Tata v Dyldam Developments Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Tata v Dyldam Developments Pty Ltd [2023] NSWPICMP 542
APPELLANT:	Malcolm Luke Homai Tata
RESPONDENT:	Dyldam Developments Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	31 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor (MA) assessed 7% whole person impairment (WPI) for the lumbar spine, 0% WPI for the left lower extremity and 3% WPI for scarring; Panel admitted MRI lumbar spine report and MRI lumbar spine images as fresh evidence; Panel found error as MA assessed worker as DRE II when he had undergone surgical decompression; Panel determined that the worker required re-examination; Panel assessed 15% WPI of lumbar spine; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 June 2023 Malcolm Luke Homai Tata (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
22 May 2023.
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):
·        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 assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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.
The assessment of permanent impairment was 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

On 19 June 2023 the appellant commenced proceedings in the Personal Injury Commission (he Commission) claiming 24% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of an injury to the lumbar spine, left lower extremity and scarring on 1 August 2016.
The Medical Assessor examined the appellant on 11 May 2023. The Medical Assessor assessed 7% WPI of the lumbar spine, 0% WPI of the left lower extremity and 3% WPI for scarring. Therefore, the total WPI assessed was 10% as a result of the injury deemed to have occurred on 1 August 2016.

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 requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel. The appellant submitted that a re-examination was necessary due to the MRI of the lumbar spine not being made available to the Medical Assessor, as well as issues identified in the Medical Assessor’s examination and the differences and discrepancies identified in the MAC.
As a result of that preliminary review, the Appeal Panel determined that the Medical Assessor had made a demonstrable error in the MAC and it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination.

Fresh evidence (Ground 1)

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition 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.
The appellant seeks to admit the following evidence:
(a)    MRI lumbar spine report by Dr Ghattas dated 5 May 2023;
(b)    MRI lumbar spine image – T12 – S2 from Dr Ghattas dated 5 May 2023;
(c)    MRI lumbar spine image – T12 – S2 from Dr Ghattas dated 5 May 2023, and
(d)    MRI lumbar spine image – S1 from Dr Ghattas dated 5 May 2023.
The appellant submitted that this evidence was not in existence at the time of the medical assessment on 11 May 2023 and was fresh evidence. The appellant submitted that the further scan should be admitted because it had substantial probative value as it was evidence of a deterioration in the appellant’s condition. The appellant argued that this evidence would provide further insight for the Medical Assessor in determining the correct class when providing an assessment of WPI. Further the evidence was such that it could change the outcome of the assessment.
The respondent opposed the admission of the fresh evidence, on the basis that the appellant had not provided any explanation as to why the MRI evidence was not in existence and part of these proceedings, at the time when the Medical Assessment was obtained. The MAC was dated 22 May 2023 and the examination took place on 11 May 2023. The Application to Resolve a Dispute (ARD) was filed on 1 March 2023. The filing of the Application followed on from the determination of a consequential injury in favour of the appellant. The respondent argued that the additional relevant information should have been obtained prior to the Medical Assessor’s determination.
The report by Dr Ghattas dated 5 May 2023 noted under “Clinical History” the following: “L5/S1 discectomy 05/11/2021. Sudden onset lower back pain 1 ½ weeks ago. Left sciatica ? cause”.
In Petrovic, his Honour further noted that:
“the information must be relevant to the task which was being performed by the AMS…additional relevant information for the purposes of section 327(3)(b) is 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.”
The respondent then referred to the decision of State of New South Wales v Ali [2018] NSWSC 1783 (Ali), where it was noted by his Honour Harrison J that s 327(3)(b) limited that right of appeal to circumstances where additional relevant information was available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. His Honour relevantly stated:
“…section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed. It may be contrasted with s 327(3)(a), which contemplates an appeal when circumstances have actually changed, although limited to cases of an increase in the degree of permanent impairment and not the opposite. That limitation suggests, as a matter of ordinary statutory construction, that an appeal with respect to an alleged reduction in the degree of permanent impairment is neither contemplated by the words of s 327 in general nor provided by s 327(3)(b) in particular.”
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
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.”
In Orr v Holmes (1948) 76 CLR, at pp 640-642 a number of different expressions were collected, which have been judicially used at various times, and were summed up as follows:
“No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable" (at p 642).
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…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.”
The Appeal Panel accepted that the report of the MRI lumbar spine by Dr Ghattas dated
5 May 2023 and the MRI lumbar spine images could not reasonably have been obtained before the Medical Assessor’s assessment as the MRI scan took place on Friday,
5 May 2003 and the assessment by the Medical Assessor took place on 11 May 2023. The Appeal Panel considered that the applicant would not have had access to the report or scans immediately after the scan was performed but that the report and scans would have been sent to his treating surgeon, Associate Professor Papantoniou. The Appeal Panel accepted that this was additional relevant evidence (s 327(3)(b)). Further, the Appeal Panel accepted that the report of Dr Ghattas dated 5 May 2023 and the MRI lumbar spine images dated
5 May 2023 had substantial probative value.
The Appeal Panel determined that the following evidence should be received on the appeal:
(a)    MRI lumbar spine report by Dr Ghattas dated 5 May 2023;
(b)    MRI lumbar spine image – T12 – S2 from Dr Ghattas dated 5 May 2023;
(c)    MRI lumbar spine image – T12 – S2 from Dr Ghattas dated 5 May 2023, and
(d)    MRI lumbar spine image – S1 from Dr Ghattas dated 5 May 2023.

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.

Further medical examination

Medical Assessor Drew Dixon of the Appeal Panel conducted an examination of the appellant worker on 23 October 2023 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. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    Ground 1 – additional evidence relied upon (see above under Fresh Evidence – Ground 1);
(b)    Ground 2 - The Medical Assessor erred in his assessment on the basis he “was not an orthopaedic specialist but one that specialises in musculo-skeletal and digestive injuries”. Because of the nature of the injuries to be assessed and consequent surgeries the appellant ought to have been assessed by an orthopaedic specialist;
(c)    Ground 3 - Muscle Wasting/Atrophy - The Medical Assessor reported that the measurement of the thighs and calves showed no evidence of muscle wasting. Dr Gehr, in his report of 14 September 2022, reported "some wasting of gluteal muscle mass on the left side", "VMO muscle wasting" and "persisting left gluteal muscle wasting";
(d)    Dr Gehr, in his report of 19 October 2019, on examination wrote: "Calf circumference 36 cm left and right. Thigh circumference 41 cm on the left, 43 cm on the right measured 10 cm above the upper pole of the patella" and "left gluteal muscle wasting with muscle power grade 4/5";
(e)    Associate Professor Miniter, in his supplementary report of 28 December 2022, reported that "he had wasting of less than 1.5 cm which according to the WorkCover guidelines, constitutes a whole person impairment of 2%";
(f)    the Medical Assessor reported that a measurement of the thighs and calves was undertaken but he provided no measurements in the MAC;
(g)    the appellant submitted that a measurement of the thigh was made by the Medical Assessor, but no measurement of the calves;
(h)    the appellant was required to remove his clothing by Dr Gehr. The appellant attended the appointment with the Medical Assessor on the day wearing jeans and the measurement of his thigh took place over the jeans and he was not asked to remove his clothing. This contrasted with the method undertaken by both Dr Gehr and Associate Professor Miniter, where such measurements were taken directly on the thigh and calves, without clothing;
(i)    the Medical Assessor erred in conducting his examination, noting that all previous doctors were able to establish findings of wasting, and the Medical Assessor took the measurements over clothing. The examination undertaken by the Medical Assessor was inaccurate and did not corroborate with those findings of previous examinations, conducted by Dr Gehr and Associate Professor Miniter;
(j)    Ground 4 - Lumbar Spine - The Medical Assessor assessed the appellant's lumbar spine at 5%WPI. The Medical Assessor found that the appellant had no signs of radiculopathy and therefore did not make an addition for existing signs of radiculopathy;
(k)    the classification of DRE category II was disputed. The Medical Assessor erred in his application of the AMA 5 and the application of DRE category II. The material before the Medical Assessor in the ARD and Reply, along with the additional late information indicated the presence of at least two symptoms of radiculopathy and a higher DRE lumbar category should have been applied;
(l)    the Medical Assessor reported the following under “present symptoms”: (a) "He continues to suffer back pain which is aggravated by bending and lifting" and (b) "He gets numbness in both legs which tend to come and go. He experiences pain and restriction of movement in the left hip and buttock";
(m)     Dr Gehr, in his report dated 14 September 2022, on examination found evidence of guarding, dysmetria, bilateral nerve tension signs for both limbs;
(n)    the Guidelines at 4.27 provide guidance in interpreting the application/distinction of DRE category II and DRE category III. The appellant's reported symptoms of numbness in his legs and muscle wasting were all signs of radiculopathy;
(o)    the appellant's medical history and findings, including the need for surgery, provide radiological support for the appellant's clinical complaints and symptoms of pain in his left leg with numbness. The criteria for radiculopathy were satisfied by the appellant on the basis of his complaints of radiating pain, verified by radiological findings, numbness, and atrophy;
(p)    the Medical Assessor, having properly considered the above and correctly assessed atrophy, should have applied the extra rating for radiculopathy, and therefore classified the lumbar spine as DRE category III, with a base WPI rating of 10%;
(q)    the Medical Assessor failed to apply a modifier the effects of surgery. In his assessment of the lumbar spine, he noted that the appellant had undergone surgical decompression, which placed his injury in DRE category III (4.37 of the Guidelines);
(r)    Ground 5 - Left Lower Extremity – There were inconsistencies in the MAC with respect to the lower left extremity, noting that the Medical Assessor reported under heading "Present Symptoms" that the appellant "experiences pain and restriction of movement in the left hip and buttock", and then reported "normal range of left and right hip movements" in his assessment of WPI;
(s)    the Medical Assessor failed to provide an accurate assessment of the left lower extremity, having noted an earlier restriction in the left hip;
(t)    Ground 6 - Activities of Daily Living (ADL) - The Medical Assessor failed to take into account a proper history of the factors relating to the appellant's ADL;
(u)    the medical reports of Dr Gehr dated 21 October 2019 and 14 September 2022 established that the assessment failed to take into account the relevant considerations with regard to the area of function "self care" when assessing the effects of daily living;
(v)    an assessment of 3% whole person impairment was appropriate for ADL, and
(w)   the MAC ought to be revoked by the Appeal Panel, for the reasons outlined above.
The respondent ‘s submissions include the following:
(a)    the appellant was not entitled to rely on additional relevant information;
(b)    in respect of allegation of error on the basis of the qualification of the Medical Assessor to assess the body parts referred, ie, left lower extremity, lumbar spine and scarring /TEMSKI, the Medical Assessor was appropriately qualified to assess those body parts and was listed on the SIRA website as being qualified to assess the above body parts. No objection was made by the appellant to the referral or amended referral for assessment of permanent impairment to the Medical Assessor;
(c)    in respect of muscle wasting/atrophy, this was a matter for the Medical Assessor to make up his mind as to the issue upon examination as to any muscle wasting (atrophy);
(d)    in respect of the lumbar spine, it was a matter for the Medical Assessor to determine the application of AMA 5 and DRE categories. The Medical Assessor correctly considered all the medical evidence attached to the ARD particularly the reports of the treating orthopaedic surgeon, Associate Professor Peter Papantoniou;
(e)    in respect of the left lower extremity, the appellant demonstrated on examination a normal range of left and right hip movements and right and left knee movements. There were no nerve root tension signs and therefore the appellant was found to have a 0% WPI for the left lower extremity;
(f)    in respect of ADL, the Medical Assessor correctly considered the impact of the injury upon the activities of daily living. Specifically, the Medical Assessor stated that the appellant can self-care but had difficulties with inside and outside activities and allocated an assessment of 2% WPI. The appellant simply relied on the assessment of Dr Gehr;
(g)    the Medical Assessor did not base his assessment upon incorrect criteria and did not make a demonstrable error in the MAC, and
(h)    the MAC should be confirmed.

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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Ground 1 - Additional evidence relied upon

This ground of appeal has been dealt with above under the heading “Fresh evidence (Ground 1)”.

Ground 2 – Specialty of the Medical Assessor

The appellant submitted that the Medical Assessor erred in his assessment on the basis he “was not an orthopaedic specialist but one that specialises in musculo-skeletal and digestive injuries”. The appellant argued that because of the nature of the injuries to be assessed and consequent surgeries, the appellant ought to have been assessed by an orthopaedic specialist.
The respondent submitted that the Medical Assessor was appropriately qualified to assess those body parts and was listed on the SIRA website as being qualified to assess the above body parts. Further, no objection was made by the appellant to the referral or amended referral for assessment of permanent impairment to the Medical Assessor.
The Appeal Panel was satisfied that the Medical Assessor was a Fellow of the Australian College of Surgeons and that he was therefore a specialist within that field. The SIRA website described the Medical Assessor’s speciality as general surgery with specific expertise in abdominal surgery and trauma. The SIRA website set out the Body Systems the Medical Assessor could assess as “Digestive, Lower Limb, Spine and Upper Limb”.
No objection appeared to have been made by the appellant to the referral to the Medical Assessor.
In these circumstances, there was no error on the basis that the Medical Assessor was not an orthopaedic surgeon, but a surgeon who specialised in musculo-skeletal and digestive injuries.

Ground 3 - Muscle Wasting - Atrophy

The appellant submitted that the Medical Assessor erred in conducting his examination, failing to find wasting when all previous doctors made findings of wasting. The appellant argued that the measurements were taken over clothing, and so the examination was inaccurate and inconsistent with findings in previous examinations conducted by Dr Gehr and Associate Professor Miniter.
The Appeal Panel reviewed the evidence.
The Medical Assessor under “Findings on Physical Examination” reported “Measurement of the thighs and calves showed no evidence of any muscle wasting”.
Dr Gehr in his report of 19 October 2019, on examination wrote: "Calf circumference 36 cm left and right. Thigh circumference 41 cm on the left, 43 cm on the right measured 10 cm above the upper pole of the patella" and "left gluteal muscle wasting with muscle power grade 4/5".
Dr Gehr, in his report of 14 September 2022, under “Physical Examination” wrote: “His maximum calf circumference is 36 cm left and right. His thigh circumference is 47 cm left and right measured 10 cm above the upper pole of the patella”. Dr Gehr also reported "some wasting of gluteal muscle mass on the left side", "VMO muscle wasting" and "persisting left gluteal muscle wasting".
Associate Professor Miniter, in his supplementary report of 28 December 2022, wrote: "He had wasting of less than 1.5 cm which according to the WorkCover guidelines, constitutes a whole person impairment of 2%".
The Appeal Panel noted that the Medical Assessor reported that a measurement of the thighs and calves were undertaken but he provided no figures of measurement in the MAC. The Appeal Panel did not consider that the failure to provided measurements of the thighs and calves was unusual where the examiner found no wasting.
The Appeal Panel noted that the appellant submitted that a measurement of the thigh was undertaken by the Medical Assessor, but no measurement of the calves.
There was, however, no evidence from the appellant concerning what had taken place in the examination by the Medical Assessor concerning whether the calves were measured and what clothing was worn at the times the measurements were made. The Appeal Panel therefore was not persuaded that the Medical Assessor erred in the manner in which the examination was conducted with respect to the removal of clothing.
The Appeal Panel noted that Dr Gehr, in his last report dated 14 September 2022, found that the thigh and calf circumferences were the same and the only wasting was in the left gluteal muscle. Associate Professor Miniter referred in his supplementary report of
28 December 2022, to wasting of less than 1.5 cm but did not identify where the wasting was. However, Associate Professor Miniter assessing the left lower extremity when he described that finding so it could be inferred that such wasting related to left gluteal muscle mass rather than the circumference of the thigh or calf.
The Appeal Panel considered that the Medical Assessor’s findings of no wasting in the calf and thighs were actually consistent with the findings made by Dr Gehr in his report of
14 September 2022. However, it appeared that no assessment was made by the Medical Assessor in relation to gluteal wasting. As Dr Gehr and possibly Associate Professor Miniter had made findings of gluteal muscle wasting, the failure to assess wasting in the gluteal muscle resulted in incomplete examination findings. The Appeal Panel considered that failure to carry out a complete examination was a demonstrable error. The Appeal Panel having reviewed the evidence agreed that re-examination of the appellant by a medical member of the Appeal Panel was necessary.

Ground 4 – Lumbar spine

The appellant disputed the classification of DRE category II and submitted that the Medical Assessor erred in his application of AMA 5 and the application of DRE category II. In particular, the appellant argued that the Medical Assessor was in error when he assessed the appellant's lumbar spine at 5% WPI and found no signs of radiculopathy.
The Medical Assessor under “Present symptoms” noted:
“He continues to suffer back pain which is aggravated by bending and lifting. He gets numbness in both legs which tend to come and go. He also experiences pain and restriction of movement in the left hip and buttock.”
Under “Findings on Physical Examination” the Medical Assessor wrote:
“Thoracolumbar Spine
Mr Tata was noted to have a well healed midline scar over the lower lumbar spine. It was 4cm in length and was not tender to palpation. He demonstrated two thirds of the normal range of flexion, half the normal range of extension and a third of the normal range of left and right rotation, and one third of the normal range of left and right lateral flexion. There was no flattening of the lumbar lordosis, no paraspinal muscle spasm and no alteration of spinal contour.
Lower Extremities
With the claimant standing, he was noted to have a transverse scar on the posterior aspect of the mid-thigh. This was tender to touch and Mr Tata stated that it made him feel as though he wanted to be sick. Measurement of the thighs and calves showed no evidence of any muscle wasting. He demonstrated a normal range of left and right hip movements and right and left knee movements. There was no nerve root tension sign. Straight leg raising was to 50 degrees on both sides. No other abnormality was detected.”
Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“Mr Tata suffered a superficial penetrating injury to the posterior aspect of the left thigh. He has also suffered a back injury and has evidence of an L5/S1 disc protrusion and this has been treated by a decompression laminectomy, discectomy and neuroloysis.”
Under “Reasons for Assessment” the Medical Assessor wrote:
“Lumbar Spine
The claimant has had surgery to the lumbar spine which was a decompression,
discectomy and neurolysis, there was no fusion. He should be assessed under the DRE methods and I refer you to Chapter 15, Table 15-3 on page 384. He is noted to have dysmetria of back movements and no evidence of lower limb radiculopathy. In particular, he has normal reflexes and sensation is normal. There is no unilateral muscle wasting and there is no evidence of a nerve root tension sign in either lower limb. I would therefore assess the claimant as DRE Category II which is a 5% Whole Person Impairment.
The impact of this injury on the activities of daily living is assessed using the NSW
Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition and I refer you to Chapter 4, Paragraphs 4.34 and 4.35 on page 28. Mr Tata can self-care but has difficulty with inside and outside activities and I would allow a 2% Whole Person Impairment giving him a 7% Whole Person Impairment for the lumbar spine.”
In commenting on the other medical opinions, the Medical Assessor wrote:
“Multiple Reports of Dr Eugene Gehr dated between 21 October 2019 and
14 September 2022... I agree with his assessment of the claimant’s lumbar spine as DRE Category II which is a 5% Whole Person Impairment. He assesses the impact on the activities of daily living as 3%, although, the claimant can self-care.
…
Report of Dr Paul Miniter dated 13 December 2022 – Dr Miniter assesses the claimant as DRE Category III and allows a 10% Whole Person Impairment but makes no assessment for the impact of the injury on the activities of daily living. Given that the claimant has had a discectomy and laminectomy I would consider that the claimant is more appropriately placed in DRE Category II.
Multiple Reports of Associate Professor Peter Papantoniou – A/P Papantoniou documents the claimant’s ongoing back pain and his imaging showing an L5/S1 disc injury with protrusion to the left, requiring decompressive laminectomy.”
Dr Gehr in his report dated 14 September 2022, noted on examination that he:
“He has loss of lordosis.
His forward flexion is reduced by 80%, extension is reduced by 50%, left lateral flexion is reduced by 70%, and right lateral flexion is reduced by 50%.
He has guarding and dysmetria present.
His straight leg raising is 70 degrees left and right in sitting position.
He was not tested in supine as in too much discomfort.
He has positive bilateral nerve tension test and positive bilateral Slump test.
He has no motor or sensory changes in lower limb.
He has bilaterally absent deep tendon reflexes.”
In a report dated 13 December 2022 Associate Professor Miniter wrote:
“He therefore falls into DRE lumbar category 3, which has a 10% base rating.
You will note that there is no feature consistent with ongoing radiculopathy. I
believe that independent assessment of this issue will indicate that this man
functions well in the general community. I do not believe that there should be
a further allowance for ADLs.”
The Appeal Panel reviewed the reports of Associate Professor Peter Papantoniou, treating orthopaedic and spinal surgeon:
(a)    in a report dated 6 November 2019, Associate Professor Peter Papantoniou recorded a history of complaints of "radiation into the left buttock and posterior thigh into the calf and heel. This appears to be in the S1 distribution." He noted that the new CT scan of the lumbar spine of 5 July 2019 demonstrated partial sacralisation of L5 and at L4/5 a posterior disc protrusion which was worse on the left with impingement on the dura and in the lateral recess;
(b)    in a report dated 25 June 2020, Associate Professor Papantoniou wrote: "Mr Tata has ongoing lower back pain and left S1 sciatica as a result of this pathology at L4/L5";
(c)    in a report dated 12 July 2020, Associate Professor Papantoniou wrote: "He also complained of a central lower back pain from L3/4 down to L5/S1 which he described as a sharp pain. When he had the pain he also suffered from pain in the left buttock and the left posterior thigh in the proximal two thirds of the posterior thigh";
(d)    in a report dated 26 August 2020, Associate Professor Papantoniou wrote: "he has pain radiating in his left buttock and down the proximal half of his posterior left thigh" and "Mr Tata presents with a new MRI of his lumbar spine from 24/08/2020. This demonstrates a very large left-sided and central L5/S1 disc prolapse which is filling the left lateral recess and compressing both the dura and the left S1 nerve root";
(e)    in a report dated 18 November 2020, Associate Professor Papantoniou wrote: "Given Mr Tata's clinical picture and the imaging it is unquestionable that his pain is related to the L5/S1 disc prolapse. The mechanism of injury, the history and the current clinical picture all match the imaging and his ongoing pain and disability";
(f)    in a report dated 16 June 2021, Associate Professor Papantoniou wrote: “Mr Tata continues to have severe central and bilateral lower back pain. The pain radiates into the left posterior thigh and calf in the left S1 distribution. His back pain has become worse and when it is worse he also gets a left S1 sciatica increasing in intensity";
(g)    in a report dated 3 August 2021, Associate Professor Papantoniou wrote: "Mr Tata's pain has become worse recently. He still has central and bilateral lower back pain around L5/S1 level. He has a left sided pain does the S1 distribution going into his buttock and posterior thigh. Walking increases his pain";
(h)    in a report dated 19 August 2021, Associate Professor Papantoniou wrote "Mr Tata had a new MRI yesterday on 18/8/2021. I have viewed the images online. These demonstrate an L5/S1 central and left sided disc bulge with an associated annular tear. The disc protrusion is touching the left S1 nerve root";
(i)    in a report dated 26 August 2021, Associate Professor Papantoniou wrote:
"Mr Tata continues to have lower back pain into the left posterior thigh and buttock. He has a left S1 radiculopathy" and "I also note that he has had approximately one year of a left S1 sciatica";
(j)    in an operation report dated 5 November 2021, Associate Professor Papantoniou confirmed that the appellant underwent a "L5/S1 laminectomy, discectomy, decompression, neurolysis. Paravertebral nerve blocks" and reported findings of "Hard left L5/S1 disc bulge indenting dura and compressing descending S1 root. At the end of the procedure, left L5 and S1 roots decompressed enough to allow McDonalds to pass into exit foramen freely";
(k)    in a report dated 1 December 2021, Associate Professor Papantoniou wrote: "He is well and his lower back pain is much better. His lower limb pain has also improved quite significantly";
(l)    in a report dated 2 March 2022, Associate Professor Papantoniou wrote: “His lower back pain and left lower limb pain continue to be significantly improved”;
(m)     in a report dated 25 May 2022, Associate Professor Papantoniou wrote: “His lower back pain and left lower limb pain are largely controlled”, and
(n)    in a report dated 3 August 2022, Associate Professor Papantoniou wrote: “His lower limb pain has settled. He does still have some occasional lower back pain, which is largely transient.”
The MRI report of the lumbar spine dated 24 August 2020, reported "a moderate sized left posterocentral disc protrusion at L5/S1 with disc desiccation and slight loss of intervertebral disc height. There is lateral recess narrowing on the left at L5/S1 with likely irritation of the transiting left S1 nerve root".
The MRI report of the lumbar spine dated 5 May 2023, reported findings that "At the L5/S1, there is moderate intervertebral disc dehydration and a posterior disc bulge to the left, with left subarticular zone narrowing, contacting the descending left S1 nerve root, which is thickened" and "There is a posterior disc bulge at L5/S1, contacting the descending left S1 nerve root in the subarticular zone. The left descending S1 nerve root appears thickened".
The Guidelines at 4.27 provide:
“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).”
The appellant argued that the criteria for radiculopathy were satisfied on the basis of his complaints of radiating pain, verified by radiological findings, numbness, and atrophy. The appellant submitted that the Medical Assessor, should have applied the extra rating for radiculopathy, and therefore the lumbar spine, should be classified as DRE category III, with a base WPI rating of 10%. Further the appellant argued that the Medical Assessor failed to apply the effects of surgery, in his assessment of the lumbar spine, noting that the appellant had undergone surgical decompression, which placed his injury in DRE category III under 4.37 of the Guidelines.
The Guidelines at paragraph 4.37 provide that surgical decompression for spinal stenosis is DRE category III (AMA5 Table 15-3, 15-4 or 15-5) and that operations where radiculopathy has successfully resolved are considered under the DRE category III (AMA5 Table 15-3, 15-4 or 15-5). The appellant underwent surgical "L5/S1 laminectomy, discectomy, decompression, neurolysis” on 5 November 2021.
The Appeal Panel accepted that the Medical Assessor failed to apply Paragraph 4.37 of the Guidelines correctly because he rated the appellant as DRE category II and failed to take into account the effects of surgery.
The Appeal Panel were satisfied that the appellant should be rated at DRE category III with a base line assessment of 10% WPI. However, the Appeal Panel were of the view that a re-examination was required to determine whether the modifiers in Table 4-2 of the Guidelines applied and whether there were residual symptoms and radiculopathy following the spinal surgery.

Ground 5 – Left lower extremity

The appellant submitted that there were inconsistencies in the MAC with respect to the lower left extremity, noting that the Medical Assessor reported under heading "Present Symptoms" that the appellant "experiences pain and restriction of movement in the left hip and buttock", and then reporting "normal range of left and right hip movements" in his assessment of WPI.
The appellant submitted that the Medical Assessor failed to provide an accurate assessment of the left lower extremity, having noted an earlier restriction in the left hip.
The Medical Assessor under “Present symptoms” noted: “He also experiences pain and restriction of movement in the left hip and buttock”.
Under “Findings on Physical Examination” the Medical Assessor wrote: “He demonstrated a normal range of left and right hip movements and right and left knee movements”.

The Appeal Panel accepted that the appellant may have had pain and restriction of movement in the left hip and buttock at times. However, on actual examination the Medical Assessor found no restriction of movement. The Appeal Panel considered that the Medical Assessor provided an accurate assessment in relation to the left lower extremity and there was no error in relation to assessment of the left lower extremity nor any application of incorrect criteria.

Ground 6 – Activities of Daily Living

The appellant submitted that the Medical Assessor failed to take into account the relevant considerations with regard to the area of function "self care" and that an assessment of
3% WPI was appropriate for ADL.
Under “Social Activities/ADL” the Medical Assessor wrote: “Mr Tata told me that he is in a de-facto relationship. He and his partner have two children and they live in a rented home. He told me that his partner does contract work but he is not sure what she does”.
The Medical Assessor under “Reasons for Assessment” wrote:
“The impact of this injury on the activities of daily living is assessed using the NSW
Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition and I refer you to Chapter 4, Paragraphs 4.34 and 4.35 on page 28. Mr Tata can self-care but has difficulty with inside and outside activities and I would allow a 2% Whole Person Impairment giving him a 7% Whole Person Impairment for the lumbar spine.”
In commenting on other medical opinions, the Medical Assessor wrote:
“Multiple Reports of Dr Eugene Gehr dated between 21 October 2019 and
14 September 2022… He assesses the impact on the activities of daily living as 3%, although, the claimant can self-care.”
In a report dated 21 October 2019, Dr Gehr wrote:
"Since the subject accident on 1 August 2016, he reports problems with "washing, showering, and dressing particularly when the pain is severe. He requires assistance from his partner who also lives with him.
He used to be involved in league and gym work but cannot do it now. "
In a report dated 14 September 2022, Dr Gehr wrote: “it is improved in terms of washing, showering, and dressing himself. Cooking and cleaning, he use to help out with it, but he finds it difficult now. Still he cannot do league or gym work".
The Appeal Panel considered that the Medical Assessor provided inadequate reasons in assessing impact on ADLs. The failure to provide adequate reasons was an error.
The Appeal Panel concluded that it was necessary for the appellant worker to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Medical Assessor Drew Dixon re-examined the appellant on
23 October 2023. Medical Assessor Dixon provided the following report:
“1. The workers medical history, where it differs from previous records
NIL
2. Additional history since the original Medical Assessment Certificate was performed
NIL
3. Findings on clinical examination
On examination on October 23, 2023 he was straight forward in presentation and was consistent. He was 5’10” tall and weighed 80kg.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with mild erector spinal muscle spasm and pain on back extension which was decreased by one half and lateral flexion to the right or left decreased by one third.
There was a tender 8cm laminectomy scar which was pale and had visible suture marks and was readily localised by the claimant and centrally very tender. The claimant reported the scar was painful if bumped, impacting on his ADL’s and that he remains conscious of the scar which he was able to readily localise.
His straight leg raise on the left was 50 degrees and associated with low back pain and left sciatica and that on the right was 70 degrees and associated with hamstring tightness.
His knee jerks were present and symmetrical as were his medial hamstring jerks. His left ankle jerk was absent.
His power was grade five out of five.
There was 1cm of wasting of his left thigh, 43cm on the left measured 10cm above the upper pole of the patella and 44cm on the right. Below the knee at his calf muscles, 33cm on the left and 34cm on the right.
There were sensory changes in the S1 distribution over the posterior and underneath the left heel and foot, extending to the central three toes.
His Babinski signs were negative.
He had a positive sciatic nerve root stretch test on the left and negative on the right.
On walking he had a slight limp and there was a moderate limp on attempted toe walking and heel walking, and his squat test was associated with low back pain.
There was a 3cm indented, pigmented scar in the upper left thigh which was very tender and he reported was painful if bumped. He is very conscious of this scar which is the site of the drainage of the haematoma and he does not like people touching it and it is difficult for him to sit on, particularly on the edge of a hard chair.   There was loss of contour with some indentation.
He had a full range of motion of his left hip, left knee, left ankle and foot.
He had no difficulty taking off or putting on his shoes and socks.
The clinical presentation is one of a low back strain with L5/S1 disc protrusion which required decompression laminectomy and discectomy and rhizolysis of the L5 and S1 nerve roots which was performed on November 5, 2021 with residual S1 radiculopathy.
He was consistent in presentation.
4. Results of any additional investigations since the original Medical Assessment Certificate
MRI of his lumbar spine on May 5, 2023 showed an L5/S1 posterior disc bulge eccentric to the left with left sub-articular zone narrowing contacting the descending S1 nerve root which is thickened.
Operative report findings of Associate Professor Peter Papantoniou on November 5, 2021 showed a hard left L5/S1 disc protrusion compressing the left S1 nerve root – discectomy was performed with decompression of the left lateral recesses and neurolysis of the left L5 and S1 nerve roots.
Impairment for the lumbar spine is DRE III, with impaction on ADL’s including heavier household cleaning chores and yard work, giving 12% whole person impairment.
That for the left lower extremity is 0% WPI.”
The Appeal Panel has adopted the report and findings of Medical Assessor Dixon. The Appeal Panel agreed that impairment for the lumbar spine was DRE category III with a base rate of 10% WPI and an additional 2% should be added on for impact on ADL. Medical Assessor Dixon found that following the surgery on 5 November 2021, the appellant had residual radiculopathy. Therefore, taking into account the modifiers for surgery in the form of residual radiculopathy in Table 4-2 of the Guidelines, a further 3% would be combined with the 12% WPI resulting in 15% WPI for the lumbar spine.

Summary

The Appeal Panel made an assessment of 15% WPI in respect of the lumbar spine which is combined with 3% WPI for scarring. This resulted a total of 18% WPI in respect of the injury on 1 August 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 May 2023 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:	W1336/23
Applicant:	Malcolm Luke Homal Tata
Respondent:	Dyldam Developments Pty Ltd

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 Neil Berry 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 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	1/8/16	Chapter 4 Page 28 Paragraphs 4.34, 4.35, 4.37	Chapter 15 Page 384 Table 15-3	15	0	15
2.Left lower extremity	1/8/16	Chapter 17 Page 537 Table 17-9 & 17-10	0	0	0
3.Scarring left thigh	1/8/16	Chapter 14 Page 74 TEMSKI	3	0	3
Total % WPI (the Combined Table values of all sub-totals)					18%

[2023] NSWPICMP 542

31 October 2023