Leo Burnett Pty Ltd v Odgers
[2021] NSWPICMP 237
•14 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Leo Burnett Pty Ltd v Odgers [2021] NSWPICMP 237 |
| APPELLANT: | Leo Burnett Pty Ltd |
| RESPONDENT: | Julia Odgers |
| APPEAL PANEL: | Member John Wynyard Dr Mark Burns Dr John Brian Stephenson |
| DATE OF DECISION: | 14 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against assessment of 47% for Complex Regional Pain Syndrome ; whether recitation of Table 17.1 and opinion that “all four [criteria] were satisfied” by Medical Assessor (MA) sufficient compliance with Table 17.1; whether MA opinion a matter of clinical judgment and therefore unappellable; whether MA assessment of unreferred right hand permissible; whether failure to apply a section 323 deduction a demonstrable error; Held - MA failed to identify signs of pseudomotor/oedema in contravention of Table 17.1, assessing the hand impermissible; Skates v Hills Industries applied; failure to apply section 323 conceded and 10% deducted: Medical Assessment Certificate revoked and worker assessed on range of motion measurements (less the hand) taken by MA. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 August 2021 Leo Burnett Pty Ltd, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Jonathan Negus, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment. “ARD” refers to the Application to Resolve a Dispute.
RELEVANT FACTUAL BACKGROUND
The respondent worker brought an action against two respondents, the appellant employer for whom she worked until 14 April 2017, and Pixecolo Pty Ltd for whom she worked between 7 August 2017 and 30 November 2017. Consent Orders were made on 6 April 2021, amending the pleadings. The COD gave an award for the second respondent and discontinued the action against the first respondent insofar as a disease condition was alleged. The Consent Orders were repeated in the Amended Referral issued to the MA on 12 April 2021.
The matters for assessment were described as in the following terms:
(a) right upper extremity (right shoulder, right elbow and right wrist), and
(b) CRPS affecting right upper extremity.
The referral contained the following instruction:
“Issues determined by consent of the parties:
The Application to Resolve a Dispute is amended under injury details to add a pleaded injury as follows: Type of Injury: Personal Date of Injury: 28 June 2016 Injury Description: The Applicant sustained injury to her right upper extremity including CRPS
In respect of the pleaded disease injury:
a. There is to be an award for the Second Respondent
b. The claim is discontinued as against the First Respondent
The following is not a determination of the Commission; however, I note
that the parties have agreed:The Respondent does not concede that the applicant suffers from CRPS.”
In noting the details of the matters that were referred to him for assessment, the MA wrote:[1]
“Body parts/systems referred:
1. Right upper extremity (including right shoulder, right elbow, right wrist)
2. CRPS affecting right upper extremity.”
[1] MAC page 1.
The respondent worker had been employed as a studio manager by the appellant employer. As noted, the appellant employer is the first employer in time. Ms Odgers was employed there between 1 August 2014 and 20 April 2017. Thereafter she worked for a second employer Pixeloco Pty Ltd between 7 August 2017 and 30 November 2017.
Ms Odgers sustained physical injuries to her cervical spine, head and right upper extremity whilst at work on 28 June 2016, the date in respect of which the matter was referred to the MA.
On that day she worked a shift which began at 8.30am and continued until 3am the next morning. At 9pm she had developed pain from the right side of her neck into her shoulder and down the arm into her fingers. She also had headaches of sufficient severity to cause her to cease doing computer related work.
She returned to work the following day and reported that her hand was swollen and red. She took a week off work, her condition being managed by her GP and a physiotherapist. She was put on restricted duties on her return when she found she could not do her pre-injury duties. She was working 16-20 hours per week when she was let go on 14 April 2017. She thereafter worked for the second respondent, but could only work until 30 November 2017, when she ceased work altogether. She has not worked since.
She received treatment from Dr Tim Ho, pain specialist, whose treatment by injecting local anaesthetic into the cervical spine was unsuccessful.
She was also seeing Dr Andrew McDonald, Sports Physician and Professor Milton Cohen, Rheumatologist and Pain Specialist.
The MA found that Ms Odgers was suffering from 0% WPI in the right upper extremity but suffering 47% as a result of CRPS.
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.
The appellant employer did not seek to have the respondent worker re-examined by a Member of the Appeal Panel, and in view of the issue for determination being the interpretation of the relevant guideline by the MA, a re-examination would not have advanced our deliberations.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant employer appealed on two bases. Firstly, it submitted that the diagnosis of CRPS had not been applied in accordance with the criteria set out by the Guides. Secondly, it was alleged that the MA had fallen into error by failing to apply the provisions of s 323 of the 1998 Act.
The MAC
In his examination of the worker the MA noted[2]:
“She was of a pleasant demeanour but was easily stressed and occasionally brought to tears. She walked normally into the room as far as her lower limb was concerned but she held her right arm in a flexed posture throughout the examination occasionally extending at the elbow.
She sat relatively comfortably throughout the examination although her right arm remained in the flexed posture through the majority of it.
As I examined her right arm, I had to be careful about the amount that I touched her skin as any light touch produced a burning and shooting sensation which lingered for a period of time consistent with allodynia. I noted, however, that the right side had a cooler temperature differential. There was a slight colour change between the sides although she tells me it can be more marked with the right arm turning purple when it is severely affected.”
[2] MAC page 4.
The MA included in his examination findings made about the right hand at page 5. He found hand impairment which he assessed at page 7 of the MAC, regarding CRPS.
At [10c] the MA considered the opinions of other medical practitioners. He noted that
Dr Dias on 14 June 2019 had found presence of CRPS type 1 affecting the entire right upper limb, a diagnosis the MA agreed with.In considering the report of Dr Paul Miniter of 13 August 2019 the MA noted that Dr Miniter found no evidence of any objective findings of CRPS, noting that a lack of muscle wasting was critical to that diagnosis.
The MA said:
“I note that he does not detail the specific criteria for a diagnosis of CRPS according to… the NSW guidelines … which would be helpful in giving more information as to why it is his opinion that she does not have this diagnosis.”
The MA noted that his examination findings were quite different to those of Dr Miniter and that muscle wasting was not a criteria according to the Guides.
In considering the report of Dr Bosanquet he was content to say:
“I make the same comments on the diagnosis of specifics as for Dr Miniter”.
As to the application of s 323 of the 1998 Act the MA simply said that there was no deductible proportion.
At paragraph [10] of the MAC the MA recited the terms of table 17.1 of the Guides and said:[3]
“On my examination, all four of these criteria were satisfied and therefore in my opinion, this patient’s presentation is consistent with a diagnosis of CRPS 1 as per the Guidelines.
As the diagnosis of CRPS leads to an impairment calculation where the loss of motion is combined with the sensory disturbance, the impairment from CRPS is going to be higher than that for motion impairment alone. The terms of this referral were to assess her upper limb and also her CRPS for impairment. My calculations will reflect an impairment value for the CRPS and 0% for the upper limb as her impairment of the upper limb is accounted for within the CRPS impairment.”
[3] MAC page 7.
The MA referred to Ms Odger’s past history of similar symptoms experienced by Ms Odgers whilst working for the appellant employer. He recorded in the section dealing with previous injuries:[4]
“On 23/11/2014, she suffered a right upper extremity injury while working for Leo Burnett during a pitch for ING. She was only working for them on a contract rather than as an employee so she did not report it. She did however change the processes in the position to try and reduce the hours of the shifts. She said that during a particularly long shift that day, she lost sensation in her right arm and needed to alternate tasks with her left hand.
By the time of this current injury, she still had not regained full use of the right hand and was alternating with the left hand at that point.”
[4] MAC page 3.
He said at [4]:[5]
“She describes often having to work very long shifts when they were pitching to a company. In November 2014 after a 24 hour pitching session she felt symptoms of numbness, pins and needles an pain in her right wrist and hand. The symptoms persisted over the next few weeks and she sought treatment with her physiotherapist. She did not officially report it as an injury. She largely recovered with the odd dull ache in her right shoulder, arm and wrist from the end of 2014 to June 2016.”
SUBMISSIONS
[5] MAC page 2.
Appellant employer
The appellant employer referred to the relevant guidelines for the assessment of Complex Regional Pain Syndrome Type 1 (CRPS 1), contained in Table 7.1 of the Guides.[6] The appellant employer submitted that the MA did not document any signs which would fulfil the required sign of “Sudomotor/oedema”. In particular, the MA did not document any observed signs of oedema and/or sweating asymmetry. An MA was required pursuant to Table 17.1 to observe at least one sign from the four categories there identified on examination.
[6] Guides page 81.
The appellant employer replied on the asterisked stipulation at the bottom of table 17.1. It said:
“A sign is included only if it is observed and documented at the time of the
impairment evaluation”.
The appellant employer submitted that it was not sufficient for the MA to simply say that all the criteria was satisfied without more specific identification. We were referred to Elsworthy v Forgacs Engineering Pty Ltd.[7]
[7] [2018] NSWSC 1638.
The appellant further noted that liability for injury to the worker’s hand was not conceded. It followed that the assessment relating to the hand was invalid.
As to the failure by the MA to make any deduction pursuant to s 323, the appellant employer referred to the history taken by the MA. It was submitted that the MA had failed to consider the terms of s 323 in that regard. We were referred to the report of Dr Milton Cohen dated 30 October 2017, who also noted the earlier history in 2014 recorded by the MA. [8] We were also referred to reports taken by other medical practitioners who noted the onset of
Ms Odgers’ symptoms in 2014.[8] Appeal papers page 237.
The respondent worker
Ms Odgers also referred to Elsworthy, submitting that it confirmed that the assessment has to be based on the presentation by the worker on the day of consultation, and that Medical Assessors were required to exercise their clinical judgment.
We were also referred to Pitsons v Registrar of the Workers Compensation Commission and Anor[9] and UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard[10]. It was submitted that these cases were authority for the proposition that matters of clinical judgment were not to be cavilled with.
[9] [2008] NSWCA 88 (Pitsonis).
[10] [2016] NSWSC 911 (Attard).
The respondent submitted that the MA reported the complaints by Ms Odgers in the present tense as to the swelling she was noticing in her fingers. Although recorded in the context of her complaints, it was submitted that nonetheless that complaint constituted a record of the “sign” of swelling.
Further, the MA agreed with the findings of Dr Uthum Dias of 14 June 2019[11] that Dr Dias had found swelling at the small joints in the right hand.
[11] Appeal papers page 49.
Ms Odgers also submitted that she had been examined by the MA and that the MA had considered the relevant guidelines and then diagnosed CRPS 1. It was submitted that the MA was thus acting pursuant to Chapter 1.6a by conducting a clinical assessment. These matters, it was argued, amounted to an exercise of clinical judgment in accordance with Chapter 1.6b.
Moreover, the MA did not make any comment against the credit of Ms Odgers, nor the reliability of the report of Dr Dias, and it could therefore be inferred that there was the swelling in the right hand.
We were referred to Vegan which we have cited above and to Pitsonis in the context of submissions regarding the application of incorrect criteria.
Ms Odgers emphasised that it was insufficient for an appellant to allege that the “abbreviated manner in which the MA may have recorded what had occurred when exercising his clinical judgment” constituted the application of incorrect criteria.
We were referred to Table 17.1, and it was submitted that Ms Odgers’ complaint of swelling, having been documented by the MA, satisfied its terms. Giving a broad meaning to the terms of the guideline, such documentation should constitute a “sign”.
Finally, Ms Odgers submitted that the MA had cited the correct criteria “and made his assessment on the basis of that criteria”. This meant that the appellant employer had failed to substantiate its appeal.
As to s 323 of the 1998 Act, Ms Odgers conceded that a deduction should have been made but that, because it would be difficult or costly to determine, it should be assessed at 10%.
DISCUSSION
Chapter 17.5 of the Guides states relevantly:
“For Complex Regional Pain Syndrome Type 1 (CRPS 1) 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...”Table 17.1 provides:
“For a diagnosis of CRPS 1 to be made out, the following criteria must be satisfied in
accordance with Table 17.1 of the SIRA Guidelines:1) Continuing pain, which is disproportionate to any causal event.
2) Reporting at least one symptom in each of four categories:
a. Sensory: Reports of hyperaesthesia and/or allodynia.
b. Vasomotor: Reports of temperature asymmetry and/or skin colour changes
and/or skin colour asymmetry.
c. Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry.
d. 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 the time of evaluation in all of the following four categories:
a. Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
b. Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes.
c. Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry.
d. 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 the time of the
impairment evaluation.”The appeal must be allowed. Although the MA criticised some medical reports before him for not referring to the terms of Table 17.1, his apparent assumption that it was sufficient compliance with the required criteria to simply refer the Table. This in itself constituted a demonstrable error. An MA also has an obligation, as we noted in our reference to Vegan, above, to give adequate reasons.
The MA simply said that “all four of these criteria were satisfied” but, as submitted by the appellant, this was not correct. The MA did not explain the absence of the pseudomotor/oedema sign which is defined in table 17.1.3 as being “evidence of oedema and/or sweating asymmetry”.
The content of the guideline is unambiguous. Although the second paragraph requires only a reporting of at least one of the symptoms therein set out, the criteria contained in paragraph three requires there to be displayed at least one sign in each of the categories at the time of evaluation. The MA mentioned the presence of signs listed in the sensory, vasomotor and motor/ trophic categories, but did not in relation to either of the required signs in the sudomotor/oedema category.
We accordingly reject the submissions that the mention of a sign within another document at an earlier time is sufficient compliance. We also reject the submission that the opinion of the MA could not be criticised because his findings were allegedly based on clinical judgement. Whilst it may be correct, as was submitted, that the task of an Appeal Panel is not to cavil with matters of clinical judgement, the issue of incorrect criteria is a specific ground pursuant to s 327(3)(c) of the 1998 Act, and is clearly within power. A clinical diagnosis is one thing, but Table 7.1 contained very clear criteria that had to be complied with, and the MA did not, with respect.
It follows that the assessment regarding the presence of CRPS is revoked.
We note that the MA has not given any figures for his findings on range of motion but the medical experts on the Panel are satisfied that, using the measurements set out by the MA from tables 4 – 5, but excluding the right hand measurements, Ms Odgers would be entitled to a whole person impairment assessment of 20%.
It can be seen that the hand was not referred to the MA for assessment. An MA is bound by the terms of the referral[12] and accordingly he has fallen into error in assessing that part of
Ms Odgers’ anatomy.[12] Skates v Hills Industries Ltd [2021 NSWCA 142
Section 323
Section 323 of the 1998 Act provides relevantly:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
We note the concession by Ms Odgers that a deduction is appropriate under the circumstances. We agree that the assessment would be difficult or costly to determine and the provisions of s 323(2) should be applied.
Dr Cohen reported to the GP, Dr Juliette Little on 30 October 2017. Dr Cohen is a specialist Pain Medicine Physician and Rheumatologist. He took the following history:
“In November 2014 Ms Odgers had developed pain in her right arm in the context of a 24-hour shift (I) on the computer. That problem became recurrent and since then she has changed the ergonomics of her operation to operate the mouse on the left side and a tablet on the right. However, on 28 June last, after another long shift (18 hours), she experienced worsening pain on the right side and pain on the left side, accompanied by discolouration of the distal upper extremities plus daily headache. She took one week off work before returning to normal full-time hours with an ergonomic assessment of her work station. Over time the symptoms in the left arm overtook those in the right. She did reduce her hours to 4 hours per day on 4 days per week prior to being made redundant.”
The similarities with Ms Odgers’ symptoms on 28 June 2016 are noted. However it would be difficult to assess any more than the conceded statutory 10% as an appropriate deduction. The available evidence does not suggest a higher deduction.
We note in passing that the referral advised that the respondent did not concede that the applicant suffered from CRPS. We are surprised that the matter was referred in that way, but as no issue was raised, we say no more.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 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
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 Jonathan Negus 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) |
| Right upper extremely | 28/06/16 | Chapter 2 page 10 | Chapter 16 page 433 | 20% | 1/10th | 18% |
| CPRS | 28/06/16 | 17, p.80-81, table 17.1 | Table 16.10a, p.482, CVC p.604, table 16.3 (p.439) | 0 | 0 | 0 |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
John Wynyard
Member
Dr Mark Burns
Medical Assessor
Dr John Brian Stephenson
Medical Assessor
14 December 2021
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