Mudford v Pdf Food Services Pty Ltd
[2021] NSWPICMP 54
•19 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mudford v PDF Food Services Pty Ltd [2021] NSWPICMP 54 |
| APPELLANT: | Peter Mudford |
| RESPONDENT: | PDF Food Services Pty Ltd |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Tommasino Mastroianni Dr Roger Pillemer |
| DATE OF DECISION: | 19 April 2021 |
CATCHWORDS: | WORKERS COMPENSATION- AMS assessed 12% WPI for the lumbar spine and deducted one-fifth for pre-existing condition; on examination AMS found muscle wasting and loss of sensation referrable to L5/S1 dermatome but made no reference to paragraph 27 of chapter 5 of the Guidelines; Held- failure to provide reasons as to why the two criteria found on clinical examination did not satisfy the requirements for radiculopathy as set out in clause 4.27 was a demonstrable error; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 March 2021 Peter Mudford (the appellant) 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 11 February 2021.
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):
· 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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In these proceedings, Mr Mudford is claiming weekly benefits, medical expenses and lump sum compensation in respect of an injury to his back on 14 April 2017 while he was employed as a deliver driver by the respondent.
In a Certificate of Determination dated 20 October 2020, Arbitrator Perrignon made orders including the following:
“1. Grant leave to amend the Application to Resolve a Dispute by substituting the following allegation of injury: the applicant injured his lumbar spine on 20 or 21 April 2017, when delivering a carton of bottled water to the Wauchope Show.
2. Findings as follows.
a. On 20 or 21 April 2017, the applicant injured his lumbar spine in the course of his
employment by herniating the disc at L5/S1 while delivering a carton of bottled
water to the Wauchope Show.
b. The applicant’s employment was a substantial contributing factor to his injury.
3. The matter is remitted to the Registrar for referral to an approved medical specialist to assess, by an in-person assessment, whole person impairment (lumbar spine) as a result of injury on 20 or 21 April 2017.”In the Amended Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 15 January 2021, the matter was referred to the AMS, Dr Tim Anderson, for assessment of whole person impairment (WPI) of the lumbar spine as a result of the injury on 20 or 21 April 2017.
The AMS examined Mr Mudford on 2 February 2021. The AMS assessed 12% WPI of the lumbar spine, and deducted one fifth pursuant to s 323 of the 1998 Act for pre-existing injury, condition or abnormality. Therefore, the total assessment was 10% WPI in respect of the injury on 20 or 21 April 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 Mr Mudford be re-examined by a Medical Assessor, who is a member of the Appeal Panel.
Neither party requested that they be given an opportunity to make oral submissions to the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence by way of medical reports and clinical investigations in relation to assessment of the lumbar spine on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) The AMS has fallen into demonstrable error by not allowing an extra 3% for the continuing effects of injury after surgery, namely, radiculopathy in the right leg.
(b) The AMS failed to add 3% for the continuing effects of radiculopathy after surgery as allowed by part 4 paragraph 27 of the Guidelines.
(c) On page 10 of the MAC when commenting on Dr Bodel's finding of radiculopathy present after the discectomy at L5/S1 the AMS stated “I could not identify this". Earlier in his MAC the AMS noted “pain radiates down the right leg" (see page 2 under Present Symptoms) and on page 5 of the MAC under the heading "Summary of Injuries and Diagnoses" the AMS noted "Muscle wasting in the right leg and irritable features of LS and S1 nerve roots".
(d) Paragraph 27 of chapter 4 of the Guidelines clearly states that muscle wasting (or atrophy) is a sign of radiculopathy as is a loss of sensation that is referrable to the L5/S1 dermatome as was found (page 4 of the MAC under the heading "Findings on Examination: Lower Limbs". Clearly two symptoms of radiculopathy as required by Paragraph 27 of the Guidelines were found by the AMS on examination. There was a demonstrable error in not finding radiculopathy present after the operation.
(e) The MAC should be amended by the Appeal Panel to include an extra 3% WPI for continuing effects of radiculopathy in the right leg after surgery.
The respondent’s submissions include the following:
(a) The appeal is opposed on the basis that the AMS specifically dealt with his findings in his assessment and based on those findings his assessment was correct.
(b) The AMS specifically dealt with the issue of persisting radiculopathy at page 5 of the MAC in the first paragraph when he noted there was muscle wasting and some irritable features suggesting irritation of the L5 and S1 nerve roots. The AMS was of the view that these features were not sufficient to confirm a diagnosis of continuing radiculopathy.
(c) Additionally, at page 6 of the MAC, the AMS noted: “Specialist Orthopaedic Surgeon, Dr James Bodel in his report of 10/12/18 has similar baseline findings although identifies radiculopathy for which there is a further 3%. I was unable to fully identify this phenomenon.”
(d) The appellant submitted that as he had muscle wasting and loss of sensation down his right leg the AMS had found two signs of radiculopathy such that an allowance should be made. However, it was clear that the AMS was unable to reproduce such symptoms on examination and made it clear that the symptoms found were not sufficient to make the finding.
(e) Paragraph 4.27 of the Guidelines requires at least two or more of the criteria to be met, and at least one of the criteria needs to be major. Major Criteria are listed as follows: loss of asymmetry of reflexes; muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution. None of these criteria were found by the AMS and accordingly the assessment should be confirmed at 10% WPI.
(f) The appeal should be dismissed and the findings of the AMS confirmed.
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 erring in his assessment of radiculopathy.
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.
Medical Assessment Certificate
Under “Present symptoms” the AMS wrote:
“Low back pain which waxes and wanes, depending on what he is doing. There is also pain which radiates down either leg, also depending on what he is doing. Earlier on this was mostly down the left side. Now it is predominantly on the right. His quality of life has been badly affected, particularly with his job, his recreational interests and also his interacting with his children.”
Under “Findings on physical examination” the AMS wrote:
“Mr Mudford was a tall, powerful, well-muscled young man although was heading towards being overweight. He was not in obvious discomfort. With his current height of 1.8m and weight of 103.75kg, he currently has a body mass index of 32. This is significantly overweight. The upper level of healthy BMI is 25. In order to achieve this, he should be no more than 81kg.
He was not in obvious discomfort.
Back. There was a well-healed mid-line surgical scar in the low lumbar spine. There was a complaint of associated ache and mild to moderate localised tenderness. The spinal curvatures were normal. There was no scoliosis or muscle spasm. On forward flexion he could only reach his mid-thighs with a McRae-Wright movement of 2cm. This is very stiff. 5cm is the lower limit of normal. Extension was very restricted with an obvious “catching” sensation as he tried this manoeuvre. Lateral flexion to each side was reduced to half the range. Lateral rotation to each side was a little greater at two-thirds of the range.
Lower Limbs. He walked normally. He could also walk on heel and toe and was able to carry out a full squat and rise again.
The legs were equivalent in length. The right thigh was 3cm less in circumference than the left. The right calf was 1cm less. Straight leg raising was to 70° bilaterally, each with a negative sciatic stretch sign. He was also able to fully extend each knee without difficulty.
There were no significant features identified with the hips, knees or ankles.
Sensation to pinprick was slightly reduced over the dorsum and the lateral side of the right foot and ankle. This suggests involvement of the L5 and S1 nerve roots on that side. Elsewhere sensation was throughout the normal distribution. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.”
Under “Summary of injuries and diagnoses”, the AMS wrote:
“Mr Mudford gives a history of hurting his lower back in mid-April 2017 in a relatively
innocent event. On this occasion he had dropped a small bottle of water and was doing nothing more adventurous than bending down to pick it up. As he did so, he experienced severe pain in his lower back. There is a significant pre-existing history of low back dysfunction which started somewhere around 2012 or 2013. This affected the L5/S1 articulation.This more recent event was managed by a posterior approach with a discectomy. This has given him a reasonable result. At this assessment, he continues to have residual features down the right leg. This includes muscle wasting which has not yet been rebuilt and some irritable features suggesting irritation of the L5 and S1 nerve roots. These features, however are not sufficient to confirm a diagnosis of continuing radiculopathy.”
Under “Reasons for Assessment”, the AMS wrote:
“There has been surgery to the lumbar spine although there has not been any fusion. This places Mr Mudford into DRE Lumbar Category III in Table 15-03 on Page 384 of AMA 5. This provides a whole person impairment ranging between 10% and 13%, depending on his activities of daily living. For this he would attract a further 2%, since he is unable to continue with his extensive recreational activities and also needs assistance often from his mother to assist with housework and also to cut the grass.
Although there are continuing clinical features identified in the right leg, these are not sufficient to diagnose continuing radiculopathy.”
Assessment of radiculopathy
The appellant submitted that the AMS made a demonstrable error in not allowing an extra 3% for the continuing effects of injury after surgery, namely, radiculopathy in the right leg.
Clause 4.27 of the Guidelines provides:
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria in bold):
§loss or asymmetry of reflexes
§muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
§reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
§positive nerve root tension (AMA5 Box 15-1, p 382)
§muscle wasting – atrophy (AMA5 Box 15-1, p 382)
§findings on an imaging study consistent with the clinical signs (AMA5 p 382)”.
Further, at clause 4.28 the Guidelines provide that 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.
Dr Bodel, in his report dated 10 December 2018, made the following findings on examination:
“He reaches forward in flexion with his hands to the knees and there is backache at this point and also on extension and he has a reduced range of lateral bending to both sides. Straight-leg raising is 70 on the left hand side and there are positive nerve root tension signs on the left but not the right. There is wasting of the right calf which was the initial most severe leg and there is no residual sign of sensory loss in a dermatomal distribution in the right lower extremity but there is some weakness of plantar flexion on the right. There is also weakness on the left hand side but the reflexes are present and equal. There are mild signs of radiculopathy with the wasting of the right calf and the weakness of plantar flexion.”
In a further report dated 10 December 2018, Dr Bodel made an assessment of WPI and wrote:
“There are mild persisting signs of radiculopathy, particularly in the right leg but also to a lesser extent in the left leg and these attract a 3% loading from Table 4.2 on Page 29 of the 4th Edition of the WorkCover Guidelines, giving a 15% Whole Person Impairment overall”.
Dr Hyde Page in his report dated 5 February 2019 noted:
“He had reasonably full rotation and tilt to the right and left, and he was only very stiff with any flexion. There appeared to be muscle guarding. There was no wasting of his right calf compared to the left, where the circumferences were normal. He also had normal circumference of his right thigh equal to the left.
While lying on the examination couch he had normal straight leg raise. There was no neurological changes in his lower limbs but normal power and sensation. He did have a decreased right medial hamstring reflex, but otherwise all his reflexes were normal.
Overall today's examination indicates ongoing pain and stiffness in his lumbar spine.
He has no radiculopathy overall. His major ongoing problem is in his lower back.”
Dr Hyde Page concluded that the appellant no longer had any radiculopathy.
The Appeal Panel noted that the AMS made clinical findings in the MAC which were consistent with a diagnosis of radiculopathy, namely: (i) “Right thigh 3cm less in circumference than the left. Right calf was 1cm less”, and (ii) Sensation to pinprick was slightly reduced over the dorsum and lateral side of the right foot and ankle. This suggests involvement of L5 and S1 nerve roots on that side.”
The AMS, therefore, found one major sign of radiculopathy, namely, sensory impairment and one minor sign, namely, muscle wasting.
The AMS, however, did not refer to clause 4.27 of the Guidelines and provide reasons as to why the two criteria that he found on clinical examination did not satisfy the requirements for radiculopathy as set out in clause 4.27. The failure to provide reasons after making the findings on examination in respect of two signs of radiculopathy, in the view of the Appeal Panel, was a demonstrable error.
The Appeal Panel reviewed the evidence in this matter.
The Appeal Panel was satisfied that the clinical findings on examination by the AMS were sufficient to make a diagnosis of radiculopathy. The Appeal Panel noted that the muscle wasting found by the AMS was significant with the right thigh being 3cm less in circumference than the left and the right calf being 1cm less that the left. Although the AMS stated that there was muscle wasting “which has not been rebuilt”, the AMS stated that the appellant’s condition had stabilised. The surgery to the appellant’s lumbar spine was carried out in July 2017 and the two and a half year period since that surgery was sufficient time for the appellant to reach maximum medical improvement. The Appeal Panel, therefore, considered that the wasting was permanent for the purpose of assessing impairment.
The Appeal Panel was satisfied that the clinical findings of the AMS also demonstrated that there was impaired sensation in the appropriate spinal nerve distribution. Sensation to pinprick was slightly reduced over the dorsum and lateral side of the right foot and ankle which indicated involvement of L5 and S1 nerve roots on that side.
The Appeal Panel therefore made an assessment of 3% for radiculopathy which resulted in an assessment of 15% WPI for the lumbar spine. The Appeal Panel then made a deduction of one fifth for pre-existing injury, condition or abnormality. This resulted in a total assessment of 12 % WPI in respect of the injury to the lumbar spine on 20 or 21 April 2017.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 February 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 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) |
| 1.Lumbar spine | 20-21/04/17 | Chap 4 P24 | P384 T15-03 | 15 | 1/5 | 12% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
Carolyn Rimmer
Member
Dr Tommasino Mastroianni
Medical Assessor
Dr Roger Pillemer
Medical Assessor
16 April 2021
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