Ridgeway v Majkid Pty Ltd (Deregistered)
[2021] NSWPICMP 5
•5 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ridgeway v Majkid Pty Ltd (Deregistered) [2021] NSWPICMP 5 |
| APPELLANT: | Zachary Ridgeway |
| RESPONDENT: | Majkid Pty Ltd (Deregistered) |
| APPEAL PANEL: | Catherine McDonald Dr John Ashwell Dr Gregory McGroder |
| DATE OF DECISION: | 5 March 2021 |
CATCHWORDS: | WORKERS COMPENSATION- worker suffered a lumbar spine injury on a background of developmental conditions; AMS relied on imaging reports but worker said it was a demonstrable error not to look at the films when assessing whether radiculopathy was present; not necessary for AMS to review films but Guidelines required to say whether he did or not; AMS relied on reports of specialist radiologists; Held- criteria for radiculopathy not met; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 January 2021 Zachary Ridgeway lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Mark Burns, as an Approved Medical Specialist (AMS) under the legislation in force at the date of the assessment. The AMS issued a Medical Assessment Certificate (MAC) on 22 December 2020.
The appellant relies on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The Registrar was satisfied that, on the face of the application, the ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The Workers Compensation Medical Dispute Assessment Guidelines 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 those guidelines.
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).
RELEVANT FACTUAL BACKGROUND
Mr Ridgeway was employed by Majkid Pty Limited (Majkid) as a gyprock sheeter. He suffered an injury on 4 November 2016 when he fell from a trestle while lifting gyprock sheeting. He went to the Emergency Department of John Hunter Hospital on 6 November 2016 with left arm pain and right sided chest pain. He went to the Emergency Department of Calvary Mater Hospital on 14 November, complaining of 10 days of worsening back pain.
On 20 November 2016 Mr Ridgeway went to Maitland Hospital and a CT scan showed bilateral L5 pars interarticularis defects with grade 1 anterolisthesis of L5 on S1. No acute fracture was identified.
Mr Ridgeway returned to Calvary Mater Hospital on 2 January 2017 stating that he was not improving and was unable to move his legs at times. On 14 February 2017 he told his general practitioner Dr J Stephen that he had intermittent shooting pains down his left leg.
An MRI scan on 1 March 2017 showed Scheuermann’s disease in the thoracic spine and confirmed the bilateral pars defect at L5/S1. Mr Ridgeway was treated by Dr S Dalton, sports physician, and Dr M Russo, pain management specialist.
A second MRI scan was undertaken on 12 March 2018. The clinical history alerted the radiologist to look for “?Progressive disease ? Root compression.” The radiologist, Dr L Josey, said that the imaging features remained stable with no progression in the thoracic kyphosis, further wedging of the thoracic spine or progression in the extent of slip at L5/S1. He noted specifically that there was “no neural compression, focal protrusion or paravertebral mass.”
The AMS examined Mr Ridgeway and recorded his history. He said that he did not review the films of the scans provided in a large bag of x-rays though did review the reports.
The AMS diagnosed an aggravation of a pre-existing bilateral spondylolysis with grade 1 spondylolisthesis. He found no evidence of genuine radiculopathy though noted that Mr Ridgeway had significant neuropathic pain. He found no evidence of muscle weakness.
The AMS assessed Mr Ridgeway in DRE Lumbar Category II and assessed 7% whole person impairment (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 Workers compensation medical dispute assessment guidelines.
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 the assessment made by the AMS was open to him and does not disclose an error.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the AMS 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.
Mr Ridgeway, through his counsel Mr Eirth, submitted that the AMS made a demonstrable error because he did not review and assess the imaging but relied on the reports provided. He said that the Guidelines and Box 15-1 of AMA 5 requires that imaging studies be reviewed and assessed when determining whether or not there is non-verifiable radicular root pain and/or radiculopathy.
In reply, Majkid, in submissions prepared by its solicitor, Ms Whiting said that the appeal is misconceived and that the AMS was merely required to say whether he reviewed the scans or relied on the reports. Majkid noted paragraph 4.20 of the Guidelines which confirmed that imaging is only of diagnostic value if the findings were consistent with clinical signs.
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.
After summarising the history he obtained from Mr Ridgeway, his symptoms and treatment, the AMS set out his findings on examination. He said:
“Examination of his entire spine revealed reported tenderness from C7 to L5 in the midline. There was a slight decrease in lumbar lordosis. There was no evidence of muscle spasm or muscle guarding. Flexion in the lumbar spine was 50% of predicted but extension only 25% of predicted with reports of pain. Lateral tilt to the left and right was 50% of predicted and symmetrical. Straight leg raising was 45º bilaterally in the supine position with a negative sciatic stretch test bilaterally. On the right side there was no report of pain but on the left side there was reported pain in the low back but not pain down into the leg.
Neurological examination of both lower limbs revealed normal tone and reflexes. Sensation was reported as being decreased in the left lateral thigh and the medial and lateral side of the calf muscle and in the entire foot in a sock distribution. This did not follow a nerve root pattern.
Power testing in both legs revealed no decrease in power in either flexion or extension of the big toe, flexion or extension of the ankles nor in flexion or extension of the knees. At the end of the consultation, he was noted to be able to stand on his heels and toe without evidence of muscle weakness. He did report at the time that he had been asked by another examiner to walk on his heels for half a dozen steps and that his left foot had slowly come down at the front. This was not evident at today’s consultation.
The circumference of the right thigh was 46cm compared to 45cm on the left. The circumference of both calf muscles was 37cm.”
The AMS prefaced his description of the MRI scans by saying:
“Mr Ridgeway brought one large bag of x-rays with him. Within the bag there was a mixed number of MRI scans pages from 2 scans of the lumbar spine, one done of 1 March 2017 and the second on 12 March 2018. Due to the length of the consultation, it was not possible to sit d3own and sort out all the x-rays at the time. I noted though that I did have the medical reports for both investigations.”
The AMS said:
“Mr Ridgway has aggravated a pre-existing bilateral L5 spondylolysis with a grade 1 spondylolisthesis. There is no evidence though on examination of a genuine radiculopathy involving either leg. He does though have significant neuropathic pain into the left leg. On today’s examination I could find no evidence of muscle weakness in either land, specifically in the left leg.
It should be noted that his bilateral L5 spondylolysis is not traumatic in nature but is developmental. Between 5 - 7% of the population have a bilateral pars defect associated with the non-fusion of the pars interarticularis. Approximately half of these people go on to have some degree of spondylolisthesis.”The AMS quoted paragraph 4.25 of the Guidelines and said it was applicable to Mr Ridgeway. It provides:
“Common developmental findings, spondylosis, spondylolisthesis and disc protrusions without radiculopathy occur in 7%, 3% and up to 30% of cases involving individuals up to the age of 40 respectively (AMA5, p 383). Their presence does not of itself mean that the individual has an impairment due to injury.”
The AMS said that Mr Ridgeway’s spondylolisthesis and bilateral pars defect was developmental not traumatic. He said:
“The neuropathic pain radiating into his left leg does not fulfil the criteria for radiculopathy from Paragraph 4.27 of the New South Wales Guidelines 4th Edition. I noted that there was;
·no loss or asymmetry of reflexes,
·no muscle weakness that was anatomically localised to an appropriate spinal nerve root distribution,
·no reproducible impairment of sensation that was anatomically localised to an appropriate spinal nerve root distribution,
·no positive nerve root tension sign,
·no evidence of muscle wasting or muscle atrophy and the findings on the MRI scans did not reveal any nerve root compression.
·No findings on an imaging study consistent with the clinical signs.
Therefore radiculopathy cannot be diagnosed. He would therefore be classified as having a soft tissue injury to his lumbar spine with dysmetria. This would be classified as DRE Category II or 5% whole person impairment with a further 2% for his activities of daily living. This would give 7% whole person impairment.”
The AMS considered the reports of Dr R Hudson who was qualified for Mr Ridgeway. He noted that Dr Hudson assessed Mr Ridgeway in DRE Lumbar Category V, because of loss of motion segment integrity but the AMS confirmed that was developmental and not traumatic. The AMS agreed with the assessment of Dr T Mastroianni, qualified for Mr Ridgeway in 2018 in his assessment. The AMS agreed with the assessment made by Dr P Robinson who examined Mr Ridgeway on behalf of Majkid but did not agree that a deduction of one-tenth of the assessment under s 323 was warranted.
Essentially the only complaint made about the assessment by the AMS was that he did not review the films of the MRI scans. He was not required to and there is nothing inappropriate in his reliance on the reports of the specialist radiologists who reported on the scans.
His task is summarised in paragraph 4.4 of the Guidelines:
“The assessment should include a comprehensive, accurate history, a review of all pertinent records available at the assessment, a comprehensive description of the individual’s current symptoms and their relationship to activities of daily living (ADL); a careful and thorough physical examination; and all findings of relevant laboratory, imaging, diagnostic and ancillary tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The assessor should record whether diagnostic tests and radiographs were seen or whether they relied solely on reports.”
Paragraph 4.20 of the Guidelines provides:
“While imaging and other studies may assist medical assessors in making a diagnosis, the presence of a morphological variation from ‘normal’ in an imaging study does not confirm the diagnosis. To be of diagnostic value, imaging studies must be concordant with clinical symptoms and signs. In other words, an imaging test is useful to confirm a diagnosis, but an imaging study alone is insufficient to qualify for a DRE category (excepting spinal fractures).”
The criteria for the assessment of radiculopathy are set out in paragraph 4.27 of the Guidelines and the AMS applied them correctly. The AMS was required to assess Mr Ridgeway as he presented on the day of the examination[2] and the MAC he prepared confirms that he did so. The paragraph provides:
“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).”
[2] Guidelines paragraph 1.6.
There is no suggestion in the submissions prepared for Mr Ridgeway that a review of the films or images rather than the reports would have led to a different outcome. The criteria for radiculopathy are observed on examination then compared to the radiology.
When the 2018 MRI scan was ordered, the radiologist was asked to consider whether the reduced sensation of which Mr Ridgeway complained was a result of root compression. He did not observe any of the features which might be expected to give rise to radiculopathy.
The AMS noted that there was no asymmetry of reflexes and he could find no evidence of muscle weakness. He noted that sensation was reported as decreased in the left lateral thigh, the medial and lateral side of the calf muscle and the entire foot in a sock distribution and correctly observed that pattern does not follow a nerve root pattern. He therefore considered and eliminated each of the major criteria for the diagnosis of radiculopathy.
The submission that AMA 5 requires the review of imaging studies takes the content of Box 15-1 out of context. Box 15-1 is a list of definitions of clinical findings used in the application of the DRE categories. The definition of radiculopathy includes:
“The diagnosis requires a dermatomal distribution of pain, numbness, and/or paraesthesia is in a dermatomal distribution… The presence of findings on an imaging study in and of itself does not make the diagnosis of radiculopathy. There must also be clinical evidence as described above.”
In Section 15.3 of AMA 5, immediately after Box 15-1, the text reads:
“To use the DRE method, obtain an individual’s history, examine the individual, review the results of appropriate diagnostic studies, and place the individual in the appropriate category.”
AMA 5 specifically contemplates the reliance on radiological reports. The AMS was not required to review the films or images. The Guidelines require only that he indicate whether or not he had used the images or the reports.
Based on the MRI scan reports in the file which the Panel has reviewed, the assessment made by the AMS was an appropriate exercise of his clinical judgement and the MAC does not disclose an error.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 December 2020 should be confirmed.
0