David Hyett t/as Phoenix Rising Cafe v Middleton
[2024] NSWPICMP 174
•27 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | David Hyett t/as Phoenix Rising Cafe v Middleton [2024] NSWPICMP 174 |
| APPELLANT: | David Hyett trading as Phoenix Rising Cafe |
| RESPONDENT: | Cecily Maria Middleton |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 27 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor erred in four respects, namely, in failing to conduct an assessment on the basis of an ‘amended’ referral; failing to provide reasoning as to whether or not he accepted that the worker suffers from CRPS; using incorrect criteria, and in failing to provide reasons and appropriate deduction or apportionment of whole person impairment reflective of subsequent injury; the Panel agreed; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2023 David Hyett t/as Phoenix Rising Cafe (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 December 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The worker commenced proceedings in respect of the claim for lump sum compensation. The issue in dispute is whether the respondent worker satisfies the relevant criteria for diagnosis of CRPS, and by extension the extent of whole person impairment resulting from the injury deemed to have occurred on 29 September 2017.
The worker was referred to Medical Assessor Tim Anderson. The initial referral from the Personal Injury Commission (Commission) listed the body part/s referred to be “Right upper extremity (chronic pain to right thumb, right wrist, right elbow) causing CRPS”.
The appellant wrote to the Commission on 23 November 2023, seeking that the Referral be amended. It was advised that there was not an agreement between parties that the respondent worker suffered from CRPS. It was proposed that referral be amended to read as follows: “Right upper extremity (chronic pain to right thumb, right wrist, right elbow) causing possible CRPS – to be determined by the Medical Assessor.”
The worker, in an email of the same date, consented to this amendment, on the basis that the term “possible” be excluded. An amended referral to the Medical Assessor was thereafter provided by the Commission on 24 November 2023. The body part/s referred under the amended referral were recorded to be “right upper extremity (chronic pain to right thumb, right wrist, right elbow) CRPS – to be determined by the Medical Assessor”.
It has been established by the Commission that it is not within the jurisdiction of a Member of the Commission to determine whether or not an injured worker suffers from CRPS, and that this is a question for medical assessment. The appellant particularly refers to the case of Stephen Elsworthy v Forgacs Engineering Pty Ltd [2017] NSWWCC 64.
The Medical Assessor’s assessment of body parts not referred for assessment under the above referral, included the right shoulder, right medial nerve, right ulnar nerve, and right radial nerve when these had not been referred by the parties.
The appellant submits that no assessment ought to have been provided in respect of the right shoulder, right medial nerve, right ulnar nerve, and right radial nerve.
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 worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in four respects, namely:
(a) in failing to conduct an assessment on the basis of an ‘amended’ referral;
(b) in failing to provide reasoning as to whether or not he accepted that the worker suffers from CRPS;
(c) in using incorrect criteria, and
(d) in failing to provide reasons and appropriate deduction or apportionment of whole person impairment reflective of subsequent injury.
In reply, the respondent submits that no errors were made.
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.
The respondent was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of an injury he noted as “Right upper extremity (thumb, wrist, elbow, CRPS)” occurring on a deemed date of injury of 29 September 2017.
In fact, the Amended Referral provided by the Commission on 24 November 2023 read:
“The body part/s referred under the amended referral were recorded to be ‘right upper extremity (chronic pain to right thumb, right wrist, right elbow) CRPS – to be determined by the Medical Assessor’.”
The Medical Assessor obtained the following history:
“Ms Middleton related that her work in the Phoenix Rising Café as a chef was extremely busy. Several functions had been planned and she had no assistance to help with these. One of her tasks was to process potatoes through a chip cutting machine. The potatoes had to be washed in a sink. They were then placed individually into a cylindrical device which had a piston-like component which was activated by a hand operated lever, which basically pushed the potato down the cylinder onto a series of fixed cutters, which then chopped it up into chip sized pieces. She did this copiously for two functions, which were fairly close together and started developing severe pain in her right hand. She saw her doctor. She was then seen by a Hand and Wrist Surgeon and at that stage, conservative management was suggested. Several injections were tried but did not help. She was then referred for pain management. Relatively early on it was suggested that she probably had Complex Regional Pain Syndrome.
Her clinical management has consistently been under the care of Specialist Pain Management Physicians. There has also been an emphasis on the mental associated side of this and attempts at desensitisation. Unfortunately, nothing has really given her much help.”
The Medical Assessor noted: “There is no treatment at the moment. She mentioned that she thought physiotherapy may be starting again but there are no fixed plans.”
The Medical Assessor noted present symptoms as follows:
“Pain radiating from the right elbow, through to the base of the right thumb. She has a very unpleasant buzzing sensation in the right index and ring fingers.
There is gross loss of movement and power. There is increased sweating. Sometimes the arm feels hot and sometimes cold. Alterations of climatic temperature, either hot or cold, make the condition worse. This is particularly the case in winter.”
When asked to provide “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor said:
“In April 2023 she fell backwards. She instinctively put out both of her hands behind her. She came down mostly on the right side and fractured the right radius and ulna. This was managed by internal fixation with plates and screws, which remain. The movement of her right wrist since then has become even less.”
The Medical Assessor then set out details of Ms Middleton’s general health, work history and her social activities and activities of daily living.
Findings on examination were reported as follows:
“She was in gross discomfort with her right forequarter and protectively held the right forearm.
The right hand was very obviously sweaty, although there was no swelling, colour change or alteration of temperature in comparison with the left hand. The surgical scar over the volar surface of the right wrist from the internal fixation of the right radius and ulna, which was fractured in April 2023 had healed satisfactorily. The whole arm, hand and all digits was excessively tender. There was restriction of movement of the right thumb, wrist, elbow (minimally) and shoulder. Movement of the fingers when conducted cautiously, was almost normal and symmetrical with the left side.”
He then set out details of the range of movement in the shoulder, the elbow, the wrist and the thumb.
The Medical Assessor noted the radiological material he had which noted “Degenerative changes in the thumb CMC joint”.
He then summarised the injuries and diagnoses as follows:
“Ms Middleton gives a history of excessive use with her right hand during a period of enhanced activity while working as a chef from May through to September 2017. This has resulted in dysfunction predominantly of the right hand and particularly the base of the right thumb. This has further developed into a chronic pain condition. The condition has been treated as Complex Regional Pain Syndrome, although she did not have the full criteria to diagnose this condition at this assessment. Nevertheless, it was very obvious that this condition is quite debilitating and has affected the whole of the right forequarter.”
The Medical Assessor assessed 37% WPI, and set out in a Table an explanation of his calculations.
He assessed 21% upper extremity impairment (UEI) for the right shoulder, 2% UEI for the right elbow, 13% UEI for the right wrist and 28% UEI for the right thumb. The combined UEI was 39%.
He then said:
“Neurological Dysfunction. The neurological dysfunction of the right forequarter is quite severe. This is addressed in AMA 5 Page 492, Table 15-15. This is modified by Table 16-10 on Page 482. For this condition, Grade I is selected as appropriate with 80% of the maximum…Combined UEI is 38%.
The 39% from the range of movement is combined with 38% from the neurological dysfunction, giving 62% UEI. From Page 439, Table 16-03 this converts to 37% WPI.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” he replied: “Yes” adding “Attention is drawn to the fall in April 2023 in which she fractured the right radius and ulna. This has been managed by internal fixation. This has further reduced range of movement of the wrist.”
The Medical Assessor then turned to consider the other medical evidence and documents he had before him and said:
“Specialist Orthopaedic Surgeon, Dr Simon Kinny in his report of 31/08/22 gives a very low whole person impairment of only 5%. It looks as though the chronic pain condition is not addressed.
Specialist Rheumatologist, Dr Terry Kwong in his report of 20/03/23 diagnosed CRPS. This resulted in a fairly high whole person impairment of 50%. At this assessment, whilst it was very obvious that Ms Middleton does have a chronic pain condition, she did not have the specific features to fully diagnose Complex Regional Pain Syndrome.”
He added:
“There was an injury to her right wrist in April 2023. I cannot find much in the way of accurate information about this, nor any specific alteration in the function of the wrist, either before or following this accident. Normally in these circumstances, a deduction of one-tenth would be undertaken. The upper extremity impairment of the right wrist was only 13%. A deduction of one-tenth would drop this down to 12%. This has not been done since it would make no significant difference to the final whole person impairment.”
The submissions
The appellant’s submissions are extremely detailed, but may be summarised as follows:
(a) The Medical Assessor has assessed body systems outside the bounds of those referred for assessment, namely right shoulder, right medial nerve, right ulnar nerve, and right radial nerve, in circumstances where the Medical Assessor found that the respondent does not meet the criteria for an assessment based on CRPS. On that basis, then pursuant to the referral, the only remaining body systems to be assessed were the right thumb, right wrist and right elbow.
(b) No assessment ought to have been provided in respect of the right shoulder, right medial nerve, right ulnar nerve, and right radial nerve.
(c) The Medical Assessor’s combined UEI for the right thumb, wrist and elbow converts to 14% WPI.
(d) The Medical Assessor failed to appropriately consider the effect of a subsequent wrist injury on the final assessments of the right upper extremity.
(e) It is unclear whether the Medical Assessor was provided with the amended referral.
(f) The amended referral specifically seeks that the Medical Assessor determine whether CRPS is, in fact, diagnosable on the basis of the worker’s presentation at the assessment.
(g) Medical Assessor Anderson seems to have either incorrectly accepted that CRPS was a condition not in dispute or, if he was aware that the condition was not agreed upon, he did not provide sufficient reasoning to explain his decision as to whether or not the criteria for a diagnosis of CRPS had been satisfied.
(h) Under the ‘summary’ heading on page 7 of the MAC, the Medical Assessor noted that the worker had developed a chronic pain condition which had been treated as CRPS. However, he specifically noted that “she did not have the full criteria to diagnosis this condition at this assessment.”
(i) He does not appear to have gone through and discussed the relevant CRPS criteria and which criteria had not been satisfied, as is required by Chapter 17 of the Guidelines.
(j) On review of the MAC, there is no record of the worker having reported any symptoms of hyperaesthesiae or allodynia. There was no recorded complaint of the respondent worker of asymmetry of temperature or skin colour. There was recorded to have been complaints of increased sweating, though no recorded complaint of sweating asymmetry.
(k) There is an absence of recorded complaints satisfying ¾ of the categories laid out under cl 2 of Table 17.1. In such circumstances, the worker could not have satisfied the criteria to meet a diagnosis of CRPS, such that she cannot be entitled to assessment of impairment on that basis.
(l) Clause 2 of Table 17.1 requires that the Medical Assessor must observe one sign from each of the four categories in the respondent worker’s presentation.
(m) Having regard to the physical examination of Medical Assessor Anderson, it was specifically recorded that: “The right hand was very obviously sweaty, although there was no swelling, colour change or alteration of temperature in comparison with the left hand.” It follows from this comment that there were no observed signs under the vasomotor category, such that the relevant criteria have not been established.
(n) There was similarly no recorded evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
(o) Medical Assessor Anderson specifically records that: “The condition has been treated as Complex Regional Pain Syndrome, although she did not have the full criteria to diagnose this condition at this assessment. At this assessment, whilst it was very obvious that Ms Middleton does have a chronic pain condition, she did not have the specific features to fully diagnose Complex Regional Pain Syndrome.”
(p) In Skates v Hills Industries Ltd [2021] NSWCA 142, the issue of whether an approved medical officer is confined an assessment of the body parts and systems specified in the referral form, was discussed. The court held that the medical assessment was limited to the dispute so identified.
(q) The Medical Assessor’s assessment ought to have been limited to the body systems listed in the referral, being the right thumb, right wrist, and right elbow, and CRPS (which he determined not to be present).
(r) On 15 April 2023, the worker presented to Lismore Base Hospital with a closed fracture of the distal end of the radius, following an incident when she fell on an outstretched hand. This is confirmed by a discharge summary from Lismore Base Hospital which confirms the worker underwent surgery to the wrist the following day, on 16 April 2023.
(s) An X-ray of the right wrist on the date of incident, finding:
“Comminuted fracture distal end of radius seen with dorsal displacement of dorsal fragment. There is slight dorsal angulation. Undisplaced fracture styloid process of ulna noted. Incidental finding of severe degenerative changes of first carpometacarpal joint seen. There is marked reduction in overall bone density. Soft tissue swelling around the wrist seen.”
(t) The subsequent fracture requiring significant surgery ought to have been accounted for in the assessment of WPI in respect of the worker.
(u) The Medical Assessor has provided brief comment as follows:
“There was an injury to her right wrist in April 2023. I cannot find much in the way of accurate information about this, nor any specific alteration in function of the wrist, either before or following the incident. Normally in these circumstances, a deduction of one-tenth would be undertaken. The upper extremity impairment of the right wrist was only 13%, A deduction of one-tenth would drop this down to 12%. This has not been done since it would make no significant difference to the final whole person impairment.”
(v) The Medical Assessor’s subsequent assessment records ‘0’ WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality.
(w) Greater consideration ought to have been given to the appropriate method of assessment utilised for the accepted body parts, and as to the applicable impairment having now resulted from the worker’s subsequent injury and associated surgery.
(x) Section 323 of the 1998 Act is not the appropriate provision under which a deduction ought to have been considered.
(y) The role of the Medical Assessor is to assess impairment arising from the subject work injury, as distinct from that impairment resulting from any subsequent and/or non-work related injury, condition or factor. Consideration has not been given to such an injury, nor have reasons been given in the MAC for the failure to apply any apportionment or deduction to account for the effects of the same.
As noted earlier, the respondent submits that no errors were made, and disputes all the submissions made by the appellant. We do not propose to set out those submissions in detail, but we have noted them and taken them into account in our determination.
The legal framework
The Guidelines provide the following:
“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 (below)
• 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.”
Table 17.1 then sets out the specific criteria which must be satisfied for a diagnosis of CRPS to be confirmed.
It provides:
“1. Continuing pain, which is disproportionate to any causal event.
2. Must report at least one symptom in each of the following four categories: Sensory: Reports of 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 the 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 the time of the impairment evaluation.”
Discussion
We agree with the thrust of the appellant’s submissions for reasons that follow.
To begin with, a Medical Assessor is not entitled to go outside the bounds of the referral. There have been some rare exceptions, notably where the parties agreed to the body parts to be referred but due to an administrative error, not all were included in the referral.
Irrespective of whether the Medical Assessor in this case was provided with the amended referral, he was nonetheless confined to the three body parts identified in the referral.
He was thus not entitled to assess the right shoulder or the right medial nerve, right ulnar nerve, and right radial nerve.
The appellant is correct in saying that the Medical Assessor was confined to an assessment of the right thumb, wrist and elbow.
As regards CRPS, that is of course a matter for determination by a Medical Assessor in accordance with Chapter 17 of the Guidelines.
In this case, the Medical Assessor specifically recorded that the respondent “did not have the full criteria to diagnosis this condition at this assessment.”
No clearer statement than that could be made.
It seems to us that the Medical Assessor was attempting to confirm a diagnosis of CRPS by addressing pain issues reported by the respondent which he cannot do.
The only “pain” assessable in CRPS1 are the sensory deficits and pain using Table 16-10a of AMA 5 (as listed in the third bullet point on p 81 of the Guidelines). The three peripheral nerves that the Medical Assessor used were shown to be normal in Nerve Conduction Studies performed on 26 April 2019. The Medical Assessor was not entitled to assess these nerves.
We also point out that the Medical Assessor noted present symptoms as “Pain radiating from the right elbow, through to the base of the right thumb.” There was no reference to any symptoms in the right shoulder.
We are frankly at a loss to understand the Medical Assessor’s reasoning, sparse as it was.
The appellant is perhaps correct in saying that the Medical Assessor “seems to have either incorrectly accepted that CRPS was a condition not in dispute or, if he was aware that the condition was not agreed upon, he did not provide sufficient reasoning to explain his decision as to whether or not the criteria for a diagnosis of CRPS had been satisfied”.
Finally, as regards the subsequent injury to the right wrist in April 2023, the appellant is again correct in saying that s 323 is not the appropriate provision under which a deduction ought to have been considered.
It was also inappropriate for the Medical Assessor to simply state that he made no deduction “since it would make no significant difference to the final whole person impairment”.
Be that as it may, the Medical Assessor was required to assess impairment arising from the subject work injury, and then consider whether any adjustment ought be made for the effects of any subsequent injury.
In our view, we agree that the subsequent injury was significant, because the respondent sustained a comminuted fracture of the radius and an undisplaced fracture styloid process of ulna.
The Medical Assessor also noted that “The movement of her right wrist since then has become even less”.
The difficulty we have is that there is very little information available to us as regards the range of movement of the right wrist before the subsequent accident
In these circumstances we consider that a deduction of one-tenth is appropriate.
The result is the same as that reached by the Medical Assessor, namely that the WPI of 13% becomes 12%.
This results in an overall WPI of 14%.
For these reasons, the Appeal Panel has determined that the MAC issued on
5 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W8445/23 |
Applicant: | Cecily Maria Middleton |
Respondent: | David Hyett trading as Phoenix Rising Cafe |
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 Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | 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) |
| 1. Right upper extremity | 29/09/17 (deemed) | Chap 2 P 10 | P 456 F 16-12 P 457 F 16-15 P 459 F 16-8a and 8 b P 460 F 16-09 P 467 F 16-28 P 469 F 16-31 P 472 F 16-34 P 474 F 16-37 P 476 F 16-40 P 477 F 16-43 P 439 F 16-46 P 492 T 15-15 P 482 T 16-10 P 438 T 16-01 P 439 T 16-02 and 03 | 14% | N/A | 14% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
2
0