Up & Go Bulk Haulage Pty Ltd v Vegara
[2023] NSWPICMP 473
•27 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Up & Go Bulk Haulage Pty Ltd v Vegara [2023] NSWPICMP 473 |
| APPELLANT: | Up & Go Bulk Haulage Pty Limited |
| RESPONDENT: | David Vegara |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Neil Berry |
MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 27 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment (lumbar spine); whether the assessor erred in making an allowance for radiculopathy; if so, whether application should be further examined by the Panel; Held – Medical Assessment Certificate revoked and replaced. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Wong dated 1 June 2023.
The Medical Assessor assessed a 31% whole person impairment (26% cervical spine, 5% lumbar spine, 1% scarring) as a result of injury on 16 December 2019. His assessment of the cervical spine included an allowance of 3% for radiculopathy.
The appellant submits that the allowance of 3% for radiculopathy demonstrates error, because the findings on examination were inconsistent with the existence of radiculopathy. It says that the Medical Assessor found no clinical evidence of radiculopathy on examination, but accepted that radiculopathy had been present when the worker was previously examined by independent medical experts retained by the parties, and assessed him on that basis, which was impermissible.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. They are not repeated in full, but are summarised briefly below.
The appellant submits as follows:
(a) The task of the Medical Assessor was to assess the worker as he presented when he was examined on 23 March 2023. It was not the task of the Medical Assessor to assess him as he had presented to previous assessors. They were independent medical experts Dr Sheehy (report of 8 August 2022) and
Dr Abraszko (report of 4 May 2022).(b) On examination, the Medical Assessor found no evidence of radiculopathy. He noted normal alignment of the cervical spine, no tenderness or muscle guarding on palpation, no asymmetry of motion. He recorded that neurological examination was ‘normal’ and without sensory or motor deficits. Upper limb reflexes were normal and symmetrical.
(c) However, he noted the advice of the worker that the left hand was usually numb but that this was a ‘particularly good day for him’.
(d) Even if the worker’s hand had been numb on examination, it would not satisfy the criteria for radiculopathy in the Guidelines.
(e) The error should be corrected, without further examination, by removing the allowance of 3% for radiculopathy made by the assessor: G & J Spackman v Mackenzie [2020] NSWWCCMA 14.
The respondent worker submits as follows:
(a) Dr Sheehy noted, ‘There was a persisting numbness and at times pain in the left arm with a cold feeling in the fingers which is unchanged compared with preoperatively.’ He found persistent radiculopathy on the basis that the worker ‘has altered sensation in the left C6 nerve root distribution and an absent left biceps jerk’. Like the Medical Assessor, he allowed 3% for radiculopathy.
(b) Dr Abraszko found persistent radiculopathy on the basis of decreased sensation in the left C6 nerve root distribution, and described pain and numbness radiating down to the left hand. Like the Medical Assessor, she allowed 3%.
(c) Medical Assessor Wong accepted the findings of radiculopathy by Dr Sheehy and Dr Wong [see [10c] of his reasons]. Nevertheless, he did not simply apply their findings as to radiculopathy, but reached his own view as to its presence, based on his own clinical examination: ‘he found radiculopathy in the same manner as to [sic, did] the two prior assessors in accordance with the Guidelines’.
(d) If he failed to give adequate reasons, the matter should be remitted to him for reconsideration and an explanation of his reasoning, rather than a determination by the Panel.
(e) Spackman is to be distinguished, because in that case the Medical Assessor had found there was no radiculopathy. In this case, the Medical Assessor has accepted that there was.
Consideration
As the appellant submits, on examination the Medical Assessor found at [5] that there was normal alignment of the cervical spine, no tenderness or muscle guarding on palpation, and no asymmetry of motion. He recorded that neurological examination was ‘normal’ and without sensory or motor deficits. Upper limb reflexes were normal and symmetrical.
In short, he discerned no clinical signs of radiculopathy.
He observed:
“[Mr Vegara] informed me that his left hand is usually numb but today was a particularly good day for him.”
He discussed the findings of Dr Sheehy and Dr Abraszco at [10c], noting that each had found left C6 radiculopathy. He continued:
“Based on today’s findings, I agree with thew DRE IV category for the cervical spine and I accept the findings of persisting left sided C6 radiculopathy by the two prior assessors.”
His findings on examination did not support a finding that radiculopathy was present. Despite the terms of the above passage, we are unable to discern how ‘today’s findings’ could possibly have led to an acceptance of persisting left sided C6 radiculopathy, unless those findings include the assessor’s acceptance (not made express in his reasons) of the worker’s oral evidence that the left hand was ‘usually numb’. We interpret the passage in that way.
It was the Medical Assessor’s task to assess the worker as he presented at examination, and not as he might have presented at some previous date. That task included taking a history of injury and its sequelae, including a history of symptoms, as the assessor did. However, it was not open to him to assess the presence of radiculopathy on the basis of symptoms that were not present on examination, even if those symptoms had been present on previous occasions.
In our view, that is what the Medical Assessor did. He accepted that numbness in the left hand had been present previously. He made no finding that it was present as at examination, and we are uncertain as to whether it was. In those circumstances, the reasons given by the Medical Assessor are inadequate to explain a finding of radiculopathy.
Even if there had been a finding of numbness in the left hand on examination, that would not alone have satisfied the criteria for a finding of radiculopathy set forth in the Guidelines at [4.27], which require that at least one of the three ‘major criteria’ be satisfied, together with at least one of the remaining (major or minor) criteria. That is so, even if the presence of left hand numbness had satisfied the major criterion of ‘impairment of sensation anatomically localised to an appropriate spinal nerve root distribution’, because none of the other criteria were satisfied, or even addressed in the reasons.
For that reason also, the reasons are inadequate to support a finding of radiculopathy.
The inadequacy of reasons demonstrates error, necessitating the setting aside of the Medical Assessment Certificate.
The respondent’s legal representatives submitted that, if Medical Assessor Wong did not address each of the criteria in the Guidelines for assessing radiculopathy, ‘the Respondent worker should not be penalised for this. This is the responsibility of the draftsmen.’ Where, as here, an appellant alleges demonstrable error or the application of incorrect criteria, the task of an Appeal Panel is to discern whether either was present as alleged, and affected the outcome. If so, the appropriate course is to set aside the Medical Assessment Certificate, and issue a correct assessment. A corrected assessment may be more or less favourable to a party than the original assessment, but the error is not the fault of the respondent. He or she is not ‘penalised’ in any way by the issue of a correct assessment. The submissions do not specify who ‘the draftsmen’ are alleged to have been. The Medical Assessment Certificate appears to have been drawn by the Medical Assessor, as is appropriate. There is no evidence to the contrary.
Conclusion
The respondent worker suggests that it would be more appropriate to refer the matter back to the Medical Assessor with a request for more satisfactory reasons.
Where, as here, a Medical Assessment Certificate contains demonstrable error, it must be set aside. A referral back to the Medical Assessor for better reasons is inappropriate.
The remaining issue is whether a further examination by the Panel is warranted, or whether the assessment can be corrected without further examination, by deducting the 3% allowed for radiculopathy as in Spackman.
The respondent says that Spackman should be distinguished on the basis that the Medical Assessor in that case had found there was no radiculopathy, whereas here Medical Assessor Wong has found that there was.
Though such a distinction can be made, it is not relevant. Even though Medical Assessor Wong found (by necessary implication) that there was radiculopathy, his reasons for doing so are inadequate to support his conclusion.
In this case, the Panel notes that there have been several documented features of radiculopathy in previous medical reports. These include the finding of reduced sensibility in the report of Dr Abraszko dated 4 May 2022, and the finding of an absent left biceps jerk documented by Dr Sheehy on 8 August 2022. Each of these observations was made long after 4 March 2021, when the worker had come to surgery to address radiculopathy. By the tie these observations were made, it seems there were some signs at least of radiculopathy. We cannot tell from the examination findings of the Medical Assessor whether signs were present or not. For these reasons, we do not know whether persistent radiculopathy was present at examination, or is present.
In order to know whether there is persistent radiculopathy, examination by a member of the Panel is appropriate. For those reasons, the Panel referred the worker to Medical Assessor Berry. His report follows.
Report of Medical Assessor Berry
“Mr David Vegara attended today, 6 July 2023 unaccompanied and confirmed that he is 47 years of age and dominantly right-handed. He told me that he was employed by Up & Go Bulk Haulage Pty Ltd as a tip truck driver for approximately two years. His duties involved picking up dirt and building material from a designated construction site and unloading it at different construction sites. He told me that the seat in his truck was old and defective and therefore there was no support and no padding and he subsequently developed pain in his neck and back which had been present for some months. He was subsequently taking up to eight Advil tablets a day. He found that he developed constant occipital headaches with the neck pain and back pain.
On 16 December 2019, while driving he experienced worse pain and he therefore reported the matter and attended his general practitioner, Dr Tom Lieng. Mr Vegara was referred for various scans and was diagnosed with a cervical disc problem. He also had back pain and pain in both arms extending to the hands and he had pain down the back of the left leg to the heel. He was eventually referred to Dr Simon McKechnie, Neurosurgeon, who initially treated him conservatively. However, as his symptoms did not improve he organized for him to have a C5/6 cervical discectomy and fusion which was carried out in March 2021 at Sydney Southwest Private Hospital. Unfortunately, the surgery did not ease his symptoms a great deal, although it did reduce his symptoms in his right arm which now extends to the elbow not the wrist and hand.
CURRENT SITUATION
Mr Vegara told me today that he continues to suffer a feeling of tightness and pain in the neck which disturbs his sleep as he is constantly turning over in order to try and relieve the stiffness. He continues to experience pain in his arms which comes and goes and he continues to suffer back pain and pain down the left leg to the heel.
CURRENT TREATMENT
Mr Vegara takes Panadol Osteo and occasionally will take Panadeine Forte for his pain. He also takes medication for his blood pressure.
PRIOR HISTORY
There is no history of prior accident, injury or claim for compensation.
GENERAL HEALTH
Mr Vegara suffers from hypertension but he has no other serious health issues that he is aware of.
WORK HISTORY
Mr Vegara left school in Year 11 and worked as an upholsterer for three years before obtaining his truck licence and obtaining work as a truck driver.
SOCIAL HISTORY
Mr Vegara is a married man and he has two adult children. They live on an acre block and he does the lawn mowing using a ride on mower.
PHYSICAL EXAMINATION
Mr Vegara was 180 cm in height and 87 kgs in weight. He moved with normal posture and gait and he was noted to sit comfortably throughout the interview.
Cervical Spine
There was diffuse tenderness to palpation. There was a scar on the anterior right side of the lower neck consistent with his discectomy and fusion. He demonstrated half the normal range of right rotation, two thirds of the normal range of left rotation and half the normal range of flexion and less than a third of the normal range of extension. Lateral flexion to the left and right was one third of the normal range. There was no muscle spasm and no muscle guarding and no alteration of spinal contour.
Testing for nerve root tension yielded a negative result.
Upper Extremities
All active movements were measured using a goniometer.
Mr Vegara demonstrated 180 degrees of flexion and abduction of both shoulders. Reflexes were brisk and equal. There was no sensory impairment.
Measurement of the circumference of the right upper extremity, 10 cm above the olecranon was 30 cm and 10 cm below the olecranon was 28 cm.
On the left side, the measurements were 29 cm and 28 cm.
The difference of 1 cm between the circumference of the right (30cm) and left (29cm) upper extremities at 10cm above the olecranon is consistent with his being right hand dominant, as recorded by the Medical Assessor. I observed no muscle wasting.
On testing, there was no muscle weakness.
INVESTIGATIONS
Mr Vegara had no new investigations since the last ones that are recorded.
SUMMARY
In summary, this is man who suffered injuries to his neck and back. Clinically, he has no evidence of radiculopathy in the upper extremities. In particular reflexes are normal and there is no sensory change and no unilateral wasting.”
Assessment of the Panel
Having regard to his expertise as an experienced orthopaedic surgeon, the Panel accepts the clinical findings of Medical Assessor Berry, noting that he found that reflexes were normal, that there was no sensory change, and that there was no unilateral wasting of musculature.
Paragraph 4.27 of the Guidelines lists six criteria – three major and three minor – of which two or more are required for a finding of radiculopathy. At least one of them must be major. The three major criteria are:
· loss or asymmetry of reflexes;
· muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
· reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution.
The three minor criteria are:
·positive nerve root tension;
·muscle wasting – atrophy, and
·findings on an imaging study consistent with the clinical signs.
The findings of Medical Assessor Berry indicate that none of the three major criteria was satisfied. He found that reflexes were normal. If follows that there was neither loss nor asymmetry of reflexes. He found that there was no sensory change. It follows that there was no reproducible impairment of sensation in a spinal nerve root distribution. He found there was no muscle weakness.
His findings also indicate that none of the three minor criteria was present. Testing for nerve root tension was negative. There was no muscle wasting, despite an expected difference of 1cm between the dominant and non-dominant upper limb. There were no clinical signs of radiculopathy for comparison with an imaging study.
The criteria for radiculopathy were not satisfied as at the date of examination, notwithstanding the fact that other clinicians may have found the presence of radiculopathy in previous examinations. An allowance for radiculopathy is not available.
We revoke the Medical Assessment Certificate of Medical Assessor Wong, and replace it with the attached Medical Assessment Certificate.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W787/23 |
Applicant: | David Vegara |
Respondent: | Up & Go Bulk Haulage Pty Limited |
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 Wong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Cervical spine | 16 December 2019 | Chapter 4 P24-30 | Chapter 15 Table15-5 | 26% | 1/10 | 23% |
| 2. Lumbar spine | Chapter 4 P24-30 | Chapter 15 Table15-3 | 1% | Nil | 1% | |
| 3. Scarring | T14.1 P74 | 1% | Nil | 1% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 25% WPI | |||||
0
0
0