Gusavac v GPC Asia Pty Ltd
[2022] NSWPIC 123
•23 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Gusavac v GPC Asia Pty Ltd [2022] NSWPIC 123 |
| APPLICANT: | Nada Gusavac |
| RESPONDENT: | GPC Asia Pty Ltd |
| MEMBER: | Michael Perry |
| DATE OF DECISION: | 23 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicants application for reconsideration (RA) of Medical Assessor (MA) assessment finding of no complex regional pain syndrome (CRPS) injury for purpose of setting aside of certificate of determination (COD) and referral back to MA for reconsideration under section 329 (1A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); discussion interaction of section 329 and section 322A and section 327 of the 1998 Act; discussion about Chapter 17 of Guidelines for the Evaluation of Permanent Impairment requiring that a CRPS assessment be undertaken in accordance with that Chapter; Held- RA to set aside COD declined and application to refer matter back to MA for reconsideration under section 329 of the 1998 Act refused. |
| DETERMINATIONS MADE: | 1. That the applicant’s application for the Commission to reconsider and set aside the Certificate of Determination dated 6 August 2021 is declined. 2. That the applicant’s application for this matter to be referred to the Medical Assessor for reconsideration under s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused and dismissed. |
STATEMENT OF REASONS
BACKGROUND
Nada Gusavac (the applicant) was in the course of her employment with GPC Asia Pacific Pty Ltd (the respondent) on 12 June 2018 when she tripped over a pallet and fell to the floor. She suffered various injuries, including to her lumbar and cervical spines and both upper extremities. She has sought a reconsideration of a Certificate of Determination (COD) issued by Personal Injury Commission (Commission) on 6 August 2021 under s 57 of the Personal Injury Commission Act 2020 (PIC Act) (s 57) . The COD awarded her compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) reflecting an 11% whole person impairment (WPI).
The WPI assessment, and COD, are based on an assessment by a Medical Assessor (MA), Dr Ian Meakin. He issued a Medical Assessment Certificate (MAC) on 10 March 2021. On 25 March 2021, the applicant lodged an appeal to a Medical Appeal Panel (MAP) pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). On 2 July 2021, the MAP gave a decision, with reasons, to dismiss the applicant’s appeal, and confirmed the MAC (the MAP decision).
The reconsideration application (RA) was made by letter dated 1 November 2021. It is mainly based on these three medical reports made after the MAP determination; Dr Nimalan Harinesan, neurologist and A/Prof Suzanne Hodgkinson dated 6 August 2021 (the Harinesan report), Dr David Manohar, rehabilitation specialist, dated 24 August 2021 (Dr Manohar’s 2021 report), and Prof Steve Vucic, neurologist, dated 29 October 2021 (Dr Vucic’s 2021 report). The essence of the applicant’s case is that a diagnosis of Complex Regional Pain Syndrome (CRPS) is now apparent, when such diagnosis was previously “in question”.
ISSUES IN DISPUTE
The issues are whether the Commission should, firstly, reconsider and set aside the COD under s 57, and secondly, refer the matter for reconsideration to the MA under s 329(1A) of the 1998 Act.
PROCEDURE BEFORE THE COMMISSION
Conciliation and arbitration occurred on 21 February 2022. Greg Young of counsel appeared for the applicant (who was also in attendance), instructed by Anthony Macri solicitor. Fraser Doak of counsel, instructed by Naomi Tancred solicitor, appeared for the respondent.
Both parties elected to make oral and a written outline of submissions. For the applicant, previous counsel prepared the written outline. Mr Young more recently came into the case to make the oral submissions.
I am satisfied the parties understand the nature of the application and legal implications of any assertion made in the information supplied. I have used my best endeavours to bring them to an acceptable settlement. I am satisfied they have had sufficient opportunity to explore settlement and have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) the Reply and attached documents;
(c) the MAC;
(d) the MAP determination, and
(e) the RA and attached documents.
There was relatively limited evidence referred to by both counsel. A summary of it follows.
The MAC on 10 March 2021 after a face-to-face examination by the MA on 22 February 2021
With the assistance of a Serbian interpreter, the MA took a detailed history and noted the present treatment and symptoms. The symptoms included the cervical/neck pain and both shoulders, to a lesser extent on the left shoulder. The applicant also reported “intermittent paraesthesia radiating to the right and left arm affecting all fingers of the left hand and right hand, excluding the little finger. These symptoms, however, were not present today”.
The MA also noted the applicant complaining of continuing discomfort in his lower lumbar back, and intermittent periods where there was partial numbness of the whole of both hands, extending up to the armpits on each side – but that “this sensory loss is different to the episodes of pain and paraesthesia … she describes”. He also noted “intermittent symptoms …radiating to the right leg and the continued shaking of the right leg … observed today but … not present when she is removed from the examination table and… sitting in a chair”.
The MA found on physical examination, relevantly, all deep tendon reflexes in the upper extremities as symmetrically present and equal, but reduced, with the right forearm measured 0.5cm greater than the left side, consistent with her being right hand dominant. He also found equal power grip on the right and left sides with no evidence of wasting of hand musculature and no abnormalities of tone in the upper extremities. He then noted:
“At the time of today’s assessment there is a partial sensory loss involving the entire right and left arm from the level of the tips of the fingers and involving all digits. This is a partial sensory loss as (she) states … she can appreciate some touch … states that such clinical symptoms only intermittently occur and at times she reports only discomfort and paraesthesia in the distribution from the shoulder to the hands, excluding the fifth finger.”
The MA also found a full range of movement of the right and left elbows, wrists and all hand and fingers. He also found no abnormality of tone or sensation in the lower extremities; but:
“…there appears …an involuntary tremor involving the whole of the right leg … such tremor disappearing when walking and sitting … full range of asymptomatic right and left knee movement with no evidence of local heat, redness or effusion and no evidence of crepitus.”
The MA also noted “on examination of the skin of the upper and lower extremities there is no abnormality of colour, temperature or skin appearance … no abnormalities of nail or hair of the right or left upper extremities … no other findings”. He also considered the radiological investigations, including an X-ray and ultrasound of the right shoulder, and MRI scans of both shoulders, brain, spine, thoracic spine, both knees, hip, cervical spine and lumbar spine.
The MA considered various medical reports, including from Dr Michael Davies dated 29 April 2020, who “noted changes in colour along with swelling of the right upper extremity throughout his examination”. The MA noted such changes were “not present today”. He also noted Dr Manohar’s report of 18 June 2019 which “set out his clinical thoughts at that time … (he) accepted the diagnosis of (CRPS) … which was not present today”.
The MA also considered the report of Dr Mathew Giblin, orthopaedic surgeon, dated 16 March 2020 and observed that Dr Giblin noted that the applicant had not reached maximal medical improvement and therefore did not assess impairment, and that Dr Giblin noted a “…generalised decrease in sensation, more so on the right than the left … in the upper extremities in a non-specific dermatomal pattern … did note the tremor in the right leg … suggested … there was evidence of sympathetic dystrophy of the right upper limb …”
The MA also considered the reports of Prof Vucic “from 8 September 2018 through to 11 December 2018” and stated “in his final report he notes … symptoms most likely appear to be musculoskeletal in origin, although he does comment on the possibility of a (CRPS) …”
The MA’s ultimate assessment was a 0% WPI for the lumbar and cervical spines, and an 11% WPI with respect to the upper extremities.
The MAP Decision dated 2 July 2021
The MAP conducted a review and decided there was no error in the assessment, and therefore the applicant should not undergo a further medical examination. The MAP did allow the applicant’s application for the discharge summary from Liverpool Hospital dated 12 March 2021(the hospital report) to be admitted as further evidence on the appeal.
The MAP summarised the applicant’s submissions on the appeal as follows:
· Error by the MA in assessing the cervical spine. He should have found DRE II.
· Failure to specifically consider the criteria in Table 17.1 of the NSW Guidelines for the evaluation of permanent impairment (4th edition - the Guidelines) for CRPS.
· Additional relevant information, in the Liverpool Hospital discharge summary of 12 March 2021, noting the applicant is to undergo additional medical treatment with A/Prof Suzanne Hodgkinson.
The MAP then considered the MAC, noting the history taken by the MA was broadly consistent with the other evidence. The MAP also noted the MA’s recording of the applicant’s present treatment and symptoms, general health, work history and social activities/ADL.
The MAP noted the MA’s clinical findings assessment day, and the “special investigations” (radiological) the MA had regard to and noted the MA’s summary of injuries and diagnoses.
The MAP also noted that “the MA explained his assessment in relation to his findings regarding the cervical spine, lumbar spine and right & left upper extremities – shoulders”. The MAP also noted the MA had regard to other medical opinion that was before him and a summary of such other medical opinion, including those parts I have summarised above.
The MAP dealt with the aspect of the applicant’s cervical spine complaints, noting that the clinical findings by the MA on the day of the assessment do not allow for an assessment of DRE II – because those complaints do not correlate to a radicular pattern; therefore, the MAP could “discern no error in the assessment of 0% (WPI) for the cervical spine”.
The MAP dealt with the alleged failure to assess the CRPS aspect of the appeal and noted “the findings of the MA set out above would not allow an assessment of CRPS 1 or 2 to be made under the Guides”. The MAP then repeated the Guidelines in this respect as follows:
“… (CRPS) Type 1
For (CRPS) Type 1 (CPRS I) to be present for the purposes of assessment:
The diagnosis is to be confirmed by criteria in Table 17.1.
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 verifiable by more than one examining physician.
Other possible diagnoses have been excluded.
CRPS 1 is to be assessed as follows:
(a)Apply the Diagnostic Criteria for (CRPS) Type 1 (table 17.1).
(b)Table 17.1 Diagnostic Criteria for (CRPS) Types 1 and 2:
i)Continuing pain, which his disproportionate to any causal event.
ii)Must report at least one symptom in each of the four following categories:
(1)Sensory: Reports of hyperaesthesia and/or allodynia
(2)Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry
(3)Pseudo motor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry
(4)Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin)
iii)Must display at least one sign* (emphasis added) at time of evaluation in all of the following four categories:
(1)Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
(2)Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes.
(3)Pseudo motor/oedema: Evidence of oedema and/or sweating asymmetry.
(4)Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin)
iv) There is no other diagnosis that better explains the signs and symptoms.
* A sign is included only if it is observed and documented at time of the impairment evaluation (emphasis added).”
The MAP noted the applicant submitted that the MA failed to specifically refer to the Table 17.1 criteria. However, the MAP found that the MA’s clinical findings on the day of assessment, which had been set out above, did not fulfil the diagnostic criteria for CRPS Types 1 and 2 to be assessed. Accordingly, the MAP could discern no error in the MA failing to diagnose CRPS because the findings on the day of the assessment would not allow such a finding in accordance with the criteria set out in Table 17.1 above.
With respect to the Liverpool Hospital discharge summary, the MAP noted there were no submissions about how such evidence should be interpreted. But the MAP did go on to find such evidence did not assist the applicant in establishing the criteria for a CRPS because the findings on physical examination recorded in the hospital discharge summary also did not fulfil that diagnostic criteria.
The Harinesan report
The applicant was reviewed on 6 August 2021, over the telephone, by Dr Harinesan (alongside A/Prof Hodgkinson). The doctors wrote, “As a reminder, we regularly see Nada in relation to her significant right sided shoulder and arm pain”. They also noted that:
“Since our last review, Nada has unfortunately experienced ongoing pain and symptoms on the affected side. In particular, she describes sharp shooting episodes of pain, with associated discolouration and autonomic features within the limb … pain can be quite variable at times but is quite distressing and functionally impairing…Nada does have a diagnosis of (CRPS) in that limb after going through extensive testing including previous MRI studies and neurophysiological studies … was reviewed recently for a possibility of a … nerve ganglion block which we feel would be essential in helping relieve her pain … in our mind without a doubt … she does suffer from a (CRPS) as a result of this work-related injury … her ongoing symptoms are clearly related to (CRPS) and we are unsure what has failed in her more recent assessment”.
Dr David Manohar, physician, report 24 August 2021
Dr Manohar set out a history of the applicant’s injury, symptoms and treatment, including by noting that Prof Vucic saw the applicant in December 2018, and that also “… in April 2019, confirming (CRPS) … (Prof Vucic) felt that the underlying aetiology is most likely musculoskeletal in nature and there was concern … she might be developing a (CRPS) …”
Dr Manohar also noted the report of Dr Mathew Giblin, who saw the applicant in March 2020 who “stated that she had a soft tissue injury to the cervical spine and had symptoms and signs of sympathetic dystrophy of the right upper limb …” (Dr Manohar’s emphasis). Dr Manohar concluded that “she fits the diagnostic criteria for (CRPS)”.
Prof Vucic - face-to-face examination of the applicant on and report dated 29 October 2021
In this report (Prof Vucic’s 2021 report) Prof Vucic noted that he:
“…last reviewed her in 2019 where I diagnosed her with (CRPS). Since then … symptoms have continued to progress and she is severely debilitated …Mrs Gusavac reports marked pain in the right upper limb with … tenderness, colour changes of the limb with temperature asymmetry between the size and some trophic changes in the form of weakness and tremor … appears to have some trophic changes in that there is less hair on that limb…marked asymmetry of the two limbs with significant tenderness of the right limb … pain limited examination of strength and deep tendon reflexes … limb was visibly discoloured when compared to the contralateral one and was swollen … sensory examination was consistent with (CRPS) … has severe and debilitating (CRPS) and satisfies the current Budapest criteria for this disorder … specifically she has continuing pain which is disproportionate to any inciting event. Moreover … vasomotor symptoms … manifested as limb temperature asymmetry and skin colour changes … along with oedema and motor/trophic changes of the right limb … hyperaesthesia and allodynia of the right upper limb … satisfies the (CRPS) criteria on examination.”
Prof Vucic also noted that the applicant needed urgent treatment and expressed a “fear that any further delay will exacerbate the (CRPS)”.
Submissions for the respondent
As a preliminary point, Prof Vucic’s 2021 report did not form part of the application and no reference was made to it in the letter to the Commission dated 1 November 2021. This report is further or additional evidence to the “fresh evidence” identified in the application. The respondent objects to the applicant’s reliance on this further report and to the submissions based on it.
The MA assessed the applicant in person, an important matter in relation to diagnosis as such a clinical examination is superior to a telephone or audio-visual examination. The MA carefully went through all factors to be considered before making a diagnosis of CRPS. He was provided with a number of medical reports, including from Dr Manohar dated 18 June 2019, which noted evidence of a CRPS involving the right hand. Also, Prof Vucic’s 2021 report refers to his examination of the applicant in September 2019 when he noted the applicant had presented with numbness and swelling of the left upper limb, which subsequently resolved.
The MA’s examination also noted the applicant complaining of intermittent paraesthesia radiating to both arms, affecting the fingers of both hands, apart from the little finger. She also reported intermittent periods of partial numbness involving both hands, extending up the arms. The MA’s clinical findings in relation to the upper limbs were of a partial sensory loss which was intermittent. He did not find any clinical signs that would support a diagnosis of CRPS. Later, this diagnosis was confirmed by the MAP to be correct, on the basis of the history, findings and examination.
While s 57 of the PIC Act provides a broad discretion to reconsider a decision, this is subject to the matters set out in par 20 of the PIC Practice Direction 17 (the Direction 17) which include: “(d) Any fresh … additional … or substituted evidence, that could not have reasonably been obtained prior to the decision and which would have likely led to a different result before the original decision maker … (e) The public interest in finality of litigation”.
The matters set out in Direction 17 reflect the principles applying to a RA, as noted in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 at [58] (Samuel); Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC36 (Maksoudian).
Direction 17 also refers to the power of the Commission under s 329(1A) of the 1998 Act to refer a matter to a MA for reconsideration. In doing so it contemplates that the requirement in par 20(d) to consider whether any new evidence would have likely led to a different result must be from the assessment of the original MA.
The Harinesan report and Dr Manohar’s 2021 report are not fresh or additional evidence that would have been likely to lead to a different result. They were available to Dr Meakin at the time of his examination. Both these reports referred to a CRPS diagnosis without identifying a basis. That information was available to Dr Meakin at the time of his assessment, specifically from Dr Manohar. He considered it and rejected the diagnosis on the basis of the evidence before him, including his findings on clinical examination.
If, contrary to the respondent’s submission, Prof Vucic’s 2021 report is considered by the Commission, his opinion is based on an examination on 28 October 2021, some nine months after Dr Meakin’s assessment. His diagnosis of CRPS is based on the clinical findings on 28 October 2021. He comments that “the sensory examination was (only) consistent with (CRPS)”. Prof Vucic does not refer to any other investigation or finding to support his diagnosis.
The applicant submits that when Prof Vucic examined the applicant nine months after Dr Meakin’s assessment, he recorded different clinical findings, which he opines supports a CRPS diagnosis. The relevant question rather is whether the original decision maker would have come to a different decision if the fresh, or additional, evidence had been before him or her at the time of the decision. However, at the time of Dr Meakin’s assessment, the clinical signs were not consistent with a diagnosis of CRPS. Any clinical signs to support a diagnosis in October 2021 do not demonstrate Dr Meakin would have likely to come to a different decision.
Although there is provision in Direction 17 to refer medical assessments for reconsideration, this can only occur once the Commission is satisfied that the original decision maker would have come to a different result. That must be considered on the basis of the evidence before the MA, including the Assessor’s clinical findings on examination. To do otherwise would be to fail to comply with Direction 17 and the principles in Samuel and Maksoudian.
That another doctor made clinical findings many months later, that were different to the original MA, should not form the basis for a finding that the original decision maker would have come to a different decision. To adopt such an approach offends the requirement to take account of the public interest in the finality of litigation.
Section 322A of the 1998 Act (s 322A) provides that only one assessment of the degree of permanent impairment can be made to the Commission. It is not in the interests of justice, nor is it consistent with the objectives of the Commission, to admit an applicant to reopen the litigation on the basis relied upon. Here, where the medical opinion sought to be relied upon is simply based on findings on clinical examination (without further investigations) many months later, such finality in litigation potentially could never be achieved as the diagnosis depends on the assessment based on the clinical findings at the time of the assessment.
Submissions for the applicant
When the applicant’s case was assessed by the MA on 22 February 2021, the evidence was uncertain as to whether the applicant had CRPS. Dr Davies did not consider her condition justified such a diagnosis on 22 April 2020. Drs Garnot and Perla did not consider she should be assessed according to a CRPS diagnosis. Prof Vucic, prior to the MA assessment, only considered the possibility of CRPS applying to the applicant. But on 29 October 2021, after the MA’s assessment, Prof Vucic examined the applicant’s right upper extremity and found it visibly discoloured and swollen. He also found a sensory examination consistent with CRPS.
Prof Vucic opined that the applicant satisfied the “Budapest criteria” for CRPS. These criteria closely mirror the criteria in the Guidelines. It is “new evidence” that “could not with reasonable diligence have been obtained” before the MA examination under the principles in Samuel at [58.5]. If such evidence had been before the MA, it would likely have led to a different result.
The evidence of Prof Vucic before the MAC only had the applicant was presenting with clinical features that were “most consistent with” CRPS. Much weight should be given to Prof Vucic’s 2021 report because he, face-to-face, clinically examined the applicant. The report issuing from this examination clearly shows “something new”. It has also shown a marked deterioration in the applicant’s condition, particularly relating to the CRPS.
The Harinesan report is also new evidence within the meaning of Samuel. These doctors note there was an ongoing review with the applicant on 6 August 2021, via telehealth appointment, and that “we regularly see Nada in relation to her significant right sided shoulder and arm pain”. The report goes on to say, “since our last review, Nada has unfortunately experienced ongoing pain and symptoms on the affected side”. While this report would not attract the same weight as Prof Vucic’s report, because the further examination was not face-to-face, when the reports are read together, it shows deterioration which satisfies the onerous criteria for the diagnosis of CRPS. It also shows a greater level of symptoms experienced by the applicant since the MA examination.
Contrary to the submission for the respondent, the further evidence, particularly from Prof Vucic but also taking into account the Harinesan report and Dr Manohar’s 2021 report, clearly shows deterioration since the MA examination and report.
The Commission has a duty to do justice between the parties according to the substantial merits of the case. The Workers Compensation legislation is beneficial legislation.
Prior to the MA examination and report, the diagnosis of CRPS for the applicant was in question. That diagnosis, consistent with the Guidelines, is now apparent. Also, there was insufficient evidence before the assessment and the MAC for the applicant to satisfy the criteria for CRPS, and the claim for lump sum compensation was not made on that basis. That has changed now with the August and October 2021 reports.
There has been no delay in making the RA. The applicant has been under specialist review and the above reports were only available in August and October 2021, with the RA made on 1 November 2021. The applicant submitted the Liverpool Hospital Discharge Summary to the MAP as part of the appeal.
Given that a COD issued, the appropriate mechanism is a RA, rather than an appeal. Reliance is placed on Pidcock Panelbeating v Nicola [2017] NSWWCCPD32 (Pidcock) and Milosavljevic v Medina Property Services [2008] NSWWCCPD56 (Milosavljevic).
In relation to s 322A, s 57 allows for a reconsideration of matters already determined by the Commission, and s 329(1A) allows the Commission to refer a matter on one or more occasions. These provisions override s 322A. In any event, s 329(2) specifically provides that a certificate as to a matter referred to for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency. This provision specifically envisages that there can be more than one medical assessment.
Respondent’s submissions in reply
The deterioration put for the applicant in this application is incorrect. The applicant’s doctors were effectively saying there was CRPS in the lead up to the MAC and MAP determination.
In relation to s 329, Direction 17 requires fresh evidence that could not reasonably have been obtained prior to the original decision. The applicant’s case fails on this basis as well.
FINDINGS AND REASONS
In Maksoudian, Bishop J stated (at [645D]):
“… the legal basis for a reconsideration of an award … is well settled … no doubt that the discretion … to reconsider is wide and far reaching … task … is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice … cases do not comprehensively indicate how … to approach this task, but … two broad requirements are laid down … first …the material leading to an … (RA) … must be … ‘fresh evidence’ … material that with reasonable diligence could not have been put before the court at the time of the original proceedings and the (RA) … has to move with appropriate speed and diligence … the second point is that the fresh evidence must of such a nature that if it had been before the court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings …”
Direction 17 refers to matters for consideration including “… 20 … (d) Any fresh evidence, additional evidence or substituted evidence, that could not have reasonably been obtained prior to the decision and which would have likely led to a different result if before the original decision maker …” This factor strikes me as a difficult hurdle for the applicant given that the proposed “fresh evidence” relates to medical opinion relating to CRPS – which must largely be assessed on the basis of a MA’s assessment of signs displayed at time of assessment.
Prof Vucic’s 2021 report is the principal evidence relied upon by the applicant (that is not to ignore Dr Manohar’s 2021 report or the Harinesan report, both of which I will deal with later). The respondent objected to the Commission considering Prof Vucic’s 2021 report for the reasons set out in my recording of its submissions above. I asked Mr Doak whether he could identify any prejudice. At least tacitly, he was unable to point to any. That was a necessary and proper concession. I can see no prejudice otherwise. I therefore allow the report into evidence and will consider it. Prof Vucic did examine the applicant on 29 October 2021 and made certain findings on his examination, as noted above. He stated the applicant had:
“… severe and debilitating … (CRPS) … satisfies the current Budapest Criteria for this disorder. Specifically, she has continuing pain which is disproportionate to any inciting event … has vasomotor symptoms … along with oedema and motor/trophic changes of the right limb … hyperaesthesia and allodynia … satisfies the … (CRPS) … criteria on examination. Notably, the key criteria state that there has to be at least two or more of the following categories that are abnormal which include sensory, vasomotor, pseudo motor/oedema and motor/trophic changes … satisfies all four criteria on examination … lastly … no other explanation for her symptoms as attested by normal neurophysiological testing, MRI of the cervical spine and brachial plexus …”
Prof Vucic does not, at least expressly, state that he has made the above assessment on the basis of Chapter 17 of the Guidelines – which is mandatory for a CRPS assessment. He uses the “current Budapest Criteria”. The applicant’s written outline states that this type of assessment “closely mirrors the criteria set out in … Guidelines chapter 17 …” But in Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC1638 (Elsworthy), Fagan J stated (at [44]-[47]) that
“… according to the Budapest clinical criteria for CRPS the patient must report one symptom in three of the four following categories … must also display at least one sign in two of the above four categories … the Budapest Criteria are less demanding for a diagnosis of CRPS than Table 17.1 of the Guidelines … clinical criteria different from and less exacting than those prescribed in the Guidelines …”
The Budapest categories referred to above do appear to mirror the analogous categories in Table 17.1 of the Guidelines – with the difference appearing to be that the Guidelines insist that there must be a report of at least one symptom in all four categories and there must be at least one sign displayed - at time of evaluation - in all four categories. However, Prof Vucic stated the applicant “satisfies all four criteria on examination”, and has recorded complaints in all four categories too. He also writes, “there is no other explanation for her symptoms”.
Nevertheless, on balance, I do not think Prof Vucic’s 2021 report “would have likely led to a different result if before the original decisionmaker” - essentially because Chapter 17 of the Guidelines makes it clear that the assessed person “Must display at least one sign* at time of evaluation in all of the … four categories …(and) a sign is included only if it is observed and documented at time of the impairment evaluation”.
If the MA had (or even has) this report before him, I am unable to say it would have likely led to a different result. I cannot assume that the reports made, and signs displayed, to Prof Vucic, would have likely changed the MA’s clinical examination and findings, which did not allow for a conclusion that the Chapter 17 criteria were met. So much can also be seen from the fact that the MA recorded that he considered the reports of Prof Vucic “from 8 September 2018 through to 11 December 2018 …(and noted he)… does comment on the possibility of (CRPS)”, yet the MA still concluded there was no CRPS at his evaluation, essentially, by reference to his clinical findings.
The MA also noted that Dr Manohar’s 18 June 2019 report “accepted the diagnosis of (CRPS)”. But he then went on to state that such “was not present today”. He also noted that Dr Michael Davies, the applicant’s forensic expert engaged in relation to, inter alia, the CRPS assessment noted “changes in colour along with swelling of the right upper extremity throughout his examination …” But again, the MA noted that such “was not present today”. (The assessment of Dr Davies also did “not satisfy the WorkCover criteria for CRPS”.)
I also believe Dr Manohar’s 2021 report, a fortiori, would not likely have led to a different result if it had been before the MA. Clearly, the MA thought Dr Manohar “accepted the diagnosis of (CRPS)…” but was still thought such “was not present today”. This report more clearly addresses the criteria, and his clinical assessment. But again, the problem for the applicant is that the circumstances of this case, particularly the requirement that all four signs be displayed at the time of the assessment, do not allow me to find it is likely there would have been a different result, again because of the signs the MA recorded at the time of his assessment. The same applies to the Harinesan report. I also believe that if any two, or even all three, of these reports were before the MA, it would not have likely led to a different result, for the same reason.
There are other difficulties with each of the three new reports, as has been submitted for the respondent. For example, Dr Manohar’s 2021 report is not really fresh or additional evidence. To some extent it is, in the sense that it provides more detail in relation to his earlier examinations and considerations of other reports, including from Dr McKechnie, Prof Vucic and Dr Giblin. But Dr Manohar’s 2021 report essentially provides the same opinion which was before the MA at the time of the assessment- without further examination.
Also, the Harinesan report is problematical. A clear CRPS diagnosis is referred to, but as a conclusion, without identifying the basis or method of coming to the conclusion, let alone showing the extent to which the applicant’s complaints and signs observed did properly allow for such a diagnosis. This problem feeds back into the need for the MA to conduct his own evaluation. I do not believe I can call what might have been the result of such an evaluation.
On the other hand, I am concerned as to whether there has been an injustice to the applicant, because she has only had the benefit of one assessment, and has not had the opportunity for a further assessment by the MAP; in circumstances where the MA’s assessment does not appear to have been conducted in accordance with the mandatory requirements of Chapter 17 of the Guidelines – which clearly state that the criteria must be applied in the assessment of CRPS (Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC1088 (at [26] and [35]-[36] and [107]-[115] Turner; Elsworthy).
This is not a criticism of the MAP decision. Turner was decided by Schmidt AJ on 27 August 2021, 25 days after the MAP decision in the applicant’s case. Her Honour set aside the MAP decision in Turner in circumstances which bear much similarity with the facts of the present case. As the MAP in the present case did not revoke the MA decision, it could not undertake a further examination of the applicant (New South Wales Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC1792 (at [32]-[33]) and Midson v Workers Compensation Commission [2016] NSWSC1352 (at [52]); but cf Lancaster v Foxtel Management Pty Ltd [2021] NSWSC745 (at [22]).
There are other matters that need to be considered in the exercise of the reconsideration power. There is no relevant delay in this case, and it was not suggested. I also take into account the objectives of the Commission. I particularly take into account the public interest in finality of litigation. There is also a further factor here: whether there is utility, or whether it is futile, to make the orders sought by the applicant, having regard to the evidence and the engagement of the RA as the vehicle to seek relief. The submissions for the applicant essentially amount to there being a deterioration of her condition since the time of the assessment. Section 322A of the 1998 Act (s 322A) needs to be considered in this regard.
The respondent’s submissions note s 322A provides that only one assessment of the degree of permanent impairment can be made to the Commission. The applicant’s written outline (par 17) also anticipated “a submission by the respondent based on … s322A …” and submitted that the “specific provisions” of s 56 of the PIC Act together with s 329(1A) of the 1998 Act override s322(A) and allow for a reconsideration of matters already determined by the Commission. I raised this matter with counsel for the applicant during oral submissions, querying whether s 327(3)(a) and or (b) of the 1998 Act was the more appropriate vehicle for the applicant’s concerns in all the circumstances, noting s 322A (4) stating it does not affect the operation of s 327, but making no mention of s 329 in this regard.
The applicant’s written outline further stated (par 18) that s 329(2), in any event, specifically provides that a certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate “as to the matter to the extent of any inconsistency” and “This provision specifically envisages that there can be more than one medical assessment”. But the applicant has provided no, or at least no relevant, authority to support this submission. Also, these bare assertions as to the proper construction of the statute are inconsistent with earlier judicial statements. For example, the applicant’s written outline referred to Pidcock and Milosavljevic without at all expanding on such references. In Milosavljevic, Roche DP stated (at [58]):
“… it is correct in Mansour, I noted … that s… 329 is in ‘broad unlimited terms’, but the facts in Mansour were totally different to those in the present case. In that matter, the content of the material to be forwarded to the AMS and … appeal panel, was always disputed … notwithstanding the worker’s strong written objections, the appeal panel relied on certain video … where the identity of the person in the video had not been established and where the worker …strongly objected to the film being viewed … I held that in the unusual circumstances … there had been a denial of procedural fairness and it was appropriate to order a further assessment by the AMS. The question that arises in the present matter was not in issue in Mansour … My reference to s… 329 being in ‘broad unlimited’ terms was a reference to the fact the section provides no guidance as to how or when it is to be used. That is not to say …(it)…stands outside the terms of the Workers Compensation Acts. It doesn’t, and it must be read in the context of that legislation … nothing to indicate that the legislature intended that s …329 could be used in an unrestrained or unlimited way regardless of the …(PIC’S)… previous orders or determinations … exact scope of s …329 must be determined on a case by case basis …”
It is unclear to me how Milosavljevic assists in the present matter and no submission was made in that respect. In Pidcock, Snell DP (at [75]) accepted the correctness of the above passages in Milosavljevic dealing with s 329 of the 1998 Act. Pidcock involved a referral for a further medical assessment of permanent impairment, in reliance on Sch 8, Pt 2A cl 28D of the Workers Compensation Regulation 2016 (cl. 28D) - which provides:
“…Further permanent impairment assessments … (1) This clause applies to an injured worker if the degree of … impairment resulting from the … injury is or has been assessed … (2) Section 322A … does not operate to prevent a further assessment being made of the degree of permanent impairment resulting from the workers injury … (3) However, only one further assessment may be made of the degree of permanent impairment …”
A referral by an arbitrator for a further assessment pursuant to s 329(1)(b) was set aside in Pidcock by Snell DP because there was no “medical dispute” raised within the meaning of s 319 of the 1998 Act and could not be “referred again”. However, Snell DP requested the parties to address whether they objected to an order being made on the appeal for referral to an Approved Medical Specialist for further assessment within the meaning of the 2016 regulations. Snell DP went on to state (at [85]):
“…The stated purpose of the 2016 regulation is to provide for one further assessment of permanent impairment for a worker in the respondent’s position (an ‘existing recipient’ whose degree of permanent impairment has previously been assessed). This will be relevant to whether or not such a worker is subject to the otherwise disentitling application of s39(1) of the 1987 Act … (87) The 2016 regulation, whilst it relaxes the prohibition in s322A against a further assessment of the degree of permanent impairment, it does not itself provide a vehicle for a referral for further assessment to be made … (91) … there was error in how Sch 8 Pt 2A, cl 28D was applied (by the arbitrator) in the circumstances, particularly its procedural interaction with Ch 7, Pt 7 of the 1998 Act … (92) … there may be occasions where the dictates of justice require a further referral pursuant to s329 of the 1998 Act, in connection with the 2016 regulation. As was observed in Milosavljevic at [58], the scope of the section ‘must be determined on a case by case basis’ …”
In my opinion, the applicant’s situation is clearly not a case where the 2016 regulation can apply, if only because she could not have been an existing recipient.
In O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, (O’Callaghan) Roche DP expressed the following view, albeit by obiter dictum without expressing a concluded view on it (at [87]):
“… I note in passing that Ms O’Callaghan has never sought to rely on the reconsideration power in s 329 as an alternative to an appeal under s 327 … it is difficult to see how the reconsideration power in s 329 can work with s 322A, which appears to be the dominant provision… was introduced as part of a range of measures … in … 2012 … designed to reduce benefits for permanent impairment compensation. It works in concert with s66(1A) of the 1987Act, introduced at the same time, which restricts a worker to only one claim … for permanent impairment compensation in respect of … impairment that results from an injury… (89)…Consistent with a worker now having the right to make only one claim … only one assessment may be made of the degree of … impairment of … (s322A(1)).. However, s322A does not affect the operation of s327 (s322A (4) … Therefore, if Ms O’Callaghan were entitled to rely on s327(3)(a), s322A would not prevent her from doing so…”
In Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD52 (Singh), Snell DP agreed (at [57]) with the above passage in O’Callaghan. Earlier, at [54]-[55] in Singh, Snell DP wrote:
“… s329 is a discretionary power. Failure by the appellant to utilise potential appeal rights pursuant to s327 of the 1998 Act, that were unfettered by s322A, would be relevant to exercise of the discretionary power. However, there is a more fundamental reason why the discretion should not be exercised in the circumstances … the course adopted by the appellant, if it were properly available, potentially has the effect of avoiding the application of s322A … a worker could make a claim, undergo a medical assessment …,obtain a MAC and if not… dissatisfied with the assessed level of … impairment, simply discontinue the proceedings before a certificate of determination was issued consistent with the binding MAC … if the worker subsequently obtained a higher … assessment … could simply ‘amend’ the claim, and repeat the process, potentially on more than one occasion … in Milosavljevic (Deputy President Roche) said that s329 had to be read in the context of the … Acts and should not be used in an ‘unrestrained or unlimited way’ … the ‘context’ of the legislation, given the introduction by the 2012 amending act … s322A … plainly includes consistency within the scheme of those provisions … application of the discretion in s329, in the way for which the appellant argues, is inconsistent with the statutory scheme … follows reconsideration of the MAC, pursuant to s329 would not have been available …”
For the same or similar reasons as provided by Snell DP in the above passage in Singh, I am of the view in the present case that s 329 is not available to the applicant and I decline to exercise my discretion to use it as he submitted for the applicant.
In the disposition of the RA, I ultimately need to balance the policy requirement of the finality of litigation with the obligation to rectify clearcut injustice. I have identified what I believe to be an injustice. On the other hand, the orders sought are essentially for a revocation of the RA for the purpose of a referral for a further examination under s 329.
One factor militating against the discretion to exercise s 329 – because the applicant has not sought to utilise s 327 in the present proceedings, has also been raised with the applicant during the course of the arbitration hearing, and there has been no subsequent request to employ s 327. There may be good reason for that, and I cover this further below in the context of whether there is adequate evidence for such employment now. Nevertheless, I have considered whether it is appropriate to take steps to have the present application treated as if it were an appeal under s 327.
Ultimately, I need to balance the policy requirement of the finality of litigation with the obligation to rectify clear cut injustice. While I have expressed some concerns about whether there is an injustice, I cannot say, in all the circumstances, that it is clearcut. I also need to consider the utility of setting aside the COD on this basis – in circumstances where the posited purpose of that is for a s 329 referral. I have declined to exercise that latter discretion. Even if I am wrong in that respect, I believe that it would be futile to set aside the COD for the purposes of employing the s 329 power because it would offend s 322A which is the dominant provision. In Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical & Further Education Commission t/as TAFE NSW [2020] NSWCA 113, Brereton JA stated, obiter, (with White JA and Simpson AJA agreeing) at ([55] and footnote 31) the following:
“… I do not accept the submission that an assessment by an approved medical specialist of the degree of permanent impairment may be subject to reconsideration under s 350 (3); that provision is concerned with decisions of the commission constituted by an arbitrator or a presidential member, not assessment by approved medical specialists. While a decision of an appeal panel in respect of a medical assessment certificate can be reconsidered under s 378; that does not mean that the degree of permanent incapacity changes, it means that upon reconsideration, a correct degree is determined and substituted. Section 329… Does not extend to permanent impairment because of s 322A (emphasis added).”
Also, this “injustice” is not something that has been specifically raised by the applicant in these proceedings, and the respondent has not had an opportunity to be heard about it. I have considered as to whether I should invite the parties to engage in further submissions on the “injustice” and s 327 aspects (cfSleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [93]-[95] (Sleiman). However, in that case, the appellant raised such matter with the court with no objection from the respondent.
It was also found in Sleiman that the appellant did not, as a matter of statutory construction, have recourse to s 327. However, it appears to me that there is a subtle but significant difference in the present case; the appeal panel in Sleiman revoked the MA decision and thereafter made its own decision, so that the ultimate Certificate of Determination was based on the appeal panel decision. In the present case, the MAP confirmed the MA decision, so that the COD is based on that decision
The finality of litigation policy is also vitally important in the analysis and in my opinion, in all the circumstances, is a factor that points towards the RA being refused. In this respect, I believe that Dr Manohar’s 2021 report, Prof Vucic’s 2021 report and the Harinesan report may not, at least adequately and at this stage, cover the evidentiary sense, the necessary ground that s 327(3) (a) and (b) require.
SUMMARY
I decline to set aside the COD dated 6 August 2021 and also refuse and dismiss the application for the matter to be referred to the MA for reconsideration under s 329 (1A) of the 1998 Act.
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