Clarke v The Trustee for Linisi Family Trust & the Trustee for Norrie-Douch Family Trust & the Trustee for W J Ross Family Trust

DETERMINATION OF APPEAL PANEL
CITATION:	Clarke v The Trustee for Linisi Family Trust & The Trustee for Norrie-Douch Family Trust & The Trustee for W J Ross Family Trust [2024] NSWPICMP 238
APPELLANT:	Kimberly Clarke
RESPONDENT:	The Trustees for Linisi Family Trust & The Trustee for Norrie-Douch Family Trust & The Trustee for W J Ross Family Trust
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	23 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for injury to the right upper extremity/CPRS; Medical Assessor (MA) erred in making no assessment of scarring as that was part of the medical dispute between the parties; MA assessed CPRS under methodology to be used for CPRS 2 but found the applicant had CPRS 1; Panel satisfied that MA erred in finding CPRS 1 and agreed with his assessment for CPRS 2; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 March 2024 Kimberly Clarke (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Donald Cawthorne, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
6 February 2024.
The respondent to the appeal is The Trustees for Linisi Family Trust & The Trustee for Norrie-Douch Family Trust & The Trustee for W J Ross Family Trust (the respondent).
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 21 November 2023 in which she claimed 32% whole person impairment (WPI) for chronic pain, as a result of the injury to the right arm on
22 January 2021.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated
19 December 2023, details of the referral were set out as follows:
“Date of Injury: 22 January 2021
Body part/s referred: Right upper extremity CPRS
Method of Assessment: Whole Person Impairment.”
The matter was referred to Medical Assessor, Dr Cawthorne (the Medical Assessor) for assessment.
The Medical Assessor assessed 28% WPI of the right upper extremity chronic regional pain syndrome (CPRS) as a result of the injury on 22 January 2021.

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 did not request that she be re-examined by a Medical Assessor who is also a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient 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.

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)    ground 1 – no assessment of scarring. Dr Le Leu in his report dated
21 March 2023 stated “In this case we do have two scars complicated by keloid making them a lot more obvious. Using the TEMSKI table (14.1 on page 74 of the Guidelines), I would rate her at 2% WPI”;
(b)    the appellant duly made a claim on the respondent on 15 May 2023 in the sum of $96,140 in respect of 32% WPI pursuant to Dr Le Leu’s report dated
21 March 2023;
(c)    the respondent obtained a report from Dr Richard Powell dated 27 July 2023 which supported an assessment for scarring. Dr Powell with reference to TEMSKI, and on the basis of the keloid appearance to the medial elbow scar, considered the scar as Category III with 2% WPI. He combined his assessment of the right upper extremity/CPRS with scarring to produce 24%WPI;
(d)    the respondent made an offer of settlement dated 4 August 2023 in the sum of $66,310 in respect of 24% WPI pursuant to Dr Richard Powell’s report and assessment dated 27 July 2023;
(e)    an ARD was filed on 21 November 2023 particularising a claim for lump sum compensation in the sum of $96,140 in respect of 32% WPI pursuant to Dr Le Leu’s report and assessment dated 21 March 2023;
(f)    the Medical Assessor provided a MAC in which he assessed 28% WPI re right upper extremity CRPS. The Medical Assessor did not assess scarring (TEMSKI);
(g)    Skates v Hills Industries Ltd [2020] NSWSC 837 (Skates) is authority for the proposition that a medical dispute is identified by the disputants’ competing claims;
(h)    the Medical Assessor’s assessment involved a demonstrable error and was made on the basis of incorrect criteria as there was no assessment for scarring;
(i)    ground 2 - CRPS assessment. Page 7 of the MAC states the following as to why there was no assessment for motor rating for the ulnar and radial nerves: (a) “Dr Leon Le Leu, 21/03/2023, found 32% WPI. My results differ from Dr Le Leu in regard to his diagnosis of CRPS 2 with inclusion of motor rating for the ulnar and radial nerves which was not the finding with my diagnosis, being CRPS type 1. I therefore have not included motor function within the calculation”;
(j)    the evidence supports the inclusion of motor rating for the ulnar and radial nerves (see Dr Le Leu’s report dated 21 March 2023 and Dr Powell’s report dated
27 July 2023);
(k)    the Medical Assessor’s assessment involved a demonstrable error and was made on the basis of incorrect criteria as there was no assessment for motor rating for the ulnar and radial nerves due to a diagnosis of CRPS 2;
(l)    calculation of upper extremity impairment - page 7 of the MAC contains the following assessments: (a) 13% combined with 11% = 23%. 23% combined with 11% = 31%. 31% combined with 10% = 37%. 37% combined with 9% = 43%. 43% combined with 5% = 46% upper extremity impairment as per the Combined Values Charts and 46% upper extremity impairment = 28% WPI as per Table 16-3 on page 439 of AMA-5;
(m)     the Medical Assessor incorrectly used the combined values chart. The calculation should be as follows: (a) 13% combined with 11% = 23%. 23% combined with 11% = 31%. 31% combined with 10% = 38%. 38% combined with 9% = 44%. 44% combined with 5% = 47% upper extremity impairment as per the Combined Values Charts and 47% upper extremity impairment = 28% WPI as per Table 16-3 on page 439 of AMA-5;
(n)    while there is no net difference to the WPI due to this error, this submission is made to assist the Appeal Panel in making the correct calculation if the assessment for motor rating for the ulnar and radial nerves due to a diagnosis of CRPS 2 are included, and
(o)    the MAC should be revoked and the Appeal Panel should issue an Medical Assessment Certificate that includes an assessment for scarring (TEMSKI) and including an assessment for motor rating for the ulnar and radial nerves.
The respondent’s submissions include the following:
(a)    ground 1 – scarring - on 15 May 2023, the appellant made a claim for $96,140 representing 32% WPI and relied on a report of Dr Le Leu. Body parts were not referred to in the letter of claim. In the medical report of Dr Le Leu, he assessed 2%WPI for surgical scarring. The respondent arranged for the appellant to be reviewed by Dr Powell, who also assessed 2% WPI for scarring;
(b)    on 4 August 2023, the respondent made an offer of $66,310 representing 24% WPI which included an assessment of 2% WPI for scarring;
(c)    in the ARD, under injury details, the appellant noted “…During her employment, the Appellant sustained injury in circumstances where she was blow drying a client’s hair when her right arm gave way. Whilst completing this task, the appellant felt a sharp pain in her right arm. The appellant has since been diagnosed with Chronic Regional Pain Syndrome (CRPS) to her right hand, wrist and arm”;
(d)    under “permanent impairment/pain and suffering” in the ARD, we note the following: “Date of Injury 22/01/2021 Systems claimed Chronic Pain”;
(e)    under section 5 in the MAC, findings on physical examination, the Medical Assessor noted the appellant had 2 obvious scars: One 6cm long over the mobile wad and a 5cm scar over the ulnar nerve, both of which were due to her nerve decompression surgery. Under section 10, the Medical Assessor assessed 28% WPI on the basis the appellant was assessed as CRPS 1;
(f)    in Skates, the body parts to be referred had been identified in various ways both in the ARD and other documents. In this case, the letter of claim did not particularise the body parts sought. The appellant only referred to CRPS in the ARD. In addition, the appellant did not seek to amend or correct the referral within the three days allowed by the Commission;
(g)    the Medical Assessor was not requested to provide an assessment for scarring;
(h)    ground 2 - motor rating for the ulnar and radial nerves. Table 17 of the Guidelines provides the diagnostic criteria for CRPS types 1 and 2. If the appellant is found to satisfy CRPS 2, then according to table 17, the appellant would also have assessed the extremity impairment resulting from motor deficits and loss of power of the injured nerve. While the criteria to be met is similar to CRPS 1, if there is objective evidence of an injury to a specific nerve, the diagnosis of CRPS 2 may be made. This will engage rating the extremity impairment due to loss of motion, impairment resulting from sensory deficits and motor deficit;
(i)    in the MAC, the Medical Assessor thought the appellant satisfied CRPS I;
(j)    there is no dispute that the appellant has CRPS;
(k)    Dr Le Leu thought the appellant met the guidelines for CRPS 2. He was satisfied that for CRPS II, there was objective evidence of an injury to a specific nerve. There were two nerves involved. Dr Powell agreed with the diagnosis of Dr Le Leu;
(l)    the Medical Assessor assessed the appellant in accordance with the criteria in Table 17. He did not consider the appellant met the criteria for CRPS II. The MAC should be read as a whole to see if the right decision was made and not combed through line by line with a keen eye looking for an error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259);
(m)     the reasons for the assessment by the Medical Assessor are adequately set out. The MAC recorded the appellant’s history of symptoms, carried out a proper clinical examination of the appellant, considered clinical records, the IME reports and set out reasons for making his assessment;
(n)    read as a whole it is clear that the Medical Assessor has used his clinical judgement on the day of the assessment to appropriately rate the appellant’s impairment, and
(o)    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) of the 1987 Act 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.

Ground 1 – Assessment of scarring

The appellant submitted that the Medical Assessor’s assessment involved a demonstrable error and was made on the basis of incorrect criteria as there was no assessment for scarring.
In the MAC under findings on physical examination, the Medical Assessor noted the appellant had 2 obvious scars: One 6cm long over the mobile wad and a 5cm scar over the ulnar nerve, both of which were due to her nerve decompression surgery.
The Appeal Panel noted that both Dr Powell and Dr Le Leu assessed 2% WPI for scarring.
In his report dated 21 March 2023, Dr Le Leu wrote:
“There was a 6mm surgical wound over the lateral side of the right upper forearm for the radial nerve release and a 7cm surgical wound to the posterior aspect of the right medial epicondyle from the ulnar transposition. There is some keloiding of both scars.
…..
In this case we do have two scars complicated by keloid making them a lot more obvious. Using the TEMSKI table (14.1 on page 74 of the Guidelines), I would rate her at 2% WPI.”
A claim was made on the respondent on 15 May 2023 in the sum of $96,140 in respect of 32% WPI pursuant to Dr Le Leu’s report dated 21 March 2023.
The respondent obtained a report from Dr Richard Powell dated 27 July 2023 in which he wrote:
“There were healed surgical scars over the medial aspect of the right elbow and extensor aspect of the right forearm, with the former having a keloid appearance.” …Scarring is considered with reference to TEMSKI, where on the basis of the keloid appearance to the medial elbow scar, this is considered Category III with 2% whole person impairment.
…..
Thus, the total whole person impairment is obtained by combining the above figures, resulting in 24% whole person impairment.”
The respondent made an offer of settlement dated 4 August 2023 in the sum of $66,310 in respect of 24% WPI pursuant to Dr Richard Powell’s report and assessment dated
27 July 2023.
An ARD was filed on 21 November 2023 particularising a claim for lump sum compensation in respect of 32% WPI.
In the ARD, under injury details, the appellant noted:
“…During her employment, the appellant sustained injury in circumstances where she was blow drying a client’s hair when her right arm gave way. Whilst completing this task, the appellant felt a sharp pain in her right arm. The appellant has since been diagnosed with Chronic Regional Pain Syndrome (CRPS) to her right hand, wrist and arm.”
Under “permanent impairment/pain and suffering” in the ARD the following details were provided: “Date of Injury 22/01/2021 Systems claimed Chronic Pain.”
In the Referral for Assessment of Permanent Impairment to Medical Assessor the body part referred was “Right upper Extremity (CRPS)”.
The parties referred to the decision in Skates, where the worker’s injuries were described in the Application as left wrist, ring finger and scarring. Those injuries were not disputed by the insurer. The lump sum claim in the Application referred to the worker’s left upper extremity, joint ring finger and scarring. The Medical Assessor provided an assessment of 60% WPI because he considered that Mr Skates has an essentially useless left arm as a result of impairments in the shoulder, elbow, fingers and thumb. The wrist was not assessed. The respondent appealed on the grounds that the Medical Assessor had assessed body parts which did not form part of the referral. A MAP acknowledged the terms of the referral, revoked the MAC and assessed 7% WPI.
Mr Skates sought judicial appeal in the Supreme Court and succeeded on the ground that the Medical Assessor had not assessed the worker’s left wrist but agreed that the MAP was correct to revoke the Medical Assessor’s assessment because he had gone beyond the terms of the referral. Although the matter was remitted back to the Commission, Mr Skates sought leave to appeal to the Court of Appeal. The Court granted leave to appeal, set aside the Arbitrator’s post MAC COD and remitted the matter back to Commission for a further assessment that would include Mr Skates left wrist.
Leeming JA made the following observations:
“44. The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ … and
46. The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by
Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”
His Honour continued:
“48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.
49. The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.
50. The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims.”

Therefore, the court determined that the terms of the referral are not restricted to the body parts identified. Rather, the nature of the dispute between the parties must be observed.
The applicant failed to provide full particulars of her claim when she served the report of Dr Le Leu on 15 May 2023. The appellant merely referred to $96,140 in respect of 32% WPI. This is not good practice, but having said that, it was clear from Dr Le Leu’s report that the applicant had 31% WPI of the right upper extremity (CPRS) and 2% WPI for scarring (TEMSKI), for a combined total of 32% WPI. The basis of the applicant’s claim was clear. There was a medical dispute that the parties sought to have resolved in the Commission.
The applicant omitted to plead the scarring in the ARD, and this meant that the referral to the Medical Assessor did not include this component, even though Dr Le Leu’s assessment included scarring (TEMSKI). Of course, the Commission is not a tribunal of strict pleadings and it is not bound by the rules of evidence.
The Appeal Panel is satisfied that scarring was part of the claim that was in dispute and referred to the Medical Assessor. In those circumstances, although scarring was not included in the referral, it should have been assessed by the Medical Assessor. The Appeal Panel finds that the failure to assess the scarring was an error.
Having reviewed the evidence, the Appeal Panel is satisfied that an assessment of 2% WPI for scarring is appropriate. There is no medical evidence to support any contest as to the degree of impairment for an assessment of scarring and having considered the examination findings of the Medical Assessor, Dr Le Leu and Dr Powell, the Appeal Panel assessed 2% for scarring.

Ground 2 – Assessment of CPRS and failure to assess for motor rating of the ulnar and radial nerve

The appellant submitted that the evidence supports the inclusion of motor rating for the ulnar and radial nerves and the Medical Assessor’s assessment involved a demonstrable error and was made on the basis of incorrect criteria as there was no assessment for motor rating for the ulnar and radial nerves due to a diagnosis of CRPS II.
The Appeal Panel noted that CRPS was only diagnosed following surgery on 11 March 2022 involving a right ulnar nerve release and subcutaneous transposition, followed by a right radial nerve neurolysis in the mid forearm.
On page 4 of the MAC, the Medical Assessor made findings in respect of muscle grade power:
“Distal extent of the median nerve: abductor pollicis brevis grade 5 left, grade 4 right.
Distal extent of Ulnar nerve: first dorsal interosseous grade 5 left, grade 4 right.
Distal extent of Radial Nerve: extensor indicis proprius grade 5 left, grade 4 right.”
In the MAC on page 6 under “reasons for assessment “, the Medical Assessor wrote:
“Patient assessed as CRPS 1 In accordance with the SIRA guides 4th edition paragraph 17.5 SIRA Guidelines 4th Edition - Table 17.1 p.88
1. Pain disproportionate to any causal event
2. Reports – allodynia, temperature asymmetry and skin colour changes, sweating asymmetry and decreased range of joint motion
3. Displayed the following signs – allodynia, temperature asymmetry, sweating asymmetry and decreased active joint range of motion
4. No other diagnosis to better explain the signs and symptoms.
Range of motion right shoulder: As per Figures 16-40, 16-43, and 16-46:
Forward flexion 130° = 3% upper extremity impairment
Extension 30° = 1% upper extremity impairment
Abduction 130° = 2% upper extremity impairment
Adduction 30° = 1% upper extremity impairment
Internal rotation 50° = 2% upper extremity impairment
External rotation 60° = 0% upper extremity impairment
Therefore, overall upper extremity impairment for the right shoulder is 9%.
Right elbow: As per Figures 16-34 and 16-37 in AMA-5:
Flexion 110° = 4% upper extremity impairment
Extension 0° = 0% upper extremity impairment
Pronation 70° = 1% upper extremity impairment
Supination 70° = 0% upper extremity impairment
Therefore, right elbow upper extremity impairment is 5%.
Right wrist: As per Figures 16-28 and 16-31 in AMA-5:
Flexion 50° = 2% upper extremity impairment
Extension 20° = 7% upper extremity impairment
Radial deviation 20° = 0% upper extremity impairment
Ulnar deviation 20° = 2% upper extremity impairment
Therefore, right wrist upper extremity impairment is 11%.
Sensory Nerves
as per Table 16-15 on page 492 of AMA-5
Ulnar nerve : Maximum percentage upper extremity impairment due to combined motor and sensory deficit is 50%. In Tables 16-10 and 16-11 the deficit was designated grade 4 at 25%. Therefore total upper extremity impairment for ulnar nerve is 50% x 25% = 12.5% rounded up equals 13% upper extremity impairment.
Radial nerve: Maximum combined motor and sensory deficit radial nerve elbow with
sparing of triceps is 38%. Sensory disturbance noted and considered at grade 4 has a rating of 25%. Therefore, 38% x 25% = 9.5% which equals 10% rounded up upper
extremity impairment.
Median nerve: Maximum combined sensory and motor deficit below the level of the elbow is 45%. Sensory disturbance as per Table 16-10 is considered grade 4 with 25% rating. Therefore, 45% x 25% = 11.25% rounded down to 11% upper extremity impairment.
13% combined with 11% = 23%. 23% combined with 11% = 31%. 31% combined with 10% = 37%. 37% combined with 9% = 43%. 43% combined with 5% = 46% upper extremity impairment as per the Combined Values Charts and 46% upper extremity impairment = 28% WPI as per Table 16-3 on page 439 of AMA-5.”
In commenting on the other medical opinions on page 7 of the MAC, the Medical Assessor wrote:
“Dr Leon Le Leu, 21/03/2023, found 32% whole person impairment. My results differ from Dr Le Leu in regards to his diagnosis of CRPS 2 with inclusion of motor rating for the ulnar and radial nerves which was not the finding with my diagnosis, being CRPS type 1. I therefore have not included motor function within the calculation.
Dr Richard Powell, 27/07/2023, found 24% WPI. The difference in this situation revolves around discrepancy between my range of motion results and his found clinically. There was also a decision to include only sensory nerve maximums in 2 of the 3 peripheral nerves of the hand in Dr Powell’s report compared to my own.”
Dr Le Leu in his report dated 21 March 2023, wrote:
“…Using table 16-10 I would make the following estimations for sensory deficit:
Ulnar nerve: 90%
Radial nerve: 80%
using table 16-11 I make the following estimations for motor deficit:
Ulnar nerve: 50%
Radial nerve: 50%
The impairment determination method requires the use of table 16-15 to get the upper extremity impairment so we have, using table 16-15:
Ulnar nerve above mid forearm: 90% X 7% (sensory) and 50% X 46% (motor). This gives 6% and 23%
Radial nerve with sparing of triceps: 80% X 5% (sensory) and 50% X 36% (motor) This gives 4% and 18%.”
Dr Powell, in his report dated 27 July 2023, wrote “In relation to the ulnar nerve, Ms Clarke had evidence of motor weakness and sensory changes. She had hypersensitivity in the distribution of the radial nerve and median nerve.” In answer to question 4 (on page 6) “Do you agree that the worker has developed CPRS II?” Dr Powell responded “Yes”.
On page 2 of MAC, the Medical Assessor noted:
“An MRI scan was performed which showed that there was no TFCC pathology, however an ultrasound scan of the elbow showed thickening of the ulnar and radial nerves. The treatment plan at that stage was continued non-operative management with physiotherapy although due to no improvement, on 18/03/2022 Ms Clarke underwent an ulnar nerve release and subcutaneous transposition and a radial nerve neurolysis.”
The Appeal Panel notes that although the Medical Assessor appeared to have made a diagnosis of CRPS I, he actually made an assessment in accordance with CRPS II. On page 7 of the MAC, the Medical Assessor, as noted above, wrote:
“Sensory Nerves
as per Table 16-15 on page 492 of AMA-5
Ulnar nerve: Maximum percentage upper extremity impairment due to combined motor and sensory deficit is 50%. In Tables 16-10 and 16-11 the deficit was designated grade 4 at 25%. Therefore total upper extremity impairment for ulnar nerve is 50% x 25% = 12.5% rounded up equals 13% upper extremity impairment. Radial nerve: Maximum combined motor and sensory deficit radial nerve elbow with sparing of triceps is 38%. Sensory disturbance noted and considered at grade 4 has a rating of 25%. Therefore, 38% x 25% = 9.5% which equals 10% rounded up upper extremity impairment.
Median nerve: Maximum combined sensory and motor deficit below the level of the elbow is 45%. Sensory disturbance as per Table 16-10 is considered grade 4 with 25% rating.”
It is seen from the above paragraph that the Medical Assessor made an assessment of impairment due to combined motor and sensory deficits of the ulnar nerve, radial nerve and median nerve, that is, the Medical Assessor included motor deficit in his assessment. The Medical Assessor also made findings made in respect of muscle grade power on page 4 of the MAC, such findings being an assessment of motor function.
The Appeal Panel, therefore, accepts that the Medical Assessor made a diagnosis of CRPS I but assessed impairment by adopting the methodology for assessment of CPRS II and included an assessment for motor deficits.
It is clear that the Medical Assessor made a demonstrable error in finding that the appellant had CPRS I but then assessing impairment under the methodology to be applied for assessment of CPRS II. It is not clear from this error whether the Medical Assessor actually made a diagnosis of CPRS I or CPRS II.
The Appeal Panel reviewed the evidence and are satisfied that there is objective evidence that the appellant had sustained injury to a specific nerve and should be assessed under the methodology to be applied for assessment of CPRS II. The Appeal Panel accepts the opinion of Dr Le Leu that the appellant developed CPRS II following the surgery on 11 March 2022, when she underwent a right ulnar nerve release and subcutaneous transposition and right radial neurolysis. The diagnosis of CPRS II is consistent with the opinions expressed by both Dr Le Leu and Dr Powell.
However, since the Medical Assessor included losses due to motor deficits in his assessment, the error is not a material error and makes no difference to the calculation of impairment for CPRS.
The Appeal Panel notes that the appellant had identified some errors in calculations made by the Medical Assessor. However, such errors make no net difference to the WPI assessed and are only relevant if the Appeal Panel is required to make an assessment of WPI for motor rating for the ulnar and radial nerves. As noted above, an assessment for motor deficits had been included by the Medical Assessor so no further assessment was required.
In summary, the Appeal Panel finds that the Medical Assessor erred in not making an assessment for scarring. The Appeal Panel finds that the Medical Assessor erred in his assessment of CPRS but the assessment of WPI by the Appeal Panel for CPRS is the same as that made by the Medical Assessor.
For these reasons, the Appeal Panel determines that the MAC issued on 6 February 2024 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:	W8795/23
Applicant:	Kimberley Clarke
Respondent:	The Trustees for Linisi Family Trust & The Trustee for Norrie-Douch Family Trust & The Trustee for W J Ross Family Trust

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 Donald Cawthorne and issues this new Medical Assessment Certificate as to the matters set out in the Tae 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)
22/1/2021	Chapter 17 Table 17.1	Figures 16-10, 16-43, and 16-46 Figures16-34 and 16-37 Figures 16-28 and 16-31 Table 16-16b on page 492	28%	28%
22/1/2021	Chapter 14 Table 14.1	2%	2%
Total % WPI (the Combined Table values of all sub-totals)				29%

[2024] NSWPICMP 238

23 April 2024