Merrylands Christian Pre School Association Inc v Sakr
[2022] NSWPICMP 430
•27 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Merrylands Christian Pre School Association Inc v Sakr [2022] NSWPICMP 430 |
| APPELLANT: | Merrylands Christian Pre-School Association Inc |
| RESPONDENT: | Joanne Sakr |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 27 October 2022 |
CATCHWORDS: | wORKERS cOMPENSATION - Medical dispute referred for assessment of left supra orbital traumatic neuropathy and complex regional pain syndrome (CPRS); Medical Assessor (MA) finds that the strict criteria for assessment of CRPS in Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016) were not met; nonetheless MA assessed whole person impairment (WPI) by reference to restriction of movement of each joint of the right arm; Held – MA was in error in assessing WPI in accordance with Chapter 16 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed when the only explanation for restriction of movement in the elbow and shoulder was CRPS; in view of the reasoning of the Supreme Court in Sakr v Merrylands Christian Pre-School Association Inc the worker’s WPI should be assessed by reference to the underlying condition; after re-examination of the worker Medical Assessment Certificate (MAC) revoked and new MAC issued incorporating the findings of the MA in respect of the worker’s underlying condition of the right hand and wrist. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 September 2020 Merrylands Christian Pre-School Association Inc (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 24 August 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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 grounds of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 PIC Rules.
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 FACTUAL BACKGROUND
Joanne Sakr (the respondent) was formerly employed by the appellant as a childcare worker and cleaner. On 12 September 2013, she tripped and fell on a wooden horse in the course of her employment. By her statement of 28 September 2016, she says:
“I fell on my right hand and hit the left side of my head on the ground. My head was bruised and very sore.”
Following the injury, the respondent saw her general practitioner, Dr Neuhauser of Merrylands, who treated her conservatively. She returned to work on 21 September 2011 performing selected duties and continued to work until 20 December 2013, the date on which she had previously arranged to cease her employment for reasons unrelated to the injury.
When the respondent’s symptoms did not improve with conservative treatment, she was referred to Dr Nicholas Smith, an orthopaedic surgeon, who diagnosed chronic regional pain syndrome (CRPS) stating that her symptoms were diffuse and not restricted to a dermatomal distribution. Dr Smith proposed that the respondent be treated non-operatively. On 15 January 2014, he referred her to Dr Tillman Boesel, a pain specialist.
Dr Boesel saw the respondent on 12 March 2014. He reported to Dr Smith that she suffered from CRPS of the right upper limb. The doctor observed that there had been:
“some response to physiotherapy but she still has severe neuropathic pain and ongoing trophic and functional limitation.”
Dr Boesel expressed the opinion that the respondent should undergo stellate ganglion blocks to facilitate analgesia to improve her response to physiotherapy. As this treatment regimen also failed to alleviate her symptoms, Dr Boesel trialled various “anti-neuropathic agents” and also prescribed Tramadol, Lyrica, and Zoloft. However, the respondent’s condition has proved to be resistant to treatment. She continues to complain of constant severe pain and gross restriction of movement of her right upper limb.
On 25 June 2019, Dr Tim Ho, a specialist in pain and rehabilitation medicine, provided a report to the respondent’s solicitors. He diagnosed left supra orbital neuropathy and complex regional pain syndrome type 1 of the right upper limb resulting from the workplace injury on 12 September 2013. The latter condition “progressively developed” from the initial “soft tissue injury to the right upper limb”. His prognosis was for continuation of her symptoms.
Dr Ho stated that the respondent’s complex regional pain syndrome gave rise to:
“(i) loss of motion of the right upper extremity [AMA Guide 5th ed, Chapter 16]
(ii) sensory deficit/pain of the right brachial plexus [AMA Guide 5th ed, Chapter 16]”
Dr Ho assessed the respondent’s right arm impairment by reference to Chapter 16 AMA 5, which prescribes the methodology for evaluating permanent impairment of the upper extremities. While he was asked to assess permanent impairment in accordance with Chapter 17 of the Guidelines, it is not evident from his report that he considered the criteria for determining the presence of CRPS prescribed by the chapter.
Dr Ho opined that the respondent suffered 71% whole person impairment (WPI) as a result of restriction of movement, sensory impairment, and pain-related impairment of her right upper extremity and face. This consisted of an assessment of 31% WPI for the left supra orbital neuropathy and 55% for the CRPS.
On 10 October 2019, Dr Dudley O’Sullivan, a neurologist provided a report to the appellant’s solicitor for the purpose of commenting on Dr Ho’s assessment. Dr O’Sullivan expressed the opinion that diagnosis of the respondent’s condition was difficult. He did not believe that there was evidence of a supraorbital neuropathy or that the respondent had injured her brachial plexus. He did not accept that the respondent had suffered permanent impairment in accordance with the instruction in Chapter 17 of the Guidelines. In particular, he was unable to find “temperature asymmetry or asymmetric skin colour changes” or “oedema and sweating”. He concluded:
“Therefore, I cannot agree with the diagnosis of complex regional pain syndrome type 1. As stated, she does not really satisfy the criteria set out by the SIRA Guides to the Evaluation of Whole Person Impairment. There are in my view significant psychological abnormalities with regards to the development of this syndrome. I could only conclude that from a neurological point of view that we are looking at what I would describe as a conversion disorder with physical symptoms and not complex regional pain syndrome.”
He assessed 0% WPI.
By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim is formulated on the basis of the assessment of Dr Ho. The appellant accepted that the respondent suffered an injury to her right upper extremity and forehead. It did not accept, however, that she suffered CRPS or that she was entitled to permanent impairment compensation as a result of the injury.
As the difference of opinion between Dr Ho and Dr O’Sullivan as to diagnosis and the degree of WPI gave rise to a medical dispute as that term is used in s 319 of the 1998 Act, a delegate of the Registrar of the then Workers Compensation Commission referred the matter to an MA to assess the medical dispute. It is from the MAC of Dr Assem, dated
24 August 2020 that the appellant brings this appeal.On 30 November 2020, a Medical Appeal Panel (MAP) found error in the MAC of
24 August 2020, revoked it and issued a new MAC which certified that the respondent suffered 0% WPI.On 16 June 2022, in Sakr v Merrylands Christian Preschool Association Inc[1] Garling J, in the Supreme Court, set aside the decision of the MAP and remitted the matter to the President of the Personal Injury Commission (the Commission) of New South Wales to be dealt with in accordance with law.
[1] [2022] NSWSC 768 (16 June 2022)(Sakr).
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of the preliminary review the appeal panel determined that as there was prima facie error in the MAC the respondent should be re-examined by Dr Mark Burns, a member of the panel.
As the appellant’s solicitor had written to the Commission requesting the opportunity to provide further written submissions in the light of the decision of the Supreme Court, the panel also directed that both parties have the opportunity to provide further written submissions. Both parties lodged submissions in accordance with the Direction.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Mark Burns of the appeal panel conducted an examination of the worker on
17 August 2022 and reported to the appeal panel. Insofar as it is relevant, Dr Burns’ report is as follows:
| “Assessor Mark Burns |
1. The workers medical history, where it differs from previous records.
Ms Sakr confirmed the history obtained by Assessor Mohammed Assem with the following clarifications. In paragraphs 2 and 3 of Assessor Assem’s history it is listed that she had pain in her left thumb and restriction in her left thumb. This in fact should be her right thumb. In Paragraph 5 following her stellate ganglion blocks that the benefit lasted approximately 6 weeks.
Importantly she confirmed that the injury to her right arm had occurred when she fell landing with her right arm across her chest between the body and the ground. She also confirmed that her initial injury involved the right hand, right thumb, right wrist and to a lesser extent the right forearm. She did not initially note any injury involving either her right elbow or right shoulder. Her only initial investigations after she had seen a General Practitioner for a plain x-ray of her right forearm, hand and wrist. This x-ray revealed no fractures. Ms Sakr was asked when she first noted pain or discomfort in either her right elbow or right shoulder. She stated today that this injury had occurred nearly 9 years ago and she could not remember when the pain first commenced. I noted from the documentation provided that Dr Smith had first made a diagnosis of right hand CRPS in a report dated 16 October 2013. It was noted that she had swelling in the hand as well as decreased motion of the digits and an almost immediate onset of colour change. She had been treated with Mirror Box Therapy and also referred to hand therapy. There was no mention made of symptoms or signs in the right elbow or right shoulder.
I noted further medical reports from Dr Smith dated 4 December 2013 and 15 January 2014, which also only mentioned pain and discomfort as well as swelling and colour change in the right hand and wrist. Again there was no mention made of the right shoulder or right elbow. I note the first mention made of some minor decrease in range of movement in the right shoulder was made by Dr Boesel, the Pain Specialist. This was in a report dated 12 March 2014, some 6 months after the original hand and wrist injury. Ms Sakr believed that this was probably around the time that she noted pain in the right shoulder.
2. Additional history since the original Medical Assessment Certificate was performed.
Ms Sakr reported that since the certificate on 24 August 2020 she has continued to see Dr Neuhauser, her General Practitioner, Professor Boesel, the pain Specialist and a Psychiatrist. She has continued to attend physiotherapy with only short-term benefit. Due to the number of tablets that she was taking she started to feel as if she was “not there” and was sleeping most of the time. For this reason, most of her tablets were ceased.
Current symptoms:
Ms Sakr reported that most of her pain and discomfort is currently in the right wrist, fingers, and thumb. She reports an occasional shooting pain up the right arm towards the right shoulder. She reported that she tends to wear a scaphoid brace over the right wrist and hand to keep the hand and wrist in a neutral position. The fingers though tend to be held tightly in a fist. Recently she has learnt that she can carry light items in her right hand, and she also reported that she can put a knife in the right hand and cut up small vegetables.She reports significant stiffness in the right hand and continues to get pins and needles through the entire hand. She has noted coldness in the hand at times and colour changes. She also reports increased sensation in the right hand to light touch. This does not stop of her though for attempting to do activities in physiotherapy with the hand therapist.
With respect to her right elbow, she did not report any significant symptoms in the elbow and stated that there was no severe pain or discomfort. With respect to the right shoulder, she reported pain over the anterior aspect of the right shoulder, which she states was radiating up from the right hand. She agreed that she had not sustained an injury to her right shoulder.
Current treatment:
She continues to see Dr Neuhauser, her General Practitioner monthly mostly for referrals and prescriptions. She is currently seeing Dr Boesel, the pain Specialist on a 4 monthly basis. She continues to attend physiotherapy on a weekly basis and is given exercises and tries to use her right hand. Recently she was given a stress ball to use in the right hand to help her open the hand up. As mentioned previously when not doing the exercises she uses a scaphoid brace over the right wrist and hand to keep the wrist in a neutral position.
She currently takes Lyrica 75mgs at night. All other medication has been ceased.
3. Findings on clinical examination
Ms Sakr arrived with her right arm held tightly across her chest. It was noted that she was wearing a scaphoid brace over the right wrist. During the examination this brace was removed.
Examination of her left upper limb was carried out first. It was noted that she had a full range of movement in her left shoulder, left elbow, left wrist, left hand and fingers including the thumb. There was no report of pain or discomfort. There was no evidence of any colour change in the left upper extremity and no evidence of muscle wasting or sensory change.
Examination of the right upper extremity was then carried out. The full range of movement evaluation of movement for the hand, wrist, elbow and shoulder is contained in the 2 attached work sheets.
Throughout the consultation there was significant resistance in doing range of movement especially in the wrist, fingers and thumb. It was noted that she tended to hold her right hand with the wrist fully flexed and the fingers in a fist position. I noted on examination though that this was because of contraction in the flexor muscles in the right forearm. When she was able to relax the flexor muscles, the wrist went back into a neutral position and the fingers started to open. Some of her initial lack of movement was relatively non-organic and was associated with fear avoidant behaviour. When she finally relaxed, I believe that her final decreased range of movement was the best she could do and was restricted by permanent stiffness associated with chronic disuse. She continued to say that she had pain, but I noted that there was very little apart from mild hyperalgesia and no evidence of allodynia.
I went through the diagnostic criteria found in Table 17.1 of the New South Wales Guidelines. Under Point 2 I noted the following.
· Sensory: She did report hyperaesthesia in the entire right arm, but this appeared to be mainly in the right wrist and hand region. Historically there was also reports of allodynia, but she did not report any during the history taking.
· Vasomotor: She did report that there was initially temperature asymmetry between the right hand and wrist and the left hand. She reported that there were also colour changes in the right hand and wrist especially with a blueish tinge involving her right thumb.
· Sudomotor/oedema: Ms Sakr reported occasional swelling in the right hand and wrist and an increase in sweating in the right hand. There were no such changes reported in the left hand.
· Motor/trophic: She stated that she has a significant stiffness in her right hand and wrist involving all joints. I note though that she did not mention any significant changes in the hair, nail or skin.
Under Point 3 of Table 17.1 I noted the following physical signs.
· Sensory: There was evidence of mild hyperalgesia involving the right hand and wrist region. There was significantly less involving further up the forearm into the elbow and above the forearm. The only tenderness over the right shoulder was anterior to the shoulder over the long head of biceps tendon. This was not genuine hyperalgesia. There was no evidence of allodynia in the entire right arm.
· Vasomotor: There was no evidence of temperature asymmetry and or asymmetric skin colour changes. Both hands and arms were the same colour and there was no evidence of coldness or warmness in either hand or arm.
· Sudomotor/Oedema: There was no evidence of oedema in the right arm, hand, or wrist but there was a noted increase in sweating in the right hand by the end of the consultation. This would be considered as sweating asymmetry.
· Motor/trophic: There was decreased range of movement in all joints involving the hand, thumb and wrist. It was noted though that this was a mixture of genuine stiffness and also a degree of non-organic stiffness. Initially she was reluctant to make any movement in the right hand and held her fingers and thumb in a tight fist. With repeated testing of range of movement it was possible for her to release the flexor muscles in her right forearm, which allowed for some movement in the right wrist, fingers and thumb. I do believe though that he does have a degree of stiffness in the hand associated with long term disuse. I did not note any evidence of trophic changes including hair, nail or skin changes in either hand.
In conclusion under Table 17.1 of the New South Wales Guidelines she does have symptoms in all 4 categories whether they be present at the time of my consultation or historical. She does not though have physical signs in all 4 categories and therefore under that Table cannot be assessed as having Complex Regional Pain Syndrome of the right upper extremity.
4. Results of any additional investigations since the original Medical Assessment Certificate
She reported having no further investigation. I also noted after going through her documentation again that I could not find any investigations of her right elbow or shoulder. There were investigations of the left shoulder in 2019 but this appears to have been after a non-work-related fall”
I note that my assessment of the right hand (fingers and thumb) and wrist gave a combined assessment of 52% Upper extremity impairment (UEI) compared to the 57% found by Assessor Assem. These figures converted to 31% WPI (my assessment) compared to 34%WPI (Dr Assem). Considering the day-to-day changes in range of movement in injured joints they are very similar.”
Medical Assessment Certificate
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. The appellant raised two broad grounds of appeal. First, it submitted that the only body parts/systems referred for assessment were left supra orbital traumatic neuropathy and complex regional pain syndrome. It continued:
“The right upper extremity was not referred to the AMS for assessment, and as such his assessment of impairment of the right upper extremity is outside the ambit of the terms of the referral.”
The appellant submitted that this was evident from the fact that the right upper extremity was not included in the Referral dated 9 July 2020. Further, the respondent made no objection to the terms of the referral.
Secondly, the appellant argued the MA erred in that he did not comply with Chapter 17 of the Guidelines. He diagnosed a form of chronic pain namely “non-specific neuropathic pain” and concluded that it did not meet the diagnostic criteria in Chapter 17 of the Guidelines. Chronic pain is only assessable when the criteria in Chapter 17 are established. The MA erred in assessing impairment by an alternative methodology. This was impermissible. The respondent argued:
“The appellant submits that the AMS has assessed the condition which he diagnosed (i.e. ‘neuropathic pain disorder’) despite the assessment of such a condition being excluded from assessment other than within the ambit allowed by Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.”
By its submissions the respondent submitted that the Referral for assessment was “misleading” as a reference to CRPS in that document “does not specifically refer to a body part”. Both the permanent impairment claim form dated 9 July 2019 and the Application to Resolve a Dispute nominated the injury as being an injury to a specific body part, the respondent’s right upper extremity.
Thus, there was no substance in the appellant’s assertion that a claim for permanent impairment compensation was not made in respect of the right upper extremity. Further, the assessment of permanent impairment relied on by the respondent had been made in accordance with the Guidelines and AMA5. She argued that “Dr Ho’s CRPS assessment was of the right upper limb only”.
The respondent continued:
“In conclusion it is submitted that the MAC does not contain demonstrable error by assessing limitation of motion in the right upper extremity, when in fact the permanent impairment claim nominated the right upper extremity as the body system.”
In respect of the appellant’s second argument, the respondent submitted that the MA had assessed impairment by analogy in accordance with 1.23 of the Guidelines. It continued:
“The Appellant submits that because the AMS did not apply the criteria in Chapter 17 of the Guidelines his assessment was made on the basis of incorrect criteria. However, it is submitted that as the AMS has complied with clause 1.23 of the Guidelines, the AMS has not made an assessment on the basis of incorrect criteria.”
By its further submissions dated 18 August 2022, the appellant reiterated the arguments put in its initial submissions. It submitted that the decision of Garling J in Sakr did not “alter the manner in which the reconstituted MAP should characterise the medical dispute”. It referred to Skates v Hills Industries Ltd[2] in support of the proposition that the nature of the medical dispute between the parties is to be determined by the evidence including the medical reports and correspondence between the parties. It continued:
“In this case, the scope of the medical dispute, pertaining to assessment of permanent impairment resulting from the injury, was limited to an assessment of CRPS resulting in impairment (and left supra orbital traumatic neuropathy which is not the subject of appeal). There was no assessment of impairment of the right upper extremity as an injury or body part distinct from the CRPS assessment.”
[2] [2021] NSWCA 142 (14 July 2021) (Skates).
It also argued that:
“An undisputed soft tissue injury to the right hand being pleaded in proceedings does not permit assessments of impairment which depart from the medical dispute “crystalised between the parties regarding assessment” which must be limited to the assessment on which the dispute has arisen between the parties.”
The respondent submitted that the appellant was “seeking to re-litigate” the issue decided before Garling J. It argued that it would be “wholly inconsistent” with Garling J’s judgment for the MAP assessment of WPI to turn on a finding that the respondent came within the criteria prescribed for CRPS 1 under Chapter 17 of the SIRA Guidelines. Rather WPI should be assessed based on the injury claimed in the Application to Resolve a Dispute (ARD), namely “soft tissue injury to the left side of the face and right upper limb resulting in CRPS 1”.
Guidelines
Relevant extracts from Chapter 17 of the Guidelines are set out below:
“17. Evaluation of permanent impairment arising from chronic pain...
17.5 AMA5 Section 17.2m, ‘Causalgia and complex regional pain syndrome (reflex sympathetic dystrophy)’ (p 553), should not be used. AMA5 Table 16-16 (p 496) has been replaced by Table 17.1 in the Guidelines. Table 17.1 is used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis. It is important to exclude diagnoses that may mimic CRPS, such as disuse atrophy, unrecognised general medical problems, somatoform disorders and factitious disorder. Once the diagnosis is established, access impairment as in AMA5.
Complex Regional Pain Syndrome Type 1
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 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2
Continuing pain, which is disproportionate to any causal event.
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.
Complex Regional Pain Syndrome Type 2, causalgia
For Complex Regional Pain Syndrome Type 2 (CRPS2), the mechanism is an injury to a specific nerve. The methodology in AMA5 (pp 496-97) is to be followed:
If the criteria in each of sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied and there is objective evidence of an injury to a specific nerve, the diagnosis of CRPS2 may be made.
Rate the extremity impairment due to loss of motion of each individual joint involved.
Rate the extremity impairment resulting from sensory deficits and pain of the injured nerves according to the determination methods described in AMA5 Chapter 16, Section 16.5b and Table 16-10a. Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within each range shown in the grade.
Rate the extremity impairment resulting from motor deficits and the loss of power of the injured nerve according to the determination method in AMA5 Chapter 16, Section 16.5b and Table 16-11a.
Combine the extremity impairment percentages for loss of range of motion of the joints involved, pain or sensory deficits, and motor deficits, if present, to determine the final extremity impairment, using the Combined Values Chart in AMA5 (p 604).
Convert the final extremity impairment to WPI using AMA5 Table 16.3 (p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity.”
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in its application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical Appeal Panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the Appeal Panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners PtyLtd v Kocak [2013] HCA 43 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an Appeal Panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
By the MAC, the MA described the respondent’s present symptoms in the following terms:
“She complains of constant pain involving the entire right upper extremity extending to the right side of her neck. She rates the discomfort as more than 10/10 on a visual analogue scale. She has observed a difference in colour, temperature and perspiration. There was a “tight” feeling. She had difficulty writing and is unable to hold a cup in her right hand without dropping it.”
In respect of findings on physical examination, the MA recorded that:
“There was no visible swelling and no measurable difference in the circumference of her wrist or forearms. She had allodynia and reported alteration in sensation involving the entire right upper extremity. She had a marked reduction in movement of her fingers. She was unable to clench or extend her fingers. She had reduced movement to her wrist, elbow and shoulder. Her movements were variable.”
The MA then proceeded to record “the best active range of motion” of her right thumb, fingers, wrist, elbow and shoulder. He characterised the injuries as follows:
“Ms Sakr is a 60 year old, right-handed dominant lady who fell at work on 12 September 2013. As a result she developed chronic pain involving the left frontal region and right thumb. Her right thumb progressively worsened to involve the entire right upper extremity. … Her symptoms were due to non-specific neuropathic pain without associated changes in colour, temperature or perspiration.”
The MA continued:
“With regards to the right upper extremity, she may have had clinical features consistent with CRPS in the past. At the time of my assessment she did not satisfy the objective diagnostic criteria for CRPS listed in Table 17.1 of the WorkCover Guides, 4th edition, page 81, as there was no objective evidence of oedema and/or sweating asymmetry. Assessment of impairment was therefore based on limitation of motion to all of the joints in her right upper extremity.”
The MA returned to the diagnostic criteria for CRPS in the Guidelines in his reasons for assessment. He stated:
“There was no obvious swelling and no measurable difference in the circumference of wrist or forearms. She therefore did not satisfy the objective diagnostic criteria for CRPS listed in Table 17.1 of the WorkCover Guides, 4th edition, page 81, as there was no objective evidence of oedema and/or sweating asymmetry. Assessment of impairment was therefore based on limitation of motion to all joints in her right upper extremity. Even though range of motion is an imperfect method of assessing whole person impairment, I note that other medical practitioners have obtained similar restrictions and it was therefore plausible that the restrictions observed were a relatively accurate assessment of her underlying condition.”
Absent the reasoning and orders of the Supreme Court in Sakr there is undoubted force in the appellant’s submission that the medical dispute referred for assessment was confined to the issues of whether the respondent suffered CRPS in accordance with Chapter 17 of the Guidelines and, if so, the degree permanent impairment resulting from that condition.
Following a telephone conference before an Arbitrator of the former Workers Compensation Commission on 3 May 2020, orders were made remitting the matter to the Registrar for referral to “an AMS for a whole person impairment assessment” on the following basis:
“(a) Date of injury: 12 September 2013
(b) Matters for assessment:
i.Complex regional pain syndrome;
ii.Left supra orbital traumatic neuropathy.”
The Arbitrator provided short reasons for his referral which included the following:
“The difference in opinion pertained to the interpretation of table 17.1 at page 81 of the NSW compensation guidelines for the evaluation of permanent impairment fourth edition stop Dr O’Sullivan found that the criteria contained therein were not met, whereas Dr HO that they were.”
The Registrar then issued a Referral for Assessment dated 9 July 2020 in accordance with the Arbitrator’s Direction. Relevantly it provided:
“Date of injury: 12 September 2013
Body part/s referred: left supra orbital traumatic neuropathy
complex regional pain syndrome
Method of assessment: whole person impairment”
Both parties were represented by lawyers before the Arbitrator at which time the terms of the medical dispute to be referred for assessment were settled by consent. The Referral would have been forwarded to the solicitors representing each party. There is no suggestion that either party sought to alter the terms of the referral which were ultimately recorded by the MA at the commencement of the MAC.
Arguably, the terms of the Referral agreed by the parties reflected the dichotomy of opinion between Dr Ho and Dr O’Sullivan as to the presence of CPRS. Dr Ho assessed permanent impairment on the basis that the respondent suffered from CRPS. Dr O’Sullivan disputed that she had CRPS in accordance with the criteria in Chapter 17 or that she suffered permanent impairment. There was no suggestion by either doctor that there was an alternate basis upon which to assess permanent impairment. The medical dispute in this case required a resolution of the conflicting opinions of the qualified doctors.
While the decision in Skates may have attenuated the status of the Referral, it must remain an important document in determining the nature of the medical dispute. In many cases it is settled by consent at a conference or arbitration hearing. In some cases it reflects the determination of the Member as to the nature of the injury following a contested arbitration hearing. In all cases it is settled with the consent of the parties. It has a statutory underpinning in the Guidelines which state that it is to “make clear to the assessor the injury or medical condition for which an assessment is sought”[3].
[3] Guidelines 1.6d
In his reasoning in Sakr, the judge concluded at [48] that:
“However, that specific dispute as to diagnosis does not encapsulate the underlying medical dispute between the parties. In my view, the fundamental medical dispute between the parties, within the terms of s 319, has always been “the degree of permanent impairment of the worker as a result of [the injury]”, namely a “soft tissue injury to … [the plaintiff’s] right upper limb”. The panel concluded as much at paragraph 51 of its reasons.
The true effect of this finding, however, is that, subject to the operation of the Guidelines, the determination of the plaintiff’s claim did not ultimately depend on a diagnosis of CRPS. It was therefore open for the AMS to assess the permanent impairment of the plaintiff, notwithstanding the finding that the diagnostic criteria for CRPS has not been met.”
In reaching this conclusion, I particularly emphasise the terms of the permanent impairment claim form dated 9 July 2019, which did not mention CRPS at all and instead indicated that the plaintiff was seeking compensation for an injury suffered on 12 September 2013, which affected the “right upper extremity”. It is unfortunate that the parties respective medical reports then focused on the degree of permanent impairment based primarily on a diagnosis of CRPS, because CRPS was not the underlying injury in relation to which a claim was being made. The CRPS is a complex pain syndrome which develops after a traumatic injury. It is not the injury itself. This fact appears to have been overlooked by the first defendant’s medical expert Dr O’Sullivan, who, once he had concluded that the plaintiff did not suffer from CRPS, failed to consider the plaintiff’s degree of permanent impairment, despite conceding that the plaintiff has “the inability to use her right upper limb”. In those circumstances, however, it cannot be that the plaintiff’s claim was limited by the failure of the first defendant’s expert to address the broader impairment claim.”
This reasoning appears to elide the injury sustained by the respondent with the medical dispute referred for assessment. Theoretically, the panel is not bound to accept the reasoning employed by the Judge in setting aside the MAC of the previous medical panel. Generally, however, Commission Members and Medical Assessors have deferred to and applied the principles enunciated by judges sitting in the Administrative List of the Common Law Division of the Supreme Court even when there is doubt as to whether the factual finding or exposition of the law is sound. With considerable reluctance, the panel concluded that it should accept that the medical dispute, in the specific circumstances of this case, is that characterised by the judge, namely the degree of permanent impairment of the worker as a result of a soft tissue injury to her right upper limb. It follows from an acceptance of that proposition that it was open to the MA to assess the respondent’s underlying condition by reference to Chapter 16 of AMA5.
It also follows that the panel rejects the appellant’s submission that it should ignore the findings and orders in the Supreme Court and reach its own conclusions. If the appellant was confident that the reasoning in Sakr was wrong, it had the opportunity to appeal to the Court of Appeal. Its submission on this issue rings hollow in view of its failure to avail itself of that opportunity.
Assuming that it was open to the MA to assess permanent impairment on a basis other than CRPS, the panel considered whether there was error in his assessment. The MA, of course, recorded that the respondent suffered an injury to her right thumb on 12 September 2013 which “progressively worsened to involve the entire right upper extremity”. This is consistent with the report of Dr Smith, the orthopaedic surgeon who saw the respondent some five weeks after her injury. He recorded that:
“She had almost immediate onset of colour change, sweating and paraesthesia around the thumb. She also has had swelling and decreased motion in the digits.
She has been doing mirror box therapy already with Elias. She does feel that her symptoms, particularly the paraesthesia have improved recently.”
While radiological evidence demonstrated some CMC joint arthritis of the right thumb and some minor age-related changes in other parts of the hand, Dr Smith did not believe that such changes were relevant to her symptoms. The medical practitioners on the panel concur with that opinion.
The contemporaneous evidence and the respondent’s history thus established that she suffered a soft tissue injury to the right hand in the incident of 12 September 2013. There is no suggestion that she suffered injury to her elbow, upper arm, shoulder, or brachial plexus at that time. The spread of pain from the respondent’s hand to her upper arm and neck can only be explained on the basis of CRPS as opined by Dr Ho and the respondent’s treating doctors or, possibly, on the basis of a conversion hysteria as proposed by Dr O’Sullivan, the neurologist.
The treating medical evidence from Dr Smith, Dr Vucic, a neurologist, and, of course, from
Dr Boesel, the treating pain specialist, makes a compelling case for chronic pain which satisfies the Budapest criteria for CRPS and the panel after a consideration of all of the medical evidence and bearing in mind the examination of Dr Burns, prefers that view to the opinion of Dr O’Sullivan.The MA was undoubtedly in error in assessing the respondent’s upper arm including her elbow and shoulder on his examination as the symptoms at these sites were a manifestation of chronic pain. Chapter 17 of the Guidelines prohibit an assessment of permanent impairment in respect of CRPS unless the criteria enunciated in Table 17.1 are met. Plainly, they were not. The respondent’ submission that there was a soft tissue injury to the entirety of the right upper limb has no foundation in the evidence. The only underlying condition that is evident to the panel is a soft tissue injury to the hand and wrist.
This exclusion of chronic pain from the conditions assessable under the Workers Compensation Legislation is emphasised by Chapter 1.12 of the Guidelines which states:
“12. AMA5 Chapter 18, on pain, is excluded entirely at the present time. Conditions associated with chronic pain should be assessed on the basis of the underlying diagnosed condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines. Complex regional pain syndrome should be assessed in accordance with Evaluation of permanent impairment arising from chronic pain in the Guidelines.”
The panel also considered the respondent’s argument that the MA assessed impairment by analogy. However, there is no evidence that this was the case and it is unlikely that the language of chapter 17 permits an assessment by analogy when the strict criteria for CRPS are not met.
As there is error in the assessment, the panel concluded that it was appropriate to re-examine the respondent to ascertain whether there is an assessable condition, including evidence of an underlying condition which might permit an assessment of WPI. Dr Burns report is set out above. On receipt of that report, the panel reconvened and discussed
Dr Burns’s findings.Dr Burns confirmed at his consultation that the injury suffered by the respondent in 2013 was to her right hand (including the fingers and thumb) and her wrist. He was unable to confirm the presence of CRPS by reference to the criteria in chapter 17 of the Guidelines. Dr Burns expressed the opinion, however, that his examination suggested that the effects of the respondent’s initial soft tissue injury to the hand and wrist persisted and had given rise to dis use stiffness, possibly exacerbated by an element of non-organic stiffness of psychological in origin. Nonetheless, after repeated testing of the right hand and wrist, Dr Burns expressed confidence that he had established on a reasonably objective basis restriction of movement in the hands and wrist.
An assessment of the restriction of movement in the respondent’s hand and wrist gave a rating of WPI of 31%.
When reviewing Dr Burns report, the panel turned its mind to three important issues. First, whether the respondent’s assertion that she suffered an initial injury to the entirety of her right hand and wrist was consistent with the contemporaneous medical evidence. After considering that evidence, the panel took the view that more probably than not the respondent had suffered an initial insult to her hand and wrist at the time of the fall. Certainly, that is consistent with the description of the incident. It is not inconsistent with the contemporaneous medical evidence.
Secondly, whether the non-organic aspect of the respondent symptomatology precluded an accurate assessment of WPI or, alternatively, whether some reduction should be made in the assessment to reflect that fact. The specialist medical practitioners on the panel, however, took the view that Dr Burn’s thorough examination provided a proper basis for an assessment of WPI. He had allowed for non-organic responses in his assignment of permanent impairment.
Thirdly, whether the persistence of symptomatology in the respondent’s right hand and wrist over a period of some nine years could only be explained on the basis of CRPS in which case chapter 17 of the Guidelines would preclude assessment. The medical practitioners on the panel expressed the view that the symptoms in the respondent’s hand and wrist could readily be explained the basis of the initial soft injury and the consequential disuse stiffness without reference to a diagnosis of CRPS.
Accordingly, the panel determined that it should accept the opinion of Dr Burns and conclude that the respondent had suffered a soft tissue injury to her hand and wrist which gave rise to 31% WPI. That underlying injury and its sequelae was not, on the balance of probabilities, explicable on the basis of CRPS.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 August 2020 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: | 1010/20 |
Respondent: | Joanna Sakr |
Respondent: | Maryland’s Christian Preschool Association Inc |
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 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 | 12 | Table 17.1, p | Table 13-11, p 331 | 0 | Nil | 0 |
| Right | 12 | Chapter 2 | Chapter 16 Figures 16-12, 15, 21, 23, 25, 28 & 31 Tables 16-1, 2, 3, 8a & 8b, | 31 | Nil | 31 |
| Total % WPI (the Combined Table values of all sub-totals) | 31% | |||||
0
7
0