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Vekic v Lynch Manufacturing NSW PL [2008] NSW WCC MA 1. Arb Ms A. Britton, Drs Edward Schutz & John Ashwell. 

"18. The Guides provide that the spine (lumbar, thoracic and cervical) is to be assessed under Ch. 15 of the AMA V as modified by Ch. 4 of the Guides. In short, this requires the selection of the appropriate Diagnosis Related Estimate (DRE) category and second, the determination of the allowance to be awarded (to a maximum of three per cent), for the impact (if any) of the impairment on the worker's activities of daily living (ADLs).

19. The AMS found that the Appellant fell within DRE Cervical Category II (AMA V, Table 15.6 at p 392) and DRE Lumbar Category II (AMA V, Table 15.3 at p 384). The relevance of the purported error raised in this ground of appeal is that to qualify for categorisation under DRE Cervical/Lumbar Category III, and hence attract a higher impairment rating, 'significant signs of radiculopathy must be present'.

20. 'Radiculopathy' is defined at par. 4.24 of the Guides to mean 'impairment caused by malfunction of a spinal nerve root or nerve roots' and stipulates that two or more of the following signs must be found:

* Dermatomal distribution of pain or numbness or paraesthesia;
* Positive root tension sign;
* Concordant finding on an imaging study (Box 15-1, AMA 5 p 382);
* Loss or asymmetry of reflexes;
* Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution;
* Reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

Electric shock dysaesthesia

ISS Property Services PL v Fenner [2010] NSW WCC MA11. Ms Annemarie Nicholl, Arb, Drs Brian Noll, Michael Fearnside. 

The worker suffered electric shock when keys about her waist touched an uncovered safety switch on a polisher in late 2006. She returned to normal duties in mid 2008.

AMS Best assessed neck loss uncontroversially, and, subject to the appeal, Dr Bookallil, as lead assessor, rated lower limbs left 4% WPI left and right 3%, and right arm 7%.

Dr Bookallil had written: “The sensory loss on nerve conduction studies was non-existent and on physical examination there is a vague sensory loss that is in no way complete and it does not really have an anatomical distribution”. Reflexes were normal.

The employer interest complained of lack of objective warrant for the assessment.

Dr Bookallil had noted CT showing L4/5 bulge and moderate left prolapse the level below.

Nerve conduction studies of Dr Strum in May 2008 were normal.

The AMS had opined: “It is likely there has been some damage to the nerves by the electrocution and this has resulted in altered sensation which could be described as dysaesthesia. Dysaesthesia means painful altered sensation.”

At [30], “The Panel accepts that in exercising his clinical judgement the AMS was satisfied that the worker suffers from a genuine dysaesthesia, being painful altered sensation, affecting all four limbs. While the nerve conduction studies are normal and the sensory loss does not follow an anatomical distribution, the Panel agrees with the AMS that the worker has significant symptoms of sensory loss. The Panel notes that injuries resulting from electrocution are not common.

“In respect of such injuries the Panel accepts that the symptoms do not follow the usual neurological pattern found in most other neurological injuries. In the present case the worker has clear symptoms that are consistent with injury resulting from electrocution. They include symptoms of paraesthesia and dysaesthesia. It is not necessary that her symptoms follow an anatomical pathway or that they are evidenced by abnormal nerve conduction studies.”

Further [infra 31], “The AMS relies on the AMA 5 and particularly the Tables relevant to an assessment of permanent impairment due to nerve deficits. The Panel notes there is no specific methodology provided in AMA 5 for assessment of impairment due to electrocution injuries. The Panel is satisfied the methodology adopted by the AMS is appropriate and correct in the particular circumstances of this case. The AMS has exercised his clinical judgment appropriately in assessing the degree of impairment in a difficult case. That approach is in accordance with paragraphs 1.13 and 1.59 of the WorkCover Guides. His reasoning is very clearly stated.”

The panel determined AMS Bookallil was incorrect to use Table 17-7. Infra [32], “The correct reference is to Table 17-37 at page 552 of AMA 5, in respect of impairments due to nerve deficits. The same Table is relevant to the assessments of both the left lower extremity and the right lower extremity. The Panel also accepts that the AMS’s reference to Table 16-10 is correct and that Table applies to the determination of the grade of sensory loss in respect of both upper extremities and lower extremities.”

Assessment upheld.

Q fever fatigue syndrome

Fletcher International Exports PL v O’Hehir [2010] NSW WCC MA8. Mr Peter Molony, Arb, Drs Gregory McGroder & Robert Oakeshott.

A slaughterman contracted acute Q fever in late 2002, and subsequently post-Q fever fatigue syndrome.

AMS Mark Burns found 50% WPI.

According to the panel [infra 17]: Because the WorkCover Guides do not make specific provision for the assessment of post Q Fever Fatigue Syndrome, he assessed Mr O’Hehir by analogy with anaemia, relying on para 1.59 of the Guides to do so. He reasoned that Mr

O’Hehir’s principal ongoing symptom is fatigue, and that the closest analogous condition to be found in AMA 5 was anaemia.”

Then, “Using Table 9.2 of AMA 5, he classified Mr O’Hehir at Class 3 (30% - 70% whole person impairment) on the basis that he has moderate to marked symptoms. Considering all Mr O’Hehir’s symptoms he assessed him at the mid range of Class 3: i.e. 50% WPI.”

The employer contended AMS Burns should used Table 12.1.

The panel rejoined that the only difference between Tables 9.2 and 12.1 were units of measurement of haemoglobin.

Infra [32], “The AMS was assessing by analogy with anaemia, not for anaemia. When assessing by analogy there is unlikely to be an exact fit between the condition being assessed, and the analogous condition. Here anaemia is a good analogy because, like post Q Fever Fatigue Syndrome, a principal feature of it is fatigue. Post Q Fever Fatigue Syndrome, however, does not have the same effect on haemoglobin levels or require frequent transfusion. The criteria in Table 12.2 which relate to haemoglobin levels and transfusions are not applicable to the assessment by analogy. There is, therefore, no application of incorrect criteria by the AMS, or a demonstrable error, in not considering them,” the panel said.

Assessment undisturbed.

E: Vardanega Roberts. W: Greylings Attorneys.


Publisher American Medical Association links below:

* American Medical Association Guides to the Evaluation of Permanent Impairment Fourth Edition >>

* American Medical Association Guides to the Evaluation of Permanent Impairment Fifth Edition >>

* American Medical Association Guides to the Evaluation of Permanent Impairment Sixth Edition>>

 "The fifth edition of Guides to the Evaluation of Permanent Impairment is the latest attempt to refine that effort. Almost every body part is invaluable to the individual. Assigning a value to any body part is arbitrary, but assigning a value to a body part in relation to the whole body makes the process more reasonable. Even then, the assessment can be controversial": The Journal of Bone and Joint Surgery (American) 83:1456-1457 (2001) © 2001 The Journal of Bone and Joint Surgery, Inc.


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