Find a decision

Worker appealed AMS’ assessment of her cervical spine as falling within DRE I on basis the AMS did not have regard to her non-verifiable radicular complaints; no evidence appellant ever had non-verifiable radicular complaints; Panel found no error with AMS assessment of appellant’s cervical spine; appellant also appealed AMS assessment of her upper and lower MAC on basis AMS did not have proper regard to her signs and symptoms; Panel found no evidence appellant suffering any disease of digestive tract at time of assessment; constipation is symptom not a sign; Panel found no error with AMS’ assessment of appellant’s digestive tract; MAC confirmed.

AMS finding of no section 323 deduction challenged; admission of fresh evidence; error alleged in finding that no deduction should be made pursuant to section 323 of the 1998 Act where subject injury had been found to fall within section 4(b)(ii) in the earlier proceedings; appellant insurer submitted Certificate of Determination in earlier proceedings should be admitted as additional evidence to establish a pre-existing condition; respondent worker did not dispute that subject injury was an “aggravation injury”; admission declined as not within section 328(3) of the 1998 Act; evident from contemporaneous MRI scan that worker suffered an asymptomatic degenerative condition in the lumbar spine; Held – on the evidence of the report of the treating specialist and radiology that conclusion that there was no contribution to the impairment (Lumbar Category DRE III) was not open to the AMS on the evidence; consideration of Cole v Wenaline, Vitaz v Westform; MAC revoked and lumbar spine impairment assessed with 1/10th deduction pursuant to section 323 the 1998 Act.

Worker sought assessment by AMS as to whether his WPI was greater than 20%; compensated under the Table of Disabilities as a result of a lumbar spine injury in 1993; claimed that weight gain since 1993 caused a consequential condition in the thoracic spine and legs, as a result of oedema; Held - while the back injury had led to weight gain, not satisfied that it had resulted in the consequential conditions claimed, no order.

Psychological injury; AMS assessed 13% WPI; appeal in M1-1987/19 by worker in respect to a failure to make an adjustment for effects of treatment, error in rounding and basing the assessment of impairment on an incorrect history in relation to concentration, persistence and pace and travel; appeal in M2-1987/19 by employer in relation to the PIRS categories of self-care and personal hygiene, concentration, persistence and pace and employability; no error in no adjustment for effects of treatment or assessment of the PIRS categories; MAP revoked as rounding error.

Admissibility of additional evidence or late evidence. Panel did not allow surveillance evidence

AMS assessed 0% wpi in relation to sexual impairment, no loss of bulbo cavernosus reflex, ADL's correct at 1% MAC confirmed

s328(3) fresh evidence, MRI conducted after AMS examination not allowed due to prejudice to Respondent, 0% correct for lumbar spine and right lower extremity. MAC revoked as assessment made by scarring contrary to referral

AMS uses sensory rating of femoral nerve using Table 17-2. Panel finds method of assessment correct. MAC confirmed

AMS goes beyond his jurisdiction in determining no injury to left shoulder. MAC revoked

significant functional component, worker given benefit of doubt, no clear history of shoulder injury as required by guides, hence no wpi MAC revoked