Nassour v David Jones
[2021] NSWPICMP 160
•3 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nassour v David Jones [2021] NSWPICMP 160 |
| APPELLANT: | Yolla Nassour |
| RESPONDENT: | David Jones |
| APPEAL PANEL: | John Wynyard Dr Mark Burns Dr Drew Dixon |
| DATE OF DECISION: | 3 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against finding 14% WPI; whether Medical Assessor (MA) had erred in not applying chapter 4.27 of the Guides; whether MA had erred in not explaining further his finding that rotational range of motion in the cervical spine was “almost normal”; Held - chapter 4.27 of the Guides had no application as the MA had not found there to be any radiculopathy; the ground advanced was that there was imaging that showed pathology at the C5/6 level and that the terms of chapter 4.27 by the use of the words “in general” conferred a discretion as to whether the MA had to apply the criteria therein described strictly however the MA expressly found there were no signs of radiculopathy, acknowledging the existence of the imaging referred to, the argument was not relevant to the facts before the Panel; the “almost normal” finding applied to a symmetrical range of motion and the MA stated categorically on more than one occasion that there was no asymmetric range of motion; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 June 2021 Yolla Nassour, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 May 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 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 31 March 2021 this matter was referred by the Commission to the MA for an assessment of WPI caused to the cervical spine, left upper extremity (shoulder), right upper extremity (shoulder) as a consequential condition. The injury was said to have occurred on 28 September 2016 (deemed).
The appellant was employed as a Customer Service Coordinator who had been working for the respondent since 2010. Her occupation was sedentary and concerned with work at a computer through which she communicated with David Jones Stores, delivery drivers and customers. She also used a telephone which she cradled between her head and shoulders often as she had no telephone headset. She developed symptoms in her cervical spine and both shoulders, the right shoulder being as a consequence of her favouring the left shoulder.
The MA assessed a WPI of 8% in relation to the left shoulder, 7% in relation to the right shoulder and nil in relation to the cervical spine, giving a combined value of 14% WPI.
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 sought to be re-examined by an MA who is a member of the Appeal Panel however no re-examination was required as no demonstrable error had been established.
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 which have been considered by the Appeal Panel.
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 submitted that the MA erred in finding 0% WPI of the cervical spine.
The MAC
The MA took a history that was consistent with the papers, he noted the investigations, and recorded his findings on physical examination as follows[1]:
“At the time of today’s examination of the cervical spine there is a full symmetrical range of motion in all planes including flexion and extension and lateral flexion and rotation to the right and left to almost normal expected range of motion but with no evidence of palpable or paravertebral muscle spasm or guarding. She complains of significant discomfort on neck extension and this range of motion and subsequent findings were noted on two occasions at the time of today’s examination.”
[1] Appeal papers page 30.
The MA had available MRI scans of the cervical spine dated 5 October 2016, 16 May 2017 and 7 September 2017.
In his summary, the MA said relevantly[2]:
“…..There is a symmetrical good range of motion of the cervical neck with no objective signs to assist. There is, however, evidence of C5/6 disc lesion of moderate size, encroaching on the right side but not the left. Conservative treatment and the passage of time has not improved symptoms”
[2] Appeal papers page 31.
In explaining his calculations of the cervical spine, the MA said:[3]
“Cervical Spine:
At the time of today’s examination with reference to the Guidelines and Table 15.5 AMA 5, the Applicant demonstrates clinical symptoms and signs consistent with a DRE Category I impairment – 0% whole person impairment.
There is a symmetrical range of motion of the cervical spine with no evidence of palpable or paravertebral muscle spasm or guarding and pain on extension. There is no evidence of radiculopathy. Item 4.27 of the Guidelines requires two or more of a list of clinical symptoms to be present. There is no loss or asymmetry of reflexes or evidence of muscle weakness or reproducible sensory loss or muscle wasting that cannot be attributed to the Applicant’s right-handedness at the time of examination.
There is an imaging study consistent with a C5/6 intradiscal lesion but the definition ofradiculopathy, as set out in Item 4.27 of the Guidelines is not met.”
[3] Appeal papers pages 32-33.
With regard to the opinions of other medical practitioners the MA said[4]:
[4] Appeal papers pages 33.
“I read with interest the reports prepared by Dr Uthum Dias, occupational physician, on
9 January 2018 and 27 November 2019. Dr Dias noted an asymmetrical active loss of
range of motion of the cervical spine at the time of his assessment and therefore
assessed cervical impairment as being consistent with a DRE Cervical Category II
impairment of 5% whole person impairment. He noted a 3% whole person impairment
relating to activities of daily living resulting in an 8% whole person impairment of thecervical spine.”
SUBMISSIONS
The appellant referred us to Vegan, citing dicta concerning the definition of incorrect criteria. She alleged some error by the MA in the application of the relevant guidelines. We were referred to Chapters 4.11, 4.17, 4.19 and 4.27 of the Guides. We were also referred to
s 325(2) of the 1998 Act.The appellant referred to the MA’s finding on examination and his explanation for his calculations which resulted in no WPI being assessed for the cervical spine. These had resulted in two instances of the application of incorrect criteria, the appellant asserted.
Chapter 4.27 and radiculopathy
The appellant submitted that the use of the expression “in general” in Chapter 4.27 of the Guides suggested that there could be an exception to the “usual” situation, being the requirement that at least two of the criteria therein set out were present, and that one of them was a major criterion.
It was argued that therefore the MA needed to explain “why the usual situation was appropriate to identify which DRE category the applicant’s cervical injury fell within”. It was alleged that the MA failed to do so.
We were referred to the appellant’s complaints of pain, her alleged reduced range of motion, and the imaging of the cervical spine. Those matters underscored the need for an explanation as to why one criterion alone was not sufficient. It was incumbent on the MA to explain why he thought two of the criteria had to be present in Chapter 4.27 “to justify a DRE II rating”.
The appellant submitted that accordingly the MA had failed to give adequate reasons.
We were referred to the well known case of Wingfoot Australia Partners Pty Limited v Kocak[5] and the often cited dicta that the actual path of reasoning must be revealed in the statement of reasons so that a superior court could examine whether any error of law had been made.
The range of motion
[5] (2013) HCA 43 (Wingfoot).
It was submitted that the DRE I category assessed by the MA could not be sustained in the light of his findings of that the range of motion rotation of the cervical spine from right to left was “almost normal”. The appellant argued that if something was “almost normal” it followed that it could not be normal. It could not be ascertained therefore whether the reduced range of movement was asymmetrical or not, and the MA had compounded his error by not measuring the reduced range of motion.
We were referred to Chapter 4.17 of the Guides, and to s 325(2)(d) of the 1998 Act. It was also argued that the MA’s failure to explain the term “almost normal” offended the provisions of Chapter 4.19. The appellant submitted that if the application of incorrect criteria had not been established, then “the discrepancy” was a demonstrable error.
Demonstrable error
We were referred to Vannini v Worldwide Demolitions Pty Ltd[6]. The demonstrable errors were alleged to have been the use of incorrect methodology in the assessment “(erring in his undertaking/application of clause 4.27)” and by relying on inconsistencies relating to the range of motion.
[6] [2018] NSWCA 324 (Vannini).
The respondent
The respondent referred to the express finding by the MA that there had been no radiculopathy, which we have reproduced at [20], above.
The respondent referred to the criteria set out in chapter 4.27 and submitted that the appellant had misread the Guides in submitting that the strict application of chapter 4.27 was not necessary.
The respondent submitted that the construction of Chapter 4.27 contended for was not available, and that the wording clearly meant that the criteria as set out had to be found as was indicated by the word “should.”
The respondent noted the reference to many different guidelines relied on by the appellant and relied on an early case when the Workers Compensation Commission was first set up, Phillip John Carmody v Walter Merriman & Sons Pty Ltd,[7] in submitting that the assessment was entirely a matter for the AMS.
[7] [2003] NSWWCC PD27.
The respondent submitted that the reasoning given by the MA was adequate and sufficient to satisfy the requirement to give adequate reasons.
We were referred to the AMA 5 definition of DRE categories, and the reasons given by the MA for his assessment. Reference was also made to Parker v Select Civil Pty Ltd[8] and the oft cited dicta from Campbell J as to the pre-eminence of the clinical observations by an assessor. That dicta, however, related to the field to psychiatric injury and is not applicable in cases of this nature, although of course, the clinical judgement of an MA in assessing physical injuries is an important part of his enquiry.
[8] [2018] NSWSC 104
DISCUSSION
Chapter 4.11 of the Guides provides:
“The assessor should include in the report a description of how the impairment rating was calculated, with reference to the relevant tables and figures used.”
Chapter 4.17 of the Guides provides:
“The preferred method for recording ROM [range of movement] is as a fraction or percentage of the range or loss of the range. For example, either ‘cervical movement was one half (or 50%) of the normal range of motion’ or ‘there was a loss of one half (or 50%) of the normal range of movement of the cervical spine’.”
Chapter 4.19 of the Guides provides:
“Asymmetric or non-uniform loss of ROM may be present in any of the three planes of spinal movement. Asymmetry during motion caused by muscle guarding or spasm is included in the definition.
Asymmetric loss of ROM may be present for flexion and extension. For example, if cervical flexion is half the normal range (loss of half the normal range) and cervical extension is one-third of the normal range (loss of two thirds of the range), asymmetric loss of ROM may be considered to be present.”
Chapter 4.27 of the Guides states:
“4.27 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).”
Section 325(2) of the 1998 Act provides:
“(2) A medical assessment certificate is to be in a form approved by the President and is to-
(a) set out details of the matters referred for assessment, and
(b) certify as to the medical assessor's assessment with respect to those matters, and
(c) set out the medical assessor's reasons for that assessment, and
(d) set out the facts on which that assessment is based.”
Of relevance are the criteria mandated by Table 15.5 of AMA5,[9] which sets out the criteria for the assessment of the different classes of DRE cervical impairment.
[9] AMA5 page 392
Category I provides:
“no significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures.”
Category II provides relevantly:
“Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular complaints of radicular pain defined as complaints of radicular pain without objective findings; no alteration of structural integrity and no significant radiculopathy.
or
Individual had clinically significant radiculopathy and an imaging study that demonstrated a herniated disc at the level and on the side that would be expected based on the radiculopathy, but has improved following nonoperative treatment.”
Category III provides relevantly:
“Significant signs of radiculopathy, such as pain and/or sensory loss in a dermatonal distribution, loss of relevant refelex(es), loss of muscle strength, or unilateral atrophy compared with the unaffected side, measured at the same distance above or below the elbow, the neurologic impairment may be verified by electrodiagnostic findings
or
Individual had clinically significant radiculopathy, verified by an imaging study that demonstrates a herniated disk at the level and on the side expected from objective clinical findings with radiculopathy or with improvement of radiculopathy following surgery.”
It can be seen that the presence of radiculopathy is a relevant criterion in the assessment of two different categories.
In order to qualify for a DRE II finding, an MA must be satisfied that there was clinically significant radiculopathy and an imaging study that demonstrated a herniated disc on the level and on the side expected from objective clinical findings, but which had improved with non-operative treatment. The MA, although acknowledging that the imaging study demonstrated a C5/6 disc lesion of moderate size, found it encroached on the right side, and not the left. He also did not find any objective signs that assisted him, and he did not find any evidence of radiculopathy, let alone “significant” radiculopathy.
Also relevant to the DRE II criteria is the question of non-verifiable radicular complaints. The appellant did not address this entitlement in her submissions, but we note in passing that the MA found in his summary that there was no neurological impairment distally.
It can be seen that the presence of radiculopathy is a criterion that justifies a DRE III rating, and accordingly is indicative of a serious impairment, as a 15%-18% WPI is assessable. We note with interest the argument advanced by the appellant as to the construction that should be placed on the terminology of Chapter 4.27 of the Guides – and indeed the response from the respondent.
The resolution of that alleged ambiguity must abide a suitable factual case. In the present case the MA found there was no evidence of radiculopathy, which disqualified the appellant from a DRE II finding, as the alternative criteria therein relating to radiculopathy could not apply. Accordingly, as was explained by the MA in the thorough explanation he gave of his calculations, the criteria set out in Chapter 4.27 could not be established for a DRE III assessment.
As to the appellant’s ground that the MA had erred because in finding the range of motion to be “almost normal”. The appellant submitted that the use of the term “almost normal” in describing the appellant’s range of motion left open the possibility that there was such an abnormality of movement as to demonstrate an asymmetrical range of motion, which is one of the qualifying criteria for a DRE II rating.
This ground must also be rejected. Firstly, the MA stated variously that there was a “full” or “good” symmetrical range of motion in all planes. His comment that the rotation to the right and left to the almost normal range of motion did not thereby indicate an asymmetry of motion on that plane. To the contrary, the indication that rotation in both directions was almost normal indicated a slightly reduced range of motion that was symmetrical.
We are grateful for the attention given by the appellant to the regulatory framework within which assessments are to be conducted. However they do not assist her in these circumstances.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 May 2021 should be confirmed.
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