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

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (Sydney Local Health District) v Azer [2022] NSWPICMP 401
APPELLANT:	State of New South Wales (Sydney Local Health District)
RESPONDENT:	Basma Azer
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Dr Gregory McGroder
MEDICAL ASSESSOR:	Dr Brian Stephenson
DATE OF DECISION:	13 October 2022
CATCHWORDS:	wORKERS cOMPENSATION- Appeal by employer from 18% whole person impairment for cervical spine injury; whether Medical Assessor’s (MA) reasons adequate; whether MA entitled to rely on year old expert report to supply radiculopathy findings pursuant to chapter 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021); whether MA correct to assess impairment on the beneficial nature of the workers compensation scheme; Held – legislative basis for guidelines considered; MA admitted inability to find radiculopathy considered; reasons inadequate to explain path of reasoning; Wingfoot Australia Partners Pty Ltd v Kocak and Campbelltown City Council v Vegan applied; beneficial nature of scheme irrelevant in the absence of any ambiguity of inconsistency; Project Blue Sky v ABA considered; nature of guidelines considered ADCO Constructions Pty Ltd v Goudappel applied; worker re-examined, Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 May 2022 State of New South Wales (Sydney Local Health District), the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Peter Giblin, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 7 April 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 ground(s) 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 15 March 2022 an amended referral for assessment was made to the MA seeking an assessment of WPI caused to the cervical spine and left upper extremity by injury on
9 March 2020.
On the morning of 9 March 2020, whilst working as a patient liaison officer at the Royal Prince Alfred Hospital, the worker was exiting via the fire exit to get some coffee. She slipped on the surface she was walking on and as she was falling, she took her body weight on her left hand on a rail. This caused acute pain in the left shoulder, neck and upper back.
She has suffered symptoms since.
The MA assessed 18% WPI in relation to the cervical spine and nil for the left upper extremity.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant employer did not seek to have the worker re-examined by a MA who is a member of the Appeal Panel. However, as the Panel found there to be a demonstrable error a re-examination became necessary.

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.

Further medical examination

Medical Assessor McGroder of the Appeal Panel conducted an examination of the worker on 28 July 2022 and reported to the Appeal Panel.

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 which have been considered by the Appeal Panel.

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 employer alleged that the MA had failed to apply the relevant guidelines and criteria by which the impairment of the cervical spine should be assessed.

The MAC

The MA took a consistent history of Ms Azer’s injury. Her presentation on examination was described as follows[1]:
“Today, she had a very short stepped gait and was continuously reliant on her husband to support her by her right arm and that included helping her get in and out of a chair.
Her affect was severely depressed and associated with delayed slow whispering speech.
Her voluntary activities in terms of active range of motion assessment were severely reduced.”
[1] Appeal papers p 25.
During examination he noted that it was not possible to move the left shoulder either actively or passively because of the pain. He noted also:[2]
“The active range of motion in [the] cervical spine during the formal part of the examination, was repeatedly nil in any direction.”
[2] Appeal papers p 25.
He said that during the informal aspects of examination the active range of motion remained nil.
The MA had available investigations which consisted of relevantly, an X-ray of the cervical spine of 13 March 2020 and an MRI scan of the cervical spine dated 24 April 2020. The
X-ray had the radiograph but did not have the report, and the MRI scan had the report but not the radiograph.
The MA noted that the report of the MRI scan showed bulging at C4/5 and spondylotic changes at C5/6 with a left side disc bulge abutting the cord without compression or signal change. There were also spondylotic changes at C6/7.
As to consistency of presentation at [7] the MA said:
“consistency of presentation
The symptoms and signs were not proportional as the level of voluntary co-operation was restricted to near zero on account of reported pain and the objective physical findings, remained symmetrical and not indicative of gross and serious underlying structural anomalies.”
At [10], in giving his reasons for assessment, the MA noted the MRI scan of 24 April 2020. He then considered an MRI of the brachial plexus of 20 June 2020 which had compared the cervical MRI scan of 24 April 2020, noting that the radiographer suggested that there was a degree of cord impingement at C6/7, being a slight flattening of the cord, but no with changes on the T2 weighted index.
The MA said:
“This would imply an absence of swelling or oedema involving the neural element. However, Dr Brennan has raised the prospect of a decompression operation for the cervical spine.”
The MA said:[3]
[3] Appeal papers p 28.
“In my physical examination findings, the only abnormality appeared to be decreased sensation to light touch in the left C6 dermatome, to repeated testing.
I could not support that with objective physical findings in terms of reflex asymmetry or
absence, and it was not possible to evaluate muscle weakness in either the C6 or C7
dermatomes.
However, I note that Dr Todd Gothelf in his report 31 May 2021 was able to make an
assessment of muscle weakness involving the C6 dermatome which produced a DRE 3 category assessment for the cervical spine.
Today, I did not have the hard copy MRI scans for contemporaneous viewing, for my
assistance.
Given the beneficial nature of the Workers Compensation Legislation, I have made a
determination of a DRE 3 classification as opposed to a DRE 2 classification. I have had to rely on Dr Gothelf’s report, Dr Brennan’s letters, and minimal objective clinical evidence, today.”
The MA then addressed the opinions of other medical specialists at [10c].
He referred to a report of Dr Todd Gothelf, orthopaedic surgeon, who said:[4]
“Under the heading, Opinion, on page 9, the report refers to two criteria which may satisfy Section 4.27, page 27 of the Guides in relation to radiculopathy. These criteria were muscle weakening in the C6 dermatome distribution and sensation loss in the same dermatome. These findings were said to be consistent with the imaging (It should be note that I did not have these images to verify myself).”
[4] Appeal papers p 29.
In considering the report of Dr Ron Muratore, sport and exercise physician, dated
1 April 2021 the MA noted that Dr Muratore’s physical examination made subtle references to illness behaviour in relation to the cervical spine.
The report of Dr Stephen Rimmer, orthopaedic surgeon dated 1 December 2021 was also commented on, and the MA noted that Dr Rimmer’s examination “records that the patient was very drowsy and shook uncontrollably”.

SUBMISSIONS

Appellant employer

The appellant employer referred to the legislative authority for the application of guidelines to the assessment of WPI under the NSW workers compensation scheme.
It submitted accordingly that a reference to the applicable guidelines demonstrated that the assessment of DRE III was not open to the MA, as the criteria required for such an assessment were simply not present.
The appellant employer submitted that a DRE I or a DRE II assessment should have been made.
The appellant employer also challenged the 3% WPI awarded with regard to the activities of daily living (ADLs), and we were referred to the relevant guidelines in that regard. The history taken as to the ADLs it was submitted, did not justify the assessment made.
We were referred to the well-known passage from Wingfoot Australia Partners Pty Ltd v Kocak[5] that the actual path of reasoning by which an assessor arrived at his opinion must be explained.
[5] [2013] HCA 43 (Wingfoot).

Respondent worker

The respondent submitted that it was “not permissible” for the employer to “impermissibly dissect aspects of the MA’s certificate, so as to expose error”.
It was suggested that the appellant employer’s eye was too attuned to error, and we were referred authority in that regard.
The respondent agreed that the dicta in Wingfoot was relevant and the fundamental question in the case was whether the assessor disclosed his actual path of reasoning.
It was submitted that the MA’s reference to the workers compensation legislation as beneficial was not a relevant error. The legislation was in fact beneficial and “numerous authorities had stated so”. (We were not referred to any particular authority in that regard).
We were invited to “revisit the certificate as a whole” and it was submitted that the MA could not ignore his responsibilities simply because he was having difficulties with the examination.
It was not unusual in such a situation, it was submitted, that the worker be assessed with a DRE III impairment as it accorded with chapter 1.46 of the Guides. Chapters 1.46 – 1.48 permitted the MA to undertake the assessment the way he did, it was claimed.
It was submitted that “there was no serious dispute” that the evidence showed that the worker had displayed signs and symptoms consistent with radiculopathy over the years. Reference was made to scans taken in 2020, and it was submitted that the medical practitioners had supported that contention.
It was also submitted that decompressive surgery was only appropriate in situations involving radiculopathy, and that therefore the recommendation of surgery made to the applicant must mean that radiculopathy existed.
The appellant employer was seeking to “impugn the discretion and clinical judgment exercised by the MA” by its submission that a DRE III was erroneous, the worker claimed.
The respondent submitted that the finding of DRE III assessment was “a judgment call” and that it was difficult to see what other category the worker could have fitted into.
So far as the submission made by the appellant employer that adequate reasons had not been given, the respondent, in an apparent reference to the dicta in Wingfoot, said that the MA was not required to accept either party’s expert opinion, but had to reach a conclusion based on all the circumstances. It was submitted that, although not appealed against, the Panel should also review the nil assessment of the left upper extremity.
The last submission made was, as we understood the submission, that there should be an “entire re-assessment” and claimant should be re-examined.

DISCUSSION

The legislative authority for the issue of guidelines is contained in s 322(1) of the 1998 Act:
“322 ASSESSMENT OF IMPAIRMENT
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”
Section 376(1) of the 1998 Act provides:
“(1) The Authority may issue guidelines with respect to the following—
(a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury,”
This legislation thus requires an MA to apply the relevant guidelines in the assessment of lump sum compensation. The Guides and AMA5 are the relevant guidelines for this purpose.[6]
[6] Guides chapter 1.1, p 3.
Chapter 4.5 of the Guides states that in assessing the spine:
“4.5 The DRE model for assessment of spinal impairment should be used. The range of motion model (AMA5 sections 15.8–15.13 inclusive, pp 398–427) should not be used.”
Chapter 4.20 provides:
“4.20 While imaging and other studies may assist medical assessors in making a diagnosis, the presence of a morphological variation from ‘normal’ in an imaging study does not confirm the diagnosis. To be of diagnostic value, imaging studies must be concordant with clinical symptoms and signs. In other words, an imaging test is useful to confirm a diagnosis, but an imaging study alone is insufficient to qualify for a DRE category (excepting spinal fractures).”
Chapter 4.21 provides:
“4.21 The clinical findings used to place an individual in a DRE category are described in AMA5 Box 15-1 (pp 382–83).
The reference to ‘electro-diagnostic verification of radiculopathy’ should be disregarded.
(The use of electro-diagnostic procedures such as electromyography is proscribed as an assessment aid for decisions about the category of impairment into which a person should be placed. It is considered that competent assessors can make decisions about which DRE category a person should be placed in from the clinical features alone. The use of electro-diagnostic differentiators is generally unnecessary).”
Chapter 4.27 provides:
“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).”
Chapter 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.”
AMA 5 sets out the DRE criteria or the cervical, thoracic and lumbar categories of impairment. The criteria for a cervical spine DRE III impairment states as follows:[7]
“Significant signs of radiculopathy, such as pain and/or sensory loss in a dermatomal distribution, loss 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
individual had clinically significant radiculopathy, verified by an imaging study that demonstrates a herniated disc at the level and on the site expected from object of clinical findings with radiculopathy or with improvement of radiculopathy following surgery.
or
(not relevant as it relates to fractures.)”
[7] AMA 5 p 392, Table 15.6.
It can be seen that in cases involving the presence of radiculopathy the criteria in AMA5 for a DRE III finding is specific, and the Guides provide for further variation on that specificity.
The MA admitted that the only sign he could find was decreased sensation to light touch in the left C6 dermatome. He did not find muscle weakness and he did not state specifically that there was a reproducible impairment of sensation that was anatomically localised to an appropriate spinal nerve root distribution, although he did state that the decreased sensation in the left C6 dermatome was found after “repeated testing”.
The Panel was unable to distinguish whether therefore the MA had in fact found two of the bold criteria necessary pursuant to chapter 4.27. We would have thought that if that were the case, he would have said so in more emphatic terms and it seems likely that he was referring to non-verifiable radicular symptoms as described in chapter 4.28.
Similarly, it was clear that the MA could not make a definitive finding as to any imaging study because he did not have the scans for contemporaneous viewing, and the comparative report on the MRI scan of the brachial plexus of 20 June 2020 and the MRI scan of the cervical spine caused him to doubt whether there was a neural element revealed.
Instead, the MA referred to the opinion of Dr Brennan, who had raised the prospect of a decompression operation. Dr Jeffrey Brennan, neurosurgeon, was the worker’s treating specialist and whilst he did discuss prospective surgical intervention on 29 December 2020, we note his comments in his report of 26 November 2020:[8]
“Basma clearly presents a difficult case with evolving chronic pain syndrome bordering on a complex regional pain issue with multiple spots of surgical pathology including the discs, the nerve root exit foramen, and her shoulder. I stand by my previous opinion where I think any one surgery or other is very unlikely to lead to improvement in all of her pain. It does make me worry that she is entrenching a complex regional pain syndrome and of course in that situation predicting response to any surgical treatment can be very challenging.”
[8] Appeal papers p 49.
The relevance of the MA’s reference to Dr Brennan’s opinion about proposed surgery we accordingly have difficulty in grasping.

Similarly, the MA referred to Dr Gothelf’s examination of almost a year earlier on
31 May 2021 that found muscle weakness involving the C6 dermatome, upon which
Dr Gothelf based a DRE III finding. Dr Gothelf said:[9]
“Physical examination demonstration [sic] two criteria that satisfy the section 4.27 p. 27 the Guides criteria for a radiculopathy, including muscle weakness in the C6 dermatomal distribution, sensation loss in the dermatomal distribution, and findings on imaging consistent with clinical signs.”
[9] Appeal papers p 43.
The MA disagreed with that assessment because he did not have the hard copy MRI scans. We assume also that he had some reservations as to whether the examination findings of sensation loss and muscle weakness were indeed in the C6 dermatomal distribution and/or were reproducible in view of his findings as to the decreased sensation he found in the C6 dermatome which we discussed above. Again, the MA’s reasoning is unclear, although his own view following the assessment seemed to be that a DRE II classification was the appropriate one. This follows from his comment that “given the beneficial nature of the Workers Compensation Legislation”, he would allow a “DRE 3 category as opposed to a DRE 2 classification”.
Thus we find that the MA has fallen into error, as his reasons are not adequate to explain his finding. We are uncertain as to whether the MA, on his own assessment, found sufficient criteria to establish radiculopathy, although, as indicated, it would appear that he thought a DRE II was indicated.
In Wingfoot the Full Court of the High Court stated at [47]:
“…The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
Further, the MA did not himself find the presence of radiculopathy. He discounted the imaging studies as being of assistance, and found, perhaps (although it is not certain), that there was only one bold criterium, being the decreased sensation to light touch in the C6 dermatome. In opining on the correctness of Dr Brennan’s opinion as to surgery, and of
Dr Gothelf as to the presence of criteria a year or so earlier, the MA has again made a demonstrable error. The MA’s own assessment appeared to be that a DRE II category assessment was appropriate, as we have indicated.
The MA invoked the beneficial nature of the jurisdiction to justify his placing Ms Azer in DRE category III, and in doing so made a further error. Whether a provision of legislative authority is beneficial or not is a question that only arises where there is some ambiguity or inconsistency in the provision concerned. It is an aid to statutory interpretation, and only relevant where there is such ambiguity or inconsistency. There was none in the present delegated legislation of the guidelines, and thus the MA has erred at law in introducing the concept to his reasons.
Further, we do not agree with the respondent’s submission that there were “numerous authorities” (none of which were cited), to support that proposition. Indeed, in the relevant authority, ADCO Constructions Pty Ltd v Goudappel[10] the High Court stated at [29]:
“29. It can be accepted, as was put by counsel for Mr Goudappel, that the WCA's [Workers Compensation Act’s] remedial character …reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified. …The purpose … was clear enough. …. Its purpose was patently not beneficial.”
[10] [2014] HCA 18.
So it is with the application of the relevant guidelines. There is no ambiguity as to the purpose of the guidelines, and thus no construction is required. The guidelines are of a medical and scientific nature and of necessity can be quite precise. They provide criteria by which impairment is to be measured, and are accordingly technical, as can be seen from chapter 4.27. The application of them can sometimes be seen as harsh, as the MA thought in the present case, but there is no legal basis by which they can be ignored because of the general beneficial nature of the jurisdiction.[11]
[11] See Project Blue Sky v ABA [1998] HCA 28 at [70].
Accordingly the MAC must be revoked. We note the respondent’s invitation to re-assess the nil finding by the MA for her left upper extremity, but as no appeal was lodged against that finding by either party, we decline the invitation.
In view of the difficulty we identified above with the reasons given by the MA, a re-examination was appropriate. Medical Assessor McGroder’s report follows:

“Examination Conducted By:	Dr Greg McGroder
Date of Examination:	28 July 2022

1.   The workers medical history, where it differs from previous records
The medical history was as recorded by Dr Giblin with regard to her injury.
2.   Additional history since the original Medical Assessment Certificate was performed
Mrs Azer’s treating specialist Neurosurgeon was Dr Brennan. When she saw him on 26 November 2020 surgery was discussed, as noted above. Dr Brennan sent her for a further MRI scan which was performed on 3 December 2020. This was basically unchanged from her previous scans and demonstrated discosteophyte complexes at C5/6 with compression of the left C6 nerve root.
She subsequently had a phone conference with Dr Brennan and he outlined the risks of surgery and said that he couldn’t guarantee the results. She was subsequently booked in for surgery at Royal North Shore Private Hospital in February 2021 but she said that she cancelled this surgery the day before.
She has subsequently not had any further contact with Dr Brennan. She has not seen other specialists for an opinion with regard to her medical management. She has not been further investigated.
With regard to her shoulder she had been seeing Dr Wallace, Orthopaedic Surgeon, but he wanted to leave her management in the hands of her Neurosurgeon.
She is currently taking Lyrica 150mg twice daily and Panadol Osteo. She ceased physiotherapy a year ago. She is not having any physical therapy.
She is having psychological therapy.
3.   Findings on clinical examination
Mrs Azer attended with her husband who assisted her with dressing, undressing and generally moving around.
Throughout the duration of the assessment she held her neck stiffly and her left arm protectively by her side at all times.
On assessment of range of movement of the cervical spine she did move her neck on forward flexion to 30 degrees with no backward extension. There was minimal lateral movement and rotation was limited to 20 degrees to the right and 40 degrees to the left. I couldn’t detect any wasting involving the upper extremity involving the shoulder, biceps, forearm, hypothenar and thenar eminence of the hand or small muscles of the hand. Biceps circumference at maximum was 30cm bilaterally and forearm circumference was 28cm bilaterally. On specific testing of muscle strength, this was minimal involving all muscle groups of the left upper extremity. I could not localise the weakness to any particular muscle groups.
Reflexes were noted to be equal and normal bilaterally.
On assessing sensation there was a global reduction of sensation involving the left upper extremity relative to the right. This was as judged by pin-point and light touch sensibility. I could not localise the diminished sensation to a particular dermatomal distribution.
On assessment of range of movement of the shoulder, on the right this was to approximately one half of the expected range in all directions. On the left, however, she demonstrated minimal movement at times and the maximum amount of movement I could determine was flexion and abduction to 30 degrees but this was less at different times during the assessment and by the end of the assessment she did not move it at all. I asked Mrs Azer to shrug her shoulders and she could do this on the right but made no attempt to do this on the left. Apart from that, there was no other alternate mechanism attempted to elevate the arm.
She displayed global tenderness involving the cervical spine and this included bony prominences and soft tissues. This tenderness extended through the whole of the shoulder, through the left arm and once again involved bony prominences and all muscles structures. The tenderness was to light touch.
Via Mrs Azer’s husband I asked her to place her left arm on the examination couch in order to more properly carry out the examination but she actively resisted her husband’s attempt at passive movements. It was noted, however, on testing reflexes that there was a significant amount of rotation of the shoulders as compared to when being specifically examined for range of motion.
4.   Results of any additional investigations since the original Medical Assessment Certificate
3 December 2020 – MRI Cervical Spine
A left paracentral posterior disc osteophyte complex at C5/6 is compressing the left C6 ventral nerve root, and the exiting left C6 nerve in the foramen. Overall, there has not been significant progression since April 2020.
Dr Giblin did not comment on the most recent cervical MRI scan which demonstrates the nerve root compression on the left at C6.
5.   Conclusion
Based on my assessment today I could find no evidence of radiculopathy involving Mrs Azer’s left upper extremity. Her reflexes were equal and normal. Her muscle weakness was global and not localised to a particular nerve root distribution. It was noted that there was no evidence of wasting involving the left upper extremity which is not medically consistent with someone who has a radiculopathy and a shoulder condition which has resulted in no use of the left upper extremity for over two years.
Similarly, her distribution of diminished sensation in the left upper extremity was global and not localised to a specific nerve root distribution. The only features, according to Section 4.27, with regard to the requirement for radiculopathy is an imaging finding which demonstrates nerve root compression at C6. This is, however, not consistent with the clinical signs.
Mrs Azer subsequently qualifies in DRE Cervical Category 2 at 5 to 8% WPI. There is a history of injury with dysmetria noted on examination. I have added 3% for the effects on ADL’s according to the history given by Mrs Azer and her husband. He outlines and he and the family look after this lady’s personal care. There is no deduction for a pre-existing condition.
Signed:     Dr G McGroder
Date:       28 July 2022”

The Panel adopts the report of MA McGroder.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 April 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:	W680/22
Applicant:	State of New South Wales (Sydney Local Health District)
Respondent:	Basma Azer

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 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 WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	% WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality	Sub-total/s % WPI (after any deductions in column 6)
Lumbar Spine	9/3/20	Chapter 4 Pages 26-33	Chapter 15 Page 384 Table 15.3	8%	Nil	8%
Left Upper Extremity	9/3/20	Chapter 1 Sections 1.23 and 1.36	Chapter 16 Pages 476/477/479 Figures 16.40/16.43/16.46 Table 16.27	nil	Nil	nil
Total % WPI (the Combined Table values of all sub-totals)					8%

[2022] NSWPICMP 401

13 October 2022