AFS Systems Pty Ltd v French
[2023] NSWPICMP 623
•29 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | AFS Systems Pty Ltd v French [2023] NSWPICMP 623 |
APPELLANT: | AFS Systems Pty Ltd |
RESPONDENT: | Adam French |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Ross Mellick |
| DATE OF DECISION: | 29 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker referred for assessment of whole person impairment (WPI) of the left upper extremity (including amputation and complex regional pain syndrome (CPRS)) and scarring as a result of the injury on 20 April 2020; Medical Assessor (MA) assessed 38% WPI (CPRS) and 1% scarring resulting in a total assessment of 39% WPI; the Panel was satisfied that the MA failed to carry out an assessment of CPRS in accordance with Table 17.1 of the Guidelines, this was a demonstrable error; worker re-examined and did not meet the criteria for CRPS under the Guidelines; Panel assessed 17% WPI in respect of the left upper extremity and 1% under TEMSKI, which resulted in a total of 18% WPI; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 August 2023 AFS Systems Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Mohammed Assem, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 July 2023.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.
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.
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.
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).
RELEVANT FACTUAL BACKGROUND
The respondent worker, Mr French (Mr French), sustained an injury to his left little finger when the finger was crushed within an industrial machine on 10 April 2020. The left little finger was partially amputated on 20 April 2020 and he then developed a consequential condition in the left shoulder.
On 17 May 2023 in a conciliation conference and arbitration before Principal Member John Harris, the parties entered into consent orders on the basis that Mr French be referred to a Medical Assessor for assessment of the left upper extremity including amputation and CPRS if applicable and scarring.
The matter was referred to the Medical Assessor Mohammed Assem, on 2 June 2023 for assessment of whole person impairment (WPI) of the left upper extremity (including amputation and CPRS) and scarring with the date of the injury being 10 April 2020.
The Medical Assessor examined Mr French on 18 July 2023 and assessed 38% WPI of the left upper extremity (CPRS), and 1% WPI for scarring (TEMSKI). The combined total was 39% WPI as a result of the injury on 10 April 2020.
PRELIMINARY REVIEW
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.
The appellant requested that Mr French be re-examined by a Medical Assessor who is a member of the Appeal Panel. The appellant submitted that re-examination was appropriate in this matter having regard to the criteria of Table 17.1 of the Guidelines, in particular, Criteria 3 of Table 17.1 which required the identification of signs “at the time of evaluation”.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and it was necessary for Mr French to undergo a further medical examination because there was insufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
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.
Further medical examination
Medical Assessor Mark Burns of the Appeal Panel conducted an examination of the worker on 22 November 2022 and reported to the Appeal Panel.
Medical Assessment Certificate
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) Table 17.1 of the SIRA Guidelines sets out the criteria required for the purposes of assessment of CRPS. In Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 at [5]-[9], [41] and [45] the Court found:
“…the satisfaction, or not, of the criteria in Table 17.1 is a strict process. The assessment of the degree of permanent impairment must be done by the correct application of the applying guidelines, rather than determined clinically, or by some broad discretionary makeup”;
(b) the Medical Assessor failed to carry out an assessment of Mr French’s impairment in accordance with the process set out in Table 17.1 of the SIRA Guidelines;
(c) on page 3 of the MAC under the heading of “Findings on Physical Examination”, the Medical Assessor recorded that Mr French appeared to be in some discomfort during the examination. The complaints of discomfort on examination did not appear consistent with the summary of injuries and diagnosis as recorded on page 4, where the Medical Assessor recorded that Mr French suffered post-operative complications manifested as severe pain, swelling and discolouration, which had been later identified as CRPS;
(d) the Medical Assessor did not properly engage with the first criteria of Table 17.1, that was, whether Mr French suffered continuing pain which was disproportionate to any causal event. The comments under the heading of “summary of injuries and diagnoses” on page 4 of the MAC did not clarify whether the “severe pain” occurred in the acute stages of recovery following surgery or was continuing pain as described in Table 17.1 of the SIRA Guidelines. The ambiguity could be resolved by reference to page 3 of the MAC that Mr French displayed discomfort on examination. Mr French therefore failed to satisfy criteria 1 of Table 17.1 of the SIRA Guidelines;
(e) the Medical Assessor proceeded to diagnose Mr French with CRPS and continued to assess impairment based on CRPS in circumstances where the first criteria of Table 17.1 of the Guidelines had not been satisfied. In doing so, the Medical Assessor fell into error as prescribed in s 327(3)(c) of the 1998 Act;
(f) the Medical Assessor did not engage with criteria 2 of Table 17.1 of the SIRA Guidelines. The Medical Assessor did not record any sensory symptoms or sudomotor/oedema or motor/trophic symptoms relevant to criteria 2. The criteria required a report of hypoesthesia and/or allodynia. The Medical Assessor recorded Mr French complained of pain, which did not satisfy the requirement of “sensory symptoms” in criteria 2 of Table 17.1 of the SIRA Guidelines;
(g) similarly, the Medical Assessor did not record any reports of oedema and/or sweating increase or decrease and/or sweating asymmetry. The Medical Assessor, however recorded those symptoms on examination at paragraph 2 of page 4 of the MAC. In a similar sense the Medical Assessor recorded a restriction in motion on examination (see paragraph 1 of page 4 of the MAC) in so far as motor/trophic criteria was concerned. The Medical Assessor did not record any reports of decreased range of motion and/or motor dysfunction and/or trophic changes;
(h) the Medical Assessor therefore failed to assess Mr French’s impairment in accordance with Chapter 17 of the Guidelines;
(i) notwithstanding the failures identified relevant to criteria 1 and 2 of Table 17.1 of the Guidelines, the Medical Assessor proceeded to assess impairment. The Medical Assessor assessed Mr French’s impairment relevant to criteria 3 of Table 17.1 of the SIRA Guidelines;
(j) the Medical Assessor did not provide sufficient reasons addressing the criteria set out in paragraph 3 of Table 17.1. The Medical Assessor referred to reduced sensation in the left hand, however did not appear to have referenced any testing for the same. The Medical Assessor failed to articulate details of the colour differential identified. The Medical Assessor failed to provide reasoning in respect of the measurements identified of the left upper extremity and how that related to the sudomotor/oedema criteria. The Medical Assessor did not engage in any reasoning as to how the findings on examination fell within each category;
(k) the Medical Assessor failed to engage with criteria 4 of Table 17.1 of the Guidelines. In Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125 (3 September 2021), the Court outlined that: “Step 4, if steps 1, 2 and 3 are satisfied, poses whether: ‘There is no other diagnosis that better explains the signs and symptoms’ ”. The Medical Assessor failed to address whether there was (or was not) a diagnosis that better explained the signs and symptoms;
(l) furthermore, Chapter 17 of the SIRA Guidelines required that the diagnosis of CRPS must have been present for at least one year. The Medical Assessor failed to address whether Mr French’s condition of CRPS had been present for at least one year. The Medical Assessor simply referred to a diagnosis of CRPS following surgery but it was not clear in the MAC, when such diagnosis was made;
(m) the Medical Assessor assessed Mr French on the basis of incorrect criteria and/or failed to properly address the criteria set out in Chapter 17 of the Guidelines;
(n) Ground 2: The MAC contained a demonstrable error. That was an error which is apparent in findings of fact or reasoning contained in the MAC; Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324.The submissions above are repeated in support of ground 2 of the appeal;
(o) in addition, the Medical Assessor assessed impairment which was outside the scope of the referral. Mr French was referred to the Medical Assessor following the issue of a Certificate of Determination - Consent Orders, on 17 May 2023. The Certificate of Determination and the Referral for Assessment of Impairment to Medical Assessor issued by the Personal Injury Commission (Commission) on 2 June 2023 limited the assessment of impairment to “left upper extremity (including amputation and CRPS) and scarring”. The referral did not include any assessment of the left wrist, left elbow and/or left shoulder independent of any CRPS assessment;
(p) Mr French had undergone an amputation of the left little finger. The Medical Assessor assessed impairment of the left wrist, left elbow and left shoulder and in doing so fell into error. This was considered by the Medical Appeal Panel in Flavorien Pty Limited v Timothy Yates [2021] NSWWCCMA 39 at paragraph 68: “… the only referral to the AMS was for a chronic regional pain syndrome in the right arm. There was no other referral in respect of the assessment of this limb”. It was determined by the Medical Appeal Panel that the Medical Assessor had gone beyond the terms of the referral and made an assessment by analogy after having found insufficient evidence to establish CRPS. In addition the Medical Appeal Panel found that the referral to the AMS was for the left shoulder only. The Medical Assessor’s assessment by reference to loss of range of motion in the left elbow and left wrist in addition to sensory symptoms constituted a demonstrable error;
(q) it was not open to the Medical Assessor to assess impairment by reference to loss of motion of the left wrist, left elbow and left shoulder. The MAC contained a demonstrable error having regard to the inclusion of the assessments of impairment of the left wrist, left elbow and left shoulder, and
(r) the MAC should be set aside.
Mr French’s submissions included the following:
(a) at the conciliation conference in the Commission on 17 May 2023, the parties entered into consent orders on the basis Mr French be referred for medical assessment to assess WPI of the left upper extremity, including amputation and CPRS;
(b) in accordance with the COD, the Medical Assessor assessed Mr French in accordance with Chapter 17 of the Guidelines and in so doing he diagnosed
Mr French with CPRS and assessed WPI relevant to the left little finger, left wrist, left elbow, left shoulder as well as scarring;(c) as confirmed in the medical reports obtained on behalf of Mr French and provided in the brief of material sent to the Medical Assessor, the diagnosis of CPRS had been present for at least one year;
(d) the Medical Assessor provided both sufficient reasoning and engaged appropriately with the relevant criteria required pursuant to Table 17-1 of the Guidelines;
(e) the MAC did not conatin any demonstrable errors;
(f) the diagnosis of CPRS and the assessment of WPI were consistent with the terms of reference in the COD agreed to by the parties on 17 May 2023, and
(g) the MAC should be confirmed.
FINDINGS AND REASONS
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.
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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
Assessment of CPRS 1
Paragraph 17.5 of the Guidelines provides:
“Table 17.1 in the Guidelines is to be used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis. It is important to exclude diagnoses that may mimic CRPS, such as disuse atrophy, unrecognised general medical problems, somatoform disorders and factitious disorder. Once the diagnosis is established, assess impairment as in AMA5.
Complex Regional Pain Syndrome Type 1
For Complex Regional Pain Syndrome Type 1 (CPRS 1) to be present for the purposes of assessment:
• the diagnosis has been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement)
• the diagnosis has been verified by more than one examining physician
• other possible diagnoses have been excluded.
• CRPS 1 is to be assessed as follows:
Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1).
Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 provides:
1. Continuing pain, which is disproportionate to any causal event.
2. Must report at least one symptom in each of the following four categories:
· Sensory: reports of hyperaesthesia and/or allodynia.
· Vasomotor: reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry.
· Sudomotor/oedema: reports of oedema and/or sweating increase or decrease and/or sweating asymmetry.
· Motor/trophic: reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin).
3. Must display at least one sign (a sign is only included if it is observed and
documented at the time of the impairment evaluation) at the time of
evaluation in all of the following four categories:
· Sensory: evidence of hyperaesthesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
· Vasomotor: evidence of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry.
· Sudomotor/oedema: evidence of oedema and/or sweating asymmetry.
· Motor/trophic: evidence of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin).
4. There is no other diagnosis that better explains the signs and symptoms.
*A sign is included only if it is observed and documented at time of the impairment evaluation.
Then consider the following in assessing CPRS 1:
• If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS1 may be made.
• Rate the extremity impairment resulting from loss of motion of each individual joint involved.
• Rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA5 Table 16.10a (p 482). Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The maximum value is not automatically applied. The value selected represents the extremity impairment. A nerve value multiplier is not used.
• Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA5, p 604) to obtain the final extremity impairment.
• Convert the final extremity impairment to WPI using AMA5 Table 16.3, (p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity”.
The appellant submitted that the Medical Assessor did not properly engage with the first criteria of Table 17.1 ie, whether Mr French suffered continuing pain which was disproportionate to any causal event. Further, the appellant submitted that the Medical Assessor did not record any sensory symptoms or sudomotor/oedema or motor/trophic symptoms relevant to criteria 2. The criteria of Table 17.1 required a report of hypoesthesia and/or allodynia. The Medical Assessor recorded Mr French complained of pain which did not satisfy the requirement of ‘sensory symptoms’ in criteria 2 of Table 17.1 of the SIRA Guidelines. The appellant argued that similarly, the Medical Assessor did not record any reports of oedema and/or sweating increase or decrease and/or sweating asymmetry.
The Medical Assessor in the MAC under “present symptoms” wrote:
“Mr French complaints of constant pain, ‘pins and needles’ ‘pins and needles’ and cramps in the left hand. He reported changes in colour and a hot/cold burning sensation from the left little finger stump to his left shoulder. He has recurrent cramps and a reduction in his grip strength causing him to drop items.”
The Medical Assessor in the MAC under “Findings on examination” wrote:
“Mr French appeared to be in some discomfort. His height was 188 cm and he weighed approximately 100 kgs. He was informed at the time of examination not to engage in any manoeuvre built could cause harm or injury.
Left Upper Extremity
There was a fine healed surgical scar over the stump and a 2 cm slightly thickened tender scar at the radial border of his left wrist. There was no allodynia but pain on deep palpation of his entire left upper extremity. His left fifth digit was amputated just below the PIP joint. Sensation was reduced in his left hand up to the wrist and almost absent at the radial and ulnar border of the remaining stump. He was able to obtain 60° flexion at the fifth MCP joint and 0° extension. Range of motion of the remaining fingers was within normal limits.
His left wrist movements were slightly variable. I was able to obtain normal ulnar and radial deviation.
Wrist flexion was limited to 30° and extension 50°.
There is normal movement to his left elbow in extension, pronation and supination. Left elbow flexion was slightly limited to 130°. Left shoulder movements were limited as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
180°
110°
Extension
50°
30°
Adduction
50°
30°
Abduction
180°
110°
Internal Rotation
80°
60°
External Rotation
60°
50°
There was a slight colour differential but no change in temperature. There was slight increased perspiration of his left hand compared to the right. There was slight swelling noted as the circumference of his left wrist 0.75 cm greater than the right. The circumference of his left forearm was 0.5 cm greaterthan the left. The circumference of his left upper arm was 1 cm a greater than the right. There were no trophic changes”.
Under “Summary of Injuries and diagnoses”, the Medical Assessor wrote:
“Mr. French suffered a significant crush injury to his dominant left hand while working at CSR on 10 April 2020, resulting in partial amputation of his left little finger. Despite undergoing multiple surgical procedures for repair, the fracture failed to heal, leading to a complete amputation of the finger in December 2020. Post-operative complications manifested as severe pain, swelling, and discoloration, later identified as symptoms of Complex Regional Pain Syndrome (CRPS). He continues to display symptoms and signs consistent with CRPS.”
Under “Reasons for Assessment” the Medical Assessor wrote:
“He has an amputation below the PIP joint equivalent to 80% loss of digit length giving 80% DI (AMA5, Figure 16-7, p 447/ Table 16-4, p 440). This is combined with loss of motion at the MCP joint giving 17% DI for loss of flexion and 5% DI for loss of extension1. In addition, there is total transverse sensory loss of the remaining stump giving 50% DI. The combined digit impairment is 92%, 9% HI or 8% UEI.
In addition, he has a restriction in left wrist motion2 giving 7% UEI, left elbow motion3 giving 1% LIEU and a restriction in left shoulder motion4 giving 13% LUEI.
Based on my clinical findings, he satisfies the diagnostic criteria for CRPS as follows:
1. Sensory: Mr. French has reported deep pain on palpation of his entire left upper extremity and has reduced sensation in his left hand up to the wrist.
2. Vasomotor: There is a slight colour differential but no change in temperature.
3. Sudomotor/Oedema: There is slight increased perspiration of his left hand compared to the right and slight swelling of the left hand.
4. Motor/Trophic: There are no trophic changes, but the range of motion of his left little finger, wrist, elbow and shoulder movements are limited.
The sensory deficit in the left hand and upper extremity is described as reduced sensation up to the wrist and almost absent at the radial and ulnar border of the remaining stump. This indicates a significant impairment in sensory function in those areas. Additionally, he reported discomfort with deep pressure but there was no allodynia. Although he worked as a truck driver, he was relying on the compensatory use of his uninjured right arm and received assistance with heavier tasks. This suggests that he experienced functional limitations and required accommodations to perform his job duties effectively. I have reached the conclusion that the sensory deficit in the left upper extremity corresponds to a grade 3 or moderate impairment, which is equivalent to a 50% sensory impairment according to the American Medical Association's Fifth Edition (AMA5), specifically referencing Table 16-10 on page 482.
The combined upper extremity impairment for loss of motion is 13+8+7+1=27% LUEI is combined with 50% LUEI for sensory loss to give 64% LUEI or 38% WPI.
In addition, he has 1% WPI for minor scarring that is thickened, slight indented and tender.”
The Appeal Panel was satisfied that the Medical Assessor did not properly engage with the first criteria of Table 17.1 that is, whether Mr French suffered continuing pain which was disproportionate to any causal event particularly in view of his finding of “some discomfort” on examination. The Appeal Panel noted that Mr French reported to the Medical Assessor deep pain on palpation of his entire left upper extremity but he did otherwise not report continuing pain. The Appeal Panel also considered that the Medical Assessor did not adequately identify a symptom in the sensory category. He noted that there was no allodynia and there was no report of hyperaesthesiae.
The Appeal Panel was satisfied that the Medical Assessor erred in finding that Mr French satisfied the diagnostic criteria for CPRS 1 as his examination findings did not support such a diagnosis under the Guidelines and Mr French had not reported at least one symptoms in the four categories that is, sensory, vasomotor, sudomotor/oedema and motor/trophic. Further, the Appeal Panel was satisfied that on examination Mr French did not display one sign in all of the four categories.
The Appeal Panel was satisfied that the assessment was made on the basis of an incorrect criteria and the MAC contained a demonstrable error.
The Appeal Panel considered that re-examination was necessary as there was insufficient information on which to make a determination.
As noted above, Medical Assessor Burns re-examined Mr French on 22 November 2023. Medical Assessor Burns provided the following report:
“1. The workers medical history, where it differs from previous records.
Mr French confirmed the history taken by Assessor Assem with the following minor clarifications.
· Paragraph 3 of the history he reported that whilst his physiotherapist had suspected the presence of CRPS it was his General Practitioner who had referred him to
Dr Wallace, the Pain Management Specialist.· In Paragraph 4 he stated that his left hand had not actually slipped off the rail causing him to fall but that he had not been able to hold onto the rail due to the pain and discomfort caused by his injury.
· Mr French reported that Dr Wallace did propose a spinal cord stimulator trial but after he had researched the spinal cord stimulator treatment on the internet he had declined to go ahead with the trial.
Under the heading “Present treatment” he reported that his has remained unchanged with one addition in that he is now taking multivitamins instead of Vitamin C.2. Additional history since the original Medical Assessment Certificate was performed.
He reported that there has been no change to his physical condition involving his left upper extremity and that his left arm treatment has remained relatively unchanged. He is though currently only seeing his General Practitioner. He reported that he has had no further investigations.
Current symptoms:With respect to his left upper extremity he reported that he continues to have pain and discomfort in his left hand and left arm. He stated that over the region of the left hand he has the following symptoms.
§ He notices that the area around the amputation stump of his little finger is often swollen.
§ He notes discolouration in the hand, which comes and goes. It is mainly across the fingers of the left hand and into the base of the palm.
He reported that there is a significant decrease in wrist movement on the left side compared to the right.
He reports pain in the left wrist on the medial and lateral side as well as over the dorsum and the palmar aspect of the wrist. This pain is constant and is present for 24 hours a day. He states that it is a sharp stinging pain.§ He reports that sometimes the entire hand goes numb or has pins and needles. This involves the entire hand and it not restricted to any particular digits.
With respect to his left forearm he reports occasional muscle spasm. He also gets hot and cold burning sensations in the forearm. With respect to the left elbow he states that it often feels that it is going to lock up without actually doing so.
He reported that he has pain all the way to the shoulder going up the left arm. Again he reports it tends to be a sharp pain with occasional spasms and is stabbing in nature. On clarification he reported that the pain is mostly over the anterior aspect of the shoulder or over the lateral aspect of the shoulder. He reported that he could not remember having any x-rays or scans to investigate his left shoulder and could also not remember any investigations of his left wrist.
Current treatment:
He continues to see his General Practitioner as required. He is no longer seeing Dr Wallace, the Pain Management Specialist since he declined to have the trial of spinal cord stimulator.
He continues to attend physiotherapy twice a week with mostly the use of heat packs and ultrasound. He reported that he has not been given a home exercise program and does not exercise the left arm at all. He reported that the left arm has been up and down since commencing his current treatment 12 months ago but there has been no long term benefit from physiotherapy.
He currently takes Panadeine Forte 2 tablets twice a day and has done so for 2 years. He also takes Diazepam 5mgs twice a day. Between times he uses Panadol or Nurofen as required. He is also taking anti-depressants.3. Findings on clinical examination
Mr French was 188cms tall and weighed 101.2kgs. He was noted to walk with a normal gait.
Examination of both shoulders revealed no evidence of tenderness on the right side but mild tenderness laterally and anteriorly on the left side and also into the pectoral muscles on the chest. Active range of movement in both shoulders was measured using a goniometer.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 110° |
| Extension | 70° | 40° |
| Adduction | 60° | 30° |
| Abduction | 180° | 100° |
| Internal Rotation | 80° | 70° |
| External Rotation | 80° | 70° |
Examination of both elbows revealed no evidence of tenderness on the right side and none of the left side at rest. Active range of movement in both elbows was measured using a goniometer.
Elbow Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
140°
130°
Extension
0°
0°
Supination
90°
90°
Pronation
80°
80°
Examination of the left and right wrists revealed no evidence of tenderness on the right side but significant tenderness on the left side. Active range of movement in both wrists was measured using a goniometer.
| Wrist Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 60° | 40° |
| Extension | 75° | 40° |
| Radial Deviation | 15° | 10° |
| Ulnar Deviation | 30° | 25° |
It was noted when examining the right forearm that there was evidence of pre-existing injury in that arm. He stated that this had been the case before the current injury.
Complex Regional Pain Syndrome:From Table 17.1 of the Guidelines I noted the following diagnostic criteria.
A: Mr French reports continuing pain, which involves mostly the left hand, wrist and shoulder. Considering his causal event and his partial amputation of the left little finger his reports of significant sharp pain would be disproportionate to the causal event.
B: With respect to the symptoms, which were reported by Mr French I noted the following.§ Sensory – He did report occasionally hyperaesthesiae in the base of the left little finger and hand. He did not report any symptoms at the current time consistent with allodynia.
§ Vasomotor – Whilst he did not report any temperature asymmetry in the left hand or arm he did report skin colour changes mostly over the left hand.
§ Sudomotor/Oedema – He reported ongoing swelling over the base of the left little finger and into the left hand. He also reported increased sweating in the left hand.
§ Motor/Trophic – He reported decrease in range of movement in the left wrist and also in the left elbow and shoulder.
C: On physical examination today the following findings were noted.
§ Sensory – There was no evidence of hyperalgesia with monofilament testing. If anything he reported a decrease in sensation not an increase. To light touch there was also no reports of allodynia. On deep somatic pressure over the hand, wrist and forearm he again did not report any evidence of allodynia.
§ Vasomotor – On todays examination there was no evidence of temperature asymmetry and or asymmetric skin colour changes.
§ Sudomotor/Oedema – There was evidence of oedema at the base of the little finger on the left hand and also going up into the region of the left wrist. When taking off his watch band I noted significant oedema around the area of the band. I also noted that there was sweating asymmetry with slightly more sweating on the left hand and palm than the right hand.
§ Motor/Trophic – There was evidence of a decreased range of movement in both the right wrist, right elbow (to a lesser extent) and the right shoulder. There was no evidence of trophic changes in the hair nail or skin.
D: With respect to the injury to the left shoulder I note that his range of movement and physical examination findings were consistent with mild impingement and a possible rotator cuff injury. This would certainly explain his current symptoms in the left shoulder and would be compatible with the type of injury he sustained when pulling his hand out of the machine. Unfortunately he appears to have had no investigations or significant treatment of his left shoulder.
I also carried out grip strength testing with the use of a Dynamometer and on the right side his grip strength was 34kgs. On the left side it was 16kgs. Whilst gripping of the dynamometer with his left hand he did not report any evidence of severe pain but only mild tenderness.4. Results of any additional investigations since the original Medical Assessment Certificate
He reported having no further investigations.”
The Appeal Panel has adopted the report and findings of Medical Assessor Burns. The Appeal Panel agreed with the assessment made by Medical Assessor Burns in this matter.
The Appeal Panel considered that the continuing pain and discomfort, which was occurring in his left hand and wrist did appear to be disproportionate to his initial casual event. The Appeal Panel accepted that in respect of his reported symptoms, Mr French had criteria, which had occurred in the past and reported the day of consultation, in all four categories in Table 17.1 of the Guidelines. However, at the physical exmaintaion by Medical Assessor Burns, Mr French had physical signs in categories of Sudomotor/Oedema and Motor- Trophic. There was no evidence of physical signs in the examination by Medical Assessor Burns in the sensory and vasomotor categories.
Based on the findings made by Medical Assessor Burns in his physical examination,
Mr French would fulfill the criteria under the Budapest Criteria for clinical Complex Regional Pain Syndrome because he had symptoms in all 4 categories and had physical signs in at least 2 of the 4 categories. However, under the Guidelines criteria in Table 17.1, Mr French did not meet the criteria for Complex Regional Pain Syndrome for assessment as he only had physical findings today in 2 of the 4 categories and does not have physical signs in all 4 categories.The Appeal Panel noted that the appellant submitted that the Medical Assessor assessed impairment which was outside the scope of the referral in assessing the left wrist, left elbow and/or left shoulder independent of any CRPS assessment.
The Appeal Panel noted that Mr French was referred to the Medical Assessor following the issue of a Certificate of Determination - Consent Orders, on 17 May 2023. The Certificate of Determination and the Referral for Assessment of Impairment to Medical Assessor issued by the Commission on 2 June 2023 limited the assessment of impairment to “left upper extremity (including amputation and CRPS, if applicable) and scarring”.
The Appeal Panel considered that the use of the words “left upper extremity (including amputation and CRPS)” did not restrict the referral to merely an assessment of permament impairment resulting from the amputation and CPRS in the left upper extremity. The terms of the referral permitted an assessment of the whole of the left upper extremity including the amputation and CPRS and the assessment was not restricted to to permament impairment resulting from only the amputation and CPRS. The inclusion of particular conditions does not operate as a restriction on assessment of permanent impairment in the left upper extremity.
The Appeal Panel calculated permament impairment based on the examination findings made by Medical Assessor Burns as follows:
(a) the left little finger with amputation, decreased sensation and range of movement would give 8% upper extremity impairment;
(b) with respect to loss of range of motion in the left wrist 10% upper extremity impairment;
(c) with respect to loss of motion in the left elbow there was 1% upper extremity impairment, and
(d) with respect to the left shoulder with respect to loss of range of motion there was 12% upper extremity impairment.
The assessments of upper extremity impairment resulted in 17% WPI . A further 1% WPI for scarring was combined with 17% WPI which resulted total of 18% WPI.
In conclusion, the Appeal Panel considered that the assessment was made on the basis of incorrect criteria and there was a demonstrable error in the Medical Assessor’s assessment. The Appeal Panel reviewed that matter and has made an assessment of 18% WPI as a result of the injury on 10 April 2020.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 July 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W1508/23 |
Applicant: | Adam French |
Respondent: | CSR Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Mohammed Assem and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) | ||
| 10/04/20 | Chapter 2 | Figure 16-21, p 461; Figure 16-23, p 462; Figure 16- 25, p 463-464; Figure 16-28, p 467; Figure 16-31, p 469; Figure 16- 34, p 472; Figure 16-37, p 447; Figures 16-40, p 476; Figures 16-43, p 477; Figures 16- 46, p 478-479 | 17% | 0 | 17% | ||
| 10/4/21 | TEMSKI | 1% | 0 | 1% | |||
| Total % WPI (the Combined Table values of all sub-totals) | 18% | ||||||
0
4
0