Temizyuz v J & M Campbell Pty Ltd
[2021] NSWPICMP 133
•23 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Temizyuz v J & M Campbell Pty Ltd [2021] NSWPICMP 133 |
| APPELLANT: | Cemali Temizyuz |
| RESPONDENT: | J & M Campbell Pty Ltd |
| APPEAL PANEL: | Member Deborah Moore Dr Tommasino Mastroianni Dr J Brian Stephenson |
| DATE OF DECISION: | 23 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant submitted that the Medical Assessor (MA) erred in failing to find he suffered from radiculopathy allegedly against the weight of evidence; the MA accepted that there had been symptoms and signs of radiculopathy in the past but none at the time of the assessment; an MA is required to make an assessment on the day of the examination; in order to conclude that radiculopathy is present one must have two or more criteria one of which must be a major criteria; the MA made specific reference to the definition of radiculopathy in Item 4.27 of the Guidelines; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 March 2021 Cemali Temizyuz lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Meakin, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 24 February 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 WorkCover Medical Assessment Guidelines 2006.
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 none was requested, n, and in any event, we consider that we have sufficient evidence before us to enable us to determine the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant does not challenge the findings made by the MA with respect to the lumbar spine, but submits that the MA erred in “finding of a lack of left-sided radiculopathy [which] is at odds with the lengthy and sustained clinical record in this matter” with respect to the cervical spine.
The appellant also submits that the MA applied incorrect criteria with respect to Activities of Daily Living (ADL’s).
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the cervical spine and the lumbar spine resulting from an injury on 5 February 2018.
The MA obtained the following history:
“On 5 February 2018 during the course of his working duties Mr Temizyuz was putting a concrete block onto a truck when it moved back towards him and as he tried to hold it he fell backwards with the concrete block on top of him. He felt immediate pain in his posterior cervical neck and across both shoulders and some discomfort in the upper thoracic spine. Following this injury he has not been able to return to work of any type.
He was reviewed by his local general practitioner, Dr Mohammad Shahid, of Dapto. He was treated initially with analgesics and referred to Dr Ravi Kumar Cherukuri, neurosurgeon. On initial assessment on 20 July 2018 Dr Cherukuri noted a restriction of spinal movement with pain radiating towards the occiput and tenderness in the cervical neck. There was initially some altered dermatomal sensation in the right and left upper extremity but no abnormalities of reflexes or evidence of weakness. There was also some restriction of range of motion of the left shoulder.
A CT and MRI scan of the cervical, thoracic and lumbar spine were reviewed along with a bone scan being performed at the request of Dr Cherukuri. At the last assessment on 2 October 2018 it was noted that the nerve conduction studies which had been performed were reported on as normal with Mr Temizyuz continuing to complain of significant neck pain.
There was a referral then to see Dr David Manohar, interventional pain physician, initially on 24 October 2018. He was reviewed intermittently by Dr Manohar with continuing treatment until 8 July 2020. Diagnostic nerve block injections to the cervical spine from the C4/5 to the C6/7 level were performed… with no lasting effect. Radiofrequency procedures were then performed…with no lasting result. There was initial improvement noted in August of 2019 but the discomfort returned.
Dr Manohar reported no clinical issues in the lumbar back or the thoracic spine. The initial thoracic spine discomfort settled with the low cervical neck being the site of continuing discomfort along with some restriction of range of motion in the left shoulder…
At last consultation there was continuing neck pain with Mr Temizyuz then being started on Lyrica, Palexia and Avanza. There was an application for further neural blockades to the facet joints but these were rejected by the insurer.
Hydrotherapy was commenced but had to cease when COVID-19 started with no further physical treatment since March 2020. Mr Temizyuz does continue with an exercise programme prescribed to him by the physiotherapist.”
Present symptoms were noted as follows:
“Mr Temizyuz states that the pain in his low lumbar back which was low grade and centred in the midline, has been present for a period of 2 years, and was not associated with a further traumatic event. He states that in his opinion it relates to the discomfort in his cervical neck. Mr Temizyuz is unsure of the date of the commencement of the low back discomfort but it occurred after the actual accident and was noted at some time in 2018.
He reports no symptoms in his lower limbs. He describes his neck pain as being situated on the pad of the left shoulder adjacent to the neck and the shoulder area, this pain is also preventing him from elevating his left arm. There have been continuing radiological investigations relating to his cervical, lumbar and thoracic spine. There has been no actual investigation of his left shoulder, other than reference in the bone scan of July 2018 that there was minor arthritic change in the acromioclavicular joint and sternoclavicular joints.”
Findings on physical examination were reported as follows:
“On examination of the cervical spine there is no evidence of palpable or paravertebral muscle spasm or guarding. There is an asymmetrical active range of motion with lateral flexion and rotation to the left causing significant discomfort in the lower cervical neck and towards the pad of the left shoulder. All other planes of movement of the cervical neck demonstrate normal anticipated range.
There is no asymmetrical wasting of the right or left shoulder girdle. There is a full symmetrical painless range of movement of the right and left elbow, wrist and all hand and finger movements. All deep tendon reflexes in the right and left upper extremities are symmetrically present and equal and there are no abnormalities of tone or sensation. There is no wasting of hand musculature.
The right arm and forearm at maximal circumference are 0.5 cm greater than the left side consistent with his right-handedness, as is the slight dominance of right power grip.
There is a full range of painless movement of the right shoulder with a terminal range loss of movement of the left shoulder due to pain experienced in the area of the base of the neck and onto the pad of the shoulder…”
After documenting the radiological material he had, the MA then summarised the injuries and diagnoses as follows:
“Mr Temizyuz was injured in a work accident on 5 February 2018 with the immediate onset of posterior cervical neck pain and some discomfort towards the pad of the left shoulder with no definite evidence of distinct actual left shoulder injury. There is persisting reduction of cervical range due to pain with no distal neurological impairment. There is terminal range restriction of left shoulder movement due to pain at the junction of the cervical neck and shoulder pad, which in my opinion emanates essentially from the cervical neck…”
The MA assessed 6% WPI in respect of the cervical spine and 2% WPI in respect of the left shoulder. He said:
“At the time of today’s assessment Mr Temizyuz demonstrates an asymmetrical active loss of range of motion of the cervical spine with discomfort noted low in the cervical neck on the left side. There is no evidence of palpable or paravertebral muscle spasm or guarding. There are no clinical symptoms or signs at today’s assessment that would satisfy the definition of a non-verifiable radicular complaint although there has been in the past symptoms of discomfort distally into the upper extremity.
The Applicant demonstrates today clinical symptoms and signs consistent with a DRE Cervical Category II impairment 5- 8% whole person impairment.
The definition of radiculopathy as set out in Item 4.27 of the Guidelines has not been met. There is no loss or asymmetry of reflexes or evidence of muscle weakness or reproducible sensory loss or muscle wasting that can be anatomically localised to appropriate spinal nerve root distribution or not explained by the applicant’s right -handedness. The imaging studies are consistent with continuing cervical neck pain. The definition of radiculopathy, however, is not met.
With reference to Item 4.34 to 4.36 of the current Guidelines I note that Mr Temizyuz is unable to return to previous recreational activities and has not been able to return to work but can perform all his own self-care and home activities as well as drive a motor vehicle. I would therefore add 1% whole person impairment to the base impairment 5 + 1 = 6% whole person impairment…
The Applicant today does demonstrate an active loss of range of motion of the left shoulder which in my opinion relates to the cervical neck painful pathology… upper extremity impairment equate to a 2% whole person impairment. I am historically satisfied that the terminal range restriction of left shoulder flexion and abduction relates to the painful pathology in the cervical neck and therefore should be combined with the cervical spine impairment. 6 + 2 = 8% whole person impairment.”
In commenting on the other medical opinions, the MA said:
“I read with interest the report prepared by Dr Vijay Panjratan,..[his] clinical findings are very similar to those noted by myself…[he] assesses impairment of the cervical spine along with restriction of left shoulder movement due to neck pain. He notes a combined whole person impairment of 10% at the time of his consultation.
I read with interest the reports prepared by Dr Eugene Gehr. His medical assessment report prepared on 14 September 2020 refers to clinical symptoms and signs that would satisfy DRE Category III impairment relating to both the cervical and lumbar spine with no reference to left shoulder impairment. He reports a combined impairment of 26% whole person impairment including 2% whole person impairment with reference to activities of daily living. I found at the time of my examination no evidence to support a Category III impairment of the cervical or lumbar spine with reference to AMA 5…
Reports of Dr Ravi Kumar Cherukuri, treating spinal surgeon, on 20 July 2018 and then two further reports until the last visit on 2 October 2018, emphasise that at no time did Dr Cherukuri note symptoms or signs consistent with neuropathy or denervation in the upper extremity. He acknowledges the nerve conduction studies being normal and the x-rays of the cervical spine reveal spondylotic changes without significant change in alignment…
I read with interest the reports prepared by Dr David Manohar between 5 December 2018 and his final report on 8 July 2020. All these reports refer to continuing cervical neck pain…He reports on 17 December 2019 that there was no classic radicular pain and that in his opinion the pain was emanating from the facet joints…”
The appellant’s submissions commence with reference to evidence of radiculopathy recorded by some practitioners in the past.
For example, the appellant submits:
“The MA declined or refused to acknowledge the extensive history of left sided radiculopathy recorded by Dr Mohammad Shahid, treating General Practitioner. Dr Shahid records the Appellant’s multiple and consistent complaints of ‘neck pain with radiculopathy’ which appear in the doctor’s notes…[ranging from 10 September 2018 to 19 July 2020]
It is submitted that the presence of these entries of consistent complaint of radiculopathy are simply too voluminous and overwhelming for the MA to ignore.
On initial assessment on 20 July 2018 Dr Cherukuri, Neurosurgeon, also recorded a restriction of spinal movement with pain radiating towards the occiput and tenderness in the cervical neck. There was altered dermatomal sensation in the right and left upper extremities. This is consistent with the criteria for the presence of radiculopathy.
Dr E Gehr… that the Appellant fulfils two of the criteria for the presence of radiculopathy…
On examination Dr Panjratan, Orthopaedic Surgeon, found the ‘pain is mainly at the neck, going down the left shoulder down the left arm.’
All of the foregoing, it is submitted, points very strongly towards the presence of non-verifiable radiculopathy.”
The appellant also submits that the MA’s reasoning was flawed, in that: “He does not say by what method he determined that there were no clinical signs or symptoms of radiculopathy and does not record what he asked the appellant or what responses were given.”
The appellant adds:
“He does not explain (i) why there is a deficiency of movement in every axial plane in the rotation of the left shoulder in comparison to the right… (ii) how he can be satisfied that the observed muscle wasting is the result of the appellant’s right handedness and not as a result of injury/disability…
The MA has either applied the wrong test, or has not properly applied the DRE test method proscribed under the Guidelines…Contrary to the guideline,[he] has based his findings not on a detailed clinical history given but rather on his observations of a range of motion when assessing both the cervical and the lumbar spine…
As regards the issue of radiculopathy, it is simply not clear… whether the appellant was asked the simple and obvious question – given the history reported and summarised above- of whether the has pain radiating into his left arm. What is recorded is: ‘He describes neck pain as being situated on the pad of the left shoulder adjacent to the neck and the shoulder area, this pain is also preventing him from elevating his left arm.’ But the fundamental issue of whether there is radiculopathy is simply left hanging i.e: does pain radiate into the left arm when the Appellant tries to raise it? etc...
The diagnostic testing does not preclude radiculopathy- properly understood it actually supports it…
The AMS discounts the presence of radiculopathy on the basis that the nerve conduction studies ‘excluded neurological impairment’. However, this discounts other known causes of radiculopathy. One common cause of radiculopathy is narrowing of the space where nerve roots exit the spine, which can be a result of stenosis, disc herniation or spondylosis (John Hopkins [sic] Medicine)…
It is submitted that these imaging studies would have correlated with the clinical findings, had the question been asked in the clinical setting as to whether the appellant was experiencing left-sided radiculopathy, to which he would have answered ‘Yes.’, thereby establishing the appropriate criteria under DRE III…”
As regards the issue of ADL’s, the appellant submits:
“The MA does not record any of the matters discussed with the appellant which informed his opinion as to the impact of the appellant’s injuries on the activities of daily living. The AMS’s entire analysis of this issue is contained in a single sentence…where he records: ‘he can perform all his own self-care and home activities as well as drive a motor vehicle.’
This is completely at odds with the history taken by other medical practitioners who have examined him. For example, Dr Gehr records: ‘Mr Temizyuz has difficulty washing, showering and dressing himself and requires assistance. He used to help with the cooking and cleaning but he cannot do it now. He used to have a lot of hobbies – camping, bushwalking, but he cannot do them now. He also used to play football. … He is not able to drive his car.’
At paragraph 49 of his statement the appellant confirms that he has difficulty washing, showering and dressing, that he requires assistance with domestic duties such as cooking and cleaning and that he is unable to drive his truck.
The AMS does not advise why and upon what basis he simply ignores these statements and opinions.”
To begin with, we accept that there has been some evidence of radiculopathy in the past, which the MA acknowledged when he said:
“There are no clinical symptoms or signs at today’s assessment that would satisfy the definition of a non-verifiable radicular complaint although there has been in the past symptoms of discomfort distally into the upper extremity (our emphasis).”
This indicates the MA has taken into consideration symptoms described by the appellant.
We accept that the MA did not record this in the MAC under examination, but there is normal neurology as recorded under examination findings.
The appellant relies in part on the initial assessment on 20 July 2018 by Dr Cherukuri who recorded a restriction of spinal movement with pain radiating towards the occiput and tenderness in the cervical neck. There was altered dermatomal sensation in the right and left upper extremities. The appellant submits that this is consistent with the criteria for the presence of radiculopathy.
Altered dermatomal sensation is not the criteria for radiculopathy but if present is one of the major criteria. In order to conclude that radiculopathy is present one must have two or more criteria one of which must be a major criteria.
Although the MA did not accurately record his summary of the opinion of Dr Cherukuri, in our view it is not a fatal flaw since it does not impact on the appellant’s WPI at the time of assessment.
An MA is required to make an assessment on the day of the examination which we note in this case was on 17 February 2021.
The appellant’s submissions demonstrate that the appellant is essentially urging acceptance of the opinion of Dr Gehr, and focusses on the evidence of radiculopathy in the past.
It is perhaps timely at this point to set out the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“The Appeal Panel accepted that intervention was only justified… if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ (our emphasis) is required to establish error in the statutory sense….”
The MA made specific reference to the definition of radiculopathy in Item 4.27 of the Guidelines before stating that there was no loss or asymmetry of reflexes, no evidence of muscle weakness, no evidence of sensory loss and no evidence of muscle wasting.
The “difference of opinion” between the MA and Dr Gehr is clearly explained by the MA. The appellant’s presentation on the day supports his assessment.
As to the submission regarding conduct of the examination, there is a presumption of regularity in relation to the medical examination (Jones v The Registrar of the Workers Compensation Commission [2010] NSWSC 481).
We agree with the respondent’s submission that there is no basis for the submission that the MA has based his assessment of the cervical spine on range of motion. The MA clearly stated that he has used the DRE method of assessment.
In the absence of evidence of the criteria for radiculopathy having been satisfied, there is simply no basis upon which the appellant could be classified as DRE Category III.
It seems to us that the appellant has not fully considered both the evidence before the MA and his findings on examination in support of his submissions, but has ‘researched’ information on the topic of radiculopathy to ground the submissions.
In summary, there is simply no evidence of the presence of radiculopathy at the time of the examination to support a finding of DRE Category III, and we cannot see that the MA erred in his assessment.
Finally, as regards the issue of ADL’s, we agree with the respondent’s submissions that the appellant has referred to “historical evidence in relation to restrictions” rather than as he presented to the MA on the day of the assessment.
In our view, the allowance of 1% for ADL’s is consistent with the descriptors set out in Chapter 4.34 of the Guidelines, and again, we cannot see any error by the MA in this respect.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 February 2021 should be confirmed.
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