DRE I and DRE II in relation to cervical disorders
30 The Diagnosis-related estimates ("DRE") cervical categories are summarised in AMA5 at page 392 Table 15-5 as follows:
"DRE Cervical Category I 0% Impairment of the Whole Person
No significant clinical findings, no muscle guarding, no documentable neurological impairment, no significant loss of motion segment integrity and no other indication of impairment related to injury or illness; no factures.
DRE Cervical Category II 5%-8% Impairment of the Whole Person
Clinical history and examination findings are compatible with the specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or non\verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity.
…"
31 The WorkCover Guides also include instruction where the worker's presentation is inconsistent. It has a role to play here. Clause 1.60 of the WorkCover Guides reads:
" Inconsistent presentation
1.60 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 physician must use the entire range of clinical skill and judgment when assessing whether or not the measurements or 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 a certain magnitude exists, the physician may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing." This paragraph applies to inconsistent presentation only. The requirements stated in paragraph 1.13 apply to all assessments."
32 The AMS in his reasons in relation to the cervical spine stated:
"In relation to his cervical spine assessment as a DRE 1, although there was history of a specific incident of neck symptoms, there is no support by the appropriate imaging studies insofar as the MRI scan referred to in the body of this report is normal, and based upon the physical examination today, there was no evidence of reproducible significant clinical findings in terms of muscle guarding, neurological impairment or significant loss of motion segment integrity on a defined radiological or clinical basis."
33 Counsel for Mr Bukorovic submitted that in order to appropriate a DRE I as the AMS purported to do, the AMS needed to make a number of findings to support his reasons for the allocation of DRE Cervical Category I 0%, in accordance with s 325(2)(c) and (d) of the Act.
34 Mr Bukorovic submitted that the failure by the AMS to demonstrate a consideration of the relevant matters in his reasons constituted not only an error of a jurisdictional kind but also an error on the face of the record. Counsel for Formtec submitted that these reasons fulfil the "minimum legal standard" referred to by Basten JA in Campbelltown City Council v Vegan.
35 The purpose of the Guides is that they are meant to assist the medical specialist to assess the level of impairment. They are no to provide a recipe approach [my emphasis added]. The AMS is to direct his or her mind to the matters laid down in the WorkCover Guides but he or she is not bound, in the strict legal sense, to every word contained in them. In my view, the AMS has addressed the items set out in DRE I, particularly where there was inconsistent presentation.
36 Counsel for Mr Bukorovic further submitted that because the AMS did not specifically make a finding on muscle guarding he fell into jurisdictional error. I accepted that under the heading "Findings on Physical Examination" on examination, the AMS did not specifically comment on muscle guarding as far as the cervical spine was concerned. However, later in his reasons, the AMS stated that, "based on the physical examination today there was no reproducible significant findings in terms of muscle guarding". This is suffice. Just because this finding on muscle guarding appears under another heading does not amount to an error of law or jurisdictional error. To read the AMS decision in the way Mr Bukorovic's counsel contends is to do so with an eye keenly attuned to the perception of error.
37 In my view, the AMS addressed the criteria specified in DRE I. He stated that there was no muscle guarding, no documentable neurological impairment, no significant loss of motion segment integrity and no other indication of impairment related to injury or illness; and no factures. In accordance with DRE Cervical Category I, the AMS assessed Mr Bukorovic's whole person impairment to his cervical spine as 0%.
The application for appeal to the Appeal Panel
38 Mr Bukorovic, in his application for review by the Appeal Panel, made submissions that:
"The AMS's conclusions are not supported by his clinical findings. His clinical findings reveal only asymmetry. The Doctor makes no mention of pain or muscle guarding on page four (4) where he reports his clinical findings. As the Doctor has not make those clinical findings and omitted to look for pain and guarding he cannot make a retrospective reference to muscle guarding later in his report when in fact his clinical findings do not contain it as a term of reference. In other words his clinical examination did not involve an assessment of muscle guarding confirmed by his report on page four (4)."
39 The Registrar was satisfied that at least one of the grounds for appeal was made out. Either the assessment was made on the basis of incorrect criteria and/or the medical certificate contained a demonstrable error and referred the appeal to the Appeal Panel.
40 Mr Bukorovic's counsel submitted that it is an error which infects the decision of the AMS. Counsel submitted that the Appeal Panel's decision is also infected by the same error because it failed to correct the error by examining Mr Bukorovic itself; failed to consider the relevant matters; failed to make the necessary findings; and the decision also contains a further misdirection as to the effect of s 325 of the Act. According to counsel, the Registrar's decision being based on these findings is also vitiated.
The decision of the Appeal Panel in relation to the cervical spine
41 Mr Bukorovic had requested that the Appeal Panel re-examine him. The Appeal Panel in its preliminary review determined that it was not necessary for Mr Bukorovic to undergo a further medical examination because it had sufficient information on file.
42 The Appeal Panel stated (at [19]):
"In relation to the cervical spine, the AMS noted in his reasons that 'based on the physical examination today, there was no evidence of reproducible significant clinical findings in terms of muscle guarding, neurological impairment or significant loss of motion segment integrity on a defined radiological or clinical basis'. Whilst it would have been preferable for the AMS to have also noted these findings in the history, the Panel accepts that the AMS obtained clinical evidence for these matters in his examination."
43 The reasons of the Appeal Panel show that they understood Mr Bukorovic's submission in relation to muscle guarding and addressed it. It was a clinical decision by the Appeal Panel as to whether a further examination was required. The Appeal Panel was entitled to take this approach. In relation to the cervical spine, the AMS did not make a jurisdictional error. Nor did the Appeal Panel.