Woolworths Limited v Thakur
[2021] NSWPICMP 123
•14 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Woolworths Limited v Thakur [2021] NSWPICMP 123 |
| APPELLANT: | Woolworths Limited |
| RESPONDENT: | Vijay Singh Thakur |
| APPEAL PANEL: | Member Catherine McDonald Dr John Ashwell Dr Philippa Harvey-Sutton |
| DATE OF DECISION: | 14 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Section 323 deduction; presence of degenerative changes in cervical and thoracic spines did not warrant a deduction; no evidence they were pre-existing; Vitaz v Westform (NSW) and Ryder v Sundance Bakehouse considered; Held- pre-existing condition in lumbar spine did warrant a deduction but one-tenth was appropriate; findings made by Medical Assessor did not amount to radiculopathy; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 March 2021 Woolworths Limited lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 March 2021.
On 21 April 2021, with his Notice of Opposition to Woolworths’ appeal, Mr Thakur also lodged an application to appeal and sought an extension of time to do so. The delegate was satisfied that there were special circumstances and she extended the time for the filing of Mr Thakur’s appeal.
Woolworths 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.
Mr Thakur argues that 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 in respect of each appeal. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds 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).
RELEVANT FACTUAL BACKGROUND
Mr Thakur was employed by Woolworths at its distribution centres from 2011, initially at Hoxton Park and later at Minchinbury. He suffered an injury to his cervical and thoracic spines which is deemed to have occurred on 13 February 2015. The injury was a result of the heavy work over the period of his employment. Mr Thakur alleged that he suffered consequential conditions in his lumbar spine and right lower extremity (hip). The Medical Assessor was asked to assess Mr Thakur in respect of each of those conditions.
The Medical Assessor assessed Mr Thakur in DRE Cervical Category II and DRE thoracic category II, each resulting in 5% whole person impairment (WPI). He assessed Mr Thakur in DRE Lumbar Category II and allowed 2% for the impact of the injury on his activities of daily living. He deduced one-tenth under s 323 of the 1998 Act. The Medical Assessor assessed 0% WPI in respect of Mr Thakur’s right lower extremity (hip).
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 the assessment made by the Medical Assessor was a valid exercise of his clinical judgement and the MAC does not disclose an error.
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.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary and in respect of Woolworths’ appeal, Woolworths submitted that the Medical Assessor was in error not to make a deduction from the assessments of the cervical and thoracic spines for the effects of underlying degenerative changes. It submitted that he erred in making a deduction of only one-tenth in respect of the lumbar spine because that was at odds with the available evidence and that he failed to provide adequate reasons in respect of his deductions.
In reply, Mr Thakur submitted that there should be no deductions and the appeal must fail.
Mr Thakur filed his appeal late and only appealed because Woolworths had. He said that the Medical Assessor erred in failing to assess his cervical and lumbar spines in DRE Category III because of the presence of radiculopathy, which other assessors had observed. He submitted that the Medical Assessor should not have made deductions under s 323.
In reply, Woolworths submitted that the Medical Assessor’s clinical assessment did not support a finding of radiculopathy under the Guidelines. It said that a deduction was appropriate under s 323 in respect of Mr Thakur’s lumbar spine even though the pre-existing condition was asymptomatic.
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[1] 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.
[1] [2006] NSWCA 284.
The MAC
The Medical Assessor noted that Mr Thakur was 45 at the date of examination and gave a history that he had no problems when he started working for Woolworths. He set out the history of the onset of symptoms in February 2015 and the treatment which Mr Thakur underwent. He noted that Mr Thakur became more aware of lumbar spine pain while on selected duties in 2016.
With respect to Mr Thakur’s present symptoms, the Medical Assessor wrote:
“His main problem he said is his lower back pain which radiates up into his mid back area. He said that in the mid back the pain radiates around through his ribs on the right more so than the left. In the low back it radiates down to his right groin with a burning sensation there and the pain radiates further down into his left. He said that when he drives his feet go numb and this involves all his feet. The low back pain and mid back pain is made worse by walking and sitting and twisting. It is worse with bending and lifting. He has problems with sudden movements. He has pain involving his right hip and the area is tender.
With regard to his cervical spine, he said the neck pain is constant and his neck is stiff. He has difficulty moving his neck towards the left and looking upwards. He has radiation of pain down through the right more so than the left arms. He gets a tingling sensation in the fourth and fifth fingers of both hands. Any loading of the upper extremities increases the symptoms in his neck and shoulders.”
The Medical Assessor set out his examination findings in detail:
“He was of average build. He had normal spinal alignment. He had even gait. He could walk on heels and toes and perform a squat with some back pain. On assessment of range of movement of the thoracolumbar spine forward flexion and backward extension were to eight-tenths of the expected range. Lateral movement was bilaterally 90% of the expected range and rotation towards the left was three-quarters of the expected range and towards the right nine-tenths of the expected range. It was noted that with the lumbar spine immobilised that the restriction involved the thoracic segment.
Straight leg raising was on the right 50 degrees and on the left 70 degrees, although he could extend his legs from a seated position without complaints of pain and neural tension tests were negative. I couldn’t detect any wasting or specific muscle weakness involving the lower extremities. Calf circumference at maximum was 36cm bilaterally and thigh circumference measured 10cm suprapatella 49cm bilaterally. Reflexes were difficult to obtain but there was no
asymmetry involving the knee, ankle and medial hamstring reflexes. There was no altered sensation, apart from some hypersensitivity around the right groin area.There was a full range of movement of both hips which was equal bilaterally and movement wasn’t painful. There was, however, global tenderness involving the right hip joint not confined to the trochanteric bursa. There was tenderness over the lower lumbar intervertebral spaces and into the paraspinal muscles. There was tenderness in the mid thoracic paraspinal areas but no bony tenderness. There was, however, tenderness extending around the mid thoracic rib area, more marked on the right than the left.
With regard to the cervical spine, range of movement demonstrated flexion to 90% of the expected range and backward extension to 60%. Lateral movement and rotation were towards the left one-half of the expected range and on the right three-quarters of the expected range. There was a full range of movement of the shoulders. I couldn’t detect any wasting or specific muscle weakness involving the upper extremities. Reflexes were equal and normal. There was no altered sensation. There was tenderness over the cervical spine and into the paraspinal muscles bilaterally.”
The Medical Assessor summarised the radiological investigations, including an MRI scan of Mr Thakur’s lumbar spine dated 31 July 2017 which showed:
“There is grade 1 spondylolisthesis of L5 on S1 due to bilateral L5 pars defects. At this level, there is disc uncovering which is abutting the L5 nerve roots bilaterally. At L4/5, there is a right paracentral focal disc protrusion resulting in right lateral recess narrowing and posterior displacement of the descending right L5 nerve root.”
He set out his diagnosis:
“Mr Thakur developed pain involving the cervical, thoracic and lumbar spines which have been attributed to the nature and conditions of his work.
His current presentation is of multifactorial cervical, thoracic and lumbar spine pain. I expect that this is mechanical with a contribution from underlying spondylitic changes with a possible discogenic element but there is no evidence of radiculopathy involving the upper or lower extremities. In the lumbar spine there is a pre-existing spondylolisthesis which would be contributing to his current presentation.
He has some hip pain which is possibly mechanical with a possible contribution through referral from his lumbar spine.”
The Medical Assessor set out his assessment and explained his calculations:
“With regard to the cervical spine, according to Table 15.5, I consider that Mr Thakur qualifies in DRE Cervical Category 2 at 5% WPI. There is a history of injury with dysmetria noted on examination. There is no evidence of radiculopathy that would suggest a higher category. There is no evidence of a pre-existing condition that existed prior to him commencing employment that would be relevant to his impairment and no deduction is made.
With regard to the thoracic spine, according to Table 15.4, Mr Thakur qualifies in DRE Thoracic Category 2 at 5% WPI. There is a history of injury with dysmetria and nonverifiable radicular complaints which is the radiation of pain through the thoracic wall. There is no evidence of radiculopathy and no evidence of a pre-existing condition that is deducted.
With regard to the lumbar spine, according to Table 15.3, Mr Thakur qualifies in DRE Lumbar Category 2 at 5 to 8% WPI. There is a history of injury with dysmetria and nonverifiable radicular complaints. There is no evidence of radiculopathy that would suggest a higher category. I have made a one-tenth deduction for a pre-existing condition because of the underlying spondylolisthesis. I have added 2% for the restriction on his ADL’s because of some restrictions on his home care. Adding this to the baseline 5% is 7% WPI and after the one-tenth deduction this is 6% WPI.
With regard to the right lower extremity, Mr Thakur has a full range of movement of the right hip which is equal to that on the left. There is no evidence of trochanteric bursitis and no altered gait and no specific tenderness localised to the trochanteric bursa. WPI is thus 0%.”
The Medical Assessor summarised the other medical opinions in the file and concluded his summary with:
“Dr V Panjratan, Orthopaedic Surgeon, supplied a medico-legal report dated 15 April 2020 with a supplementary report dated 10 September 2020. Dr Panjratan, like myself, estimated DRE Cervical Category 2 and Lumbar Category 2. Dr Panjratan added 2% to the lumbar spine for ADL’s but made a 2% deduction, whereas I felt a one-tenth deduction is more relevant. Dr Panjratan couldn’t find any features in the thoracic spine that qualified for impairment, whereas there were clinical features on my examination today that suggested DRE Category 2. Dr Panjratan, like myself, could find no evidence of trochanteric bursitis clinically and noted that there were no investigations demonstrating this.
Dr W Patrick, Surgeon, supplied medico-legal reports dated 2 January 2019, 12 March 2019, 28 November 2019 and 8 September 2020. Dr Patrick found evidence of radiculopathy in the cervical and lumbar spines, whereas I could find no evidence of the features upon Dr Patrick estimated radiculopathy. I felt that DRE Category 2 was more appropriate under the circumstances. I do agree with Dr Patrick’s assessment of DRE Category 2 for the thoracic spine. Dr Patrick estimated 3% WPI for trochanteric bursitis with altered gait, although Mr Thakur had normal gait today. I noted his investigation findings were negative for this and it was not present clinically. Dr Patrick is the only medical practitioner, which includes treating doctors and those who have seen Mr Thakur for medico-legal purposes, who has found evidence of radiculopathy in the upper or lower extremities.”
Explaining the s 323 deduction, the Medical Assessor said that Mr Thakur had “significant spondylolisthesis involving the L5/S1 segment of the lumbar spine and spondylitic changes”. He said:
“Were it not for the spondylolisthesis, Mr Thakur would most likely not have developed symptoms involving his lumbar spine, noting that there was no specific injury.”
The Medical Assessor said that the extent of the deduction is difficult or costly to determine and assessed the deductible proportion as one-tenth.
Neither party appealed with respect to the assessment of 0% WPI in respect of Mr Thakur’s right lower extremity hip.
Section 323 deduction – cervical and thoracic spines
Mr Thakur claimed compensation as a result of the nature and conditions of his employment which required repetitive bending, twisting picking and packing of heavy boxes over the period from 2011 to 13 February 2015. He said in his statement dated 12 December 2016 that before he commended at Woolworths he considered himself to be in good health.
The reports of the scans in the file commence from 13 February 2015. They show some degenerative change in the cervical and thoracic spines. The Medical Assessor considered those scans and said that there should be no deduction under s 323 because there was no evidence of a condition which pre-dated Mr Thakur’s employment.
Woolworths said that there was well-documented evidence of pre-existing degenerative changes and “unanimous prior medico-legal evidence that deductions should be applied”. Dr Patrick did apply a deduction but he assessed Mr Thakur with a much higher base level of impairment. Woolworths’ solicitor said that Dr Panjratan made a deduction in respect of the cervical spine but a reading of his report shows that was not the case. Dr Panjratan assessed 5% WPI as a result of the aggravation of pre-existing cervical spondylosis. While Dr Panjratan did not provide the basis for his assessment, he could only have assessed 5% WPI if he assessed Mr Thakur in DRE Cervical Category II.
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The deduction is in respect of a previous injury or pre-existing condition. As the Medical Assessor noted, there is no evidence that the degenerative change was present before Mr Thakur commenced work with Woolworths.
Woolworths said that Vitaz v Westform (NSW) Pty Limited[2] (Vitaz) required that the contribution of a pre-existing condition should still be considered if it was asymptomatic before the injury. That submission somewhat misstates the principle set out in Vitaz. Basten JA dealt with a submission that an asymptomatic condition did not warrant a deduction and said:
“That opinion contained a legal assumption which is inconsistent with the approach adopted by this Court in, for example, D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep) (quoted by Giles JA, Mason P and Powell JA agreeing, in Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32] and, more recently, by Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]). The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury.”
[2] [2011] NSWCA 254.
It is necessary to consider if the pre-existing condition is a contributing factor causing permanent impairment. The pre-existing condition does not, of itself, warrant a deduction.
In Ryderv Sundance Bakehouse[3] Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”[4]
And
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”[5]
[3] [2015] NSWSC 526.
[4] At [45].
[5] At [54].
The submission made for Woolworths seeks to merely identify that there is a pre-existing condition and to argue, despite Dr Panjratan’s report, that a deduction is therefore warranted.
The Medical Assessor did note the presence of degenerative changes and did consider whether a deduction should be made.
The Medical Assessor clearly explained his reason for failing to make a deduction. The fact that the reason can be shortly expressed does not mean that his reason was not adequate.
Section 323 – lumbar spine
There is no doubt that Mr Thakur had a pre-existing condition in his lumbar spine.
Woolworths relied on the decision of a Medical Appeal Panel in PDF Food Services Pty Limited v McLennan[6] (McLennan) to argue that “an one-tenth deduction which is at odds with the available evidence is to considered to be a demonstrable error.” It argued that the Medical Assessor merely stated that an accurate deduction was too costly or difficult which was vague and did not allow the parties to determine if he had made an error. It said that because all previous medico-legal assessments contained a higher deduction, adequate reasons would require specification of whether the deduction was too difficult or too costly or both, together with detailed reasons.
[6] [2018] NSWWCCMA 80.
In response to those submissions, we note that decisions of Medical Appeal Panels are not binding on other Panels. They are of interest as examples of the application of the principles set out in the legislation and judicial review decisions in the Supreme Court and Court of Appeal. In fact, the situation in McLennan was more complex and the relevant Approved Medical Specialist had previously assessed the worker, making a different - and much higher - s 323 deduction. In that situation, it is clear that a detailed explanation was required for the differences in the deduction.
We also note that the role of the Medical Assessor or the Appeal Panel is not to choose between the opinions in the medico-legal reports in the file. The Medical Assessor was required to express his own opinion. Campbell J described his task in State of New South Wales v Kaur[7]:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[7] [2016] NSWSC 346.
The Guidelines inform the Medical Assessor that “the deduction is 1/10th of the assessed impairment unless that is at odds with the available evidence.” The available evidence is not the opinions expressed in the medico-legal reports but the evidence gleaned from the investigations and the worker’s presentation on the day of the examination.
The radiological evidence shows that Mr Thakur suffers pre-existing spondylolisthesis at L5/S1. The MRI scan taken on 31 July 2017 also shows that there is a “right paracentral focal disc protrusion resulting in right lateral recess narrowing and posterior displacement of the descending right L5 nerve root.”
The Medical Assessor said that Mr Thakur’s presentation was of multifactorial pain. He said that the pain was mechanical with a contribution from the underlying changes with a possible discogenic element.
We agree with the statement by the Medical Assessor that Mr Thakur may not have developed symptoms if not for the underlying spondylolisthesis. He also has been shown to have a disc protrusion impacting on a nerve root. It is not possible to say precisely which of these conditions is causing the impairment which the Medical Assessor was called on to assess.
It is self-evident that it would be difficult or costly to determine the extent of the deduction and the reasons given by the Medical Assessor are satisfactory.
The deduction of one-tenth was open to the Medical Assessor and the fact that other assessments made a higher deduction does not mean that the Medical Assessor erred in the exercise of his clinical judgement.
It is possible that, without the injury, Mr Thakur would have gone on for many more years before suffering any pain or disability as a result of the spondylolisthesis. Spondylolisthesis develops during adolescence but generally does not produce symptoms until there is an injury or degenerative changes develop.
Mr Thakur submitted that he had done heavy work from the time he arrived in Australia in 2008 without symptoms so that there should be no deduction. That submission also cannot be accepted. Mr Thakur alleges that he suffered a consequential condition in his lumbar spine as a result of the injury to his cervical spine. Without the underlying condition, we agree with the Medical Assessor that the injury to the cervical spine may not have resulted in symptoms in the lumbar spine.
Radiculopathy
Mr Thakur appealed on the basis that the Medical Assessor did not assess radiculopathy which would have increased the impairment assessments in respect of his cervical and lumbar spines. Had he done so, Mr Thakur would have been assessed in DRE Cervical Category and Lumbar Category III.
The submissions prepared on his behalf extracted from the file all references to radiation or referred pain to either of his upper or lower limbs. His solicitor also submitted that investigations which showed compression and abutment of the L5 nerve root[8] were evidence of radiculopathy.
[8] CT scan dated 15 August 2016 and MRI scan dated 31 July 2017.
The Medical Assessor clearly set out his findings on examination. The role of the Medical Assessor was to assess Mr Thakur as he presented on the day of the assessment.[9] He was aware that other assessors had observed radiculopathy and explained that he did not.
[9] Guidelines paragraph 1.6.
Radiculopathy for the purpose of assessment under the legislation is defined in paragraph 4.27 and 4.28 of the Guidelines:
“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.”
Mr Thakur submitted that the Medical Assessor noted his complaints of radiation of pain and loss of sensation and recorded that movement of his cervical spine was less than the expected range. His submissions noted that there were references to clinically significant radiculopathy in other evidence. The submissions suggested that these findings followed dermatomal patterns.
The Medical Assessor set out his findings on examination in detail. He was clearly alert to the factors required to assess radiculopathy and dealt with each of the criteria in paragraph 4.27 when setting out his findings.
The Medical Assessor noted dysmetria on examination of each area of Mr Thakur’s spine. He observed non-verifiable radicular complaints in his thoracic and lumbar spines. He said there was no evidence of radiculopathy.
Those statements show that the Medical Assessor was aware of the criteria in paragraphs 4.27 and 4.28. He set out his findings on the day of the examination and there is no error in his application of the Guidelines. The diagnosis of non-verifiable radiculopathy required assessment in DRE Lumbar Category II.
Mr Thakur relied on Wise v Sardale Pty Limited[10] to argue that the role of the Panel was to conduct a review de novo of the material in the file including the findings on examination by the Medical Assessor. That submission cannot be accepted because it fails to take account of the development of the law since the date of that decision and the amendment to s 328(2) of the 1998 Act which limits the Panel’s consideration to the grounds on which the appeal is made.
[10] [205] NSWSC 1264.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 March 2021 should be confirmed.
0
7
0