Lennon v Super Cheap Auto Pty Ltd

[2021] NSWPICMP 180

DETERMINATION OF APPEAL PANEL
CITATION:	Lennon v Super Cheap Auto Pty Ltd [2021] NSWPICMP 180
APPELLANT:	Jade Lennon
RESPONDENT:	Super Cheap Auto Pty Ltd
APPEAL PANEL:	Member Marshal Douglas Dr David Crocker Dr David Lewington
DATE OF DECISION:	27 September 2021
CATCHWORDS:	WORKERS COMPENSATION-  Appellant worker suffered complex regional pain syndrome (CRPS) of both lower extremities based on Budapest Criteria, as a result of injury to left ankle; Medical Assessor (MA) did not assess appellant’s permanent impairment based on CRPS because he could not make diagnosis of CRPS based on criteria of Table 17-1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and so assessed the appellant’s impairment by reference to Chapter 3 of the Guidelines; appellant sought to introduce statement she signed after assessment and a statement her partner signed after assessment in which they recounted what they say had occurred during the MA’s examination of her and in which the appellant provided commentary on the fairness of Table 17-1; appellant submitted the MA made errors during his examination and applied the Guidelines unfairly; Appeal Panel did not receive further statements into evidence; Held - Appeal Panel found that MA could not, based on his findings from examination, make a diagnosis of CRPS in accordance with Table 17-1; Medical Assessment Certificate upheld.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 19 July 2021 Jade Lennon (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 June 2021.

2. The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
   
   

   ·        the assessment was made on the basis of incorrect criteria,
   
   

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. The appellant commenced employment with Super Cheap Auto Pty Ltd (the respondent) on 22 September 2014. On 22 February 2018 she suffered an injury to her left ankle while working for the respondent. This occurred as a consequence of two brake disk rotor boxes, each weighing around 12 kilograms, falling from a trolley and landing on her left foot. She experienced immediate and severe pain and was unable to walk. Her foot swelled. She attended a local Poly Clinic where she was seen by a GP and referred for an x-ray that revealed a fracture of her navicular bone.

2. The appellant then saw a GP at the Nelson Plaza Clinic, who arranged a cam boot for her and recommended she take analgesia. A follow up x-ray was done that revealed the navicular fracture had healed normally but when the cam boot was removed the appellant had increased pain and experienced a burning sensation in her foot. A subsequent MRI scan of her left foot confirmed the navicular fracture had healed but also revealed the appellant had suffered a fracture of the calcaneus and had a talonavicular joint effusion.

3. The appellant’s GP then referred her to orthopaedic surgeon Dr Rao who diagnosed a crush injury. Dr Rao referred the appellant to pain specialist Dr Volschenk who diagnosed, based on the Budapest Criteria, that the appellant had complex regional pain syndrome (CRPS).

4. The appellant’s solicitors arranged for Dr Anthony Lowy, a specialist physician in occupational medicine, to examine the appellant on 24 September 2020. In a report to the appellant’s solicitors dated 7 October 2020 Dr Lowy diagnosed that the appellant had
   CRPS-1 with persisting pain which manifested in both her feet at a severe level and in both hands at a severe level. Dr Lowy diagnosed that the appellant had a healed fracture of left foot navicular and calcanium. He also noted that the appellant had a nervous condition comprising a persistent mood disorder and depression and anxiety, as recorded by her treating clinicians.

5. In a further report of 24 September 2020, Dr Lowy advised the appellant’s solicitors that he assessed the appellant had 45% whole person impairment (WPI) from her injury. He advised his assessment was based upon Table 16-16 of the AMA 5 Guides.

6. On 26 November 2020 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from the respondent in the amount of $156,410 for 45% WPI from her injury. The appellant’s solicitors advised that the appellant relied on reports of Dr Lowy dated 24 September 2020 and 7 October 2020 to support her claim and they provided copies of those reports with their letter. The appellant’s solicitors also advised the appellant would be seeking compensation pursuant to s 60 of the Workers Compensation Act1987 (the 1987 Act) for medical expenses the appellant had incurred.

7. The insurer then arranged for the appellant to be examined by occupational physician Dr Andrew Keller on 1 September 2020. In a report dated 3 September 2020 to the insurer Dr Keller advised that the appellant had suffered a crush injury to her left foot on 11 February 2018 that resulted in diagnosis of undisplaced fractures to the left navicular and calcanium. Dr Keller advised that investigations had showed the fractures had healed. Dr Keller noted that the appellant reported chronic presence of pain in her left foot that had been resistant to all treatments and which had been diagnosed by a pain specialist as CRPS. Dr Keller said that based on his clinical findings at his examination the appellant did not meet the Budapest Criteria for CRPS.

8. Subsequent to that report from Dr Keller, the respondent’s solicitors wrote to Dr Keller requesting him to provide a supplementary report addressing specific issues. The respondent’s solicitors provided Dr Keller with a copy of Dr Lowy’s report dated 24 September 2020. Dr Keller was asked whether he agreed with Dr Lowy’s diagnosis of CRPS. Dr Keller advised, essentially, that Dr Lowy had used the wrong criteria to assess the appellant’s permanent impairment resulting from her injury, in that Dr Lowy had applied the criteria from AMA 5, whereas Table 17-1 of the Guidelines should be used to assess impairment relating to CRPS. Dr Keller advised that the appellant did not meet the diagnostic criteria of the Guidelines for CRPS 1 and further that a diagnosis of CRPS 2 could not be made pursuant to the Guidelines because there was no evidence of the appellant having suffered a nerve injury.

9. On 20 January 2021, the insurer wrote to the appellant, care of her solicitors, advising that it disputed the appellant’s claim for compensation. With respect to her claim for compensation for permanent impairment under s 66 of the 1987 Act, the insurer notified the appellant that its reason for disputing her claim was that it was relying on the reports of Dr Keller who found that she did not meet the criteria to be assessed for CRPS 1 or CRPS 2 and who had assessed the appellant’s impairment resulting from her left foot injury to be 0% WPI. The insurer advised the appellant that in its opinion her injury did not exceed the threshold of 10% permanent impairment to entitle her to compensation under s 66 of the 1987 Act.

10. The appellant then registered with the Commission an Application to Resolve a Dispute seeking the Commission determine her claims for compensation for permanent impairment and also compensation for medical expenses. The matter was referred to Member Ms Deborah Moore, who with the consent of the parties determined on 21 April 2021 that:

    “the permanent impairment dispute in respect of the condition of Chronic Regional Pain Syndrome (CRPS), be remitted to the President so that it could be referred to an appropriate Medical Assessor (MA) for assessment by way of general medical dispute of whole person impairment resulting from an injury on 11 February 2018 in accordance with the attached referral.”

11. The referral that was attached to that determination is not before the Panel. However, the referral that the Commission issued to the Medical Assessor is before the Appeal Panel, and the Appeal Panel assumes that corresponds to what was attached to the consent determination. The relevant part of that referral, in terms of the medical dispute that was referred to the Medical Assessor to assess, was as follows:

    “MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s 319 1998 Act)
    
    
    • the worker’s condition, specifically:
    
    

    a. It is noted that the injury to the left foot on 11 February 2018 is not disputed

    b. Has the applicant sustained an injury by way of Chronic Regional Pain Syndrome (CRPS)?

    c. If so, please assess whole person impairment and provide reasons.

    d. If not, please provide reasons, and assess impairment of the left lower extremity (foot).

    Date of Injury: 11 February 2018

    Issues in Dispute: As above”

12. As mentioned, the Medical Assessor issued a MAC in response to that referral on 22 June 2021. His answer to the question “has the applicant sustained an injury by way of Chronic Regional Pain Syndrome” was that, based on his examination of the appellant’s left foot and ankle, a diagnosis of CRPS could be made by reference to the Budapest Criteria but not by reference to the criteria specified in Table 17-1 of the Guidelines.

13. The Medical Assessor assessed the appellant’s WPI by reference to the criteria of Chapter 3 of the Guidelines and Chapters 16 and 17 of AMA 5, and certified he assessed the appellant had 14% WPI relating to the injury to her left lower extremity (foot).

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment on 13 September 2021 in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because, for reasons the Appeal Panel explains below, the Appeal Panel came to the view that the appellant had not established any of the grounds for appeal on which she relied. Consequently, the Appeal Panel cannot revoke the MAC and there is accordingly no need, or power, to re-examine the appellant.[1]

   [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

3. During its preliminary review of the MAC, the Appeal Panel also considered whether to receive into evidence a statement the appellant signed on 14 July 2021 and a statement her partner, Dylan Williams, also signed on 14 July 2021. The Appeal Panel observes that several photos of the appellant’s feet were attached to the appellant’s statement, some taken on 14 July 2021 and on 17 June 2021 some hours after the Medical Assessor conducted his examination of the appellant, and the others taken on 27 June 2021.

4. The appellant in her statement:

   (a)    recounts parts of the conversation she says occurred between her and the Medical Assessor during his examination of her;

   (b)    provides a commentary on the manner in which the Medical Assessor conducted an examination and assessment of her hands;

   (c)    questions the Medical Assessor’s opinion with respect to the nature of the pain she experiences in her hands;

   (d)    says that her hands do not sweat and recounts symptoms she has experienced in her hands and the diagnoses that Dr Lowy and also Dr Nathan Taylor have made (Dr Taylor being a pain medical specialist from whom the appellant has received treatment);

   (e)    provides a description of how the Medical Assessor conducted his examination of her ankles and recounts symptoms she experienced in her ankles in the week after the examination;

   (f)    recounts what a podiatrist has previously said regarding the shape of her toes and the cause of the shape of her toes;

   (g)    provides her opinion on how swelling can manifest and whether the Medical Assessor thoroughly examined her feet for signs of swelling;

   (h)    says that her feet do not sweat and recounts what her podiatrist told her regarding why her feet are unable to sweat and the consequence to her of her feet not sweating;

   (i)    provides a commentary on the Budapest Criteria for making a diagnosis of CRPS; and

   (j)    describes how her injury has affected her life.

5. Mr Williams attended with the appellant during the Medical Assessor’s examination of the appellant. In his statement he recounted what he observed during the examination and also recounted parts of the conversation that had occurred between the appellant and the Medical Assessor.

6. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.

7. The appellant’s statement is not fresh evidence insofar as it deals with what other doctors have diagnosed and what her podiatrist has told her. Further it is not fresh evidence insofar as she recounts how her injury affects her life. Her statement insofar as it relates to matters cannot be received into evidence because the appellant could reasonably have recorded those matters in a statement preceding the assessment.

8. Both the statement of the appellant and the statement of Mr Williams, insofar as they deal with what occurred during the Medical Assessor’s examination of the appellant, cannot substantiate the ground for appeal provided by s327(3)(d) of the 1998 Act. This is because evidence that goes beyond the face of the MAC cannot be relied upon to substantiate the MAC contains a demonstrable error.[2] That is, to the extent that a party has to produce further evidence to substantiate there is an error in the MAC or that the Medical Assessor applied incorrect criteria to assess impairment, then it cannot be readily demonstrated on the face of the MAC that the MAC contains an error.

   [2] Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 at [49].

9. Accordingly, insofar as the evidence is sought to be tendered to establish that ground for appeal it is irrelevant.

10. That evidence is also inadmissible pursuant to s 327(3)(b) of the 1998 Act because it relates to matters going to the process whereby the Medical Assessor made his assessment.[3]

    [3] Petrovic v BC Serv No 14 Pty Ltd & Ors [2007] NSWSC at [31].

11. Insofar as the appellant provides commentary on the Medical Assessor’s assessment, the Appeal Panel considers the evidence has no probative value. This is because it is apparent that the appellant has no expertise or training in clinical matters. Further, insofar as she provides commentary on the Budapest Criteria, it is also irrelevant evidence because the Medical Assessor was bound to apply the Guidelines to determine whether a diagnosis of CRPS could be made for the purpose of assessing the appellant’s permanent impairment from her injury.

12. Similarly, the Appeal Panel considers that the photos that were attached to the appellant’s statements provide no probative value. This is because they do not depict the condition of her feet at the time of the examination by the Medical Assessor. The Medical Assessor was required to base his assessment of the appellant as she presented at the time of assessment.

13. It is the case that the appellant’s recount and Mr Williams’ recount of parts of the conversation that occurred between one or the other of them and the Medical Assessor during the examination and her observations and commentary of the manner in which the Medical Assessor conducted his examination is fresh evidence in the sense that necessarily it could not have been obtained before the assessment. However, the Appeal Panel retains a discretion as to whether it can receive that evidence under s 328(3).[4] Neither the appellant nor her partner has clinical expertise or experience in clinical matters. Their evidence with respect to how a clinical examination or history is taken provides no probative value to the Appeal Panel and is unreliable with respect to the matters the Appeal Panel must consider to determine whether the grounds for appeal provided in either s 327(3)(c) or s 327(3)(d) of the 1998 Act is established.

    [4] See Lukacevic v Coates Hire Operations Pty Ltd [2001] NSWCA 112 per Hodson JA at [78]-[79] and per Hendley AJA at [154] and [111] and [102].

14. The additional evidence that the appellant seeks to put before the Appeal Panel essentially cavils with the function of the Medical Assessor in performing the examination and assessment of the appellant’s permanent impairment, and in a circumstance where the Appeal Panel cannot compel the Medical Assessor to give evidence in response to it, such as the Appeal Panel could verify the evidence, the Appeal Panel considers it has no probative value and is unreliable.

15. The Appeal Panel consequently declines to receive the additional evidence.

EVIDENCE

1. 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

1. The Medical Assessor recorded in that the appellant reported to him she suffered the following symptoms:

   “Ms Lennon reported that with respect to her left foot she has a constant burning sensation in the foot, but the foot is often freezing cold. She has pins and needles in a sock distribution in the entire foot. The pain is also involving the entire foot and is constant but varies in intensity. She even reported that her skin hurts like as if she had severe sunburn. There is increased sensitivity in the entire left foot, and she cannot wear shoes.

   She reported that the toenails in her left foot, specifically the 2nd toenail are abnormal and are loose. She reported marked decrease in range of movement in the left ankle and left foot. She reported that her left foot often swells and that she cannot walk on her left heel. From the visual analogue scale she reported that the average pain and discomfort in her left foot is 9/10.

   With respect to the right foot she states that it is almost exactly the same as the left. Whereas the left foot has a stabbing pain in the heel there is no stabbing pain in the right heel. All other symptoms were exactly the same. She reported that under the visual analogue scale the average pain in the right foot is 7/10.

   With respect to both hands, she reported that it feels like she has “wacked” both hands on a hard surface. There is pain and discomfort constantly. She also described the feeling as being like the bones in her hands had been squeezed or crushed. With respect to swelling this is currently up and down.”
   
   

1. The Medical Assessor recorded the following findings from his examination of the appellant:

   “Ms Lennon was 167cms tall and weighed 89.3kgs. She was noted to walk with an
   antalgic gait, favouring her left foot. It was noted that she was not walking on her left
   heel.

   Left foot:

   Examination of the left foot revealed that it was extremely cold in a sock distribution. It
   was also noted that there was a dusky colour in the left foot and that her 2nd toenail
   was abnormal and loose. Her other toenails were noted to be also slightly abnormal
   and thickened. Hyperalgesia was present in a sock distribution in the left foot but there
   was no significant allodynia. No swelling was noted in the left foot and there was no
   evidence of sweating asymmetry.
   Right foot:

   The right foot was also noted to be extremely cold in a sock distribution. Again the
   toenails of her right foot were noted to be thickened in nature and the second one was
   slightly loose. The right foot showed a dusky colour and there was also hyperalgesia
   in a sock distribution. Again, there was no evidence of swelling or sweating
   asymmetry. Active range of movement was measured in both ankles and both feet
   using a goniometer.

Active ROM Measured Right	Active ROM Measured Left
Dorsiflexion	100	50
Plantarflexion	300	150
Hind foot movements	Active ROM Measured Right	Active ROM Measured Left
Inversion	150	100
Eversion	50	00

On movements of both ankles, it was noted that there was significant tremor.

With respect to toe movements on either side they were extremely minimal. On the
right side there was a flicker in the MTP movement of both the big toe and the 2nd toe
but no movement in the lesser 3 toes. On the left side there was no movement in any
of the 5 toes.

Hands:

With respect to both hands, I noted that she has mild redness of both palms as well as
dysaesthesia in both hands in a glove distribution. There was no evidence of hair or nail change in either hand. I also noted that there was no evidence of swelling or sweating asymmetry. Active range of movement in both hands was reasonably well preserved with a normal range of movement.

At the end of the consultation Ms Lennon reported that she is unable to wear shoes due to the hyperalgesia in both feet and that she often notices that straps of the thongs, which she wears cut into the swelling of her feet. I examined both feet and noted on the day of consultation that there was no swelling and no evidence of the straps cutting into either foot.”

1. The Medical Assessor provided the following “summary of injuries and diagnoses”:

   “Ms Lennon sustained a crush injury to the lateral aspect of her left foot on 11 February 2018. She sustained fractures to the navicular and calcaneus in the left foot. The fractures have now healed. Subsequently she developed neuropathic pain in the left foot, which under the Budapest criteria can be diagnosed as Complex Regional Pain Syndrome Type 2.

   Approximately 9 – 10 months following this injury it was noted that she had also developed similar symptoms in her right foot. This mirroring effect has been known to occur on the contralateral side following injury where there is development of Complex Regional Pain Syndrome. I note though that her right foot is not as severe as her left foot.

   With respect to both hands whilst I believe she has neuropathic pain she does not have significant criteria in order to diagnose Complex Regional Pain Syndrome of either hand under the Budapest criteria.”

2. The Medical Assessor considered the appellant did not satisfy the criteria of Table 17-1 of the Guidelines, such that the appellant could be diagnosed with CRPS for the purpose of assessing her permanent impairment from her injury, and consequently, and consistent with the requirement of him that had been stipulated in the referral and in accordance with Chapter 3 of the Guidelines, he assessed the permanent impairment of the appellant from her injury to her left ankle by reference to the criteria of Chapters 16 and 17 of AMA 5. He provided the following reasons for this conclusion and his assessment that the appellant had 14% WPI from her injury:

   “From Table 17-1 of the 4th Edition of the New South Wales Workers Guidelines I note
   that Ms Lennon has the following criteria:

   1.      Continuing pain, which is disproportionate to any causal event.

   2.      She does report at least one symptoms in each of the following separate categories:
   
   

   ▪ Sensory – She does have hyperaesthesia

   ▪ Vaso motor – She does report temperature asymmetry and skin colour changes

   ▪ Pseudo [sic] motor/oedema – She does report oedema but does not report either an increase or decrease in sweating or sweating asymmetry.

   ▪ Motor/trophic – She does report a decreased range in joint motion as well as trophic changes involving her hair and nails.

   3.      She does display at least one sign in the following 3 categories:
   
   

   ▪ Sensory – There is evidence of hyperalgesia to pin prick and light touch. There is no significant allodynia.

   ▪ Vasomotor – There was significant evidence of temperature asymmetry and decreased temperature as well as dusky skin colour changes

   ▪ Motor/trophic – There was evidence of decreased active joint range of motion in the left foot. Some tremor was also noted. Trophic changes mostly in the nails were also noted.

   It was noted though in the fourth category:
   
   

   ▪ Pseudo [sic] motor/oedema – There was no evidence today of oedema and or sweating asymmetry. In fact it was noted that her thongs, which she had been wearing were not cutting into her left foot or right foot. There was no evidence of swelling.

   4.      I believe that she does have significant neuropathic pain and does fulfil the clinical criteria under the Budapest criteria for Complex Regional Pain Syndrome Type 2. I note though that the criteria in Table 17-1 of the New South Wales Guidelines are actually a modified Budapest criteria which has a more difficult threshold than the Budapest criteria.

   As I could not diagnose Complex Regional Pain Syndrome Type 2 for assessment purposes I note that I have been asked to assess the left foot and left ankle. The decreased range of movement from Table 17-11 of the 5^th Edition of the AMA Guides for dorsiflexion and plantar flexion would each give a 7% lower extremity impairment. The decreased inversion and eversion from Table 17-12 would give 2% lower extremity impairment for each. These would be added to give 18% lower extremity impairment.

   With respect to the decreased range of movement in the big toe and lesser toes from Table 17-14 the decrease in movement in the MTP joint would give 5% lower extremity impairment and in the IP joint of the great toe would give a further 2%. This would give 7% lower extremity impairment. The decrease in range of movement in the lesser toes is from the Footnote restricted to 5% lower extremity impairment (2% whole person impairment). A combination of 7% lower extremity impairment for the big toes with 5% lower extremity impairment for the lesser toes would be 12% lower extremity impairment. A combination then of 18% lower extremity impairment for the ankle and hindfoot with 12% lower extremity impairment for the toes would give 28% lower extremity impairment (for decreased range of movement).

   I believe that she did sustain and injury to the left dorsal cutaneous nerve (the lateral sural cutaneous nerve). This would be assessed using Table 17-27 of 5th Edition of the AMA Guides. For the sensory component the maximum would be 5% lower extremity impairment. Using Table 16-10 I believe that this would graded as Grade 2 due to her significant abnormal sensation and hyperalgsia [sic]. This would be 80% of 5%, which would be 4% lower extremity impairment. With respect to dysaesthesia from the 3^rd column this would also give a maximum of 5% lower extremity impairment.

   Using the same grade from Tables 16-10 this would also give 4% lower extremity impairment. These would be combined to give 8% lower extremity impairment.

   Finally a combination of 28% lower extremity for decreased range of movement and 8% lower extremity impairment for peripheral nerve injury would give 34% lower extremity impairment. This would be converted to 14% whole person impairment.”
   
   

3. The Medical Assessor noted that Dr Volschenk had diagnosed the appellant had CRPS, based on the Budapest Criteria. The Medical Assessor said the following regarding Dr Volschenk’s diagnosis:

   “I would agree with all the findings in Dr Volschenk’s reports. There is a significant difference between a diagnosis of CRPS 1 or 2 under the Budapest criteria as compared to the New South Wales Workers Compensation Guides criteria, which is a modified Budapest criteria. Under the Budapest criteria the applicant would need at least symptoms in 3 of the 4 categories. They would need physical signs in 2 of the 4 categories. From Dr Volschenk’s reports and my examination today she would fulfil the Budapest criteria.

   With respect to Table 17-1 of the New South Wales Guidelines, which is a modified
   Budapest criteria she would require symptoms in all 4 categories and physical signs in all 4 categories present on the day of examination. On today’s examination she did report symptoms in all 4 categories but on physical examination she only had clinical signs in 3 of the 4 categories. Though she reported that she does have physical signs at various times in all 4 categories, on the day of examination there was no evidence of pseudo motor/oedema changes. There was no swelling in the left foot and no evidence of sweating asymmetry or abnormal sweating. She reported that at times she does get cutting into her left foot by her thong straps, but this was not present at the time of my examination. Therefore, she does not fulfil all the criteria from Table 17-1 for an assessment of Complex Regional Pain Syndrome Type 1 or Type 2.”
   
   

4. The Medical Assessor also noted the assessment Dr Lowy had made of the appellant’s permanent impairment. He observed this with respect to Dr Lowy’s assessment:

   “I note that Dr Lowy has used incorrect methodology in his assessment. He has assessed Complex Regional Pain Syndrome using Table 16-6 of the 5th Edition of the AMA Guides. He has made no mention of Chapter 17 of the 4th Edition of the New South Wales Workers Compensation Guided (1 April 2016), which overrides
   Table 16-6. I therefore note that he has used incorrect methodology in his assessment. I note also that as I could not find enough criteria to assess her as Complex Regional Pain Syndrome Type 2 that I was asked to assess her left foot only. I have carried this out. In doing so I have found a slightly greater whole person impairment for the left foot and ankle than Dr Lowy found.”
   
   

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that swelling was present in both her feet during the assessment and that she had no sweating in both feet. The appellant submitted that she has CRPS in both her feet and she submitted that if she suffered CRPS in her left lower extremity only and not the right she would have met the required criteria under Table 17-1 which requires asymmetry of sweating. The appellant submitted that the Medical Assessor failed to raise that issue with her and as a consequence “thus erred by not providing an adequate path of reasoning for his assessment to be known”. In other words, as the Appeal Panel understood this submission of the appellant, the Medical Assessor did not adequately expose his reasoning as to why, in a circumstance where the appellant experiences no sweating bilaterally in her lower extremities, she could not fulfil the requirement of dot point 3 at item 3 of Table 17-1 of sweating asymmetry.

3. The appellant further submitted that “the injured person is therefore at a disadvantage in meeting the criteria under Table 17-1 and being assessed in accordance with the diagnosis of CRPS in which in this circumstance may have real and long lasting impact on the [appellant’s] life”.

4. The appellant submitted that the Medical Assessor did not carefully assess whether she had swelling in her left or right lower extremities.

5. The appellant submitted that in the circumstance where the Medical Assessor concluded she had CRPS in both her lower extremities but only assessed her impairment relating to her left lower extremity, the Medical Assessor acted contrary to the requirements of [1.6] and [1.17] of the Guidelines, and the Medical Assessor ought to have also assessed her impairment of her right lower extremity. The appellant submitted that the Medical Assessor did not act with fairness when assessing her permanent impairment.

6. In reply, the respondent submitted that the Medical Assessor provided sufficient reasoning relating to his assessment of the appellant’s permanent impairment in accordance with Table 17-1 of the Guidelines. The respondent noted that the Medical Assessor did not find oedema or abnormal sweating from his examination of the appellant.

7. The respondent submitted that for the appellant’s permanent impairment to be assessed by reference to CRPS a diagnosis of CRPS had to be made in accordance with the criteria of Table 17.1. The respondent highlights that the Medical Assessor was unable to make that diagnosis. The respondent submitted that the Medical Assessor consequently abided by the terms of the referral by assessing only the appellant’s permanent impairment relating to her left lower extremity.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. Chapter 17 of the Guidelines stipulate the criteria for an assessment of permanent impairment to be made based upon an injury that results in CRPS. Paragraph 17.5 of the Guidelines instructs that for CRPS to be present for the purposes of an assessment of permanent impairment a diagnosis has to be confirmed in accordance with the criteria of Table 17-1. As Fagan J observed in Elsworthy v Forgacs Engineering Pty Ltd [5] the criteria of Table 17-1 are strict and demanding.

   [5] [2018] NSWSC 1638 at [41]; see also Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125.

4. It is apparent from the MAC, in the Appeal Panel’s view, that the Medical Assessor has carefully considered whether the symptoms the appellant reported to him and the signs he found from his examination of the appellant correlated with the criteria of Table 17-1, so as to determine whether he could make a diagnosis of CRPS for the purposes of assessing the appellant’s permanent impairment.

5. The Medical Assessor found that the appellant’s reported symptoms and the signs she exhibited during his examination of the appellant correlated with the criteria of Table 17-1 with the exception of the third dot point 3 of item 3 of the Table, that being whether there was evidence at the time of examination of “oedema and/or sweating asymmetry”.

6. In the Appeal Panel’s view, that the Medical Assessor conducted a thorough examination of the appellant for the purposes of his assessment. He examined for all potential signs specified in item 3 of Table 17.1. This is apparent from the findings the Medical Assessor set out from his physical examination of the appellant. The Medical Assessor found that the appellant did not have any swelling of her left lower extremity at the time of his examination of her. There is no evidence before the Commission that contradicts that, noting that the Appeal Panel did not receive into evidence the appellant’s statement of 14 July 2021. In arguendo, even if the Appeal Panel received into evidence the photos of the appellant’s feet, they would not have enabled a finding that the appellant’s feet were swollen at the time of the Medical Examiner’s examination of the appellant. The members of the Appeal Panel who are specialist doctors consider while the photos are suggestive of pitting oedema they do not depict the condition of the appellant’s feet at the time of examination, and consequently do not establish the appellant’s feet were swollen at the time of examination. They cannot substitute for the findings the Medical Assessor made from his examination and a further consequence of that is that the photos cannot establish a concurrence of the existence of swelling with all other signs, such as allodynia Further, and in any event, the photos, because the photos were taken at least some hours after the examination, they do not depict the condition of the appellant’s feet at the time the Medical Assessor conducted his examination. More critical however, is that the Medical Assessor found that the thongs the appellant had been wearing on her feet were not cutting into either her left foot or her right foot at the time of examination. As the Medical Assessor found, in the Appeal Panel’s view that is a more telling sign of a lack of swelling in those limbs.

7. The Medical Assessor also found no evidence of “sweating asymmetry” in either of the appellant’s feet. The Appeal Panel considers that in a circumstance where an injury has affected a worker’s extremities bilaterally then the requirement under Table 17-1 that there be asymmetry of signs and symptoms in order to make a diagnosis of CRPS does not require the asymmetry to be between each extremity. Rather, if the signs and symptoms manifesting from the injury have affected a worker’s extremities bilaterally, and the presentation of the worker’s affected extremities is inconsistent or abnormal when considered with the rest of the worker’s body and what is expected as physiologically normal for the conditions, such as ambient temperature, then there would be asymmetry of signs or symptoms. Simply put, where an injury has affected a worker’s extremities bilaterally, the axis of comparison to establish asymmetry is not between each extremity, but rather the bilateral extremities considered as one and the rest of the body. Otherwise it would lead to an anomalous result whereby an injury resulting in CRPS can only be assessed for impairment if it affects only one side of the worker’s body. Such a situation would forbid a worker who had CRPS in an extremity but whose contralateral limb was amputated recovering compensation for permanent impairment based on CRPS.

8. In this case however it is apparent to the Appeal Panel that the Medical Assessor has considered the appellant’s sweating in both feet with what would be considered to be normal clinically, that is what is normal when considering the appellant’s body as a whole, and this is apparent from the Medical Assessor’s saying that there was no evidence of “abnormal sweating”. In other words, what the Medical Assessor is saying is that the sweating of the appellant’s feet was not inconsistent with what is to be expected.

9. The Appeal Panel rejects the appellant’s submission to the effect that the Medical Assessor, having been unable to make a diagnosis of CRPS with respect to the appellant’s left lower extremity, ought to still have assessed her permanent impairment of her right lower extremity. The assessment the Medical Assessor was required to perform was limited by the dispute that was referred to him, which was identified in the referral, the terms of which the Appeal Panel set out much earlier.[6] This was not a case where there was any misdescription or error in the form of referral that was issued by the Commission to the Medical Assessor. The form of referral reflected what the parties had agreed and what was recorded by Member Moore in the determination she issued.

   [6] Skates v Hills Industries Ltd [2021] NSWCA 142 per Baston JA at [27]-[30] and Lemin JA [45]-[48].

1. Section 325(1) of the 1998 Act required the Medical Assessor to issue a medical dispute only with respect to matters that were referred for assessment. Consequently, bearing in mind the terms of the referral, and the Medical Assessor not having been able to make a diagnosis of CRPS in accordance with the criteria of Table 17-1, the Medical Assessor was limited to assessing the degree of the appellant’s permanent impairment with respect to her left lower extremity only.

2. The Appeal Panel considers that the Medical Assessor has adequately exposed his reasoning with respect to being unable to make a diagnosis of CRPS 1 or CRPS 2 in accordance with the criteria of Table 17-1.

3. For those reasons, the Appeal Panel considers that none of the grounds for appeal upon which the appellant has relied is established in this case. There is no additional relevant information which indicates the assessment was wrong. The MAC does not contain a demonstrable error. The Medical Assessor has made the assessment based upon the correct criteria.

4. In arguendo, even if the Appeal Panel was satisfied that one of the grounds for appeal was established, and the Appeal Panel would thereupon have to revoke the MAC, and reassess the medical dispute that was referred for assessment, and the Appeal Panel were able to make a diagnosis of CRPS in accordance with Table 17-1 (and to stress that this is not what the Appeal Panel is finding but is hypothesised by way of illustration), the Appeal Panel would not have been able to assess the appellant’s permanent impairment on the basis of CRPS because her diagnosis had not been verified by more than one examining physician, as required by paragraph 17.5 of the Guidelines. The diagnosis that must be made by more than one examining physician, in order to meet this criterion of the Guidelines, is a diagnosis that accords with the criteria of Table 17-1.[7] In this matter, no doctor has made a diagnosis that the appellant has CRPS based upon the criteria of Table 17-1. The appellant’s treating clinicians have made their diagnoses based upon the Budapest Criteria. Dr Lowy made his diagnoses based upon Table 16-6 of AMA 5. Consequently, and to repeat this is being said merely for the sake of illustration, even if the Appeal Panel had been in a position where it was required to revoke the MAC and reassess the medical dispute, the Appeal Panel could not have made this assessment based on CRPS because, contrary to the requirement of paragraph 17.5 of the Guidelines, a diagnosis had not been present, made by reference to the criteria of Table 17-1 of the Guidelines, for at least one year and a diagnosis had not been verified by more than one examining physician.

   [7] Elsworthy v Forgacs Engineering Pty Ltd [2019] NSWSC 1638 at [42].

5. For these reasons, the Appeal Panel has determined that the MAC issued on 22 June 2021 should be confirmed.