Bawa v South Eastern Sydney Local Health District

DETERMINATION OF APPEAL PANEL
CITATION:	Bawa v South Eastern Sydney Local Health District [2023] NSWPICMP 1
APPELLANT:	Gurleen Bawa
RESPONDENT:	St George Hospital
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	9 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor (MA) should have made a diagnosis that the appellant had complex region pain syndrome (CRPS) and assessed appellant’s permanent impairment by reference to Table 17-1 of the Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 (Table 17-1) Criteria); MA did not address all criteria in Table 17-1 within the Medical Assessment Certificate (MAC); consequently MAC contained a demonstrable error; appellant re-examined and findings from that re-examination revealed appellant did not have symptoms in each of the four categories of step 2 of Table 17-1 or signs in each of the four categories of step 3 of Table 17-1; accordingly a diagnosis of CRPS could not be made; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 April 2022 Gurleen Bawa, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 March 2022.
The medical dispute that the President of the Personal Injury Commission (the Commission), through his delegate, referred to the Medical Assessor to assess related to the degree of permanent impairment of the appellant from an injury she suffered on 18 July 2016. The injury happened while the appellant was working as a registered nurse for her employer, who is described as St George Hospital, the respondent[1]. The injury occurred as a result of an obese bedbound patient pulling and rolling onto the appellant’s left upper extremity while the appellant was attending to the patient.
[1] It seems, consistent with s26(1) and Pt 1 of Sch 1 of the Government Sector Employment Act 2013 and s116 of the Health Services Act 1997, that the correct description of the appellant’s employer is the Secretary of the Ministry of Health.
By way of a letter dated 18 November 2019, the appellant’s solicitors notified the respondent’s solicitors that the appellant claimed compensation from the respondent in the amount of $76,410 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 29% whole person impairment (WPI) from her injury. The appellant’s solicitors indicated in their letter that the appellant relied upon a report of Dr Uthum Dias dated 6 November 2019. The Appeal Panel observes that Dr Dias is an occupational physician who examined the appellant on 6 November 2019 at the request of her solicitors and who diagnosed the appellant as having 5% WPI of her cervical spine and 25% WPI due to Complex Regional Pain Syndrome (CRPS) from her injury. Those two impairments combined to 29% WPI.
The respondent’s solicitors thereupon organised for the appellant to be examined by occupational physician Dr Andrew Keller on 5 February 2020. On 6 February 2020 Dr Keller issued a report to the respondent’s solicitor in which he advised that the appellant did not meet the criteria for a diagnosis of CRPS with respect to her left upper extremity. He advised that he had assessed the appellant had 0% WPI relating to her left upper extremity and 0% WPI relating to her cervical spine.
On 20 March 2020 the respondent’s insurer wrote to the appellant notifying her under s 78 of the Act that it disputed liability for her claim. It advised her that it considered that Dr Dias had not made his assessment with respect to her permanent impairment due CRPS in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines). It advised her that, in any event, it preferred the opinion of Dr Keller who had assessed her as having 0% WPI.
After reviewing its decision under s 287A of the Act, on request from the appellant, it wrote to the appellant on 29 July 2020 confirming its decision.
On or around 15 July 2021 the appellant initiated proceedings in the Commission seeking determination of her claim against the respondent for payment of compensation under s 66 of the 1987 Act. The matter was referred to Member Elizabeth Beilby, who, with the consent of the parties, remitted the matter to the President so that it could be referred to the Medical Assessor to be assessed “for whole person impairment of the cervical spine, left upper extremity as pleaded”. The Appeal Panel observes that within the Application to Resolve a Dispute (ARD) that the appellant lodged with the Commission to initiate the proceedings in the Commission she described her injury as consisting of “left shoulder injury, neck injuries and Complex Regional Pain Syndrome”. She particularised that she had a total WPI of 29%. In the documents she attached to the ARD she included the report of Dr Dias of
6 November 2019 thereby indicating the composition of her permanent impairment from her injury was as assessed by Dr Dias.
Consistent with the direction Member Beilby made, a delegate of the President referred the medical dispute between the parties relating to the degree of the appellant’s permanent impairment from her injury to the Medical Assessor. The dispute was described in an amended referral dated 11 March 2022 in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the degree of permanent impairment of the worker as a result of an injury
(s319(c))
 whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 18 July 2016
Body part/s referred: Cervical Spine, Left Upper Extremity
Method of assessment: Whole Person Impairment”
(Underlining as per original)
Medical Assessor Berry certified in the MAC that he assessed the appellant had 14% WPI from her injury, comprising 5% WPI for her cervical spine and 9% WPI for her left upper extremity. Medical Assessor Berry did not consider the appellant met the criteria specified within the Guidelines for CRPS, and it is this issue that is the subject of the appellant’s appeal.
The appellant relies on the grounds for appeal listed in s 327(3)(c) & (d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), being respectively that the assessment was made on the basis of incorrect criteria and that the MAC contains a demonstrable error. A delegate of the President was satisfied that, on the face of the appellant’s application, at least one ground for appeal has been made out and consequently the appeal proceeded to the Appeal Panel to be heard.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006. The Appeal Panel has the conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.

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 WorkCover Medical Assessment Guidelines 2006. As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the MAC did contain a demonstrable error and consequently the Appeal Panel would need to reassess the medical dispute. The error that the Appeal Panel identified in the MAC was such that in order for the Appeal Panel to reassess the medical dispute it would need to examine the appellant again. The Appeal Panel appointed one of its members, Medical Assessor Roger Pillemer, to conduct that examination. Medical Assessor Pillemer’s report on his examination is set out below under Findings and Reasons.

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.

MEDICAL ASSESSMENT CERTIFICATE

As noted above, the issue raised in this appeal relates to the Medical Assessor concluding that the appellant did not meet the criteria set out within Chapter 17 of the Guidelines for making a diagnosis of CRPS. Relevant to that, the Medical Assessor obtained the following history regarding the appellant’s present symptoms:
“Mrs Bawa complained of continuing pain in the neck. She continues to suffer from jaw pain. She developed low back pain over the last 12 months but has no radiation over the lower limbs. She has gained excessive weight and underwent a sleeve gastrectomy in 2017. She also developed stomach ulcers and last year underwent biliary diversion surgery which did not help.”
With respect to the appellant’s left upper extremity the Medical Assessor recorded that he found that the appellant had restricted range of movement at her left shoulder. He detailed the extent of the motion of the appellant’s left shoulder in a worksheet attached to the MAC which included his ratings for the appellant’s left upper extremity impairment consequent upon that restriction. When all components were added, the result was that the appellant had 15% left upper extremity impairment, which translated to 9% WPI. The Medical Assessor recorded that the appellant had normal motion of her right shoulder and both elbows and both wrists. He recorded that the appellant was tender in the medial forearm of both arms just below the elbow but he did not observe any signs of medial epicondylitis. He recorded that he found the appellant had no circulatory changes and that her sensory changes were diffused and not related to one arm or the other.
With respect to his finding that the appellant did not meet the criteria for CRPS the Medical Assessor provided the following explanation in the MAC:
“The patient has been left with multiple complaints and she has been diagnosed as having a chronic regional pain syndrome affecting the left upper limb. I refer you to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition, Table 17.1 on page 81 (Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2) and the patient has:
o continuing pain which is disproportionate to any causal event
o she does not show sensory hyperaesthesia or allodynia;
o there is no vasomotor changes
o there is no sudomotor or oedema changes and
o decrease movement only affects the shoulder.
 She therefore does not satisfy the criteria for a chronic regional pain syndrome
Number 1.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor failed to explain adequately his path of reasoning for why he did not diagnose the appellant had CRPS. The appellant submitted that the Medical Assessor did not address all of the relative criteria for diagnosing whether she had CRPS. The appellant submitted that the Medical Assessor’s examination was insufficient to assess whether she fulfilled the criteria for a diagnosis of CRPS. The appellant submitted that the Appeal Panel should prefer the findings that Dr Dias made from his examination of the appellant and some of the findings that Dr Keller made from his examination of the appellant.
In reply, the respondent submitted that the Medical Assessor found that the appellant had no sensory hyperaesthesia or allodynia, vasomotor changes or sudomotor or oedema changes in her left upper extremity and only found that she had decreased movement affecting her left shoulder. The respondent submitted that that is evident from the fact that the Medical Assessor recorded that the appellant had no circulatory changes and that her sensory changes were not related to one arm or the other. The respondent submitted that the Medical Assessor did not find at least one symptom or sign in respect of sensory, vasomotor or sudomotor/oedema changes and consequently the Medical Assessor did not make an error in diagnosing the appellant did not have CRPS.
The respondent submitted that the Medical Assessor provided adequate reasons to explain his opinion. The respondent submitted that the Medical Assessor correctly identified the criteria to be met for a diagnosis of CRPS and explained that the symptoms and signs were not present to enable a diagnosis of CRPS.
The respondent submitted that there was no obligation for the Medical Assessor to accept the opinion of Dr Dias or Dr Keller and that his obligation was to assess the appellant as she appeared before him and to record his findings so as to establish whether the appellant did or did not meet the criteria for CRPS. The respondent submitted that the Medical Assessor adequately did this.

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.
The Guidelines at [17.5] stipulate the criteria that must be met for an injury to be diagnosed as CRPS for the purpose of rating a worker’s permanent impairment from such an injury. They are:
“For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment:
·the diagnosis is to be confirmed by criteria in Table 17.1
·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.
·CRPS1 is to be assessed as follows: Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1).”
Table 17.1 reads as follows:
“Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2

1. Continuing pain, which is disproportionate to any causal event.

2. Must report at least one symptom in each of the four following categories:

· Sensory: Reports of hyperaesthesiae 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* at time of evaluation in all of the following four categories:

· Sensory: Evidence of hyperalgesia (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 asymmetric skin colour changes.

· Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry.

· Motor/trophic: Evidence of decreased active joint range of 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.”

The criteria of Table 17-1 are demanding and must be strictly applied.[2]
[2] Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 at [41], cited with approval in Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125 (Windley) and Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC 1088.
A Medical Assessor is required to address the criteria set out within Table 17-1 in a step by step or specific manner. The reasoning of the Medical Assessor must demonstrate how the several steps of Table 17-1 are or are not met when determining whether a worker meets the requirements for a diagnosis of CRPS.[3]
[3] Windley at [55]-[59].
The MAC does not demonstrate that the Medical Assessor fulfilled that task with respect to his assessment of the appellant’s permanent impairment. His findings from his examination of the appellant’s left upper extremity do not indicate he considered each of the criteria set out in Table 17- in a step by step or specific manner. Nor does his explanation for concluding that the appellant did not satisfy the criteria of Table 17-1. He did not address each of the symptoms in step 2 of Table 17-1 nor did he address each of the signs in step 3 of Table 17-1.
That was an error on the part of the Medical Assessor such that the MAC contained a demonstrable error.
As mentioned much earlier, the Appeal Panel having found an error in the MAC considered it was necessary for Medical Assessor Pillemer to examine the appellant and report to it on his examination. His report to the Appeal Panel is as follows:
“1. The workers medical history, where it differs from previous records
I read Ms Bawa the history taken by Dr M A Berry at the time of his consultation on 8 March 2022 and she agreed with all the entries.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Bawa feels that symptoms have deteriorated significantly since the MAC was carried out in March of this year, in that she had jaw pain present and she feels this has become very much worse, and involves both sides of her jaw and her teeth, and she has to press against her teeth through her cheeks to try and get some relief which can actually cause bleeding. She also has severe discomfort in her eyes and severe headaches which are present ‘24/7’. She also has severe neck pain which is also described as being constant, and symptoms range between ‘6-11/10’.
She also complains of pain in both arms, her shoulder regions and also in the elbows and upper forearm regions, with no particular radiation of symptoms down her arms, and no symptoms in her hands.
She also complains of problems in her lower limbs, and she has varicose veins and gets clots, and has a feeling of ‘burning’ in her right thigh region.
Since she last saw the MA she has given birth to her second child at the end of August.
Ms Bawa informs me that all of her symptoms have severely affected her relationship in many ways, and she is crying all the time, and she cannot laugh of smile because this hurts.
3. Findings on clinical examination
Ms Bawa once again showed some restriction of cervical movement and there was also some restriction of left shoulder movement as noted by the MA in his assessment. There was guarding in her left trapezius. There is a good range of movement of the right shoulder and both elbows, and good grip strength was present bilaterally.
She again complains of discomfort in the extensor aspect of both upper forearm regions below her elbows noted by the MA.
Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2
Please note that in order to make a diagnosis of CRPS the patient must have signs and symptoms in each of the categories of Table 17.1. Ms Bawa does not have these.
1.   Continuing pain, which is disproportionate to any causal event.
As noted Ms Bawa does have continuing widespread pain which is certainly disproportionate to any causal event.
2.   Must report at least one symptoms in each of the four following categories:
·    Sensory: Reports of hyperaesthesia and/or allodynia
She does not report any symptoms of hyperaesthesia or allodynia.
·    Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry
She does not have any asymmetry of temperature or skin colour changes, or colour asymmetry.
·    Sudomotor/oedema: Reports of oedema and/or sweating increase of decrease and/or sweating asymmetry.
She does feel that she has swelling of both legs at this stage associated with varicose veins. There is no suggestion of any increased sweating 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).
As noted, she does have restriction of cervical movement and left shoulder movement.
3.   Must display at least one sign at time of evaluation in all of the following four categories:
·    Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
There was no evidence of hyperalgesia or allodynia and as noted she does have hypoaesthesia to pinprick over the anterolateral aspect of her right thigh in keeping with meralgia paraesthetica.
·    Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes.
There was no evidence of temperature asymmetry or asymmetric skin colour changes.
·    Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry.
She does have slight swelling of both legs.
·    Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail skin).
As noted, there was decreased range of motion of the cervical spine with guarding in her left trapezius, but no trophic changes in hair, skin or nails.
4. Results of any additional investigations since the original Medical Assessment Certificate
Ms Bawa has not had any further investigations carried out since the original Medical Assessment Certificate.”

The Appeal Panel adopts the findings of Medical Assessor Pillemer. Based on those findings, the appellant does not meet the requirements of Table 17.1 to be diagnosed as having CRPS. She does not have symptoms in each of the four categories of step 2 of Table 17-1. She does not have signs in each of the four categories of step 3 of Table 17-1.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 March 2022 should be confirmed.
The Appeal Panel also observes that within Table 2 appended to the MAC the Medical Assessor inserted the numeral 5 with respect to whether there was to be a deduction under
s 323 with respect to the assessment he made of the appellant’s impairment relating to the cervical spine. Given what the Medical Assessor said in the MAC relating to his assessment of the appellant’s impairment with respect to her cervical spine, what he inserted in the Table is an obvious error. That is something other than a demonstrable error. It is also not an error that was raised by either party, and hence the Appeal Panel cannot correct it.[4] That obvious error can however, if the parties so want, be corrected by the President, no doubt through a delegate.
[4] Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]-[35].

[2023] NSWPICMP 1

9 January 2023