Saleh v Insurance & Care New South Wales
[2021] NSWPICMP 139
•3 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Saleh v Insurance & Care New South Wales [2021] NSWPICMP 139 |
| APPELLANT: | Mahmoud Saleh |
| FIRST RESPONDENT: | Bassam Yasin |
| SECOND RESPONDENT: | Insurance & Care New South Wales |
| APPEAL PANEL: | Member Catherine McDonald Dr Drew Dixon Dr Margaret Gibson |
| DATE OF DECISION: | 3 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Cervical spine injury; whether assessor correct to assess worker in DRE cervical category I; worker argued that intermittent symptoms in arm were non-verifiable radiculopathy; no correspondence with cervical spine pathology; nerve conduction studies never undertaken; other possible explanations for symptoms; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 May 2021 Mahmoud Saleh 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 April 2021.
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,
· the MAC contains a demonstrable error.
The delegate was 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 WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
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 Saleh was injured on 7 July 2014 when he fell down four stairs of a marble staircase while carrying a box contain bottles. He initially complained of pain at the thoraco-lumbar junction of his spine and his lower rib cage. Within a few days, Mr Saleh developed pain in his neck, lower thoracic back, right trapezius and right arm. He had numbness and paraesthesia in his right hand and a burning sensation on the outside of his right thigh.
Mr Saleh saw Dr M Guirgis, orthopaedic surgeon, in 2014 but has not seen a specialist since then. He has undergone physiotherapy and chiropractic treatment.
The Medical Assessor was asked to assess Mr Saleh’s cervical spine, thoracic spine and right upper extremity.
He said that there was no assessable impairment of Mr Saleh’s right upper extremity because the intermittent symptoms in his right forearm are emanating from his cervical spine. The Medical Assessor assessed 0% whole person impairment (WPI) in respect of Mr Saleh’s cervical spine and 6% in respect of his thoracic spine .
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 WorkCover Medical Assessment Guidelines 2006.
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 MAC does not disclose an error. A medical examination cannot take place unless error has been found[1].
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792; Mercy Connect Limited v Kiely [2018] NSWSC 1421.
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.
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 and in submissions prepared by his solicitor Mr Elmiski, Mr Saleh said that the Medical Assessor erred in not assessing him in DRE cervical category II because of his non-verifiable radicular complaints. He said that the Medical Assessor recorded that Mr Saleh complained at the time of the examination of symptoms in his neck and arm, which were consistent with the complaints made to the independent medical examiners.
Mr Saleh did not dispute the Medical Assessor’s assessment of his thoracic spine or his right upper extremity.
In reply and in submissions prepared by its solicitor Mr Dolan, the Nominal Insurer submitted that the Medical Assessor appropriately assessed Mr Saleh in DRE cervical category I. He did not observe features consistent with cervical category II, in particular, that Mr Saleh did not fulfil the criteria for radiculopathy in paragraph 4.27 of the Guidelines. The Nominal Insurer noted that neither Dr M Giblin (qualified for Mr Saleh) nor Dr Breit (qualified for the Nominal Insurer) assessed Mr Saleh in DRE cervical category II.
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[2] 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor set out the history he obtained from Mr Saleh, including his return to lighter duties in the period from one and a half years after the injury to one year before the examination (about 2016 to early 2020). He set out the history of treatment and noted that
Mr Saleh is not under specialist treatment.The Medical Assessor described Mr Saleh’s present symptoms in detail:
“At the time of today’s assessment Mr Saleh states that his most significant discomfort is in the lower half of his thoracic spine posteriorly where he has discomfort present all of the time. He states he is able to drive a car but only short distances because of this significant discomfort. The pain is experienced posteriorly.
There is also a lesser discomfort in his posterior cervical neck which occurs with prolonged sitting and which is not present at rest. The pain in the lower thoracic back is the most significant discomfort.
He also describes a feeling of partial sensory loss on the ulnar side of the right forearm involving the 4th and 5th finger, which occurs at night, and at times of prolonged sitting. This symptom was not present at the time of the initial consultation today but was noted at the end of the consultation.
Mr Saleh states that the discomfort in his low thoracic back can be experienced at times in the upper lumbar back and is associated intermittently with discomfort in the lateral aspect of the right thigh, although this was not present today.”
The Medical Assessor noted that Mr Saleh had begun to experience discomfort over the right and left olecranon regions in the last three months which did not appear to be related to the injury.
The Medical Assessor set out his findings on examination of Mr Saleh’s cervical spine:
“At the time of today’s examination there is a full symmetrical range of motion of the cervical spine in all planes including flexion and extension and lateral flexion and rotation to the right and left with no evidence of palpable or paravertebral muscle spasm or guarding. There is, however, pain described on terminal extension and lateral flexion and rotation to the left. There is no asymmetrical wasting of the right and left shoulder girdle.
He demonstrates a full symmetrical range of right and left shoulder movement at the time of today’s assessment with flexion to 180º, extension to 50º, abduction to 170º, adduction to 40º and internal and external rotation to 80º on the right and left side with no description of shoulder discomfort.
The right arm and forearm at maximal circumference demonstrate a 0.5 cm circumferential dominance consistent with his right-handedness. All deep tendon reflexes of the right and left upper extremities are symmetrically present and equal and there are no abnormalities of tone. He has no wasting of hand musculature. At the time of today’s assessment, however, there is a described partial sensory loss over the ulnar side of the right forearm and involving the 5th and 4th finger, which is consistent with the C8 anatomy.”
While there is no complaint in respect of the Medical Assessor’s assessment of Mr Saleh’s thoracic spine, it is relevant to note the difference in examination findings. The Medical Assessor recorded:
“On examination of the thoracic spine there is an asymmetrical active range of motion noted with flexion and extension and lateral flexion and rotation to the right to full expected normal range but with flexion and lateral rotation to the left to two-thirds of normal range with a description of discomfort. There is, however, no evidence of palpable or paravertebral muscle spasm or guarding.”
The Medical Assessor reviewed a series of radiological investigations undertaken in 2014. A CT scan of Mr Saleh’s whole spine on 18 August 2014 showed the following with respect to the cervical spine
“CT scan of the cervical spine unremarkable with no evidence of disc bulge or protrusion or evidence of any canal or foraminal stenosis. There is no evidence of nerve root compression and the foramen appears to be patent bilaterally…”
An MRI scan of the cervical spine on 16 September 2014 showed:
“Minor disc dehydration present at C5/6. Tiny disc bulges at C4/5 and C5/6. The right C4/5 facet joint degeneration results in mild right C4/5 foraminal stenosis. Tiny disc bulge results in subtle left C4/5 foraminal stenosis. No other foraminal or canal stenosis demonstrated.”
The Medical Assessor summarised his findings:
“Prior to a work injury on 11 July 2014 Mr Saleh had no previous injury or painful disorder associated with his axial spine or indeed his right or left upper extremities. As a result of a significant fall, he presents with a soft tissue injury to his cervical neck and thoracic spine. The suggestion of a C6 compression fracture is not substantiated by the specialist advisors relating to the CT and MRI scans of the thoracic spine. It is also noted that the radiologist relating to the initial plain x-rays of the cervical and thoracic spine at the Bankstown-Lidcombe Hospital reported no evidence of recent fracture.
There has been no direct injury to the right or left shoulder area. The recent onset of right and left olecranon discomfort in the last 3 months is not related to the current accident.
There continues to be discomfort in the cervical neck with the most significant discomfort being in the lower half of the thoracic spine posteriorly. The intermittent C8 type partial sensory loss in the right upper extremity is intermittent and is not explained by the relative normality of cervical scans and x-rays at that particular level…”
The Medical Assessor explained the reasons for his assessment of Mr Saleh’s cervical spine:
“At the time of today’s assessment there is a symmetrical normal range of movement of the cervical neck in all planes with complaint of discomfort on extension and turning to the left. At the time of today’s physical examination there is no loss or asymmetry of reflexes or evidence of muscle weakness or muscle wasting that can be anatomically localised to appropriate spinal nerve root distribution or not explained by the Applicant’s righthandedness.
The imaging studies are not consistent with the clinical signs. There is intermittent impairment of sensation that can be localised to the appropriate spinal nerve root distribution (C8). However, in my opinion the definition of radiculopathy as set out in Item 4.27 of the Guidelines is not met, with the definition requiring two or more of a list of clinical signs to be present. Therefore, with reference to the Guidelines and Table 15.5 AMA 5, at the time of today’s assessment the Applicant demonstrates a DRE Cervical Category I impairment – 0% whole person impairment.”
In respect of the right upper extremity, the Medical Assessor said:
“At the time of today’s assessment there is no assessable impairment relating to the right upper extremity. The intermittent symptoms into the right forearm are emanating from a cervical neck disorder. There is no range of motion loss relating to the right upper extremity and, therefore, there is no requirement for assessment of impairment.”
Other medical evidence
The CT scan dated 18 August 2014 was reported by Dr M Chew as showing an “unremarkable examination of cervical spine.” The results of the MRI scan reported on by Dr B Lam on 16 September 2014 are as recorded at [26] above – that is the description of disc bulges as “tiny” was that of the radiologist.
Mr Saleh has not seen a specialist or had any investigations since 2014. He saw Dr M Guirgis on 9 December 2014 and a short report was attached to the Application to Resolve a Dispute. Dr Guirgis considered that Mr Saleh may have had right ulnar cubital tunnel syndrome and referred him for electro-physiological testing. Dr Guirgis said that Mr Saleh had minimal symptoms in his neck.
It appears that the nerve conduction studies were not undertaken. A WorkCover claims officer noted on 6 October 2015 that Mr Saleh had failed to attend any treatment appointments and failed to contact his rehabilitation provider. Mr Saleh was asked to rebook the appointment for nerve condition studies and to attend.
The notes from his general practitioner, Dr Hanna, do not contain any reference to those studies having been undertaken.
Mr Saleh saw Dr M Giblin at the request of his solicitors on 13 May 2020. He noted that Mr Saleh has had right sided neck pain since the injury and that he complained of burning, stiffness and numbness in his right arm on an intermittent basis. Dr Giblin observed an asymmetric range of motion of Mr Saleh’s neck and that movement beyond the observed range caused muscle spasm. He diagnosed aggravation of underlying degenerative change in the cervical spine, with a restriction of right shoulder movement due to neck pain. He did not say that he had diagnosed radiculopathy. Dr Giblin assessed Mr Saleh in DRE cervical category II. Dr Giblin deducted one-tenth for a pre-existing condition. He assessed 0% in respect of the right upper extremity in respect of the right shoulder.
Dr R Breit examined Mr Saleh on behalf of the Nominal Insurer and prepared a report dated 4 November 2020. He obtained a history that Mr Saleh had occasional peri-scapular pain and numbness in the posteromedial right upper arm, along the border of the ulnar forearm and into the ulnar two fingers. Dr Breit said that cervical flexion and extension were normal but other movements were restricted to one-third of normal on formal examination of the neck. At other times in the consultation, Dr Breit saw much greater rotation of the neck. He considered that Mr Saleh now had a factitious disorder.
Mr Saleh said in his statement dated 3 March 2021 that he has done manual work following his injury – as a factory hand, in formwork and in landscaping. He said that his middle back has always been the most troublesome.
Reasons
It is clear that Mr Saleh does not fulfil the criteria for a diagnosis of radiculopathy as defined in paragraphs 4.27 of the Guidelines and the submissions filed on his behalf do not suggest that he does. Paragraph 4.28 provides:
“Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
The criteria for assessment in DRE cervical category II in Table 15.5 of AMA 5 are:
“Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity.”
For assessment in DRE cervical category II, the findings must be compatible with a specific injury. The possible findings are then set out and include non-verifiable radicular complaints which are defined.
Dr Giblin did not explain why he assessed Mr Saleh in DRE cervical category II but it is explained by his observation of asymmetric loss of the range of motion. He did not say that he observed non-verifiable radiculopathy.
The Medical Assessor was required to undertake his own assessment of Mr Saleh as he presented on the day of examination. He carefully described his examination of Mr Saleh’s cervical spine. He found a full symmetrical range of motion and no neurological signs. There was no muscle guarding or spasm. On that basis, the only symptom which could lead to an assessment in DRE cervical category II was non-verifiable radiculopathy.
A finding of non-verifiable radiculopathy is made on the basis of a worker’s complaint but it is not the case that all complaints of pain in a worker’s arm after a neck injury are either radiculopathy or non-verifiable radiculopathy.
There is nothing shown on the radiological investigations which is likely to impinge on the nerve roots which would cause sensory loss in the distribution described by Mr Saleh. The symptoms he describes in his fourth and fifth fingers relate to a possible C8 nerve root distribution. There is nothing on the imaging to support any radicular pain in that distribution. The changes shown on the MRI scan are minor and at C4/5 and C5/6. Any radicular symptoms in the C4/5 and C5/6 distribution might be expected in Mr Saleh’s right thumb.
Mr Saleh has also complained of symptoms on the ulnar side of his right forearm. In December 2014, Dr Guirgis considered that Mr Saleh may have had right ulnar cubital tunnel syndrome and referred Mr Saleh for nerve conduction studies. There is no evidence that Mr Saleh underwent those studies and it appears that he did not.
It is possible that the intermittent symptoms which Mr Saleh describes are a result of right cubital tunnel syndrome. Mr Saleh never underwent the relevant tests, thus preventing any accurate diagnosis and possible treatment.
The symptoms he suffers cannot be described as non-verifiable radiculopathy and there is no other basis on which Mr Saleh could be assessed in DRE cervical category II. Assessment in category I does not deny that he suffered an injury or that he suffers pain but results in 0% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 April 2021 should be confirmed.
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