Pradhan v Allstaff Australia Sydney Pty Ltd
[2025] NSWPICMP 78
•11 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pradhan v Allstaff Australia Sydney Pty Ltd [2025] NSWPICMP 78 |
| APPELLANT: | Ramesh Pradhan |
| RESPONDENT: | Allstaff Australia Sydney Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 11 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Injury to cervical spine and lumbar spine; appeal by the worker in respect of the loading for Activities of Daily Living (ADLS) added to the cervical spine but not in respect of the cervical spine assessment; appeal in respect of the assessment of the lumbar spine; Held – Appeal Panel found error in the assessment and considered a re-examination was necessary; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 August 2024 the worker Ramesh Pradhan (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 July 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (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 Procedural Direction PIC7.
The appellant sought to be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
As a result of its preliminary review, the Appeal Panel determined that the worker was required to undergo a further medical examination because the Appeal Panel, for the reasons set out below, found error. Absent a finding of error the Appeal panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
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 matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·Date of injury: 1 August 2022
·Body parts/systems referred: Cervical spine
Lumbar spine
·Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in SIRA guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Cervical spine
01/08/2022
P 28 p 4.34
P 392 T 15.5
6%
0
6%
Lumbar spine
01/08/2022
P 384 T 5.3
0%
0
0%
Total % WPI (the Combined Table values of all sub-totals)
6%
The worker appealed.
The assessment of diagnostic related estimate (DRE) II for the cervical spine (5% whole person impairment (WPI)) was not the subject of compliant on appeal. The allowance of 1% activities of daily living (ADLS) which was added the cervical spine assessment was the subject of complaint on appeal. The assessment of DRE I (0% WPI) for the lumbar spine was the subject of complaint on appeal. There was no complaint on appeal about there being no deduction under s 323 for any pre-existing condition abnormality or injury.
In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error in making a one-tenth deduction for reasons which included the following:
(a) the medical assessor failed to conduct a proper assessment;
(b) the medical assessor failed to address the criteria needed to reach a finding of DRE I or II, and
(c) failing to conduct a proper assessment of impact on ADLS.
In summary, the respondent employer Allstaff Australia Sydney Pty Ltd (the respondent) submitted that the Medical Assessor did not make demonstrable errors and that the MAC should be confirmed.
The respondent submitted that the appellant is really making submissions that the Medical Assessor made an assessment on the basis of incorrect criteria which the appellant did not plead as a ground of appeal relying on the ground of demonstrable error only. The respondent has had an opportunity to meet the submissions of the appellant and to the extent that it is necessary to grant leave to amend the appeal to rely on the additional ground, then the appeal Panel grants such leave and will consider all of the submissions of the appellant as the respondent has had the opportunity to meet them and would therefore suffer no prejudice. The respondent contends that the Medical Assessor has made an assessment in accordance with correct criteria and the MAC should be confirmed.
The respondent in summary submitted as follows:
“…in summary, the respondent says that the appellant referred to a range of irrelevant criteria that do not actually impact the DRE category assessment. The appellant has also complained at length about Dr Kuru’s assessment, alleging it was inadequate but failing to give regard to the detailed and comprehensive test the doctor has in fact administered. The appellant has also complained about the brevity of the doctor’s reasons but he is only required to fulfil a minimum standard he has appropriately commented on the relevant findings that actually form the basis for an impairment assessment, without the need to comment on other irrelevant material”.
The respondent emphasised in their submissions submitted that the radiological investigations, even if not referred to by the medical assessor, were not relevant and could not therefore establish error. The respondent’s submissions in this regard included the following:
(a) the scans of the lumbar spine of 3 August 2022 and 14 December 2022 were not referred to by the Medical Assessor but they were taken some 22-24 months prior to the Medical Assessor’s assessment;
(b) even if they were not referred to by the Medical Assessor they were described by other doctors as normal for the appellant’s age;
(c) Dr Bodel (the independent medical examiner (IME) who provided an opinion on behalf of the appellant) describes the scans as showing disc pathology but without specifying how they are relevant to the assessment, and
(d) the scans by themselves are not sufficient to confirm a DRE category.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his or her clinical expertise to bear and exercise his or her clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied.
The Medical Assessor recorded the following history:
“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:x
On the date of injury, Mr Pradhan was at work operating a pallet jack. He was stationary when he was rear-ended by another operator using similar equipment. He was knocked over, falling to the ground. He got up and finished his shift. He presented to his GP and subsequently underwent a CT scan of his cervical spine and lumbar spine. He had pain in his neck and back with associated stiffness.
· Present treatment:
He has seen a physiotherapist and had manipulative treatment for his neck. He has not been engaged in an exercised based rehabilitation program. He takes no regular medication but occasionally takes Panadol. He has not had any cervical block.
Similarly, he has had manipulative treatment for his lumbar spine but nothing in the way of an exercise based rehabilitation program. He has not had any epidural steroids.
· Present symptoms:
In his neck he has right sided paravertebral pain radiating towards his scapula. Pain in his lower back spans his lower back, radiating into his buttock.
· Details of any previous or subsequent accidents, injuries or condition:
Mr Pradhan denies any previous injuries to his neck or back.
· General health:
· Work history including previous work history if relevant:
Nil relevant.
· Social activities/ADL:
Mr Pradhan is restricted in his ability to do household chores and garden maintenance. He is restricted in his ability to play within his children.”
The Medical Assessor conducted a physical examination and recorded the following findings:
“On examination he was a well looking man in no obvious distress. Trendelenburg’s test was normal. Heel-toe stance was normal. Romberg’s test was negative. Upper limb reflexes were symmetrical with a negative Hoffman test. There was cogwheel weakness in all muscle groups in the upper limbs. Lower limb reflexes similarly were symmetrical, with down going Babinskis. Again, there was cogwheel weakness of his ankle dorsiflexors.
The range of motion in the cervical spine demonstrated restricted extension and asymmetric rotation. Examination of the lumbar spine demonstrated symmetrical movement with flexion to the knees and lateral flexion also to the knees.”
The Medical Assessor made the following comments in relation to special investigations:
“I was able to review no imaging related to the injuries today.”
The Medical Assessor summarised the injury and diagnosis as follows:
“• Summary of injuries and diagnoses:
Mr Pradhan was knocked off his pallet jack at work and subsequently has had pain in his neck and pain in his back.
· Consistency of presentation
He was cooperative throughout the assessment."
The Medical Assessor explained his assessment of permanent impairment as follows:
“My opinion and assessment of whole person impairment:
FACTOR
% WPI
Cervical spine
6% whole person impairment
Lumbar spine
0% whole person impairment
In making that assessment I have taken account of the following matters:
Review of the material provided and a detailed examination of the claimant.
An explanation of my calculations (if applicable):
The cervical spine is assessed according to AMA 5 page 392, Table 15.5 as DRE Cervical Category II (5% whole person impairment). According to SIRA page 28, paragraph 4.34 I assess a further 1% for restrictions in activities of daily living.
The lumbar spine is assessed according to AMA 5 page 384, Table 15.3 as DRE Lumbar Category I (0% whole person impairment).”
The Medical Assessor made brief comment on the other medical opinion before him as follows:
“With respect to the report by Dr Bodel dated 9 March 2023, I am in agreement with the assessment of the cervical spine as DRE Cervical Category II.
I disagree with the assessment of the lumbar spine as DRE Lumbar Category II and assessed it as Category I. I
I have assessed 1% rather than 2% for restrictions of activities of daily living.
With respect to the report by Dr Smith dated 16 February 2024, I did observe asymmetry and dysmetria in the cervical movements and hence, have assessed the cervical spine as DRE Category II rather than Category I. I agree with the assessment of the lumbar spine as DRE Category I.”
The Appeal Panel considered that the examination findings were inadequately recorded and there was an inadequate path of reasoning to explain the impairment assessment of the lumbar spine or the assessment for the ADLS. The Appeal panel notes that the Medical Assessor did not have regard to the findings on radiological investigation. Whilst the findings on radiological investigation are not sufficient to establish a DRE category by themselves they must be taken into account in the context of the broader clinical picture and the correlation between clinical findings on the day of examination and the findings on radiological investigation must be adequately addressed.
In these circumstances, it was considered necessary that the appellant undergo a re-examination. Dr Stephenson, a Medical Assessor who is also a member of the Appeal panel was appointed to conduct the re-examination and he reported to the Appeal Panel as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W2713/24 |
Appellant: | Ramesh Pradhan |
Respondent: | Allstaff Australia Sydney Pty Limited |
Date of Determination: | 08 January 2025 |
Examination Conducted By: | John Brian Stephenson |
Date of Examination: | 08 January 2025 |
1. The workers medical history, where it differs from previous records
Not applicable.
2. Additional history since the original Medical Assessment Certificate was performed
Not applicable.
3. Findings on clinical examination
These are set out below.
As I have found radiculopathy to be present in the lumbar spine.
For the ADL component I have added that for the cervical region based on the clinical findings i.e. a 2% WPI for persistence with an avoidance of sports, recreation, yard, garden and homecare. I have added the ADL component to the cervical spine, therefore DRE category II (as found by the medical assessor and not the subject of complaint) gains a total of 7% WPI. There is no deductible proportion.
Activities of daily living, I will allow 2% for ADLs as I have noted. It is noted from the statement of the worker on 14 December 2022, underwent an MRI scan of the lumbar spine. That revealed minor disc pathology at the lumbosacral junction and disc bulging. That is relevant as one of the requirements for diagnosis related category III is referenced.
· That is findings on imaging study are consistent with the clinical signs (AMA5, Page 384).
Based on this examination, I have found a diagnosis category III for the lumbar spine.
Reference now to WorkCover Guidelines, Page 27, Paragraph 4.27, radiculopathy is the impairment caused by malfunction of the 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).
The criteria for DRE category III for the lumbar spine are satisfied where there is a baseline of 10% WPI.
Radiology
Lumbar spine, 3 August 2022, CT lumbar.
1. Mild disc bulges. No critical neuroforaminal compromise.
2. Mild canal stenosis at L5/S1 with central midline disc protrusion and multilevel mild facet arthropathy. – Dr Kapoor, Radiologist.
MRI lumbar spine, 14 December 2022.
Minimal prominence of disc at L3/4 and subtle posterior annular bulging of the disc at L5/S1 felt.
The disc relevant is that of L4/5 where there is a broad-based circumference disc bulge extending into proximal left L4 neural exit without distinct nerve root contact. – Dr Hazan.
Assessment, lumbar spine.
· Loss or asymmetry of reflexes.
All three reflexes are present at both right and left lower extremities.
· Muscle weakness that is anatomically localised to appropriate spinal nerve root distribution.
Power of dorsiflexion of the left foot and ankle weak at 3/5, but strong on the right at 5/5.
· Reproducible impairment of sensation that is anatomically localised to appropriate spinal nerve root distribution.
Sensation was blunt or dull on the left lower extremity and also the right.
· Positive nerve root tension.
Is found for left lower limb when traction is applied.
· Muscle wasting/atrophy.
Affected left quadriceps circumference at 10 cm proximal to the patella 52 cm. Left mid-calf 40 cm. In contrast, the unaffected right lower extremity, right quadriceps 53.5 cm at 10 cm proximal to the patella and at the left mid-calf 42 cm.
· Findings on imaging study are consistent with the clinical signs.
Therefore for lumbar spine, DRE category III gains 10% WPI, which combines with 7% for the cervical spine. The combination of 7% with 10% gains 16 WPI and there is no deductible proportion.
4. Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
The Panel has determined that the following medical records, not already before it, should be produced.
1. The appellant worker should bring to the further examination all radiological reports and scans in the worker’s possession or control.
That did not occur. There were no radiology reports brought to the interview.”
The Appeal Panel considers that Dr Stephenson has conducted a thorough examination and has applied his clinical expertise and made an assessment that is in accordance with the correct criteria in the Guides.
The Appeal Panel adopts the report and findings of Dr Stephenson.
The Appeal Panels notes that Dr Stephenson has found the criteria for radiculopathy in paragraph 4.27 of the Guidelines which mandates that one major criteria and one minor criteria must be present.
The criteria for radiculopathy in the Guides at paragraph 4.27 are as follows:
“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):
i.loss or asymmetry of reflexes
ii.muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
iii.reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
iv.positive nerve root tension (AMA5 Box 15-1, p 382)
v.muscle wasting – atrophy (AMA5 Box 15-1, p 382)
vi.findings on an imaging study consistent with the clinical signs (AMA5, p 382).”
Based on Dr Stephenson’s examination findings on the day of re-examination, the clinical findings for DRE III are present for the lumbar spine as follows:
(a) loss of asymmetry of reflexes;
(b) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
(c) reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution;
(d) positive nerve root tension, and
(e) muscle wasting – atrophy.
The Appeal Panel is cognisant that the independent medical expert who had provided an opinion on behalf of the appellant Dr Bodel had assessed DRE II based on his examination findings. However in making his assessment Dr Stephenson has relied on his clinical findings on the day of re-examination and has found the criteria for DRE III satisfied for the lumbar spine which he has thoroughly explained. The Appeal Panel accepts the findings of Dr Stephenson on re-examination and adopts the assessment of DRE III for the lumbar spine which accord with the correct criteria in the Guidelines.
What this means is that the MAC will be revoked and a new MAC issued as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in SIRA guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Cervical spine
01/08/2022
P 28 par 4.34
P 392 T 15.5
7%
0
7%
Lumbar spine
01/08/2022
P 27 par 4.27
P 384 T 5.3
10%
0
10%
Total % WPI (the Combined Table values of all sub-totals)
16% WPI
For these reasons, the Appeal Panel has determined that the MAC issued on 25 July 2024 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
Matter number: | W2713/24 |
Applicant: | Ramesh Pradhan |
Respondent: | Allstaff Australia Sydney Pty Ltd |
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 Medical Assessor Robert Kuru 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 SIRA guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | |
| Cervical spine | 01/08/2022 | P 28 par 4.34 | P 392 T 15.5 | 7% | 0 | 7% | |
| Lumbar spine | 01/08/2022 | P 27 par 4.27 | P 384 T 5.3 | 10% | 0 | 10% | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% WPI | ||||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0
2
0