WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeals against 7% whole person impairment (WPI) finding for cervical spine injury; the worker appealed the MAC and raised whether the Medical Assessor (MA) failed to consider whether radiculopathy present, or to adequately explain his decision regarding radiculopathy; the appellant employer appealed the MAC and raised whether the MA had erred in not making any deduction pursuant to section 323; Held - demonstrable error established in failure to explain why the imaging studies were not consistent with a clinical sign; Chapter 4.27 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) considered; claimant re-examined and imaging study held to be inconsistent; MAC confirmed; no utility in the appellant employer's appeal as claimant not entitled to compensation in any event; MAC confirmed.

1. In this matter both parties have appealed the MAC.
2. On 27 May 2025 Martin Folan, the worker lodged an Application to Appeal Against the Decision of a Medical Assessor. This appeal is considered under M1-W1114/25.
3. On 29 May 2025 APS Group (Girraween) Pty Ltd, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. This appeal is considered under M2-W1114/25.
4. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 May 2025.
5. 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.
6. The appellant employer also relied on the same grounds of appeal.
7. 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.
8. 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.
9. 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). "WPI" is reference to whole person impairment. "Baseline WPI" is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

1. On 28 February 2025 this matter was referred to the Medical Assessor for an assessment of WPI caused to the cervical spine by injury on 17 July 2023.
2. The Medical Assessor took a history that over many years Mr Folan had been driving high-reach forklifts, the operation of which required him to twist his head and neck. There were eight levels in the warehouse and the operation of the high-reach forklifts resulted in him having to strain his neck in a very uncomfortable postural position.
3. The Medical Assessor noted that "around mid-year 2023" (which we assume is a reference to the date of injury referred to him, 17 July 2023), Mr Folan woke up with a stiff and very painful neck with radiating pain down his right arm suggestive of the involvement of the ulnar nerve.
4. Investigations detected pathology at the C5/6 level and although surgery was recommended, Mr Folan declined.
5. The Medical Assessor found 7% WPI.

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 necessary for the worker to undergo a further medical examination because the Medical Assessor fell into error, as described below.

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 below 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. In taking the history of the incident, the Medical Assessor noted that part of Mr Folan's job was to look upwards straining his neck, a requirement that had lasted "for many years".
2. The Medical Assessor recorded the following findings on physical examination:[1]

"Mr Folan was of average stature with a height of 1.73m. His weight was 85kg. With

these parameters, he currently has a body mass index of 28. This is on the high side.

The upper level of healthy BMI is 25. In order to achieve this, Mr Folan should be no more than 74kg. He had obviously looked after himself fairly well and was well muscled, although at this assessment it was obvious that he was putting on excess weight.

Cervical Spine. There was ache in his neck with tenderness in the lower cervical spine.

On forward flexion, he could only reach two-thirds of the normal range. Extension was

reduced to half the normal range. Lateral flexion to each side was reduced to half the

range on the left and to one-third the range on the right. Rotational movements were rather the reverse of this, with one-third movement to the left and two-thirds to the right.

Upper Limbs. There was a full range of movement of the shoulders, elbows, wrists, hands and all digits. Sensation to pinprick resulted in slightly reduced sensation on the right in the C8 dermatomal distribution. Elsewhere, sensation was throughout the normal distribution and was equivalent. Reflexes were present and equivalent at the elbows (C5 and 7) and at the wrists (C6)."

1. The Medical Assessor recorded the following chart detailing investigations into the cervical spine:[2]

C5/6 severe canal stenosis. (Recommended referral to Spinal Surgeon

Degenerative changes and disc space narrowing at C5/6

Degenerative changes, particularly in the lower segments with associated disc bulging deviated predominantly towards the right, contributing to spinal stenosis at this level.

1. In his summary at [7] of the MAC, the Medical Assessor said:[3]

"Mr Folan gives a history of developing significant dysfunction of his cervical spine around mid-year 2023. The condition continued to deteriorate...

At this assessment it was obvious that he continues to have significant cervical spine

pathology. Although there were some minor neurological features radiating down the right arm, these were insufficient to fully diagnose radiculopathy."

1. In explaining his calculations at [10b] the Medical Assessor said:[4]

"Mr Folan's condition is addressed in AMA 5 Page 392, Table 15-05. He has very

obvious dysfunction of the cervical spine, although radiculopathy has not been confirmed. He is therefore assessed in DRE Cervical Category II...."

1. The Medical Assessor noted the opinions of the experts on both sides of the record at [10c]:[5]

"Specialist Neuro-surgeon, Dr Bisham Singh in his report of 19/02/24 has identified radiculopathy which substantially increases the whole person impairment to 17%. I was unable to demonstrate significant radiculopathy.

Specialist Spinal Surgeon, Dr Peter Maloney in his two reports of 06/09/23 and 05/08/24 advises that this is not a work related condition and therefore, there is no whole person impairment."

1. As to any pre-existing condition, the Medical Assessor said:[6]

"Although there is evidence of pre-existing degenerative change in his cervical spine, this appears to have been minor and was asymptomatic. I am therefore not persuaded that there is any significant condition which would necessitate the application of a deduction."

1. Mr Folan advanced two grounds alleging error on behalf of the Medical Assessor. The first ground was that the Medical Assessor had erred in failing to properly engage with Chapter 4.27 of the Guides. He kindly set out the content of those guides.
2. Mr Folan submitted that the Medical Assessor had failed to provide a rationale for his diagnosis regarding radiculopathy and set out the following bases for the submission:

(a) there was no explanation "of the tests applied to measure the range of motion";

(b) there was no explanation for his conclusion that there was no loss of symmetry of reflexes, and

(c) there's no explanation as to how the medical assessor concluded that there was no muscle weakness that was anatomically localised to a spinal nerve root distribution.

1. Mr Folan submitted that the Medical Assessor had failed to properly engage with the particular criteria set out in Chapter 4.27 and this omission and the failure to give reasons as to his omission, as we read the submission, was said by Mr Folan to demonstrate error.

1. Mr Folan submitted that the Medical Assessor had failed to provide a rationale or to demonstrate an adequate path of reasoning to distinguish between a 'significant' radiculopathy and radiculopathy.

1. We note the submissions made by the respondent and by and large we agree with them. There is no purpose therefore in rehearsing them as they are incorporated in our discussion.

1. As noted above there are two grounds to Mr Folan's appeal. The first is based on the failure by the Medical Assessor to refer to Chapter 4.27 of the Guides or indeed to give reasons as to why he did not explain his decision in terms of each of the criteria that are set out therein.
2. Chapter 4.27 is in these terms:

"Radiculopathy is the impairment cause 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

▪ 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)

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

1. The respondent conceded that the Medical Assessor did identify one of the criteria - that of a slightly reduce sensation to pinprick on the right upper extremity in the C8 dermatomal distribution. However, as the Guideline requires two or more criteria, Mr Folan did not qualify, it was submitted.
2. The Medical Assessor made other references to radiculopathy, as referenced above, namely:

(a) "Although there were some minor neurological features radiating down the right arm, these were insufficient to fully diagnose radiculopathy" (at [7]);

(b) "He has very obvious dysfunction of the cervical spine, although radiculopathy has not been confirmed. He is therefore assessed in DRE Cervical Category II" (at [10b]), and

(c) "Dr Bisham Singh in his report of 19/02/24 has identified radiculopathy which substantially increases the whole person impairment to 17%. I was unable to demonstrate significant radiculopathy." (at [10c].

1. We note, however, that a further sign for radiculopathy pursuant to Chapter 4.27 is that there be findings on an imaging study consistent with the clinical signs. As we have noted, the CT scan, X-ray and MRI of the cervical spine demonstrated some pathology. The sign located by the Medical Assessor was of a localised impairment of sensation in the right C8 distribution, but the MRI scan was not definitive as to the level of the lower segments, which may well have been relevant. The MRI scan of 21 February 2025 indicated "mild to moderate cervical spondylosis more marked C5/6 and C6/7. C5/6 severe canal stenosis."
2. Further, Dr Singh for the appellant diagnosed radiculopathy some 12 months earlier, and assuming that his application of Chapter 4.27 was accurate at that time, whilst it is an unremarkable proposition that a person's medical condition can improve or indeed worsen with the effluxion of time, we considered that earlier opinion to be relevant in deciding to re-examine.
3. Accordingly we determined that the Medical Assessor had erred by not explaining why the imaging study was not consistent with the clinical signs. Accordingly he was re-examined by Medical Assessor Lahz eventually on 28 August 2025. Medical Assessor Lahz' report follows:

"Mr Folan is aged 50 and right-handed. He was born in Ireland although he has lived in Australia since the age of 4.

He is a single man presently living with his father at Campbelltown. For the last nine weeks, he has been working at Prestons on an LO Order Picker. He works casually 3-4 days per week, 8 hour shifts. He is pleased to have the work because he has been depressed and it gets him out of the house. He stands on the platform of the machine which elevates so he does not have to move his neck unduly (as he had to do when operating the high reach forklift). There is also no heavy lifting involved because the product (boxes of fittings for steel construction) are relatively light.

His predominant occupation since leaving school in 1993 has been high reach forklift operation along with 'picking and packing'. He has worked casually for both Coles (on and off for eight years) and Woolworths (on and off for 15 years) with stints arranged through various recruitment agencies. He has also worked briefly as a floor/wall tiler and Kung Fu practitioner having his own for personal training business for several years. He described personal fitness as a 'passion'. He has also done FIFO work at oil refineries as a high reach fork operator.

His general health aside from neck pain is good. He denied diabetes, heart disease and hypertension. He is a social smoker. He does consume alcohol, albeit much less since he moved in with his father earlier this year due to financial issues. He had been drinking excessively due to depression, chronic pain and unemployment.

There is a history of soccer related knee injuries. He referred to patellar fracture/dislocation. He was also in a motorbike accident about eight years ago and sustained a right-sided tibial fracture requiring open reduction and internal fixation. Consequently, he has a stiff right ankle.

He did experience low back pain during 2021 (pandemic) due to long working hours of a 'essential worker'.

In early-mid 2023, he awoke one day with right-sided neck pain. On specific enquiry, he denied ANY pre-existing neck symptoms.

He initially ascribed the symptoms to sleeping 'funny'. The pain came up from the right shoulder blade into the posterior neck. Over the next few days, symptoms spread to the right shoulder, posterior arm, dorsal forearm and hand (especially) the ring and little fingers. He referred to experiencing electrical/buzzing symptoms in the right upper limb although he reported that in general neck symptoms were of similar severity to those affecting the right upper limb.

There have never been any disturbances of bowel, bladder or gait.

He informed his manager of the neck troubles and asked to do just picking and packing rather than operate the high reach fork. However, by 1-2 weeks later, neck symptoms were not better, and he was experiencing increasing symptoms in the right upper limb causing him functional difficulty i.e. using a computer mouse, using a knife.

About a fortnight after symptom onset, he saw his GP who arranged a CT scan of the cervical spine. Mr Folan was uncertain of the specific findings although his doctor was worried. There was a concern about the 'nerves' and he was swiftly referred to a neurosurgeon Dr Singh.

Dr Singh arranged an MRI scan and after reviewing this, proposed neck surgery of which Mr Folan could not provide any details. However, he was fearful of neck surgery and resolved to do all he could to avoid this.

The Insurer funded a short course of physiotherapy, possibly two months during which he received an exercise programme that he could later continue at home. It was suggested that he use a phone app.

He also received an 'epidural' injection to the right side of the neck. He was unsure of the date (late 2023? early 2024?) although he recalled that this reduced symptoms from 9/10 down to about 6/10.

However, he was unable to resume work in his usual job and in October 2023, he was formally terminated from the position.

According to Mr Folan he was off work for a 'good 12 months' after the symptom onset.

During this period, he was living alone, very depressed, not caring well for himself, rarely going out and consuming excessive alcohol. He lost his licence during 2024 for a DUI offence whilst on his way to deal with a 'friend' who had borrowed money but not repaid him. He continued attending the gym although he avoided overhead heavy lifting. He also resolved not to resume high reach fork driving given Dr Singh told him he would need to find a job causing less stress on the neck. He said he has actually been quite fearful of engaging in specific activities in case of worsening his neck injury, knowing there is not much room for the passage of the spinal nerves (according to the imaging findings). He wanted to resume work due to financial struggles and low mood although he was fearful of the required work activities given his particular area of work expertise is high reach fork operation that provokes symptoms.

In mid or late 2024 (about eight months after the initial injection), neck and right upper limb symptoms ramped up again, so he requested and received a second right-sided epidural injection which remarkably resolved the right-sided neck and upper limb symptoms to the level of 'not noticing anything'.

Since termination from employment, he has worked in various positions 'picking and packing' whilst trying to avoid high reach fork driving. This has proved difficult because the latter features prominently in his resume and the employers have all wished for him to operate the forks and they do not understand his reluctance. He has not wished to divulge the work injury fearing this would jeopardize his employment prospects. At least half a dozen jobs have not been satisfactory due to either excessively heavy lifting or pressure to operate the high reach machine. His current job which he has been doing for just a few weeks has been the best one yet for his neck although the pay is less. However, as noted, he is pleased to be working and out of the house for sake of his mental health and (reduced) alcohol intake.

Unfortunately, during December 2024, he developed with a vengeance 'exactly the same symptoms on the left side of the neck and upper limb' as had been present on the right.

The latter left-sided neck and upper limb symptoms persist and reportedly severe 8-9/10 intensity. Earlier this year, he received a left-sided cervical epidural injection although unlike the preceding right-sided injections, this did not provide any symptomatic relief.

He was also recently given the option of physiotherapy although given his work commitments and the long (public transport) commute to and from work, he has very little time. Consequently, there has been no treatment of the current left-sided symptoms.

A progress MRI scan of the cervical spine was performed in January 2025 showing R (severe)>L (moderate) C5-6 and C6-7 foraminal narrowing. Mr Folan is understandably perplexed as to the reasons for the replacement of right-sided symptoms by left-sided symptoms.

He has not returned for review by Dr Singh and says he does not know what he ought to do. He is too fearful to undergo further spinal injections 'close to the spinal cord' and at any rate, the most recent injection proved ineffective.

On specific enquiry, he denied any new onset bowel, bladder or gait disturbances. He also denied Lhermitte's phenomenon.

He attends the gym thrice weekly where he does light exercises, stretches, cable rows and uses the static bike. He specifically avoids all overhead lifting.

He continues his current work which as noted does not overly stress the neck.

He complains of constant pain coming up from the left scapula to the posterior neck and left shoulder, then spreading down the posterolateral arm, dorsal forearm and hand (involving all fingers though worse in the ring and little fingers).

There is constant 'buzzing' sensation of electricity in the left upper limb.

The greatest discomfort is around the left scapula.

He feels his triceps are weak although he has not noticed any loss of dexterity or else weakness of the left hand. He is not dropping items from either hand.

As noted above, the right upper limb is now asymptomatic.

He is currently taking Pregabalin 25 mg at night and Voltaren Rapid daily, neither of which is very helpful.

He reports pain-related sleeping disturbance and finds it best to prop his left arm on a pillow.

At home, he has no problems with personal care due to neck pain although he has had to restrict his physical fitness activities (his main hobby) to much lighter tasks, avoiding heavy lifting. He is unable to complete heavy chores and he does no yard work due to potential exacerbation of neck symptoms.

On examination, he was a somewhat difficult (overinclusive) historian who frequently apologised.

He was neatly dressed and presented in a high visibility work vest.

He has a stocky build weighing 82 kg with height 173 cm.

Gait was normal. He was able to heel walk and tiptoe albeit with some difficulty due to right ankle stiffness caused by an unrelated motor vehicle orthopaedic injury.

There was a full range of bilateral shoulder motion and there was no wasting of the shoulder girdles (nor was there any wasting of the hands).

Active neck flexion was 2/3 normal range, extension 1/3 normal range (with pain complaint), lateral flexion to either side ½ normal range and rotation to either side 2/3 normal range. There was non-uniform/asymmetric motion restriction present in the flexion/extension plane with disproportionate restriction of extension compared with flexion.

There was no muscle spasm or guarding at the cervical spine. There was some tenderness around the neck base and left scapula.

Spurling's test was negative bilaterally not reproducing neurological symptoms in either upper limb.

There was no measurable wasting of the arms 10 cm above the elbow crease (33 cm) nor forearms 5 cm below the elbow crease 30 cm.

Upper limb reflexes were present and symmetrical aside from the left triceps jerk which could not be elicited even with facilitation manoeuvres.

Light touch sensation over the upper limbs was normal.

Pinprick testing over both upper limbs was normal aside from a non-anatomical/non-dermatomal deficit affecting the left radial volar forearm, thumb and all fingers.

There was normal upper limb strength bilaterally in all muscle groups.

The worker brought no scans to the appointment although I note that the earlier CT of the cervical spine 26/7/23 reportedly showed severe spinal canal stenosis.

I have noted the report of the most recent MRI of the cervical spine performed on 21/1/25.

The formal MRI report of Dr Mark Waterland 21/1/25 notes the C45 disc is desiccated and mildly narrowed. There is mild disc bulge causing mild canal stenosis. Loss of disc height and degenerative findings in the uncovertebral and apophyseal joints are causing moderate foraminal narrowing bilaterally which is unchanged.

The C56 disc is degenerative and narrowed with a disc bulge and endplate osteophytes. This is most marked in the right posterolateral position with some effacement of the cord. It is consistent with moderate canal stenosis. There is no increased signal intensity within the cord. Loss of disc height and bony degenerative changes are causing severe narrowing of the right foramen and moderate narrowing of the left foramen at this level. The right sided foraminal narrowing has increased from the previous study.

The C67 disc is degenerative and narrowed with a disc bulge and endplate osteophytes causing mild canal stenosis. Bony degenerative changes and loss of disc height are causing severe narrowing of the right foramen and moderate narrowing of the left foramen is unchanged.

The C7T1 disc defines normally and the foramina are of reasonable size. The cord is of normal signal intensity.

In short, the reported scan findings indicate R>L foraminal narrowing at C56 and C67, not correlating with the worker's present left-sided symptoms which developed in late 2024, 18 months after the onset of the initially right-sided neck symptoms (date of injury 17/7/23).

Definition of Radiculopathy According to the Workcover Guides

Paragraph 4.27 page 27 (Workcover Guides) says there must be two or more of the following criteria, one of which must be 'major' for radiculopathy to be present (bolded below).

1. Loss or asymmetry of reflexes
   1. Muscle weakness anatomically localized to appropriate spinal nerve root distribution
   2. Reproducible impairment of sensation that is anatomically localised to appropriate spinal nerve root distribution
   3. Positive nerve root tension p382 AMA5, Box 15-1
   4. Muscle wasting- atrophy p 382 AMA5, Box 15-1
   5. Findings on imaging study consistent with clinical signs AMA5, p 382, Box 15-1

My clinical examination noted absence of the left triceps jerk. However, I did not find anatomically localised muscle weakness, reproducible sensory impairment in a spinal nerve root distribution, evidence of positive neural tension, nor any muscle wasting. Spurling's test did not reproduce neurological symptoms in either upper extremity.

I have found one major (bold) criterion in the absence of other criteria satisfying radiculopathy.

Therefore, he does not meet the abovementioned criteria set out in the Workcover Guides to Permanent Impairment for radiculopathy to be present.

At my examination, there was non-uniform/asymmetric range of motion present in the coronal plane with disproportionate restriction of extension. The criteria are met for cervical disorders DREII i.e. 5-8% WPI (Table 15.6, page 392 AMA5)

ADL impairment provides an additional 2% based on the history of home care and recreational restrictions (paragraphs 4.33-4.35 page 28 Workcover Guides)

In summary, there is present 7% WPI of the cervical spine based on clinical examination findings.

Of note, the worker's symptoms have changed sides for no apparent reason during late 2024 when he developed left-sided symptoms, whilst the original right-sided symptoms have resolved since the second right-sided epidural injection. When seen by the original assessor, there was reduced sensation in the right C8 distribution with normal reflexes. He found that the criteria for radiculopathy were not made out.

My clinical findings of sensation differed from those of the original assessor, having a non-dermatomal/non-anatomical pattern (and moreover, the opposite upper extremity now affected). However, based on my own clinical findings, I have also found that no upper limb radiculopathy is present per the criteria set out in the Workcover Guides, cited above.

As for deduction, the worker was adamant that he had no neck symptoms before waking up with a 'crook neck' during July 2023. He thought the symptoms would just improve although the neck did not recover unfortunately.

Although the significant degenerative changes noted on scans with cervical spinal canal stenosis would predispose the worker to the development of neck and upper limb pain/neurological symptoms, a predisposition/vulnerability in the absence of symptoms before the work injury does not constitute a basis for deduction."

1. We adopt the report of Medical Assessor Lahz. The assessment in the MAC will accordingly be confirmed.

1. We note the submissions of the parties and note further our decision confirming the MAC assessment. This has the effect that Mr Folan has no entitlement to compensation in any event.
2. The respondent alleged that the Medical Assessor had fallen into error in his finding that there was no contribution by any preexisting condition to the impairment assessed.
3. It was submitted that the Medical Assessor had failed to give sufficient weight to the extent to which Mr Folan's preexisting degenerative changes in his cervical spine had contributed to his permanent impairment.
4. There is little utility in dealing with this appeal in any detail it will not make any difference to Mr Folan's entitlement. We note further that Medical Assessor Lahz considered this appeal, and confirmed the opinion of the Medical Assessor.
5. For these reasons, the Appeal Panel has determined that the MAC issued on 1 May 2025 should be confirmed.