Dewar v Direct Freight (Aust) Pty Ltd
[2024] NSWPIC 118
•12 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Dewar v Direct Freight (Aust) Pty Ltd [2024] NSWPIC 118 |
| APPLICANT: | Jai Dewar |
| RESPONDENT: | Direct Freight (Aust) Pty Ltd |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 12 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment pursuant to section 66 in respect of injury to right upper extremity and cervical spine; the applicant worker claimed that in addition to referral of undisputed injury to the right wrist and thumb, and cervical spine, assessment of the whole of the right upper extremity should be referred without restriction to the wrist and thumb; this was on the basis that the applicant had in the past experienced symptoms of complex regional pain syndrome (CRPS), which was found not to be present by the independent medical examiner who examined the applicant and on whose report the applicant relied; the examiner did not provide an assessment of whole person impairment in respect of CRPS; discussion of the court of appeal decision in Skates v Hills Industries Ltd, Secretary, New South Department of Education v Connolly, and Voudouris v TDV Constructions Pty Ltd; Held – the referral to the Medical Assessor should be in respect of the cervical spine, and right upper extremity. |
| DETERMINATIONS MADE: | The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole permanent impairment as a result of injury on 5 March 2021 to the: (a) cervical spine, and (b) right upper extremity (wrist and thumb). 2. The documents to be referred to the Medical Assessor are: (c) Application to Resolve a Dispute and attachments; (d) Reply and attachments, and (e) this Certificate of Determination and Statement of Reasons. |
STATEMENT OF REASONS
BACKGROUND
Jai Dewar (the applicant/Mr Dewar) seeks compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury sustained on 5 March 2021 arising out of or in the course of his employment as dockhand by Direct Freight Express (Aust) Pty Ltd (the respondent).
Mr Dewar’s duties included opening and shutting truck curtains, and strapping loads on trucks. On 5 March 2021, as Mr Dewar was throwing a strap on a truck he hit the back of his right hand on a forklift that had been parked behind him. His right hand swelled up and the incident was reported to the respondent.
Mr Dewar’s right hand continued to swell, and he came under the care of his general practitioner, Dr Fatima, and a number of specialists:
(a) Dr Kadir, orthopaedic surgeon, who arranged a bone scan, and administered a cortisone injection which did not provide any relief;
(b) Dr Manohar, pain specialist, who performed a nerve block, as a result of which Mr Dewar suffered Horner syndrome, when the right side of his face dropped, and subsequently recovered;
(c) Dr Wallace, pain specialist, who arranged for an MRI scan of the cervical spine, and
(d) Dr Lawson, hand surgeon, who on 2 May 2022 diagnosed chronic pain syndrome affecting right upper extremity, some elements of radial tunnel syndrome, and carpal tunnel syndrome.
The applicant was independently medically examined by Dr Haig, orthopaedic surgeon, at the request of the respondent on 20 October 2021. Dr Haig produced a report dated 26 October 2021.[1] Dr Haig’s findings on examination were:
“Examination of the right hand showed no deformity nor discolouration nor temperature change. There was a full range of motion of the wrist and fingers as in making a fist. There was tenderness around the thenar eminence, dorsal aspect of the wrist and along the 2nd metacarpal. There was diminished sensation over the dorsal aspect of the base of the 2nd metacarpal and along the thumb metacarpal and there was a positive Tinel over the radial styloid.”
[1] Reply p 187, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
Dr Haig made a provisional diagnosis of the applicant’s injury of a contusion of the cutaneous branch of the radial nerve.
Associate Professor Molloy (Dr Molloy) independently medically examines the applicant on 4 February 2022 and produced a report dated 18 March 2022.[2] Dr Molloy diagnosed the applicant as having a mixed neuropathic nociceptive and nociplastic pain syndrome affecting his right hand with also back pain, which Mr Dewar attributed to the nerve block performed by Dr Manohar. Dr Molloy agreed with the diagnosis of Dr Haig of contusions cutaneous branch of the radial nerve. He found components of complex regional pain syndrome (CRPS), no signs of which were present on the day.
[2] Reply p 202.
Dr Kirychenko, General Practice (Musculoskeletal and Occupational Medicine), saw Mr Dewar on 30 September 2022 for an independent management consultation. In a report dated 13 October 2022[3] Dr Kirychenko concluded that the applicant suffered from CRPS, and a C8/T1 nerve lesion which had caused chronic back pain in the thoracic and lumbar spines.
[3] Reply p 211.
The applicant was independently medically examined by Dr Guirgis, consultant orthopaedic surgeon, on 11 May 2023 at the request of his solicitor. Dr Guirgis produced a report dated 5 June 2023 [4] The opinion of Dr Guirgis was:
“The 5-3-2021 incident had resulted in contusion of the metacarpal shafts of the 2nd and third metacarpals, and of chronic spraining of the capsular ligament of the 1st carpometacarpal joint at the base of his right thumb, and the adjoining area of the dorsal radiocarpal ligament. There was isotope scan evidence of increased Tc 99 uptake in the scapho-lunate-capitate articulation. He received one image guided injection in the right wrist with poor response.”
[4] Application to Resolve a Dispute (ARD) p 54.
When giving his impairment assessment Dr Guirgis said:
“Although the diagnosis was consistent with the significant complication of Complex Regional Pain Syndrome, yet there were not enough qualifying signs to for assessment of CRPS under the SIRA IV Guides as the signs marked X were lacking:”
The reference by Dr Guirgis to “…the signs marked X…” is to the State Insurance Regulation Authority (SIRA) fourth edition Guides, Table 17.1 at p 80, listing the criteria required to diagnose the presence of CRPS Type 1. Dr Guirgis sets out the criteria in his report.
Dr Guirgis assessed the applicant as having sustained 15% whole person impairment (WPI) as a result of injury to the cervical spine and right upper extremity on 5 March 2021, 5% WPI in respect of the cervical spine and 11 % WPI in respect of the right upper extremity.
Dr Haig examined the applicant again on 12 October 2023 and produced a report dated 17 October 2023[5] Dr Haig’s opinion was:
“Mr Dewar is a 28-year-old dominantly right-handed man who sustained injury to the dorso-radial aspect of his right hand in a work-related injury on 5 March 2021 as I have described in my original report. He has continued with symptoms since that time as stated under the appropriate heading.”
[5] Reply p 195.
Dr Haig’s diagnosis was “a neuropraxia of the cutaneous branch of the radial nerve.”
Dr Haig assessed the applicant as having sustained 4% WPI as a result of injury to the right upper extremity (right hand) on 5 March 2021.
On 10 July 2023 the applicant’s solicitor forwarded a letter of claim to the respondent’s insurer, GIO, serving the following documents:
(a) Permanent Impairment Claim Form dated 8 July 2023,[6] and
(b) “Report of Dr Guirgis dated 20/5/23” [sic, 5 June 2023].[7]
The letter included a claim for compensation pursuant to s 66 of the 1987 Act for $37,420 representing 15% WPI.
[6] ARD p 4.
[7] ARD p 7.
On 25 October 2023 GIO issued to the applicant care of his solicitor a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) containing a denial of liability for the applicant’s claim,[8] with the author of the notice saying:
“Dr Haig has reported that your injury on 5 March 2021 has resulted in a permanent impairment of 4% WPI for the radial nerve. He assessed your neck as normal.
Based on Dr Haig’s assessment, we dispute that you are entitled to permanent impairment lump sum compensation because your injury on 5 March 2021 has not resulted in more than 10% permanent impairment.”
[8] ARD p 8.
Following the preliminary conference referred to hereunder the following Direction was issued:
“The Commission directs:
1. The applicant is to lodge and serve by 21 February 2024 written submissions on the terms of referral of the matter to a Medical Assessor, including reasons as to why “the right upper extremity” should be referred in addition to the cervical spine, as opposed to referral of “the right upper extremity (wrist and thumb)”, and the cervical spine.
2. The respondent is to lodge and serve by 28 February 2024 written submissions in reply.
3. At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’.”
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) should the matter be remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury on 5 March 2021 to the:
(i)the cervical spine, and
(ii)the right upper extremity (wrist and thumb),
or alternatively:
(i) the cervical spine, and
(ii) the right upper extremity.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a preliminary conference on 7 February 2024 and were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) applicant’s submissions dated 20 February 2024, and
(d) respondent’s submissions dated 27 February 2024.
Oral evidence
There was no application to adduce oral evidence or to cross examine the applicant.
SUBMISSIONS
The following is a relevant summary of the written submissions of the parties.
Applicant
The applicant notes that a Medical Assessor will only be entitled to assess the body parts which are referred.
The applicant submits that, “In the past, a medical assessor who assessed CRPS when it was not referred and the applicant was denied compensation for CRPS.” (Comment: I am not sure what is meant by this submission).
The applicant submits that CRPS is a condition of the sympathetic nervous system which produces signs and symptoms from time to time, and that the applicant has had signs and symptoms of CRPS at various time since his injury.
The applicant notes that the injury was caused by impact of the back of his hand with a forklift when he was strapping a load (a crush injury), and that the treating orthopaedic surgeon, Dr Kadir, formed a working diagnosis of right wrist joint post-traumatic synovitis.[9] Dr Kadir’s treatment was a right wrist joint and mid-carpal tunnel injection which failed to alleviate the pain, so that the applicant was referred to pain specialist, Dr Manohar.
[9] ARD p 21.
The applicant then refers in detail to his treatment by the specialists to whom he was referred, the following of whom made reference to CRPS, chronic pain, or changes of colour, temperature, sensation or strength:
(a) Dr Manohar, who reported in October 2021 that the applicant had features of “RSD” (reflex sympathetic dystrophy – now known as CRPS) and had commenced an “RSD program of treatment”;[10]
(b) Dr Wallace, who found on examination decreased sensation and grip strength, occasional colour temperature changes, and swelling and a burning sensation. Dr Wallace diagnosed CRPS not otherwise specified;[11]
(c) Dr Molloy, whose diagnosis was contusions cutaneous branch of the radial nerve, but who also recorded components of CRPS (RSD), which were not present on the day of examination,[12] and
(d) Dr Lawson, who arranged various radiological investigations which were all normal, and formed the view that the cause of the pain was not treatable by surgery and could be organic.[13] The applicant submits that Dr Lawson’s diagnosis “appears to be chronic pain syndrome affecting right upper extremity.[14]
[10] ARD pp 26 and 27.
[11] ARD pp 36, 40 and 50.
[12] Reply p 202.
[13] ARD p 49
[14] ARD p 41.
The applicant summarises the findings on examination and diagnoses of the independent medical examiners of the applicant, and Dr Kirychenko who prepared an injury management consultation report.
The applicant submits that there does not seem to be any dispute that he has had damage to some nerves in his right arm in the incident at work and in the course of treatment, by way of nerve blocks, and suffered a neck disorder.
The applicant refers to the evidence of symptoms extending all the way up the right arm.
The applicant submits that “The AMS” [sic, Medical Assessor], as a medical expert should not be restricted to assessing only the wrist and thumb in circumstances where the nervous system affecting his upper right arm has suffered injury and impairment.
Respondent
The respondent refers to ss 321 and 319 of the 1998 Act, noting the definition of “medical dispute” in s 319.
The respondent submits that in the present matter, there is no medical dispute in respect of CRPS or any other part of the right extremity except the wrist and thumb, that under s 319 id capable of being referred for assessment for assessment under s 321.
The respondent submits that the applicant has not led any evidence to indicate that CRPS is the subject of a medical dispute. The respondent notes that the applicant’s independent medical expert, Dr Guirgis in his report dated 5 June 2023 assessed 11% WPI for the right wrist and thumb, and 5% WPI for the cervical spine, resulting in a combined assessment of 15% WPI. Dr Guirgis specifically notes that the criteria for CRPS was not satisfied on the day of assessment.
The respondent submits that this is consistent with the assessment from the respondent’s independent medical expert, Dr Haig in his report dated 17 October 2023, which records no impairment arising from CRPS, only impairment arising from the right hand.
The respondent submits that on the basis of this evidence, there is no medical dispute between the parties in respect of the right upper extremity other than (in respect of) the wrist and thumb that could be capable of referral for assessment by a Medical Assessor pursuant to the 1998 Act.
The respondent further submit that the applicant has not made a valid claim for lump sum compensation in respect of CRPS or any other part of the right upper extremity other that the wrist and thumb that is capable of payment under the 1987 Act.
The respondent refers to the Court of Appeal decision in Skates v Hills Industries Ltd[15] and the Supreme Court decision in Yates v Flavorjen Pty Ltd.[16]
[15] [2021] NSWCA 142 (Skates).
[16] [2022] NSWSC 388.
The respondent submits that the two decisions abovementioned and the present state of the law were analysed by the President, Judge Phillips, in the decision of Secretary, New South Wales Department of Education v Connolly,[17] citing Basten JA in Skates. The President, at [84] of Connolly, confirmed that the jurisdiction of the Commission in a claim for lump sum compensation is “not at large”.
[17] [2023] NSWPICPD 138 (Connolly).
The respondent submits that the Commission has held that, in accordance with the abovementioned authorities, where a body system has been assessed by a party’s own independent medical examiner as having 0% WPI, that body system is not the subject of a “medical dispute” as that term is defined in s 319 of the 1998 Act. That line of authority creates an established proposition, according to the respondent, that a claim for 0% WPI is not a valid claim, and therefore cannot be the basis of a medical dispute under the 1998 Act.
The respondent submits that remitting the matter for referral to a Medical Assessor where the evidence does not provide for a claim capable of being compensated is contrary to the relevant authorities, and outside the scope of the jurisdiction of the Commission.
The respondent submits that:
“In the absence [sic, presence] of a medical dispute of 0% WPI for chronic regional pain syndrome, or any other part of the right upper extremity other that the wrist and thumb, it is not appropriate for the entirety of the right upper extremity to be referred for assessment to the MA.”
The respondent maintains that the referral to the Medical Assessor should be confined to the actual medical dispute between the parties.
FINDINGS AND REASONS
Case law
In Skates case a majority of the Court of Appeal, Basten JA and Leeming JA, McCallum JA (as she then was) dissenting, held that the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the 1987 Act is not at large. The form of an application to resolve a dispute requires identification of the date of injury, the description of the injury, and a description of how the injury occurred (per Basten JA at [27]).
At [30] his Honour said with reference to the medical reports relied on by the parties in that matter in support of their respective claims for permanent impairment:
“As the primary judge found, this material defined the proper scope of the referral.”
Leeming JA discussed as a starting point the term “medical dispute” as that term is defined in s 319 of the 1998 Act. That term in defined by reference to the existence of a “dispute between a claimant and a person on whom a claim is made” about any of seven related subject matters, including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. His Honour said that:
“It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.” (Emphasis in original)
At [46]. Leeming JA said:
“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.”
(The reference to s 288 being to that section in the 1998 Act.)
His Honour referred to the provisions in the 1998 Act dealing with referrals for assessment, noting that they proceed on the basis that the outcome of the medical assessment is the resolution of the medical dispute. This is consistent with the conclusive presumption of correctness accorded by s 326 of the 1998 Act to assessments which are certified in a medical assessment certificate.
At [48] his Honour said:
“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.”
And at [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.”
(Emphasis in original.)
McCallum JA in dissent held that the term “medical dispute” in s 319 of the 1998 Act should be understood with reference to the description injury in the ARD, that is the degree of permanent impairment as a result of an injury. Her Honour said at [82]:
“Since preparing this judgment, I have had the benefit of reading the judgment of Basten JA in draft. His Honour’s reasoning has prompted me to clarify my position as to the status of the Registrar’s referral. I do not mean to suggest that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.”
In Connolly, the President of the Commission referred with approval to Skates, noting Basten JA’s comment that the jurisdiction of the Commission is “not at large”, and that the authority if Skates is binding on the Commission.[18]
[18] Connolly at [84].
More recently in Voudouris v TDV Constructions Pty Ltd[19] the President, after quoting [44]- [49] of Leeming JA’s judgement in Skates said at [48]:
“As can be gleaned from His Honour’s remarks (above) that I have highlighted, the essence of the Commission’s power to entertain a medical dispute is the existence of a dispute.”
Consideration
[19] [2023] NSWPICPD 53.
The dispute in this case is the degree of permanent impairment as a result of injury to the applicant on 5 March 2021 when he struck the back of his right hand on a forklift which had been parked behind him. In making his claim, the applicant relied on the independent medical assessment of Dr Guirgis in his report dated 5 June 2022, noting that the date of that report is incorrectly stated in the letter of claim referred to above at [15].
Dr Guirgis assessed Mr Dewar as having sustained 15% WPI as a result of injury on 5 March 2021, consisting of 5% WPI in respect of the cervical spine and 11 % in respect of the right upper extremity. When the Combined Table values is used, a resulting WPI of 15% is obtained.
Relevant excerpts of the report of Dr Guirgis in respect of CRPS are set out above at [8]- [10]. Immediately following the doctor’s comments on CRPS, he says at the top pf p 8 of his report “As an alternative one would assess the sensory deficits according to AMA V Table 16-10”.[20] The reference to “AMA V” is to the Guides to the Evaluation of Permanent Impairment, Fifth Edition, published by the American Medical Association.
[20] ARD p 61.
Dr Guirgis then goes on to assess the sensory deficits according to AMA V Table 16-10 (“Determining Impairment of the Upper Extremity Due to Sensory Deficits or Pain Resulting From Peripheral Nerve Disorders”). He then assesses the right wrist and thumb and arrives at an assessment of a total of 19% upper extremity impairment, equivalent to 11 % WPI.
That assessment is the basis of the applicant’s claim for permanent impairment as a result of injury to the right upper extremity on 5 March 2021.
The respondent relies upon the assessment of Dr Haig in his report dated 17 October 2023 of 4% WPI.
Acknowledging the applicant’s reference in his written submissions to comments by doctors other than Dr Guirgis in respect of symptoms of CRPS, the dispute between the parties is particularised by the claim made by the applicant based on the assessment of Dr Guirgis, and the assessment of Dr Haig on which the respondent relies. The dispute between the parties has been identified by a written exchange of these competing claims.
For these reasons, and having regard to what was held in Skates, Connolly, and Voudouris, I do not accept the applicant’s submission that the Medical Assessor should not be restricted to assessing only the wrist and thumb in circumstances where the nervous system affecting his upper right arm has suffered injury and impairment.
The referral to the Medical Assessor will be as submitted by the respondent, that is, as a result of injury on 5 March 2021 to the:
(a) cervical spine, and
(b) right upper extremity (wrist and thumb).
SUMMARY
The matter is remitted to the President for referral to a Medical Assessor for assessment of WPI as a result of injury on 5 March 2021 to the:
(a) cervical spine, and
(b) right upper extremity.
The documents to be referred to the Medical Assessor are:
(a) ARD and attachments;
(b) Reply and attachments, and
(c) this Certificate of Determination and Statement of Reasons.
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