Starr and Comcare
[2014] AATA 268
•6 May 2014
[2014] AATA 268
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3523
Re
Sandra Starr
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr H Haikal-Mukhtar, MemberDate 6 May 2014 Place Sydney The Tribunal affirms the decision under review.
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Ms N Bell, Senior Member
CATCHWORDS
WORKERS COMPENSATION – compensation for injuries – whether injury permanent – degree of whole person impairment – non-economic loss – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 24, 27
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr H Haikal-Mukhtar, Member6 May 2014
Sandra Starr commenced employment with the Department of Defence in August 1998. Ms Starr sustained an injury to her left arm, neck and shoulder in September 2003. Comcare accepted liability for “tenosynovitis hand and wrist (left)”, “aggravation of cervical spondylosis without myelopathy” and “aggravation of disorders of bursae and tendons shoulder region (left)”. Ms Starr was medically retired in late 2004.
In January 2012, Ms Starr claimed permanent impairment and non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 for ‘cervical spondylosis with left C6/7 foraminal stenosis’. Comcare denied liability to pay compensation for permanent impairment and non-economic loss.
In order to be paid compensation for permanent impairment, Ms Starr must have a percentage of Whole Person Impairment of 10% or more (s 24(7)).
ISSUES
The sole issue for us to consider is whether Ms Starr has a permanent impairment of 10% or more under Table 9.15 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1.
The text of the relevant columns and their relevant parts in Table 9.15 is as follows:
Table 9.15: Cervical spine—diagnosis-related estimates
% WPI Criteria 8 Clinical history and examination findings compatible with specific injury. Findings may include: muscle guarding or spasm; asymmetric loss of range of motion or nonverifiable radicular complaints defined as complaints of radicular pain without objective findings.
No alteration of structural integrity
or
Clinically significant radiculopathy and radiologically demonstrated disc herniation consistent with the radiculopathy (improved following non-operative treatment)
or
Fractures:
> Compression fracture of one vertebral body of less than 25%
> Posterior element fracture without dislocation—healed without loss of structural integrity or radiculopathy
> Spinous or transverse process fracture with displacement.10-18 Significant signs of radiculopathy, such as pain and/or sensory loss in a dermatomal distribution, loss or alteration of relevant reflex(es), loss of muscle strength, or unilateral atrophy compared with the unaffected side, measured at the same distance above or below the elbow: the neurological impairment may be verified by electrodiagnostic findings
or
Clinically significant radiculopathy and radiologically verified disc herniation consistent with the radiculopathy, or with improved radiculopathy following surgery
or
Fractures:
> Compression fracture of one vertebral body of 25% to 50%—healed without loss of structural integrity, with or without radiculopathy
> Posterior element fracture with displacement disrupting the spinal canal—healed without loss of structural integrity, with or without radiculopathy.
Note: In the case of fractures, differentiation from a congenital or developmental condition should be accomplished, if possible, by examining pre-injury roentgenograms, if available, or by a bone scan performed after the onset of the condition.
It is clear from the Table that, in order to obtain an assessment at the required level of 10% or more, Ms Starr must attract a rating under the 10-18 percentile.
Therefore the essential question for us to answer is whether Ms Starr attracts a rating under the 10-18 percentile category of Table 9.15.
DOES MS STARR HAVE AN IMPAIRMENT OF 10% OR MORE?
Ms Starr described the following symptoms in her left arm, neck and shoulder:
·pain in the left neck and shoulder, radiating down the arm;
·when pain is acute it runs like “electricity” up the arm to the neck;
·throbbing sensation in the left forearm;
·tingling in 2nd, 3rd and 4th fingers of left hand;
·increased pain on increased activity;
·swelling on increased activity; and
·swelling and increased and pain in the arm on writing, with the pain radiating up to the neck.
The introduction to Table 9.15 contains a number of definitions that are relevant to Ms Starr’s presentation:
Atrophy is measured with a tape measure at identical levels on both limbs. For reasons of reproducibility, the difference in circumference should be 2cm or greater in the thigh, and 1cm or greater in the arm, forearm, or leg.
Electrodiagnostic verification of radiculopathy—unequivocal electrodiagnostic evidence of acute nerve root pathology includes the presence of multiple positive sharp waves or fibrillation potentials in muscles innervated by one nerve root. However, the quality of the person performing and interpreting the study is critical. Electromyography should be performed only by a physician qualified through education, training, and experience in these procedures. Electromyography does not detect all compressive radiculopathies and cannot determine the cause of the nerve root pathology. On the other hand, electromyography can detect non-compressive radiculopathies which are not identified by imaging studies.
Radiculopathy is significant alteration in the function of a nerve root or nerve roots, and is usually caused by pressure on one or several nerve roots. The diagnosis requires a dermatomal distribution of pain, numbness, and/or paraesthesia. A root tension sign is usually positive. A diagnosis of herniated disc must be substantiated by an appropriate finding on an imaging study. The presence of findings on an imaging study is insufficient to make the diagnosis of radiculopathy. There must also be clinical evidence as described above.
Reflexes may be normal, increased, reduced, or absent. For reflex abnormalities to be considered valid, the involved and normal limb(s) should show marked asymmetry between arms or legs on repeated testing. Once lost because of previous radiculopathy, a reflex rarely returns. Abnormal reflexes such as Babinski signs or clonus may be signs of corticospinal tract involvement.
Weakness and loss of sensation—to be valid, the sensory findings must be in a strict anatomical distribution (that is, follow dermatomal patterns). Motor findings should also be consistent with the affected nerve structure(s). Significant, long-standing weakness is usually accompanied by atrophy.
The opinions and clinical findings of four medical experts were available to the Tribunal. We heard oral evidence from three. We also had available to us the results of an electrodiagnostic test. Dr J Day, neurosurgeon, reported in 2004 the results of the EMG test as follows:
EMG nerve conduction studies reveal chronic inactive left C6/7 nerve root injury with regenerating changes seen in the left C5/6 nerve root territory. There is no evidence of upper limb peripheral nerve disease or active radiculopathy.
The experts’ interpretations of this result varied.
We turn now to the medical experts’ opinions.
Dr A Bookallil, consultant neurosurgeon (now deceased), assessed Ms Starr in 2012 and found her to have a whole person impairment of 8% under Table 9.15. He considered her symptoms to be minor and reported:
She does have a clinical history and examination findings comparable with the specific injury and findings may include muscle guarding or spasm, asymmetric loss of range of movement or non-verifiable radicular complaints. The findings are complaints of radicular pain without objective findings. She certainly does have non-verifiable radicular complaints.
Dr P Spittaler, consultant neurosurgeon, after initial assessments under the First Edition of the Guide, assessed Ms Starr in December 2012 as having a 8% whole person impairment under Table 9.15. He considered Ms Starr had no objective signs of radiculopathy. Later, in oral evidence, after he was asked to consider the results of the EMG and another doctor’s finding of wasting of one centimetre in Ms Starr’s left forearm, Dr Spittaler altered his assessment to 18% under table 9.15.
After agreeing that he had read Dr Day’s note of the results of the EMG test when he first examined and assessed Ms Starr, Dr Spittaler said he had been in error in not taking the EMG into account in making his assessment under table 9.15. However, in cross examination Dr Spittaler said he did not understand what was meant by the words “active” or “inactive” radiculopathy in the EMG as reported by Dr Day, although he said the report does verify radiculopathy. He agreed that where there is significant radiculopathy there would be wasting and weakness of the triceps muscle as the main site of innervation. He said the forearm, in which some wasting was recorded by one examining doctor, is a less important and more indirectly affected site in C7 radiculopathy. Dr Spittaler also said swelling, which Ms Starr had said she suffered with activity, is not a symptom of radiculopathy. He also said he found no restriction of triceps jerk or weakness of fingers extensors and wrist flexors on the left side in comparison with the right. Nor did he find reduced sensation in the left middle, index and ring fingers. However, he said one could find radiculopathy without girth discrepancy or weakness.
Dr Spittaler said that, clinically, he would generally find gross triceps weakness in significant radiculopathy and this was absent in Ms Starr. He said he did not consider her to have significant signs of radiculopathy.
Dr Trevor Best, orthopaedic surgeon, assessed Ms Starr as having an 18% whole person impairment under table 9.15. He found altered sensation in the left middle, index and ring fingers; left triceps jerk slightly reduced; slight weakness of left triceps; slight weakness of the left fingers extensors and flexors; one centimetre wasting of left forearm. He said the EMG result confirmed his diagnosis. When asked what matters, in particular, prompted him to assess whole person impairment as 18% instead of 8% he said:
The wasting of the left forearm was the most objective finding I found, plus the sensory loss of the left middle, index and ring fingers, which was a consistent complaint of hers, which corresponded with the C7 root compression which has been noted radiological (sic). Tr. p.28
Although Dr Best said he did not read the EMG results when he made his assessment, when they were read to him he said he considered they confirmed C7 radiculopathy.
When asked about the absence of tricep wasting, Dr Best said he would not necessarily expect to see tricep wasting when forearm wasting was present. He said he did not consider that the forearm wasting might be caused by disuse.
Dr Gautum Khurana, consultant neurosurgeon, assessed Ms Starr as having a 0% whole person impairment under table 9.15. He noted the absence of objective signs of radiculopathy and interpreted the EMG as indicating no radiculopathy. Dr Khurana disagreed with Dr Best’s assessment, calling it a “description of the perfect radiculopathy”.
Dr Khurana said swelling is not a feature of radiculopathy. He also said that pain flowing from the forearm to the neck could be caused by a compressed ulnar nerve or by inflammation of a joint. In cervical radiculopathy, however, pain would radiate from the cervical spine to the arm. He also said that if a forearm is readily swollen through activity it is less likely to be atrophic. He said that in a C7 radiculopathy he would expect to see the main affected muscle, the triceps, affected by atrophy. He considered a one centimetre loss of bulk in the forearm to be in a “grey area” because of the variations that might arise from imprecise use of a tape measure. He said that when a person guards a limb and uses it less then atrophy can occur.
In relation to the EMG report of Dr Day, he said the report’s description of chronic inactive nerve root injury indicates changes that are relatively mild. He said a chronic active radiculopathy indicates something that is robust or acute. He concluded from the report that there is no active radiculopathy in that there is no radiculopathy taking place. He said this was in line with Dr Day’s recommendation that no decompression surgical procedure be administered. In cross examination, Dr Khurana agreed that the EMG report is an objective finding of nerve root impairment but added the caveat that there is a contradiction in the report in that it says there is no active radiculopathy.
We note that an assessment of 8% requires “nonverifiable radicular complaints defined as complaints of radicular pain without objective findings” while an assessment of 10 – 18% requires “Significant signs of radiculopathy” which may include pain and/or sensory loss in a dermatomal distribution, loss or alteration of relevant reflex(es), loss of muscle strength, or unilateral atrophy compared with the unaffected side, measured at the same distance above or below the elbow. The neurological impairment may be verified by electrodiagnostic findings.
We are inclined to prefer the opinions of Drs Bookallil and Spittaler - in the first incarnation of Dr Spittaler’s opinion. We consider, on the basis of Dr Spittaler’s evidence under cross examination and Dr Khurana’s evidence-in-chief, that the EMG report is either so confusing in its terms as to be of no effective use or that the words “There is no evidence of upper limb peripheral nerve disease or active radiculopathy” in the report indicate there is no radiculopathy. However, given the use of the words “may be verified” in the table in relation to electrodiagnostic findings, we do not consider this is a bar to a finding of radiculopathy.
However, there is little else by way of objective findings or significant signs to support an assessment of 10 – 18%. Of the four doctors who examined Ms Starr, only Dr Best found altered sensation in the left middle, index and ring fingers; left triceps jerk reduced; weakness of left triceps; weakness of the left fingers extensors and flexors; and one centimetre wasting of left forearm, this last being classed by him as the “most objective finding [he] found”. Dr Khurana said he considered this to be a finding “on the cusp”, not made by him, and we note that no other doctor found this or any other atrophy. We think Dr Best is on his own in his objective findings.
Rather than Dr Khurana’s view that Ms Starr should be assessed at 0%, given her complaints of radicular pain without objective findings we consider she falls with the 8% assessment bracket.
We find that Ms Starr does not have an impairment of 10% or more under Table 9.15. It follows that she may not be paid compensation for permanent impairment.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 28 (twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, Dr H Haikal-Mukhtar, Member. .....[Sgd]...................................................................
Associate
Dated 6 May 2014
Dates of hearing 10-11 April 2014 Counsel for the Applicant Mr G Smith Solicitors for the Applicant Burke & Mead Lawyers Counsel for the Respondent Mr P Woulfe Solicitors for the Respondent SRC Legal, Comcare
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