Rodriguez v PGC Projects Pty Ltd
[2024] NSWPICMP 120
•6 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Rodriguez v PGC Projects Pty Ltd [2024] NSWPICMP 120 |
| APPELLANT: | Alejandro Sanroman Rodriguez |
| RESPONDENT: | PGC Projects Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: | 6 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) considered most recent MRI scan done of appellant’s lumbar spine; whether MA erred by concluding appellant did not have radiculopathy; whether MA applied incorrect criteria; Appeal Panel held it was likely that MA did not consider most recent MRI scan; demonstrable error found; appellant re-examined; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 October 2023 Alejandro Sanroman Rodriguez, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 September 2023.
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, and
· 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 (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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as a carpenter with PGC Projects Pty Ltd, the respondent, in June of 2013.
On 22 May 2020 whilst using an electric jack hammer to demolish a window he felt sudden sharp pain in his lower back. An MRI scan was done of his lower back on 26 June 2020.
Dr Vahid Afaghi provided a report on that scan on 29 June 2020. His impression was as follows:“there is a small moderate central and right paracentral disc herniation at L4/5 level with narrowing of the right lateral recess and likely impingement of the traversing right L5 nerve root depending on the nature of symptoms and that the patient has radiculopathic type pain and an CT guided epidural steroid can be considered for symptomatic management.”
On 28 October 2020 neurosurgeon Dr Richard Parkinson performed a right L4/5 micro-discectomy.
On 24 October 2022 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment resulting from an injury the appellant suffered to his lumbar spine on 22 May 2020. The appellant’s solicitors enclosed with their letter a report of orthopaedic surgeon Dr Jonathon Herald dated 9 May 2022, who had examined the appellant on 10 May 2022 at the request of the appellant’s solicitors for the purpose of providing a medical legal report. In his report Dr Herald advised he had assessed the appellant had 15% whole person impairment (WPI) from his injury. He explained that he assessed the appellant’s impairment by reference to the criteria of DRE Lumbar Category III of AMA5, which allowed for an assessment within the range of 10 to 13% WPI. He explained that he assessed the effect of the appellant’s impairment on his activities of daily living (ADL) was such that he added 1% WPI to the base rate of 10% WPI. He explained that he found the appellant had residual features of radiculopathy in at least the L4 distribution and because of that he explained the appellant was entitled to a further rating of 3% WPI under table 4.2 of the Guidelines. He also explained that he found the appellant fulfilled the criteria of table 14.1 of the Guidelines for 1% WPI due to the scarring from his surgery. These combined to 15% WPI, and hence his assessment.
The insurer arranged for the appellant to be examined by orthopaedic surgeon Dr Robert Breit on 19 January 2023. In a report of 25 January 2023 Dr Breit advised that he assessed the appellant had 12% WPI from his injury. Dr Breit advised in his report that he did not find the appellant met the criteria for radiculopathy and hence the modifiers of table 4.2 of the Guidelines did not apply. He explained that in his opinion the appellant’s scar from his surgery did not warrant an assessment under the TEMSKI Scale.
On 17 March 2023 the insurer wrote to the appellant offering to settle his claim for compensation for permanent impairment on the basis that he had 12% WPI from his injury. That offer was clearly unacceptable to the appellant, who initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation. His matter was referred to the Medical Assessor to assess the medical dispute between the parties relating to the degree of permanent impairment of the appellant from his injury.
The Medical Assessor examined the appellant on 11 September 2023 to conduct that assessment. As mentioned, the Medical Assessor issued the MAC on 20 September 2023. In that he certified he had assessed the appellant had 13% WPI from his injury. That comprised 12% WPI relating to the appellant’s lumbar spine and 1% WPI relating to the scarring the appellant had from his surgery.
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.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because, for reasons set out below, the Appeal Panel found the MAC contained a demonstrable error and it was necessary that further clinical data be obtained so as to correct that error. To obtain that clinical data the Appeal Panel needed to re-examine the appellant. Medical Assessor Roger Pillemer was appointed to do that examination. His report to the Appeal Panel is set out under the heading Findings and Reasons.
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 Medical Assessor set out in the MAC the circumstances relating to the appellant suffering his injury. The Medical Assessor noted that after conservative treatment, the appellant was referred to neurosurgeon Dr Richard Parkinson who undertook a L4/5 micro-discectomy on 28 October 2020.
The Medical Assessor recorded that the appellant reported his present symptoms were low back stiffness and residual sciatic pain in his right leg with some sensory changes at this right sole. The Medical Assessor noted that the appellant had a sitting, standing and walking tolerance of half an hour and that repetitive bending and stooping, heavy lifting and carrying would aggravate his back pain. The Medical Assessor noted that the appellant reported being conscious of his scar from his surgery and was able to localise it.
The Medical Assessor provided a brief summary in the MAC of the results of an MRI scan the appellant had done of his lumbar spine on 23 October 2020. The Medical Assessor made no reference to an MRI scan the appellant subsequently had on 16 March 2022.
The Medical Assessor recorded the following findings from his examination of the appellant:
“On examination on September 11, 2023 he was 1.9 metres tall and weighed 97kg.There was stiffness of his lumbar segment with flexion decreased by one third, with pain on back extension which was decreased by one third. Lateral flexion to the right was decreased by one third, and that to the left by one quarter. There was some tenderness at the right L5 facet region.
There was a 3cm laminectomy wound which showed loss of contour, ie was indented and pigmented and mildly tender. He was able to readily localise the scar. It is visible in swimmers. There were no visible suture marks and minimal trophic changes, with negligible effects on ADL’s and no treatment required apart from block out when out swimming, There was no adherence.
Straight leg raise on the right was 60 degrees and there was a positive sciatic nerve root stretch test and that on the left was 70 degrees and the crossed straight leg raise test was negative (this was present prior to surgery, as noted by his neurosurgeon). His knee jerks were present. His symmetrical medial hamstring jerks were present and his ankle jerks were present with reinforcement. There was no wasting of his right lower extremity. He had varicose veins in both legs below the knees.
Power was grade five out of five. There was some mild sensory alteration in the sole of his right foot in a non-dermatomal distribution
His limb length measured from the ASIS to the medial malleolus 95cm on the right and 97cm on the left.
His normal gait was satisfactory as was toe walking. There was unsteadiness on heel walking and his squat test was satisfactory.”
The Medical Assessor provided the following summary of the appellant’s injury:
“This claimant sustained injury to his back while working on a jack hammer, preparing for a new window to be installed on June 20, 2020 and sustained;
1. A back strain injury with residual lumbar stiffness with dysmetria, L4/5 disc
protrusion treated by micro-discectomy
2. Resolution of his right sciatica with residual right sciatic nerve root stretch test, but no radiculopathy
3. Residual facet arthralgia clinically on the right
4. Impaction of his injuries on his ADL’s
5. Pigmented laminectomy scar with loss of contour, the claimant being able to readily localise it.”
The Medical Assessor correlated the appellant’s injury to his lumbar spine with DRE Lumbar Category III, which, as already said, attracts a base rating of 10% WPI.
To that he added 2% WPI for the effect of the appellant’s injury on his ADL. The appellant does not challenge that. Further the Medical Assessor assessed the appellant had 1% WPI due to his scarring. The appellant also does not challenge that.
The Medical Assessor noted that those ratings when combined in accordance with the Combined Values Chart yield 13% WPI, and hence his certification that was the appellant’s permanent impairment from his injury.
The Medical Assessor referred to a report of the appellant’s treating neurosurgeon,
Dr Richard Parkinson and also the reports of Dr Herald and Dr Breit. With respect to the report of Dr Herald the Medical Assessor observed that Dr Herald had found the appellant had wasting of his quadricep muscles, a decreased knee jerk. The Medical Assessor said those signs were not present when he examined the appellant. The Medical Assessor also noted that Dr Herald felt the appellant had altered sensation in a L4/5 distribution but the Medical Assessor noted that the appellant had reported that most of his sensory changes had resolved. The Medical Assessor observed that Dr Herald had found the appellant had radiculopathy, based on the appellant having muscle wasting and decreased quadriceps reflex.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by concluding that he did not meet the criteria of paragraph 4.27 of the Guidelines for a finding of radiculopathy to be made. The appellant submitted that the Medical Assessor consequently erred by not finding he had radiculopathy. The appellant noted that the Medical Assessor did not make any reference to the MRI done on 16 March 2022 and the appellant submitted that, because of that, the Medical Assessor failed to consider relevant evidence and had he considered that evidence should have found that he had radiculopathy.
In reply, the respondent submitted that the Medical Assessor did not identify at least two of the criteria for radiculopathy, including at least one major criteria, at the time he assessed the appellant. The respondent submitted that the Medical Assessor clearly explained his reasons. The respondent highlighted that the MRI scan done on 16 March 2022 occurred around 18 months prior to the Medical Assessor’s examination of the appellant and the respondent submitted it is outdated.
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.
Paragraph 4.27 of the Guidelines reads:
“[I]n order that a finding can be made that radiculopathy is present two or more of the following criteria must be satisfied, one of which must be a major criteria (which are highlighted 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).”
The Medical Assessor’s findings from his examination included that the appellant’s straight leg raise on the right was 60° with a positive sciatic nerve root stretch. The Appeal Panel notes that this correlates with one of the criteria of paragraph 4.27, namely positive nerve root tension.
The Appeal Panel notes that the Medical Assessor recorded the appellant complained to him of experiencing sensory changes at his right sole. The Appeal Panel further notes that radiologist Dr Nick Massoudi’s report on the MRI scan done on 16 March 2022 included the following comment:
“There is L5/S1 mild discovertebral degenerative change and a posterior disc bulge which may irritate the S1 nerve roots in the lateral recess. There are further small L3/L4, L4/L5 disc bulges. There is no spinal canal or neural foramina stenosis.”
The sensory change that the appellant reported on his right sole is within the S1 distribution and hence the imaging study, in the form of the MRI done on 16 March 2022, to which the Medical Assessor did not refer in the MAC, is consistent with that, in that it indicates the potential of irritation of the S1 nerve root.
The Appeal Panel rejects the respondent’s submission that this imaging study is outdated. It is the most recent study done on the appellant’s lumbar spine and it is a much more recent study than that to which the Medical Assessor referred in the MAC, being the MRI of the appellant’s lumbar spine done on 29 June 2020.
The Appeal Panel concluded that the MAC did contain a demonstrable error because, on the face of the MAC, the likelihood is that the Medical Assessor did not have regard to the most recent imaging study which supported a finding of radiculopathy being made. Given that, the Appeal Panel considered that it should re-examine the appellant to confirm he had sensory changes in the S1 distribution, that is to confirm that he met the requirements of paragraph 4.27 of the Guidelines to enable a finding of radiculopathy to be made. As also mentioned above, the Appeal Panel appointed one of its members, namely Medical Assessor Roger Pillemer to conduct that examination which he did on 26 February 2024 and following which he provided the Appeal Panel with the following report:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1/W5196/23 |
Appellant: | ALEJANDRO SANROMAN RODRIGUEZ |
Respondent: | PGC Projects Pty Ltd |
Examination Conducted By: | Roger Pillemer |
Date of Examination: Attendance: | 26 February 2024 |
1. The workers medical history, where it differs from previous records.
I read Mr Rodriguez his history as it was taken by MA Dr D Dixon (orthopaedic surgeon) on 11 September 2023 and he agreed with everything stated.
2. Additional history since the original Medical Assessment Certificate was performed.
Mr Rodriguez continues to complain of pain in the low back but this only worries him intermittently and he can go for a few days without any particular discomfort. When he does get the back pain it goes as high as 7/10, and he can go without any back pain for up to a week at a time. He still occasionally gets symptoms in his right lower limb, particularly when his back is painful, and symptoms range between 6-7/10 in his right lower limb extending down into his right foot. On specific questioning he is not aware of pins and needles or numbness in his right leg at this stage.
Symptoms are aggravated by lying for too long either on his bed or couch, or by twisting, and he avoids bending and lifting. He does get relief by stretching and resting, but not for too long, by taking his tablets and having a back massage. At the moment he simply takes an anti-inflammatory and Panadol when he gets the pain.
Past History
As far as past history is concerned, he said that after working for PGC Projects Pty Ltd for some three years he developed intermittent pain in his low back which would worry him once or twice a year, and he would have to take a week off at those times, and his back pain became progressively worse with time until he was getting it on average every three months, and he would have to rest for three to four days after each episode.
Activities of Daily Living
He still goes to gym five days a week but has to be very careful, and he says he does ‘more reps, less weight’. He will still have an occasional game of basketball but does not really feel he can run or jog properly.
3. Findings on clinical examination
Mr Rodriguez is a tall, strongly built adult male in no obvious discomfort today who undresses and dresses without a problem, walks without a limp and has a good range of back movement, getting his fingertips as far as his ankles in flexion. He says prior to his injury he was easily able to place his hands flat on the ground. Lateral flexion to the left is slightly more restricted than to the right.
Straight leg raising is present to 85° on the left, and became uncomfortable at 70° on the right. Reflexes are present apart from his left ankle jerk which is absent (incidental finding).
Mr Rodriguez does have hypoaesthesia to pinprick over the lateral border and sole of his right foot in an S1 distribution and this is distinct and present with repeated testing.
Motor power was good in all groups tested and there was no wasting to circumferential measurement.
He has a small well-healed low back scar and I elected not to palpate his low back today.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Rodriguez has not had any further investigations carried out, but I do note that he had an MRI of his lumbar spine carried out on 11 March 2022 following his operation, which was an L4/5 micro discectomy, and the radiologist notes ‘there is L5/S1 mild discovertebral degenerative change and a posterior disc bulge which may irritate the S1 nerve roots in the lateral recess’.”
The Appeal Panel is satisfied that Medical Assessor Pillemer has conducted a thorough examination of the appellant and consequently the Appeal Panel adopts his findings from his examination of the appellant. They reveal that the appellant has sensory loss in the S1 distribution. This means the appellant meets one of the major criteria of paragraph 4.27 of the Guidelines. Further and as already discussed, the MRI scan on 16 March 2022 is consistent with the appellant’s sensory changes, meaning he also meets a second criterion.
The Appeal Panel therefore finds the appellant has radiculopathy as defined by the Guidelines.
In accordance with paragraph 4.37 of the Guidelines the appellant’s impairment is to be assessed by reference to DRE Lumbar Category III, because the appellant has had decompression surgery, which attracts a base rating of 10% WPI. No challenge was made to the Medical Assessor’s assessment that 2% WPI should be added to that for the effect the appellant’s impairment has on his ADL. Further, because the appellant has residual symptoms and radiculopathy a further 3% WPI is to be combined in accordance with table 4.2 within paragraph 4.37 of the Guidelines, meaning that his permanent impairment with respect to his lumbar spine is 15% WPI.
As said earlier also, no challenge was made to the Medical Assessor’s assessment that the appellant has 1% WPI. Consequently, the Appeal Panel assesses the appellant to have 16% WPI from his injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
20 September 2023 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: | W5196/23 |
Applicant: | Alejandro Sanroman Rodriguez |
Respondent: | PGC Projects Pty Ltd |
This Certificate is issued pursuant to s328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Drew Dixon 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) |
| Lumbar spine | 22.5.2020 | Chapter 4 Paragraph 4.27 Table 4.2 | Table 15.3 | 15% | - | 15% |
| Scarring | 22.5.2020 | Chapter 14 Table 14.1 | 1% | - | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0