Mahfouz v Farhat

DETERMINATION OF APPEAL PANEL
CITATION:	Mahfouz v Farhat [2022] NSWPICMP 337
APPELLANT:	Moussa Mahfouz
RESPONDENT:	Kassem Farhat
Appeal Panel:	Member Catherine McDonald Medical Assessor John Garvey Medical Assessor Ross Mellick
DATE OF DECISION:	23 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - Taxi driver suffered injury to back and neck in a motor vehicle accident; following surgery he suffered erectile dysfunction and incontinence; Medical Assessor (MA) did not deal with question of whether he suffered cauda equina syndrome referred to in reports in file and did not consider paragraph 4.6 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 1 March 2021; re-examination; Held — MA’s assessment of digestive tract impairment did not take account of histology report of gastroscopy; assessment of upper extremity impairment where inconsistency on examination; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 May 2022 Moussa Mahfouz lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 April 2022.
Mr Mahfouz relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out - being that the Medical Assessor made a demonstrable error. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 those guidelines.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

In 1997 Mr Mahfouz underwent a laminectomy as a result of a work injury with a previous employer. After that surgery, he worked part time as a warehouse manager before becoming a taxi driver, working for Mr Farhat.
Mr Mahfouz was injured in a motor vehicle accident on 25 February 2014 when a taxi in front of his stopped without warning. He suffered an injury to his back and neck. He continued to work after the injury but his condition deteriorated and in 2015 he was referred to Dr Pell who undertook another laminectomy on 16 September 2015. Soon after that operation, Mr Mahfouz began to experience pain and numbness in his left leg. In December 2015 he underwent an epidural injection at L4/5.
Mr Mahfouz continues to suffer pain in his cervical, thoracic and lumbar spines and in his left shoulder and legs. He suffers urinary and faecal incontinence and erectile dysfunction. He continues to take pain relief medication which has resulted in an accepted consequential condition in his upper digestive tract.
The Medical Assessor assessed 15% whole person impairment (WPI), comprised of 5% in respect of the cervical spine and 11% in respect of the lumbar spine. In respect of the lumbar spine he allowed a deduction of one-tenth under s 323 of the 1998 Act. He did not assess any permanent impairment in respect of the thoracic spine, left shoulder, upper digestive tract or scarring.
In summary, Mr Mahfouz appeals on the basis that the Medical Assessor failed to assess loss of sexual function and bowel function as part of his assessment of the lumbar spine, that he failed to properly assess upper extremity impairment and impairment of the digestive tract.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that Mr Mahfouz should undergo a further medical examination. Based on the wording of the referral, the Medical Assessor assumed that he was not required to make any assessment in respect of incontinence or sexual dysfunction. The record of his neurological examination was not adequate to determine the issues on the appeal.
Dr Mellick conducted an examination of the worker on 3 August 2022 and reported to the Appeal Panel. His report is attached to these reasons.

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 unless the evidence was not available before the medical assessment and could not reasonably have been obtained before that medical assessment.
Mr Mahfouz filed an Application to Admit Late Documents on 11 July 2022, seeking to admit:
(a) MRI scan report dated 21 June 2022, and
(b) a report of Dr Guirgis dated 7 July 2022.
The reasons given for relying on those documents was that they showed a deterioration of the injury.
Mr Farhat’s insurer opposed the admission of the documents on the basis that the material could have been obtained before the medical assessment. The insurer said Dr Guirgis’ report was irrelevant to the appeal because Mr Mahfouz did not take issue with the assessment of the lumbar spine and did not rely on the ground of appeal in s 327(3)(a). It said that the admission of the reports would prejudice it because it had not had the opportunity to respond.
In reply, Mr Mahfouz said that the MRI scan was relevant as part of a series of MRI scans. The report of Dr Guirgis was only relevant to show when the MRI scan report became available to him.
We have determined that the report of the MRI scan should be received on the appeal but that the report of Dr Guirgis should not. Dr Guirgis’ report does not provide any additional information and his opinion that Mr Mahfouz’s lumbar spine condition has deteriorated is not relevant to the grounds of appeal we are required to consider.
The file provided to us shows that Mr Mahfouz remains under treatment. The preliminary review document that we issued asked Mr Mahfouz to take any recent scans to the examination by Dr Mellick. The report of the MRI scan is a document which falls within our direction.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out 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.
In summary and in submissions prepared by Mr Jobson of counsel, Mr Mahfouz submitted that the Medical Assessor failed to assess loss of sexual function and bowel dysfunction in accordance with paragraph 4.6 of the Guidelines, noting that Drs Korbel and Tidmarsh had provided a causal link between those symptoms and the spine injury.
Mr Jobson said that the Medical Assessor erred in saying that there were no clinical findings associated with gastro-intestinal dysfunction, noting a series of references in the notes of Mr Mahfouz’s general practitioner and treating specialists. He said that the Medical Assessor was in error in failing to assess any impairment resulting from Mr Mahfouz’s left shoulder because of his opinion that the limitation could not be measured due to pain behaviour. He said that the Medical Assessor should have referred to the reports of Dr Guirgis, noting paragraphs 1.36, 2.2 and 2.3 of the Guidelines.
In reply and in submissions prepared by its solicitor, Ms Israil, Mr Farhat’s insurer submitted that Mr Mahfouz’s submissions with respect to sexual and bowel dysfunction merely cavilled with the Medical Assessor’s clinical findings, in that he did not find a cauda equina lesion. The insurer accepted, however, that it was open to the Medical Assessor to assess sexual dysfunction or incontinence if he found there was a cauda equina injury.
The insurer said that the Medical Assessor was required to form his own opinion and that his failure to refer to reports with respect to the upper digestive tract was not an error. The insurer said that the Medical Assessor had appropriately assessed Mr Mahfouz’s upper extremity function.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.

Lumbar spine

The referral required the Medical Assessor to assess Mr Mahfouz’s lumbar spine. In taking a history he said:
“One of the major issues following this event was increasing lower back pain. Many years beforehand he had been under the care of Specialist Neuro-surgeon, Dr Noel Dan who had carried out a lumbar laminectomy in 1997. Mr Mahfouz saw him again. At that stage Dr Dan was not operating and referred him on to Specialist Neuro-surgeon, Dr Malcolm Pell. Further investigations were taken and it was determined that the most appropriate way of managing this condition was with a further laminectomy. This went ahead in September 2015, apparently on the ‘public list’.
Later Mr Mahfouz had an epidural [sic - block]. He seemed to relate this to the subsequent development of urinary and faecal incontinence.
Later his lower back condition was assessed by Specialist Neuro-surgeon, Dr Mark Davies. It was recommended that lower back surgery should not go ahead.
His subsequent clinical management has remained conservative.”
Mr Mahfouz described his present symptoms and the Medical Assessor noted:
“He has lower back pain radiating down both legs. The left side is more severe than the right.
…
Although not associated with this particular referral, he also drew attention to his continuing incontinence condition.”
In describing the examination, the Medical Assessor said:
“Lumbar Spine. The spinal pain continued on throughout the lumbar spine, again with minimal movement. The spinal curvatures remained normal. There was no scoliosis or muscle spasm.
The mid-line surgical scar which would be consistent for the surgical approach for both surgical procedures in 1997 and then again in September 2015 had healed well and was uncomplicated.
And
Lower Limbs. He walked reasonably normally, although cautiously. He was able to stand on his heels and toes but could not effectively walk on them. He was unable to squat.
The legs were equivalent in length. The right thigh and calf were each 1cm less in circumference than on the left.
No significant features were identified in the hips, knees or ankles.
Sensation was reduced on the left side in a patchy distribution. I was unable to convincingly demonstrate either a central or peripheral neurological relationship. Reflexes were present and equivalent, brisk and easy to demonstrate at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent. The straight leg raise assessment was conducted sitting on the edge of the couch. He could fully extend the right knee but had some difficulty fully extending the left knee.”
When assessing permanent impairment the Medical Assessor said:
“Lumbar spine. There has been pre-existing pathology. There has also been more recent surgery, although no fusion. This places Mr Mahfouz into DRE Lumbar Category III in AMA 5, Table 15-03, Page 384. This provides a whole person impairment ranging between 10% and 13%, depending on the activities of daily living. For this he would attract a further 2%. This would therefore give him a whole person impairment of 12%.”
The referral asked the Medical Assessor to assess Mr Mahfouz’s lumbar spine. He was required to use Chapter 15 of AMA 5 as modified by the Guidelines. Paragraph 4.4 of the Guidelines reminded the Medical Assessor:
“The assessment should include a comprehensive, accurate history, a review of all pertinent records available at the assessment, a comprehensive description of the individual’s current symptoms and their relationship to activities of daily living (ADL); a careful and thorough physical examination; and all findings of relevant laboratory, imaging, diagnostic and ancillary tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The assessor should record whether diagnostic tests and radiographs were seen or whether they relied solely on reports.”
The requirement to review all pertinent records and imaging would have alerted the Medical Assessor to the diagnoses of a cauda equina lesion in the file and the need to consider whether he agreed with that diagnosis. Instead, the Medical Assessor assumed that the incontinence which Mr Mahfouz experiences was not part of the referral. The material in the file, and paragraph 4.6 of the Guidelines, should have caused him to consider if the incontinence was the result of a cauda equina lesion and to conduct the appropriate examination. The assumption that he was not required to assess Mr Mahfouz in respect of his complaints of incontinence led the Medical Assessor to conduct an inadequate neurological examination.
Paragraph 4.6 of the Guidelines provides:
“If a person has spinal cord or cauda equina damage, including bowel, bladder and/or sexual dysfunction, he or she is assessed according to the method described in AMA 5 Section 15.7 and AMA 5 Table 15.6 (a)–(g) (pp 395–98).”
Paragraph 4.22 and 4.23 of the Guidelines provide:
“The cauda equina syndrome is defined in Box 15.1 in Chapter 15 of AMA5 (p 383) as ‘manifested by bowel or bladder dysfunction, saddle anaesthesia and variable loss of motor and sensory function in the lower limbs’. For a cauda equina syndrome to be present there must be bilateral neurological signs in the lower limbs and sacral region. Additionally, there must be a radiological study which demonstrates a lesion in the spinal canal, causing a mass effect on the cauda equina with compression of multiple nerve roots. The mass effect would be expected to be large and significant. A lumbar MRI scan is the diagnostic investigation of choice for this condition. A cauda equina syndrome may occasionally complicate lumbar spine surgery when a mass lesion will not be present in the spinal canal on radiological examination.
The cauda equina syndrome and neurogenic bladder disorder are to be assessed by the method prescribed in the spine chapter of AMA5 Section 15.7 (pp 395–98). For an assessment of neurological impairment of bowel or bladder, there must be objective evidence of spinal cord or cauda equina injury.”

Medical history

Mr Mahfouz relied on the opinion of Dr Guirgis who said in his report dated 20 May 2020 that Mr Mahfouz developed symptoms of pseudo cauda equina syndrome. Dr Guirgis assessed incontinence and sexual dysfunction in accordance with paragraph 4.6 but did not combine the results with his assessment of lumbar spine impairment.
The question of whether Mr Mahfouz suffers cauda equina syndrome or partial cauda equina syndrome is raised by many of the experts in the file. Mr Mahfouz has consistently said that the incontinence symptoms were first suffered after the second laminectomy in 2016. He has undergone significant treatment and investigation, including with respect to a metallic foreign body.
Mr Mahfouz’s endocrinologist, Dr Tidmarsh, said in June 2016 that Mr Mahfouz complained of erectile dysfunction which appeared to have occurred very soon after the 2015 surgery. Dr Tidmarsh did not believe that the dysfunction was related to diabetes.
Associate Professor Sved, urologist, saw Mr Mahfouz for erectile dysfunction and mild lower urinary tract symptoms in February 2016. He also obtained the history that the symptoms had become more manifest after the 2015 surgery. In 2018 A/Prof Sved noted that urinary incontinence can occur after spinal surgery but that patients with diabetes were also at risk of suffering irritative voiding symptoms.
Mr Mahfouz underwent investigation for faecal incontinence by Dr Das in 2016. On 1 December 2016 Dr Das reported that a colonoscopy was normal and considered that the problems were likely related to the spinal surgery because he also had sensory loss in the perineal region.
On 7 November 2017 Dr Brimage, neurologist, reviewed Mr Mahfouz and reviewed his imaging, noting that it showed a metal artefact which occupied a significant volume of the spinal column at L5/S1. He said:
“My concern is that the cauda equina extends from the conus, past this potential obstruction, into the sacrum and then gives rise (via the sacral roots) to the pudendal nerve which controls continence and its branch, the perineal nerve, subserving sensation of the penis. More information about the equina would be derived from a myelogram, which I can arrange. I will discuss this option with him. Multiple surgeries plus the mystery object may have resulted in fibrosis involve the equina which may be responsible for his symptoms. Whether or not anything can be done about that will depend on what the myelogram shows.”
Mr Mahfouz underwent a lumbar myelogram on 18 January 2018 which was reported on by Dr Bigg-Wither. The radiologist noted that there was underfilling of the intrapedicular portion of the left L5 nerve root sleeve which may relate to post-operative epidural scarring but he did not observe left L5 or left S1 nerve root compression. Dr Brimage reported to Dr Pell on 2 February 2018. He said that he was asked “to exclude cauda equina syndrome” and he said that the myelogram did not show significant compression of involvement of the cauda equina. He said that in his practice he saw patients who had the symptoms of which
Mr Mahfouz complained without involvement of the cauda equina and that, in anatomical terms, their symptoms were unexplained.
On 12 March 2018 Dr Pell did not consider that there was compression or involvement of the cauda equina based on myelogram findings in 2018.
Mr Mahfouz was admitted to Bankstown Hospital under the care of Dr Patapanian between 29 July 2018 and 9 August 2018 because of an “acute exacerbation of chronic complex back pain”. The discharge summary noted that Mr Mahfouz reported marked neurological abnormalities after the second laminectomy. Dr Patapanian reported to Mr Mahfouz’s general practitioner on 28 August 2018 and said:
“There is some metallic artefact at the L 4/5 level that causes problems with imaging and Peter Brimage had previously organised lumbar myelography with CT which does show some distortion of the left L5 nerve root, possibly consistent with arachnoiditis and some up-to-date CT scanning and MRI scanning to show foraminal stenosis at the left lumbosacral level and possible postsurgical scarring in the lateral recess. I have supported Malcolm Pell's advice that he should undertake a left lumbosacral level peri neural steroid block and perhaps, if this fails we should consider targeted epidural-therapy at this level as well”.

Dr Brimage referred Mr Mahfouz to A/Prof Davies, neurosurgeon, on 14 September 2018. On 25 February 2019 A/Prof Davies doubted whether any further treatment would improve sphincter dysfunction, perineal numbness and erectile difficulties. He ordered a further MRI scan which was undertaken on 16 March 2019. It showed a suspected moderately large disc extrusion compressing the left L5 nerve root, partially obscured by hardware from a left L5 pedicle screw. After reviewing that scan, A/Prof Davies said that he was unclear about the cause of radicular leg pain and recommended another CT lumbar myelogram to determine if there was compression of the L5 nerve root as a result of a posterolateral L4/5 disc lesion. An alternative explanation was that the leg pain arose from arachnoidal scarring or arachnoiditis, which was not amenable to surgery.
Mr Mahfouz underwent a CT lumbar myelogram on 8 April 2019 at the request of
A/Prof Davies. In a report dated 28 April 2019, A/Prof Davies said that he did not see evidence of a mechanical cause for his pain which was amenable to surgery. He recommended pain management treatment.
That summary shows that the focus of those treating Mr Mahfouz was to determine if there was a surgical solution to the dysfunction he suffered.
Dr Korbel, urologist, saw Mr Mahfouz at the request of his solicitor on 19 May 2021. He said that the symptoms described were consistent with partial cauda equina syndrome and noted that they had arisen immediately after surgery in 2015.
Dr Truskett saw Mr Mahfouz at the request of Mr Farhat’s insurer. He did not consider that there were convincing signs of a cauda equina lesion because there was global reduction of right buttock sensation. On that basis Dr Truskett said that the symptoms of erectile dysfunction and incontinence could not be related to a cauda equina lesion secondary to the back injury.

Consideration

Mr Jobson’s submissions oversimplify the issues to be determined. However, the numerous references to a possible cauda equina syndrome in the medical evidence in the file coupled with the history Mr Mahfouz provided about the onset of incontinence symptoms should have alerted the Medical Assessor to undertake a more detailed neurological examination than evidenced by the results set out in the MAC.
Dr Mellick conducted the appropriate examination and we adopt his findings and the explanation for them. He observed bilateral neurological signs in the lower limbs and sacral region. While there is no mass lesion shown on radiology, the case falls into the exception in the last sentence of paragraph 4.22. The appropriate assessment with respect to Mr Mahfouz’s lumbar spine was 27% WPI.

Upper digestive tract

The parties agreed that Mr Mahfouz suffers a consequential condition in his upper digestive tract as a result of the ingestion of medication.
The Medical Assessor noted the results of a gastroscopy dated 14 October 2020 which he said did not identify significant features. He noted that Mr Mahfouz described reflux oesophagitis. When summarising his diagnoses, the Medical Assessor said:
“He has taken some oral medication to try to control his overall condition and as a result, complains of gastro-intestinal features as well, although there were no specific clinical findings associated with gastro-intestinal dysfunction.”
When explaining why he assessed 0% WPI in respect of the digestive system the Medical Assessor said:
“It is understandable that he could have experienced some localised gastritis due to the use of oral medication. Nevertheless, this seems to be effectively counteracted by the use of proprietary medication. There is no loss of weight, nor is there any history of any other associated upper GIT dysfunction. There is also no alteration of activities of daily living with this claimed phenomenon. The condition is obviously extremely mild and therefore, 0% is allocated.”
The Medical Assessor noted that A/Prof Alrubiae, gastroenterologist, reported on 17 December 2020 that there were no significant features in the upper gastrointestinal tract.
The Guidelines provide in paragraph 16.9:
“Nonsteroidal anti-inflammatory agents, including Aspirin, taken for prolonged periods can cause symptoms in the upper digestive tract. In the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration a 0% WPI is to be assessed.”
The Medical Assessor referred to only one report from A/Prof Alrubiae – the last one - but there is a series of his reports in the file. The Medical Assessor did not refer to A/Prof Alrubiae’s report dated 5 November 2020 in which he described the results of the investigations he undertook. He said:
“I have arranged to investigate his symptoms though both gastroscopy and colonoscopy which showed no significant pathology in the oesophagus, stomach, proximal duodenum, colon and terminal ileum. The gastric biopsies showed non-specific gastritis while the duodenal biopsies were normal apart from lactase deficiency.
He has small internal haemorrhoids. The study showed no specific cause for Moussa's abdominal pain but he might have non-erosive reflux disease (NERD) which contributes to his epigastric pain.
He had also some evidence of food intolerance and it is hard to exclude the possibility of gastroparesis linked to his type 2 DM which is not well controlled (haemoglobin A1c 7.8.).”
A/Prof Alrubiae prescribed medication and “advised him on dietary measures in relation to reflux and lactose free diet”.
The histology did show reactive changes and chronic gastritis[2], so that there was objective evidence of upper digestive tract disease. The reference to reactive changes confirms that they are probably related to the ingestion of medication. The treatment Mr Mahfouz has undergone is more specific than the Medical Assessor stated and a change of diet was recommended, which impacted on his activities of daily living.
[2] Report dated 19 October 2020 – Application to Resolve a Dispute p 449, brief p 501.
It was appropriate to assess Mr Mahfouz in Class 1 under Table 6-3 of AMA 5, as amended by paragraph 16.9 of the Guidelines, for which the criteria are:
“Symptoms and signs of upper digestive tract disease, or anatomic loss or alteration and continuous treatment not required and maintains weight at desirable level or no sequelae after surgical procedures.”
The range of impairment applicable to Class 1 is 0 – 9% and we consider that an assessment of 2% is appropriate.
The Medical Assessor noted that Mr Mahfouz’s symptoms appeared controlled by proprietary medication. That treatment does not, of itself, prevent assessment in class 1 in the presence of the observed signs of upper digestive tract disease.
Our assessment is the same as that made by Dr Berry, who examined Mr Mahfouz at the request of his solicitors. Dr Truskett, who reported to Mr Farhat’s insurer, assessed 0% but he relied on A/Prof Alrubiae’s report dated 14 October 2020 prepared on the day of the gastroscopy and colonoscopy. Dr Truskett did not have regard to the subsequent report in which A/Prof Alrubiae set out the histology results from the biopsies taken on the day of the investigations.
Mr Jobson submitted that the Medical Assessor was required to take account of the complaints set out in the reports of other practitioners, including complaints in the handwritten clinical notes of Mr Mahfouz’s general practitioner. There is no error in the Medical Assessor failing to set out those complaints and they do not constitute clinical findings. While the Medical Assessor was required to consider the other evidence in the file, his role was not to adopt the findings made by the treating practitioners or to choose between them.[3] The important evidence to which the Medical Assessor should have had regard were the results of the biopsies and the treatment which A/Prof Alrubiae prescribed.
[3] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346.

Left upper extremity

The Medical Assessor described his examination of Mr Mahfouz’s upper limbs. He said:
“No significant features were identified with the elbows, wrists, hands or any of the digits. Although he described a loss of sensation in different fingers on both sides, I was unable to convincingly demonstrate either a peripheral or central neurological defect. Reflexes were present and equivalent at the elbows (C5 and 7) and at the wrists (C6). No significant features of carpal tunnel syndrome were identified.
He had the following (completely symmetrical) range of shoulder movements:…”
The results recorded show that the range of motion which the Medical Assessor set out was indeed symmetrical.
Under the heading consistency of presentation the Medical Assessor said:
“Most of Mr Mahfouz’s presentation was consistent, although this was unfortunately not the case with the examination of his upper limbs. When requested to carry out a particular movement, he would invariably fall short of the full excursion of movement when he obviously could manage considerably more. This was very obvious with the shoulders, which functioned completely symmetrically. Despite the claimed condition in his left shoulder, I can find no evidence of investigation of this complex either. Due to this lack of consistency with the upper limbs, the recorded measurements just cannot be used accurately for the assessment of whole person impairment.”
When explaining his calculations, the Medical Assessor said:
“Left Upper Extremity (Shoulder). As already described, it was particularly unfortunate that Mr Mahfouz had very obvious lack of effort during this part of the assessment and this gross restriction of elevation movement just cannot be taken as an accurate measurement for the assessment of whole person impairment.”
The Guidelines quote from AMA 5 at page 19 in paragraph 1.36:
“Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.”
Chapter 2 offers further guidance with respect to assessment of the range of motion of joints in the upper limb. Paragraph 2.5 includes:
“If the assessor is not satisfied that the results of a measurement are reliable, repeated testing may be helpful in this situation.
If there is inconsistency in ROM, then it should not be used as a valid parameter of impairment evaluation. Refer to paragraph 1.36 in the Introduction.
If ROM measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
Paragraph 2.20 provides:
“When calculating impairment for loss of range of movement, it is most important to always compare measurements of the relevant joint(s) in both extremities. If a contralateral ‘normal/uninjured’ joint has less than average mobility, the impairment value(s) corresponding to the uninvolved joint serves as a baseline and is subtracted from the calculated impairment for the involved joint. The rationale for this decision should be explained in the assessor’s report (see AMA5 Section 16.4c, p 543).”
Mr Jobson submitted that it was not open to the Medical Assessor to assess 0% and that he should refer to the other material in the file to assist him. He referred to a series of assessments made by Dr Guirgis between 2016 and 2020. Most of those reports do not refer to Mr Mahfouz’s left shoulder. In his report dated 16 April 2016, Dr Guirgis did set out the range of movement in Mr Mahfouz’s right shoulder though in his report dated 20 May 2020, he did not. The range of movement he observed was greater than that observed by the Medical Assessor. In respect of the left shoulder, the range of motion observed was identical in 2016 and 2020.
Though the referral to the Medical Assessor was made by consent, the aetiology of the left shoulder condition is difficult to identify. It is not mentioned in Mr Mahfouz’s statement which refers to pain between the shoulders. Dr Dan recorded shoulder pain as early as 1998.[4] In 2019, Dr Davies described right shoulder pain.[5]Dr Truskett recorded that the left shoulder condition had arisen about six weeks after the injury[6] and Dr Guirgis described it as post-traumatic symptoms and signs of impingement.[7]
[4] Report dated 6 March 1998.
[5] Report dated 25 February 2019.
[6] Report dated 25 October 2021.
[7] Report dated 20 May 2020.
Dr Truskett also observed a symmetrical range of motion in both shoulders and no impingement. He also observed inconsistency.
Despite those reports, the Medical Assessor was required to assess Mr Mahfouz’s left shoulder, which he did. He did what the Guidelines required of him. When he was unable to make an assessment, he explained his reasons for doing so. The equal measurements obtained in respect of the right shoulder justify his finding. The Guidelines required the Medical Assessor to modify his impairment rating. The words of the Guidelines do not prevent modification to 0%. The fact that an injury has been suffered does not necessarily mean that an impairment will result. Only Dr Guirgis made an assessment of permanent impairment in respect of Mr Mahfouz’s left shoulder and the Medical Assessor was not required to accept his assessment as Mr Jobson’s submissions appear to suggest.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 April 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W6391/21
Appellant:	Moussa MAHFOUZ
Respondent:	Kassem Farhat
Date of Determination:	3 August 2022
Examination Conducted By:	Dr Ross Mellick
Date of Examination:	3 August 2022

The workers medical history, where it differs from previous records
The MAC prepared by Dr Tim Anderson and dated 14 April 2022 included an assessment of 12% WPI for lumbar spine impairment, that being made up of 10% WPI for Grade III lumbar spine impairment with the addition of 2% because of impairment of activities of daily living.
The history provided on page 2 of the MAC made reference to symptoms of urinary and faecal incontinence and also briefly to incontinence in the list of present symptoms on page 3.
When one considers the physical examination recorded in the MAC, it is possible that objective signs of a cauda equina lesion relevant to the symptoms of incontinence might have been missed.
Additional history since the original Medical Assessment Certificate was performed
At the time of my assessment of Mr Mahfouz, I obtained additional history relating to incontinence and learned that there is impairment of bladder function associated with incontinence of urine. He is experiencing urgency of micturition associated with a sense of pressure in his lower abdomen. If he does not rush to the toilet, he reports incontinence occurs. The sensation he experiences in the lower abdomen is described to be different from normal sensation. He also reports that when passing urine, the sensation when the urine passes feels different from normal.
Mr Mahfouz also reports impairment of bowel function, such that he is unable to pass urine and faeces separately. When rushing to the toilet to micturate he also sometimes defaecates. His faeces are soft and on occasions he soils his clothes without having experienced a normal bowel sensation, indicating he needed to go to the toilet. He also does not feel the normal sensation of needing to open his bowels. He also does not feel coldness of water on his buttocks when washing himself after doing so.
I endeavoured to obtain history of sexual function. However, the details available and the time of onset were variable.
There has been no additional traumatic event or relevant medical problem since the MAC was prepared on 14 April 2022.
Mr Mahfouz reports that he has been living with his daughter for about four years and that he was divorced approximately 12 months ago.
Findings on clinical examination
On examination, Mr Mahfouz was alert and cooperative. There was no abnormality of the normal rhythm of gait or of accessory arm, leg or trunk movements.
He was unable to assume the seated position on the examination couch with hips flexed and knees extended but maintained his trunk in some degree of extension with support from his extended upper extremities because of back pain.
Straight leg raising was reduced on the left side to 30° and on the right to 60° because of back
pain.
I found no wasting of any muscle group in the lower extremities. Pain was induced when testing the power of hip flexion and hip extension bilaterally. On examining the distal lower extremities, I found weakness of ankle dorsiflexion on the left side.
There was loss of light touch and temperature appreciation involving the lower outer aspect of the left lower leg and the dorsum of the left foot. There was also impaired sensation involving the outer aspect of the right sole to light touch and temperature.
The knee jerks were bilaterally brisk and symmetrical. The right hamstring jerk was reduced. The left ankle jerk was absent and the right ankle jerk was also abnormal, reduced but present on reinforcement.
On sensory testing of the saddle area, there was decreased sensation to light touch and temperature bilaterally.
The bulbocavernosus reflex was present and intact. I detected no loss of scrotal or penile sensation to the superficial modalities.
Results of any additional investigations since the original Medical Assessment Certificate

MRI scans were performed of the lumbar spine on 7 June 2022. I have considered the radiological evidence in its entirety.

Opinion

The history provided by Mr Mahfouz and recorded above indicates impaired bladder and bowel sensation and function, which has occurred, according to history given, since the operation in 2015. The physical examination recorded above provides objective evidence of bilateral abnormalities involving the L5, S1 and S2 distribution.

The neurological evidence establishes a diagnosis of a cauda equina syndrome.

The PIC Guides, Paragraph 4.22 includes the following statement: “A cauda equina syndrome may occasionally complicate lumbar spine surgery when a mass lesion will not be present in the spinal canal on radiological examination.” The radiological evidence reveals degenerative disease, evidence of past surgery and no evidence of a mass lesion. A cauda equina lesion, however, may be present without a mass lesion.

The PIC injunction is in accord with clinical neurological experience and judgement. In that situation, any cauda equina lesion is likely to be consequential upon a fibrotic process secondary to surgery producing arachnoiditis with involvement of the cauda equina. Also, it is noted that this man had myelography in addition to surgery. Myelography may also contribute to arachnoiditis.

Paragraph 4.22 of the Guides also indicates that a diagnosis of a cauda equina lesion requires evidence of bilateral nerve root dysfunction.

Paragraph 4.27 of the Guides lists the requirements for radiculopathy. There is, in this instance, asymmetry of the ankle jerks and hamstring jerks with weakness of ankle dorsiflexion on the left side and sensory impairment in the saddle area, and also involving the left lower leg and dorsum of the foot and the outer aspect of the right sole.

With reference to Table 4.2 of the Guides and because of persistence Radiculopathy after lumbar surgery, 3% WPI needs to be combined.

Paragraph 4.26 of the Guides directs that with evidence of a cauda equina lesion and bilateral nerve root dysfunction, impairment ratings require reference to Table 15-6(d) of AMA5, neurologic impairment of the bladder, Class 1, (top of the range) 9% WPI.

With reference to Table 15-6(e), neurologic anorectal impairment, Class 1 (middle of the range); 10% WPI.

Using the Combined Tables and following the assessment in the MAC, with which I agree, Table 15-3 of AMA5, Category III with radiculopathy; 10% WPI plus 2% ADLs equals 12% WPI combined with the assessments above, 10%, 9% and 3% equates to 30% WPI. A 1/10^th deduction applies because of pre-existing surgery and degenerative disease, giving a total of 27% WPI.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W6391/21
Applicant:	Moussa Mahfouz
Respondent:	Kassem Farhat

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 Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Cervical spine	25.2.14	Chapter 4 p 24 - 30	Table 15-05, p 392	5%	0	5%
Thoracic spine	25.2.14	Chapter 4 p 24 - 30	Table 15-04, p 389	0	0	0
Lumbar spine	25.2.14	Chapter 4 p 24 - 30	Table 15-03, p 384	30	1/10^th	27
Left upper extremity (shoulder)	25.2.14	Chapter 2 p 10	Chapter 16	0	0	0
Digestive system (upper digestive tract)	25.2.14	Chapter 16, p 79	2	0	2
TEMSKI	24.2.14	Chapter 14	0	0	0
Total % WPI (the Combined Table values of all sub-totals)					32%

[2022] NSWPICMP 337

23 August 2022