Murphy v Wayne O'Neil Plumbers Pty Ltd
[2023] NSWPICMP 528
•23 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Murphy v Wayne O'Neil Plumbers Pty Ltd [2023] NSWPICMP 528 |
| APPELLANT: | Peter Murphy |
| RESPONDENT: | Wayne O’Neil Plumbers Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 23 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in failing to carry out testing in respect of all the specified criteria to establish the existence of radiculopathy; the MA conducted a thorough examination; no evidence of radiculopathy; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 August 2023 Peter Murphy (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Crocker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 10 July 2023.
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 assessment was made on the basis of incorrect criteria,
· 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).
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, on the grounds that a re-examination would allow an MA “to obtain evidence relevant to the assessment of the cervical spine” we do not understand precisely what “evidence” may be obtained.
Having carefully considered all of the evidence, we are satisfied that we have sufficient evidence before us to enable us to determine this appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant does not challenge the assessment in respect of the left shoulder, only that of the cervical spine, and submits that the MA erred in failing to carry out testing in respect of all the specified criteria to establish the existence of radiculopathy.
In reply, Wayne O’Neil Plumbers Pty Ltd (the respondent) submits that no errors were made.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the Cervical Spine and the Left Upper Extremity resulting from an injury on 6 August 2020.
The MA obtained the following history:
“Mr Murphy stated that on 6.8.20 he was a passenger with an apprentice driving through the afternoon in dry conditions. Whilst stationary when travelling through Newtown, the vehicle was reportedly struck from behind…. Mr Murphy reported that he was aware of pain to the left shoulder and left side of the neck following the accident.
He stated that he attended his usual medical practice on the subsequent day in Earlwood. Further review took place at the centre generally with Dr Evangelos Koumoulas, General Practitioner. Investigations were arranged. Mr Murphy was advised to take medication inclusive of Panadeine forte which was prescribed. He attended physiotherapy and subsequent hydrotherapy.
It is evident that he was referred to Dr Leonard Kuo, Consultant Orthopaedic Surgeon of Campsie. Conservative treatment was advised.
Mr Murphy stated that he underwent two corticosteroid injections into the region of the left shoulder with little apparent clinical benefit.
He indicated that he was off work for a few months. There was a return to ‘light duties’ with some reduction in work hours.
Mr Murphy was continuing to experience ongoing variable pain to the regions of the left shoulder girdle and cervical spine.
I have noted that a further specialist referral was arranged for him to attend Dr Jeffrey Petchell, Consultant Orthopaedic Surgeon of Newtown. The clinical presentation came to include that of adhesive capsulitis (‘frozen shoulder’). Further investigations were arranged.
Mr Murphy was also referred to Dr Trudi Richmond, Pain Consultant also of Newtown. Similar conservative approaches were advised with respect to treatment.”
After setting out details of Mr Murphy’s present treatment, the MA then noted present symptoms as follows:
“Mr Murphy reports little clinical change in recent months.
Specifically, he is experiencing constant variable pain to the region of the left shoulder girdle and points both anteriorly and posteriorly with respect to sites of maximal pain. Pain is evident from a mild to ‘strong’ degree.
He indicates that there is extension of pain to the left suprascapular region.
He continues to have limitation with active range of motion at the left shoulder girdle which he attributes to both pain and mechanical factors.
Mr Murphy continues to be troubled by ‘aching pain’ to the left posterolateral aspect of the neck with an associated feeling of ‘stiffness’.
Mr Murphy also has a subjective feeling of weakness affecting the left upper extremity. There is also an intermittent ‘tingling’ sensation to the fingers of the left hand…”
After noting details of Mr Murphy’s work history, general health and the impact of his injuries on his social activities and activities of daily living (ADL’s), the MA then set out details of his findings on examination as follows:
“Mr Murphy was a cooperative man in nil apparent physical distress while at rest…
Active range of motion of the cervical spine was approximately as follows: Left axial rotation half that of normal; right axial rotation one-third that of normal; left coronal rotation half that of normal; right coronal rotation one-third that of normal; anterior and posterior sagittal rotation two-thirds that of normal. Discomfort was reported to the left posterolateral region of the neck upon testing.
Tenderness was present with palpation overlying the mid to low posterior cervical spinous processes and the adjacent left paracervical musculature and extending to the left suprascapular region. Guarding was evident to these latter regions upon palpation.
Active range of motion was assessed on multiple occasions at both shoulder girdles with use of a goniometer…
Tenderness was reported with palpation of the left shoulder girdle both anteriorly and posteriorly inclusive of that overlying the bicipital groove. Tenderness extended to the left suprascapular region.
Nil crepitus was present with testing range of motion…
Motor and sensory systems examination within the upper limbs was non-contributory…”
The MA added: “Mr Murphy did not have with him any radiological investigations or reports at the time of the assessment. I have, however, had the opportunity of reviewing relevant radiological reports contained in the referral documentation.”
He summarised the injuries and diagnoses as follows:
“I have noted copies of multiple investigative reports pertaining to the left shoulder girdle. There has been reported those consistent with tendinopathy/degenerative change. There has been nil radiological evidence of a rotator cuff tear at the left shoulder.
It is considered that Mr Murphy suffered an aggravation of these pre-existing asymptomatic changes. It is also apparent that his clinical presentation came to include one of adhesive capsulitis (‘frozen shoulder’).
It is also considered that Mr Murphy has suffered an aggravation of pre-existing asymptomatic degenerative changes/spondylosis pertaining to the region of the cervical spine. There has been reported features consistent with small disc protrusions at the C4/5 and C6/7 levels. An MRI examination had also demonstrated changes consistent with likely bony trauma/bruising of the C6 vertebral body.
I do not consider that the clinical presentation is inclusive of a motor or sensory cervical radiculopathy.
Mr Murphy now has a chronic pain presentation referable to the above regions.”
The MA assessed a combined WPI of 14%, being 7% in respect of the cervical spine and 8% in respect of the left shoulder.
He explained his reasons for his assessment as follows:
“With respect to the region of the cervical spine, asymmetric limitation with active range of motion is evident coupled with paracervical muscular guarding on palpation. There is nil evidence of neurological dysfunction/radiculopathy. Taking these factors into account, a DRE Category II rating is determined, ie 5-8% WPI. When considering negative impacts upon activities of daily living, a 7% whole person impairment is determined…
A 14% upper extremity impairment is determined in relation to the left upper extremity which converts to an 8% whole person impairment.
When the above whole person impairments are combined, a final impairment of 14% is determined.”
The MA then turned to consider the other medical reports and said:
“I have noted the medical reports (18.1.23 x 2) prepared by Dr Eugene Gehr, Consultant Orthopaedic Surgeon of Sydney. The doctor has indicated a whole person impairment pertaining to the region of the left shoulder girdle of 16% and one of 18% with respect to the cervical spine. A final combined whole person impairment of 31% is documented. In this regard, Dr Gehr had considered that there was present a cervical radiculopathy at the time of his assessment. This was not the case with respect to my current examination. I had also found greater active range of motion in relation to the left shoulder girdle than had been the case for Dr Gehr.
I have also noted further medical and related documentation contained in the referral material.
I have also reviewed administrative and other related documentation contained therein. Multiple radiological reports have been reviewed.”
As indicated earlier, the appellant submits that the MA failed to carry out testing in respect of all the specified criteria to establish the existence of radiculopathy.
The appellant added:
(a) The MA failed to carry out testing for muscle weakness by testing grip strength as Dr Gehr. This was one of the bold criteria in clause 4.27. There is no mention of any test carried out to assess muscle weakness and there is no mention of any findings in respect of this criterion, which if found would, with another satisfied criterion set out in clause 4.27, result in a finding of radiculopathy.
(b) The MA also failed to test for dysaesthesia, which was another sign found by Dr Gehr on examination. Dysaesthesia is also one of the bold criteria in clause 4.27. Again, there is no mention of testing for dysaesthesia/impairment of sensation in the examination section of the MAC or anywhere else, and no mention of any findings in relation to this criterion.
(c) The MA’s finding of tenderness and guarding over the left paracervical/left suprascapular regions are consistent with the findings on examination by Dr Gehr.
(d) If the MA did test for muscle weakness and/or dysaesthesia (impairment of sensation), then he failed to provide reasons or expose his reasoning process.
(e) There is no explanation regarding either of these two criteria, which were critical in the finding by Dr Gehr of radiculopathy. Given this, it was incumbent on the MA to test for these criteria and record findings in respect of those criteria, or explain why he did not test for them and give reasons.
Clause 4.27 of the SIRA guidelines provides that:
“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, p382)
• Muscle wasting – atrophy (AMA5 Box 15-1, p 382)
• Findings on an imaging study consistent with clinical signs (AMA5, p 382).”
The appellant has based his submissions on the opinion of Dr Gehr.
The appellant submits:
“On examination of the cervical spine, Dr Gehr found the following:
(a) That Mr Murphy was tender over the lower part of the cervical spine;
(b) His axial compression was negative;
(c) His brachial plexus stretch test caused trapezial pain but no radicular pain;
(d) Forward flexion was reduced by 80%, extension to 0 degrees, left lateral flexion was reduced by 80%, and right lateral flexion 0 degrees, right lateral rotation was reduced by 80% and left lateral rotation was reduced by 50%;
(e) Guarding and dysmetria were present;
(f) Dysaesthesia at C7-8 on the left side;
(g) Deep tendon reflexes were brisk bilaterally;
(h) Handgrip strength was grade 4/5 on the left side and 5/5 on the right side; and
(i) His forearm circumference was 27 cm on the left and the right and his biceps circumference as 28cm on the left and the right.
Dr Gehr concluded that his findings demonstrated guarding, dysmetria, dysaesthesia on the left side and decreased motor power on the left side.
He diagnosed a cervical spine injury with guarding, dysmetria and left radiculopathy, which resulted in a finding of DRE III plus compromised activities of daily living.”
To begin with, the Panel notes that clause 1.6 of the Guidelines provides that “assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment.”
Dr Gehr saw the appellant in January 2023, and the MA on 26 June 2023, over six months later.
More importantly, as the respondent correctly points out:
“The fact that there is a difference of opinion between the Medical Assessor and Dr Gehr is not a basis for appeal (Mahenthirarasa v State Rail Authority of NSW [2007] NSWSC 22).”
The MA performed a detailed and thorough examination of the appellant. He explained the reasons why he disagreed with the assessment of Dr Gehr.
We agree with the respondent’s submission that:
“It was open to him based upon his experience, training, skill, review of the medical evidence referred to him with the medical referral and thoroughness in his clinical evaluation of the appellant to form the opinion that the appellant did not satisfy the criteria for cervical radiculopathy under paragraph 4.27 of the Guidelines.”
As to the appellant’s submission that, if the MA did test for muscle weakness and/or dysaesthesia, he failed to provide reasons or expose his reasoning process, again, it is clear from the MA’s examination that cervical radiculopathy was not present.
The appellant again relies on the opinion of Dr Gehr that there was “Dysaesthesia at C7/8 on the left side” and “Hand grip strength was Grade 4/5 on the left and 5/5 on the right side.”
In our view, these features are not significant enough to diagnose radiculopathy as they are very general. He suggested that there is sensory change in the C7/8 distribution which does not really help, and a weakness of grip strength is also very non-specific.
It is noted that all other features were normal.
In any event, the main reason for not accepting Dr Gehr’s assessment is that the MA has very specifically commented on Dr Gehr’s findings and indicated that he did not find any signs of radiculopathy at the time of his examination on 26 June 2023.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 July 2023 should be confirmed.
0
2
0