O'Connor v John a Martin and Kevin J Pendergast t/as Sharkscrete
[2021] NSWPICMP 127
•20 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | O’Connor v John A Martin and Kevin J Pendergast t/as Sharkscrete [2021] NSWPICMP 127 |
| APPELLANT: | Nicholas O’Connor |
| RESPONDENT: | John A Martin and Kevin J Pendergast t/as Sharkscrete |
| APPEAL PANEL: | Member R J Perrignon Dr James Bodel Dr Robin Fitzsimons |
| DATE OF DECISION: | 20 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of whole person impairment (cervical spine, lumbar spine, left lower extremity - knee and ankle); whether assessor failed to provide reasons for his assessment of the cervical spine; whether he erred in calculating a 3% whole person impairment (lumbar spine); whether he erred in deducting one half and three-quarters for pre-existing conditions of the lumbar spine and left knee respectively; whether he failed to take account of radiological evidence and range of motion in assessing the left ankle; appellant referred for examination of the cervical spine; Held- MAC revoked and new one issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr O’Connor, appeals from the Medical Assessment Certificate of Approved Medical Specialist Dr Weisz dated 21 October 2020.
The worker was injured on 21 December 2017 in a motor vehicle accident in the course of his employment as a truck driver.
Approved Medical Specialist Dr Weisz assessed a 13% whole person impairment (0% cervical spine, 3% lumbar spine, 9% left shoulder/elbow, 1% left knee, 0% left ankle) as a result of injury on 21 December 2017. In doing so, he deducted:
(a) 1/10th for pre-existing conditions of the left shoulder and elbow,
(b) one half for a pre-existing condition of the lumbar spine, and
(c) three quarters for a pre-existing condition of the left knee.
The worker appeals from his assessment of the cervical spine, lumbar spine, left knee and left ankle only, and requests examination by a medical member of the Panel. No appeal is made from the assessment of the left upper extremity.
He also relies on the following radiological reports by way of fresh or additional evidence, to which the respondent objects:
(a) report of CT scan of the cervical spine performed on 17 May 2019;
(b) report of MRI of the cervical spine performed on 17 November 2020, and
(c) report of MRI of the left ankle performed on 18 November 2020.
On 27 January 2021, the delegate was satisfied that grounds of demonstrable error and application of incorrect criteria were made out, and referred the matter to this Appeal Panel for determination.
On 5 March 2021, the Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines). There was no need for an oral hearing, as the issues were capable of determination on the basis of the parties’ helpful written submissions.
Having identified certain errors relied upon by the appellant, the Panel corrected such of them as were capable of correction without assessment, and in respect of the cervical spine referred him for assessment to Dr Bodel, whose report appears below.
Submissions
Both parties have filed written submissions which have been taken into account. It is not necessary to repeat them in full, but a brief summary of each is set out below.
As indicated, the appellant worker relies on the three reports listed above by way of fresh or additional evidence. So much can be inferred from the fact that the CT scan of the cervical spine is annexed to the appellant’s submissions and relied on at par [15], and from the filing of the MRI scan reports on 27 November 2020, attached to an Application to Admit Late Documents.
The appellant also submits as follows:
(a) With respect to the cervical spine, the Approved Medical Specialist failed to provide reasons for assessing a 0% whole person impairment, failed to explain what he meant by ‘free of findings’ with respect to the neck, failed to ‘carry out the prescribed testing … such as to be able to formulate a DRE assessment’, and failed to offer a diagnosis to explain the appellant’s neck pain.
(b) In deducting one half for a pre-existing condition of the lumbar spine, the Approved Medical Specialist erred in his calculations. He assessed 5% whole person impairment, to which he added 1% for effects on the activities of daily living (ADL), yielding 6% whole person impairment. From this he deducted one half pursuant to section 323 to arrive at 3% whole person impairment. The correct method was to deduct one half from the assessment of 5% to yield 2.5%, and to add 1% for ADL to yield 3.5%, which should be rounded up to 4% whole person impairment.
(c) In deducting one half for a pre-existing condition of the lumbar spine, Dr Weisz relied on the fact that the appellant had consulted his GP 15 times for his low back condition between April 2014 and December 2016. This was to treat pathology at L5/S1, demonstrated by a CT scan of the lumbar spine conducted on 16 December 2016. In the motor accident which occurred on 21 December 2017, the disc at L4/5 was injured, as demonstrated on the CT scan dated 17 January 2018. As that pathology did not exist prior to injury, and the pathology at L5/S1 ‘does not directly contribute to the current impairment at L4/5’ [sic], there is no basis for making any deduction. If there is, it should be no more than one tenth.
(d) The Approved Medical Specialist should have deducted 10% to take account of a pre-existing condition of the left knee, rather than three-quarters as he did. He erred in finding that the MRI findings of May 2015, December 2015 and March 2018 ‘are identical’, and in failing to compare Dr Biggs’ operation report at arthroscopy on 20 April 2018 with ‘the MRI scan of 8.2.2108’ [sic, at [62] of the appellant’s submissions].
(e) In assessing a 0% whole person impairment (left ankle), the Approved Medical Specialist failed to carry out an assessment of the range of motion of the ankle, and failed to take into account an x-ray report dated 20 December 2018, which described degeneration and other pathology which the radiologist admitted could be related to ‘previous trauma’. That must have included trauma on the date of injury.
The respondent employer objects to the reliance on fresh or additional radiological reports, though once the Panel had identified error for the reasons given below and determined that a further examination was appropriate, the respondent consented to the Panel viewing the films of the MRI scan of the cervical spine performed on 17 November 2020. With respect to the errors alleged, the respondent submits as follows. We note its remaining submissions in respect of the assessment of the lumbar spine and left ankle, but as we are not satisfied of error in those respects, it is unnecessary to summarise those submissions here:
(a) With respect to the cervical spine, the Approved Medical Specialist found that ‘the neck movements were unrestricted and free of findings’. That justified a 0% assessment. The Approved Medical Specialist could not have regard to the CT scan now adduced to the Appeal Panel as additional evidence, because it was not provided to him.
(b) With respect to the deductions made for pre-existing conditions of the lumbar spine and left knee, the Approved Medical Specialist gave proper and sufficient reasons for making the deductions that he did. In each case, he had regard to the history, the radiological evidence, and the results of his clinical examination, and used his professional judgment as he was entitled to do.
Reasoning of the approved medical specialist
Dr Weisz examined the worker on 2 October 2020.
He took a history of injury on 21 December 2017. He found at [4]:
“… it is likely that he sustained a mild flexion strain of his torso. He sustained a left upper extremity strain, with a probable direct contusion of the left elbow. He also suffered a direct left knee injury in the dashboard. There were no visible bruises or marks, not immediately and not in the days after the accident.”
He took the following treatment history:
“As treatment for 2017 accident, he underwent left knee arthroscopic examination, chondroplasty for deep erosion, namely full thickness of the covering cartilage over the left femoral lateral condyle and a partial lateral meniscectomy. Also removed was a loose bony ossicle from the knee joint. The left elbow was arthroscoped and several loose ossicles were removed. At a later stage, another surgeon performed arthroscopic intervention to the left shoulder and attempted to repair the torn part of the joint capsule and cleared the erosion of the bony surface. No tendon injury at the rotator cuff system was found.
He was treated conservatively for his persistent low back pain, including one cortisone injection to the lumbar spine area.”
The worker complained to him of severe pain in the cervical and lumbar spine, and in the left shoulder and elbow, and of persistent pain in the left knee and ankle.
He noted at [4] previous injuries to the lumbar spine and left knee, and a subsequent injury to the neck:
“… he injured his left knee in 2014, underwent arthroscopic intervention by an orthopaedic surgeon and "fully recovered", this being the reason that he did not mention it to any assessing surgeon. Equally, a history of low back pain, recorded for years was presented as being "fully recovered" just before the accident in 2017.
A second car accident in 2018 with multiple injuries, including a whiplash of the neck, being hit from the back whilst driving.”
Notwithstanding the previous conditions, Dr Weisz noted also at [4]:
“During the last 2 months prior to his accident in 2017, he drove a heavy truck, up to 12 hours a day and 6 days a week. He could not resume any work since the accident in December 2017 and feels unable to do so.”
He examined the neck, low back, shoulders and arms, and both lower limbs including the knees, recordings his findings at [5].
He noted there were ‘significant inconsistencies’, but did not describe them, save for the following observations at [5]:
“He walked with no limp, no support was needed. He sat for a considerable time with no obvious discomfort. He stood stable on tip toes, heels and on each leg. He squat down minimally, stating to be in pain. Involuntary movements of the neck and low back were unrestricted. He stood straight, but would not bend forwards except for flexion of his neck. He restricted almost all left shoulder movements, those were however released once encouraged and were goniometrically measured.”
Pre-existing conditions
He found at [7] that the worker had:
“suffered multilevel injuries to the musculo-skeletal system, in a rather advanced stage of degeneration, plausibly aggravated and made more symptomatic by the accident in 21.12.2017.”
We interpret this as a finding that the injury of 21 December 2017 aggravated pre-existing degenerative conditions of, or previous injuries to, each of the body parts assessed.
Dr Weisz explained at [8f]:
“All injured levels had pre-existent wide spread degeneration.”
He found at [7] that there were pre-existing conditions of the lumbar spine and left knee in particular - emphasis added:
“It becomes evident that between April 2014 and September 2017, Mr O'Connor visited his family practitioner on a total of 18 occasions for his left knee condition (last in 9.2017) and 15 times for the low back condition (last in 12.2016).
It becomes evident that he was injured at work in 2014.The treatment was medical and surgical and lasted till just 2 months before the 2017 accident for his knee, and till 2016 for his back.”
He concluded generally at [8e]:
“A significant percentage of the present clinical assessment needs reduction for pre-existent and previously treated pathologies.”
Cervical spine
With respect to the cervical spine, the Approved Medical Specialist found at [10b]:
“The cervical spine is free of findings.”
He also indicated at [5] that, ‘Involuntary movements of the neck and low back were unrestricted’ He did not provide measurements for any voluntary movement, compare that movement with involuntary movements, or consider any alternative method of assessment in the event that he found range of movement to be an inaccurate measure of impairment.
Lumbar spine
Dr Weisz assessed the lumbar spine in the following way at [10b]:
“The lumbar spine is assessed based on DRE System in AMA5 Guide, equivalent to Gr. II, with the resulting 5% WPI reduced by half, namely 2.5%, rounded to 3%, equal to an assessment with ADL addition. (6%-1/2 = 3WPI%)”
As we understand his reasoning, he assessed 5% whole person impairment (lumbar spine) based on range of movement, deducted one half for a pre-existing condition to yield 2.5%, and rounded this up to 3%. He does not appear to have added an amount for the effects on daily living, but has commented that an addition of 1% would have made no difference to the result, because when added to the 5% assessed it would have yielded 6%, reduced by one-half to 3% for the effects of a pre-existing condition.
He gave the following reasons at [10a] for making a deduction with respect to the lumbar spine:
“The lumbar spine was symptomatic for years and require[s] 1/2 deduction, taking in[to] account the fact that he worked for a year before the accident.”
Left knee
With respect to the left knee, Dr Weisz found at [7] that there had been a ‘direct blow to the patella with resulting pre-patellar bursitis and retro patellar chondral changes’.
He assessed a 4% whole person impairment based on range of movement at [10b]. He added:
‘From this assessment 3/4 is deducted for the long standing knee problems, operation and repeated attendances at G/P clinic, till just 2 months before the accident; as well as the advanced changes documented already in 2014, resulting in 1% WPI.’
The latter was a reference to x-rays performed on 25 March 2014, reported as demonstrating: ‘Chondral changes and meniscal changes, considerable over the left lateral femoral condyle level’ at [6].
He gave the following reasons at [10b] for the deduction:
“The left knee suffered a direct contusion and demands significant 90% [sic] deduction, as it was symptomatic for 3 years despite surgery, this until just 2 months prior to the accident in 12.2017. The MRI findings of 12.2015 and 3.2018 are identical.”
He summarised the reports of these two MRI scans as follows at [6]:
“More informative was the MRI scan (5.2015) that reported: Chondral changes, micro fracture with full thickness chondral defect at the lateral femoral condyle and tear in lateral meniscus. ...
On 8.3.2018: MRI reported Full thickness chondral loss lateral femoral condyle and loose ossicles.”
Left ankle
With respect to the left ankle, he found at [5] under the heading, ‘Findings on clinical examination:
“No impairment for the left ankle. No pain, no swelling, no restriction in movements and no muscular atrophy.”
He added at [10a]:
“The left ankle has no impairment due to the accident in 2017”.
We interpret him to mean both that that there was no assessable impairment of the left ankle, and that any pathology in the left ankle did not result from injury on 21 December 2017.
Fresh or additional evidence - radiological reports
Evidence that is fresh evidence or evidence in addition to the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party unless the evidence was ‘not available to the party … and could not reasonably have been obtained by the party before that medical assessment’: section 328(3), Workplace Injury Management and Workers Compensation Act 1998.
Dr Weisz examined the worker on 2 October 2020 and issued his assessment on 21 October 2020.
The appellant adduces a report of a CT scan of the cervical spine performed on 27 May 2019. He does not submit that was not available him prior to the assessment. We are not satisfied that it was not available. In those circumstances, section 328(3) prevents him from relying on it.
The reports of MRI scans performed on 17 and 18 November 2020 were not available prior to the assessment, because the scans were obtained after assessment, as were their associated reports. However, no suggestion is made by the appellant that he could not reasonably have obtained updated MRI scans of the cervical and lumbar spines prior to assessment, with associated reports. We are not satisfied that he could not. In those circumstances, section 328(3) prevents him from relying on the reports of these MRI scans. As indicated above, after the Panel decided that error had been demonstrated in respect of the assessment of the cervical spine among other things, and determined that a further examination was appropriate, the respondent consented to Dr Bodel having access to the films of the MRI scan of the cervical spine performed on 17 November 2020.
Ground 1: assessment of the cervical spine
As indicated, the Approved Medical Specialist assessed a 0% whole person impairment (cervical spine) on the basis that it was ‘free of findings’.
Having found, as he did, that on 21 December 2017 the worker had aggravated pre-existing conditions of each of the body parts referred for assessment, and that ‘All injured levels had pre-existent wide spread degeneration’, it was incumbent on him to explain what he meant by ‘free of findings’, and how he measured impairment of the cervical spine. Though he mentions ‘flexion’ of the neck at [5], and notes that ‘Involuntary movements of the neck and low back were unrestricted’, he does not record any measurements of voluntary neck movement, or provide any alternative method of assessment. If there were inconsistencies between voluntary and involuntary neck movements, he has not said so, or demonstrated what the differences were, nor has he expressly considered or chosen an alternative method of assessment if he considered that range of movement was not an accurate measure of impairment.
In the circumstances, the reasons are inadequate to enable the Panel to ascertain whether there is demonstrable error or the application of incorrect criteria. The absence of sufficient reasons itself demonstrates error, requiring that the Medical Assessment Certificate be set aside and appellant referred for examination of the cervical spine by a member of the Panel.
Ground 2: calculation of whole person impairment (lumbar spine)
The appellant alleges that the Approved Medical Specialist erred in failing to add 1% for the effects of impairment of the lumbar spine on the activities of daily living. As we understand his reasoning, he did not make any such allowance, but commented, in effect, that an allowance of 1% would have made no difference to the outcome.
In our view, he was correct. Par 1.28 of the Guidelines requires that the ‘deductible proportion’ be ‘deducted from the degree of permanent impairment determined by the assessor’. For the reasons explained at page 4 of AMA5, the degree of permanent impairment assessed includes any allowance for the effects on daily living. Had an allowance of 1% been made, it would have yielded a 6% whole person impairment, as Dr Weisz correctly indicated.
The appellant does not suggest that any allowance greater than 1% should have been made for the effects on activities of daily living.
We can identify neither error nor the application of incorrect criteria. This ground fails.
Ground 3: one half deduction for pre-existing condition of lumbar spine
As indicated, the Approved Medical Specialist deducted one half for a pre-existing condition of the lumbar spine, for which the appellant sought treatment from April 2014 to December 2016.
The appellant says that no deduction is appropriate, because:
(a) in that period he sought treatment for a mild broad based disc bulge at L5/S1 demonstrated on both a pre-injury CT scan performed on 21 December 2017, and a post-injury CT scan performed on 21 December 2017;
(b) for two months prior to injury on 21 December 2017 he drove a heavy truck, and
(c) his current impairment results only from injury to the disc at L4/5 which must have been caused by injury in 2017, because it appears the scan post-injury, but not pre-injury.
Dr Weisz appears to refer at [6] to the later of these two reports (though he gives a date of January 2018), but not to the earlier report.
We agree that a comparison of the two reports suggests that the incident of 21 December 2017 produced fresh pathology at L4/5, with ‘mild foraminal stenosis on the left’, as indicated. We also agree with the observation in the later report that MRI examination would be more appropriate to determine whether there is neural compromise. In the absence of MRI examination, we cannot be satisfied that there was an absence of neural compromise at either level. That is so, even though the symptoms at L5/S1 must have been alleviated sufficiently to enable the appellant to drive a heavy truck in the two months prior to injury.
In all the circumstances, it was open to the Approved Medical Specialist to find that the pre-existing condition at L5/S1 continued to contribute to impairment.
However, in circumstances where the injury had produced fresh pathology at L4/5 with foraminal stenosis, and symptoms of the pre-existing pathology at L5/S1 had sufficiently abated to enable him to drive a heavy truck for two months prior to injury, the deduction of one half required a careful exposition of the reasoning behind it. We are unable to identify any reasons why half of the assessed impairment should be attributable to a pre-existing pathology which was so alleviated prior to injury. The omission to give such reasons demonstrates error.
In our view, the only available inference is that the degree to which the pre-existing condition at L5/S1 contributes to impairment post-injury is difficult or costly to determine. In those circumstances, it is to be assumed that the appropriate deduction is one-tenth, unless is at variance with other evidence: section 323(2). In our view, such a deduction is consistent with the evidence and not at variance with it.
That error is capable of correction without further examination, and we have corrected it in the attached Medical Assessment Certificate by substituting a deduction of one tenth.
Ground 4: deduction of three quarters for the left knee
Dr Weisz found that on 21 December 2017 the worker had suffered a direct contusion to the left knee, resulting in ‘pre-patellar bursitis and retro patellar chondral changes’.
He deducted three quarters for the effects of a pre-existing condition, because:
(a) a pre-injury MRI scan performed in May 2015 demonstrated, ‘Chondral changes, micro fracture with full thickness chondral defect at the lateral femoral condyle and tear in lateral meniscus’, and
(b) the worker had sought treatment for left knee symptoms from April 2016 till October 2017, two months prior to injury.
In order to make a deduction, an Approved Medical Specialist must first find that there was a condition which existed prior to injury. In our view, the MRI scan of 2015 supports a finding that there were pre-existing conditions of the left knee.
The Approved Medical Specialist must then consider whether the pre-existing conditions or any of them contribute to current impairment. The mere fact that a condition was asymptomatic prior to injury does not preclude such a conclusion, but it is impermissible merely to assume that, merely because there was a pre-existing condition, it necessary contributes to impairment: Cole v Wenaline [2010] NSWSC 78.
In this case, the pre-existing condition was sufficiently symptomatic to require visits to the GP over a period of about 18 months. The fact that the worker was able to drive a heavy truck two months prior to injury indicates that the symptoms did not prevent him from doing so, but does not compel the conclusion that the knee was completely asymptomatic, or that the pathology had resolved. We are not satisfied that it had resolved. In the circumstances, it was open to the Approved Medical Specialist to find, as he did by necessary implication, that the pre-existing pathology was contributing to impairment.
The Approved Medical Specialist found that a deduction of three quarters was appropriate. This reflected his view that most of the assessed impairment resulted from the pre-existing condition. As indicated, he had found at [7] that the direct contusion to the left knee on the date of injury itself caused ‘pre-patellar bursitis and retro patellar chondral changes’. In those circumstances, it was necessary for him to explain why so great a deduction was required.
He did not do so. That omission amounts to demonstrable error.
In our view, the only available inference is that the degree to which the pre-existing condition of the left knee contributes to impairment is difficult or costly to determine. In those circumstances, as indicated in respect of the lumbar spine above, it is to be assumed that the appropriate deduction is one-tenth, unless is at variance with other evidence: section 323(2). In our view, such a deduction is consistent with the available evidence, and not at variance with it. Neither the extent of pre-existing radiological change, nor the medical consultations prior to injury persuade us to any other view.
That error is capable of correction without further examination, and a deduction of 1/10th is made in the attached Medical Assessment Certificate.
Ground 5: assessment of left ankle
As indicated, we are satisfied that the Approved Medical Specialist examined the left ankle, and assessed 0% whole person impairment, as there was no restriction in movement, no pain, swelling or muscular atrophy. The assessment of impairment by physical examination was the very task which he was empowered to perform. It was strictly unnecessary to express a view as to whether the pathology in the ankle resulted from injury, but it was within his power to do so, and he expressed a view in the negative. In circumstances where a 0% assessment had been made, a negative finding on causation could not have affected the result.
We can identify no error. This ground fails.
Assessment of Approved Medical Specialist Dr Bodel
The appellant was referred to a member of the Panel, Dr Bodel, for assessment of the cervical spine. Dr Bodel’s report appears below.
“1. The workers medical history, where it differs from previous records
I have carefully perused the medical history as recorded in the Medical Assessment Certificate as prepared by Dr George Weisz on 21 October 2020. I note that the history was taken by Telehealth and the face to face examination was done the following day.
He indicates that the accident occurred on 21 December 2017, namely driving a truck that was suddenly stopped when the roof of the truck struck a bridge. Mr O’Connor indicates that he was at the time driving a concrete agitator truck. The roof of the cabin of the truck did not strike the bridge but the top of the barrel on the concrete agitator ruck hit the bridge. He also states that he had dropped off his load of concrete and that he had used the “Navman” navigation device in the truck, which he asserts is for cars and not trucks. Because his vehicle was then unloaded, he came under the bridge which was too low for him. He also indicates that the Navman took him a different way home which was a “shortcut” which he had never been through. He also indicates that the truck came to a sudden stop and he was thrown around quite violently. He hit his knee, ankle, shoulder, elbow and wrist, as well as suffering an injury to his neck and back.
It is also noteworthy that this gentleman in giving the history is very anxious. His main complaint is in fact the disappointment with his employer who “forced him” to do this particular delivery which he did not think was appropriate in that particular truck.
The remainder of the history is accurately recorded.
2. Additional history since the original Medical Assessment Certificate was performed
Nil.
3. Findings on clinical examination
As I indicated, this gentleman is a very anxious individual. Examination is incredibly difficult. He is pain focused on issues which are not specifically related to an accurate description of his pain and ongoing disability. He has global pain involving all body parts.
Careful inspection of the neck and shoulder girdle area shows that he is a reasonably well muscled individual. I can see no visible sign of wasting in the trapezius muscle of the levator scapulae or the scalene muscles. Palpation in the area is difficult because he is hypersensitive over the skin on both sides of the neck, particularly the left side. He has a restricted range of observed neck movement in all directions. This is most restricted on rotation to the right. He has no generalized wasting in the shoulder girdle but does have a restricted range of shoulder movement on the left side. This is variable on repeated observation. The best observed range of motion in both shoulders is recorded in the Table which follows:
Shoulder Movements Active ROM Measured
RIGHTActive ROM Measured
LEFTFlexion 90° 180° Extension 30° 50° Adduction 10° 50° Abduction 70° 180° Internal Rotation 50° 90° External Rotation 50° 90° He has no restriction of elbow, wrist or hand movement. Grip strength is normal. The reflexes in the upper limbs are present and equal in the biceps, triceps and supinator reflexes. There is no objective sign of sensory loss in a dermatomal distribution anywhere in the left upper limb. Particularly, I am unable to identify any sensory loss in a dermatomal distribution over the side of the neck, the top of the shoulder or the upper part of the back which would relate to nerve root compression arising from a C4 disc injury.
4. Results of any additional investigations since the original Medical Assessment Certificate
I have had the opportunity to view the MRI scan of the cervical spine which were not available to AMS at the time of the accident. The films that I have seen of the cervical and lumbar spines are dated 17 November 2020 and the MAC is dated 21 October 2020.
On my viewing of the MRI scan of the cervical spine, there is degenerative disc disease at C3/4 with some central bulging but I see no definite sign of contact with the spinal cord or with nerve roots to the left or right. There is no significant narrowing of the neural exit foramina.
The official report of that MRI scan of the cervical spine dated 17 November 2020 makes the following statement about the C3/4 disc space:
“left paracentral/left foraminal disc extrusion with early mild uncovertebral joint and mild facet joint hypertrophy and moderate to severe left neural exit foraminal narrowing with contact and displacement exiting left C4 nerve root. The disc protrusion also just contacts the left anterior aspect of the cervical cord”.
I have viewed the films and I agree that there is significant disc pathology there but I find no definite clinical sign that there is neurological abnormalities involving the C4 nerve root on the left-hand side. I appreciate that this is a difficult area to assess as it is above the first of the reflexes but the sensory loss is not in a dermatomal distribution for the C4 nerve root over the top of the shoulder and the upper part of the back.
In regard to the C4/5 disc, there is also mention of the “potential for impingement exiting right C5 nerve root”. That is not the symptomatic side. There is certainly no sign of C5 nerve root involvement in the right upper limb.
5. Comment
Clinically this gentleman has a DRE Cervical Category II level of assessable impairment with a base rating of 5% Whole Person Impairment. His Activities of Daily Living have been moderately compromised giving a 2% loading in accordance with Item 4.34 and Item 4.35 on Page 28 of the Fourth Edition of the WorkCover Guidelines and a 7% Whole Person Impairment overall.”
The Appeal Panel adopts the report and assessment of Approved Medical Specialist
Dr Bodel.
Conclusion
For the reasons given, the appeal is allowed in part. The Medical Assessment Certificate of Dr Weisz is set aside and replaced by the attached Medical Assessment Certificate.
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 Weisz 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. Cervical spine | 21 Dec 2017 | Ch. 4 (pg. 24) | Ch. 15.6, (pg. 392) | 7% | Nil | 7% |
| 2. Lumbar spine | 21 Dec 2017 | Ch. 4 | 15.4 (pg. 384) | 5% | 1/10 | 5% |
| 3. Left upper extremity (shoulder, elbow) | 21 Dec 2017 | Ch. 2 (pg. 10) | Ch.16.4i, pg. 474, (fig. 16.40, 16-43, 16-46) Ch.16.4h (pg. 470) fig. 16-34, 16-37 | 10% | 1/10 | 9% |
| 4. Left lower extremity (knee) | 21 Dec 2017 | Ch. 3 (pg. 13) | Ch. 17.2f, pg. 533, Table 17-10 (pg. 537) | 4% | 1/10 | 4% |
| 5. Left lower extremity (ankle) | 21 Dec 2017 | Ch. 3 (pg 13) | Ch. 17.2g, pg.541 | 0% | Nil | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
R J Perrignon
Member
Dr James Bodel
Medical Assessor
Dr Robin Fitzsimons
Medical Assessor
20 July 2021
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