KU Children's Services v Hotait
[2022] NSWPICMP 317
•5 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | KU Children's Services v Hotait [2022] NSWPICMP 317 |
| APPELLANT: | KU Children’s Services |
| RESPONDENT: | Fai Fatimeh Hotait |
| Appeal Panel: | Member Marshal Douglas Medical Assessor Mark Burns Medical Assessor James Bodel |
| DATE OF DECISION: | 5 August 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Medical Assessor (MA) diagnosed respondent had Complex Regional Pain Syndrome using criteria of Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines); issue raised in appeal was whether based on what MA had set out in Medical Assessment Certificate (MAC) the respondent met all criteria of clause 3 of Table 17.1 of the Guidelines; Appeal Panel found findings MA recorded in MAC not sufficient to establish whether respondent met criterion for sudomotor/oedema; Appeal Panel re-examined respondent; Held — no findings of sudomotor/oedema on re-examination; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 August 2021KU Children’s Services, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mohammed Assem, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 8 July 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,
· 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 FACTURAL BACKGROUND
The appellant employed Fai Fatimeh Hotait (the respondent) as a childcare education assistant. On 19 August 2015 her duties required her to carry a bowl of food to the children’s lunch area. Whilst she was doing this, a child rode close by causing her to stop suddenly to avoid falling over the child, which in turn resulted in her twisting and wrenching her left knee and calf.
On 7 January 2020 the respondent, through her solicitors, notified the appellant’s insurer that she claimed compensation from the appellant under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $112,080 for 37% whole person impairment (WPI) that she said had resulted from her injury. The respondent relied on a report of consultant physician and rheumatologist Dr Kerry Kwong dated 22 October 2019. Dr Kwong had examined the respondent on 22 October 2019. He advised in his report that he had diagnosed the respondent as a result of her injury had Complex Regional Pain Syndrome (CRPS), a lumbar strain and reactive depression. He advised that his diagnosis of CRPS was based on the criteria set out in Table 17.1 of the Guidelines. He advised that as a consequence of her CRPS the respondent had 32% WPI due to loss of joint motion impairment and sensory deficits and pain impairment. He also advised that he had assessed the respondent had 7% WPI due to her lumbar spine strain. He advised that those impairments amounted to 37% WPI in accordance with the combined values chart of AMA 5.
The insurer arranged for the respondent to be examined by orthopaedic surgeon Dr Richard Powell which occurred on 9 March 2020. In a report to the insurer dated 7 April 2020 Dr Powell advised that the respondent suffered a minor twisting injury of her left knee in the incident on 20 August 2015 that had been complicated by the development of chronic pain syndrome which continued to dominate the respondent’s presentation. He advised that there was no evidence that the respondent had sustained an injury to her lumbar spine in the incident. He advised that there were no features to support her diagnosis of CRPS and that the respondent did not satisfy the criteria specified within the Guidelines for such diagnosis to be made.
On 7 May 2020 the insurer wrote to the respondent, care of her solicitors, notifying her under s 78 of the 1998 Act that it disputed she was entitled to compensation from the respondent under s 66 of the 1987 Act. It set out within a notice attached to its letter the reasons why it disputed her claim for compensation, which were, in substance, that based upon the report of Dr Powell it did not consider that she suffered an injury to her lumbar spine, that she did not satisfy the criteria of the Guidelines for a diagnosis of CRPS, and that she did not have any assessable permanent impairment as a result of the injury to her left knee.
On 8 February 2021 the respondent initiated proceedings in the Workers Compensation Commission (now the Personal Injury Commission (Commission)). The matter was referred to Member Kerry Haddock who on 11 March 2021, with the consent of the parties, ordered that the claim the respondent had made for compensation for an injury to her lumbar spine be discontinued and remitted the matter to the President so that it would be referred to an MA to assess the respondent’s permanent impairment from her injury on 20 August 2015 to her left lower extremity.
On 17 May 2021 a delegate of the President issued a referral to the MA in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 20 August 2015 (deemed)
Body part/s referred: left lower extremity
Method of assessment: Whole Person Impairment”
As mentioned, the MA issued a MAC on 8 July 2021 in which he certified he had assessed the respondent to have 32% WPI from her injury on 20 August 2015. He said that the respondent satisfied the diagnostic criteria for CRPS listed in Table 17.1 of the Guidelines.
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 the respondent should undergo a further medical examination. This is because the Appeal Panel concluded that the MAC contained a demonstrable error and in order for the Appeal Panel to correct that error, the Appeal Panel considered it was necessary for the respondent to undergo a further examination. The Appeal Panel explains below its reasons for its conclusion that the MAC contains a demonstrable error.
The Appeal Panel appointed Dr Mark Burns to conduct that examination, which he did on 15 July 2022. There was considerable delay in Dr Burns being able to conduct that examination due to protocols the Commission had implemented to minimise the risk of MAs and workers contracting COVID. Dr Burns’ report on his examination of the respondent is set out below.
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.
MEDICAL ASSESSMENT CERTIFICATE
The MA recorded in the MAC that the respondent complained of symptoms of constant pain involving her left thigh which radiated to her left hip and back and were associated with hypersensitivity that the respondent described as stabbing, burning and pounding electrical type of pain. The MA recorded that the respondent also experienced pain in the anterior aspect of her left knee and experienced pain and swelling in her left calf. The MA recorded that the respondent had not noticed any change of colour in her left leg but reported her left leg felt colder than her right and that when she experienced severe pain she had increased perspiration. The MA recorded that the respondent relied on a walking stick for support for her pain, stiffness and instability and that loud noises aggravated her symptoms. The MA noted that the respondent estimated she was only able to sit and stand for two to three minutes at a time and required rest after walking a couple of steps. The MA noted that the respondent reported struggling to negotiate steps and relied on a walking stick and hand rail to do so.
The MA recorded his findings from his physical examination of the respondent as follows:
“Ms Hotait appeared to be in obvious discomfort. She ambulated with a slow, cautious, antalgic gain pattern relying on a walking stick for support in her right hand and her sister supporting her on the left side. Her height was 162cm and she weighed 58kg.
She was wearing a Thermaskin brace over her left knee with patellar relief that was removed for the purpose of the assessment. There was florid pain behaviour during the entire interview with marked hypersensitivity on light superficial palpation of the entire leg.
There was no change in colour. Her left leg was certainly cooler than the right. The circumference of her left ankle was 1cm less than the right. There was no measureable difference in the circumference of her calves. There were no dystrophic changes and no hair loss that could be detected. There was no change in perspiration.
She had difficulty climbing on and off the examination couch requiring assistance from her sister and myself. Active range of motion was difficult to assess but she appeared to have a normal range of motion to her hips, ankles and toes. Knee flexion appeared to be limited to 100°. Tests for instability could not be performed and examination of her reflexes could not be performed. Any light palpation of her leg was accompanied by complaints of severe pain. Even measuring the circumference of her calf was accompanied by complaints of severe pain.”
The MA said that the respondent had developed symptoms and signs subsequent to her injuries suggestive of CRPS and that at the time of his assessment the respondent “satisfied the diagnostic criteria for CRPS as there were sensory, vasomotor, pseudomotor and [time 7:50] changes”.
The MA noted that the respondent had a restriction in flexion of her left knee to 100° but otherwise had no motor deficits. The MA provided the following explanation as to how the respondent satisfied that criteria of Table 17.1 of the Guideline
“1. She has continuing pain disproportionate to any causal event.
2. There are reports of hyperaesthesia and allodynia, vasomotor changes, asymmetry of temperature, oedema and a restriction in joint movement.
3. At the time of my assessment were objective features as follows, hyperalgesia, temperature asymmetry, oedema and decreased joint motion.
4. There is no other diagnosis that better explains the signs and symptoms.”
The MA explained that because of the severity of the respondent’s symptoms he had concluded she had a grade 2 or 80% sensory deficit in accordance with AMA 5 Table 16-10. The MA further explained that the respondent had decreased superficial cutaneous pain with abnormal sensations, or moderate pain that prevents some activities. The MA said that as a result the respondent was entitled to 80% lower extremity impairment. The MA explained that in addition to that the respondent had a 4% lower extremity impairment for restrictions in her knee motion, which all combined to give her a lower extremity impairment of 81% which equates to 32% WPI.
The MA observed that Dr Kwong had obtained similar clinical findings to him and he said that he did not disagree with the method by which Dr Kwong assessed the respondent’s WPI or Dr Kwong’s calculations.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA erred by finding the respondent met criteria dot point 3 of the third criterion in Table 17-1 of the Guidelines, being that there was evidence of oedema and/or sweating asymmetry. The appellant further submitted that the MA did not provide an adequate explanation regarding how the respondent met the criteria of 2 and 3 of Table 17-1, with the exception of reports of hyperaesthesiae and allodynia, but as the Appeal Panel understood the appellant’s submissions whilst the appellant made complaint about the MA not providing adequate explanation, the appellant did not dispute the respondent met those particular criteria.
The appellant further submitted that the MA failed to explain whether he considered any other diagnosis could explain the respondent’s presentation. Specifically the appellant referred to the MA not considering whether the respondent’s presentation could have been explained by diagnoses of chronic pain syndrome, as Dr Powell had found.
The appellant further submitted that the MA did not discuss whether the respondent’s diagnoses of CRPS had been present for at least a year.
In reply, the respondent submitted that there was overwhelming evidence that she had CRPS, including reports of Drs Wood, Broe, Khor, Granot and Kwong and what she had said in her statement. The respondent submitted that she had a diagnosis of CRPS for at least one year and that had been confirmed by more than one practitioner.
With respect to the appellant’s submission that there was no evidence of oedema or sweating increase or asymmetry, the respondent submitted that the MA was not required to list every possible finding that he made during the assessment but rather only provide a fair recording so as to expose his reasoning for his conclusion. The respondent submitted that the MA recorded that he had found “objective features of hyperalgesia, temperature asymmetry, oedema and decreased joint motion”.
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.
The Guidelines at [17.5] stipulate the requirements for an injury to diagnosed as CRPS for the purpose of rating a worker’s permanent impairment from such an injury. They are:
“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: Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1).”
Table 17.1 reads as follows:
“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.” |
The MA did not record within his findings from his examination of the respondent any sign of the respondent exhibited of oedema or sweating asymmetry at the time of examination. Indeed, the MA recorded that the circumference of the respondent’s left ankle was 1cm less than the circumference of her right ankle and that there was no measurable difference in the circumferences of her calves, which indicates that with respect to those parts of her the respondent’s left lower extremity there was no oedema by the MA at examination. The MA did not document within the MAC what findings he made so as to enable him to conclude that there was evidence of the respondent exhibiting oedema so as to abide the third bullet point of criterion 3 of Table 17-1. Further, the MA explicitly recorded that the respondent exhibited no change in perspiration.
The criteria of Table 17-1 are demanding and must be strictly applied.[1] Based on the findings the MA made from his examination of the respondent that revealed the respondent did not have oedema in the lower parts of her left lower extremity and his not documenting any findings to enable his concluding the respondent exhibited oedema, the Appeal Panel considers the MA was wrong to conclude that the respondent exhibited oedema. Saying that a different way, either the MA failed to document whatever sign the respondent may have exhibited at examination of oedema, which is an error, or if it was the case that she did not exhibit any sign of oedema, and the findings that the MA did record with respect to the comparisons of the circumferences of the respondent’s lower extremity suggest was the case, then that also is an error.
[1] Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 at [41], sited with approval in Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125 and Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC 1088.
Having found an error in the MAC, the Appeal Panel is required to revoke the MAC and reassess the medical dispute so as to correct that error. As indicated above, in order to do that the Appeal Panel considered that the respondent needed to be re-examined and the Appeal Panel appointed one of its members, namely Dr Mark Burns, to do that. His report to the Panel is as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-771/21 |
Appellant: | KU Childrens Services |
Respondent: | Fay Fatimeh Hotait |
Date of Determination: | 8 July 2021 |
Examination Conducted By: Dr Mark Burns
Date of Examination: 15 July 2022
Attendance: Fay Hotait and Mariam Hotait, her sister
1. The workers medical history, where it differs from previous records.
Mrs Hotait made several minor changes in the history reported by Assessor Mohammed Assem. In the first paragraph she stated that she was actually bumped from behind by a number of children, not just a single child. She did confirm though that she had twisted her left knee and did not fall to the ground. In the same paragraph she reported that immediately after the incident she had a temporary loss of all her senses rather than just the hearing as reported by Assessor Assem.
She confirmed the remainder of the history taken by Assessor Assem.2. Additional history since the original Medical Assessment Certificate was performed.
She reported that she has not had any formal physiotherapy since she was assessed by Assessor Assem and confirmed that her formalised physiotherapy had ceased in 2019. On further questioning she did report that she had continued doing exercises until these had become too painful.
She has continued to speak with Dr Wassif, her General Practitioner on a monthly basis. This is monthly by telephone conference and is for certificates of capacity and prescriptions. She last spoke with Dr Khor, Pain Specialist via a telehealth consultation in 2021. She reports that she does though have an appointment to speak with Dr Khor in September 2022.
She reports that recently her General Practitioner at her request has asked for an occupational therapist assessment. She is currently waiting for the insurance company to respond to this request.
Current symptoms:
She reported that she has an occasional stabbing and more constant burning pain around the lateral aspect of her left leg and knee. This pain can run from the lateral buttock on the left side through the hip and down to the knee. It sometimes radiates as far as the ankle. She reported that associated with the stabbing pain there is hypersensitivity of the left leg as well as stiffness in her left knee. She also reported that the left leg appeared to be swollen to her and that she felt a coldness in the left leg, which on questioning she reported was in the bone.
At various stages throughout the consultation she also reported that recently she has had several episodes of tremor of her left leg after the pain became severe. She also classified that she believed the skin on her left leg was shinier than on her right leg.
She confirmed that she walks with a walking stick, which she uses in her right hand and stated that she had an obvious limp favouring her left leg. She reported that she also has difficulty on sitting on a chair or hard surface and in fact when she arrived today I found her sitting on a floor of the waiting area outside of my examination room.
Current treatment:
She continues to see Dr Wassif, mostly by telephone conference on a monthly basis. This is mostly for certificates of capacity and prescriptions. She is currently having no formalised physiotherapy.
With respect to medication she reported that she is taking 1 Gabapentin tablet 3 times a day or if the pain is more severe she will increase the dosage herself. She also takes 1 Panadol tablet daily. She reported that she is also using Cayenne Patches on a daily basis and then stated that she was probably using 2 patches per day. Finally she stated that she continues to use Imovane irregularly. According to her prescriptions she should be taking 1 Imovane per night but she only takes it when necessary, which may not be on a daily basis.
Since she was seen by Assessor Assem she has ceased taking Nortriptyline but does use hot water bottles on a regular basis.3. Findings on clinical examination
Ms Hotait was noted to be sitting on the floor in the waiting area outside my consultation room. She was assisted to rise by her sister and then walked with a walking stick in her right hand and her sister walking on her left side. She had an obvious limp favouring her left leg. In the consultation room she attempted to sit on a normal chair but stated that this was too painful and asked if she could sit on the floor. She then sat on the floor with significant difficulty whilst the history was confirmed.
Due to her complaints of pain her height and weight was not taken. In order to examine her correctly a knee brace, which she was wearing on her left leg was asked to be removed. It was noted that the knee brace was not worn correctly with the space for the patella being in front of the left tibia and in totally the wrong position to provide her with any support. Behind the screen around the examination couch and with the assistance of her sister she removed the knee brace and also tights she was wearing. She then put on a modesty gown, which she wore for the remainder of the examination.
Examination of the left leg revealed the following findings:·She reported severe pain to light touch over the entire left leg from the thigh down to the ankle. She described the sensation as either stabbing or burning. On examination of the left arm she also reported severe pain on light touch and when I examined the right arm she again reported moderately severe pain on light touch. She did not report severe pain from the pressure of either the knee brace on the leg or the tights she was wearing on that leg.
·On initial examination there was no evidence of asymmetric skin colour changes on the left side compared to the right. I did note though that at the end of the examination just before she put her clothes back on that the left leg was now slightly dusky compared to the right leg. Throughout the consultation I did note that there was no temperature asymmetry between the 2 legs. The skin temperature to touch was the same on both sides in the entire leg on the left and right. She confirmed at this stage that she thought that the left leg was colder but this was inside towards the bone.
·Mrs Hotait reconfirmed that she believed that the left leg was swollen compared to the right. Testing was carried out using a tape measure of both legs and it was found that on the right side the circumference of the thigh 10cms above the patella was 49cms, in the mid-calf 37.5cms and just above the ankle 26cms.
The circumference of the left quadriceps 10cms above the patella was 49cms, the left mid-calf 36.5cms and the left lower leg just above the ankle 25cms. This revealed that there was no oedema or swelling in the left leg, in fact if anything there was slight wasting in the calf muscles. This would be consistent with disuse. It was also noted that there was no evidence of sweating asymmetry in either lower extremity. Both legs were warm and dry.·Examination of her left leg for range of movement in the knee revealed on formal examination that she had difficulty in fully straightening the knee and also difficulty in flexing the knee. At the end of the examination I noted that there was some shaking and tremor of the entire left leg but this did not appear to be organic in nature.
Examination of her skin, nails and hair did not reveal any trophic changes.
Knees:
Examination of her right knee revealed 120° of flexion and full extension to 0°. On the left side on formal testing she was noted to have a 10° extension lag in the knee and could only flex to 70°. I noted that with her left leg over the side of the examination bed she was able to flex the left knee to 90° and I also noted that when she stood up after the examination that she was able to lock out the left knee to full extension whilst she was walking.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mrs Hotait reported that no further investigations. I did review the investigations she brought with her but these were all in either 2015 or 2018. They had been reported by Assessor Assem in his report.
Conclusion:
Mrs Hotait’s presentation revealed significant pain behaviour and also inconsistencies in her findings. I do believe though that she has some difficulty in fully flexing her left knee and does have significant chronic pain. With respect to the criteria for Complex Regional Pain Syndrome Type 1 I believe the following was noted.1)She does have continuing pain, which is disproportionate to any causal event.
2)With respect to symptoms in the 4 categories the following was noted.
§ Sensory: She does report hypaesthesia and allodynia in her left leg. But she also reports similar symptoms in her left arm and right arm. There is inconsistency in this area.
§ Vasomotor: She reported that she did have a cold feeling in her left leg, which she stated was internal and at the bone level. She also reported episodes of colour change in her left leg associated with the pain and discomfort.
§ Pseudomotor/oedema: She reported swelling in her left leg and did also report that occasionally there is sweating increase in the left leg.
§ Motor/trophic: She stated that he has a decrease in range of movement in her left knee as well as occasional tremor. She also stated that the skin on her left leg is shinier and slightly smoother than the skin on her right leg.
3)With respect to physical signs, which were found at the examination the following were found in the 4 categories.
§ Sensory: There was evidence of significant allodynia to light touch in the entire left leg. She did though have inconsistency reporting allodynia in her left arm and then in her right arm. She also then stated that loud noises or vibration could set off the feeling of burning sensation or stabbing pain in the left leg.
§ Vasomotor: There was no evidence of temperature asymmetry in the left leg compared to the right during the examination. Initially the skin colour also appeared to be the same on both sides but toward the end of the examination I noted that there was a dusky colour, which had appeared in the left leg and not the right leg. Therefore there was some skin colour asymmetry.
§ Pseudomotor/oedema: There was no evidence of either swelling, oedema or sweating asymmetry in the left lower extremity.
§ Motor/trophic: There was evidence of decreased active range of movement in the left knee especially on flexion. There was no evidence though of trophic changes involving the hair, nail or skin.
Signed:
Assessor Mark Burns
Date: 15 July 2022”
The Appeal Panel considers that Dr Burns’ examination of the respondent was thorough and his findings from his examination are reliable, and the Appeal Panel adopts his findings. Based on his findings the Appeal Panel notes that the respondent reported symptoms for all four matters of the second criterion of Table 17-1. Further, Dr Burns found positive physical findings with respect to the first, second and fourth dot points of criterion 3, being the matters of sensory, vasomotor and motor/trophic. However, the respondent did not exhibit any sign of oedema or sweating asymmetry in the left leg. Consequently, she cannot be diagnosed as having CRPS for the purposes of assessing her permanent impairment. The Appeal Panel observes that based on the symptoms the respondent reported to Dr Burns and also the signs Dr Burns observed during his examination of the respondent, the respondent would be classified as having clinical CRPS1 based on the Budapest criteria, which criteria are commonly employed by pain specialists. The Budapest criteria require physical signs to be present in only two or more categories.
As the respondent does not meet the criteria of Table 17-1, her permanent impairment must be assessed by other criteria and the only relevant criteria, given her injury, is Chapter 3 of the Guidelines and specifically the criteria relating to the range of motion specified therein with respect to knee flexion. Dr Burns found that her left knee flexion was limited to 90°. Based on Table 17-10 of AMA 5 that attracts a rating of 4% WPI. The respondent’s chronic pain gives no assessable impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 July 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | 771/21 |
Applicant: | Fay Fatimeh Hotait |
Respondent: | KU Children’s Services |
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 Mohammed Assem 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Left lower extremity (knee) | 20 August 2015 | Chap 3 | Chap 17 | 4% | - | 4% |
| Total % WPI (the Combined Table values of all sub-totals) | 4% | |||||
0
4
0