Johnson v Tysin Pty Ltd t/as Brownsugar at Bayviews (in liquidation)
[2021] NSWPICMP 108
•30 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Johnson v Tysin Pty Ltd t/as Brownsugar at Bayviews (in liquidation) [2021] NSWPICMP 108 |
| APPELLANT: | Heather Johnson |
| RESPONDENT: | Tysin Pty Ltd t/as Brownsugar at Bayviews (in liquidation) |
| APPEAL PANEL: | Member Catherine McDonald Dr Philippa Harvey-Sutton Dr J Brian Stephenson |
| DATE OF DECISION: | 30 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Laceration and tendon injury to thumb; Commission determined that worker suffered neuropathic pain syndrome; worker did not fulfil criteria for chronic regional pain syndrome; assessment under Guidelines Chapter 2 and testing range of motion; presumption of regularity; Bojko v ICM Property Service Pty Ltd considered; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 April 2021 Heather Johnson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Lewington, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 March 2021.
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, and
· the MAC contains a demonstrable error.
The delegate was 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 grounds 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, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Johnson was employed by Tysin Pty Ltd t/as Brownsugar at Bayviews (Tysin) as a chef when she suffered a laceration to her thumb due to broken glass on 23 June 2013. About a week later Ms Johnson suffered a rupture of flexor pollicus longus tendon. The tendon was repaired by Dr A Myers on 10 July 2013.
Ms Johnson developed more widespread symptoms and the possibility of her suffering complex regional pain syndrome was discussed. She underwent pain management treatment, including stellate ganglion blocks. Ms Johnson also suffered a secondary psychological condition.
On 7 January 2021 a Commission Arbitrator determined that Ms Johnson had suffered a neuropathic pain syndrome affecting her right upper extremity which resulted from the injury to her thumb and hand on 23 June 2013.
The Medical Assessor was asked to assess Ms Johnson’s right upper extremity (right hand, right shoulder) and scarring. He assessed 7% whole person impairment (WPI) and added 1% for scarring under the Table for the Evaluation of Minor Skin Impairment (TEMSKI).
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.
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 the MAC does not disclose an error.
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.
The parts of the medical certificate given by the Medical Assessor 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.
In summary, and in submissions prepared by her solicitor, Ms Boshev, Ms Johnson submitted that the referral was not limited to chronic regional pain syndrome (CRPS). She said that she complained of widespread pain affecting her right arm up to her neck but the Medical Assessor did not measure the range of movement of any other part of her upper limb. Ms Johnson said that the Medical Assessor formed the view that she had a variant of CRPS which was genuine and caused neuropathic pain but failed to assess the range of motion which constituted an error.
Ms Johnson also argued that the Medical Assessor failed to apply paragraph 2.2 of the Guidelines in that he did not assess Ms Johnson under chapter 2 of the Guidelines when the criteria for CRPS were not met.
In reply, Tysin submitted that the Medical Assessor did assess Ms Johnson’s entire right upper extremity and specifically stated that the range of movement of her shoulders, elbows, writs and fingers were within normal limits, finding only a restricted range of motion in her right thumb. Tysin submitted that the Medical Assessor did consider the application of paragraph 2.2 of the Guidelines. He explained why he disagreed with Dr Patrick.
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[1] 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.
[1] [2006] NSWCA 284.
The MAC
The Medical Assessor set out the history of the injury, including that Ms Johnson’s symptoms gradually became more widespread following the surgery, “gradually spreading proximately, upper arm towards her neck.” He set out her present symptoms:
“Continues to report widespread pain affecting the right upper limb. The pain is focused around the right thumb but spreads to the dorsoradial forearm to the elbow and can extend up the right arm towards the neck. She describes the pain as variously pulsing or hurting. There can be associated headaches. Overall there is a heaviness or tightness or stiff sensation in her right arm and hand.
On more specific questioning, she stated that her thumb can appear a little blue or spotted (motley) at times. Sweating is not a feature.”
The Medical Assessor said:
“Range of movement of the shoulders, elbows, wrists and fingers were within normal limits.
There were no sudomotor or vasomotor changes to suggest Complex Regional Pain Syndrome. Specifically, each of the sections 1, 2, 3, 4 of table 17.1 of the W.C.C Guides 4th Ed have not been met such as skin colour changes and oedema or sweating asymmetry.”
He set out the range of movements of Ms Johnson’s right thumb in detail and described his examination of the digital nerve. He explained his calculations.
The Medical Assessor set out his comments on the other evidence in the file. With respect to Dr Patrick he set out his comments in detail and it is appropriate to cite them in full:
“The I.M.E uses diagnostic terms such as ‘Shoulder hand syndrome’ and ‘neuropathic pain syndrome. I would comment that these are descriptive or historical terms (together with other familiar terms like Reflex Sympathetic Dystrophy) for what has become known as C.R.P.S (Complex Regional Pain Syndrome Type I or 2). Shoulder hand syndrome in particular has been used in the past usually when the onset of symptoms followed a cerebral vascular accident (stroke) or myocardial infarction, as opposed to musculoskeletal or peripheral nerve trauma. In any event, C.R.P.S is the term that is used in A.M.A 5 for purposes of assessment of impairment of this condition.
The diagnostic criteria for C.R.P.S as set out in the W.C.C Guides 4th Edition must be satisfied. These criteria are strict and (unlike the Budapest Criteria) require each and every one of the criteria to be met. The I.M.E acknowledges that these criteria are indeed not met. In such cases the guides instruct that extremity impairment due to loss of motion of other joints or other methods pertaining to C.R.P.S cannot be applied.
The I.M.E writes, ‘….not satisfying the strict criteria to be assessed as C.R.P.S 1. Nevertheless, her neuropathic pain syndrome is significant’ and ‘the shoulder hand neuropathic syndrome is a real and genuine entity.’ I would comment that it is not contested that C.R.P.S/shoulder hand syndrome is a genuine entity and causes significant neuropathic pain. The task of the A.M.S assessor however is to determine whether it is rateable according to the guides, and in this case whether all the criteria for C.R.P.S have been met. I concur with the I.M.E that these criteria have not all been met. The correct assessment of C.R.P.S (neuropathic pain syndrome/ shoulder hand syndrome/ R.S.D, etc) is therefore 0%. One is left with assessing impairment of the injured joint and/or nerves on their merits based on pathoanatomical grounds. As stated on Page 10 under Paragraph 2.2 of the W.C.C Guides 4th Edition, ‘evaluation of anatomical impairment forms the basis for upper extremity impairment (U.E.I) assessment. The rating reflects the degree of impairment and its impact on the ability of the person to perform A.D.L.’
The I.M.E also invokes Paragraph 2.2, W.C.C Guides 4th Edition writing ‘use of a rarely utilised paragraph where it states in part there can be clinical conditions where evaluation of impairment may be difficult. Such conditions are evaluated by their effect on function of the upper extremity.’ I would comment that, in this case, and taking Paragraph 2.2 in its entire context, the evaluation of impairment is not difficult. This is not a rare circumstance where evaluation of impairment is difficult. Evaluation of impairment clearly relates to the presence or absence of C.R.P.S and/or any impairment relating to the subject injury in respect to the right thumb, flexor tendon, and digital nerve. Methods for proper assessment are clearly set out in A.M.A 5 and the W.C.C Guides, 4th Edition.
I would add that methods for the assessment of impairment, as determined by the guides, would stand whether there is a corresponding degree of disability or not (or whether one considers the disability to be proportionately greater or less than the underlying impairment). It is the impairment that is being evaluated and only in such circumstances where the evaluation of impairment is difficult would other methods of assessment be appropriate.
In cases of cervicobrachial regional pain, whether involving a neuropathic component or not, and without the criteria for C.R.P.S being present, one is dealing with chronic pain extending beyond the local injury (unless the whole limb has been injured in which case each part of limb impairment is assessed on its merits). The W.C.C Guides 4th Edition, Chapter 17, Paragraphs 17.1 - 17.5 states that chronic pain is not to be used as a separate condition for assessment of impairment. Paragraph 17.4 and 17.5 directs that where there is a nerve injury, it needs to be assessed under the appropriate tables, and according to the presence or absence of C.R.P.S.
This does not in any way imply that there is not genuine and significant pain and associated disability but simply that the degree of impairment must be assessed using the appropriate A.M.A 5 Tables and the W.C.C Guides 4th Edition. In this case, assessment of right thumb digital nerve impairment and motion impairment of the thumb should be used to assess impairment.”
Medical evidence
As the Arbitrator noted in her Certificate of Determination, the medical evidence attached to the Application to Resolve a Dispute is sparse. There is no contemporaneous evidence from treating doctors after the surgery, though Dr Myers’ reports until 2015 appear in the Reply. Ms Johnson did not return to him for treatment after late 2015.
Neither of Ms Johnson’s statements are adequate to describe the onset of her condition. There are no reports from the pain management specialists who treated Ms Johnson and thus no contemporaneous descriptions of the neuropathic pain suffered.
Apart from some evidence describing the early treatment and Dr McClelland’s report, Ms Johnson’s case rests solely on Dr Patrick’s opinion.
Dr Patrick did not describe the onset of pain in Ms Johnson’s shoulder. He said that he found a loss of the range of active motion in Ms Johnson’s right shoulder and wrist, as well as her thumb. He found no loss of the range of motion of her elbow.
Dr B McClelland saw Ms Johnson for Tysin’s insurer and reported on 30 August 2016. Dr McClelland noted that Ms Johnson was happy with the recovery of movement in her right thumb. He did not obtain a history of pain in areas other than her thumb apart from incidental tenderness around the proximal flexor mass in her forearm. He noted that Ms Johnson suffered some significant psychological problems as a result of the injury.
Dr J Bosanquet reported to Tysin’s insurer on 19 May 2020. He recorded that Ms Johnson developed some symptoms of CRPS with pain radiating to her elbow, shoulder and neck. She underwent two stellate ganglion blocks which worked well, though the pain gradually crept back. Dr Bosanquet recorded that Ms Johnson has pain that radiates to her forearm and sometimes her elbow. He noted that she complained of some pain in her right shoulder on terminal abduction but there was a full range of movement in her wrist. Dr Bosanquet said that there was no other causal connection to the other parts of her right upper extremity such as the right shoulder assessed by Dr Patrick. He agreed that it was not necessary to rely on paragraph 2.2 of the Guidelines.
Dr Patrick’s second report is a commentary of Dr Bosanquet’s repot.
Consideration
The Medical Assessor was required to assess Ms Johnson on the day she presented for examination[2] and he was not bound by assessments of the loss of the range of motion by another examiner on another day.
[2] Guideline paragraph 1.6.
Ms Johnson’s solicitor submitted that the Medical Assessor failed to assess the active range of movement of any part of Ms Johnson’s right upper limb other than her thumb. The Medical Assessor said that the range of movement in Ms Johnson’s shoulders, wrists, elbows and fingers were within normal limits. The Guidelines provide for the assessment of the range of motion in paragraph 2.5.
The presumption of regularity in respect of the process of determination by an administrative decision maker – such as a Medical Assessor – allows the Panel to draw the conclusion that the Medical Assessor had undertaken measurements of the range of motion of those body parts before stating that it was within normal limits.
The operation of the presumption was described in Bojko v ICM Property Service Pty Ltd[3], where Handley AJA said[4]:
“The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’”
[3] [2009] NSWCA 175.
[4] At [39].
Though the Medical Assessor did not set out the range of motion of each joint, the submission that the Medical Assessor failed to undertake an assessment of the range of movement cannot be accepted. He has conveyed that he understood his task was to assess the whole of Ms Johnson’s right arm considered the range of movement of each joint.
Paragraph 2.2 of the Guidelines reads:
“Evaluation of anatomical impairment forms the basis for upper extremity impairment (UEI) assessment. The rating reflects the degree of impairment and its impact on the ability of the person to perform ADL. There can be clinical conditions where evaluation of impairment may be difficult. Such conditions are evaluated by their effect on function of the upper extremity, or, if all else fails, by analogy with other impairments that have similar effects on upper limb function.”
Dr Patrick did not set out how he reached the figure of 25% UEI though a reading of his report clearly shows that it was an estimate, made because he did not consider that assessment under the Guidelines reflected Ms Johnson’s disability.
The Medical Assessor was correct to say that the evaluation of Ms Johnson’s WPI was not difficult. He carefully explained why Dr Patrick’s method assessment was not open to him.
The Medical Assessor noted that Ms Johnson’s condition is essentially one of chronic pain. Chapter 17 of the Guidelines begins by explaining why chronic pain is excluded as a separate condition – essentially because it is a subjective experience. Part of paragraph 17.3 reads:
“Some impairment ratings take symptoms into account and some of the ranges of impairment – eg whole person impairment (WPI) of the spine, may reflect the effect of the injury and pain on activities of daily living (ADL). This is not so for impairment assessment of the upper and lower limb, which is based on range of movement and diagnosis-based estimates, other than for peripheral nerve injury.”
Ms Johnson did not suffer a peripheral nerve injury.
The Medical Assessor acknowledged that Ms Johnson suffers genuine and significant pain and disability and carefully explained why he was constrained by the operation of the Guidelines. The assessment by the Medical Assessor does not disclose an error and he applied the Guidelines correctly.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 March 2021 should be confirmed.
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