Ranaweera v State of NSW (Sydney Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Ranaweera v State of NSW (Sydney Local Health District) [2022] NSWPICMP 256
APPELLANT:	Dilshani Ranaweera
RESPONDENT:	State of New South Wales (Sydney Local Health District)
APPEAL PANEL:
MEMBER:	Mr William Dalley
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	20 June 2022
CATCHWORDS:	WORKERS COMPENSATION – Injury to lumbar spine referred; appellant worker alleged error in classification of the appellant as falling within DRE class II submitting that radiculopathy should have been found to be present; the appellant alleged that the Medical Assessor had failed to take into account the results of electromyography (EMG) testing; Held– the Medical Assessor had appropriately ignored the results of EMG testing in accordance with paragraph 4.21 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) and no error was established; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 December 2021 Dilshani Ranaweera lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 November 2021.
The appellant relies on the following grounds of appeal under section 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 grounds of appeal on which the appeal is made.
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 section 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant, Ms Ranaweera, suffered injury to the lumbar spine on 14 February 2014 in the course of her employment as an Assistant in Nursing employed by the respondent, Sydney Local Health District.
Ms Ranaweera continued to suffer symptoms and was referred for treatment to an orthopaedic surgeon, Professor Charles New and, subsequently, to a neurologist,
Dr Samuel Kim. Physiotherapy and steroid injections did not provide continuing relief from symptoms. In August 2015 she was seen by Associate Professor Papantoniou who noted the results of nerve conduction studies and requested a further MRI scan of the lumbar spine. Epidural steroid injections at L5/S1 and subsequently at L/5 did not improve her symptoms. Associate Professor Papantoniou ordered further imaging which demonstrated L4/5 and L5/S1 disc bulges, made worse after walking and standing. Conservative treatment was recommended.
Ms Ranaweera continued to suffer pain and restriction of movement. She remained off work. In September 2020 Ms Ranaweera was examined by a consultant physician and rheumatologist, Dr Terry Kwong at the request of Ms Ranaweera’s solicitors in order to assess Ms Ranaweera for the purposes of a lump sum claim for compensation pursuant to section 66 of the Workers Compensation Act 1987.
Dr Kwong diagnosed “bilateral L5 radiculopathy” and assessed Ms Ranaweera as falling within DRE lumbar category 3 warranting assessment of 10% whole person impairment (WPI). Dr Kwong assessed a further 2% WPI with respect to interference with activities of daily living, to give a total assessment of 12% WPI resulting from the subject injury.
Ms Ranaweera’s solicitors made a claim in accordance with Dr Kwong’s assessment. The respondent arranged for Ms Ranaweera to be examined by an orthopaedic surgeon,
Dr Raymond Wallace, who assessed Ms Ranaweera as falling within DRE lumbar category II attracting 5% WPI. Dr Wallace agreed that a further 2% WPI should be added, attributable to interference with activities of daily living.
Ms Ranaweera’s solicitors filed an Application to Resolve a Dispute in the Personal Injury Commission and the medical dispute between the parties as to the extent of impairment arising from the subject injury was referred to the Medical Assessor who examined
Ms Ranaweera on 3 November 2021. The Medical Assessor assessed Ms Ranaweera as falling within DRE lumbar category II attracting 5% WPI with a further 2% WPI added in respect of interference with activities of daily living, to give a total assessment of 7% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
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 sufficient material was available to the Panel to determine the appeal.

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. At the time of examination Ms Ranaweera provided to the Medical Assessor an MRI scan of the thoracic spine on 28 November 2018 which was described by the Medical Assessor as “normal study”. No submissions have been addressed to that study and the imaging does not appear relevant to the issues raised on appeal or the assessment of impairment arising from injury to the lumbar spine. It has not been considered by the Panel.

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.
In summary, the appellant submits that the Medical Assessor fell into error in assessing
Ms Ranaweera as falling within DRE lumbar category II. The appellant submitted that the Medical Assessor had failed to consider the results of neurological testing which indicated the presence of radiculopathy. Nerve conduction studies, it was submitted, established the presence of radiculopathy.
In reply, the respondent submits that the Medical Assessor had appropriately assessed
Ms Ranaweera in accordance with the Guidelines and had explained his reasons for his assessment.

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[1] 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.
[1] [2006] NSWCA 284.
The appellant noted that the Medical Assessor had declined to find radiculopathy. The Medical Assessor:
“found there to be asymmetrical loss range of motion with pain very much noted on forward flexion, where she can reach to 50% of normal expected range, partial sensory loss of the lateral side of the distal right calf (pages 3 and 4 of the MAC) yet declined to make an assessment for radiculopathy.”
The appellant submitted that although the Medical Assessor had “noted nerve conduction studies of 1 September 2014 which recorded that the ‘pattern of neurophysiological findings would be consistent with bilateral L5/S1 radiculopathy’ (page 4 of the MAC)”, he had stated that there were ‘no imaging studies consistent with the clinical signs’ which contradicted his observations concerning the nerve conduction studies.
The appellant submitted that the Medical Assessor had fallen into error in not finding radiculopathy because there was “reproducible partial sensory loss in an S1 level on the right side”[2]. This satisfied the requirement for finding of one of the major criteria. The other criteria being “the imaging study is consistent with the clinical signs”.
[2] MAC, page 6.
The appellant submitted that this constituted use of incorrect criteria leading to demonstrable error.
The Medical Assessor explained his reasons for assessing Ms Ranaweera as falling within DRE lumbar category II as follows:
“At the time of today’s assessment there is evidence of an asymmetrical active loss of range of motion of the lumbar spine due to pain but with no evidence of palpable paravertebral muscle spasm or guarding. There is no loss or asymmetry of reflexes or evidence of muscle wasting that can be anatomically localised to an appropriate spinal nerve root distribution. There is reproducible partial sensory loss in an S1 level of the right side. There are no imaging studies consistent with the clinical signs. In my opinion, the definition of radiculopathy as set out in item 4.27 of the guidelines is not met, requiring two or more of a list of clinical signs to be present.
Therefore, with reference to Table 15.3, AMA 5, it is my opinion at the time of today’s assessment the applicant demonstrates a DRE Lumbar Impairment Category II – 5-8% Whole Person Impairment.
There has been no surgical interventions and no residual symptoms consistent with radiculopathy, therefore Table 4.2 is not considered.”
As noted by the respondent in its submissions, the Medical Assessor commented on the report of Dr Kwong who had assessed Ms Ranaweera as falling within DRE lumbar category III, stating:
“He [Dr Kwong] noted a reproducible impairment of sensation of the left L5 nerve root, which in my opinion at the time of today’s assessment is related to the S1 nerve root. He noted a positive nerve root tension sign which is not present today and he commented on imaging studies which according to my interpretation of the scans and the reading of the reports is not consistent with nerve root obstruction. He comments on EMG findings which are no [sic] considered in the definition of radiculopathy as set out in item 4.27 of the guides.”[3]
[3] MAC, page 6, Paragraph 10(d).
The Panel accepts that the last sentence of that passage from the reasons of the Medical Assessor is correct and is determinative of the appeal. As noted by the appellant, the definition of radiculopathy found in paragraph 4.27 of the Guidelines provides:
“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 (AMA 5 Box 15-1, page 382)
·muscle wasting – atrophy (AMA 5 Box 15-1, page 382)
·findings on imaging study consistent with the clinical signs (AMA 5, page 382)”
Paragraph 4.21 of the Guidelines provides: “The clinical findings used to place an individual in a DRE category are described in AMA 5 Box 15-1 (pp 382 – 83). The reference to ‘electro-diagnostic verification of radiculopathy’ should be disregarded”.
The Medical Assessor’s comment, to the effect that EMG findings are not to be considered in the definition of radiculopathy set out in paragraph 4.27, is correct. Appropriately disregarding those findings, the criteria for finding radiculopathy were not met and the Medical Assessor made no error in his assessment. Only one of the criteria in paragraph 4.27 was found on examination and there was no evidence which would have supported the finding of a further criterion to meet the definition in the Guidelines.
The Medical Assessor’s comment “no imaging study is consistent with the clinical signs” is correct as the EMG results would not be considered to be an “imaging study”. The term “imaging study” would refer to radiological imaging such as X-ray, CT scan or MRI scan.
No application of incorrect criteria or demonstrable error has been made out. For these reasons, the Appeal Panel has determined that the MAC issued on 10 November 2021 should be confirmed.

[2022] NSWPICMP 256

20 June 2022