Hammond v Aviation Industry Resources Pty Ltd t/as Altara Resources
[2021] NSWPICMP 46
•14 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hammond v Aviation Industry Resources Pty Ltd t/as Altara Resources [2021] NSWPICMP 46 |
| APPELLANT: | Eva Louise Hammond |
| RESPONDENT: | Aviation Industry Resources Pty Ltd t/as Altara Resources |
| APPEAL PANEL: | Member Carolyn Rimmer Dr David Crocker Dr Drew Dixon |
| DATE OF DECISION: | 14 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- AMS made an assessment of 21%WPI of the left lower extremity and 1% for scarring under TEMSKI; AMS assessed sensory deficit using figure 17.08 at page 551 of AMA 5 in combination with Table 17.37 at page 552 of AMA 5 and thereafter applying by analogy for the remaining nerves; Held- this methodology was not in accordance with the Guidelines which provided that the lower extremity impairment resulting from sensory deficits and pain should have been assessed using Table 16.10a (page 482) of AMA 5; re-examination and assessment of 36% WPI for the left lower extremity and 1% WPI for scarring; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 December 2020 Eva Louise Hammond (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 19 November 2020.
The respondent to the appeal is Aviation Industry Resources Pty Ltd t/as Altara Resources (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In these proceedings, the appellant is claiming lump sum compensation in respect of the left lower extremity as a result of the injury on 28 December 2016 that occurred in the course of her employment as a flight attendant with the respondent.
The matter was referred to the AMS, Dr Anderson, in a Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 29 July 2020 for assessment of whole person impairment (WPI) of the left lower extremity (and Complex Regional Pain Syndrome (CRPS)) and scarring as a result of the injury on 28 December 2016.
The AMS examined the appellant on 19 October 2020. He assessed 21% WPI of the left lower extremity and 1% WPI under TEMSKI for scarring. This resulted in a total of 22 % WPI as a result of the injury on 28 December 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.
The appellant did not request that she be re-examined by an AMS, who is a member of the Appeal Panel. The respondent submitted that it was not appropriate for Dr Walden’s assessment to be adopted by the Appeal Panel and a further assessment and grading should be undertaken by a member of the Appeal Panel for the purposes of assessing the grade and percentage under Table 16.10a of AMA 5.
As a result of that preliminary review, the Appeal Panel determined that the assessment was made on the basis of incorrect criteria and there was a demonstrable error in the MAC. The Appeal Panel determined that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence by way of medical reports, clinical and hospital notes and clinical investigations on which to make a determination of grade and percentage under Table 16.10a of AMA 5.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr David Crocker of the Appeal Panel conducted an examination of the worker on 11 March 2021 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the AMS 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 lodged with Application to Appeal Against the Decision of Approved Medical Specialist included the following:
(a) The assessment of the AMS contained a demonstrable error in that the AMS did not assess the impairment in accordance with the guidelines.
(b) There was no challenge to the diagnosis of CRPS. There was no challenge to the assessment of impairment due to loss of motion of the individual joints and toes.
(c) The AMS erred when assessing sensory deficits and pain. As a consequence, the assessment was made on the basis of an incorrect criteria and the MAC contained a demonstrable error.
(d) The AMS assessed sensory deficit using figure 17.08 at page 551 of AMA 5 in combination with Table 17.37 at page 552 of AMA 5 and thereafter applying by analogy for the remaining nerves. This methodology was not in accordance with the Guidelines.
(e) According to the methodology set out in the Guidelines the lower extremity impairment resulting from sensory deficits and pain should have been assessed using Table 16.10a (page 482) of AMA 5.
(f) Dr Walden, pain management specialist, correctly assessed sensory deficit and pain in accordance with the Guidelines in his report of 20 April 2020. Dr Walden’s assessment of impairment of the level of lower extremity impairment due to sensory deficit and pain should be utilised for the purpose of calculating the correct level of WPI due to sensory loss and pain.
(g) Dr Walden graded the sensory deficits and pain of the lower extremity as Grade 1. Dr Walden thereafter used clinical judgement to select the appropriate percentage from within the range available for the grade – 81 to 99% and determined that the lowest available percentage for that grade should apply, namely 81%. The grading and percentage used by Dr Walden were appropriate when consideration was given as to the impact of the injury which was reported by the appellant at the time of her examination by the AMS and which was corroborated by the material from her treatment providers.
(h) In accordance with the methodology of the Guidelines the percentage which is determined then becomes the extent of lower extremity impairment (LEI) 81%) for sensory deficits and pain.
(i) The lower extremity impairments are combined using the combined values chart. The resulting LEI is therefore 81 + 26 +15 = 88%. The LEI is then converted to WPI using Table 17.3 on page 527 of AMA 5. 88% LEI converts to 35% WPI.
(j) The Appeal Panel can determine the level of WPI that the appellant suffers due to her injury. The error which occurred can be corrected by the Appeal Panel and an assessment of WPI can be made by the Appeal Panel.
(k) There was additional impairment for scarring. There was no challenge to the level of WPI due to scarring determined by the AMS. The WPI due to scarring needs to be added to the WPI of the lower extremity in accordance with the combined values chart. The correct assessment of impairment should be 36% WPI.
The respondent’s submissions attached to the Notice of Opposition Against the Decision of Approved Medical Specialist included the following:
(a) The appellant asserted that the assessment of impairment was undertaken on the basis of incorrect criteria and noted that the AMS assessed impairment using Figure 17.08 and Table 17.37 of AMA 5.
(b) The Guidelines modify the AMA 5 Guides to some extent. Chapter 3 is relevant to assessments of impairment relating to the lower extremity. Part 3.35 confirms that CRPS Types 1 and 2 are to be assessed using the method set out in Chapter 17 of the Guidelines.
(c) The respondent accepts that Chapter 17 sets out the method in which impairment is to be assessed for the purposes of assessing CRPS Type 1. Once the diagnosis has been made, the impairment should be assessed in accordance with the points set out at Part 17.5. In particular, reference is made to impairment resulting from sensory deficits and pain being assessed by a grading and with reference to Table 16.10a of AMA 5. Whilst it was not entirely clear, it appeared the AMS did not assess impairment with reference to Table 16.10a.
(d) The respondent does not agree that the assessment arrived at by Dr Walden should be adopted for the purposes of assessing impairment with reference to Table 16.10a. The respondent had previously queried the basis upon which Dr Walden reached his assessment of 35% WPI. Specifically, it was noted that a Grade 1 categorisation under Table 16.10a required evidence of deep cutaneous pain sensibility present; absent superficial pain and tactile sensibility (absent protective sensibility), with abnormal sensations or severe pain, that prevents most activity.
(e) The categorisation of Grade 1 was inconsistent with information recorded at Part 11 of Dr Walden’s report where he has set out his assessment of activities of independent daily living. That information was inconsistent with the suggestion that pain “prevents most activity”.
(f) The applicant would more than likely fall within Grade 2 or 3 of Table 16.10a. It is not appropriate for Dr Walden’s assessment to be adopted. A further assessment and grading should be undertaken by a member of the Appeal Panel for the purposes of assessing the grade and percentage under Table 16.10a.
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 Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 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.
In this matter, the then Registrar determined that he was satisfied that a ground of appeal under s 327(3 (d) is made out in relation to the assessment for pain/sensory deficit.
The Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Assessment of the left lower extremity (CRPS)
The AMS under “Present symptoms” wrote:
“Swelling of the left foot, ankle and lower leg which increases throughout the day.
Sharp, stabbing pain in the left heel which can radiate up as far as the knee.
She can only tolerate standing on the lateral side of the left foot.
She experiences different colour changes to the foot which include red merging through to blue, with black at the surgical scars.
The foot is usually very cold.She has noticed that her toenails become very brittle and are breaking off.”
The AMS under “Findings on physical examination” wrote:
“Ms Hammond was of average stature and build. With her current height of 1.69m and weight of 65kg, she currently has a body mass index of 22.7, which is in the middle of the ideal range. She gave the impression of being fairly stoical although it was very obvious that the left lower limb is extremely painful and causes a lot of concern.
Lower Limbs. She walked with great difficulty with her left leg. Her weight was taken on the outer edge of the left foot.
There was swelling in the left foot and to a lesser extent, the ankle. There was also shiny and slightly mottled skin. The nails were identified as tending to break. The left lower leg from the mid-shin distally was cold to the touch in comparison with the right and was excessively tender.
The surgical scarring mostly postero-laterally, had healed but was a little ragged and very irritable. This was easily visible with low cut footwear and causes her concern.
There was gross restriction of movement:
MOVEMENT RIGHT LEFT
Plantar flexion 60° 10°
Dorsiflexion 20° 0°
Inversion 30° 10°
Eversion 20° 0°
There was no voluntary movement of the toes, which were in a position of function.”The AMS made a diagnosis of CRPS Type 1.
Under “Reasons for Assessment” the AMS wrote:
“Ms Hammond has confirmed complex regional pain syndrome. This is addressed in Page 81, Table 17.1 in the SIRA Guidelines. She easily satisfies the historical criteria of sensory, vasomotor, sudomotor / oedema and motor / trophic criteria. At this assessment, she also satisfied these criteria with extensive hyperalgesia in the lower leg. There was also obvious vasomotor dysfunction with coolness and colour change of the skin. She continues to have oedema of the foot and to a lesser extent, the ankle, further satisfying the sudomotor / oedema feature. There continues to be very severe decreased range of movement and also quite extensive trophic changes demonstrated in the skin and particularly the nails, satisfying the motor / trophic component.
Finally, there is no other diagnosis that better explains these signs and symptoms.
The whole person impairment initially is addressed with gross restriction of movement of the foot, ankle and toes.
AMA5
REFSMovement Right % Right LEI Left
% Left LEI P537
T17-11Plantar Flexion 60 0 10
15 P537
T17-11Dorsiflexion 20 0 0
7 P537
T17-12Inversion 30 0 10
2 P537
T17-12Eversion 20 0 0
2 Subtotals Right 0 Left
26 There was virtually no movement of any of the toes, which were in a position of function. This is addressed in AMA 5 Table 17-30, Page 543. Ankylosis in this position for the five toes provides a lower extremity impairment of 15%.
The neurological condition of the left lower leg is initially addressed in AMA 5 Page 551, figure 17-08. It is identified that the following nerves are specifically involved:Saphenous
Lateral sural
Sural
Superficial peroneal
Deep peroneal.This situation is further addressed on Page 552, Table 17-37. Only two of these nerves, the sural and the superficial peroneal, are listed in this table and have a maximum lower extremity impairment of 5% each for dysaesthesia. The other nerves must therefore be addressed by analogy according to the SIRA Guidelines Paragraph 1.23. They have similar function and therefore, it is assessed that 5% lower extremity impairment is applicable to these other three nerves as well. This therefore gives a total lower extremity impairment of 25%.
The lower extremity impairment figures of 26, 25 and 15 are combined using the Combined Values Chart, which gives a final figure of 53%.
From Page 527, Table 17-03, this converts to 21% WPI.
The scarring is addressed in the SIRA Guidelines page 74, Table 14.1. The scarring is easily identified and easily demonstrated by Ms Hammond. She has been concerned about the scarring which is rather ragged, although not specifically tethered. Of itself, it does not have any specific effect on activities of daily living and no further specific clinical management is indicated. With these features, it comfortably qualifies for a further 1% WPI.”
The appellant submitted that the AMS assessed sensory deficit using figure 17.08 at page 551 of AMA 5 in combination with Table 17.37 at page 552 of AMA 5 and thereafter applying by analogy for the remaining nerves. This methodology was not in accordance with the Guidelines.
The Appeal Panel reviewed the evidence in this matter.
In his report dated 20 April 2020, Dr Walden assessed sensory deficit and pain in accordance with the Guidelines. Dr Walden graded the sensory deficits and pain of the lower extremity as Grade 1 and then using his clinical judgement selected 81% as the appropriate percentage from within the range available for the grade, that is, 81 to 99%.
The Appeal Panel noted that the AMS and both Dr Walden and Dr Tame made a diagnosis of CRPS 1. The Appeal Panel agreed with that diagnosis and were satisfied that the appellant had reported at least one symptom in the four categories that is, sensory, vasomotor, sudomotor/oedema and motor/trophic. The Appeal Panel agreed with the AMS that the appellant had displayed at least one sign at the time of evaluation by the AMS in all of the four categories, that is, sensory, vasomotor, sudomotor/oedema and motor/trophic.
The Appeal Panel noted that Part 17.5 of the Guidelines under “Complex Regional Pain Syndrome Type 1” provides:
“For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment:
·the diagnosis is to be confirmed by criteria in Table 17.1
·the diagnosis has been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve maximum medical improvement)
·the diagnosis has been verified by more than one examining physician
·other possible diagnoses have been excluded.
·CRPS1 is to be assessed as follows:
oApply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1).”
Table 17.1 “Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2” provides:
| “1. Continuing pain, which is disproportionate to any causal event. 2. Must report at least one symptom in each of the four following categories: |
| · Sensory: Reports of hyperaesthesiae and/or allodynia. · Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry. · Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry. · Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). |
| 3. Must display at least one sign* at time of evaluation in all of the following four categories: · Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement). · Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes. · Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry. · Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). |
| 4. There is no other diagnosis that better explains the signs and symptoms. *A sign is included only if it is observed and documented at time of the impairment evaluation. Then consider the following in assessing CRPS 1: · If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS 1 may be made. · Rate the extremity impairment resulting from loss of motion of each individual joint involved. · Rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA 5 Table 16.10a (p 482). Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The maximum value is not automatically applied. The value selected represents the extremity impairment. A nerve value multiplier is not used (emphasis added). · Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA 5, p 604) to obtain the final extremity impairment. · Convert the final extremity impairment to WPI using AMA 5 Table 16.3, (p 439) for the upper extremity and AMA 5 Table 17.3 (p 527) for the lower extremity.” |
The Guidelines at 17.1 provide that the assessor is to rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA 5 Table 16.10a (p 482). The assessor is to use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The AMS did not assess the impairment in accordance with the Guidelines when assessing sensory deficits and pain. The Appeal Panel was satisfied that the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error.
The Appeal Panel considered that re-examination was necessary as there was insufficient information on which to make a determination.
As noted above, Dr Crocker re-examined the appellant on 11 March 2021. Dr Crocker provided the following report:
“In view of the current COVID-19 global pandemic, infection prevention and control measures were maintained in my consulting room and adjacent waiting room area. Ms Hammond reported that she was not suffering from respiratory or flu-like symptoms or fever. She has not reportedly been required to recently undergo a COVID nasopharyngeal swab test. Her temperature was found to be satisfactory by means of measurement with a transdermal thermometer device. Surgical masks were mutually worn. Ms Hammond was in agreement with the consultation proceeding in this manner.
At Ms Hammond’s request, her husband was present during the consultation but seated at the entrance of my consulting room in view of the current COVID pandemic and social distancing recommendations.
1. The worker’s medical history, where it differs from previous records
Ms Hammond reported that she had had the opportunity of reviewing the Medical Assessment Certificate that had been prepared by Dr Tim Anderson, Approved Medical Specialist, at the request of the Workers Compensation Commission dated 19.11.20.
She did not specifically highlight aspects that she particularly wished to expand in relation to the overall medical history.
I took the opportunity of further reviewing other aspects of the medical history. In this respect, Ms Hammond reported that she was diagnosed with hypertension approximately two years ago and was on the oral agent, Avapro. She also reported as having suffered migraine headaches over the previous two-year period.
She indicated that she also had undergone various dental procedures.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Hammond reported that there has not been a significant change in relation to her medical management since the time of the earlier assessment.
She confirmed that there was an open-ended arrangement by way of further review with Dr Simon Tame, Pain Management Consultant.
She has been attending her General Practitioner, Dr Paul Burford of Williamstown, approximately on a few occasions per month.
Current medication includes Norflex (approximately 1-3 tablets per day), Avapro and Snuzaid at night. Other agents include Magmin, a calcium supplement and Maxigesic (approximately 6-8 tablets per day).
She utilises wheat packs applied to areas of pain in colder weather.
She is not currently attending a Psychologist or Physiotherapist. Home-based exercises are attended.
With respect to her current clinical status, she reports that she is continuing to experience constant variable pain from the region of the left midcalf and distally ‘like a vice’.
She has a feeling of weakness to the pelvic and hip regions. She does not report pain affecting the thighs or knees.
Pain intensity is from a moderate to ‘severe’ degree.
Ms Hammond is continuing to experience altered sensation to the region of pain which she describes as often being of a ‘burning’ quality. There is increased sensitivity with touch and an altered feeling with this.
She reports that the left leg can feel hot or cold at various times. There arises various discoloration of a ‘purplish, bluish or pinkish’ appearance. There continues to be variable swelling to the midcalf. She notices increased sweating of the left foot upon removing her shoes. She reports altered hair growth affecting the left leg and that her nails to that side are more brittle.
With respect to activities of daily living, Ms Hammond states that sleeping ‘can be horrendous’ as a consequence of pain.
She needs to vary her seated and standing postures as a consequence of discomfort arising.
She limits walking. Pain and cramping arise with this activity affecting the left lower limb.
She reports that she manages stairs in a ‘crab-like’ fashion. She finds that she needs to use a handrail.
Her husband attends to many of the household chores.
She is able to drive an automatic motor vehicle with short breaks.
With respect to aspects of personal care, she obtains assistance from her husband especially ‘on bad days’.
3. Findings on clinical examination
Ms Hammond was a cooperative woman who appeared to experience variable discomfort during the consultation.
She was informed that I would require her full cooperation but that I would cease or modify any manoeuvres that were potentially distressing for her.
Her temperature was 36.7°C.
Her weight, lightly clothed, was 67kg with a height of 168cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 52-71kg.
Ms Hammond exhibited a limping and asymmetric gait when observed walking within the confines of my office. She was unable to undertake a symmetric/full squatting manoeuvre.
General inspection of the lower limbs demonstrated a mild bilateral varus alignment.
There was satisfactory symmetric active range of motion with respect to both hips.
Girth measurements within the lower limbs were as follows: 48cm (right thigh); 48cm (left thigh); 38cm (right calf); 34.5cm (left calf).
There was satisfactory symmetric active range of motion in relation to both knees with multiple testing with use of a goniometer.
Multiple surgical scars were observed. There was an approximately 3cm longitudinal scar to the region of the left hindfoot with mild loss of contour. A further smaller longitudinal surgical scar was noted to be present to the posterolateral aspect of the left hindfoot. A further, more elongated scar of approximately 8.5cm was present to the medial aspect of the left ankle. There was some increase in pigmentation to that scar.
Active range of motion was also assessed with respect to the ankles/hindfeet bilaterally. Similar findings were found as had been the case at the time of the medical assessment by Dr Anderson.
Hypoaesthesia/allodynia was apparent upon palpation of the affected left leg region.
Motor system examination was limited as a consequence of potential discomfort with the examination.
4. Results of any additional investigations
Nil further investigations reportedly have been attended since the time of the earlier assessment.
5. Determination of permanent impairment
It is apparent that the diagnosis of chronic regional pain syndrome Type 1 (CRPS 1) has not been disputed affecting the left lower extremity. It is apparent that it has been considered by the parties that all of the criteria with respect to symptoms and signs have been met in accordance with respect to the Guidelines.
It is also evident that the findings with respect to limitation of active range of motion within the left lower extremity has not been disputed.
The basis of the dispute relates to the methodology in relation to the CRPS-related impairment determination and sensory changes within the left lower extremity.
In relation to the impairment pertaining to CRPS 1, the Guidelines indicate that reference needs to be made to Table 16.10a (pg 482) of the AMA 5th edition guides. It is important to highlight that a nerve value multiplier is not to be used with respect to CRPS 1 determinations.
Based upon the current assessment, it is my strong opinion that a grade 1 sensory deficit is applicable. In this regard, it is considered that deep cutaneous pain sensibility is present that significantly and adversely impacts upon activities of daily living (ADL’s). For this grade, there is a range of 81-99%. Based upon this assessment and my clinical judgement, I estimate this in Ms Hammond’s case to be 85%. This is utilised as a lower extremity impairment for the current purpose of determining Whole Person Impairment.
When taking into account the further lower extremity impairments of 26% and 15% as had been determined by Dr Anderson and accepted by the parties, a combined lower extremity impairment of 91% is determined. This in turn converts to a 36% WPI.
I have also noted that the scarring/TEMSKI determination has been accepted by the parties. This had been determined by Dr Anderson as 1% WPI.
When the 36% and 1% Whole Person Impairments are combined, this gives a final combined Whole Person Impairment of 37%.
It is considered that nil deductions are applicable by way of contributory impairment.”
The Appeal Panel has adopted the report and findings of Dr Crocker. The Appeal Panel agreed with the assessment made by Dr Crocker in this matter. As noted by Dr Crocker, the application of the nerve value modifier (i.e. a value ascribed to an individual nerve) is not to be used in the assessment of CRPS1. In particular, the Appeal Panel agree that a Grade 1 sensory deficit of 85% is applicable in this case.
The Appeal Panel, therefore, made an assessment of 36% for the left lower extremity –and 1% WPI for scarring (TEMSKI). This resulted in a combined assessment of 37% WPI.
In conclusion, the Appeal Panel considered that there was a demonstrable error in the AMS’s assessment. The Appeal Panel reviewed that matter and has made an assessment of 37% WPI as a result of the injury on 28 December 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 November 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
| Matter Number: | 4872/20 |
| Applicant: | Eva Louise Hammond |
| Respondent: | Aviation Industry Resources Pty Ltd t/as Altara Resources |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or System | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Left Lower Extremity | 28.12.16 | Chapter 3, | Chapter 17, 17.2f, | 36% | ¾ | 36% |
| Scarring (TEMSKI) | 28.12.16 | Chapter 14, | 1% | ¾ | 1% | |
| Total % WPI (the Combined Table values of all sub-totals) | 37% | |||||
Carolyn Rimmer
Arbitrator
Dr David Crocker
Approved Medical Specialist
Dr Drew Dixon
Approved Medical Specialist
14 April 2021
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