JBT Logistics Pty Ltd v Buckley
[2021] NSWPICMP 7
•5 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | JBT Logistics Pty Ltd v Buckley [2021] NSWPICMP 7 |
| APPELLANT: | JBT Logistics Pty Ltd |
| RESPONDENT: | Guy Kenneth Buckley |
| Appeal Panel: | John Wynyard Dr Philippa Harvey- Sutton Dr David Crocker |
| DATE OF DECISION: | 5 March 2021 |
catchwords: | WORKERS COMPENSATION- AMS found symptoms and signs for CRPS not present, but assessed WPI on the basis of range of motion restriction, contrary to the terms of the referral; worker re-examined and symptoms and signs found; consideration of the terms of Table 17.1 of the Guidelines; Held- “symptoms” not necessary to be present at examination; Guidelines require a “history”; MAC revoked and 53% WPI substituted for 46% WPI. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL
PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 September 2020 JBT Logistics Pty Ltd, the appellant employer 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 27 August 2020.
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 Registrar 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 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.
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). “WPI" is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 9 July 2020 the delegate of the Registrar referred this matter to the AMS on the following bases:
“Date of injury: 8 May 2016.
Body part/s referred: Right Upper Extremity due to a consequential condition (chronic pain (pursuant to Chapter 17 of the Guidelines)) resulting from the injury sustained to the applicant’s shoulder on 8 May 2016.
*For the attention of the AMS:
In respect of the claim for whole person impairment of the right upper extremity (shoulder) and scarring (TEMSKI). The parties agree that the applicant has 12% whole person impairment of the right upper extremity (shoulder) and 1% whole person impairment for scarring (TEMSKI), for a combined total of 13% whole person impairment in accordance with chapters 2 and 14 of the Guidelines) .The Approved Medical Specialist is requested to include these agreed
assessments in his Medical Assessment Certificate.”The referral followed the issue of a Certificate of Determination on 6 March 2020, after a defended hearing.
Mr Buckley suffered injury when he attempted to lift a full quarter of beef on his right shoulder on 8 May 2016. He came to an arthroscopic procedure on 4 August 2016 with Dr Sam Kwa for a rotator cuff tear which gave him limited relief. Soon after he experienced greater pain in his right shoulder and it was suspected that he had developed a chronic pain condition. He was managed by a Pain Management Physician, Dr David Wu in Orange but no treatment was successful.
When Dr Wu assessed Mr Buckley he found an almost complete lack of capacity for moving the right shoulder complex, a disability also noted by the AMS.
The AMS certified a WPI of 46%.
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.
The appellant employer did not request that the worker be re-examined but, for the reasons given below, a re-examination was necessary.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS 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 Monday 11 January 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 which have been considered by the Appeal Panel.
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 employer submitted that the AMS was required to assess in terms of the referral, and that he had not done so. The AMS had assessed Mr Buckley’s impairment on the range of motion method, when such a course was not open to him, as he had found that the requisite criteria for a diagnosis of Complex Regional Pain Syndrome was not present. The AMS had accordingly ignored the terms of the referral, as it was limited to the application of Chapter 17 of the Guides which provides at Table 17.1 thereof strict criteria for the assessment of WPI.
Mr Buckley conceded in his submissions that the diagnostic criteria for a complex regional pain symptom as set out in the Guides had not been established on the day of assessment, as we understood the concession.[1]
[1] Appeal papers page 18 [7]
It is convenient to set out the approach taken by the AMS.
On physical examination he found almost no movement of the right shoulder, the only measurable movement being of flexion on the shoulders for 30°. Elbow movements were also grossly reduced on flexion, extension and supination. The wrist and digits also were affected by significant loss of movement.
The AMS found:[2]
“The appearance of the right arm was identical to that of the left. There was no swelling, alteration of colour, alteration of temperature (conducted manually with great care), nor was there any sweating. Similarly, no significant difference to the state of the hair on the dorsum of his hands or forearms and no significant difference to his fingernails was seen.”
[2] Appeal papers page 24
The AMS was unable to accurately perform sensory testing on the right arm due to the extensive pain experienced by Mr Buckley. The AMS asked Mr Buckley to touch the arm himself which caused an “excessive response to sensation”.
In his Summary the AMS noted the pathology within the shoulder consisted of a tear to the supraspinatus and the subscapularis tendon, with the later development of bursitis. He noted that Mr Buckley’s condition was managed surgically by Dr Kwa. The AMS said:[3]
“Technically, this seems to have given Mr Buckley a satisfactory result
although he unfortunately developed a chronic pain condition fairly soon after this procedure. Since then, there has been no significant improvement to his condition.At this assessment in comparison with all other physical assessments, his recorded range of movement had the greatest deficit. It has also been suggested that he currently has at least a chronic pain condition and possibly complex regional pain syndrome. It is confirmed that he does have a very obvious chronic pain condition, although the specifics for the diagnostic criteria of complex regional pain syndrome were not fully present. Therefore, complex regional pain syndrome has been excluded although a complex pain condition has been confirmed.”
[3] Appeal papers page 25
The AMS explained his calculations by saying:[4]
“The effects of this condition on Mr Buckley’s right forequarter have resulted in very gross restriction of movement of all joint features in the right forequarter. This is used for the (quite extensive) whole person impairment assessment.”
[4] Appeal papers page 26
The AMS then set out the range of motion measurements for the right upper extremity, and found that under the relevant conversion table in AMA 5 Mr Buckley was entitled to 46% WPI.
With regard to the comments made by other medical specialists, the AMS said that it was “quite obvious” that Mr Buckley’s condition had deteriorated since he was seen by any other specialist except perhaps Dr Wu. The AMS referred to the opinion of Dr Bosanquet who used the criteria set out in Chapter 13.8 of AMA 5 which is entitled “Criteria for rating impairments relating to chronic pain”. The AMS said:[5]
“….With great respect, I am persuaded that with the existing deficit of range of movement, which is due to his chronic pain condition, that the range of movement modality is more appropriate.”
[5] Appeal papers page 28
The AMS noted the agreement between the parties regarding the combined value 13% WPI for the right upper extremity and scarring.
Chapter 17.5 provided that where complex regional pain syndrome type 1 had been established, the method of assessing the impairment was indeed to rate the impairment resulting from the loss of motion of each individual joint involved.[6]
[6] Guidelines page 81
The appellant employer relied on Chapter 1.12 of the Guidelines which provides as follows:
“1.12 AMA5 Chapter 18, on pain, is excluded entirely at the present time. Conditions associated with chronic pain should be assessed on the basis of the underlying diagnosed condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines. Complex regional pain syndrome should be assessed in accordance with Chapter 17 of the Guidelines.”
Chapter 17.2 of the Guidelines provides that Chapter 18 of AMA5 is excluded from the evaluation of permanent impairment arising from chronic pain, the AMA5 chapter being entitled “Pain.”[7] The diagnostic criteria for Complex Regional Pain Syndrome is set out at Table 17.1[8]:
[7] AMA5 page 565
[8] Guides page 81
“Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2
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 CRPS1:
•• If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS1 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 AMA5 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.
•• Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA5, p 604) to obtain the final extremity impairment.
•• Convert the final extremity impairment to WPI using AMA5 Table 16.3, (p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity.
It can be seen that the AMS acknowledged that not all of the symptoms and signs required by that table were present at the time of his examination. Thus while the AMS was satisfied that Mr Buckley complied with the first and fourth criteria therein set out, he was unable to satisfy himself as to the specific symptoms and signs contained within criteria 2 and 3.
Although the AMS noted that complex regional pain syndrome had been excluded because “the specifics of the diagnostic criteria were not fully present”, he nonetheless found himself “persuaded” that the appropriate assessment method was nonetheless that prescribed by Chapter 17.5. In doing so, the AMS fell into error.
The respondent worker suggested an alternative way of resolving the dispute. At paragraph 7 Mr Buckley submitted:[9]
“7. While reluctantly the Respondent Worker must concede demonstrable error, it is respectfully submitted that in view of what was clearly on the face of the Medical Assessment Certificate an inadequate examination of the Respondent Worker’s right arm, but acceptance of the genuineness of presentation of the Respondent Worker, and a long history dating back to October 2016 of discolouration and sweating, noted on examination by the Appellant Employer's own Dr Bosanquet, it is respectfully submitted that the Medical Appeal Panel should in accordance with section 328(4) order that the Respondent Worker attend an Appeal Panel for the purposes of an assessment by an Approved Medical Specialist so that the learned Appeal Panel can properly (with great respect to the Approved Medical Specialist) examine and assess whether the signs and symptoms criteria in table 17.1 are present.”
[9] Appeal papers page 18
Mr Buckley referred accurately to the reports of four medical practitioners who noted some of the symptoms and signs required between 1 November 2016 and 28 June 2018 which were described as follows:
“i. The report of Dr Bosanquet dated 28 June 2018, based on an examination that revealed “his right arm was sweating at the end of the examination and was a purple colour”.
ii. The report of Dr John Bosanquet dated 24 September 2019: based on findings of examination “the colour changes and increased seating (it could be inferred this should be “sweating”) occur every day”.
iii. Report of Dr David Wu dated 30 October 2018 based on findings of examination of: “episodes of arm swelling, discolouration of the skin in the right arm, and associated paraesthesia and numbness in the right arm”.
iv. Report of Dr Samuel Kwa dated 25 July 2017: “sometimes he will have a swelling and bluey discolouration over the proximal forearm and at times he will have numbness and tingling that can extend all the way down to his hand”.
We note the opinion of the AMS that Mr Buckley’s condition was now worse than it had been when any of those experts saw him, but the significant difference is that signs and symptoms were not fully present on examination in relation to the specific criteria of CRPS. We note further the comments made regarding Mr Buckley’s consistency of presentation. The AMS said:[10]
“Mr Buckley’s presentation did appear to be consistent. I gained the strong impression that his presentation was completely genuine and that he does experience the very gross pain and discomfort of the right forequarter with the very gross restriction of movement that is described.”
[10] Appeal papers page 25
We accept that the AMS has given a thorough and well-reasoned certificate. However a demonstrable error has been conceded and there is force in Mr Buckley’s reasons for seeking a re-examination. Accordingly a re-examination was arranged with Dr Crocker on 11 January 2021. Dr Crocker’s report follows:
REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-6616/19
Appellant Worker: Mr Guy Buckley
Respondent: JBT Logistics Pty Ltd
Examination Conducted By: Dr David Crocker
Date of Examination: 11.1.21
In view of the current COVID-19 global pandemic, the initial component of the assessment (history taking) was conducted with Mr Buckley in an adjacent consulting room with use of a telephone. The physical examination was carried out in my consultation room with mutual use of surgical masks. Infection prevention and control measures were maintained in the waiting room area and the consulting rooms. Mr Buckley’s wife was present in the adjacent waiting room area. Mr Buckley was in agreement with the consultation proceeding in this manner.
The worker’s medical history, where it differs from previous records
I initially took the opportunity to discuss the history outlined in the Medical Assessment Certificate prepared by Dr Tim Anderson, Consultant Occupational Physician and Approved Medical Specialist dated 27.8.20.
Mr Buckley appeared to be generally in agreement with the history that had been documented.
In relation to the mechanism of injury, I sought further clarification in this regard. He indicated that he was undertaking manual handling of a substantial forequarter of beef that was located in the rear of a work vehicle. He reported that the partial carcass was hanging from a hook from inside of the vehicle but was inappropriately hung such that it was touching the floor. Mr Buckley was uncertain of the approximate weight of this. He indicated that he endeavoured to push it up against the interior of the vehicle and then “flick it up” to place it on his shoulder. When doing so, strong pain and a “popping sensation” arose to the region of his right shoulder girdle.
Subsequent pain was evident to this region and extending to that of the neck and right upper limb to a more diffuse distribution.
Other details relating to the subsequent medical history are outlined in the Medical Assessment Certificate.
Mr Buckley confirmed that he has been diagnosed with hypertension and has a markedly elevated weight and reportedly with raised blood lipids.
He stated that he had sustained an injury to the left shoulder arising at work. He described this as a hairline fracture pointing to the upper humerus of the left upper limb. This had been treated conservatively. He indicated that this had subsequently fully healed with nil ongoing complaints.
He reported that he was also a passenger in a motor vehicle accident in approximately 2012 when he sustained a blow to the left elbow region. Nil fracture had reportedly been sustained.
He also stated that a work colleague had discharged a weapon with Mr Buckley being impacted by multiple “buckshot” to the left side of his body. He was unsure of the date of this but it had also arisen a number of years ago.
His wife confirmed that he is on the following oral medications: diclofenac, pregabalin, amlodipine and clonidine.
He continues in the care of his General Practitioner. There has been nil recent specialist medical review. He is not undergoing physiotherapy treatment. He has not attended a Psychologist.
Additional history since the original Medical Assessment Certificate was performed
Mr Buckley did not report suffering from further injury or having been diagnosed with other medical conditions since the time of his assessment with Dr Anderson.
Aspects relating to his current clinical status were discussed with him at this assessment.
He reported that he has not been particularly troubled by headaches.
He is experiencing occasional pain to the right posterolateral region of the neck.
There is constant pain to a diffuse distribution to the region of the right shoulder girdle, more often evident to a moderate degree. This may be “strong” at times.
He reports that pain extends to a diffuse distribution in relation the right upper extremity. This is also constant in nature. Pain tends to be more prominent to the upper arm.
He does not report similar complaints affecting the left shoulder girdle or upper limb.
With respect to symptoms that require consideration pertaining to a possible diagnosis of complex regional pain syndrome Type 1 (CRPS 1), the following was noted:
With respect to sensory features, he reports frequent “tingling” on multiple occasions affecting the right upper limb to a diffuse distribution. He also strongly cannot tolerate light touch (allodynia) of the limb and indicates that if this occurs “it is like a fireball”.
With respect to possible vasomotor features, he states that the right upper limb often feels “hot”. He also indicates that the limb can appear “motley grey” at various times on a frequent basis.
With respect to possible pseudomotor/trophic features, he indicates that the right upper limb often sweats and this then progresses to a more diffuse sweating of the body. He also indicates that the right hand often appears to be swollen.
With respect to possible motor/trophic features, he reports that there is marked limitation of movement with respect to the various joints of the right upper limb inclusive of the shoulder. He also remarks that he may be talking to someone and that the right hand may “start twitching”. He did not comment upon any observed changes with respect to his nails, skin (apart from colour changes described above) and body hair.
Mr Buckley did not report any particular bowel or bladder abnormal features.
When questioned in relation to his psychological status, he made frequent remarks about wishing that “somebody would chop it off”. He also commented that he is “as mad as a square wheel”. He also remarked that he has had “bad thoughts”, implicitly referring to possible suicidal ideation.
Mr Buckley confirmed that he is markedly limited in relation to a range of activities of daily living. This includes aspects relating to personal care. He reported that he would need to ask his wife to assist with adjustment of his mask.
Findings on clinical examination
It has been indicated that the physical examination was conducted in my consulting room with mutual use of surgical masks. Mr Buckley appeared generally uncomfortable and in varying levels of pain during the consultation.
He was informed that I would cease or modify any manoeuvres that may potentially cause him undue physical distress.
His weight, lightly clothed, was 133kg with a height of 175cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 57-77kg.
It is noted that Mr Buckley is right-side dominant.
Examination of the cervical spine demonstrated moderate global asymmetric limitation with active range of motion.
There was reported marked tenderness with palpation overlying the lower posterior cervical spinous processes and to adjacent musculature to the right side. There was evidence of guarding to this region.
Mr Buckley was noted to generally hold himself in asymmetric manner with a somewhat “dropped” right shoulder girdle with his head tilted more to the left side.
A healed longitudinal surgical scar of a “fleshy” appearance was noted to be present to the anterior aspect of the right shoulder/upper arm of approximately 6cm in length. Further multiple small portal surgical scars were also evident to the region.
Active range of motion was assessed on multiple occasions at both shoulder girdles with use of a goniometer with maximal findings noted as follows:
Shoulder Movements RIGHT LEFT Flexion 10° 180° Extension 5° 50° Adduction 0° 60° Abduction 10° 145° Internal Rotation NR 65° External Rotation NR 90° (NR = not recordable)
Marked tenderness and allodynia was evident with light palpation of the right shoulder girdle and right upper limb to a diffuse distribution.
With respect to clinical signs relevant to a possible diagnosis of CRPS 1, the following was noted on physical examination:
Sensory: See abnormal sensory findings, as outlined above.
Vasomotor: The right upper limb felt warmer than the left. There was also a mildly plethoric appearance of the right upper limb as compared to the left.
Motor/trophic changes: Marked active limitation with range of motion was observed in relation the right shoulder girdle and other joints of the right upper extremity, as documented below. A mild tremor was observed of the right hand when informally noting Mr Buckley during the consultation. Nil trophic changes were noted with respect to hair, nail and skin (other than the colour changes observed, as outlined above), in relation to the right upper extremity.
As indicated above, active range of motion was assessed of the multiple joints pertaining to the right upper extremity. This was undertaken in a similar manner as pertaining to the shoulder.
With respect to the elbows, the following was noted.
Elbow Movements RIGHT LEFT Flexion 25° 110° Extension -10° -2° Pronation 80° 90° Supination 30° 80° With respect to the wrists, the following was noted:
Wrist Movements RIGHT LEFT Flexion 0° 70° Extension 10° 65° Radial Deviation 5° 30° Ulnar Deviation 0° 35° Active range of motion was assessed with respect to the multiple small joints of both hands with the clinical findings noted as follows:
| Thumb Movements | RIGHT | LEFT |
| § CMC joint · Radial abduction · Adduction · Opposition § MP joint · Flexion · Extension § IP joint · Flexion · Extension | 20° 2° 10° | 70° 65° 70° |
| Index Finger Movements | RIGHT | LEFT |
| § MP joint · Flexion · Extension § PIP joint · Flexion · Extension § DIP joint · Flexion · Extension | 30° 20° 5° | 60° 95° 70° |
| Middle Finger Movements | RIGHT | LEFT |
| § MP joint · Flexion · Extension § PIP joint · Flexion · Extension § DIP joint · Flexion · Extension | 30° 20° 10° | 70° 90° 80° |
| Ring Finger Movements | RIGHT | LEFT |
| § MP joint · Flexion · Extension § PIP joint · Flexion · Extension § DIP joint · Flexion · Extension | 20° 10° 2° | 70° 90° 80° |
| Little Finger Movements | RIGHT | LEFT |
| § MP joint · Flexion · Extension § PIP joint · Flexion · Extension § DIP joint · Flexion · Extension | 10° 5° 2° | 70° 80° 80° |
Results of any additional investigations
I am not aware of any further investigations having been performed.
Determination of permanent impairment
With respect to diagnoses, it is evident that Mr Buckley had sustained trauma to the right shoulder girdle with features consistent with a rotator cuff tear. Investigation had also been consistent with trauma to the long head of biceps.
He proceeded to surgery on 4.8.16 inclusive of subacromial decompression, rotator cuff repair and biceps tenodesis.
Mr Buckley continued to experience significant complaints referable to the region, right upper limb and neck. This included pain management review with treatment inclusive of a Ketamine infusion. This had only provided him with temporary relief.
Clearly, Mr Buckley has gross functional incapacity as a consequence of his medical condition affecting his right dominant side with associated disabling pain complaints.
It is evident that the referral to the Approved Medical Specialist required consideration pertaining to a consequential chronic pain condition.
It is evident that specific attention needs to be given to whether complex regional pain syndrome Type 1 is present.
The NSW Workers’ Compensation Guidelines indicate that the following need to be met:
·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.
·CRPS 1 is to be assessed as follows:
·Apply the diagnostic criteria for complex regional pain syndrome Type 1 (Table 17.1).
In relation to Table 17.1 of the NSW Workers’ Compensation Guidelines (pg 81), the symptoms of which Mr Buckley complains fully satisfy each of the four categories in relation to a diagnosis of CRPS Type 1 (see above).
Mr Buckley’s clinical presentation of chronic pain exceeds a period of time of one year.
It is evident that multiple treating physicians have alluded to a diagnosis of CRPS.
Nil other diagnoses have been raised specifically to explain the clinical presentation.
With respect to the clinical features upon physical examination, ie the clinical signs, it has been outlined that abnormal findings consistent with each of the subcategories contained in Table 17.1 have been met.
As a consequence, it is considered that a diagnosis of complex regional pain syndrome Type 1 has clearly been established to allow an assessment of Whole Person Impairment upon this basis.
When taking into account the methodology for assessment of WPI in this regard (pg 81), loss of active range of motion requires assessment pertaining to the affected part. It has been noted that the parties have agreed to a right upper extremity impairment pertaining to the shoulder, taking into account limitation with active range of motion, of 12% WPI. Based upon reference to AMA 5, this equates with a 20% UEI.
The current clinical assessment indicates marked limitation with active range of motion pertaining to multiple joints within the upper limb in addition to that of the shoulder. Some variation is evident as compared to the findings of Dr Anderson. It is considered that it is likely that Mr Buckley’s marked and genuine physical distress at the time of this assessment would explain some lesser findings in relation to active range pertaining to these regions.
The methodology pertaining to assessment of CRPS 1 also requires an assessment of sensory deficit/pain in accordance with Table 16-10a (pg 482). Based upon reference to this table and the marked allodynia evident at the time of this assessment, it is considered that Mr Buckley’s presentation best fits a Grade 1 determination, ie 81-99% sensory deficit. When taking this into account, I consider that 85% is an appropriate assessment in this regard. It has been outlined that the assessing physician utilise his clinical judgement to select the appropriate grade and percentage within the range outlined.
Further, once this grade has been determined, in the case of CRPS, a nerve value multiplier is not utilised to modify this percentage. As such, an 85% UEI is determined with respect to sensory deficit relating to Mr Buckley.
When taking into account a 20% UEI relating to the right shoulder girdle (and not further combining this with other limitation with active range of motion within the limb, in accordance with the nature of the referral to the AMS and agreement of the parties), 85% combines with 20% to give 88% UEI. This converts a 53% Whole Person Impairment.
It has also been noted that pertaining to original referral to the AMS, the parties had agreed that there was a 1% WPI with respect to scarring (TEMSKI). When the 53% WPI is combined with the 1% WPI, a final combined Whole Person Impairment of 53% is determined.
It is considered that there is nil evidence to support any deductions by way of contributory impairment.
Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
| 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 S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Right Upper Extremity | 8.5.16 | Chapter 2, | Chapter 16.5b, | 53% | ¾ | 53% |
| Scarring (TEMSKI) | 8.5.16 | Chapter 14, | Chapter 8.7, Table 8-2, pp 178-189 | 1% | ¾ | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 53% | |||||
Signed:
Date: 11.1.21
******************************************************************************
We adopt Dr Crocker’s thorough and careful report. To apply Table 17.1 in the form of a chart, Dr Crocker’s findings correlate as follows:
Clinical features -
Symptoms (History) Sensory
Presence of allodynia
Vasomotor
Reports temperature changes (“feels hot”) and discolouration (“motley grey”) not affecting contralateral upper limb Sudomotor / oedema
Reports increased sweating and swelling not affecting the contralateral upper limb Motor / trophic
Reports marked limitation of active movement to multiple joints and intermittent tremor (“twitching”) not affecting the contralateral upper limb Clinical features -
Signs (Physical examination) Sensory
Marked tenderness and allodynia not affecting the contralateral upper limb Vasomotor
Right upper limb warmer to touch compared with the contralateral upper limb Sudomotor / oedema
Diffuse mild swelling of the right upper limb and sweating of the palm of the right hand with these features not evident affecting the contralateral upper limb Motor / trophic
Marked limitation with active range of motion to multiple joints not evident affecting the contralateral upper limb All criteria met with respect to clinical symptoms and signs per Table 17.1
It can be seen that Dr Crocker’s assessment (53%) is in the same high range as that of the AMS (46%). It can also be seen that whilst the AMS was unable to find the requisite criteria pursuant to Table 17.1, it was apparent to Dr Crocker that the criteria were present.
In particular, the “symptoms” at Table 17.1 (2) have been correctly described by Dr Crocker as matters of history. The requirement for compliance with the identified symptoms is that there must be “reports” of symptoms in each category. This does not mean that those symptoms must be apparent at the time of the examination, and in this respect the AMS has also fallen into error. Additionally, Dr Crocker also found at the time of the assessment that all of the criteria pertaining to CRPS were met.
Chapter 1.6, under the heading “Principles of Assessment” sets out “a basic summary of some key principles of permanent impairment assessments”:[11]
[11] Guidelines page 3
“1.6 The following is a basic summary of some key principles of permanent impairment assessments:
a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
•• whether the condition has reached Maximum Medical Improvement (MMI)
•• whether the claimant’s compensable injury/condition has resulted in an impairment
•• whether the resultant impairment is permanent
•• the degree of permanent impairment that results from the injury
•• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.”
Bearing in mind that Table 17.1 (2) requires at least one symptom in each of the prescribed categories to be identified by “reports” of the symptoms, it is clear that an AMS was intended to include in his assessment of the claimant as he presented on the day of assessment, an account of the relevant medical history as it pertained to reports before him regarding the presence of symptoms in each category. The AMS is not limited to the symptoms that he identifies or does not identify to be present on the day of assessment.
As outlined above, all of the clinical signs relevant to the criteria were found to be present at the time of re-examination.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 August 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
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
| 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 S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Right Upper Extremity | 8.5.16 | Chapter 2, | Chapter 16.5b, | 53% | ¾ | 53% |
| Scarring (TEMSKI) | 8.5.16 | Chapter 14, | Chapter 8.7, Table 8-2, pp 178-189 | 1% | ¾ | 1% |
| Total % WPI (the Combined Table values of all sub-totals) | 53% | |||||
John Wynyard
Member
Dr Philippa Harvey-Sutton
Medical Assessor
Dr David Crocker
Medical Assessor
5 March 2021
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