Scimone v Godolphin Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Scimone v Godolphin Australia Pty Ltd [2022] NSWPICMP 502
APPELLANT:	George Scimone
RESPONDENT:	Godolphin Australia Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	6 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in failing to consider the report of Dr Bodel regarding radiculopathy; Panel accepted that the MA did not refer to Dr Bodel’s report; however, the Panel noted that Dr Bodel had seen the appellant some 16 months prior to the MA and had in fact predicted continuing improvement; the MA’s findings on the day confirmed that improvement; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 August 2022 George Scimone (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 July 2022.
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 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.
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, 4^th ed
1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

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 MA erred in failing to consider the report of
Dr Bodel regarding radiculopathy.
In reply, the respondent submits that no errors were made.

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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the lumbar spine and scarring resulting from an injury on 21 May 2020.
The MA obtained the following history:
“Mr Scimone related that on 21/05/20, he was exercising a horse. The horse apparently pushed its head down, pulling him forward. He corrected the horse and stood in the stirrups. As he did this, he experienced severe pain in his lower back.
His lower back was very sore, but he continued working for the next three days. The condition deteriorated further with radiation down his right leg.
He eventually saw his doctor and appropriate investigations were taken. This demonstrated discogenic pathology at the L5/S1 articulation and also a pars inter-articularis defect.
He came under the care of Specialist Neuro-surgeon, Professor Brian Owler. Further investigations were taken. At that stage he was developing foot drop on the right side. Professor Owler advised that the only realistic way of managing this condition was to stabilise the pars inter-articularis defect with an appropriate fusion. This seems to have been contested, although did in fact go ahead on 27/07/20. This consisted of a laminectomy at L5, complete excision of the L5/S1 disc, the insertion of a disc spacer and posterior pedicle screws and bars to stabilise the articulation.
He has had quite a lot of subsequent physiotherapy.
He tried to get back to work, although found this extremely difficult. One of the things that concerned him more than anything was the possibility that he would hurt his lower back further in this relatively uncontrolled environment. Eventually he ceased this work.”
Present symptoms were reported as follows:
“Since the stabilisation surgery in his lower back, he has experienced continuous lower back pain at a relatively moderate level. He tries to minimise any medication to control this. Occasionally he experiences cramping sensations down the right leg.”
Findings on physical examination were noted as follows:
“Back. There was a mid-line well healed surgical scar over the lumbar spine. There was relatively mild tenderness in the mid-line. The lumbar lordosis was flattened. All other spinal curvatures were normal. On forward flexion he could reach his mid-thighs with a McRae-Wright movement of 3cm. This is stiff. 5cm is the lower limit of normal. Extension was minimal. Lateral flexion and rotation to each side were reduced to half the range.
Lower Limbs. He walked normally. He was also able to walk on heel and toe. He made a brave effort at squatting and was able to achieve a very reasonable squat and rise again.
The right leg was minimally shorter than the left. The thighs and calves had the same circumferences respectively.
No significant features were identified with the hips, knees or ankles.
Sensation to pinprick was reduced over the medial side of the right ankle, to a lesser extent over the dorsum of the right foot and to the least extent, over the lateral side of the right ankle, suggesting relatively minor continuing irritation of the L4, L5 and S1 nerve roots in that order of severity. Elsewhere sensation was throughout the normal distribution.
Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
The straight leg raise test was conducted in the sitting position on the edge of the couch. He could easily extend each knee without difficulty.”.
After summarising the injuries and diagnoses, the MA explained his reasons for assessment as follows:
“The lumbar spine is addressed in AMA 5 Page 384, Table 15-03. There has been a fusion which places Mr Scimone into DRE Lumbar Category IV. This provides a whole person impairment ranging between 20% and 23%, depending on the activities of daily living. He has been unable to return to his most favoured choice of physical activity, which was riding. He also has difficulty with assisting around the house. For this he would attract a further 2%, giving 22% WPI.
Scarring. This is addressed in the SIRA Guidelines Page 74, Table 14.1. This was a standard surgical approach for a defined elective condition and the scar has healed without complications. This therefore rates as 0%.”
The MA then turned to consider other medical opinions stating:
“Specialist Neuro-surgeon, Dr Vidyasagar Casikar has a relatively similar whole person impairment with the same original baseline. No additional component is given for activities of daily living, which with great respect I believe should have been given, since Mr Scimone is now functionally very much less capable than he was before this event.”
The MA added:
“Attention is drawn to the pre-existing L5/S1 pars inter-articularis defect. This would predispose Mr Scimone to further lower back dysfunction. A one-tenth deduction is therefore applied. (This is the same approach taken by Specialist Neuro-surgeon, Dr Vidyasagar Casikar.) This reduces Mr Scimone’s whole person impairment from 22% down to 20%.”
The appellant submits as follows:
(a)     the MA failed to consider the opinion of Dr Bodel and as a result he failed to consider whether there was persisting radiculopathy after the disc replacement procedure. He also failed to give reasons;
(b)     Dr Bodel saw the appellant on 26 March 2021;
(c)     in his examination Dr Bodel found that straight leg raising was 80 degrees on the left but only 70 degrees on the right. There were mild nerve root tension signs and a mildly positive sciatic nerve stretch test. The right leg was the same size as the left. In a right -handed person this is evidence of wasting. There was weakness of plantar flexion on the right side. The right ankle jerk was present but diminished compared with the left;
(d)     Dr Bodel found that there were persisting signs of mild continuing radiculopathy;
(e)     Dr Bodel observed that his findings were consistent with the clinical findings of
Dr Owler, the treating surgeon;
(f)      because of the persisting signs the Dr applied Table 4.2 on page 29 of the Guidelines to find an additional 3% impairment. This was combined to produce an overall impairment of 24%;
(g)     no explanation was given why the clinical findings and opinion of Dr Bodel (who is also an Assessor ) were not of relevance. As pointed out above they were of great relevance. Those findings established radiculopathy and pointed out that a consideration of Table 4.2 was necessary when making an assessment;
(h)     the MA had taken a history that following the injury the appellant had suffered a foot drop. Following the surgery he continued to experience cramping sensations down the right leg;
(i)      on examination the calves were the same circumference indicating that the wasting was persisting. Sensation to pinprick suggested continuing irritation of the L4, LS and S1 nerve roots. Those findings are sufficient for a finding of radiculopathy applying the Guides. There was also imaging consistent with the clinical findings. The straight leg raising test was conducted sitting rather than the more sensitive prone position;
(j)      despite these findings and the opinion of Dr Bodel the Assessor does not consider whether there was persisting radiculopathy, and
(k)     the appellant's statement said that he had persisting weakness in the right leg, reduced reflexes in the right lower limb, altered sensation in the right lower limb and a reduced range of movement in the right lower limb. Despite saying that the statement was particularly relevant the Assessor makes no reference to the content of the statement.
The appellant’s submissions continue in the same vein, namely the failure by the MA to consider the report of Dr Bodel and his findings on examination.
The Panel accepts that the MA did not refer to the report of Dr Bodel in his MAC.
However, we note that Dr Bodel examined the appellant on 26 March 2021, some 16 months prior to the MA’s assessment.
At the time of his examination, Dr Bodel noted:
“At this stage, nine months post- surgery, he has made steady progress and is slowly getting back to work.
He indicates that pre-operatively he had severe pain which he rated as a 10/10 on a Visual Analogue Scale, where 10 is the most severe pain imaginable. He was requiring Endone and Lyrica. At this stage, he states that he is now done to about a 4/10 on a good day and a 7/10 on a bad day. He is managing the pain with Panadol Osteo and no longer requires the narcotic medication.
He has been recently reviewed by Dr Owler. I note a CT scan done in January 2021 showing that the fusion is in satisfactory position and is consolidating nicely. I do anticipate that he will improve further over time (our emphasis) and he is already making further steady progress in the leg in particular.”
We accept that at the time of his examination Dr Bodel said:
“The right ankle jerk is present but diminished when compared with the left side. There are therefore mild persisting signs of radiculopathy in the right leg following surgery.”
However, we note that on 9 February 2021 Dr Owler wrote:
“He has been well but does experience a low- grade back ache and also cramping of his right calf. We reviewed his CT scan of the lumbar spine which is satisfactory. There is no loosening of the instrumentation. The bone graft is progressing reasonably well the alignment is satisfactory and there is no evidence of neural compression (our emphasis).”
On 26 May 2021 Dr Casikar noted:
“He has now returned to riding horses…He does a fair amount of ADL activities at home. Mr Scimone in general seems to be happy with the outcome except for the back pain.”
The MA detailed his findings on examination at the time of his assessment, consistent with his task as set out in Chapter 1.6 of the Guidelines. He also gave adequate reasons for his findings on examination and adopted the right criteria for his assessment.
The MA’s physical findings addressed the criteria laid out in paragraoh 4.27 of the Guidelines:
(a)     reflexes were present and equivalent at the knees (L4) and the ankles (S1). (No loss or asymmetry of reflexes);
(b)     power in the extensor hallucis longus (L5) was equivalent. (No muscle weakness anatomically localised to an appropriate spinal nerve root distribution);
(c)     sensation to pinprick was reduced over the medial side of the right ankle, to a lesser extent over the dorsum of the right foot, over the lateral side of the right ankle, suggesting relatively minor continuing irritation of the L4, L5 and S1 nerve roots in that order of severity. (No reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution. A L5/S1 disc injury would not cause sensory loss in an L4 nerve root distribution;
(d)     there was no positive nerve root tension sign. Whilst the traditional straight leg raising test is normally done in the supine position, the seated position can be utilised when the client cannot lie flat due to significant pain or other physical restriction;
(e)     no muscle wasting or atrophy was found, and
(f)     the most recent investigations had not revealed nerve root compression.
The appellant’s submissions regarding wasting and calf measurements are misguided since they again refer to the findings by Dr Bodel some 16 months prior to the MA’s assessment.
Even though there was no reference to the report of Dr Bodel, in our view this is not fatal to the MA’s assessment given the time lapse and the numerous references to anticipated improvement.
It was frankly too soon after the surgery for Dr Bodel to be satisfied that the appellant had reached maximum medical improvement, as he himself acknowledged.
By the time MA saw the appellant both he and the operating neurosurgeon had confirmed no residual neural compression ie no radiculopathy.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 July 2022 should be confirmed.

[2022] NSWPICMP 502

6 December 2022