Pace Farms Pty Limited v Taylor
[2021] NSWPICMP 115
•5 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pace Farms Pty Limited v Taylor [2021] NSWPICMP 115 |
| APPELLANT: | Pace Farms Pty Limited |
| RESPONDENT: | Lee Taylor |
| APPEAL PANEL: | Member Catherine McDonald Dr Gregory McGroder Dr Brian Noll |
| DATE OF DECISION: | 5 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Electrocution injury; Medical Assessor assessed reduced range of movement in right shoulder and chronic pain which fell short of CRPS; assessed by analogy to loss of median nerve below the forearm; criteria for assessment by analogy under paragraph 1.23 of Guidelines were fulfilled and choice of analogy was open to Medical Assessor in the exercise of his clinical judgement; Held- MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 April 2021 Pace Farms Pty Limited (Pace) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 March 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 was 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 WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Taylor was employed by Pace as a farm hand at its egg production facility near West Wyalong. On 8 October 2015 he was leaning in to an egg run to clear a blockage when the third, fourth and fifth fingers of his right hand came into contact with an electric wire, causing him to suffer an electrocution injury and develop pain in his right arm. A few days later he returned to work and while working fell back, causing him to suffer pain in his right arm, shoulder and neck.
Mr Taylor underwent physiotherapy, cortisone injections and cervical blocks which were ineffective. He was referred to Dr R Jain for pain management. A spinal cord stimulator was inserted in 2018 after a successful trial in 2017. He began to see a psychologist.
The Medical Assessor diagnosed a reduced range of movement of Mr Taylor’s right shoulder and chronic pain of the right forequarter. He said that the chronic pain condition fell short of Complex Regional Pain Syndrome (CRPS) and assessed Mr Taylor by reference to an analogous condition and used the loss of the median nerve below the forearm. The Medical Assessor assessed 20% upper extremity impairment (UEI) which he combined with 20% UEI in respect of the chronic pain condition, to reach 36% UEI which converts to 22% whole person impairment (WPI).
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 the method of assessment adopted by the Medical Assessor was open to him in the exercise of his clinical judgement.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary and in submissions prepared by its solicitor, Ms Whiting, Pace submitted that the Medical Assessor was wrong to assess Mr Taylor’s chronic pain condition under Chapter 16 of AMA 5 (the chapter which deals with the upper extremity) and that he failed to identify any underlying neurological pathology or injury in the right upper limb yet proceeded to assess WPI on the basis of an analogous condition. Pace did not take issue with the assessment of the range of motion component of Mr Taylor’s right shoulder.
Pace submitted that, under paragraph 1.23 of the Guidelines, assessment by reference to an analogous condition was only appropriate where there was a confirmed diagnosis which was not listed in AMA 5. It submitted that Table 16-10 of AMA 5 cannot be used for pain in the distribution of a nerve which has not been injured except in cases of CRPS.
Pace argued that the Medical Assessor failed to identify the pathology that resulted from the injury, relying on Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes.[1] (Barnes) Pace said that the medical evidence showed that there was no objective evidence of underlying neurological pathology to give rise to the impairment.
[1] [2015] NSWWCCPD 35 at [44].
In reply and in submissions prepared by Mr Tanner of counsel, Mr Taylor submitted that there is clear evidence from a number of practitioners that he suffers constant and severe pain and that there is no suggestion that his symptoms are not real or his complaints not credible. It follows that assessment should be made by reference to analogous criteria.
Mr Tanner submitted that assessment under clause 1.23 of the Guidelines is not dependent on a confirmed diagnosis or condition – the reference to a confirmed diagnosis is in clause 2.3. The Medical Assessor noted that Mr Taylor suffered a chronic pain condition with minor neurological sensory features. The condition could not be disregarded because it did not fit within one of the AMA 5 categories. The Medical Assessor identified an analogous method of assessment, staying within the same body part as required by clause 1.23.
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[2] 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor described Mr Taylor’s present symptoms:
“He still has pain in his right arm. This radiates down to the middle, ring and little fingers of the right hand. The pain radiates up his right arm to the shoulder. Occasionally, it goes further than that up to his neck and sometimes radiates up his neck and forward as a tension headache. He has gross restriction of movement of the right shoulder. His sleep is also badly disturbed.”
He set out the range of movement of Mr Taylor’s shoulders, noting that the right was significantly reduced. He said:
“Sensation to pin prick was slightly reduced in the right hand in the middle, ring and little fingers. Reflexes were present and were just able to be identified on the right side at the elbow (C5 & 7) and at the wrist (C6) but were diminished in comparison with the left. No muscle wasting was identified.”
The Medical Assessor set out a summary of the injuries and diagnoses:
“Mr Taylor sustained an electric shock to his right hand in early October 2015. This resulted in him jolting backwards and tumbling against some other structures. Ever since then, he has experienced dysfunction of the right forequarter. Later, it was identified that he had developed a chronic pain condition. This has been managed by a spinal cord stimulator which has been of partial benefit. At this assessment, it was fairly obvious that he continued to have a chronic pain condition associated with the right forequarter. From a clinical perspective, there were some minor neurological sensory features.
In analysing his circumstances, I gained the impression that the electric shock would probably not have caused a severe electrical injury, but it is more likely that the effect of this resulted in his jerking rapidly backwards. It is this component of the event which has probably resulted in his current circumstances more than anything else.”
The Medical Assessor explained his calculations, assessing 20% UEI as a result of the impairment of the range of motion of Mr Taylor’s right shoulder. He said:
“Although the neurological features in the right forequarter are relatively mild, it was very obvious at this assessment that Mr Taylor continues to experience a significant chronic pain condition. This falls well short of the diagnosis of Complex Regional Pain Syndrome although still leaves him with a right forequarter which is very far from normal. The assessment of this therefore follows the SIRA Guidelines, Para 1.23 for an analogous condition. Bearing in mind the distribution of the relatively minor neurological findings, it is considered appropriate to use the median nerve below the mid forearm as the basis for this analogous condition. This is addressed in AMA-5, Page 492, Table 16-15. The maximum upper extremity impairment for sensory dysfunction of the median nerve below the forearm is 39%. This is modified by Table 16-10 on Page 482. Grade 3 is selected as appropriate with 50% of the maximum. This therefore gives an upper extremity impairment of 20%.”
The Medical Assessor commented on the reports of Dr Powell, A/Prof Fearnside and Dr O’Neill. He said:
“Specialist Neurologist, Dr John O’Neill, in his report of 09/07/19 advises that there is no neurological assessable impairment. He further advises that Dr Michael Fearnside is erroneous in ‘making a diagnosis of injury to the lower trunk of the brachial plexus’. With the greatest of respect, I would draw attention that Dr Fearnside did not make a diagnosis of injury to the lower trunk of the brachial plexus but merely used this as an appropriate factor for an analogous condition to assess Mr Taylor’s chronic pain condition. Under those circumstances, I am in agreement with the general approach taken by Dr Michael Fearnside.”
AMA 5 and the Guidelines
AMA 5 provides in Section 16.5b[3]:
“Upper extremity impairment due to sensory deficits or pain resulting from peripheral nerve disorders are determined according to the grade of severity in diminution or loss of function and the relative maximum upper extremity impairment value of the nerve structure involved, as shown in the classification (a) and procedural (b) steps described in Table 16–10 and the impairment determination method detailed in section 16.5b. Table 16–10 provides classification for determining impairment of the upper extremity due to a sensory deficit or pain resulting from a nerve disorder. This table is to be used for pain that is due to nerve injury or disease that has been documented with objective physical findings or electro diagnostic abnormalities. It is not to be used for pain of the distribution of the nerve that has not been injured except in diagnosed cases of complex regional pain syndromes. The examiner must use clinical judgement to estimate the appropriate percentage of sensory deficits or pain within the range of values shown for each severity grade the maximum value for each grade is not applied automatically.”
[3] Page 482.
Paragraph 1.12 of the Guidelines says:
“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 Chapter 17 of the Guidelines.”
Paragraph 1.23 of the Guidelines reads:
“AMA5 (p 11) states: ‘Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments... In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’ The assessor must stay within the body part/region when using analogy.
‘The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.”
Diagnosis
Pace relied on Barnes to argue that the pathology which resulted from the injury must be identified. The passage relied on is taken out of context. In that passage, Roche DP was discussing the various ways in which “injury” was used in the legislation and observed that in the context of s 66 of the Workers Compensation Act 1987, injury meant the pathology resulting from the work incident. The statement is not authority for the proposition that particular pathology must be identified by a Medical Assessor in assessing a claim.
A Medical Assessor is required to reach a diagnosis – that is confirmed by paragraph 2.3 which states that “[t]he claimant will have a defined diagnosis that can be confirmed by examination.” Paragraph 1.12 provides that the assessment will be made on the basis of the condition, and not using the method set out in Chapter 18 of AMA 5 which assesses total pain-related impairment.
Mr Taylor’s chronic pain condition has been treated by Dr Jain and by the insertion of a spinal cord stimulator. Pace and its insurer accepted liability for that treatment.
Dr Jain diagnosed “chronic right upper limb pain of unknown etiology” in his report dated 10 February 2017. He ordered investigations to rule out organic causes, noting that no nerve damage had been identified. He said:
“There is a possibility that his electrocution has resulted in his neuropathic pain without any obvious nerve damage detected on investigations so far. There is a marked affect of pain on his mood, sleep and function and quality of life.”
Dr Jain said that those investigations did not reveal any “remarkable pathology to account for the current clinical picture.” He proposed a trial of a spinal cord stimulator, noting in his report dated 27 October 2017 that Mr Taylor has “ongoing right upper limb pain which is a neuropathic sounding pain with some dysesthesia in the upper limb.” In his report dated 12 April 2019, Dr Jain noted that Mr Taylor’s spinal cord stimulator was working well, though he still had low grade right upper limb pain.”
Dr A Rangaswamy who saw Mr Taylor on 22 January 2018 for a second opinion with respect to the trial of the spinal cord stimulator noted that he was being treated for neuropathic pain following an electrocution injury.
A/Prof Fearnside diagnosed an electrocution injury. He assessed Mr Taylor’s right shoulder and a neurological injury about which he said:
“There is no clear peripheral nerve injury as is typical in electrical injuries to the nervous system and I have made my assessment by analogy. Electrical injuries to the nervous system commonly do not conform exactly to anatomical pathways or structures. The best fit is an injury to the lower trunk of the brachia! plexus. There is no motor loss.”
Dr J O’Neill, a neurologist qualified for Pace, provided his opinion on a narrow basis – that there was no neurological injury. As the Medical Assessor pointed out, Dr O’Neill went on to misstate A/Prof Fearnside’s conclusion.
There is no dispute that Mr Taylor suffered an injury to his right shoulder and the consequences of the injury as a whole clearly involved more than the loss of the range of movement of his shoulder. The Medical Assessor did make a diagnosis of chronic pain condition. The fact that the condition did not fulfil the strict criteria for diagnosis of CRPS under the Guidelines does not mean that there was no diagnosis. Mr Taylor suffered a chronic pain condition as a result of an electrocution injury.
The medical literature indicates that neurological injury due to an electrical shock can manifest in several ways, sometimes affecting more than one of the peripheral nerves. A recent example is an article by KG Yiannopoulos and others ‘Neurological and Neurourological Complications of Electrical Injuries’ in 2021 55 (1) Polish Journal of Neurology and Neurosurgery[4] at 12 – 23.
[4] >
The authors state:
“Mononeuropathy is the most frequent peripheral neuropathy following an electrical injury and is usually due to low-voltage electrical injury (which comprises 80% of peripheral neuropathies following an electrical injury). The cause may be electrical injury directly to the nerve, or compression neuropathy secondary to post-injury oedema [18]. Because electrical injuries are frequently occupational, the involvement of at least one hand in the task related to injury is usual. Consequently, median nerve compression and carpal tunnel syndrome are particularly possible [19]. Unfortunately, simultaneous immediate median and ulnar nerve palsy may also occur in the exposed upper limb while trineural (median, ulnar, and radial) injury has been also reported after a low voltage electrocution [20]. Additionally, unilateral ulnar and simultaneous external popliteal sciatic nerve mononeuropathy have been reported.” [5]
[5] At p 21.
The Medical Assessor did not describe the injury as an electrocution injury though his reference to jerking suddenly backwards as a result of the electric shock conveys that he considered this was the mechanism of injury.
Method of assessment
If a diagnosis of electric shock neurological injury was accepted, without injury to any specific peripheral nerve being identified, it is appropriate to assess impairment based on an analogous condition, in the absence of an impairment rating for ‘electrical shock neurological injury’ in AMA 5 or the Guidelines. Because the injury did not result in damage to a specific peripheral nerve, the criteria for using paragraph 1.23 were met. The paragraph leaves the choice of analogous condition to the assessor.
The analogous condition chosen by the Medical Assessor was loss of the median nerve below the forearm. He explained why he chose that method of assessment and his reasons are valid.
The choice made by the Medical Assessor was open to him in the exercise of his clinical judgement. He explained It would also have been possible to use the analogy of the lower trunk of the brachial plexus as A/Prof Fearnside did.
As Pace noted, the Medical Assessor used Tables 16-10 and 16-15 of AMA 5 to make his assessment. Pace argued that was inappropriate because Table 16-10 is not to be used for pain in the distribution of a nerve that has not been injured except in cases of CRPS. That submission ignores the fact that the Medical Assessor was aware that there was no injury to the median nerve but was assessing by reference to an analogous condition.
The Medical Assessor explained his findings. No issue was taken with respect to the grading he adopted and no suggestion is made that it was not consistent with the exercise of his clinical judgement, taking into account Mr Taylor’s presentation on the day of assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 March 2021 should be confirmed.
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