Irahta v Heavy Engineering Services Pty Ltd
[2024] NSWPICMP 151
•15 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Irahta v Heavy Engineering Services Pty Ltd [2024] NSWPICMP 151 |
| APPELLANT: | Marvin Irahta |
| RESPONDENT: | Heavy Engineering Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 15 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in failing to utilise chapter 17 and table 17.1 of the Guidelines to assess permanent impairment and in failing to provide sufficient reasons to understand the MA’s reasoning process and basis upon which the permanent impairment assessment was made; the appellant submitted that the worker satisfied the criteria for a diagnosis of Complex Regional Pain Syndrome (CRPS); Panel disagreed; no evidence of CRPS at assessment by the MA; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 January 2024 Marvin Irahta (the appellant) lodged an Application to Appeal Against the decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
29 January 2024.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal, for reasons which will become apparent in due course.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in failing to utilise chapter 17 and table 17.1 of the Guidelines to assess permanent impairment and in failing to provide sufficient reasons to understand the Medical Assessor’s reasoning process and basis upon which the permanent impairment assessment was made.
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of an injury on 8 August 2019 namely complex regional pain syndrome (CRPS), the left upper extremity and the digestive system.
The Medical Assessor obtained the following history:
“On 8 August 2019, Mr Irahta injured his left index finger while helping his supervisor to move 2 large bins. His left index finger was crushed in the process. He presented to Westmead Hospital and underwent an X-ray examination and his left index finger was dressed before he was discharged home. Mr Irahta continued in his normal full-time duties at work. Some two months later on 10 October 2019, he was reviewed by his Local Medical Officer, Dr Ahmed at Busby complaining of ongoing pain at the finger. He was referred to orthopaedic surgeon Dr Kadir, at Liverpool who assessed him on 31 October 2019. Dr Kadir recommended a course of hand physiotherapy which continued for two months. He was then referred for a pain specialist review with Dr Manohar who assessed him on 26 February 2020. The doctor recommended a synthetic nerve block at C6/7 but the insurer declined. He was then referred for a second opinion with Pain Specialist Dr Wallace, who initially assessed him on 23 September 2020 and recommended a further course of physiotherapy. Mr Irahta was prescribed pain medication Endep and Gabapentin by Dr Wallace about 23 September 2020. After that, Mr Irahta developed lower abdomen pain and irregular bowel habits, alternating constipation and diarrhoea. He consulted Dr B Marcus at Liverpool for his bowel problem who prescribed Pantoprazole. There was some improvement of bowel symptoms. Mr Irahta did not have a gastrointestinal specialist consultation and there were no endoscopic examination performed for his bowel problems.”
After documenting Mr Irahta’s current treatment, the Medical Assessor then set out present symptoms as follows:
“Mr Irahta complains of intermittent pain at the tip of the left index finger. The finger becomes painful in cold weather and on usage. The intensity of the pain varies from mild to severe and it is severe when the weather is cold. The tip of the finger can be come or blue on the radial side. He has stiffness at bending the two interphalangeal joints. He complains of grip weakness at his left hand.”
The Medical Assessor then set out details of Mr Irahta’s general health, work history and the impact of his injury on his social activities and activities of daily living (ADL’s).
Findings on physical examination were reported as follows:
“Left upper extremity.
The left arm showed no atrophy with no evidence of abnormal symptoms or sign except at the left index finger. Mr Irahta took off the dressing at the left index finger carefully but did not showed severe discomfort or pain.
Examination of the left index finger showed a slight deformity at the tip of the finger. Mr Irahta did not complain of pain when the finger was examined. The rest of the left hand was normal on inspection.
The active range of movements of the left index finger are as follows:
MCP joint: +20° extension (0%)-90° flexion (0%)
PIP Joint: 0° extension (0%)-70° flexion (47% FI) = 47% FI
DIP joint: 0° extension (0%)-40° flexion (15% FI) =15% FI
The left index finger impairment = Combine 47% and 15% above =55% FI, equivalent to 11% HI or 10% UEI or 7% WPI.
There is no impairment at the right index finger. The active range of movements of the normal right index finger are as follows:
MCP joint: +20° extension -100° flexion
PIP Joint: 0° extension -100° flexion
DIP joint: 0° extension -70° flexion
I could not confirm the findings of sensory loss at the left index finger in this case. There was pain and abnormal sensation at the tip of the finger which could be attributed to the local trauma alone.
CRPS – Left upper extremity (SIRA 4 Table 17.1)
1. Continuing pain, which is disproportionate to any causal event: Negative; the pain was localised to the tip of the left index finger, easily accounted for by the local trauma/injury suffered at work.
2. Must report at least one symptom in each of the four following categories:
• Sensory: Reports of hyperaesthesia and /or allodynia: Yes, these symptoms were reported to happen when the tip of the index finger was provoked; these symptoms were not present most of the time.
• Vasomotor: Reports of temperature asymmetry and /or skin colour changes and /or skin colour asymmetry: Yes, this happens occasionally.
• Sudomotor/oedema: Reports of oedema and /or sweating increase or decrease and /or sweating asymmetry: There was report of swelling at the tip of the left index finger on occasions.
• Motor/trophic: Reports of decreased range of joint motion and /or motor dysfunction (tremor, dystonia) and /or trophic changes (hair, nail, skin): Yes, there is decreased range of motion at the DIP joint and PIP joints; these restrictions can be explained by the local finger injury suffered at work.
3. Must display at least one signs 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): There is no evidence of hyperalgesia other than pain at the finger tip of the left index finger.
• Vasomotor: Evidence of temperature asymmetry and /or asymmetric skin colour changes: No, the listed vasomotor signs were not present on examination.
• Sudomotor/oedema: Evidence of oedema and /or sweating asymmetry: No, the listed sudomotor signs were not present on examination.
• Motor/trophic: Evidence of decreased active joint range of motion and /or motor dysfunction (tremor, dystonia) and /or trophic changes (hair, nail, skin): There is range of motion restriction localised the interphalangeal joints of the left index finger, explicable by localised trauma. There was some deformity at the tip of the left index finger due the subject injury. The listed motor/trophic signs were not found in this examination.
4. There is no other diagnosis that better explains the signs and symptoms: No, the trauma to the left index finger is the cause and an adequate explanation of signs and symptoms found on this examination.
5. Conclusion: The diagnosis of CRPS cannot be made according to the above guidelines.
Digestive system
Marvin Irahta had normal colour and nutritional status. The abdomen was normal on inspection. On palpation, there was tenderness at the epigastrium and milder tenderness at the lower abdomen. The abdomen had no guarding or palpable abnormal masses. PR examination was not performed.”
He then noted the radiological material he had.
The Medical Assessor summarised the injuries and diagnoses as follows:
“Marvin Irahta is a 53-year-old man who suffered a soft tissue injuries to his left index finger at work. He received conservative treatment only for the injury. He continues to have impairments from his injuries affecting many aspects of his daily activities and his capacity to work. The diagnosis of CRPS was not confirmed according to the guidelines. Marvin Irahta developed upper and lower digestive system symptoms after the injury.”
The Medical Assessor then set out his opinion and assessment of WPI and said:
“Mr Irahta had injury to left index finger while at work. I have assessed the whole person impairment at 7%.
In making that assessment I have taken account of the following matters: - Complex Regional Pain Syndrome was not confirmed in this examination; 0% WPI.
The left index finger had range of motion impairment of 7% WPI based on the goniometric measurements obtained in this examination.
Digestive system had no rateable clinical findings and it was rated at 0% WPI.”
He then turned to consider the other medical opinions and evidence and said:
“15 February 2023 Dr A Greenberg made the diagnosis of Irritable Bowel Syndrome related to stress complicated by long-term use of gabapentin. Assessment 2% WPI for lower digestive system and 0% WPI for upper digestive system.
30 August 2023 Dr John Garvey agreed with Dr Greenberg in the diagnosis of diagnosis of irritable syndrome but disagreed with the 2% WPI assessment. Dr Garvey rated 0% WPI for both upper digestive system and lower digestive system.
29 August 2023 Dr Raymond Wallace reported no evidence of Complex Regional Pain Syndrome at his left hand on clinical examination on 23 August 2023. He rated a total left index finger impairment of 15% which corresponds to a left hand impairment of 3%, a left upper limb impairment of 3% and a whole person impairment of 2%.
30 March 2023 Dr T Kwong accepted the diagnosis of CRPS and rated the total WPI at 26%. He found 5% UEI for the left index finger based on range of motion restriction.
23 August 2023 Dr Ross Mellick, Consultant Neurologist reported no consistent findings for diagnosis of CRPS and he rated 2% WPI for sensory loss at the index finger.
Based on findings of this examination, I agree with Drs Wallace and Mellick in that the diagnosis of CRPS cannot be established in this case. I could not confirm the findings of sensory loss at the left index finger. There was pain and abnormal sensation at the tip of the finger explainable on local trauma alone. I agree with Dr Garvey in rating the gastrointestinal tract at 0% WPI.”
The appellant’s submissions may be summarised as follows:
(a) The Guidelines confirm that assessment of permanent impairment of chronic pain is to be undertaken in accordance with chapter 17 and table 17.1 Guidelines.
(b) The Guidelines confirm that for the condition to be present:
(i)the diagnosis is to be confirmed by criteria in Table 17.1;
(ii)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);
(iii)the diagnosis has been verified by more than one examining physician, and
(iv)other possible diagnoses have been excluded.
(c) Table 17.1 confirms that the applicant must report at least one symptom (our emphasis) in each of the four categories and must display at least one sign (our emphasis) at the time of the evaluation in all of the four categories.
(d) The appellant's upper limb condition was noted by his treating orthopaedic surgeon, Dr Agus Kadir on 31 October 2019.
(e) The upper limb condition was noted to be consistent with the documented features of CRPS by his pain specialist, Dr David Manohar on 26 February 2020.
(f) The appellant's treating general practitioner, Dr Bishoy Marcus, confirms a diagnosis of CRPS secondary to finger injury.
(g) Pain management specialist, Dr Laurent Wallace recommended the appellant participate in an intensive pain management program for the sole purpose of treating and managing injured individuals who suffer from symptoms consistent with CRPS.
(h) Dr Wallace confirms that the appellant has significant allodynia, hyperalgesia and dysesthesia affecting the left index finger but the distal phalanx in particular. These are all symptoms consistent with that of CRPS.
(i) The appellant had satisfied the criteria in cl 17.5.
(j) The Medical Assessor failed to make reference to its requirements with respect the appellant’s presentation. The Medical Assessor simply stated: “There was pain and abnormal sensation at the top of the finger which could be attributed to the local trauma alone.”
(k) This opinion maintained by the Medical Assessor is unsatisfactory and makes no reference to the material provided, or the physical examination. One cannot assume that the symptoms experienced by the appellant, symptoms being that consistent with CRPS, can be attributed to local trauma as opposed to the pain syndrome diagnosed by several treating providers.
(l) The Medical Assessor states that there is no evidence of hyperalgesia other than pain at the finger tip of the left index finger. Pain and abnormal sensation at the top of the finger would satisfy this criteria. It is the appellant's position that this reasoning is inadequate and there has therefore been a misappropriate [sic] of the guidelines.
(m) The failure of the Medical Assessor to engage in that process by reference to the Guidelines or by provision of his actual findings in circumstances where that was a direct issue between the parties was an error in failing to apply the guidelines.
(n) The Medical Assessor failed to provide sufficient reasons for his conclusions.
(o) The bare statement that the findings do not indicate any ongoing CRPS does not enable the reader to understand the nature of that conclusion by reference to the evidence, statutory criteria and findings on examination.
(p) With respect to the digestive system, Medical Assessor Wong states the appellant has "normal colour and nutritional status". This reasoning provided is not substantive, nor is it comprehensive to determine whether the appellant ought to been provided with further degree of impairment attributable to the digestive system.
(q) He states that the digestive system had no rateable clinical findings and it was rated at 0% WPI. No reference was made to the material provided or the opinions maintained by the various medical specialists.
Discussion
CRPS
The appellant’s submissions, extensive as they are, are nonetheless misguided and without substance for reasons that follow.
The appellant does correctly identify the requirements for a diagnosis of CRPS in his submissions.
But it is clear to us that the Medical Assessor set out in considerable detail those requirements as they related to his findings on examination at the time of his assessment.
It must be remembered that Chapter 1.6 of the Guidelines provides that assessing permanent impairment “involves clinical assessment of the Plaintiff as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…” (our emphasis).
A claimant must report at least one symptom in each of the four named categories, and must also display at least one sign at time of evaluation (our emphasis) in all of the specific four categories named.
In assessing the appellant, the Medical Assessor clearly set out his findings with respect to all categories.
For example, when dealing with “Vasomotor: Evidence of temperature asymmetry and /or asymmetric skin colour changes” the Medical Assessor said: “No, the listed vasomotor signs were not present on examination.” Similarly with “Sudomotor/oedema: Evidence of oedema and /or sweating asymmetry” the Medical Assessor again said: “No, the listed sudomotor signs were not present on examination.”
For more abundant clarity, he highlighted both the symptoms and signs required in the respective categories.
Thus in our view it simply cannot be said that the Medical Assessor “failed to make reference to its (Table 17.1 and Chapter 17.5) requirements with respect the appellant’s presentation”. The Medical Assessor simply stated: “There was pain and abnormal sensation at the top of the finger which could be attributed to the local trauma alone.”
In failing to establish the requisite signs and symptoms for a diagnosis of CRPS, the Medical Assessor was simply stating his opinion as to the cause of the appellant’s symptoms which he clearly accepted.
The appellant’s submissions really do no more than cavil with the opinion of the Medical Assessor.
Although not bound by other medical opinions, the Medical Assessor noted them and explained his own views vis a vis those opinions.
As he said:
“I agree with Drs Wallace and Mellick in that the diagnosis of CRPS cannot be established in this case. I could not confirm the findings of sensory loss at the left index finger. There was pain and abnormal sensation at the tip of the finger explainable on local trauma alone.”
Only Dr Kwong, of the three IME’s, accepted the diagnosis of CRPS.
We note with interest the opinion of Dr Herald in his report dated 8 November 2022 where he said as follows:
“He developed CRPS in regards to his finger and was referred to see a pain specialist Dr Manohar. Dr Manohar diagnosed CRPS. More recently he has been referred to another pain specialist Dr Wallace. Dr Wallace has recommended physiotherapy.
Examination of the left index finger, he has some hypersensitivity over his whole index finger from the metacarpal base to the tip. He has abnormal sensation in this area and what we described as allodynia. He does have feeling to light touch and two point discrimination. He has good strength in his flexor and extensor tendons and a full range of motion of his shoulders and the rest of the joints in his hand. He has restricted range of motion of his left hand index finger with 0 to 70 degree range of motion of the metacarpophalangeal joint, 0 to 90 degree range of motion of the PRP joint and 0 to 60 degree range of motion of the DIP joint. He has no abnormal colour or temperature and there is no swelling or oedema.
He does however have slowly reduced grip strength on the left compared to the right, but it is difficult to know because he is right handed or if it is reduced compared to his normal grip strength.
There is a slightly smaller nail on the left index finger compared to the right index finger which maybe as the result of the crush injury and distal phalanx fracture that he has sustained. The pulp is also slightly smaller compared to the contralateral side. He does however appear to have normal function throughout the interview.”
Dr Herald diagnosed: “Crushed injury to the left distal phalanx of index finger with subsequent healing then residual reduced tuft and nail size. PTSD/major depression.”
When asked: “Do you believe our client suffers from Complex Regional Pain Syndrome?” he replied: “He does not unfortunately fulfill the criteria necessary to be considered as having complex regional pain syndrome as per the Guidelines.”
He added:
“It is clear that the partial amputation of his left index finger occurred as a result of his workplace injury. A subsequent PTSD and mental health issues otherwise had been caused secondary to this as a result of bullying and harassment at work.”
When asked: “Kindly provide your assessment of permanent impairment in accordance with the Guidelines” he said: “On a separate page assessment of whole person impairment has been provided… as his condition can be considered stable.”
That page was not included in the appellant’s Application.
So again, it is only Dr Kwong who accepted the diagnosis of CRPS.
Dr Herald’s comments regarding “mental health issues” may well be a valid explanation for the appellant’s presentation.
The referral by the Personal Injury Commission (Commission) to the Medical Assessor does not identify the body part affected by the diagnosis of CRPS but we have accepted that it relates to the left upper extremity and specifically the left index finger. The referral appears to have been made by a delegate of the Commission so presumably was made with the consent of the parties, but as we said, it was very limited which does not assist a Medical Assessor nor the Panel.
In summary, it is true to say that the Medical Assessor certainly found some symptoms and signs but simply insufficient to support a finding of CRPS.
In our view, the MAC was both thorough and detailed.
The Medical Assessor clearly explained his findings and reasons for assessment, and we do not see any error in his assessment.
The digestive system
The appellant submits that the Medical Assessor simply stated that the appellant has "normal colour and nutritional status" and “no rateable clinical findings” and his reasons were inadequate. He also failed to refer to “the material provided or the opinions maintained by the various medical specialists.”
The Medical Assessor noted that both Dr Greenberg and Dr Garvey made the diagnosis of irritable bowel syndrome related to stress complicated by long-term use of gabapentin.
In other words, there was no dispute as to the diagnosis such that it is clear to us that he did indeed have regard to the “opinions maintained by the various medical specialists”.
In addition, Chapter 16.9 of the Guidelines states that: “Irritable bowel syndrome without objective evidence of colon or rectal disease is to be assessed at 0% WPI.”
In other words, the Medical Assessor’s assessment was entirely consistent with the Guidelines, notwithstanding the assessment of Dr Greenberg.
In these circumstances, we cannot see any error by the Medical Assessor.
Not necessary for Medical Assessor to undertake.
For these reasons, the Appeal Panel has determined that the MAC issued on
29 January 2024 should be confirmed.
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