Nguyen v NL Glass Pty Limited
[2022] NSWPICMP 434
•28 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nguyen v NL Glass Pty Limited [2022] NSWPICMP 434 |
| APPELLANT: | Ha Nguyen |
| RESPONDENT: | NL Glass Pty Limited |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 28 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant submitted that the issuing of two Medical Assessment Certificates (MAC) resulted in an unclear MAC being issued; doubt arises as to which of these can be relied upon in pursuing the applicant’s entitlements; issues in terms of appealing the reasoning contained within them separately; the Medical Assessor (MA) failed to take into account relevant medical evidence; the MA failed to properly consider activities of daily living, irrelevant considerations taken into account and incorrect TEMSKI Table application; Held – no evidence to support any of the appellant’s submissions; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 July 2022 Ha Nguyen (the appellant) lodged an Application to Appeal Against the Decisions of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (the first MAC) on 7 June 2022.
The first MAC assessed the appellant worker’s injury to the right upper extremity and scarring – TEMSKI as a result of the injury on 28 March 2019.
On 16 June 2022 the MA issued a second MAC.
The second MAC assessed the appellant’s injury to the right upper extremity (Complex Regional Pain Syndrome) as a result of injury dated 28 March 2019.
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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, no particular reasons were given as to why this was necessary, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits as follows:
(a) the issuing of two MAC’s “has resulted in an unclear MAC being issued, and doubt arises as to which of these can be relied upon in relation to pursuing the applicant’s entitlements and also poses issues in terms of appealing the reasoning contained within them separately”;
(b) the MA failed to take into account relevant medical evidence, and
(c) the MA failed to properly consider activities of daily living, irrelevant considerations taken into account and incorrect TEMSKI Table application.
In reply, the respondent submits that no errors were made.
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 was initially referred to the MA for assessment of whole person impairment (WPI) in respect of scarring (TEMSKI) resulting from an injury on 28 March 2019. He was examined by the MA on 1 June 2022 and the MAC was issued on 7 June 2022. This is the first MAC.
The MA obtained the following history:
“Mr Nguyen was examined on 20 April 2022 for this injury when I did a whole person impairment for the right upper extremity (complex regional pain syndrome). He has been referred for re-examination to assess scarring (TEMSKI) as per the Consent Orders dated 16 May 2022.
On 28 March 2019 Mr Nguyen sustained a laceration on the volar aspect of the right forearm. He had two operations, one on 30 March 2019 and the second on 9 July 2019 by Dr Jiang.”
Present symptoms were noted as follows:
“I asked Mr Nguyen if he had any symptoms regarding the scar. He said that the scar worries him as he has pain in the hand and it keeps him awake at night. He says that he cannot straighten his fingers. I asked a number of times specifically if there were any symptoms as a result of the scar and I could not identify any. He kept describing symptoms of pins and needles in the fingers, that the hand swells, and he has pain when he moves the fingers, and that the pain disturbs his sleep.”
Findings on physical examination were reported as follows:
“Examination of the scars reveal a 6cm curved scar in the volar distal forearm with another scar extending towards the wrist and it measures 2.5cm. The scars are very fine and depigmented with colour contrast with the surrounding skin. Suture marks were noted on the larger scar and they caused no colour contrast.
There was no tethering or trophic changes present. When asked he says he is conscious of the scars.
On the dorsum of the forearm there is a ‘Z’ shaped surgical scar as a result of the previous injury.”
He summarised the injuries and diagnoses as follows:
“Mr Nguyen sustained a laceration of the right forearm. He lacerated the flexor tendons, and sustained a muscle injury. He developed a neuroma in the palmar digital branch of the median nerve. As a result of the injury and surgical procedures he has scars in the volar aspect of the forearm as described.
He appears to be genuine and no inconsistencies were found regarding the scarring.”
The MA then set out his reasons for his assessment as follows:
“The scar was assessed under the best-fit principle of the TEMSKI classification. I assess 2% whole person impairment.
The claimant is conscious of the scars, there is noticeable colour contrast with the surrounding skin, the claimant is able to locate the scars, there are minimal trophic changes. Suture marks are visible, the location is usually visible when wearing short sleeved clothing, there is no contour defect and no effects on ADLs.
As a result of the same injury I previously assessed right upper extremity impairment (complex regional pain syndrome) on 28 March 2019: 9% WPI.”
In the Table annexed to this first MAC, the MA confirmed his assessment of 2% WPI for scarring and 9% WPI in respect of the right upper extremity, giving a total WPI of 11%.
In the second MAC dated 16 June 2022 the MA confirmed that he had examined Mr Nguyen on 13 April 2022, clearly prior to the assessment in the first MAC.
On this occasion he obtained a more detailed history as follows:
“Mr Nguyen sustained a laceration to the volar aspect of the forearm whilst he and a co-worker were placing a piece of glass on a grinder.
The employer took him to a local medical centre who referred him to Liverpool Hospital for assessment. He was assessed at the hospital and then referred to Fairfield Hospital under the care of Dr Jiang.
He had two operations by Dr Jiang, the first on 30 March 2019. Dr Jiang states that he had a 7cm transverse laceration over the mid forearm which was thoroughly debrided and lavaged. He had 100% injury to his FCR and palmaris tendons which was repaired. He also had 50% injury to his FDS muscle belly which was repaired.
On 9 July 2019, he had a second operation. Dr Jiang writes that the median nerve was found to be completely free from injury and scar. However, he had 80% neuroma in continuity of quite a large palmar cutaneous branch of the median nerve. The scar was fully excised and a cable graft taken from the median cutaneous nerve from his forearm into the deficit which was approximately 3cm in length.
Post-operatively, Mr Nguyen attended hand therapy.”
Present symptoms were noted as follows:
“He says that he has pins and needles in all his digits. The hand sweats. It is cold. He gets cramping in the hand, particularly in cold weather. There is intermittent swelling in the hand and the distal forearm near the scar. He says he cannot sleep properly. He cannot carry more than 2kg with the right hand.”
The MA added:
“I asked him about the hand pre-injury and he said that the hand was normal. I noted a Z-shaped surgical scar on the dorsum of the distal right forearm. He said he injured it a long time ago but unable to give any more detail. I asked whether the fingers extended normally prior to the subject accident, and he said that the hand was normal.”
Findings on physical examination were reported as follows:
“Mr Nguyen is a man of stated age who appears to be in no discomfort. I was able to palpate the hand, wrist, forearm, elbow and shoulder and there was no pain. There was no hypersensitivity, dysaesthesia or allodynia in the hand or the arm. There was global anaesthesia in the right hand extending to the scar in the distal forearm.
I tested sensation with a fibre and sharp stimulus with his eyes open and closed and there was anaesthesia.
He had normal movements in all digits except extension of the metacarpophalangeal joints where there is a flexion deformity of 15° which he claimed was not present prior to the subject accident.
I note Dr Teychenné, on page 26 of his report, states: ‘I note that he had a previous injury over the extensor portion of the right arm which may have affected his ability to dorsiflex the fingers of the right hand. He had been reported to have an extensor lag of the right 3rd and 4th fingers and could not extend these fingers back to the metacarpophalangeal joint. This was thought to be due to the previous injury some 20 years before.’
I found normal grip strength and grade 4 power in finger extension.
Both hands were mottled and discoloured, more so the right hand. The right hand was cool compared to the left. The hand was clammy compared to the left.
Wrist movements were restricted.
He complains of pain just distal to the scar in the forearm, however, Tinel’s sign was negative. Tinel’s and Phalen’s signs were negative for carpal tunnel syndrome.
Elbow and shoulder movements were normal.”
The MA summarised the injuries and diagnoses as follows:
“Mr Nguyen sustained a laceration in the right forearm. He lacerated flexor tendons, sustained muscle injury and developed a neuroma of the palmar digital branch of the median nerve for which he had a cable graft.
He presents with pins and needles in the hand, weakness, restricted wrist movements and finger movements, the latter in my opinion due to a previous injury to the extensor tendons as described in Dr Teychenné’s report.
The medical records reveal that he had symptoms and signs of neuroma in all probability CRPS II before the surgery. He had the neuroma excised.
He now presents with symptoms consistent with a neuroma, however, he does not have allodynia but rather anaesthesia of the hand.”
The MA added:
“Mr Nguyen appears to be genuine, however, the physical signs cannot be explained by or consistent with the underlying pathology. The global anaesthsia of the hand is not consistent with the injury and in my opinion consistent with non- organic aeteology.”
The MA then explained his opinion and assessment of WPI as follows:
“On examination today I found anaesthesia of the hand, vasomotor, sudomotor and motor changes but no hyperalgesia or allodynia.
The claimant does not report hyperaesthesia or allodynia although he has reported this in the past.
In my opinion, he does not meet the criteria for complex regional pain syndrome I or II.
He does not meet criterion 1 or 3. He does not complain of pain which is disproportionate to any causal event. He does not have hyperalgesia or allodynia.
He has total anaesthesia of the hand which, in my opinion, is non-organic.
Mr Nguyen’s condition does not meet the criteria of CRPS I, however, he does have restricted wrist movements as sequelae of the injury. I assess 12% right upper extremity impairment due to restricted wrist movements.
The anaesthesia in the hand is not organic in nature and not rateable.
The claimant had a neuroma excised and he no longer has symptoms of a neuroma but probably has altered sensation, hypoaesthesia or anaesthesia, in the distribution of the palmar digital nerve. This cannot be accurately assessed because of the global anaesthesia of the distal forearm and hand.
The palmar cutaneous branch of the median nerve is not rated in the guides. I have assessed the nerve by analogy to the radial palmar digital nerve of the ring finger which equates to 3% upper extremity impairment. I have made the assumption that there is no sensation in the palmar cutaneous branch of the median nerve, for reasons outlined above.
Total right upper extremity impairment is 12% for restricted wrist movements and 3% for injury to the palmar cutaneous branch of the medial nerve which is 15%. This equates to 9% whole person impairment.
I have not assessed the lack of extension in the metacarpophalangeal joints and I agree with Dr Teychenné that it is in all probabilities pre-existing and furthermore not consistent with injury sustained in the subject accident.”
The MA then turned to consider the other medical opinions, stating:
“I note the report of Dr P Teychenné dated 7 June 2020.
On today’s examination, I did not find all of the signs that met the criteria for CRPS.
I note the report of Dr J Vote dated 15 October 2021. I find a slightly better range of movement of the wrist than Dr Vote on today’s examination. I find the same impairment for the injury to the palmar cutaneous nerve.
I note an error in Dr Vote’s calculations. Range of movement of the wrist 5%, 5%, 2% and 2% is 14% combined with 3% for the sensory deficit gives 17% upper extremity impairment which equates to 10% WPI, not 11% WPI.”
The appellant makes the following submissions:
(a) the appellant’s solicitor was informed by the Personal Injury Commission that if a review is sought, it ought to be sought in relation to the second MAC. The appellant seeks review of both Certificates as a safeguard;
(b) only the first MAC issued in this matter takes into account the injury to the right upper extremity and scarring. The second MAC does not take into account scarring; despite being issued most recently. The appellant assumes this came as a consequence of a subsequent referral for scarring via consent orders dated 16 May 2022;
(c) the issuance of two Medical Assessment Certificates, with only the first MAC addressing the applicant’s scarring, plainly amounts to demonstrable error. This has resulted in an unclear MAC being issued, and doubt arises as to which of these can be relied upon in relation to pursuing the applicant’s entitlements. This is further illustrated having regard to s 322A(2) of the 1998 Act which outlines that:
“The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages)”;
(d) in the present scenario, there are two Medical Assessment Certificates, and doubt arises as to which can be used in connection with the claim, particularly noting the second MAC, being issued most recently, does not take into account scarring;
(e) further, pursuant to Rule 111 of the Personal Injury Commission Rules 2021, where there are multiple assessments of permanent impairment, they are to be combined pursuant to s 325 of the 1998 Act. In particular s 325(1) refers to issuance of “a certificate (a medical assessment certificate) as to the matters referred for assessment”, as opposed to multiple certificates;
(f) the fact that two separate certificates were issued also poses issues in terms of appealing the reasoning contained within them separately;
(g) the MA fell into error as a consequence of failing to combine the impairments in both MACs and therefore leaving doubt as to the applicant’s entitlements;
(h) the MA misapprehended the applicant’s diagnosis and provided an erroneous path of reasoning. In the first MAC, Medical Assessor Mastroianni at paragraph 10(a) noted that “As a result of the same injury I previously assessed right upper extremity impairment (complex regional pain syndrome) on 28 March 2019”. In the second MAC, at paragraph 10(a), he stated that “In my opinion, he does not meet the criteria for complex regional pain syndrome I or II”. He provided no explanation for these contradictory views;
(i) there is great difficulty in understanding how the MA arrived at his conclusions, particularly given the contradictory opinions he gave in both MAC’s;
(j) in addition to Dr Teychenne’s report, the appellant relied upon a report by Associate Professor Tillman Boesel. He independently diagnosed the appellant with complex regional pain syndrome;
(k) had the MA rejected the report of A/Prof Boesel, he should have articulated why. Instead, it is more probable that he failed to take it into account. This applies equally to the report by Dr Teychenne, and there is limited explanation as to why his opinion was rejected;
(l) the MA did not refer to the radiological investigations in either of his Certificates and therefore the appellant submits that he failed to take it into account;
(m) the MA did not properly consider the effects the scarring had on the applicant’s activities of daily living;
(n) the MA failed to grapple with the requirements set out in paragraph 14.8 of the Guidelines. In particular, he failed to adequately explain why the chosen category of impairment best reflected the applicant’s injuries, and
(o) the MA incorrectly applied the ‘best fit’ principle. He failed to enquire and take into account the effects of the scarring upon the appellant’s activities of daily living. He took into account irrelevant considerations, including symptoms associated with scarring.
The respondent set out more details of the background to this case. It noted:
“The Applicant was referred to Medical Assessor, Dr Mastroianni, for examination on 13 April 2022.
However, the applicant subsequently noted an error in its application, as the ARD failed to plead surgical scarring and hence this was not referred to Dr Mastroianni for assessment.
The matter was set down for Teleconference on 16 May 2022, where the respondent agreed to include surgical scarring in assessment of permanent impairment. The following Consent Orders were entered before Member Peacock at the Teleconference:
(a)The applicant was granted leave to amend the ARD to include a claim for scarring.
(b)The matter was referred back to Dr Mastroianni to assess, in addition to the matters already referred, the degree of permanent impairment (if any) in relation to scaring as a result of injury on 28 March 2019.
The applicant proceeded to the further examination accordingly.
Following the above, the Commission issued two MACs. The first MAC dated 7 June 2022 is in relation to surgical scarring, whilst the second MAC dated 16 June 2022 is in relation to a referral for assessment of 'Right Upper Extremity (Complex Regional Pain Syndrome).
The first MAC continues a combined values chart which combines Dr Mastroianni's assessment of right upper extremity impairment (9% WPI) and scarring (2% WPI), culminating in a total 11% WPI related to the work injury of 28 March 2019.”
The respondent makes the following submissions:
(a) the first MAC relates to surgical scarring following examination on 1 June 2022, and notes that the applicant was previously examined on 13 April 2022 in respect to the injury to the right upper extremity, and that he was subsequently referred for re-examination to assess scaring. It is therefore clear that this MAC, whilst dated earlier in time, was in respect to an examination that occurred later in time to the primary assessment of the right upper extremity;
(b) Dr Mastroianni assessed, under the TEMSKI guidelines, 2% WPI for scarring as caused by the work injury of 28 March 2019. As this examination took place subsequent to the examination of the right upper extremity, Dr Mastroianni addressed the entire extent of impairment;
(c) the second MAC relates to an assessment which took place on 13 April 2022, with the body part/system referred being 'Right Upper Extremity (Complex Regional Pain Syndrome)'. Dr Mastroianni concluded that the applicant did not present with symptoms consistent with a diagnosis of complex regional pain syndrome of any form (CPRS);
(d) with respect to the submission that the issuance of more than one MAC creates doubt as to the applicant's entitlement to compensation, this simply is not tenable;
(e) the first MAC expressly provides a combined assessment of permanent impairment for the right upper extremity and scarring of 11% WPI (p.5). This would entitle the applicant, pursuant to s 66 of the 1987 Act;
(f) furthermore, it is important to note that the issuance of two separate MACs is the result of the applicant failing to plead scarring in the first instance. It is unreasonable for the applicant to claim in those circumstances that the issuance of more the one MAC creates doubt as to the applicant's entitlements. This was the effect of the applicant's own procedural error, and in any event, it is submitted that the applicant's entitlements are clear;
(g) with respect to the allegation that the MA failed to take into account relevant medical evidence the respondent again submits that this is not tenable;
(h) the MA was not required to make explicit or written reference to all the evidence referred to him, including the report of A/Prof Boesel and the ultrasound of the right hand and right forearm. This is well-established, and procedurally, it is simply unreasonable to require an MA to specifically address every item of evidence in the application and reply;
(i) the applicant's submission must therefore fail as it is, in effect, a complaint that there is a difference of opinion. It is a matter of law that a difference of opinion is not a ground of appeal (see Ferguson v State of NSW & Ors [2017] NSWSC887 (Ferguson) among others);
(j) it is submitted that the MA was evidently aware of the conflicting evidence before him as to whether CPRS could be diagnosed in the circumstances, and did not err in failing to explicitly mention any individual item of evidence. It was reasonably open for the MA to reach a medical opinion that the applicant does not qualify, per the diagnostic formulation, for a diagnosis of CPRS;
(k) it is important to note in addition to the case law above, the Court of Appeal decision in Pitsonis v Registrar of the Workers CompensationCommission [2007] NSWSC 50, in particular at [59] of the leading judgment of President Mason, which makes it clear that an appeal to a decision of a MA will be unsuccessful where the applicant is seeking to 'cavil at matters of clinical judgment';
(l) the respondent refutes the assertion that the MA failed to properly consider ADLs, took into account irrelevant considerations, and/or applied the incorrect TEMSKI Table;
(m) it cannot reasonably be accepted by the panel that the MA did not properly consider the effects of scaring on the applicant's ADLs. The applicant's submissions (at [2.18]) are an inaccurate account of the MA's comments in respect to the applicant's ADLs. At [4] of the second MAC, it is recorded (inter alia) that the applicant “has pins and needles in all his digits. The hand sweats. It is cold. He gets cramping in the hand, particularly in cold weather. There is intermittent swelling in the hand and the distal forearm near the scar. He says he cannot sleep properly. He cannot carry more than 2kg with the right hand”;
(n) at [4] of the first MAC, the MA records that he asked the applicant if he had any symptoms regarding the scar. The MA explicitly stated “I asked a number of times specifically if there were any symptoms as a result of the scar and I could not identify any (our emphasis added). He kept describing symptoms of pins and needles in the fingers, that the hand swells, and he has pain when he moves the gingers, and that the pain disturbs his sleep”;
(o) the MA did sufficiently record the issues that relate to ADLs. It therefore has to be the case that the applicant is attempting to appeal a difference of opinion of the MA, which is precluded by the decision of Ferguson among others;
(p) in addition, the applicant's assertion that the MA ought not to have addressed the applicant's symptoms in respect of scaring, in the context of assessing impairment to ADLs as a result of scaring, is illogical. Evaluating impairment to ADLs is grounded in an assessment of ongoing symptoms, pain, disabilities and functional restrictions, which is contemplated by the TEMSKI Table and the permanent impairment guidelines, and
(q) we also refer to [10] of the first MAC, where the following is stated: “The scar was assessed under the best-fit principle of the TEMSKI classification. I assess 2% whole person impairment. The claimant is conscious of the scars, there is noticeable colour contrast with the surrounding skin, the claimant is able to locate the scars, there are minimal trophic changes. Suture marks are visible, the location is usually visible when wearing short sleeved clothing, there is no contour defect and no effects on ADLs”.
We agree with the thrust of the respondent’s submissions for reasons that follow.
To begin with, given the history of the manner in which the appellant pleaded his case, and his procedural failures, it is frankly absurd for the appellant to now complain about the issuing of two MACs.
It is abundantly clear that the MA assessed both the right upper extremity and scarring, and gave clear reasons for his assessment. It is simply disingenuous for the appellant to argue that the MA’s assessment “created doubt as to the applicant's entitlement to compensation”. His entitlements were abundantly clear.
The appellant relied upon the opinion of Dr Teychenne in making a claim for CRPS with respect to the right upper extremity.
It is true that the MA did consider that there were some features of this condition, but for a correct diagnosis under the Guidelines, a claimant must exhibit at least one symptom and sign at the time of evaluation in each of the four categories set out in Table 17.1.
The appellant exhibited a global loss in the hand which the MA noted was not consistent with the injury or with any relevant nerve.
With respect to the allegation that the MA failed to take into account relevant medical evidence, we agree with the respondent that this argument is simply not tenable.
It is clear law that an MA is not required to make explicit or written reference to all the evidence referred to him.
Having determined that the appellant did not fulfil the requirements in the Guidelines for CRPS, as referred to above, it was not necessary for the MA to specifically refer to the report of A/Prof Boesel. He was also an IME, qualified by the appellant in support of the opinion of Dr Teychenne regarding the diagnosis of CRPS.
Chapter 1.6 of the Guidelines makes it clear that “assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…”(our emphasis).
The MA’s assessment took place almost two years after that of Dr Teychenne, whose opinion was the principal one relied upon by the appellant. Similarly, Dr Boesel assessed the appellant in January 2021.
As the respondent correctly points out, a mere difference of opinion is not a proper basis for appeal.
The appellant must establish error by the MA, not merely a challenge to the findings of an MA.
It is thus specious in these circumstances to argue that the MA failed to consider all of the evidence. As the respondent points out, the MA “was evidently aware of the conflicting evidence before him as to whether CPRS could be diagnosed…”
Applying the Guidelines, it was entirely open to the MA to conclude that the appellant did not meet the criteria for a diagnosis of CRPS.
As regards the submission that the MA failed to properly consider ADL’s, took into account irrelevant considerations, and/or applied the incorrect TEMSKI Table, we reject the appellant’s submissions for reasons that follow.
In the second MAC, the MA recorded symptoms as follows:
“[He] has pins and needles in all his digits. The hand sweats. It is cold. He gets cramping in the hand, particularly in cold weather. There is intermittent swelling in the hand and the distal forearm near the scar. He says he cannot sleep properly. He cannot carry more than 2kg with the right hand.”
At [4] of the first MAC, the MA records that he asked the appellant if he had any symptoms regarding the scar. The MA explicitly stated:
“I asked a number of times specifically if there were any symptoms as a result of the scar and I could not identify any. He kept describing symptoms of pins and needles in the fingers, that the hand swells, and he has pain when he moves the gingers, and that the pain disturbs his sleep.”
We agree with the respondent that the MA clearly identified the issues that relate to ADL’s.
And further:
“In addition, the appellant’s assertion that the MA ought not to have addressed the applicant's symptoms in respect of scaring, in the context of assessing impairment to ADL’s as a result of scaring, is illogical. Evaluating impairment to ADL’s is grounded in an assessment of ongoing symptoms, pain, disabilities and functional restrictions, which is contemplated by the TEMSKI Table and the permanent impairment guidelines.”
The MA clearly explained his reasons for his assessment under the TEMSKI scale. He said:
“The scar was assessed under the best-fit principle of the TEMSKI classification. I assess 2% whole person impairment. The claimant is conscious of the scars, there is noticeable colour contrast with the surrounding skin, the claimant is able to locate the scars, there are minimal trophic changes. Suture marks are visible, the location is usually visible when wearing short sleeved clothing, there is no contour defect and no effects on ADLs.”
Again, we cannot see any error by the MA either as to the manner of his assessment of scarring and ADL’s nor his ultimate assessment. It was consistent with all the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 June 2022 should be confirmed.
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