State of New South Wales (NSW Police Force) v Turner

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (NSW Police Force) v Turner [2025] NSWPICMP 200
APPELLANT:	State of New South Wales (NSW Police Force)
RESPONDENT:	Janine Turner
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	25 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Employer alleged assessment on basis of incorrect criteria and demonstrable error; assessment of lumbar spine by Medical Assessor as DRE III in circumstances where there was no finding of radiculopathy and no evidence to support a finding of radiculopathy (clause 4.27 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021); Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 January 2025 the State of New South Wales (NSW Police Force) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, Medical Assessor, who issued an amended Medical Assessment Certificate (amended MAC) on 18 December 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
3.     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.
4. Rule 128 of 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 r 128(1) of the PIC Rules.
5.     The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Janine Turner (Ms Turner) lodged an Application to Resolve a Dispute (Application) with the Personal Injury Commission (Commission) dated 11 September 2024 for weekly benefits, medical expenses and lump sum compensation in respect of an injury to the thoracic spine deemed to have occurred on 22 October 2021 and an injury to the lumbar spine deemed to have occurred on 23 May 2011.
On 17 July 2024 Member Parnel McAdam issued a Certificate of Determination - Consent Orders remitting the matter to the President for referral to a Medical Assessor pursuant to
s 321 of the 1998 Act for assessment as follows;
(a)    date of injury 1: 23 May 2022;
(b)    body systems/parts: lumbar spine ;
(c)    method of assessment: whole person impairment;
(d)    Date of injury 2: 22 October 2021;
(e)    body systems/parts: thoracic spine, and
(f)    method of assessment: whole person impairment.
The Medical Assessor examined the appellant on 2 December 2024 and assessed 12% whole person impairment (WPI) of the lumbar spine and made a deduction of one tenth for pre-existing condition which resulted in an assessment of 11% WPI in respect of the injury to the lumbar spine on 23 May 2011. The Medical Assessor assessed 5% WPI of the thoracic spine and made a deduction of one tenth for pre-existing condition which resulted in an assessment of 5% WPI in respect of the injury to the thoracic spine on 22 October 2021.

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.
The appellant did not request that Ms Turner be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms Turner to undergo a further medical examination because there was sufficient information upon which to make a determination.

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 MAC.
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.
The appellant’s submissions include the following:
(a)    in a MAC dated 16 December 2024, the Medical Assessor assessed the lumbar spine at 10% WPI to which he added 2% WPI for the effects on the activities of daily living, resulting at 12% WPI. From this, the Medical Assessor deducted one tenth for a pre-existing condition to result at 11% WPI of the lumbar spine as a result of injury on 23 May 2011. The Medical Assessor also assessed the thoracic spine at 5% WPI as a result of injury on 22 October 2021;
(b)    on 16 December 2024 the appellant requested clarification pursuant to
s 329 of the 1998 Act of the Medical Assessor’s assessment of permanent impairment of the lumbar spine as a result of injury on 23 May 2011;
(c)    in the Medical Assessor's reasons for assessment at paragraph 10 (page 5) and in the MAC the Medical Assessor refers to the lumbar spine as assessed under DRE II but provides an assessment of 10% WPI. DRE II provides for a 5% WPI;
(d)    in an Amended MAC dated 18 December 2024 the Medical Assessor changed the reference to DRE II to DRE III in the body of the MAC and maintained the 11% WPI assessment of the lumbar spine as a result of injury on 23 May 2011;
(e)    the appeal is only in respect of the Medical Assessor’s assessment of the lumbar spine as a result of injury on 23 May 2011.
(f)    the assessment of the Medical Assessor was made on the basis of incorrect criteria and/or that the MAC contained a demonstrable error;
(g) the grounds specified in s 327(3)(c) and (d) have been made out. There is no basis for the Medical Assessor’s assessment of Ms Turner’s lumbar spine as a result of injury on 23 May 2011 to be assessed under DRE III;
(h)    the Medical Assessor did not make any finding of radiculopathy and records that Ms Turner does not describe any referred pain down either leg. There is no radiological evidence to support a finding of radiculopathy;
(i)    the assessment of 11% is considered a demonstrable error as DRE III is not satisfied and that the assessment of the lumbar spine as a result of injury on
23 May 2011 as satisfying DRE III is based on incorrect criteria;
(j)    Ms Turner was correctly assessed at DRE II as provided in the MAC dated
16 December 2024 prior to amendment however that the Medical Assessor’s assessment of 10% WPI for DRE II in the MAC dated 16 December 2024 was incorrect;
(k)    the correct assessment of Ms Turner’s lumbar spine for injury on 23 May 2011 is pursuant to DRE II as 5% WPI plus 2% WPI for ADL less 1/10th deduction to result at 6% WPI, and
(l)    the Amended MAC dated 18 December 2024 should be revoked. A further MAC should be provided assessing the following:
• lumbar spine - date of injury 23/05/2011 7% WPI less 1/10th 6% WPI, and
• thoracic spine - date of injury 22/10/2021 5% WPI less 1/10th 5% WPI.
Ms Turner’s submissions include the following:
(a)    the findings of the Medical Assessor were not discordant with the examination and observations on the day of the examination. Accordingly, the submissions that the Medical Assessor has applied the incorrect criteria and/or the MAC has a demonstrable error cannot be made out;
(b)    with respect to the lumbar spine, it is a matter for the Medical Assessor to determine the application of the AMA5 and DRE categories;
(c)    the Medical Assessor has correctly considered all of the medical evidence attached to both the Application and the Reply, including, in particular, the reports of the treating doctors;
(d)    in support of these submissions, reference is made to the medical report of
Dr Jane Standen dated 9 June 2022, statement of Ms Turner dated 13 April 2023, medical report of Dr Dale Kong dated 11 March 2024, c entry of Dr Bill Moss dated 20 May 2011, clinical entry of Dr Irina Chernyak dated
27 May 2013, clinical entry of Dr Harsh Gambhir dated 1 November 2021, clinical entry of Dr Bill Moss dated 19 October 2022, clinical entry of
Dr Bill Moss dated 13 December 2022, clinical entry of Dr Bill Moss dated
16 December 2022 and clinical entry of Dr Bill Moss dated 1 February 2023;
(e)    there is a wealth of medical evidence which supports the position that Ms Turner suffers from radiculopathy as a result of her lumbar spine injury;
(f)    having considered the supporting material, it is open for the Medical Assessor to make a finding Ms Turner suffers from DRE III as a result of her lumbar spine injury, and
(g)    the grounds of appeal have not been made out.

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.

Ground 1 – assessment of the lumbar spine

The appellant submits that the assessment of the Medical Assessor was made on the basis of incorrect criteria and/or that the MAC contained a demonstrable error because there is no basis for the assessment of the lumbar spine under DRE III.
In the amended MAC, under “History relating to the injury”, the Medical Assessor wrote:
“In 2011, she had developed sufficiently sore back that she reported it and this resulted in a change in job description with modified duties as she was moved to an intelligence position from general duties. She related the injury to wearing a heavy gun belt. She does not describe any referred pain down either leg.
She reported new pain in the left side of the upper back when she got out of her car on the way to work in Oct 2021. The pain was worsened when she rotated her body to the left. This new pain has been further investigated and was aggravated by a dispute about treatment and provision of an ergonomic chair”.

Under “Findings on physical examination”, the Medical Assessor wrote:
“On examination, she moves with care and through the interview did indeed move around and stood.
She walks slowly with no gait disturbance and could manage on heels and toes without difficulty.
Examination of the spine shows normal lordosis and kyphosis. In the lumbar spine, she has better flexion than extension and side bending was markedly uneven with limited side bending to the left and rotation further to the right than the left. She had a marked left sided lumbar spasm and on the right side there was some tenderness but no spasm.
The thoracic spine was generally stiffer than expected for age. I noted left sided paraspinal muscle pain and spasm.
Reflexes in both legs were very brisk and equal. Straight leg raising was to 90° on both legs”.
The Medical Assessor made a diagnosis of aggravation of degenerative changes to the thoracic and lumbar facet joints.
Under “Reasons for assessment”, the Medical Assessor wrote:
“The lumbar spine is assessed by the DRE method, as set out in T15-3 p 384. She has ongoing pain. She has objective findings of dysmetria and muscle spasm. This suggests DRE category III with 10%WPI…
A further rating is added from interruptions to ADLs as per 4.34 P 28 NSW guides. She is unable to complete household duties, so has the addition of 2% WPI to the lumbar spine impairment.
10% add 2% = 12% WPI.”.
DRE III at Table 15.3 of the Guides to the Evaluation of Permanent Impairment (5^th edition) at page 384 provides:
“Significant signs of radiculopathy, such as dermatomal pain and/ or in a dermatomal distribution, sensory loss, loss of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location; impairment may be verified by electrodiagnostic findings
or
History of a herniated disk at the level and on the side that would be expected from objective clinical findings, associated with radiculopathy, or individuals who had surgery for radiculopathy but are now symptomatic.
…”
The Guidelines provide:
“4.27 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major (major criteria 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).
4.28 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.”
Dr Mohammed Assem, rehabilitation specialist, in a report dated 23 August 2023 expressed the opinion that Ms Turner had chronic mechanical low back pain with asymmetry of movement and spinal dysmetria giving a DRE lumbar category II or 7% WPI inclusive of 2% for a moderate limitation in activities of daily living. Dr Assem applied a one-tenth deduction for pre-existing degenerative pathology resulting in an assessment of 6% WPI for the lumbar spine.
Dr Anthony Smith, consultant orthopaedic surgeon, in a report dated 11 December 2023 noted that as of August 2023; “there was constant nagging discomfort in the lower thoracic and lower back rated as 6-7/10, interfering with sleep. There was pain in the left groin and dysesthesia in the right buttock. There were no radicular symptoms.”
On examination, Dr Smith noted that there was no neurological deficit in either lower limb. He noted that there was a restriction in the range of movement of both hips, with right groin pain reproduced with internal rotation on the right, which is limited to 10 degrees. He noted that on the left, internal rotation is only 10 degrees, producing pain about the greater trochanter on the left. Dr Smith made a diagnosis of generalised spinal degenerative disease and bilateral hip joint osteoarthritis. He rated Ms Turner as DRE I for the lumbar spine and stated that she did not have a radiculopathy in either upper or lower limb.
Dr Melvin Chew, radiologist, in an MRI scan thoracic/lumbar spine report dated 5 May 2023 concluded: “Grade 1 degenerative spondylolisthesis of L3/4 with moderate to advanced bilateral facet joint arthropathy. Moderate bilateral facet joint arthropathy of L4/5. No nerve root compression or central canal stenosis.”
Dr Jane Standen, treating pain physician and interventional pain specialist, in a report dated 9 June 2022 wrote:
“Work-related injury was attributed to wearing a gun-belt and that this pain is lower lumbar pain. Janine describes this as a pulling pain with a radiating pattern into the left groin.
On examination there was a restricted lumbar range of motion. On palpation of the facet joints, there is tenderness to palpation over the upper thoracic facet joints and over the right sided lower lumbar facet joints.”
Ms Turner in her statement dated 13 April 2023 wrote:
“35. I experience the following effects as a result of my injury:
(a)     Stabbing back pain;
(b)     Cramping back pain; ...
(g)     Shooting pain to right hip;
(h)     Shooting pain to right leg; ...
42. I also experience severe pain in my lower back including shooting pain across my right hip and down my right leg. I also have pulled muscles on my left side due to overcompensating whilst trying to manage my injury. ...
51. I am always mindful of what I am doing for fear of my back flaring up or getting severe debilitating nerve pain in my right side. ...
53. At times, the pain caused with the pressure of going to the toilet requires medication to assist. I also try and use a mobility toilet when in public due to having rails to assist”.
In a medical report dated 12 March 2024, Dr Dale Kong, occupational physician, wrote: “The pain became worse sometime in October 2021 when she noted acute onset of pain radiating to her hips after getting out of the car. The pain was of sudden onset. She had significant movement difficulties at the time...”
Under “Current status” Dr Kong wrote:
“She is aware of a constant “niggling” lower back pain radiating to her hips…. In terms of acute episodes of pain, she reports that this may occur at least once a month where the pain would be acutely worse in her low back radiating to her hips…. She has significantly reduced functional tolerances due to her low back and hip pain. …Examination of her lower limbs revealed bilateral straight leg raising to about 70 degrees limited by lower back pain. Power in the lower limbs was normal. Sensation was intact. Reflexes were normal.”
The clinical notes of High Street Family Doctors include the following entries:
(a)    “Dr Bill Moss GP dated 20 May 2011: “note lumbar facet OA + disc bulging causing foramen narrowing + nerve impingement. has lumbar pain ref to L thigh since 2001”.
(b)    Dr Irina Chernyak dated 27 May 2013: “lumbar radiculopathy”.
(c)    Dr Harsh Gambhir dated 1 November 2021: “Sharp pain settled. Now more discomfort/ache. Also bilat hip pain L>R (since last 10 yrs)”.
(d)    Dr Harsh Gambhir dated 24 November 2021: “Feels lower back starting to become tender with mild radicular symptoms.”
(e)    Dr Bill Moss dated 19 October 2022: “Lumbar radiculopathy ongoing from previous injury as well”.
(f)    Dr Bill Moss dated 13 December 2022: “note lumbar disc bulging + L4 nerve impingements. Lumbar radiculopathy = aggravation of pre existing injury in 2011, suggest High St Radiology compare the 2 films for report.”
(g)    Dr Bill Moss dated 16 December 2022: “note new changes on CT lumbar 2011 to 2022. New L3/4 slip with right L4 impingement this correlates to intermittent whole R leg pain + giving way. Facet joint arthrosis has progressed. Reason for visit: …Lumbar radiculopathy”.
(h)     Dr Bill Moss dated 1 February 2023: “main pain + tenderness is around T12 aggravated by flexion + lateral flexion + L5 aggravated by flexion/extension/L+R lateral ROM~1/2 N, extension extension (sic) = nil.”
The Appeal Panel noted that in his neurological examination the Medical Assessor found that reflexes were brisk and equal, and that straight leg raising was to 90° on both sides.
However, the Medical Assessor did not make any finding of radiculopathy and recorded that Ms Turner does not describe any referred pain down either leg. The Appeal Panel is satisfied that the Medical Assessor did not find that the necessary criteria set out in Cl 4.27 of the Guidelines and therefore he could not conclude that radiculopathy was present.

Neither Dr Smith nor Dr Assem found radiculopathy when they examined the appellant in order to assess WPI.
The Appeal Panel finds that the Medical Assessor made a demonstrable error and based the assessment on incorrect criteria when assessing the lumbar spine as DRE III as he did not conclude that radiculopathy was present or make the findings necessary under cl 4.27 of the Guidelines.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 December 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W26149/24
Applicant:	Janine Turner
Respondent:	State of New South Wales (NSW Police Force)

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 Medical Assessor
Peter Honeyman 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	23/05/2011	4.34 p28	T15-3 p384	7	1/10	6%
2.Thoracic Spine	22/10/2021	T15-4 p389	5	1/10	5%
Total % WPI (the Combined Table values of all sub-totals) DOI 23/05/2011					6%

Total % WPI (the Combined Table values of all sub-totals)

DOI 22/10/2021

[2025] NSWPICMP 200

25 March 2025