Watkins v Racing NSW
[2024] NSWPICMP 519
•30 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Watkins v Racing NSW [2024] NSWPICMP 519 |
| APPELLANT: | Jasen Watkins |
| RESPONDENT: | Racing NSW |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 30 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; previous claim in respect of a 2009 injury assessed by same Medical Assessor in 2022; this claim for 2020 injury; overlapping body parts; outcome resulted from forensic decisions made; consistency tests; Bojko v ICM Property Service Pty Ltd; assessment of radiculopathy under paragraphs 4.27 and 4.28 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; assessment of activities of daily living; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 March 2024 Jasen Watkins lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Tim Anderson, who issued a Medical Assessment Certificate (MAC) on 9 February 2024.
Mr Watkins relies on the following grounds of appeal under s 327(3) 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.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error – s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds 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 is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 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 Watkins was employed by Racing NSW as a jockey. He brought proceedings in 2022 in respect of an injury on 2 January 2009 which were determined by a Member of the Personal Injury Commission (Commission) on 15 June 2022. The claim was made on the basis of an injury to Mr Watkins’ back, neck, and both shoulders. Mr Watkins discontinued the claim with respect to his left shoulder and Racing NSW conceded that he suffered an injury to his right shoulder. The Member determined that he suffered an injury to his cervical spine, because there was contemporaneous complaint of neck pain, but did not suffer an injury to his lumbar spine.
The matter was remitted to the President for referral to a Medical Assessor and Medical Assessor Anderson prepared a MAC dated 13 October 2022. He assessed 7% whole person impairment (WPI) in respect of the cervical spine from which he deducted one-tenth under s 323 of the 1998 Act. He assessed 10% WPI in respect of Mr Watkins’ right upper extremity, combining those assessments to reach 15% WPI.
The injury which is the subject of these proceedings occurred on 10 September 2020, when Mr Watkins was riding trackwork on a sandy track. The horse he was riding suddenly stopped, and he was thrown over its head and speed into the ground headfirst. He claimed that he suffered injuries to his cervical spine, lumbar spine, left upper extremity, and right upper extremity.
The referral took place after a conference before a Member of the Commission. Mr Watkins consented to an award in favour of Racing NSW in respect of his left upper extremity (shoulder) as a result of the event on 10 September 2020.
The Medical Assessor was asked to assess Mr Watkins’ cervical spine, lumbar spine, and right upper extremity (shoulder). He assessed 6% WPI in respect of the cervical spine but deducted the whole of that assessment under s 323 of the 1998 Act. He assessed 10% WPI in respect of Mr Watkins’ right shoulder and deducted the whole of that assessment under s 323. The Medical Assessor assessed 5% WPI in respect of the lumbar spine.
The Medical Assessor noted that the impairment of Mr Watkins’ cervical spine and right shoulder were assessed by him in a MAC dated 31 August 2022 and attributed to an injury in 2009.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Watkins to undergo a further medical examination because the MAC does not disclose error and there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
Mr Watkins’ submissions were prepared by his solicitor, Mr Santone. He submitted that the Medical Assessor failed to assess Mr Watkins as he presented on the day of the assessment and, with respect to the right shoulder, erroneously conducted his examination on the basis of his assessments undertaken on 24 August 2022, contrary to paragraph 1.6 of the Guidelines. He submitted that the Medical Assessor failed to have regard to his statement that he had been able to return to his work as a jockey after the injury on 2 February 2009, but was not able to do some after the 2020 injury.
Mr Watkins submitted that the Medical Assessor denied him potential fairness by not putting to him the purported issues related to consistency and giving him an opportunity to respond. He said that the Medical Assessor did not provide adequate reasons for his conclusions with respect to cervical and lumbar radiculopathy, noting that other examiners had observed radiculopathy. He said that the Medical Assessor was in error in failing to assess impairment by reference to the activities of daily living and in failing to have regard to his statement.
In reply and in detailed submissions prepared by its solicitor, Mr Dolan, Racing NSW submitted that the Medical Assessor did examine Mr Watkins as he presented on the day of the examination and set out his findings and using his clinical judgement as required by paragraph 1.6 of the Guidelines. Racing NSW said that it was reasonable for the Medical Assessor to modify his impairment rating in the presence of inconsistency when there was a previous assessment available and there was no basis in Mr Watkins’ statement for deterioration between the Medical Assessor’s first and second examinations.
As to whether the Medical Assessor was required to raise the inconsistencies he observed with Mr Watkins, Racing NSW referred to the presumption of regularity that accompanies the actions of an administrative decision maker. With respect to the submission that the Medical Assessor failed to give adequate reasons for his conclusions about radiculopathy, Racing NSW referred to Vitaz v Westform (NSW) Pty Ltd[1] where Basten JA said:
“An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
[1] [2011] NSWCA 254 at [43].
Racing NSW highlighted the requirements for the assessment of radiculopathy in paragraph 4.27 of the Guidelines and the statement in paragraph 4.28. It submitted that the Medical Assessor set out his examination findings which adequately demonstrated that he did not observe the criteria to assess radiculopathy. It noted that when Dr Nair assessed Mr Watkins on its behalf, he referred to radicular symptoms only. It observed that the Medical Assessor considered whether an allowance for the impact of the injury on the activities of daily living was warranted and submitted that the Medical Assessor has considered the information in the file, highlighting the material that was particularly relevant.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [2021] NSWCA 304 at [26].
The MAC
The Medical Assessor began by saying that he had studied all of the material referred to him, then set out the documents he considered particularly relevant. He highlighted Mr Watkins’ statements, his own previous MAC, reports of Mr Watkins’ general practitioner in 2020 and the reports of the independent medical examiners retained by each of the parties. The Medical Assessor set out the history of the injury on 10 September 2020 and said that a week after the injury, Mr Watkins attempted to return to horse riding, but was unable to do so and completely ceased riding. He subsequently saw his general practitioner. The Medical Assessor noted that Mr Watkins’ only treatment is taking tablets, including opiate analgesia.
The Medical Assessor set out Mr Watkins’ present symptoms:
“Pain in his neck, which is very severe and unrelenting. There is radiation down the right arm, affecting the middle, ring and little fingers.
Lower back pain radiating down both legs, which is almost identical, although the right side is perhaps a little worse than the left. He experiences night leg cramps, particularly on the right.
He has gross pain in his right shoulder, with reduced movement and power. There is a similar feature of the left shoulder, although the reasons for the left shoulder dysfunction have never been fully identified.”
The Medical Assessor said:
“In the previous MAC of 31/08/22, his previous injuries were recorded. The major injury appears to have been in a fall from a horse in 2009. This predominantly affected his right shoulder, with dislocation of the acromio-clavicular joint. This was managed by a surgical repair by Specialist Orthopaedic Surgeon, Dr Alex Jovanovic. Although he believes that the right shoulder never fully recovered, he was able to get back to competitive riding as a jockey some three months later.
There has been a variety of falls since then. There have also been other events which have not involved falls, which occurred in March 2012, February 2015 and September 2016. In all of these events, there seems to have been further jarring events, mostly to his neck. In 2012 he was reviewed by Specialist Neuro-surgeon, Dr Timothy Siu, who recommended surgery at the C5/6 articulation. As previously advised, Mr Watkins declined to have this for a fear of his condition not significantly improving.
All of his subsequent clinical management has remained conservative, including after the event of September 2020.”
The Medical Assessor recorded Mr Watkins’ work history:
“For all of his working life, Mr Watkins has been a jockey. This was from the age of about 15. After he completely ceased riding after September 2020, he managed to get a job in gardening and lawn cutting on a ride-on at the Coffs Harbour Racecourse. It looks as though this ground to a halt sometime around November 2023, when he saw his family doctor for severe increase of pain so that he was unable to continue with this occupation. He is currently not working.”
Setting out his findings on examination, the Medical Assessor said:
“Cervical Spine. He continues to have severe pain in his neck in the mid-line throughout the length of the cervical spine with associated tenderness. Forward flexion was reduced to half the normal range. Extension was virtually non-existent. Lateral flexion to each side was minimal. Lateral rotation to the right was grossly reduced to one-quarter of the normal range. The same movement to the left was fractionally better, at one-third of the range.
Upper Limbs. No significant features were identified with the elbows, wrists, hands or any of the digits. As already mentioned, the hands were extensively callused.
The surgical scar over the right shoulder had healed extremely well and was barely visible. Rather ironically, there appeared to be slightly less muscle coverage over the left shoulder complex in comparison with the right.”
The Medical Assessor set out the range of motion of Mr Watkins’ shoulders and observed that they were almost symmetrical. He said that the range of motion was likewise similar in 2022, but considerably greater than what was demonstrated on the day of the assessment. He said:
“Sensation to pinprick was minimally reduced on the right side in what appeared to be the ulnar distribution. Reflexes were present and equivalent at the elbows (C5 and 7) and at the wrists (C6).”
With respect to Mr Watkins’ lumbar spine, the Medical Assessor observed minimal movement of the lower back, the lumbar lordosis was very flattened, and Mr Watkins, complained of pain throughout the lumbar spine with associated tenderness. He said:
“No significant features were identified with the hips, knees or ankles. Sensation to pinprick was difficult to establish and appeared to be reduced bilaterally, more in a global distribution. Power of the extensor hallucis longus (L5) was equivalent. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1).
An attempt at straight leg raising was conducted sitting on the edge of the couch. He seemed unable to fully extend each knee. I was not convinced that this represents a genuine positive sciatic stretch test.”
The Medical Assessor summarised the injuries and his diagnosis:
“Mr Watkins has a history of severe injury, predominantly to his cervical spine and his right shoulder complex. It has already been identified that this predominantly dates back to a severe fall from a horse in 2009. Since then, there have been other falls and horse related events, which have continued to aggravate this underlying condition. Nevertheless in June 2020, when seen for his jockey medical, his GP at the time, Dr Neville Wulf advised that he had a full range of movement and had made a full recovery and was therefore completely fit to return to competitive riding.
Some three months later, the severe fall of September 2020 occurred where the horse suddenly stopped and he went over the top, landing in a heap on the ground in front of the horse. I have been unable to find accurate details as to the specifics of this fall and also exactly what was identified when he did start seeking medical assistance. This, however did not occur until something like a week after this event, when he found that he just could not get back to riding.
The radiological investigations of 19/10/20 demonstrate significant degenerative changes in both the cervical and lumbar spine. Specifically with the lumbar spine, significant discogenic pathology is demonstrated at the L5/S1 articulation. Nevertheless, I was unable to convincingly demonstrate radiculopathy, either in the upper or the lower limbs. I could also find no history or record of specific injury to his lumbar spine that predates the event of September 2020. I would therefore conclude that in this event, he further aggravated the condition of his cervical spine and his right shoulder, both of which were previously assessed and also in this event, sustained the injury to his lumbar spine.”
The Medical Assessor said:
“Attention is drawn to the radiological evidence which identifies degenerative changes in the cervical and lumbar spine. This was taken just about a week after this event. There have also been copious previous occasions while riding as a jockey where there has been injury to his neck, particularly. Nevertheless, at his jockey medical in June 2020, he was described as being fit to return to full competitive racing.” [sic]
With respect to the consistency of presentation, the Medical Assessor said:
“Mr Watkins’ presentation was reasonably consistent, although I would draw attention to the very reduced ranges of movements of his shoulders. Since I previously saw him in August 2022, there has been no further event which would reasonably have accounted for this severe deterioration of the shoulders bilaterally.”
The Medical Assessor explained his calculations. He did not make an allowance for the impact of the lumbar spine injury on the activities of daily living because it had previously been attributed to the cervical spine injury.
He said with respect to Mr Watkins’ right shoulder;
“Attention has already been drawn that the range of movement of the shoulders at this assessment may not be all that accurate, and therefore should not be used for assessment of whole person impairment. Rather than that, the previous range of movement is selected.
This had given a whole person impairment of the right shoulder of 10%. As previously identified, this impairment of the right shoulder was attributed to the event of 2009 and since it is assessed that there is no further deterioration of the right shoulder complex, there is no further impairment associated with the injury of 10/09/20, which is therefore assessed at 0%.”
He said:
“Since I last saw Mr Watkins, there has only been one other specialist report in which whole person impairment has been calculated. This is by Specialist Orthopaedic Surgeon, Dr Murray Hyde-Page in his report of 02/05/23. Dr Murray Hyde-Page identified radiculopathy with the cervical spine, with 17% WPI, although I was unable to convincingly demonstrate radiculopathy with either of the upper limbs. With the lumbar spine there was 5%, with which I would agree. With each shoulder there was 10%. I would agree with this impairment also. Dr Murray Hyde-Page advises that there are no deductions, since all of Mr Watkins’ identified conditions are associated with his occupation as a jockey at Racing NSW. I would tend to agree with this, since there has been no other significant event or circumstances which would reasonably account for the quite extensive dysfunction which he experiences, although I would again draw attention that this assessment is for the injuries sustained in the event of 10/09/20 only, and not for his occupation as a jockey during the period of 30 years or so with Racing NSW. Therefore, strictly speaking, I am at variance with these findings, although would agree with the lumbar spine impairment of 5%.”
Consideration
The determination of this appeal turns on the forensic decisions made in the past in respect of Mr Watkins’ claim and the artificial way in which the claims were made.
Mr Watkins commenced proceedings in 2022 relying only on an injury on 2 January 2009 which he said was to his neck, back and shoulders and a disease injury with a deemed date of 2 January 2009. The documents filed in respect of that claim are attached to the Reply.
Mr Watkins’ history is set out in his statement dated 21 February 2022, provided to the Medical Assessor in respect of the previous proceedings and these proceedings. Mr Watkins relied on a report from Dr Patrick dated 20 October 2021 for the assessment of permanent impairment. Dr Patrick’s assessment was made solely in respect of a date of injury in 2009 and he assessed 15% WPI in respect of the cervical spine, 9% WPI in respect of the lumbar spine, 5% WPI for the right upper extremity (shoulder) and 6% WPI for the left upper extremity (shoulder). Dr Patrick attributed all of the loss to the injury in 2009 and he did not record a history of injury in 2020.
The Medical Assessor prepared a MAC dated 8 September 2022. He was given a history in respect of the 2009 injury and the recommendation for surgery to Mr Watkins’ cervical spine by Dr Siu in 2012. He noted the history in Mr Watkins’ statement about subsequent events and that he ceased racing after a fall in 2020.
The Medical Assessor was required to assess Mr Watkins as he presented on the day of assessment.[4] The Medical Assessor assessed 7% WPI in respect of his cervical spine and said that an event where he injured his neck aged 15 attracted a deduction of one-tenth under s 323, resulting in an assessment of 6% WPI. The Medical Assessor assessed 10% WPI for Mr Watkins right upper extremity shoulder and combined his assessments to reach 15% WPI.
[4] Guidelines paragraph 1.6.
The Medical Assessor was not asked to consider an injury in 2020 nor was he asked to apportion the assessment between injuries.
As a result of the MAC, there was a binding assessment of the extent of permanent impairment suffered by Mr Watkins as at 31 August 2022.
In these proceedings, Mr Watkins did not rely on the report from Dr Patrick but did rely on a report by Dr Hyde-Page dated 2 May 2023. He does not set out the date of injury he was provided with, though he said that Mr Watkins worked as a jockey until his retirement after a fall in September 2020.
His report does not reveal the information provided to him and he only referred to the report of Dr Nair dated 22 February 2022 which he was specifically asked to address. Dr Hyde-Page assessed 17% WPI in respect of Mr Watkins’ cervical spine, 5% WPI for his lumbar spine, 10 % for his right shoulder and 10% for his left shoulder. Dr Hyde-Page combined those assessments to reach 36% WPI.
In a supplementary report dated 1 September 2023, Dr Hyde-Page said:
“In reply to your request for a supplementary report dated 25 August 2023, I seek clarification from you as to how whole person impairment on Jasen Watkins is to be assessed. In my original report, I assessed his level of whole person impairment due to multiple injuries he suffered as a jockey over many years. I came to the conclusion that any pre-existent impairment in the cervical and lumbar spine was due to injuries he had suffered working as a jockey over this period of time. I therefore did not consider there was any pre-existent impairment that needed to be taken into account. He finally stopped working as a jockey in 2020. The fall he suffered in 2020 was just one of many falls over many years.
I would also add that he developed a stiffness in his shoulders as a consequence of these previous falls, as well as the final fall he had in September 2020. He has never had any injuries to his shoulders, neck or back away from his occupation as a jockey.”
There is no report in the file showing that Dr Hyde-Page was provided with the clarification that he sought.
Dr Nair saw Mr Watkins and reported on 22 February 2022. He was provided with a history that the injury on 10 September 2022 was the most significant fall that Mr Watkins suffered. The report was prepared for a permanent disability claim and not for a workers compensation claim. Dr Nair considered that Mr Watkins had significant upper and lower extremity, radicular symptoms and was unable to safely work as a jockey. He considered that the fall in 2020 significantly and permanently, aggravated cervical spondylosis and lumbar spondylosis.
The Medical Assessor was asked to assess Mr Watkins by reference to the date of injury in 2020. He did not assess any deterioration of Mr Watkins cervical spine and right shoulder since his examination in 2022 and made a deduction of the whole of the previous assessment. He noted that there had not previously been a claim in respect of the lumbar spine.
Specific grounds of appeal
The first ground relied on is that the Medical Assessor did not assess Mr Watkins’ right shoulder on the day of assessment. The Medical Assessor recorded the range of movement he observed and said that it was almost symmetrical but less than the previous assessment. He did make the required assessment on the day but did not accept the results of the examination as accurate.
The Medical Assessor did not convert the restricted range of shoulder movements to percentage WPI. If he had, the result would be 23% upper extremity impairment for the right shoulder and 24% for the left. Each of those assessments convert to 14% WPI.
The Medical Assessor observed an almost symmetrical range of motion of both shoulders. Mr Watkins agreed by the consent orders dated 27 November 2020 that he did not suffer an injury to the left shoulder. The decision in the previous proceedings dated 15 June 2022 shows that he did not make a claim in those proceedings for the left shoulder. There is a strong argument for the left shoulder being regarded as a contralateral, uninjured joint so that any impairment assessed for the left shoulder should be deducted from that for the right and there would be no assessable loss for the right upper extremity (shoulder). As the appeal fails on other grounds, that proposition is academic.
Consistency
Mr Watkins said that the Medical Assessor did not provide him with an opportunity to respond to issues as to purported consistency on examination.
A Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. The presumption of regularity applies with respect to his report and the conduct of his examination. In Bojko v ICM Property Service Pty Ltd [5] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’."
[5] At [36].
The Medical Assessor is presumed to have asked all relevant questions and to have verified the measurements if he was not satisfied they were accurate. Paragraph 1.36 of the Guidelines provides:
“AMA 5, (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good, but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgement, when assessing whether or not the measurements of test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that, an impairment of the certain magnitude exists, the assessor may modify the impairment rating accordingly, and then describe and explain the modification in writing the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
The submission that the inconsistency was not put to Mr Watkins is presumably made on instructions, though any evidence in this regard would not be admissible. In Petrovic v BC Serv No 14 Pty Limited[6] Hoeben J observed that if a statement going to the way in which a medical assessment was conducted was additional relevant information as defined in s 327(3)(b) “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.
[6] [2007] NSWSC 1156 at [31].
Radiculopathy
The Medical Assessor described Mr Watkins’ symptoms and set out his findings on examination. Mr Watkins said that the Medical Assessor noted that he experienced radiating pain down his right arm and both legs. He said that was consistent “with the examination findings of Dr Nair qualified by the respondent” and with the findings of Dr Hyde-Page.
We pause to note that Dr Nair was not qualified for the Racing NSW for the purpose of these proceedings. Dr Nair examined Mr Watkins for the purpose of permanent disablement claim and his report described only radicular symptoms.
The Medical Assessor was required to examine for radiculopathy as defined in the Guidelines. Paragraphs 4.27 and 4.28 of the Guidelines 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).
Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy.”
The MAC shows that the Medical Assessor undertook the appropriate tests. Specifically he said:
“Sensation to pinprick was minimally reduced on the right side in what appeared to be the ulnar distribution. Reflexes were present and equivalent at the elbows (C5 and 7) and at the wrists (C6).”
And:
“Sensation to pinprick was difficult to establish and appeared to be reduced bilaterally, more in a global distribution. Power of the extensor hallucis longus (L5) was equivalent. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). An attempt at straight leg raising was conducted sitting on the edge of the couch. He seemed unable to fully extend each knee. I was not convinced that this represents a genuine positive sciatic stretch test.”
The Medical Assessor correlated those findings with the radiology. On the basis of his examination, the Medical Assessor was correct to say that Mr Watkins did not demonstrate radiculopathy.
Activities of daily living
The Medical Assessor gave reasons for not assessing the impact of the lumbar spine injury on Mr Watkins’ activities of daily living. There is no error in those reasons.
Paragraph 4.36 of the Guidelines reads:
“For a single injury, where there has been more than one spinal region injured, the effect of the injury on ADL is assessed once only.
For injuries to one spinal region on different dates, the effect of the injury on ADL is assessed for the first injury. If, following the second injury, there is a worsening in the ability to perform ADL, the appropriate adjustments are made within the range. For example, if WPI for ADL is assessed as 1% following the first injury and 3% after the second injury, then WPI for ADL for the second injury is assessed as 2%.
For injuries to different spinal regions on different dates, where there is a worsening of ability to perform ADL after the second injury, additional impairment may be assessed. For example, if ADL for a cervical spine injury is assessed as 1%, and an assessment of a subsequent lumbar spine injury determined 3% WPI for ADL, then WPI for impact on ADLs for the lumbar injury is assessed as 2% WPI.”
Paragraph 4.36 alerted the Medical Assessor to consider if there had been a worsening of the ability to perform activities of daily living. The Medical Assessor considered that the loading was attributable to the cervical spine injury. According to his statements, the consequence of the 2020 injury was that Mr Watkins stopped riding. There is nothing in his statements to indicate that there was a greater impact on the activities of daily living as a result of the lumbar spine injury, which was suffered before the previous examination. The Medical Assessor was well placed to compare and contrast the results of the injuries.
Mr Watkins’ statement
The MAC shows that the Medical Assessor considered both of Mr Watkins’ statements – that dated 21 February 2022 which was provided to him at the time of the first MAC and that dated 28 August 2023. He briefly summarised both statements at the beginning of the MAC dated 9 February 2024.
Mr Watkins submitted that the symptoms and limitations referrable to the 2020 injury would have been apparent from the second statement.
The MAC shows that the Medical Assessor grappled with the consequences of the way Mr Watkins presented his case. A worker’s statement provides a useful background for the Medical Assessor which he considered with the other evidence in the file. The Medical Assessor was obliged to take his own history.
AMA 5 points out that his role is to provide an independent, unbiased assessment of the worker’s condition including the effects on function.[7] The Guidelines provide:
“A report of the evaluation of permanent impairment should be accurate, comprehensive and fair. It should clearly address the question(s) being asked of the assessor. In general, the assessor will be requested to address issues of:
• current clinical status, including the basis for determining maximum medical improvement
• the degree of permanent impairment that results from the injury/condition, and
• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if applicable.
1.47 The report should contain factual information based on all available medical information and results of investigations, the assessor’s own history-taking and clinical examination. The other reports or investigations that are relied upon in arriving at an opinion should be appropriately referenced in the assessor’s report.”
[7] AMA 5 paragraph 2.3.
Conclusion
We do not consider that the Medical Assessor made demonstrable errors or applied incorrect criteria in his assessment of Mr Watkins. The failure to recover compensation in respect of his lumbar spine injury is a result of the way the claims have been prepared and separated.
For these reasons, we have determined that the MAC issued on 9 February 2024 should be confirmed.
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