Sperinck v State of New South Wales (Western Sydney Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Sperinck v State of New South Wales (Western Sydney Local Health District) [2022] NSWPICMP 335
APPELLANT:	Lisa Sperinck
RESPONDENT:	State of New South Wales (Western Sydney Local Health District)
Appeal Panel:	Member William Dalley Medical Assessor Roger Pillemer Medical Assessor John Brian Stephenson
DATE OF DECISION:	22 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against the assessment of impairment where the appellant worker was assessed as falling within diagnosis-related estimate (DRE) lumbar category 4 with finding of no radiculopathy and failure to add modifiers for subsequent surgery; respondent appropriately conceded the error with respect to failure to add the appropriate allowances for subsequent surgeries but asserted that the assessment with respect to absence of radiculopathy was soundly based upon examination; Held — the limited signs observed upon examination constituted sound evidence of radiculopathy and the finding by the Medical Assessor was not open on the evidence; the Medical Assessment Certificate was revoked and additional allowance was made in respect of radiculopathy and the subsequent surgical procedures.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 June 2022 the appellant, Lisa Sperinck, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 May 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 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 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 s 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, Lisa Sperinck commenced employment with the respondent, Western Sydney Local Health District, at the Blacktown Hospital in 2014 as a ward clerk. On 24 May 2016
Ms Sperinck suffered injury to her lumbar spine when she slipped and fell while pushing a patient in a wheelchair.
Ms Sperinck consulted her general practitioner, Dr Moss, who prescribed physiotherapy and medication. She continued to suffer painful symptoms and was referred to a sports physician, Dr Boundy, who recommended a cortisone injection and physiotherapy.
Ms Sperinck experienced worsening symptoms and was referred to a neurosurgeon,
Dr Shanu Gambhir, who performed a number of surgical procedures, lumbosacral discectomy, lumbosacral posterior fusion, lumbosacral anterior fusion and lumbosacral anterior fusion revision.
In July 2021 Ms Sperinck was examined by Associate Professor Nigel Hope, orthopaedic surgeon, at the request of Ms Sperinck’s solicitors for the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987.
Associate Professor Hope diagnosed a lumbosacral fusion with persisting radiculopathy. He assessed Ms Sperinck as falling within DRE lumbar 5, warranting 25% whole person impairment (WPI) with an additional 2% WPI for the effects on activities of daily living combined with modifiers in respect of radiculopathy and further operations to give 32% WPI.
Ms Sperinck’s legal representatives made a claim for lump-sum compensation in accordance with that assessment and for scarring. The respondent arranged for Ms Sperinck to be examined by an orthopaedic surgeon, Dr John Bosanquet, who examined Ms Sperinck on
26 November 2021. Dr Bosanquet noted the history of injury and subsequent treatment and diagnosed an L5/S1 disc lesion with radiculopathy and failed back surgery.
Dr Bosanquet initially assessed Ms Sperinck as having 25% WPI (DRE lumbar 5) and added 2% WPI for impact on activities of daily living combined with modifiers following surgery to give a combined assessment of 32% WPI. Dr Bosanquet assessed one third of the impairment as due to a pre-existing degenerative condition.
Upon consideration of paragraph 4.37 of the Guidelines, Dr Bosanquet subsequently amended that assessment to place Ms Sperinck within DRE lumbar 4 and accordingly amended his assessment to 27% WPI, reduced to 18% after deduction of one third due to pre-existing degenerative changes.
The dispute as to the level of impairment arising from the subject injury was referred to the Medical Assessor for assessment of impairment arising from injury to the lumbar spine and scarring.
The Medical Assessor examined Ms Sperinck on 23 May 2022. The Medical Assessor classified Ms Sperinck as falling within DRE lumbar 4. He added 3% WPI for impact on activities of daily living. He deducted one tenth to give 22% WPI in respect of the lumbar spine after rounding. The Medical Assessor assessed scarring as attracting a further 1% WPI to give a total of 23% WPI[1].
[1] The Table 2 attached to the MAC appears to contain a typographical error which affects the overall level of impairment assessed. The Medical Assessor records "Table 15.3 [AMA 5] DRE 4 category-20%, ADLs -3%" but records 24% WPI. As the Panel has redetermined the extent of impairment, that error is of no significance.

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 enable it 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.

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 two respects. The first relates to the failure by the Medical Assessor to make allowance for additional surgical procedures to the lumbar spine when assessing the level of impairment. Further, the appellant submits that the Medical Assessor’s finding that no allowance should be made for radiculopathy when assessing the lumbar spine was not open to the Medical Assessor on the evidence.
In reply, the respondent appropriately accepts the first allegation of error but submits that the Medical Assessor appropriately examined the appellant and, as a result of that examination, was satisfied as matter of clinical judgement that radiculopathy was not present and no error in that regard was established.

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 appellant asserts and the respondent accepts that the Medical Assessor has failed to apply the modifiers provided pursuant to paragraph 4.37 and Table 4.2 of the Guidelines with respect to second, third and fourth surgical procedures.
Table 4.2 of the Guidelines relevantly provides with respect to the lumbar spine:
“second operation – 2%
third and subsequent operations – 1% each”
The Panel accepts that error has been established with respect to this ground of the appeal. The parties agree and the panel accepts that it is appropriate that an additional 4% WPI be added to the assessment to make allowance for the effects of further surgery.
The effect of the appellant’s second ground is to allege that the Medical Assessor has determined that radiculopathy was not present upon examination when that finding was contrary to the evidence.
Upon examination the Medical Assessor recorded:
“Sensory testing to light touch was performed and I was not able to clearly determine a sensory deficit in the distribution of an appropriate spinal nerve root. There appeared to be generalised that wholesale decreased sensation to light touch on the right leg particularly located on the dorsal aspect of the foot and to a lesser extent the lateral border of her calf.”
The Medical Assessor noted:
“The motor strength of the muscle groups supplied by L4 and L5 on the right foot were Grade 5 and normal and I observed that there was no evidence of significant motor deficit in either inversion or evolution. Active plantar flexion was at least Grade 4, if not 5.
The physical examination findings were compromised by marked allodynia which was a major feature in this inhibited maximum effort against resistance. Straight leg raising was not attempted owing to the complaint of pain in relation to the right leg but on the left side was 40°.”
The Medical Assessor noted the reports of the scans performed on the lumbar spine on
27 December 2018, 24 July 2019, 13 August 2020, 28 October 2020, 16 November 2020,
1 December 2020, 17 January 2021 and 30 March 2021. As noted by the Medical Assessor, the scans in January and March 2021 raised the issue of right L5 nerve root involvement.
The Medical Assessor noted a difference in calf circumference of 4 cm between the right and left leg and of 1 cm between the right and left thighs[3]. The Medical Assessor considered and discarded a diagnosis of complex regional pain syndrome or cauda equina syndrome.
[3] Atrophy is established if there is a difference in circumference at the thigh of 2 cm or more and 1 cm or more in the leg. (AMA 5, Box 15-1, page 382.)
The Medical Assessor assessed Ms Sperinck as falling within DRE lumbar category 4 in accordance with Table 15-3 and Chapter 15 of AMA 5. He said: “I did consider the issue of radiculopathy attracting a DRE 5 category assessment, but on today’s physical findings, I could not be satisfied that there was clear evidence of radiculopathy as defined by the criteria in paragraph 4.27 and page 27 of the Guides”. He noted that Ms Sperinck would not permit him to assess right ankle reflex. The Medical Assessor reported:
“Because of persisting symptoms in the right lower extremity, a careful clinical examination was conducted in order to illicit [sic – elicit] sufficient signs to satisfy a definition of radiculopathy and thereby including the assessment for under Table 4.2 on Page 29 of the Guides, if present.”
The Medical Assessor noted the report of Associate Professor Hope dated 19 July 2021 noting “The physical findings are concentrated into a single sentence which records positive nerve root tension signs with decreased by touch sensation in the right L5 dermatome and S1 dermatome. No other findings are recorded. The conclusion is for a persisting radiculopathy”.
The Medical Assessor also noted the report of Dr Bosanquet dated 12 January 2022, reporting:
“Doctor Bosanquet in his report 12 January 2022 notes the spinal fusion attracts a DRE 4 at 20% with a further 2% for ADLs and then goes to the modifiers in Table 4.2 on page 29 of the Guides. He adds the 2%, 3%, 4% (on this occasion, the second third and fourth operation attract a 1% WPI each that produces of 3% [sic] which needs to be combined and not added).”
The Medical Assessor noted Dr Bosanquet’s findings on examination. He noted that
Dr Bosanquet had reported:
“straight leg raising is recorded at 70° bilaterally with altered sensation on the right foot. Some colour changes on the foot were noted. It was recorded that it was too painful to examine her knee and ankle or illicit knee jerks. No other recording in relation to objective radicular findings were noted.”
The appellant drew attention to the finding of radiculopathy by Associate Professor Hope and Dr Bosanquet and to the findings of the Medical Assessor upon examination and suggested alternative methods of assessment that were available to the Medical Assessor.
The respondent submitted that the Medical Assessor had performed a careful examination and had come to a conclusion based upon that examination and consideration of the documentary evidence. That conclusion was a matter of clinical judgement and was open on the evidence.
The Panel has considered the criteria set out in paragraph 4.27 of the Guidelines[4] with respect to radiculopathy. The Panel is satisfied that the evidence that was before the Medical Assessor established radiculopathy within those criteria.
[4] page 27
The Medical Assessor reported; “wholesale decreased sensation to light touch on the right leg particularly located on the dorsal aspect of the foot and to a lesser extent the lateral border of her calf”. The presence of change in relation to sensation in the dorsal aspect of the foot and lateral border of her calf, are typical of L5 nerve root distribution and, in the opinion of the Medical Assessor members of the Panel, establish one of the major criteria “reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution”.
Two of the minor criteria were established with respect to atrophy in the leg and findings on an imaging study consistent with the clinical signs. Atrophy is established by the measurements of the legs as recorded by the Medical Assessor and the reports of the imaging in respect of the L5 nerve are consistent with the clinical signs.
The finding of radiculopathy is consistent with the findings of associate Professor Hope and Dr Bosanquet, both of whom concluded that radiculopathy was present upon their respective examinations.
The panel is satisfied that the Medical Assessor’s finding that he could not be satisfied that radiculopathy was present was not open to him on the evidence and error is established in respect of that ground of the appeal. The evidence was not only sufficient to establish radiculopathy but, in the opinion of the Panel, necessarily established that condition.
The Panel has reviewed the whole of the evidence including the statement of the appellant, the radiological reports and the reports of the respective independent medical experts and the treating practitioners. Paragraph 4.37 notes “operations for spinal fusion (successful or unsuccessful) are considered under DRE category IV (AMA 5 Table 15-3, 15-4 or 15-5)”.
The Medical Assessor appropriately assessed Ms Sperinck as falling within DRE lumbar category 4. That assessment has not been the subject of any submission by the parties and the Panel accepts that it accords with paragraph 4.37 of the Guidelines. That classification gives 20% WPI.
No submissions have been addressed to the assessment of 3% in respect of impact on activities of daily living pursuant to paragraph 4.33 of the Guidelines. The Panel accepts the Medical Assessor’s assessment of 3% WPI as unchallenged in the appeal. That figure is added to give 23% WPI.
Paragraph 4.37 also provides “Radiculopathy persisting after surgery is not accounted for by AMA 5, table 15-3 and incompletely by tables 15-4 and 15-5, which only refer to radiculopathy that is improved following surgery”. The Guidelines substitute Table 4.2 which relevantly provides with respect to the lumbar spine:
“Spinal surgery with residual symptoms and radiculopathy (refer to 4.27 in the Guidelines) – 3%
Second Operation – 2%
Third and subsequent operations – 1% each”
As noted above, the Panel accepts that the presence of radiculopathy within paragraph 4.27 of the Guidelines is made out, attracting 3%.
Ms Sperinck underwent four surgical procedures as a result of the subject injury:
(a)    right L5/S1 microdiscectomy – 31 January 2019;
(b)    interbody L5/S1 posterior fusion – 5 November 2019;
(c)    anterior interbody fusion – 12 November 2020, and
(d)    revision anterior interbody fusion – 17 November 2020.
The second operation attracts 2% and the third and fourth operations attract a further 2% (i.e. 1% each). The modifiers pursuant to paragraph 4.37, Table 4.2 total 7%. That total is combined with the impairment of 23% from Table 15-3 and paragraph 4.33 pursuant to the Combined Values Chart[5] to give 28% WPI.
[5] AMA 5, Page 604
The parties have addressed no submissions to the deduction of one tenth of that figure by the Medical Assessor pursuant to section 323 of the 1998 Act. Having regard to the mild changes shown to be present shortly after the date of injury, the Panel accepts that a deduction of one tenth in the circumstances is appropriate. A deduction of 2.8% gives a total of 25% WPI after rounding.
The assessment of scarring did not form part of the appeal and it is appropriate to combine 1% WPI for scarring (TEMSKI) to the impairment arising from the subject injury giving a total of 26% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 May 2022 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:	W1307/22
Applicant:	Lisa Sperinck
Respondent:	State of New South Wales (Western Sydney Local Health District)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Peter Giblin 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 NSW workers compensation guidelines	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)
1. Lumbar spine	24/05/2016	Chapter 4, paragraphs 4.17- 4.21, p. 25; 4.27, 4.33, p. 27; 4.37, p. 29; Table 4.2	Chapter 15, p. 373; Table 15-3, p. 384; para 15.4; Combined Values Chart, p. 604	28%	1/10	25%
2. Scarring (TEMSKI)	24/05/2016	Table 14.1, p. 74	1%	nil	1%
Total % WPI (the Combined Table values of all sub-totals)					26%

[2022] NSWPICMP 335

22 August 2022