Campbell v Star Electrical Company Pty Ltd
[2024] NSWPICMP 172
•22 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Campbell v Star Electrical Company Pty Ltd [2024] NSWPICMP 172 |
| APPELLANT: | Warwick Campbell |
| RESPONDENT: | Star Electrical Company Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 22 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) based his assessment on incorrect criteria and thereby made an error by not assessing the appellant’s permanent impairment by reference to the criteria of paragraph 17.5 of the Guidelines; whether MA made any finding with respect to the appellant’s sensory deficit; whether MA erred by not detailing what tests he conducted to make his findings from examination; whether the MA erred by not including any rating for scarring in his assessment of the appellant’s permanent impairment; Appeal Panel found that MA’s findings with respect to hyperalgesia and allodynia were ambiguous, but the MA specifically found that the appellant did not have any temperature asymmetry or asymmetry of skin colour, and hence the appellant did not exhibit a vasomotor sign during examination and the MA accordingly could not confirm a diagnosis of CRPS so as to assess the appellant’s permanent impairment based on CRPS; Appeal Panel held that a presumption of regularity applied to the MA’s assessment such that it is presumed the MA undertook all necessary tests to assess the appellant’s permanent impairment, and the appellant had not rebutted that presumption; the appellant’s claim for compensation for permanent impairment did not include any component for scarring, and the MA was consequently not required to assess scarring; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 November 2023 Warwick Campbell, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 October 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 for 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 (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 appellant commenced employment in 2016 as a leading hand with Star Electrical Company Pty Ltd, the respondent. On 7 September 2018 he and a colleague were transporting a switchboard. The appellant in a statement signed on 7 September 2023 said that switchboards were heavy and at times could weight up to two tonnes.
Whilst the appellant and his colleague were transporting a switchboard on 7 September 2018 the appellant lost his footing and the switchboard fell on top of his right ankle, crushing it and resulting in a displaced weber type C fracture. The appellant was transported by ambulance to the John Hunter Hospital where orthopaedic surgeon Dr Stuart Mackenzie reduced the fracture and internally fixed the appellant’s ankle. The appellant subsequently had numerous surgeries on his right ankle. He ultimately came under the care of pain management specialist Dr Mark Russo, who performed sympathetic blocks and radio-frequency neurotomies of the saphenous nerve.
In January 2021 the appellant ceased his employment because of pain he was suffering. The appellant also has developed a tremor in his right leg following nerve ablations Dr Russo performed. Dr Russo diagnosed the appellant had chronic regional pain syndrome.
At the request of his solicitors, the appellant was examined by orthopaedic surgeon Dr Leon Kleinman on 3 November 2023. Dr Kleinman advised the appellant’s solicitors on various matters relating to the appellant’s injury in a report dated 3 November 2023. His advice included that the appellant met the criteria for a diagnosis of complex regional pain syndrome affecting his right ankle and that the appellant’s permanent impairment from his injury was 22% whole person impairment (WPI).
The appellant claimed compensation for permanent impairment from his injury, relying on that report of Dr Kleinman. The respondent’s solicitors thereupon arranged for the appellant to be examined by orthopaedic surgeon Dr David Hale on 5 May 2023. In a report dated 5 June 2023 addressed to the respondent’s solicitors Dr Hale advised that he diagnosed the appellant had residual stiffness following a crush injury and right ankle fracture and that the appellant had complex regional pain syndrome type 1 relating to his right foot and ankle and had low back pain. Dr Hale further advised he assessed the appellant had 13% WPI from his injury.
On 5 July 2023 the respondent’s solicitors wrote to the appellant’s solicitors advising them that the respondent offered to pay the appellant compensation of $30,010 for 13% WPI resulting from his injury. It enclosed a report of Dr Hale dated 5 June 2023 with its letter of offer.
That offer was not accepted by the appellant and the appellant instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment from his injury. A delegate of the President of the Commission referred the matter to the Medical Assessor on 1 September 2023. The body part that was listed in that referral for the Medical Assessor to assess was specified as “right lower extremity (ankle)”.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor examined the appellant on 19 September 2023 in order to conduct his assessment. As said the Medical Assessor issued the MAC on 30 October 2023. Under the heading “findings on physical examination” the Medical Assessor recorded the following:
“On examination Mr Campbell walked holding his foot in an externally rotated position. Trendelenburg’s test was normal. Toe stance was not possible heel stance was. The circumference of the calves was 36cm on the right and 37cm on the left. There was a 13cm well healed incision laterally over the fibula. Range of motion in the ankles was as follows:
Movement
Right
Left
Dorsiflexion
100
200
Plantar flexion
30°
500
Inversion
100
200
Eversion
50
100
Peripheral pulses were intact. There was no temperature or colour asymmetry between the feet. There were trophic changes of all of the nails bilaterally. There was no objective sensory disturbance to light touch. There was hypersensitivity medial and distal to the medial malleolus.”
Within part 10c of the MAC the Medical Assessor, when comparing his assessment with the assessment Dr Hale made, repeated that he did not detect any evidence of temperature asymmetry or skin colour when examining the appellant. He also said that he did not detect oedema or sweating asymmetry.
The Medical Assessor recorded in the MAC that the appellant’s current symptoms included severe pain inside the medial aspect of his ankle with hypersensitivity, disturbed sleep and night sweats, an uncontrollable tremor in his leg, and only being able to walk 200 to 300 metres due to pain in his ankle.
The Medical Assessor assessed the appellant had 4% WPI from his injury. His assessment was based on the restricted range of motion he found the appellant had of his right ankle. The Medical Assessor said that “I did not make findings according to SIRA page 81, Table 17.1 to satisfy the criteria of a diagnosis of complex regional pain syndrome”. The Medical Assessor’s reference to SIRA is a reference to the Guidelines. The Medical Assessor said that he did not make that diagnosis because he was unable to “detect evidence of temperature asymmetry or skin colour, nor oedema or sweating asymmetry”.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel considers the material before it is sufficient to determine the appeal.
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.
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 did not outline the necessary criteria for assessment of permanent impairment relating to complex regional pain syndrome and did not detail his findings from his examination with respect to those criteria. The appellant submitted that the Medical Assessor provided a partial summary which was insufficient to “test his conclusion”. The appellant submitted that there was no finding relating to his sensory deficit. The appellant submitted that “any sensory component” should have been combined with loss of range of movement, as Dr Kleinman had done. The appellant submitted that what the Medical Assessor recorded in the MAC is not adequate to establish whether or not there was a peripheral nerve injury as other assessors had determined.
The appellant submitted that the Medical Assessor made no assessment of scarring.
The appellant submitted that the Medical Assessor failed to adequately explain his reasons for his assessment and failed to apply the relevant guidelines correctly.
The appellant submitted that the Medical Assessor made no comment on the appearance of his foot when compared to his left foot. The appellant submitted that the Medical Assessor did not state what he did to determine whether there was any temperature difference. The appellant submitted that the Medical Assessor did not state what he did in order to assess no asymmetry and sweating. The appellant submitted that the Medical Assessor did not state what he did to test whether there was a nerve injury.
In reply, the respondent submitted that the Medical Assessor directly addressed the diagnostic criteria in Table 17.1 of the Guidelines. The respondent submitted that the Medical Assessor’s findings from his examination revealed that the criteria of Table 17.1 were not met. The respondent noted that Dr Kleinman had not made any comment in his report relating to the methods adopted to determine temperature difference or sweating.
The respondent submitted that it is clear that the Medical Assessor did not identify an objective sensory disservice sufficient to give rise to a sensory impairment.
The respondent submitted that Dr Kleinman assessed the appellant had 0% WPI relating to scarring. Given that, the appellant has not made a valid claim for impairment from scarring.
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.
Paragraph 17.5 of the Guidelines stipulate the criteria that must be met for an injury to be diagnosed as complex regional pain syndrome (CRPS)s 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 the Guidelines relating to a diagnosis of CRPS are contained in paragraph 17.5 of the Guidelines, and they are demanding and must be strictly applied.[1] The reasoning of the Medical Assessor should demonstrate how the several criteria are or are not met when determining whether a worker meets the requirements for a diagnosis of CRPS.
[1] 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.
The Medical Assessor in this case did not specifically address each criterion. The Medical Assessor did not when describing the appellant’s present symptoms detail whether the appellant reported experiencing or not experiencing each of the symptoms listed in section 2 of Table 17.1. Further the findings the Medical Assessor recorded with respect to the first bullet point of section 3 of Table 17.1, specifically whether there was evidence of hyperalgesia and/or allodynia, were ambiguous. That is the Medical Assessor found hypersensitivity medial and distal to the medial malleolus of the appellant’s right ankle but also said he found no objective sensory disturbance to light touch.
The Medical Assessor also did not expressly indicate that the diagnosis of CRPS had been present for at least one year, and whether the diagnosis had been verified by more than one examining physician. The evidence before the Medical Assessor nevertheless established these criteria had been met.
The Medical Assessor did not exclude other possible diagnoses.
Irrespective however of the Medical Assessor not positively identifying whether all criteria specified within paragraph 17.5 of the Guidelines had been met, the findings that the Medical Assessor did expressly record in the MAC were sufficient to determine that a diagnosis of CRPS could not be confirmed. This is because all the criteria of part 3 of Table 17.1 were not met. Part 3 of Table 17.1 requires at least one sign of each of the four categories listed within that part to be present. The Medical Assessor clearly detailed in the MAC that he found the appellant did not have any temperature asymmetry or asymmetry of skin colour, and hence there was no vasomotor sign displayed by the appellant on examination. Further the Medical Assessor expressly said that he found the appellant had no oedema or sweating asymmetry and hence the appellant did not exhibit the sign of sudomotor/oedema at examination.
Consequently, the first of the dot point of the matters listed in paragraph 17.5 of the Guidelines could not be made. That is a diagnosis of CRPS could not be made in accordance with the criteria of Table 17.1.
With respect to the appellant’s submission that it is unknown what the Medical Assessor did to establish the appellant did not have asymmetry of temperature and sweating and colour and did not have oedema, the Appeal Panel notes that the assessment a Medical Assessor makes of a workers’ permanent impairment is an administrative task and consequently there is a presumption of regularity that the Medical Assessor has attended to all matters necessary to undertake the task of assessing a workers’ permanent impairment.[2] It is likely, it seems to the Appeal Panel, that the Medical Assessor would have established from his observation of the appellant during examination that the appellant did not exhibit asymmetry of temperature, sweating or colour and did not present with oedema. In any event, the appellant has not pointed to any matter that rebuts the presumption of regularity that applies.
[2] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]; Jones v The Registrar WCC [2010] NSWCA 481 at [50].
The Appeal Panel also considers that the Medical Assessor, being unable to confirm the diagnosis of CRPS, was correct to adopt the restricted range of motion of the appellant’s right ankle as the method to assess the appellant’s permanent impairment. Given the nature of the appellant’s injury and its effect on the appellant, that was the most appropriate method. That being the case, the Medical Assessor was correct, in accordance with Table 17-2 of AMA 5, not to combine any sensory impairment, that is impairment due to a peripheral nerve injury, with the impairment he assessed the appellant to have from restricted range of motion of his ankle.
The Medical Assessor was also correct not to assess any impairment the appellant may have had due to scarring. That was not one of the matters that had been referred to the Medical Assessor to assess, nor did the appellant claim compensation for permanent impairment due to scarring. There was no medical dispute arising from the appellant’s claim regarding the appellant’s scarring that the Medical Assessor was required to assess.[3]
[3] Skates v Hills Industries Limited [2021] NSWCA 142 at [46].
For these reasons, the Appeal Panel has determined that the MAC issued on 30 October 2023 should be confirmed.
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