Coles Supermarkets Australia Pty Ltd v Cayir

[2022] NSWPICMP 404

DETERMINATION OF APPEAL PANEL
CITATION:	Coles Supermarkets Australia Pty Ltd v Cayir [2022] NSWPICMP 404
APPELLANT:	Coles Supermarkets Australia Pty Limited
RESPONDENT:	Umit Cayir
Appeal Panel
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	18 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from assessment of whole person impairment; right upper extremity wrist; left upper extremity wrist; whether Medical Assessor erred in assessing impairment due to a pain condition without diagnosing complex regional pain syndrome; whether maximum medical improvement reached; Held – the Panel adopts the assessment and reasoning of Medical Assessor Stephenson; the Medical Assessment Certificate of Medical Assessor Anderson is revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant employer, Coles, appeals from the Medical Assessment Certificate of Medical Assessor Anderson dated 12 January 2022. Medical Assessor Anderson assessed a 20% whole person impairment (left upper extremity 20%, right upper extremity 0%) as a result of injury on 1 August 2002.

2. The respondent worker had developed conditions in both wrists and arms as a result of the nature and conditions of his employment as a baker with Coles. By letter dated
   12 June 2019, he claimed compensation for impairment of the whole person as a result of the nature and conditions of his employment from 2002 to 2018, relying on the assessment of orthopaedic surgeon, Dr Bodel.

3. Unfortunately, neither the letter of claim nor Dr Bodel’s report was included in the application for assessment and neither is before the Panel. However, the appellant submits - and the respondent does not deny - that Dr Bodel had assessed a 17% whole person impairment, and in respect of the left upper extremity had diagnosed pathology at the wrist (ganglion, De Quervain’s synovitis and suspected nerve compression).

4. That claim was defeated on 26 May 2020, when Arbitrator Burge sitting in the Workers Compensation Commission issued an award for the respondent. He did so on the basis that:

   (a)    the deemed date of injury was the date of claim, namely 12 June 2019;

   (b)    by that time, the worker had left the employ of Coles and was working as a baker for Woolworths, and

   (c)    Woolworths was the last employer to employ him in employment to the nature of which the disease was due.

5. For the purposes of a threshold dispute only, Mr Cayir commenced these proceedings, seeking an assessment of whole person impairment with respect to the right and left wrists and hands.

6. On 26 November 2021, the matter was referred to Medical Assessor Anderson for assessment of whole person impairment (left upper extremity - wrist; right upper extremity - wrist) as a result of injury on 1 August 2002. It is not clear to us why that date was chosen as the date of injury, but nothing turns on it.

7. In assessing the left upper extremity, Medical Assessor Anderson diagnosed a chronic pain condition, found that the range of motion method did not reflect an accurate assessment of impairment due to inconsistency, and assessed permanent impairment by analogy with amputation of the left upper extremity. He reasoned that the degree of permanent impairment was one-third of the 60% whole person impairment assessable in respect of an amputation, yielding a 20% whole person impairment (left upper extremity).

8. The appellant employer does not allege any error in respect of the assessment of the right upper extremity.

9. It alleges demonstrable error and the application of incorrect criteria in respect of the assessment of the left upper extremity.

1. The Appeal Panel conducted a preliminary review of Medical Assessor Anderson’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines). Having identified error on the face of the certificate as described below, the Panel referred the respondent for examination by one of its members, Medical Assessor Stephenson.

Submissions

1. The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. A brief summary follows.

2. The appellant employer submits that Medical Assessor Anderson erred in the following ways in assessing the left wrist. In the body of its submissions, it identifies three separate grounds of appeal, but at [40] divides them into six. It is convenient to summarise them as follows:

   (a)    by diagnosing a condition (pain syndrome) not previously diagnosed by other assessors, which was beyond his power;

   (b)    by failing to order additional investigations, notwithstanding his concession that there was insufficient clinical evidence before him to establish when the left arm ceased to function, notwithstanding that fact that it was functional when Dr Home assessed it five months earlier;

   (c)    by finding that maximum medical improvement had been reached without proper basis, in circumstances where the diagnosed condition had arisen in the preceding five months and had neither been diagnosed nor treated;

   (d)    by failing to give reasons why the worker’s inconsistencies in presentation did not amount to feigning or malingering, and

   (e)    by assessing the left upper limb by analogy with amputation and failing to give reasons for assessing permanent impairment by reference to one third of the analogous impairment.

3. The respondent worker points out that the appellant’s submissions do not comply with the relevant Practice Direction as it is unclear whether it relies on three, five, or six grounds of appeal. He considers five to be likely, as do we. He submits as follows in reply.

   (a)    As Dr Bodel’s report is not before the Panel, it cannot be relied on to prove that the assessor’s diagnosis of pain syndrome was novel. In any event, it was within the assessor’s power to make a diagnosis, whether or not that diagnosis had previously been made. The left wrist had been referred to him to assess permanent impairment. The appellant does not identify the further investigations that it alleges should have been made by the assessor. As the assessor had access to clinical notes which did not provide the information sought, there is no evidence that any material exists that would have proven how or when the current condition of the left arm commenced.

   (b)    MMI has been reached if an assessor considers the worker’s condition unlikely to improve in the next 12 months without treatment: Guidelines [1.15]. That is the view which the assessor took. It does not require that the worker’s condition has been stable for 12 months prior to assessment.

   (c)    With respect to feigning or malingering, there is no evidence that any passive motion observed by the assessor supported such a finding.

   (d)    An assessor may assess by analogy in the circumstances set out in the Guidelines at [1.23]. The assessor gave reasons for assessing by analogy with amputation at [11a] and [11d] of his reasons. He selected one third as the appropriate proportion, because it reflected the degree to which function had been lost.

Assessment by reference to pain condition

1. As the respondent worker submits, the left wrist was referred for assessment of whole person impairment. It was a matter for the Medical Assessor to make his own diagnosis of pathology affecting the left wrist. The making of a diagnosis is not beyond power merely because it was not made by other clinicians. The Medical Assessor is not bound by diagnoses made by others.

2. However, in making an assessment, the assessor is bound to apply the Guidelines: s 322(1), Workplace Injury Management and Workers Compensation Act 1998.

3. Impairment arising from chronic pain is governed by Chapter 17. Paragraph 17.2 expressly excludes assessment of chronic pain in accordance with AMA5 Chapter 18. The reasons for this are set forth in [17.3]. Paragraph 17.5 also excludes assessment in accordance with AMA5 s 17.2m (causalgia), and provides: “AMA5 Table 16-16 (p 496) has been replaced by Table 17.1 in the Guidelines. Table 17.1 is 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”.

4. Table 17 sets out the criteria for diagnosing complex regional pain syndrome, types 1 and 2. Both are assessable. If present. Unless a pain condition is diagnosed as complex regional pain syndrome, type 1 or 2, the assessment of impairment that results is not in accordance with the Guidelines.

5. Medical Assessor Anderson found at [7]: “… he has developed a chronic pain condition, although there were no features of complex regional pain syndrome”.

6. In those circumstances, it was impermissible to assess permanent impairment resulting from a chronic pain condition, as he did. His assessment demonstrates both error on the face of the certificate and the application of incorrect criteria.

7. For that reason, the Medical Assessment Certificate must be set aside, and it is appropriate for the worker to be assessed by a member of the Panel, as requested by the appellant.

8. It is unnecessary to consider the further grounds of appeal.

Report of Medical Assessor Stephenson

1. The Panel referred the worker to one of its members, Medical Assessor Stephenson, for examination and assessment. His report follows:

   “1. The worker's medical history, where it differs from previous records

   Umit Cayir who is a big man was accompanied by his brother-in-law Bruce who had difficulty removing and then replacing a hoodie over Mr Umit Cayir’s trunk.

   Umit Cayir is aged 49.  He came to Australia as an infant aged 6 months with his family.  His father worked at the BHP steel works.  Mr Cayir had a long employment history as a baker and pastry cook working at Coles Store at Figtree from 2002.  He is left-handed.  He loved the job.

   Dr Deshpande, Orthopaedic Surgeon, Wollongong, performed an operation in about 2010 which he said was unsuccessful for dorsal ganglion with pain extending up the left forearm, had six weeks off and returned to work on light duties and then on full duties.

   Twelve months later, the ganglion had recurred with pain and Dr Peter Scougall, Hand Surgeon, re-operated over the 2.5-cm long dorsal left wrist scar towards the radial side.  Effectively, Dr Scougall was operating 18 months after Dr Deshpande and also due to de Quervain’s tenosynovitis in the first dorsal compartment left wrist.  He was 12 weeks off work with physiotherapy and then he continued working.

   He noted subsequently in all his fingers of the left hand a tingling and numbness developing, extending up the volar aspect of the forearm, preventing him playing his hobby of tennis and when his wife made him a cup of tea, he would tend to drop the cup.  He had difficulty holding the cup in the left hand and had to use the right.  Pain increased over the radial side of the left wrist extending up the proximal forearm.

   Meanwhile, at Coles Store at Figtree there were four bakers, it was very busy work and two had resigned and one replaced.  He was there for the colleague and when the colleague went on holidays, he had to do the job himself and he was running from making the dough to watching the ovens and he resigned from his job.

   He sold his manual car as he cannot change the gears and bought an automatic.

   2.   Additional history since the original Medical Assessment Certificate was performed

   Dr Anderson in his history and findings diagnosed a chronic pain condition but stated he fell short of all the parameters required by the WorkCover Guidelines for CRPS 1.  My examination now shows that is not the case.

   3.   Findings on clinical examination

   With references to WorkCover Guides page 81, table 70.1, the diagnostic criteria for chronic regional pain syndrome type 1.

   1.     There is continuing pain which is disproportionate to any causal event and in particular to the minor hand surgery that has been undertaken.

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

   3.     Must display at least one sign at the time of the evaluation in all the following categories and the categories are:

   ·       Sensory.

   ·       Vasomotor.

   ·       Pseudomotor/oedema.

   ·       Motor/trophic.

   4.   There is no other diagnosis that better explains the signs and symptoms.

   Then consider the following in assessing CRPS 1.

   ·        If the criteria in each of the sections 1, 2, 3, 4 and table 17.1 above are satisfied, the diagnosis for CRPS may be made. Indeed it is made.

   ·        Rate the extremity impairment resulting from loss of motion of each individual joint involved.  This has been undertaken for the three large joints and then the joints of the five fingers of the left hand (including the thumb).  There were normal findings of the opposite right upper extremity.  He is dominant right-handed.

   ·        Rate the extremity impairment resulting from sensory deficit and pain according to the grade that best fits the degree or amount of interference with ADL as described in AMA5, table 16-10a, page 482.  Use clinical judgment to select an 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, page 604 (AMA5 to 604) to obtain the final extremity impairment.

   ·        Convert the final extremity impairment in WPI using AMA5, table 16-3 (page 439) for the upper extremity impairment.  Finally page 82, combine the extremity impairment percentage for loss of range of motion for joints involved, pain or sensory deficits and motor deficits if present to determine the final extremity impairment using combined values chart in AMA5 page 684.

   ·        Convert the final extremity impairment to WPI using AMA5, table 16-3, page 439, for the upper extremity.

   I have followed this methodology and now present the findings on clinical examination.  Umit Cayir when he held the left upper extremity in adduction at the shoulder, flexion of 90 degrees at the elbow and full pronation of the forearm, there was stiffness and reduced range of motion also at the wrist and all five fingers.

   The restrictions in range of motion within the left upper extremity are outlined below.

   Left shoulder references AMA5, page 476 to 479, figure 16-40 to figure 16-46.  Left elbow page 472 to 474, figure 16-34 to figure 16-37.  Left wrist page 467 to 469, figure 16-28 to figure 16-31. From page 456, figure 16-12, thumb IP joint, page 457 thumb MP joint 216-15 and then 459 to 460, table 16-8a, 16-8b and 16-9. 

   Clinical findings of carpal tunnel syndrome in the left wrist and, in that regard, Tinel’s sign was negative for carpal tunnel syndrome.

   Left Shoulder

Left Shoulder
Flexion	60°
Extension	20°
Adduction	20°
Abduction	60°
Internal rotation	70°
External rotation	60°

Left Elbow

Left Elbow
Extension	30°
Flexion	120°
Pronation	90°
Supination	40°

Left Wrist

Left Wrist
Palmar Flexion	40°
Dorsiflexion	40°
Radial Deviation	10°
Ulnar Deviation	10°

Thumb

Thumb IP Joint
Flexion	20°
Extension	0°
Thumb MP Joint
Flexion	40°
Extension	0°
Thumb CMC Joint
Radial abduction angle	60°
Adduction	1 cm
Opposition	6 cm

For the other fingers, index, middle, ring and little, I used a small goniometer to check the values and they were uniformly found as follows:

Index, Middle, Ring and Little Fingers

DIP joint flexion	30°
Extension	0°
PIP joint flexion	40°
Extension	0°
MP joint flexion	70°
Extension	0°

As evident above, there is limitation with active range of motion affecting multiple joints within the left upper extremity. It has been indicated that there was nil abnormal limitation in relation to the contra-lateral upper limb.

As noted, Ms Umit Cayir has met all the requirements for the diagnostic criteria for CRPS 1 namely section 2 must report at least one symptom in each of the following four categories.

·        Sensory reports hyperesthesia and/or allodynia:  On Neurotip testing, that is pinprick testing with the Neuorotip device, he reports hyperesthesia and he reports allodynia to attempt at light touch with withdrawal of limb.

·        Vasomotor:  He reports temporary asymmetry, the left hand being pink and warm with skin colour changes and asymmetry.  He reports warmth left hand.

·        Pseudomotor/oedema: He reports that of oedema with swelling of the fingers of the left hand and he reports sweating asymmetry with sweating in the opposite right palm but no sweating in the left palm.

·        Motor/trophic:  Reports decreased range of motion.  He reports decreased range of joint motion and also reports motor dysfunction with tremor in the left hand.  He reports trophic changes with loss of hair on the dorsum of the fingers of the left hand.  Because of the symptoms in the left hand including reduced strength when he travels on an elevator, he goes up in reverse.

On examination, it is recorded below that he does display at least one sign at the time of the evaluation in all of the following four categories.

·        Sensory:  There is evidence of hyperalgesia to pinprick.  There is evidence of allodynia to light touch and also to deep somatic pressure, for example on squeezing the left biceps muscle above the elbow.

·        Vasomotor:  There is evidence of temperature asymmetry with warmth left hand and there is asymmetry with skin colour changes with blotchy pink developing on dependency of the left upper extremity if it is allowed to hang down.

·        Pseudomotor/Oedema:  There is evidence of oedema with swelling of the left hand and about the fingers of the left hand with reduced flexion capacity.  There is sweating asymmetry, the right palm seems to sweat but not the left palm.

·        Motor/Trophic:  There is evidence of decreased axial joint range of motion in all the small joints of the hand and three large joints of the left upper extremity.  There are trophic changes at the loss of hair on the dorsum of the phalanges of the fingers of the left hand.

There is no other diagnosis that better explains these signs and symptoms. I could identify no inconsistencies in presentation.

4.  Results of any additional investigations since the original Medical Assessment Certificate

There were no additional investigations.

5.  Whether maximum medical improvement has been reached

I have diagnosed CRPS 1 by reference to the criteria in Table 17.1 of the Guidelines and following. However, paragraph 17.5 of the Guidelines provides that, for CRPS 1 to be present for the purposes of assessment, the following must have occurred, among other things:

·    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) and

·    the diagnosis has been verified by more than one examining physician.

As neither of these requirements is yet satisfied, an assessment of whole person impairment based on CRPS 1 is premature.”

Conclusion

1. The panel adopts the assessment and reasoning of Medical Assessor Stephenson.

2. The Medical Assessment Certificate of Medical Assessor Anderson is revoked.