WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of impairment of the lumbar spine; appellant worker submitted that the Medical Assessor (MA) made a demonstrable error in failing to assess residual radiculopathy post-surgery and that his reasons were inadequate; MA found in accordance with his examination findings on the day of assessment that there is no rateable impairment for radiculopathy in accordance with paragraph 4.27 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); this was adequately explained when the Medical Assessment Certificate (MAC) is read as a whole; MA is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment; no error; Held - Appeal Panel considered that the reasoning given by the MA was adequate; MAC confirmed.

1. On 13 June 2025 the worker Ms Amal El-Nayef (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Philip Truskett, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 May 2025.
2. 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):

(a) the assessment was made on the basis of incorrect criteria, and

(b) the MAC contains a demonstrable error.

1. It is noted that the appellant relied on the ground of demonstrable error in the formal part of the Application to Appeal but in the submissions also referred to the assessment having been made on the basis of incorrect criteria. The respondent has had the opportunity to meet the submissions of the appellant and so there is no prejudice, and therefore to the extent that it is necessary, the Appeal Panel grants leave to the appellant to rely on the ground of appeal of assessment on the basis of incorrect criteria.
2. 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.
3. 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.
4. 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).

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. The appellant requested that she be re-examined by a Medical Assessor who was also a member of the Appeal Panel.
3. The appellant requested a re-examination by a Medical Assessor who is also a member of the Appeal Panel. However, as a result of its preliminary review, the Appeal Panel determined that the worker did not need to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

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. They are not repeated in full, but 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.
3. The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:

"The following matters have been referred for assessment (s 319 of the 1998 Act):

• Date of injury: 20 April 2022
• Body parts/systems referred: Lumbar Spine

• Method of assessment: Whole Person Impairment "

1. The Medical Assessor issued a MAC certifying impairment as follows:

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

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)

Chapter 4, Paragraph 4.27, Page 27, Paragraph 4.34, Page 28, Paragraph 4.37, Page 29 and Table 4.2,

Chapter 16, Page 78, Paragraph 16.9

Table 6-3, Page 121, Class I

Total % WPI (the Combined Table values of all sub-totals)

1. The worker appealed.
2. There is no complaint on appeal about the assessments that pertain to the digestive system. The appeal concerns only the assessment of the lumbar spine, specifically the Medical Assessor's failure to find signs of radiculopathy in the right lower extremity as a result of the injury to the lumbar spine on 20 April 2022.There is no complaint on appeal about the classification of the lumbar spine as meeting the criteria for DRE III which gives 10% whole person impairment (WPI), and nor is there complaint on appeal about the allowance of 2% for ADLs or the deduction of one-tenth under s 323. The complaint concerns the failure to make an allowance for residual radiculopathy following surgery.
3. In summary, the appellant submitted on appeal that the Medical Assessor made an assessment on the basis of incorrect criteria and/or made demonstrable error for reasons which included the following:

(a) failed to find radiculopathy in the right lower extremity as a result of the lumbar spine injury;

(b) failed to properly consider material evidence in failing to find signs of radiculopathy;

(c) failed to take into account objective medical scanning results from EMG testing as per the report dated 18 October 2023;

(d) misdirected himself by dismissing outright the issue of the appellant's radiculopathy as a result of the appellant's "global" response to testing for sensory loss in the right side of her body, and

(e) failed to provide adequate reasoning.

1. In summary, the respondent employer Greencare Medical Centre (the respondent) submitted that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make demonstrable errors and that the MAC should be confirmed.
2. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a medical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment and must apply the correct criteria for assessment under the Guidelines.
3. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the appellant so with an adequate record of examination findings so that it can readily be understood by the reader that the correct criteria under the Guidelines have been applied.
4. The Medical Assessor recorded the following history:
   • "Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

Ms El-Nayef described an injury which occurred at work on 20 April 2022 at approximately 12 midday. New flooring had been laid in the practice. There were also new chairs. She was working at the counter. She stood from her chair to provide a patient with a referral. When she tried to sit on the chair it rolled back, causing her to land heavily on her buttocks. She was helped to her feet by co-workers, who she stated thought the incident was "funny."

Her main complaint at that time appeared to be jaw and tooth pain as she clenched her teeth when she fell.

She was assessed by the dentist at the practice with an OPG. Ms El-Nayef continued working for that day and stated that she had progressive back pain. She completed her shift.

She stated that the following day the back pain became worse. She also experienced pain radiating down her right leg to her foot.

Ms El-Nayef stated that around that time she was taken by ambulance to Auburn Hospital because of pain. She was using the whistle in transport.

There was a Discharge Summary from Auburn Hospital dated 6 May 2022 (16 days later) where Ms El-Nayef was assessed. From this Discharge Summary it stated that she had a known history of L5 nerve impingement as per an MRI from 2010. She had lower back pain with right lower limb pain.

A CT scan had been organised by Dr Fariha Dib on 2 May 2022 at the Greenacre Practice.

This was performed by I-MED Radiology and was reported by Dr Suresh De Silva. This described:

"At L5/S1 there was a disc against the margin of the right L5 nerve root in the paracentral space, could this confirm with the patient's radicular symptoms? There is also some posterior osteophytosis close to the S1 nerve root without definite compression. There is mild disc herniation at L3/4. At L5/S1, there are congenitally narrowed pedicles."

Ms El-Nayef then added that she attended St George Private Hospital Emergency Department on 7 May 2022 for an injection because of pain.

My comment: I am unaware that St George Private Hospital has an emergency department. Despite her instance, she may have gone to the public. I have been provided with no documentation of this.

Ms El-Nayef was subsequently referred to Dr Raj Reddy (Neurosurgeon of Prince of Wales Private Hospital) who assessed her on 12 May 2022.

From his letter of that date, Dr Reddy stated that she had pain that radiated down the right leg in the L4/5 distribution with no left sided symptoms. He noted that she presented to hospital. When examined, she walked with an antalgic gait but had normal muscle power in both lower limbs.

Dr Reddy referred to a recent MRI scan, which was performed by Westmead Hospital Medical Imaging on 9 September 2022, reported by Dr Samuel Conyngham which concluded:

"...A likely sequestered disc fragment posterior to the L4 vertebral body favoured to originate from the L4/5 rather than the L3/4 disc, is causing subarticular stenosis and impinging the descending right L4 nerve root.

Intradural extramedullary enhancing nodule at lower T12 level as described. As a solitary nodule it is considered most likely an incidental neurogenic tumour such as a neurofibroma or nerve sheath tumour arising from the proximal caudal equina. Follow up study is suggested...

Tiny posterior annular fissure at the L5/S1 disc and suspected pseudoarthrosis of the right L5 transverse process and sacral ala..."

"...The majority of acute disc herniations do tend to settle such that a patient improves spontaneously and does not require surgical intervention. This typically takes 4 to 6 weeks. If there is no convincing improvement over that time, then spontaneous resolution becomes less likely, and the patient will need surgery..."

Ms El-Nayef was reviewed by Dr Reddy on 30 May 2022. From this letter, Dr Reddy stated:

"...Since last reviewed she continues to have significant severe radicular right leg pain. She has also developed some numbness. She mobilises with quite an antalgic gait

At this stage given the failure of non-operative treatment, I feel her condition would be best be treated by microdiscectomy..."

A cortisone injection to the nerve root had apparently been undertaken prior to this without benefit.

Ms El-Nayef was then admitted to Prince of Wales Private Hospital on 27 September 2022 under the care of Dr Reddy and underwent an L4/5 microdiscectomy.

From the operation of that date, Dr Reddy stated that the right L4 nerve root was explored and was found to be compressed by underlying disc herniation underneath the nerve impinging against the pedicle. A microdiscectomy was carried out with and the L4 and L5 roots were rhizolysed.

Ms El-Nayef was however hospitalised for 3 weeks. She stated that this was because her surgery was complicated by constipation. In addition, she advised that although this was meant to be done by keyhole, it was performed by open surgery. She was hospitalised for approximately 3 weeks. She was subsequently discharged on 14 October 2022.

This was followed by physiotherapy that was provided at home, attending three times per week.

Ms El-Nayef stated, however, that her right leg pain was not improved. She continued to be followed by Dr Reddy. Further MRI scans were performed.

I refer to an MRI lumbar spine performed by I-MED Radiology on 26 January 2023, reported by Dr Lynette Masters as follows:

There is no central stenosis or nerve root compression lesion at L4/5. There is potential irritation of the right L5 nerve root within an elongated foramen related to degenerative changes in pseudoarthrosis of the right transverse process at L5 with the sacrum. There is an added biliary enhancing intradural lesion which is most in keeping with a nerve root tumour of the proximal root of the cauda equina opposite T12 (this was previously noted)."

I have also been asked to assess Ms El-Nayef's digestive tract. She advised that she was troubled with constipation soon after her surgery.

She was subsequently referred to Dr Wassim Rahman (Gastroenterologist of St George). He assessed Ms El-Nayef on 4 April 2023.

From his letter of that date, Dr Rahman described Ms El-Nayef's work related injury and noted that since her injury she had been on a number of analgesics including Meloxicam (non-steroidal anti-inflammatory), ibuprofen (non-steroidal anti-inflammatory), Panadeine Forte (narcotic analgesic), Oxycodone (narcotic analgesic), Diclofenac (non-steroidal anti‑inflammatory) and Pregabalin (pain modulator). She suffered from epigastric discomfort and acid reflux with abdominal bloat with dysphagia. There was also significant constipation, opening her bowels not more than once per week with rectal bleeding and anal discomfort. He recommended that she undergo a gastroscopy and colonoscopy.

This was performed on 11 December 2023 at Miranda Day Centre. The endoscopy report described mild reflux oesophagitis, mild erosive gastritis in the antrum and mild erosive duodenitis in the first duodenum. Biopsies were taken.

The colonoscopy described ileitis in the form of a few small erosions in the terminal ileum and haemorrhoids. The ileum was biopsied with random colonic biopsies.

These biopsies were reported by Dr Robin Levingston on 14 December 2023. Of relevance, the oesophagus, gastric and duodenal mucosal biopsies were all normal with no increase in intraepithelial lymphocytes and no organisms seen. Colonic biopsies were also normal.

The ileal biopsy showed mild active inflammatory infiltrate within the lamina propria. There was an excess of eosinophils. No granulomas were identified. The villi appeared quite broad. No organisms were present. There was no evidence of dysplasia.

My comment: Although macroscopic appearance of the oesophagus, stomach and duodenum may show inflammation or erythema, histology is negative, which would indicate there was no inflammatory change. Colonic biopsies were also normal. The description of the terminal ileum is interesting. There was an infiltrate of the eosinophils. There were small aphthous ulcers. This would be mild eosinophilic enteritis, this is not associated with the ingestion of non-steroidal anti-inflammatory agents or infective small bowel disease. It is sometimes seen in allergic reactions. This is relatively non-specific and unrelated to her back injury or its treatment. Haemorrhoids were noted but there was no anal fissure.

I also note from the referral to Dr Rahman from Dr Khalid dated 25 February 2023 that he had ceased Ms El-Nayef's non-steroidal anti-inflammatory agents. This would also support that the aphthous ulcers of the terminal ileum were not related to the ingestion of non‑steroidal anti-inflammatory agents.

• Baclofen 10mg one daily for 3 weeks (muscle relaxant)
• Amitriptyline 25mg one daily for 1 year (antidepressant)
• Dytrex 60mg one day for 1 year (antidepressant)
• Panadeine Forte one every 2 to 3 days since her injury (compound narcotic analgesic)
• Lyrica 75mg three per day since accident (pain modulator)
• Panadol Osteo one per day for 1 year (simple analgesic)
• Dulcolax for 1 year (laxative)
• Pariet 30mg one daily (proton pump inhibiter)
• Mintec (peppermint water for bloat)
• Osmolax one scoop three times a day for 1 year (laxative)

My comment: Ms El-Nayef takes no non-steroidal anti-inflammatory agents.

She attends Dr Stephen Gibson (Pain Specialist) every 3 weeks and her Local Medical Officer once per month.

I have been asked to assess Ms El-Nayef's digestive tract and back.

Ms El-Nayef describes no symptoms prior to her work injury. She states that she experiences episodes of reflux of acid with associated nausea. She also describes some dysphagia for solids. She avoids eating meat because this causes her to bloat and also avoids legumes. She also has adopted the use of lactose-free milk which also causes bloating. She will experience some epigastric pain, and she is of the view that she has put on weight in the order of 20kg since her fall.

Ms El-Nayef will open her bowels once per week. She now describes that it is soft to hard with the use of laxatives. She will sometimes see some blood. She may experience episodic lower abdominal pain which is relieved by peppermint water. She also experiences bloat. She has good bowel control. She can distinguish flatus from faeces.

Ms El-Nayef experiences right lower back pain and right buttock pain. Pain radiates to both hips. Pain radiates down the back of her right leg to the toe of her foot in the L5 distribution. She would score her back pain as 6/10 most of the time and it will exacerbate to 8/10 particularly of a morning. Pain is made worse with sitting and relieved by medication and physiotherapy for approximately 40 minutes.

• Details of any previous or subsequent accidents, injuries or condition:

Ms El-Nayef stated that she has not previously had back pain, but it was documented as noted in Auburn Hospital that she described back pain which had been present in 2010.

In the documents provided, Ms El-Nayef had a previous CT lumbar spine, pelvis and left hip performed by I-MED Radiology on 18 September 2021 prior to her fall. This was reported by Dr Suresh De Silva. This described some disc disease at L4/5 to the L5 nerve root in the paracentral space without confirmed compression. However, please assess whether the patient has any radicular symptoms in the L5 distribution. This is noted particularly on the right where she presented with her current symptoms. This would suggest preceding pathology.

Ms El-Nayef also described a fall which occurred after her work related injury in November 2024 when she twisted her left ankle. She has been placed in a moon boot for this since January 2025 and is receiving physiotherapy 3 days per week for this, along with ongoing back, shoulder and jaw physiotherapy. This is a subsequent injury.

Ms El-Nayef described her previous health as good. She had tonsils and adenoids removed as a child. She denied any previous medical illness, motor vehicle accidents or worker's compensation injuries.

• Work history including previous work history if relevant:

Ms El-Nayef was born in Lebanon but grew up in Abu Dhabi, where she completed Year 12 of high school.

She immigrated to Australia 35 years ago. She attended St George College and completed a course in management administration. She then worked in a medical centre at Arncliffe for 1 year, and then at a medical centre at Rockdale for 1 year.

She then married and did not work. She was child-rearing until 9 years ago.

She worked at a medical centre at Lakemba for 4 years, then in a cosmetic clinic as a practice manager for 1 year, before commencing work at Greenacre on 30 September 2017.

Ms El-Nayef was married for 22 years and has been divorced for 10 years. She has four children, three daughters aged 30, 27 and 21 years, and a son aged 19 years. Her three youngest are still at home. She also has her mother and father who live with her who are cared for by NDIS. She lives in a duplex which she owns.

Due to her bowel symptoms, Ms El-Nayef states that she has difficulty with food choices and because of the bloating she feels as if she is pregnant.

Due to her immobility, which she states is limited mainly because of her back. She cannot run or jog. She can walk for 15 minutes. She can stand for 20 minutes. She can sit for 20 minutes. She can walk hills and stairs and pray. She is unable to drive and sold her vehicle. The housework is apparently done by her mother. She can shop. She can do some light cooking. She cannot do yard duties for which she has a gardener. Her ability to socialise is reduced. She can perform all acts of daily living."

1. The Medical Assessor made the following comment in relation to special investigations:

"Neurophysiology Report, Dr Basil Hassan, 18 October 2023 was concluded as follows:

"Nerve conduction study values are all normal. The needle EMG examination shows evidence of moderate to severe active or chronic degenerative right tibialis anterior, normal in right gastrocnemius medialis and right vastus lateralis. The qEMG analysis confirms neuropathic units in the right tibialis anterior. This is consistent with moderate to severe right L5 radiculopathy with evidence of active on chronic denervation in right tibialis anterior."

"...Since last reviewed her clinical condition is unchanged. She had been reviewed by D Molnar and Dr Gibson but that her MRI from 2023 showed no ongoing neural compression. Therefore, I have no surgical option to help with her leg pain and one would have to assume that her ongoing symptoms relate to the compression she sustained as a result of the disc herniation pre-operatively..."

1. The Medical Assessor conducted an examination and recorded his findings as pertain to the lumbar spine as follows:

"On general examination, Ms El-Nayef was a cooperative woman who wore a hijab, an Islamic garb.

She was wearing a moon (CAM) boot on her left leg and used a walking stick in her right hand.

When she walked, she did so with a wide-based gait with her right leg externally rotated by about 30° and appeared to be dragging her foot.

She was 167cm tall and weighed 89kg. This provided her with a body mass index of 31.9kg/m2 which placed her in the obesity class 1 of 3.

Ms El-Nayef stood on a couple of occasions during the interview but was able to walk to the examination couch and climb on and off without assistance. Her clothing could be adjusted to perform an appropriate examination. She was not required to disrobe.

On examining her back, there was no wasting of the muscles of the lower limbs. Both thighs measured 53cm in circumference, 10cm above the patella. The right calf measured 42cm. The moon boot on her left leg was not removed and the left calf could not be examined.

Ms El-Nayef was asked to lift her right leg off the bed, but she could not do so because of "weakness." Her left leg could be lifted.

On examining sensation, Ms El-Nayef had reduced sensation on the entire right side of the body, being 4-5/10. This could not be explained by a radicular or peripheral nerve lesion and could only be explained by a central cerebral lesion, of which there was no evidence.

Knee jerks and medial hamstring jerks were equal bilaterally. The right ankle jerk was tested and this was normal. The left ankle jerk could not be tested because of the moon boot."

1. The Medical Assessor summarised the injury and diagnosis in respect of the lumbar spine as follows:

L4/5 disc rupture, aggravation pre-existing degenerative change

(a) Her inability to lift her right leg off the bed would mean that she would be incapable of locomotion involving the right leg. This inability would therefore be considered voluntary.

(b) The sensory loss involving the right side of her entire body cannot be explained by a radicular or peripheral nerve lesion. This can only be explained by a central cerebral pathology for which there is no evidence. This too can be considered feigned."

1. The Medical Assessor explained his reasoning that in making the assessment of 11% WPI for the lumbar spine and that he has taken into account the following:

1. My opinion and assessment of whole person impairment

In making that assessment I have taken account of the following matters:-

Physical examination of the digestive system and lumbosacral spine in addition to history and medical records provided and assessed these as outlined by AMA 5 and the NSW WorkCover Guides, 4th Edition.

1. An explanation of my calculations (if applicable)

AMA Guides, 5th Edition, Chapter 15, Section 15.4, Page 384, Table 15-3, and NSW WorkCover Guides, Chapter 4, Paragraph 4.27, Page 27, Paragraph 4.34, Page 28, Paragraph 4.37, Page 29 and Table 4.2, Page 29.

According to Paragraph 4.37 of the WorkCover Guides, Ms El-Nayef has undergone decompressive laminectomy which indicates that she would be DRE Category III, with a range from 10-13%.

In relation to residual radiculopathy, reference is made to Paragraph 4.27. For reaons that I have stated, muscle weakness is not consistent, nor is sensory change. Radiculopathy by this definition cannot be affirmed. Although there is an old nerve conduction study from October 2023, showing radiculopathy, this cannot be used. In addition, findings on imaging studies do not support nerve root compression. Radiculopathy, therefore, cannot be diagnosed.

Reference is made to the modifiers of Paragraph 4.34, Ms El-Nayef is capable of self-care but cannot perform home duties or yard duties. She would therefore have a modifier of 2%.

The total whole person impairment in relation to her lumbar spine would therefore be 12%.

There is clinical evidence that Ms El-Nayef has had previous back pathology noticed from documentation and imaging studies. This would necessitate a 10% deduction. Therefore, 10% of 12% equals 1.2%, which when deducted equates to 10.8%, which when rounded is 11%.

A whole person impairment in relation to her back is therefore 11%."

1. The Medical Assessor made brief comments on the other evidence that was before him as pertains to the lumbar spine as follows:

"Reference is made to the medicolegal report by Dr Noel Dan, Neurosurgeon, dated 10 November 2023. He assessed a whole person impairment of 15% based on the presence of radiculopathy. As I have stated, there are inconsistencies in this assessment of radiculopathy, as I have outlined in the body of my report. In my view radiculopathy based on clinical examination cannot be supported. In addition, a deduction for a pre-existing condition of 10% is justifiable on documentation and imaging reports provided.

Reference is made to the report by Dr Raj Reddy dated 14 January 2025. He assessed whole person impairment between 20-30% range but has not explained his calculation."

1. The appellant complains on appeal that the Medical Assessor did not adequately explain why he did not find a rateable impairment for radiculopathy.
2. The criteria for radiculopathy in the Guides at paragraph 4.27 are as follows:

"4.27 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):

(a) loss or asymmetry of reflexes

(b) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

(c) reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution

(d) positive nerve root tension (AMA5 Box 15-1, p 382)

(e) muscle wasting - atrophy (AMA5 Box 15-1, p 382)

(f) findings on an imaging study consistent with the clinical signs (AMA5, p 382)."

1. The Medical Assessor is clearly cognisant of the other medical opinion before him and notes that Dr Dan neurosurgeon allowed 3% for the presence of radiculopathy. The Medical Assessor however explains:

"In my view radiculopathy based on clinical examination cannot be supported."

1. The Medical Assessor's clinical findings on the day of assessment, upon which he is entitled to rely, support his conclusion that no allowance should be made for radiculopathy.
2. He is clearly cognisant of the appellant's complaints of global pain down the right side of her body. The appellant says this caused him to fall into error because it led him to dismiss outright the issue of radiculopathy.
3. The MAC must be read as a whole. What the Medical Assessor has done is assess, in accordance with the correct criteria, the impairment on the day of assessment applying his clinical judgment to his examination findings.
4. The Medical Assessor is entitled to rely on his examination findings on the day of assessment.
5. What is reported by the appellant is a report of diffuse pain along the whole right side of her body which upon examination by the medical examiner was clearly found to not follow any known anatomical distribution. It is not radicular pain, it is diffuse pain.
6. The Medical Assessor has clearly recorded his examination findings as set out above. The examination was thorough and covered all requisite aspects.
7. He has explained adequately why his opinion differs from the other medical opinion that was in evidence before him.
8. The Medical Assessor is required to use the criteria in the Guides at paragraph 4.27 to verify radiculopathy.
9. One major criteria and one minor criteria must be found to be present.
10. Based on the clinical findings on the day of examination by the Medical Assessor there were no major criteria found to be present on through examination by the Medical Assessor.
11. Taking each of the major criteria in turn and marrying them with the examination findings of the Medical Assessor, it is evident that there has been no error by the Medical Assessor as follows:

(a) loss or asymmetry of reflexes

(i) Not found to be present noting the finding: "Knee jerks and medial hamstring jerks were equal bilaterally. The right ankle jerk was tested and this was normal. The left ankle jerk could not be tested because of the moon boot".

(b) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

(i) The Medical Assessor identified that muscle weakness was not consistent and so could not be used to verify radiculopathy, noting the examination finding: "Ms El-Nayef was asked to lift her right leg off the bed, but she could not do so because of "weakness." Her left leg could be lifted." The Medical Assessor noted that she had been able to walk to the examination table.

(ii) The Medical Assessor noted the inconsistency as follows: "Her inability to lift her right leg off the bed would mean that she would be incapable of locomotion involving the right leg. This inability would therefore be considered voluntary".

(c) reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution

(i) The Medical Assessor identified that sensory change was not consistent and so could not be used to verify radiculopathy, noting the examination finding: "On examining sensation, Ms El-Nayef had reduced sensation on the entire right side of the body, being 4-5/10. This could not be explained by a radicular or peripheral nerve lesion and could only be explained by a central cerebral lesion, of which there was no evidence."

(ii) The Medical Assessor noted the inconsistency as follows**:** "The sensory loss involving the right side of her entire body cannot be explained by a radicular or peripheral nerve lesion. This can only be explained by a central cerebral pathology for which there is no evidence. This too can be considered feigned."

1. The Appeal Panel notes that examination by the Medical Assessor recorded that the appellant has widespread sensory change on the right side of her body. This does not satisfy the criterion of reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution. It is important to note that radicular pain has to follow anatomical pathways. The Medical Assessor findings on examination do not support that the complaints of pain follow anatomical pathways. What is complained of by the appellant is widespread or diffuse pain on the right side as opposed to verifiable radicular pain.
2. What the examination findings show and which have been carefully explained by the Medical Assessor is that there are no major criteria present on the day of assessment which would permit an assessment of radiculopathy.
3. In relation to the appellant's submissions on appeal that the Medical Assessor failed to have regard to objective testing such as the EMG testing, the Appeal Panel considers that this submission is misconceived given that paragraph 4.21 of the Guidelines provides as follows:

"The clinical findings used to place an individual in a DRE category are described in AMA5 Box 15-1 (pp 382-83). The reference to 'electro-diagnostic verification of radiculopathy' should be disregarded.

(The use of electro-diagnostic procedures such as electromyography is proscribed as an assessment aid for decisions about the category of impairment into which a person should be placed. It is considered that competent assessors can make decisions about which DRE category a person should be placed in from the clinical features alone. The use of electro-diagnostic differentiators is generally unnecessary)."

1. In any event there were no major criteria found to be present by the Medical Assessor on thorough clinical examination on the day of assessment.
2. What the Medical Assessor has found in accordance with his examination findings on the day of assessment is that there is no rateable impairment for radiculopathy in accordance with paragraph 4.27 of the Guidelines. This is adequately explained when the MAC is read as a whole. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment and has applied the correct criteria to assess impairment. There is no error and the Appeal Panel considers that the reasoning given by the Medical Assessor was adequate.
3. For these reasons, the Appeal Panel has determined that the MAC issued on 16 May 2025 should be confirmed.