1. In this matter two Medical Assessors were appointed to assess Mr Allaw. Medical Assessor John Garvey was appointed to assess the claim for injury to the digestive system/anal canal, whilst Medical Assessor Roger Pillemer, the Lead Assessor, was appointed to assess the lumbar spine.
2. Appeals were lodged by Mr Allaw against both MACs, but the delegate of the President, determined that the appeal against the opinion of Medical Assessor Garvey was not capable of being made out and accordingly this appeal relates only to the MAC issued by Medical Assessor Roger Pillemer on 11 December 2024.
3. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
4. 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.
5. 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.
6. 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). "WPI" is reference to whole person impairment.

1. On 14 October 2024, this matter was referred following a defended hearing before Member Elizabeth Bielby on 16 September 2024. Member Bielby directed that this matter be remitted to the President for referral to a Medical Assessor for a WPI assessment caused to the lumbar spine, relevantly, on 20 March 2019.
2. Mr Allaw commenced working at the Minchinbury Distribution Centre of the respondent as a pick and packer when he developed pain in his lower back on 20 March 2019.
3. His treatment had been conservative, including tablets, physiotherapy and chiropractic treatment. He had had block injections, hydrotherapy, injection into his left trochanteric bursa, and an epidural injection in June 2019. An L5-S1 nucleoplasty was carried out on

23 December 2019. This procedure gave Mr Allaw relief for about two years, but the symptoms have subsequently recurred. 4. Mr Allaw's treating specialist has recommended surgery but Mr Allaw has decided against that course of treatment as he is still reasonably mobile and bringing up his children. 5. The Medical Assessor found a WPI of 12%.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. 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 no error was established in the MAC.

1. 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.

1. 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.

1. Both parties made written submissions which have been considered by the Appeal Panel.

1. 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.
2. 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.

1. The appeal was concerned with one discrete finding by the Medical Assessor. At [10] of the MAC, the Medical Assessor said: [1]

a. My opinion and assessment of whole person impairment In my opinion Mr Allaw falls into DRE Category III of his lumbar spine(1) (see 10b) with 10% WPI, with an additional 2% for ADLs, giving a total of 12% WPI.

b. An explanation of my calculations (if applicable)

AMA Guides to the Evaluation of Permanent Impairment, 5th Edition: Page 384, table 15-3. Significant signs of radiculopathy.

c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs I note the reports of treating orthopaedic surgeon, A/Professor P Papantoniou from 4 June 2019 to 11 July 2023, noting the ongoing back pain and bilateral sciatica, which was felt to be 'relatively mild', and suggesting that at some stage Mr Allaw may well require surgery to his lumbar spine.

There are reports of Dr J B Bodel, orthopaedic surgeon of 18 May 2023, noting the

significant disc injury at the lumbosacral level with referred pain to the right lower limb, with significant restriction of back movement and a depressed right ankle jerk, and wasting of the right calf. He also noted restricted straight leg raising on the right side.

Dr Bodel placed Mr Allaw in DRE Category III as I have done, but for different reasons,

suggesting that he had placed him in this category following the nucleoplasty. In my opinion nucleoplasty would not be regarded as surgery to the lumbar spine as it is a form of therapy. It would fall into the same category as a spinal cord stimulator, and not giving any additional impairment.

Dr Bodel has suggested an additional 3% for radiculopathy, but as noted in my opinion Mr Allaw's impairment is best assessed in terms of DRE Category III with radiculopathy, rather than for the nucleoplasty. This explains the difference in our impairment assessments.

There is a report of A/Professor C Waller, orthopaedic surgeon of 31 July 2023, similarly placing Mr Allaw in DRE Category III of his lumbar spine, awarding 10% for the nucleoplasty and 3% for ADLs, whereas in my opinion 2% for ADLs would be more appropriate. Once again in my opinion placing somebody in DRE Category III for a nucleoplasty is inappropriate."

1. The first ground raised by Mr Allaw was that the Medical Assessor had erred in determining that the nucleoplasty was not a surgical undertaking, contrary to the opinions of Dr James Bodel, orthopaedic surgeon, Mr Allaw's medical expert, and Associate Professor Craig Waller, orthopaedic surgeon, the medical expert for the respondent.
2. We referred to the Merriam Webster Dictionary as to the medical term 'plasty'. Mr Allaw submitted that the procedure was invasive and entailed a direct intervention to a bulging lumbar disc in order to reduce its size and impact on the nerve root.
3. Mr Allaw noted that his treating surgeon, Associate Professor Papantonio, arranged for an MRI scan on 13 December 2019 and recommended the nucleoplasty, which took place on 23 December 2019. The treatment was paid for by the insurer on the basis that it was an invasive surgical procedure similar to a surgical procedure, such as a spinal compression.
4. Mr Allaw then referred to the criteria provided by AMA5 at Table 15-3 for a DRE category III rating.
5. Mr Allaw submitted that whilst the parties' experts had relied on the alternative definition for such a rating, the Medical Assessor had relied on the first definition. This, it was argued, was a distinction without a difference.
6. Mr Allaw submitted that the procedure was not concerned with the insertion of a device to provide electronic stimulus such as a spinal stimulator, but was designed to actually reduce the size of the disc herniation and take the pressure off the nerve root.
7. The second ground raised was that the Medical Assessor had made a demonstrable error in his application of the Guides, which provide that the AMA5 is to be used unless there is any deviation from the Guides, in which case the procedures detailed in the Guides were to prevail.
8. Mr Allaw argued that the Guides have inserted a Table, Table 4.2, at Chapter 4.37 to address an anomaly that AMA5 did not cover. That is where the surgery was to address persisting radiculopathy.
9. Mr Allaw again referred to the expert opinion on both sides of the record in which Dr Bodel had applied Table 4.2, and Dr Waller had declined to do so because he said there was no persisting radiculopathy.
10. Mr Allaw noted that the Medical Assessor had accepted that there was a persisting verifiable right-sided radiculopathy despite the surgery, and thus he fell into error in dismissing a nucleoplasty as not being a "surgical" procedure.
11. It followed, it was argued, that a further 3% WPI in accordance with the table 4.2 modifier should be added to the assessment.

1. The respondent submitted that the approach taken by the Medical Assessor was correct.
2. A nucleoplasty was not an invasive procedure. It was in fact also known as a percutaneous disc decompression which involves image guidance to insert a needle into the disc. This procedure was not known to either AMA5 or the Guides, it was submitted.
3. The procedure, the respondent said, was more akin to the administration of a corticosteroid injection into the disc. This procedure was not considered a spinal surgical procedure under the relevant guidelines.
4. The respondent referred to the reports Dr Waller, noting that he did not find any persisting symptoms of radiculopathy at the time of the assessment.
5. The respondent submitted that the Medical Assessor was entitled to use his clinical judgment in the absence of any definition of a nucleoplasty procedure within the guidelines, to define it as a form of therapy, similar to a spinal cord stimulator.
6. It was submitted that the Medical Assessor had adequately set out his reasons for preferring the definition he used over that adopted by Drs Bodel and Waller.
7. As to the application of Table 4.2, the respondent submitted that the nucleoplastic procedure was not a surgical decompression for spinal stenosis. The Medical Assessor had declined to apply the Guides, notwithstanding that he had found that there were persisting signs of radiculopathy.
8. The respondent submitted that Table 4.2 was only to be applied where an operation has been performed that resolves the radiculopathy. We refer to Chapter 4.37 of the Guides in that regard.

1. Table 15-3 of AMA5[2] provides for the allocation of a DRE category III rating in the following circumstances, relevantly:

"Significant signs of radiculopathy, such as dermatomal pain and/or in a dermatomal distribution, sensory loss, loss of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location; impairment may be verified by electrodiagnostic findings

history of a herniated disc at the level and on the side that would be expected from objective clinical findings, associated with radiculopathy, or individuals who had surgery for radiculopathy but are now asymptomatic.

1. It can be seen that the purpose of the appeal is to establish that Mr Allaw is entitled to a further 3% WPI because the nucleoplasty procedure in his view should have been classified as a surgical procedure within the definition of Chapter 4.37 of the Guides which provide:

"4.37 Effect of surgery: AMA5 tables 15-3 to 15-5 (pp 384, 389 and 392) do not adequately account for the effect of surgery on the impairment rating for certain disorders of the spine. The assessor should note that:

•• Surgical decompression for spinal stenosis is DRE category III (AMA5 Table 15-3, 15-4 or 15-5)

•• Operations where the radiculopathy has resolved are considered under the DRE category III (AMA5 Table 15-3, 15-4 or 15-5).

•• Operations for spinal fusion (successful or unsuccessful) are considered under DRE category IV (AMA5 Table 15-3, 15-4 or 15-5)

•• DRE category V is not to be used following spinal fusion where there is a persisting radiculopathy. Instead, use Table 4.2 in the Guidelines

•• Radiculopathy persisting after surgery is not accounted for by AMA5 Table 15-3, and incompletely by tables 15-4 and 15-5, which only refer to radiculopathy that has improved following surgery.

Table 4.2 indicates the additional ratings which should be combined with the rating determined using the DRE method where an operation for an intervertebral disc prolapse, spinal canal stenosis or spinal fusion has been performed.

Example 15-4 in AMA5 (p 386) should therefore be ignored.

Table 4.2: Modifiers for DRE categories following surgery

and radiculopathy (refer to 4.27 in the Guidelines)

In summary, to calculate whole person impairment (WPI) for persisting radiculopathy (as per definition) following surgery:

•• Select the appropriate DRE category from Table 15-3, 15-4, or 15-5;

•• Determine a WPI value within the allowed range in Table 15-3, 15-4 or 15-5 according to the impact on the worker's ADL

•• Combine this value with the appropriate additional amount from Table 4.2 to determine the final WPI."

1. It was common ground between the parties' medical experts and the Medical Assessor that Mr Allaw continues to have persisting radiculopathy. The determination of the issue depends on whether a nucleoplasty is considered a surgical intervention or not.
2. As expressed by the parties, there is no definition of that procedure within the guidelines. However, it is the considered opinion of the medical experts on the Panel that a nucleoplasty does not qualify for any of the descriptions contained in Chapter 4.37 of the Guides.
3. The procedures encompassed in Table 4.2 are concerned with surgical operations, which involve making an incision to cut into the body's tissues. They are by their nature significantly invasive surgical procedures. A nucleoplasty however involves the insertion of a small needle into the affected disc, through which a coblation device is inserted. Accordingly, it is, as the Medical Assessor stated, more akin to a spinal stimulator, which involves implanting a pulse generator, often under the skin in the lower back or abdomen, with thin wires that are placed near the spinal cord. The generator delivers tiny mild electrical pulses to nerves along the spinal column.
4. Chapter 4.41 of the Guides provides:

"Spinal cord stimulator or similar device: The insertion of such devices does not warrant any additional WPI."

1. It can be seen that the insertion of a spinal stimulator is more invasive than a nucleoplasty procedure, but is specifically excluded from warranting any WPI to be added. It follows that a nucleoplasty may be described as a "similar device" within the terms of Chapter 4.41.
2. For these reasons, the Appeal Panel has determined that the MAC issued on