Stojceski v Atco Controls Pty Ltd (deregistered)

DETERMINATION OF APPEAL PANEL
CITATION:	Stojceski v Atco Controls Pty Ltd (deregistered) [2022] NSWPICMP 214
APPELLANT:	Tony Stojceski
RESPONDENT:	Atco Controls Pty Ltd (deregistered)
APPEAL PANEL:	Member William Dalley Dr Drew Dixon Dr Gregory McGroder
DATE OF DECISION:	12 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Allegation of incorrect criteria and demonstrable error in the first appeal; further worker’s appeal based upon the availability of additional relevant information (MRI scan post examination); Medical Assessor (MA) alleged to have failed to take into account relevant considerations with regard to activities of daily living and to have failed to apply required tests for radiculopathy with respect to lumbar spine injury; subsequent MRI scan said to support greater interference with activities of daily living and presence of radiculopathy; Held- assessment of activities of daily living was open on the evidence and in accordance with the appellant’s own independent medical expert; additional statement contradicting history recorded by the MA not admitted; although MA did not record measurement of musculature in the legs, he reported that there was no evidence of radiculopathy, detailing findings with respect to the three major criteria, none of which were present. It was therefore unnecessary to report findings with respect to muscle wasting when appellant’s own independent medical expert had not detected any asymmetry; the first appeal failed; the second appeal alleged that the report of an MRI scan taken after the MA’s examination provided additional relevant evidence warranting re-examination; the report appeared only to confirm earlier imaging and was not relevant to a fact in issue; the second appeal failed and the Medical Assessment Certificate was confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 December 2021 the appellant, Tony Stojceski lodged an Application to Appeal Against the Decision of a Medical Assessor (the first appeal). The medical dispute was assessed by Dr Tom Rosenthal, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 November 2021.
In that appeal, W1-W2575/21, the appellant relies on the following grounds of appeal under section 327(3)(c) and (d) 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.
On 28 January 2022 the appellant lodged a further Application to Appeal Against the Decision of the Medical Assessor (the second appeal). In that appeal, M2-W2575/21, the appellant relies on the grounds of appeal under section 327(3)(b) of the 1998 Act; availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
The delegate is satisfied that, on the face of each of the applications, 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 appeals are 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

Mr Stojceski commenced employment with the respondent, ATCO Controls Pty Ltd, in about 1992. He initially worked as a raw materials handler and, after a short time, as a storeman and forklift driver.
Mr Stojceski suffered an injury to his low back on 24 April 1996 or 1998[1]. Mr Stojceski consulted his general practitioner and was treated conservatively with physiotherapy and cortisone injections. He was able to return to normal duties until 29 May 2001 when he suffered a further injury to the low back.
[1] There appears to be some confusion about the date of the first injury to Mr Stojceski's back. The first date of injury referred for assessment in the current proceedings is 24 April 1996 and the second is 29 May 2001. A Certificate of Determination issued by the Workers Compensation Commission on 19 July 2018 provided for a payment of lump-sum compensation in respect of permanent impairment of the back resulting from injury on 24 April 1998. An earlier Certificate of Determination dated 26 May 2011 also refers to an injury in April 1998. That date of injury is supported by the Employer's Report of Injury in evidence and is the date relied on in an Application to Resolve a Dispute filed in 2018. Nothing appears to turn on the discrepancy in the current appeal.
Mr Stojceski was off work for some six months and then returned to work on a gradual return which saw him performing his normal pre-injury duties in early 2002. He continued to suffer painful symptoms and had further periods off work. From October 2002 his employment was restricted to suitable duties and he was then again declared fit for normal duties in March 2003. Mr Stojceski continued to experience painful symptoms and was again placed on restricted duties which remained in place until his employment was terminated because of the closure of the respondent in 2004.
Mr Stojceski did not obtain further employment and continued to suffer painful symptoms in the low back. In 2005 he was referred to an orthopaedic surgeon, Dr Diwan, who recommended lumbar spine surgery. Mr Stojceski was reluctant to undergo surgery but consulted Dr Diwan on a number of occasions with continuing symptoms.
In 2008 Mr Stojceski was examined by Associate Professor Fearnside, who assessed permanent impairment of the back and loss of use of the legs for the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act). It appears that no claim for lump-sum compensation was made at that time as Associate Professor Fearnside recommended further investigation, noting the possibility of surgery.
Mr Stojceski ultimately accepted the need for surgery and Dr Diwan performed microdiscectomy at L2/3 and L4/5 on 8 July 2013. Mr Stojceski continued to experience painful symptoms and an unsuccessful trial of a spinal cord stimulator was carried out in 2017.
In November 2017 Mr Stojceski was examined by a consultant physician and rheumatologist, Dr Kwong, at the request of Mr Stojceski’s solicitors. Dr Kwong noted a history of onset of low back pain in 1998 when carrying boxes of heavy transformers, and a subsequent tripping injury in May 2001. He noted the surgery performed by Dr Diwan in 2013. He also noted that Mr Stojceski was proposing to see Dr Diwan again to consider whether further surgery should be undertaken. Accordingly, Dr Kwong believed Mr Stojceski had not reached maximum medical improvement.
Following further consultation, Dr Diwan did not recommend further surgery, and, in the light of that information, Dr Kwong assessed Mr Stojceski as having 16% whole person impairment (WPI) with respect to the lumbar spine and 1% WPI in respect of scarring to give a total 17% WPI. Pursuant to the Table of Disabilities he assessed 30% permanent impairment of the back.
Both injuries having occurred prior to 1 January 2002, Mr Stojceski’s solicitors made a claim in accordance with the assessment of 30% permanent impairment of the back. The insurer had Mr Stojceski examined by an orthopaedic surgeon, Dr John Watson, who assessed
Mr Stojceski as having 6% WPI. After consideration of the report of Dr Kwong, Dr Watson assessed Mr Stojceski as having 2% permanent impairment of the back as a result of an injury which he believed to have occurred in 1999 and 6% impairment of the back together with 5% loss of efficient use of the left and right legs, at or above the knee, as a result of the injury in 2001.
The dispute as to the extent of impairment/loss of use was referred to Dr Tom Rosenthal, then appointed as an Approved Medical Specialist (AMS). The injuries referred were injuries to the back on 24 April 1998 and 29 May 2001. The AMS assessed Mr Stojceski as having suffered 30% permanent impairment of the back. He apportioned that impairment as to 10% as a result of the 1998 injury and 20% as a result of the 2001 injury. On 19 July 2018 the Workers Compensation Commission issued a Certificate of Determination awarding payment pursuant to section 66 of the 1987 Act in accordance with that assessment.
Mr Stojceski’s solicitors sought agreement from the insurer that the effect of the injuries sustained on 24 April 1998 and 29 May 2001 had resulted in greater than 15% WPI. The insurer then had Mr Stojceski examined by a further orthopaedic surgeon, Dr Vijay Panjratan, who examined Mr Stojceski on 19 December 2018. Dr Panjratan assessed Mr Stojceski as suffering a total of 12% WPI. He deducted one tenth due to a pre-existing condition, to yield 11% WPI after rounding.
In June 2021 Mr Stojceski’s solicitors filed an Application for Assessment by a Medical Assessor in the Personal Injury Commission. The dispute was referred to Dr Rosenthal, appointed as a Medical Assessor since the commencement of the Personal Injury Commission, to assess permanent impairment as a result of injury to the lumbar spine and scarring on 29 May 2001. Dr Rosenthal assessed Mr Stojceski as suffering 13% WPI as a result of the two injuries to the lumbar spine with an additional 1% WPI in respect of scarring resulting from the later injury.

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 materials were available to the Panel to enable the Panel to determine the appeals.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
In his first Application to Appeal against the Decision of a Medical Assessor, M1-W2575/21, the appellant stated he did not seek leave to rely on the availability of additional relevant information that was not available before the medical assessment or that could not reasonably have been obtained before the medical assessment[2].
[2] Appeal against the Decision of a Medical Assessor dated 21 December 2021 (the first appeal), page 2.
Despite that certification, the appellant attached to his submissions a further statement by
Mr Stojceski dated 17 December 2021 (the supplementary statement) which addressed his activities of daily living and which set out details of his recollection of the history taking process at the examination by the Medical Assessor.
Although there is no application to admit further evidence on the face of that Application, it is clear from the submissions of the appellant that the appellant seeks to have that information considered by the Panel.
The second appeal, M1-W2575/21, is based upon the availability of additional relevant information (section 327(3)(b) of the 1998 Act). In that application, the appellant does seek leave to rely on the availability of additional relevant information. The additional evidence relied upon in that appeal is the report of an MRI scan of the lumbar spine performed on 17 December 2021 and reported on 21 December 2021.
For the reasons set out below, the Panel has decided that the supplementary statement dated 17 December 2021 should not be admitted into evidence and the appeal pursuant to section 327(3)(b) is unsuccessful with respect to the MRI report of 21 December 2021.

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 the first appeal, M1-W2575/21, the appellant submits that the Medical Assessor fell into error in failing to take “a proper history of the factors relating to factors relating to his ADL”. The appellant submits that the evidence provided by the supplementary statement establishes that the assessment failed to take into account relevant considerations with regard to the area of function “self-care” when assessing the effect on activities of daily living. The appellant also submits that the Medical Assessor had failed to carry out necessary measurements when assessing whether Mr Stojceski suffered from radiculopathy.
In reply, the respondent submits that the Medical Assessor had set out his findings on examination and explained his reasons for his assessment. Those findings were consistent with the earlier MAC dated 14 June 2018 provided by Dr Rosenthal and provided a satisfactory basis for understanding the assessment.
With respect to assessment of the activities of daily living, the respondent noted that
Mr Stojceski now sought to provide evidence contradicting the history recorded by the Medical Assessor obtained at the time of examination and that evidence should not be admitted. The submissions on behalf of the appellant were at odds with the opinion of the parties’ respective independent medical experts, Dr Kwong and Dr Panjratan.
In the second appeal, M2-W2575/21, the appellant sought review of the assessment of impairment upon the ground that the report of the MRI scan carried out on 21 December 2021 constituted additional relevant information unavailable at the time of the medical assessment within section 32(3)(b) of the 1998 Act.
The respondent, in reply, submitted that the MRI scan could have been obtained with reasonable diligence prior to the examination and is accordingly not admissible pursuant to section 327(3)(b) of the 1998 Act.

FINDINGS AND REASONS

The procedures on appeal are contained in section 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[3] 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.
[3] [2006] NSWCA 284.
The Medical Assessor assessed impairment in Mr Stojceski’s lumbar spine by reference to chapter 4 of the Guidelines. The Guidelines require that the Medical Assessor is to assess the lumbar spine by way of diagnosis related estimate (DRE), which can be modified, where appropriate, with respect to the presence of residual symptoms of radiculopathy following spinal surgery, second and further levels of surgery and second and subsequent operative procedures[4]. Further impairment is assessed with respect to the impact of the injury upon activities of daily living. The DRE assessment is added to the assessment with respect to ADLs which is then combined with the total of the modifiers in accordance with the Combined Values Chart in AMA 5[5].
[4] Guidelines 4.17 to 4.32 and Table 4.2.
[5] Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores & Ors [2017] NSWSC 363.
The Medical Assessor assessed Mr Stojceski as falling within DRE III in accordance with Table 15-3 in AMA 5, noting the lumbar surgery giving a base 10% WPI. Neither party has raised any objection to that assessment.
The Medical Assessor then considered paragraph 4.34 of the Guidelines, adding 2% WPI for interference with activities of daily living. The Medical Assessor explained “I note that he can still manage his personal care”.
The Medical Assessor added a further 1% WPI for the second level of surgery in accordance with Table 4.2 pursuant to paragraph 4.37 of the Guidelines. The Medical Assessor made no additional assessment pursuant to paragraph 4.37 and Table 4.2. He explained; “I did not find radiculopathy present and a separate second operation has not occurred. No additional impairment is added under this table”. The Medical Assessor made no deduction pursuant to section 323 of the 1998 Act in respect of previous injury or pre-existing condition or abnormality.
The Medical Assessor summarised injuries and diagnoses:
“Mr Stojceski has had two injuries in 1998 and 2001 which caused an aggravation of lumbar spine discs at L2/3 and L4/5. He developed chronic back pain and then required a spinal cord stimulator which has subsequently [been] removed. He continues to have chronic lower back pain.”
The Medical Assessor explained that he based his assessment of impairment upon the history provided by Mr Stojceski, his physical examination, the medical reports and the radiology and radiological reports in evidence. The Medical Assessor recorded that
Mr Stojceski had not worked since his employer ceased trading in 2004. He noted that
Mr Stojceski was on a disability support pension. The Medical Assessor recorded social activities/ADL:
“He is still living in a house in Sylvania. He lives on his own. He said he is getting a pool constructed so he can do hydrotherapy. He said his mum and sister come and help him. His mum lives in Greenacre but sometimes stays overnight. His sister lives in Condell Park. He is not able to drive and gets his food delivered. He is not able to do much around the house. When his mother and sister are not there he can manage his personal care, shower, dress and feed himself. He is not doing any significant physical activities.”
On physical examination the Medical Assessor noted that Mr Stojceski presented with a hunched posture and stiff gait. He struggled to remove his shoes but was able to perform this action without assistance. The Medical Assessor noted tenderness over the whole lumbar region with loss of lumbar lordosis. He noted that lumbar movements were reduced by half in all directions, with Mr Stojceski having trouble rising on his heels or toes. Mr Stojceski was observed to be able to perform a squat using a support and was able to get himself onto the bed for examination. The Medical Assessor recorded:
“There was reported global sensory loss over both feet, not in a dermatomal distribution. There was global weakness, which was not anatomically localised in both lower limbs, most likely due to pain inhibition but there was no anatomically localised weakness present in his lower extremities.
Lower limb reflexes were dull on both sides and difficult to elicit but there was no asymmetry of reflexes present. There was no evidence of radiculopathy in his lower extremities.”

The appellant’s submissions address two aspects of the assessment. The first aspect is the assessment of interference with activities of daily living. The appellant submitted: “The appellant worker says that the assessor had failed to take a proper history of the factors relating to factors relating to his ADL”. The appellant noted that the Medical Assessor had recorded that Mr Stojceski was able to manage his personal care, shower, dress and feed himself when his mother and sister were not present.
The appellant submitted: “While the assessor is correct in his assumption that the worker can independently shower and feed himself, the assessor had not considered the applicant worker’s inability to independently put on or remove his shirt or his inability for self-grooming”. This was said to be established by the further statement of Mr Stojceski, noting that Mr Stojceski asserted that he had not been provided with the opportunity to explain that he could only put on his boxer shorts and still needed assistance of his mother or sister in relation to putting or removing his shirt.
Those submissions are based upon the further statement of Mr Stojceski dated 17 December 2021 which the Panel accepts Mr Stojceski seeks to have admitted into evidence and considered by the Panel.
Section 328(3) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The admission of fresh evidence on appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance[6] (Ross). In Ross, the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes(1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
[6] [2002] NSWCCPD 7.
The Panel accepts that the statement sought to be admitted would not have been available prior to the examination, to the extent that it deals with the conduct of that examination. However, the statement also seeks to provide further evidence with respect to Mr Stojceski’s difficulties with activities of daily living. In that statement Mr Stojceski says that his mother provided domestic assistance coming to the house every second day and his sister also provided assistance. He said that his mother had recently moved in with him and he relied on her for all his meals housework and laundry. He said this had occurred “recently” but did not say whether it was before or after examination by the Medical Assessor.
With respect to the examination on 23 November 2021, Mr Stojceski said that he received help from his mother with getting dressed and putting on his shoes. He said that he had told the Medical Assessor that he could “barely” put on baggy clothing with his mother’s assistance and was only “just barely” able to take care of himself. He said that he was not asked any questions by the Medical Assessor as to showering, grooming or the degree of assistance provided by his mother.
In Petrovic v B C Serv No 14 and Others[7] (Petrovic) Hoeben J held that an Appeal Panel has the discretion to accept late evidence if it met the test set out in section 328(3) of the 1998 Act. In that case the appellant worker sought to introduce into evidence two statutory declarations dealing with the way in which the examination process had been conducted. Hoeben J held that, to meet the requirements of section 327(3)(b) the evidence sought to be introduced was restricted to “information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment”.[8]
[7] [2007] NSWSC 1156.
[8] At [31].
In Lukacevic v Coates Hire Operations[9] (Lukacevic ) Hodgson JA said (Handley JA agreeing, Giles JA dissenting):
“[77] An appeal panel (AP) dealing with an appeal brought on that basis could properly determine that it should not entertain and rule on this kind of dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination by the AMS. It could then determine that, in those circumstances, the only effective way of dealing with the appeal would be for a member of the AP to conduct another medical examination: WIM Act s 324(3). This procedure itself gives rise to the possibility of procedural unfairness: see Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42.
A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[9] pieces 2.
Reg 67(1)(a) of the Personal Injury Commission Rules 2021 provides:

“67 MATERIAL TO BE LODGED IN APPLICABLE PROCEEDINGS

(1) A party to applicable proceedings must lodge and serve on the other parties, with an application to commence proceedings or a reply to an application, the following--
(a) the information and documents relevant to the resolution of the real issues in the proceedings on which the party proposes to rely that--
(i) are in the possession or control of the party, and
(ii) that have not been lodged by a party in the current proceedings,”

In his Appeal against the Decision of Medical Assessor, Mr Stojceski relied upon three statements which he had made on 23 March 2010, 20 November 2010 and 3 May 2018. In his statement of March 2010 Mr Stojceski spoke of his reliance upon his wife with respect to dressing, bathing and general domestic assistance. The statement made in November 2010 notes increasing levels of pain and restriction of movement but does not assist with details of activities of daily living. In his statement dated 3 May 2018 Mr Stojceski said that he was severely restricted in his mobility and was suffering increasing pain. He said:
“I cannot do any of my household chores and I have to rely on my old mother. She comes once a week to clean my house and she stays over and prepares enough food for me for the whole week as I cannot cook.”
The Medical Assessor set out the situation with regard to self-care as reported by
Mr Stojceski on examination; “When his mother and sister are not there he can manage his personal care, shower, dress and feed himself”.
Dr Kwong, who examined Mr Stojceski on 12 October and 17 November 2017, noted under the heading “Activities of Daily Living Assessment”;
“He is independent with self-care. He has difficulty with vacuuming and cleaning. He can only carry small items of shopping. He is not able to mow his lawn and he paid his cousin and brother-in-law to mow his lawn.”[10]
[10] report 17 November 2017.
In his assessment report dated 24 January 2018 Dr Kwong again noted that Mr Stojceski was “independent with self-care” but had difficulty with household activities and assessed interference with activities of daily living at 2% WPI[11]. Dr Panjratan in his report dated 8 January 2019 also assessed Mr Stojceski as having 2% WPI as a result of interference with activities of daily living.
[11] Report 24 January 2018, page 1.
The appellant has provided no explanation as to why, if he sought to obtain an assessment greater than 2% WPI assessed by his own independent medical expert, Dr Kwong, and by the independent medical expert for the respondent, Dr Panjratan, he did not provide a comprehensive statement setting out the situation prior to his examination.
As noted by Hislop J at first instance[12] in Lukacevic, if the supplementary statement was admitted, procedural fairness to the respondent would require a response to be obtained from the Medical Assessor in respect of the allegations of the appellant concerning the conduct of the assessment, the Medical Assessor being a competent, but not compellable witness[13]. The admission of the statement would lead to delay as information was sought from the Medical Assessor, the possibility of the appellant seeking a right of reply to the Medical Assessor and the Panel ultimately being required to adjudicate between the appellant and the Medical Assessor. These matters would lead to the prolongation of the appeal, contrary to the statutory scheme which seeks to achieve finality and would involve issues not contemplated by the appeal mechanism.
[12] Lukacevic v Coates Hire Operations [2010] NSWSC 551 at [32].
[13] 1998 Act, section 325(4).
Having regard to those matters, the Panel declines to admit the supplementary statement of Mr Stojceski pursuant to section 328(3) of the 1998 Act.
The Panel has considered whether the report of the MRI scan relied upon in respect of the second appeal should be considered pursuant to section 328(3). Although the report would not have been available prior to the examination, as the scan had not been performed at the time of examination, the appellant’s submissions do not explain why, if the radiological evidence was regarded as significant to the assessment of impairment, an updated scan was not obtained prior to the examination so as to be available to the Medical Assessor.
Fairness to the respondent would require that the report of the scan should be made available to the respondent’s independent medical expert the expert could comment on the findings. That opportunity has not been afforded to the respondent and to do so at this point would cause unacceptable delay, given that admission of the report would be unlikely to change the outcome with respect to assessment of the activities of daily living. The appellant’s submissions do not suggest that the report is relevant to the assessment of interference with activities of daily living. For these reasons, the Panel declines to admit the MRI report in reviewing the evidence relating to activities of daily living.
On the face of the MAC the Medical Assessor recorded facts, which he stated were supplied by Mr Stojceski at the time of examination, that appropriately supported the Medical Assessor’s assessment of interference with activities of daily living. That assessment accorded with the assessment of Dr Kwong which formed the basis of the claim for lump-sum compensation. The Medical Assessor’s assessment was consistent with the case presented by the appellant which the respondent had to meet. No application of incorrect criteria or demonstrable error has been made out in respect of the assessment of activities of daily living.
The appellant, in support of the first appeal, submitted that “the assessor had fallen into error by not having tested all criteria for the assessment of radiculopathy in relation to the worker’s injury to his lumbar spine”. The appellant noted that,
“paragraph 4.27 of the WorkCover Guides [the Guidelines] requires the determination of six separate criteria. While the assessor had correctly assessed the worker having suffered from severely dulled lower limb reflexes, he had failed to measure the worker’s lower limbs for muscle atrophy.”
There is no evidence establishing that the Medical Assessor did not measure Mr Stojceski’s lower limbs for muscle atrophy. The submission appears to be based upon the fact that measurement of the legs is not specifically referred to by the Medical Assessor in his description of the physical examination.
The Medical Assessor noted upon physical examination:
“There was global weakness, which was not anatomically localised in both lower limbs, most likely due to pain inhibition but there was no anatomically localised weakness present in his lower extremities.”
The Panel does not accept the appellant’s submission. The Medical Assessor reported: “Lower limb reflexes were dulled on both sides and difficult to elicit but there was no asymmetry of reflexes present. There was no evidence of radiculopathy in his lower extremities[14]”. The Panel accepts that this statement was made by the Medical Assessor on the basis of his having carried out the appropriate tests in order to reach that conclusion[15].
[14] MAC paragraph 6, page 3.
[15] Jones v Registrar of WCC [2010] NSWSC 481 per James J: "There is a presumption of regularity that the AMS had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical."
The Medical Assessor also reported: “I did not find radiculopathy present and a second operation has not occurred. No additional impairment is added under this Table”.[16]
[16] MAC paragraph 10, page 5.
The Medical Assessor noted[17] that Dr Kwong had found radiculopathy present but confirmed that he had not found radiculopathy upon his examination. In his report of 17 November 2017 Dr Kwong stated “The power, tone and reflexes of his lower limbs were normal. Sensory examination of his lower limbs was normal”.[18]
[17] MAC paragraph 10C, page 6.
[18] Page 4.
In his report dated 24 January 2018 Dr Kwong reported; “He also has an extra 3% whole person impairment due to persistent radiculopathy post surgery (Table 4.2, page 29, WorkCover Guides)”. The report indicates that Dr Kwong had not re-examined Mr Stojceski since his examination on 17 November 2017 and was therefore relying on his observations which are recorded in the earlier report. The basis upon which Dr Kwong assessed the presence of radiculopathy is not apparent from those findings noted above.
The appellant pointed to the criteria for establishing the presence of radiculopathy in paragraph 4.27 of the Guidelines, submitting that assessment “requires the determination of six separate criteria”. The Panel accepts that the criteria are set out in paragraph 4.27 but notes that determination of the “muscle wasting – atrophy” is made by reference to AMA 5 Box 15-1 at page 382. That reference supplies definitions of “Clinical Findings Used to Place an Individual in a DRE Category”. The relevant definitions are as follows:
“Reflexes
Reflexes may be normal, increased, reduced, or absent. Full reflex abnormality is 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 anatomic distribution, i.e., follow dermatomal patterns (see Figures 15-1 and 15-2). Motor findings should also be consistent with the affected nerve structure (s). Significant, long-standing weakness is usually accompanied by atrophy.
Atrophy
Atrophy is measured with a tape measure at identical levels on both limbs. For reasons of reproducibility, the difference in circumference should be 2 cm or greater in the thigh and 1 cm or greater in the arm, forearm, or leg. The evaluator can address asymmetry due to extremity dominance in the report.”
The Medical Assessor noted that reflexes, although difficult to elicit, were present and symmetrical. There was no anatomically localised weakness present in the lower extremities. Global sensory loss over both feet was not in a dermatomal distribution. The clinical conclusion to be drawn from those findings eliminates each of the major criteria listed in paragraph 4.27.
Given those findings on examination, the Medical Assessor was obliged, in accordance with the Guidelines, to find radiculopathy was not present at the time of his examination. That view was consistent with the opinion of Dr Watson upon examination in March 2018.
Dr Panjratan reported[19] “The radicular changes are not consistent and have a lot to do with his anxiousness”. That assessment is consistent with the opinion of the treating orthopaedic surgeon, Dr Diwan, who, in his report dated 15 November 2017, said:
"I am very confident that his problem is no more surgical. His problem is definitely psychosocial to a great degree, which is causing him distress and disability and he also needs medical treatment specifically for his osteoporosis, any definitive other psychological/psychiatric issues that may be there.”
[19] report dated 8 January 2019, page 6.
Upon review of the whole of the evidence the Panel is satisfied that there is no basis for suggesting that the Medical Assessor did not carry out all necessary procedures to determine the existence of radiculopathy. In the light of the findings with regard to the major criteria it was unnecessary for the Medical Assessor to specifically state that he had measured the thighs and calves, although this is to be inferred from the Medical Assessor’s statement that there was no evidence of radiculopathy in the lower limbs.
The Panel has considered the contents of the report in respect of the MRI scan of the lumbar spine carried out on 17 December 2021. The Panel has considered whether that report should be admitted pursuant to section 328(3) with respect to the issue of the determination of radiculopathy in the first appeal. For the reasons set out below, the Panel is of the view that this report is not relevant, and, in the exercise of its discretion, the Panel declines to admit the report pursuant to section 328(3) in support of the first appeal.
No application of incorrect criteria or demonstrable error has been made out and the first appeal fails.
The second appeal seeks review of the assessment upon the grounds of availability of additional relevant information, the report of an MRI scan of the lumbosacral spine carried out on 17 December 2021.
As noted by the respondent, it is unclear why this scan was not performed prior to the examination by the Medical Assessor if the radiological picture was considered relevant to the assessment of impairment of the lumbar spine. However, the Panel has considered the matter on the basis that the appellant may not have been able to obtain an earlier MRI scan for the purposes of the proceedings, but rather was dependent upon the clinical requirements of treating practitioners.
The appellant submitted that:
“The report is of high probative value as it addresses two issues present in the previous assessment, first that the investigative report available to Dr Rosenthal dated 15 May 2018 was more than three years old at time of examination and second it is reasonably clear that admission of the document would change the outcome of the case.”
The Panel does not accept either of those submissions. The appellant based his claim for lump-sum compensation upon the assessment of Dr Kwong. That assessment was based on Dr Kwong’s examination of Mr Stojceski in November 2017. The most recent radiological investigation available to Dr Kwong was reported by him as the MRI scan of the lumbar spine on 9 December 2012. There is no indication that Dr Kwong felt that an updated report would be likely to change his opinion. Dr Kwong provided his assessment in February 2018. A further MRI scan was performed on 15 May 2018. The appellant apparently did not consider it necessary to request Dr Kwong to consider whether that report would affect his assessment, which, as the Medical Assessor observed, noted the microdiscectomy at L2/3 and L4/5.

The report of 21 December 2021 notes comparison with “MR 23/04/14” and concludes: “Slight progression of Schmorl’s nodes but otherwise stable lumbosacral appearances. Right foraminal L5/S1 disc protrusion causes severe right foraminal narrowing as previously” (emphasis added).
The conclusion is that there is no relevant difference between that scan and the earlier radiological reports. The appellant does not explain in what way it could be said that “it is reasonably clear that admission of the document would change the outcome of the case”.
The ground of appeal relied upon pursuant to section 327(3)(b) of the 1998 Act requires that the additional information sought to be relied upon must be “relevant”. The Commission and, by extension the Panel, is not bound by the rules of evidence but the Panel considers that the definition of relevant evidence found in section 55 of the Evidence Act 1995 provides a useful test. The evidence should be “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.
The appellant noted that the report; “would support the applicant’s claim for muscle atrophy as well as provide an imaging study that will explain the applicant’s symptoms”. The Panel notes that the existence of muscular atrophy by reference to measurement of the thighs and calves was addressed by Dr Kwong in his 2017 report[20] and was also noted by the Medical Assessor in the MAC dated 14 June 2018[21].
[20] Report 17 November 2017, page 4.
[21] Response, page 2.
The appellant’s submission mistakes the significance of the test in the Guidelines and AMA 5 for determining the presence of radiculopathy. Paragraph 4.27 of the Guidelines notes that “Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots”. As noted above, the “muscle wasting – atrophy” is to be considered in accordance with Box 15-1 at page 382 of AMA 5 which provides for appropriate measurement and then comparison of the degree of asymmetry found, which must be greater than 2 cm in the thigh and greater than 1 cm in the lower leg. The symmetrical measurements noted by Dr Kwong and by the Medical Assessor in the 2018 MAC are evidence of lack of use of the lower limbs but do not provide evidence of radiculopathy.
The Panel is of the view that the report of the MRI scan performed on 21 December 2021 does not provide information which could directly or indirectly affect the assessment of the probability of the existence of any fact in issue in the proceedings but simply confirms the earlier evidence. The report does not assist in establishing the existence of radiculopathy in the lower limbs.
Accordingly, the Panel is satisfied that the MRI report does not provide additional relevant information and this ground of appeal also fails.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 November 2021 should be confirmed as to the assessment of impairment. The Panel notes that the MAC Table issued pursuant to section 325 refers to an injury “24/08/1996”. That appears to be a typographical error, as it is clear that the Medical Assessor understood that the earlier injury to be considered was referred for assessment as having occurred on 24 April 1996. The parties may consider that this is an obvious error which can be cured pursuant to section 325(3) of the 1998 Act.

[2022] NSWPICMP 214

12 May 2022