Gens v Autocare Services Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Gens v Autocare Services Pty Ltd [2022] NSWPICMP 343
APPELLANT:	Raymond Philip Gens
RESPONDENT:	Autocare Services Pty Ltd
Appeal Panel:	Member Carolyn Rimmer Medical Assessor Margaret Gibson Medical Assessor J Brian Stephenson
DATE OF DECISION:	26 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - Applicant referred to Medical Assessor (MA) for assessment of whole person impairment of the right upper extremity, left upper extremity and skin as a result of the injury on 17 August 2016; applicant submitted that the MA had failed to consider the nerve conduction studies as well as complaints of pain, range of motion and loss of strength and the MA did not provide valid nor adequate reasoning for his conclusions; Held — Panel satisfied that the MA failed to properly assess medial nerve function and that this failure was an error; Panel considered that the MA had concluded that the appellant did not have carpal tunnel syndrome (CTS) without providing adequate reasons and considering adequately the many presentations of CTS; re-examination; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 March 2022 Raymond Philip Gens (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Yiu-Key Ho, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 March 2022.
The respondent to the appeal is Autocare Services Pty Ltd (the respondent).
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 April 2016 reissued on 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

In these proceedings, the appellant is claiming lump sum compensation in respect of the right upper extremity, left upper extremity and scarring /TEMSKI as a result of the injury on 17 August 2016.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated
15 July 2021, the matter was referred to the MA, Dr Yiu-Key Ho, for assessment of whole person impairment (WPI) of the right upper extremity (wrist, median nerve), left upper extremity (wrist) and skin (TEMSKI (right wrist) as a result of the injury on 17 August 2016.
The MA examined the appellant on 28 February 2022. He assessed 0% WPI of the left wrist, 8% of the right wrist and 1% for scarring of the right wrist. The Combined Total WPI was 9% as a result of the injury on 17 August 2016.

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 WorkCover Medical Assessment Guidelines 2006.
Mr Gens requested that he be re-examined by a MA, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Mr Gens to undergo a further medical examination because the MAC contained a demonstrable error and there was insufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Dr Stephenson of the Appeal Panel conducted an examination of the appellant worker on
20 July 2022 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the MA 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: The MA erred in finding that there was no bilateral Carpal Tunnel Syndrome (CTS);
(b)    paragraphs 2.9 of the Guidelines provides: “The assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation”. AMA 5 on pages 492-3 outlines how to diagnose nerve entrapment/compression neuropathy which leads to CTS providing:
“The diagnosis of entrapment/compression neuropathy is based on (1) the history and symptoms; (2) objective clinical signs and findings on detailed examination: and (3) documentation by electroneuromyographic studies.”
(c)    further, AMA 5 on page 495 outlines the symptomatologies that may be present when diagnosing CTS:
“Pain and paresthesias in the median nerve distribution of the hand are the usual symptoms…
True sensory disturbances and muscle atrophy represent later stages…
The symptoms, signs and findings may include sensory or autonomic disturbances of the radial 3½ digits, weakness or atrophy of the thenar muscles, a positive percussion sign at the wrist, presence of Phalen’s signs, and motor and sensory electroneuromyographic abnormalities. Not all symptoms are necessarily present in any one case.
…If, after an optimal recovery time following surgical decompression, an individual continues to complain of pain, paresthesias, and/or difficulties in performing certain activities, three possible scenarios can be present:
1. Positive clinical findings of median nerve dysfunction and electrical conduction delay(s): the impairment due to residual CTS is rated according to the sensory and/or motor deficits as described earlier.
2. Normal sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles: a residual CTS is still present, and an impairment rating not to exceed 5% of the upper extremity may be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein monofilament testing), opposition strength, and nerve conduction studies: there is no objective basis for an impairment rating.”
(d)    the task of the MA was, first, to examine all medical evidence available to him and, second, to examine the appellant and establish whether they met the requirements when making a finding for CTS;
(e)    Dr James Bodel, in his supplementary report dated 19 January 2022, made a finding, after examining a nerve conduction study by Dr Rob McGrath dated
29 November 2021, of “mild bilateral carpal tunnel syndrome”;
(f)    the MA in his MAC did not assess CTS. In the physical examination the MA stated: “Although there was a nerve conduction study showing mild bilateral carpal tunnel syndrome, but [sic] I do not think there any clinical signs to support it”;
(g)    furthermore, in his examination the MA noted pain and weakness in the right wrist;
(h)    at page 4 of the MAC, under subheading “b. An explanation of my calculations (if applicable)”, at paragraphs 3 and 4, the MA opined;
“Altogether there is 14% upper limb [sic] impairment. Once again I do not agree he have carpal tunnel. His complain(sic) is not numbness. He has pain and weakness, probably in this particular case would be related to the vascular injury. He lost a pulse but the treatment of that is non-operative in the review by the vascular surgeon… So using all the modules I am aware of in AMA 5, I do not think he is qualified to be a case of carpal tunnel syndrome because there is no clinical symtomps [sic] or clinical signs to support it.”
(i)    the MA failed to consider the nerve conduction studies as well as Mr Gen’s complaints of pain, range of motion and loss of strength;
(j)    despite these positive objective findings as well as complaints on assessment, the MA rejected the diagnosis of bilateral CTS on the basis of his subjective opinion. Furthermore, the MA did not provide valid or adequate reasoning for his conclusions;
(k)    Ground 2: The MA has a statutory obligation to provide reasons pursuant to s 325 of the 1998 Act. These principals were discussed in El Masri v Woolworths Ltd [2014] NSWSC 1344 where Campbell J held at [29]:
“As I have said, and at the risk of repeating myself unduly, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. Although, as Ms Allars reminded me, Wingfoot does not necessarily apply to this case because it was a case where there was a statutory obligation to give reasons, and in this case the obligation to give reasons is implied by the general law as explained in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, what their Honours said at [55] of Wingfoot must be applicable. Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, especially if one has regard to what was said by the Panel at paragraph 18 which I will not further set out.”
(l)    the failure to provide valid reasoning as to why he came to his conclusion, that was contrary to the available objective evidence of the finding of mild bilateral CTS, offended the requirements to show the path of reasoning and constituted a demonstrable error, and
(m)     the matter should be referred to a MAP for assessment of WPI in accordance with the AMA 5 and the Guidelines.
The respondent’s submissions include the following:
(a)    the respondent disputed that MA’s assessment was made on the basis of incorrect criteria and/or contained a demonstrable error;
(b)    the MAC did not contain a demonstrable error and that the MA provided adequate reasons in relation to how he reached the conclusion that Mr Gens does not suffer from CTS. The MAC should be confirmed;
(c)    there was no evidence to substantiate the submission that the MA failed to consider the nerve conduction studies, particularly noting that at paragraph 10c (page 5) the MAC, the MA recorded that: ‘Although there was a nerve conduction study showing mild bilateral carpal tunnel syndrome, but [sic] I do not think there are any clinical signs to support it’;
(d)    as discussed in Avni v Visy Industrial Plastic Pty Ltd [2017] NSWWCCMA 21 at [39]:
“The AMS is presumed to have acted in accordance with the presumption of regularity. One of the matters that can be assumed an AMS would attend to, is that he would thoroughly and carefully read the material which had been referred to him.”
(e)    the MA considered the nerve conduction study when undertaking his examination and this was supported by the reference at paragraph 10c (page 5) of the MAC;
(f)    Ground 2: failure to provide reasons. The MA provided sufficient reasoning as to how he reached his conclusion that the appellant does not suffer from bilateral CTS;
(g)    AMA 5 at page 492-493 provided that:
“The diagnosis of entrapment/compression neuropathy is based on:
(1) the history and symptoms;
(2) objective clinical signs and findings on detailed examination; and
(3) documentation by electroneuromyography studies.”
(h)    Page 495 of the AMA 5 provides that:
“There are many presentations of CTS. Pain and paraesthesia in the median nerve distribution of the hand are the usual symptoms. Pain may radiate proximally. Nocturnal paresthesias, relived by shaking the hand, are frequently reported and can be the only symptoms in the earliest stages of nerve pathology. The symptoms, signs, and findings of Carpal Tunnel Syndrome may include sensory or automatic disturbance of the radial 3 ó digits, weakness or atrophy of the thenar muscles, a positive percussion sign at the wrist, presence of the Phalen’s sign, and motor and sensory electroneuromyography abnormalities.”
(i)    On examination of the appellant, the MA reported, at page 3 of the MAC, that there was a:
“…longitudinal cut 5 cm on the antero-radial side of the right wrist. The scar is well healed. I cannot find any swelling. There is no features to suggest carpal tunnel, no thenar muscle wasting, negative Tinel sign and no Phalen’s test. But I cannot feel the radial pulse on the right side. On the left hand, there is no obvious swelling, no stiffness on examination, no features to suggest carpal tunnel. The pulse is present.”
(j)    As reported at paragraph 4 (page 2) of the MAC, the MA took a history that the appellant presents with symptoms of “pain, loss of strength and the right wrist being stiff. The left is not too bad”. The MA further reported that:
“…he does not really complain of pins and needles. The main problem is pain. Actually, in the operation record by Dr Nabroo in 2013, there was damage of the radial artery which required a repair. The problem failed to improve.”
The appellant did not report paraesthesia, motor weakness, sensory loss or muscle paralysis;
(k)    in Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (Wark), at [33]:
“…the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face”.
(l)    as discussed in Rujak v Glad Cleaning Services Pty Ltd & Ajax Cleaning Services Pty Ltd t/as ADZ Cleaning Services Pty Ltd [2020] NSWWCCMA 123 (Rujak) at [28], the MA “is entitled to rely on his clinical findings on the day of examination. His job is not to make an assessment on the basis of the appellant’s self-report”;
(m)     the MA provided adequate reasons for his conclusions in respect to CTS as he detailed how the clinical findings did not support a diagnosis, as indicated at paragraph 10b (page 4) of the MAC:
“… the range of movement of the left wrist is very good in all range and there is no permanent impairment. There is no features to support carpal tunnel syndrome because patient is not having pins and needles. He only complained of pain, loss of strength, repeated use probably relating to the ganglion cyst. Once again I do not agree he have carpal tunnel. His complain is not numbness. He has pain and weakness, probably in this particular case would be related to the vascular injury. He lost a pulse but the treatment of that is non-operative in the review by a vascular surgeon.
…I do not think he is qualified to be a case of carpal tunnel syndrome because there is no clinical symptoms or signs to support it. So using all the modules I am aware of in AMA 5, I do not think he is qualified to be a case of Carpal Tunnel Syndrome because there is no clinical symptoms or clinical signs to support it.”
(n)    further, the MA provided detailed reasons as to why he did not agree with the findings of Dr Bodel at paragraph 10c (page 5) of the MAC:
“I also cannot agree with him to give a 10% impairment in relation of carpal tunnel on the right hand because I do not think there is any clinical signs. Although there was a nerve conduction study showing mild bilateral carpal tunnel syndrome, but I do not think there are any clinical signs to support it.”
(o)    the MA took a consistent history of the appellant’s injury and symptoms however, on examination he could not find ‘clinical symptoms or clinical signs’ of CTS. In accordance with the decisions of Wark and Rujak, the MA has reached the above conclusion on the basis of his clinical observations and findings on the day of examination, noting the appellant did not display any signs or symptoms identified at page 493 [sic] of the AMA 5 namely, “sensory or autonomic disturbance of the radial 3 1/2 digits, weakness or atrophy of the thenar muscles, a positive percussion sign at the wrist, presence of the Phalen’s sign, and motor and sensory electroneuromyography abnormalities”;
(p)    the findings of the MA were supported by Dr Graeme Doig who similarly opined, in his report of 11 November 2020, that on examination ‘there was no neurological deficit of the upper limbs. There were no clinical signs at the time of my examination of carpal-tunnel syndrome on the right with intact sensation and normal power with no evidence of thenar wasting and negative provocation tests”;
(q)    the diagnosis of entrapment/compression neuropathy is based on three categories, as identified at page 492-492 of AMA 5, which includes both the history and symptoms, and the objective clinical signs and findings on detailed examination. The category of “documentation by electroneuromyography studies” represents one of the three categories, which is not in itself sufficient to constitute a finding of CTS, and instead, must be accompanied with symptoms and objective clinical signs and findings on examination. We note that the MA did not find symptoms and objective clinical signs and findings on examination;
(r)    the presumption of regularity applies in this instance. As noted in Bojko v ICM Property Services Pty Ltd [2009] NSWCA 175: ‘there is a presumption, albeit one which is rebuttable, that an AMS, being an expert trained in the assessment criteria and methodology, has conducted an appropriate examination and is aware of, and has considered and applied, the appropriate assessment criteria when reaching conclusions in the exercise of their clinical skill and judgement’;
(s)    the MA provided an explanation and sufficient reasoning for the assessment of WPI set out in the MAC of 4 Mach 2022. The MA has adequately applied his own decision-making process based on the material before him and the history taken from the appellant, to provide an appropriate assessment of WPI as he presented on the day, and
(t) the appellant has not established that the MAC contains a demonstrable error. Accordingly, the appellant has not made out the grounds of appeal under section 327(3)(c) of the 1998 Act. 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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the delegate has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.

Section 327(2) 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] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘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.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Medical Assessment Certificate

Under “History Relating to the Injury”:
“Mr Raymond Philip Gens worked as a mechanic since 16 years old and he stopped
working about a year ago. Altogether 35 years in this trade. He started to complain of pain in the right wrist, together with swelling. He cannot pick up things after a period of manipulations and tended to drop things. So, he first went to see his family doctor around May 2012 and was referred to see Dr Stuart Jansen. Investigation at that time confirmed avolar radial side ganglion. Size 20 x 10 x 10 mm. Dr Jansen recommended him to have the ganglion excised and the operation was done on 31 July 2012. Unfortunately, he did not find the operation helpful. The problem persisted, the swelling recurred and the wrist still remained painful, weak and he was dropping things. Further investigation with an MRI roughly a year later on 2 May 2013, confirmed a recurring ganglion, size 16 x 11 x 6 mm. Dr Jansen recommended him to see hand surgeon in St George area, Dr Nabaroo. Operation was done by Dr Nabaroo on 20 September 2013. Once again he did not find the operation helpful. He mainly complained of pain around the wrist area on the front.
The wrist remained stiff and he kept on dropping things. He does not really complain of pins and needles. The main problem is pain. Actually in the operation record by
Dr Nabaroo in 2013, there was damage of the radial artery which required a repair. The problem failed to improve. Then in 2016, he complained of problem in the left wrist, similar area, similar complaint but not as bad as the right side. Investigation at that time confirmed by ultrasound on 18 August 2016, the right wrist there was no more ganglion cyst but there were features of stenosis of radial artery. It showed a stenosis of about 5 cm segment from the wrist to the distal forearm. He had been referred to vascular surgeon, who recommended conservative treatment. Over the left wrist, the ultrasound confirmed a 8 x 3 x 4.5 mm ganglion cyst. He was referred to another hand surgeon,
Dr John Tawfik. Based on the previous history and progress from surgery and then a relative small ganglion on the left wrist, he was advised not to have surgery and stayed on permanent light duties. He was also referred to see an occupational physician for vocational assessment and job rehabilitation. He did not end up with anymore surgery on the left wrist and no more operation on the right side.”
Under “Present symptoms” the MA wrote:
“Worse on the right side. There is pain, loss of strength and the right wrist being stiff. The left side is not too bad. He actually did not complain much about the swelling and it is not stiff, but it is not strong according to him. He never complains of pins and needles.”
Under “Physical Examination Findings” the MA wrote:
“On inspection of the right wrist, the longitudinal cut 5 cm on the antero-radial side of the right wrist. The scar is well healed. I cannot find any swelling. There is no features to suggest carpal tunnel, no thenar muscle wasting, negative Tinel sign and no Phalen’s test. But I cannot feel the radial pulse on the right side.
On the left hand, there is no obvious swelling, no stiffness on examination, no features to suggest carpal tunnel. The pulse is present.
The range of movement of both wrists are as followed:
Movement              Right wrist        Left wrist
Extension                40˚                  60˚
Flexion  30˚                  60˚
Radial deviation      15˚                  20˚
Ulnar deviation        20˚                  30˚
Supination               50˚                  70˚
Pronation                60˚  70˚”
Under “Summary of injuries and diagnoses” the MA wrote:
“Summary of injuries and diagnoses:
Mr Raymond Philip Gens worked as a mechanic and developed a volar wrist ganglion on both wrists. He had two operations on the right wrist as the ganglion recurred and during the second operation, there was damage to the radial artery. He did not proceed to do surgery on the left wrist as the cyst was relatively small. He had residual problem in both wrists, worse on the right side.”
Under “Reasons for Assessment”, the MA wrote:
“a. My opinion and assessment of whole person impairment
I believe he has reached maximum medical improvement. He certainly have permanent impairment in relation to the right wrist because there is pain, loss of movement and weakness relating to repeated surgery and damage to the radial artery in the second operation. He does not have any obvious clinical cysts on the left wrist, although there is a small one shown in the MRI. The left wrist shows good function without obvious functional impairment.
In making that assessment I have taken account of the following matters:-
b. An explanation of my calculations (if applicable)
Using AMA Guide 5th Edition, Figure 16-28, 31 and 37. The range of movement of the left wrist is very good in all range and there is no permanent impairment. There is no features to support carpal tunnel syndrome because patient is not having pins and needles. He only complained of pain, loss of strength, repeated use probably relating to the ganglion cyst. I cannot find any modules that will fit the assessment of the left wrist and I ended up with 0% impairment for the left side.
For the right side, using AMA Guide 5th Edition, Figure 16-28. 40˚ is 4% of extension of upper limb impairment, 30˚ of flexion is 5%. Using Figure 16-31, 15˚ of radial deviation is 1%, 20˚ of ulnar deviation is 2%. Using Figure 16-37, 50˚ of supination is 1%, pronation of 60˚ is 1%
Altogether there is 14% upper limb impairment. Once again I do not agree he have carpal tunnel. His complain is not numbness. He has pain and weakness, probably in this particular case would be related to the vascular injury. He lost a pulse but the
treatment of that is non-operative in the review by the vascular surgeon.
So using all the modules I am aware of in AMA 5, I do not think he is qulified to be a case of carpal tunnel syndrome because there is no clinical symtomps or clinical signs to support it. The whole person permanent impairment on the right wrist will be 8% and using the TEMSKI scale, at the most, I will give him 1% because the scar actually healed up very well. Altogether I will give him 9%.”
In commenting on other medical opinions, the MA wrote:
“I do not agree with Dr Bodel. In terms of range of movements, I believe we have a similar assessment except I did not give any permanent impairment to the elbow in terms of the loss in extension because the injury and the problem all centred around the wrist. I also cannot agree with him to give a 10% impairment in relation of carpal tunnel on the right hand because I do not think there is any clinical signs. Although there was a nerve conduction study showing mild bilateral carpal tunnel syndrome, but I do not think there are any clinical signs to support it. My movement assessment of the left wrist is not consistent with Dr Bodel. Instead, I got a similar assessment to Dr Doig. That explains the difference in our assessments.”

Assessment of carpal tunnel syndrome

Paragraphs 2.9 of the Guidelines provides:
“The assessment of carpal tunnel syndrome post-operatively is undertaken in the same way as assessment without operation.”
Under the heading, “Diagnosis of Entrapment/Compression Neuropathy” AMA 5 on pages 492-3 outlines how to diagnose nerve entrapment/compression neuropathy (which leads to CTS) and provides:
“The diagnosis of entrapment/compression neuropathy is based on (1) the history and symptoms; (2) objective clinical signs and findings on detailed examination: and (3) documentation by electroneuromyographic studies.”
Under the heading “Carpal Tunnel Syndrome”, AMA 5 on page 495 provides:
“The carpal tunnel syndrome (CTS) is the most common of nerve compression lesions and involves the median nerve at the volar aspect of the wrist. There are many presentations of CTS. Pain and paresthesias in the median nerve distribution of the hand are the usual symptoms. Pain may radiate proximally. Nocturnal paresthesias, relieved by shaking the hand, are frequently reported and can be the only symptom in the earliest stages of nerve pathology. True sensory disturbances and muscle atrophy represent later stages, when axonotmesis with axonal degeneration is also present. The symptoms, signs and findings may include sensory or autonomic disturbances of the radial 3½ digits, weakness or atrophy of the thenar muscles, a positive percussion sign at the wrist, presence of Phalen’s signs, and motor and sensory electroneuromyographic abnormalities. Not all symptoms are necessarily present in any one case. In isolated involvement of the recurrent branch of the medial nerve, there is weakness of thumb abduction and thenar atrophy without any sensory disturbance in the hand. Sensitivity to cold may be a major presenting symptom of CTS. Certain cases may be associated with reflex dystrophy (CRPS I). It has also been reported that 5% of individuals with CTS may have normal electrophysiologic studies.
If, after an optimal recovery time following surgical decompression, an individual continues to complain of pain, paresthesias, and/or difficulties in performing certain activities, three possible scenarios can be present:
1. Positive clinical findings of median nerve dysfunction and electrical conduction delay(s): the impairment due to residual CTS is rated according to the sensory and/or motor deficits as described earlier.
2. Normal sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles: a residual CTS is still present, and an impairment rating not to exceed 5% of the upper extremity may be justified.
3. Normal sensibility (two-point discrimination and Semmes-Weinstein monofilament testing), opposition strength, and nerve conduction studies: there is no objective basis for an impairment rating.”
The Appeal Panel reviewed the evidence in this matter.
Dr Mark Nabarro, in a report dated 12 June 2013, noted that the appellant had a recurrent volar carpal ganglion in the right wrist and was troubled with swelling.
In the operation report dated 20 September 2013, Dr Nabarro noted that the ganglion was adherent to the radial artery. He wrote: “The ganglion was dissected free, followed down to its origin from the scapho-lunate ligament and excised. During the dissection, a small hole was noted in the anterior wall of the radial artery and this was repaired …”
Dr Graeme Doig in a report dated 11 November 2020 wrote: “There is currently no evidence that the worker suffered from median-nerve compression at the right wrist for the reasons previously stated. Nerve-conduction studies, in my opinion, are required to clarify this diagnosis”.
In a report dated 29 November 2021, Dr Rob McGrath noted that nerve conduction studies had been carried out and concluded that there was electrophysiological evidence of mild bilateral carpal tunnel syndrome.
In a report dated 7 September 2020, Dr James Bodel found that the appellant had sensory loss in the median nerve distribution on the right hand side, which is a Grade IV sensory loss, but there is no motor weakness.
The appellant submitted that the MA had failed to consider the nerve conduction studies as well as the appellant’s complaints of pain, range of motion and loss of strength, and rejected the diagnosis of bilateral CTS on the basis of his subjective opinion. Furthermore, the MA did not provide valid nor adequate reasoning for his conclusions.
The MA noted the main complaint was pain, and there were complaints of swelling, loss of strength and stiffness in the right wrist, as well as a reference to the appellant “not really” complaining of pins and needles. There was no mention of numbness. The MA then said: “No features suggest CTS”. The MA had outlined the negative findings made (that is, no thenar muscle wasting, negative Tinel sign and no Phalen’s test) but made no negative findings excluding loss of sensation. The Appeal Panel was satisfied that the MA failed to properly assess medial nerve function (as Dr Bodel did) and that this failure was an error. The Appeal Panel considered that the MA had just concluded that Mr Gens did not have CTS without providing adequate reasons and considering adequately the many presentations of CTS.
The appellant had undergone two surgical procedures in the right wrist, and the Appeal Panel considered that these procedures were likely to have caused scarring around the volar aspect. Such scarring can cause CTS and it was important in those circumstances for the assessor to consider carefully whether the appellant had CTS. Dr Bodel found CTS on the right and not on the left, which was consistent with CTS having developed as a result of surgery. There was evidence of scarring and a bleed/laceration of the right radial artery. The MAC lacked any reference to whether on examination there were any sensory changes. The MA, in the Appeal Panel’s view, did not articulate an adequate or full reasoning process.
The Appeal Panel concluded that it was necessary for the appellant worker to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Dr Stephenson re-examined the appellant on 20 July 2022. Dr Stephenson provided the following report:
“1. The worker's medical history, where it differs from previous records
There was no new medical history. The claimed injuries resulted from his work as a motor mechanic on date of injury. Because of the injuries, he has been unable to work as a mechanic and he last worked over 12 months ago. He is unable to do intricate manoeuvres using the upper extremities when working under and over car engines. He developed symptoms of right carpal tunnel syndrome. He used to work at the Port Kembla Docks as imported trucks were being delivered to the wharf.
Mr Gens would then drive the trucks to the workshop at Patricks Auto which was on the wharf at Port Kembla. He had to use large pneumatic tools to do up wheel nuts as the trucks were delivered without the wheels. He also had to fit bull bars and sit with his hands on the chassis of the truck drilling holes for the bolts and use rattle guns to secure the nuts on the bolts. He is dominant right-handed.
Subsequently, Dr Jansen, Orthopaedic Surgeon, excised a ganglion right wrist which subsequently recurred with reduced range of motion right wrist and then subsequently Dr Nabaroo, Orthopaedic Surgeon, attended to him.
2. Additional history since the original medical assessment certificate was performed.
There was no additional history.
3. Findings on clinical examination.

Left Wrist	ROM	UEI
Palmar flexion	50°	2%
Dorsiflexion	50°	2%
Radial Deviation	20°	0%
Ulnar Deviation	50°	0%

There was measurable restriction in range of motion of both wrists, which was a small restriction at the non-operated left wrist but more significantly at the right wrist. Reference AMA5 Chapter 16 Page 467-469, Figure 16-28 to Figure 16-31.
There is a 4% upper extremity impairment which converts to 2% WPI for the left wrist.

Right Wrist	ROM	UEI
Palmar flexion	30°	5%
Dorsiflexion	30°	4%
Radial Deviation	10°	2%
Ulnar Deviation	20°	2%

There is a 13% upper extremity impairment at the right wrist which is used to be combined with impairment rating related to carpal tunnel syndrome at the right wrist, assessment of carpal tunnel syndrome. Reference AMA 5, Page 482, Table 16-10.
I have chosen grade 3 for sensory deficit or pain as there is distorted superficial tactile sensibility (diminished light touch and two-point discrimination) with some abnormal sensations or slight pain that interferes with some activities.
At grade 3 due to range of 26% to 60% and due to the degree of sensory loss, I have chosen a 50% sensory deficit.
On examination for carpal tunnel syndrome at right wrist, I note two-point discrimination distance is felt at 1 cm but not felt at 2 cm. I refer now Table 16-15, Page 492, for median nerve below mid forearm, the sensory deficit or pain at maximum upper extremity is 39%. With a sensory deficit or pain grade 3 of 50%, that is 50% of 39 which rounds up to 20% upper extremity.   The restriction in range of motion at the right wrist, gains a 13% upper extremity impairment.
I have found that the right wrist 13% upper extremity impairment for range of motion, now combines with a carpal tunnel syndrome value of 20% upper extremity.
For the right upper extremity wrist, we combine 20% UEI for median nerve with 13% UEI for range of motion loss at right wrist. The combination of 20 with 13 gains 30% UEI which converts to 18% WPI.
The surgical scar was visible and 5 cm in length on the anterior radial side of the right wrist.
With reference to WorkCover Guidelines, Page 74, Table 14.1 TEMSKI Table, I found the best fit of 1% WPI as follows:
•       Claimant conscious of the scar.
•       Some parts of the scar colour contrasts with surrounding skin as a result of pigmentary changes.
•       Claimant able to locate scar.
•       Minimal trophic changes.
•       Any staple or suture marks are visible.
•       Anatomic location of the scar or skin condition not easily visible with usual clothing style.
•       Minor contour defect.
•       Negligible effect on any ADL.
•       No treatment required.
•       No adherence.
Conclusion: 1% WPI.
The 18% WPI right wrist, median nerve combines with 2% WPI left wrist and 1% WPI for volar surgical scar. The combination of 18 with 2 with 1 gains 21% WPI.
4.      Results of any additional investigations to original medical assessment certificate.
No, there were no additional investigations since the original MAC.”

The Appeal Panel has adopted the report and findings of Dr Stephenson.
The Appeal Panel was satisfied that Dr Stephenson found a measurable restriction of active range of motion in both wrists. Dr Stephenson was satisfied that the appellant had CTS in the right wrist, which he assessed as grade 3 for sensory deficit or pain as there was distorted superficial tactile sensibility (diminished light touch and two-point discrimination) with some abnormal sensations or slight pain that interfered with some activities. The Appeal Panel agreed with the assessment of a 50% sensory deficit. The Appeal Panel noted that on examination Dr Stephenson found a two-point discrimination distance was felt at 1 cm but not felt at 2 cm. In Table 16-15 of AMA 5, at page 492, for median nerve below mid forearm, the sensory deficit or pain at maximum upper extremity is 39% so a sensory deficit or pain grade 3 of 50% is 50% of 39 which rounds up to 20% UEI.
In this matter, the Appeal Panel found a demonstrable error in the MAC and determined that the MAC be set aside. The Appeal Panel was required to undertake a fresh assessment of the appellant’s WPI in accordance with the Guidelines. The Appeal Panel has made such an assessment of WPI on the basis of a clinical assessment of the appellant by Dr Stephenson, the relevant medical history and all the available relevant medical information.
The Appeal Panel has therefore assessed 18% WPI for the right upper extremity, 2% WPI for the left upper extremity and 1% WPI for scarring (TEMSKI). The total WPI is 21% as a result of the injury on 17 August 2016.

For these reasons, the Appeal Panel has determined that the MAC issued on 4 March 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W4997/21
Applicant:	Raymond Philip Gens
Respondent:	Autocare Services Pty Ltd

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 Dr Dr Yiu-Key Ho 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	17 August 2016	AMA5 Chapter 16 Page 467-469, Figure 16-28 to Figure 16-31, Page 482, Table 16-10 Table 16-15, Page 492	18%	0%	18%
2.Left upper extremity	17 August 2016	AMA5 Chapter 16 Page 467-469, Figure 16-28 to Figure 16-31.	2%	0%	2%
3.Right Wrist scarring	17 August 2016	Page 74, Table 14.1 TEMSKI Table	1%	0%	1%
Total % WPI (the Combined Table values of all sub-totals)					21%

[2022] NSWPICMP 343

26 August 2022