor
11 February 2022
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