Peppernell v Thirlmere Hotel Pty Ltd
[2023] NSWPICMP 448
•DATE OF AMENDMENT:
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Peppernell v Thirlmere Hotel Pty Ltd [2023] NSWPICMP 448 |
| APPELLANT: | Christopher Peppernell |
| RESPONDENT: | Thirlmere Hotel Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | David Crocker |
| DATE OF DECISION: DATE OF AMENDMENT: | 4 October 2023 2 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant worker alleged error by the Medical Assessor (MA) in the failure to rate impairment for Chronic Regional Pain Syndrome Type 1 (CRPS1; the Appeal Panel was satisfied as to error because the physical findings of the MA were not consistent with his reasoning; the Appeal panel considered that a re-examination was necessary; criteria for CRPS 1 satisfied on re-examination; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 May 2023 Mr Christopher Peppernell lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tomassino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
4 April 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was 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.
Rule 128 of 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (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 Procedural Direction PIC7.
The appellant sought that he be re-examined by a Medical Assessor member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel was satisfied as to error for the reasons explained below. Absent a finding of error the Appeal Panel has no power to require a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statements of the appellant and his partner dated 27 April 2023;
(b) a screenshot from the Encyclopaedia of Pain of the definition of Hyperthia, and
(c) subsequent to the appeal being lodged a late document being a report of
Dr Helou dated 28 July 2023.The additional evidence was objected to by the respondent.
The Appeal Panel has declined to admit the late evidence. As to the statement evidence the appellant was able to give a full history to the Medical Assessor. There is presumption of regularity in the conduct of the assessment process. As to the dictionary definition, it is not required. As to the further report, it is prejudicial to the respondent to allow evidence that could have been obtained and was available to be obtained prior to the medical assessment taking place. The Commission’s rules and case management guidelines are very clear that it operates a front ended loaded system which is designed to afford procedural fairness to both parties.
EVIDENCE
Documentary 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.
Further medical examination
Medical Assessor David Crocker of the Appeal Panel conducted an examination of the worker on 29 August 2023 and reported to the Appeal Panel.
Medical Assessment Certificate
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.
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 matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 2 December 2021
· Body parts/systems referred: Left lower extremity
Right lower extremity
Lumbar spine
· Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Left lower extremity | 2/12/2021 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 5% | Nil | 5% |
| Right lower extremity | 2/12/2021 | Chapter 3 Pages 13-23 | Chapter 17 Pages 523 to 564 | 4% | Nil | 4% |
| Lumbar spine | 2/12/2021 | Chapter 4 Page 24-29 | Chapter 15 Page 384 Table 15-3 | 0% | Not applicable | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
The worker appealed. The appeal concerns the left lower extremity and the Medical Assessor’s failure to rate impairment for Chronic Regional Pain Syndrome Type 1 (CRPS1). In this regard, the appellant complained on appeal in summary as follows:
(a) the Medical Assessor did not assess the worker in accordance with the Guides;
(b) the Medical Assessor failed to reconcile his own findings with respect to his conclusions;
(c) the Medical Assessor did not adequately set out his findings or did not adequately explain his findings, and
(d) the Medical Assessor did not adequately expose his reasoning.
In summary, Thirlmere Hotel Pty Ltd (the respondent) submitted on appeal that the Medical Assessor did not make an assessment on the basis of incorrect criteria and did not make a demonstrable error and the MAC should be confirmed.
The Appeal Panel was satisfied as to error in the Medical Assessor’s assessment because there is confusion in his reasoning compared with his physical findings, namely he found sensory loss at top of foot (irritable to light touch) but then concluded there was no sensory loss.
His findings on physical examination were as follows:
“Examination of the lower limbs reveals normal sensation to light touch and sharp stimuli, normal reflexes, normal power, normal straight leg raise and negative nerve root tension signs.
There was 1cm of wasting of the left calf.
Inspection of the lower limbs reveals a reddish tinge over the arch of the left foot over the metatarsals, and that area is warm compared to the non-injured foot. There is slight swelling of the dorsum of the left foot. There were no trophic changes in the feet. The appearance of the skin texture is the same in both feet with normal hair growth. When testing for sensation to light touch, there was no discomfort or abnormal sensation.
There was slight increased sensitivity in the left foot to pinprick but no hyperaesthesia.
I was able to palpate the legs and feet and there was no discomfort except for tenderness over the right ankle joint and tenderness over the metatarsal joints in the left foot.”
His reasoning for failing to rate CRPS1 in respect of the left lower extremity was as follows:
“The claimant has chronic pain in the left foot and the continual pain is disproportionate to any causal event.
The claimant continues to report vasomotor, sudomotor, motor and trophic changes in the left foot. He describes no paraesthesia or allodynia present, but reported this in the past.
On examination there is no hyperalgesia to pinprick and no allodynia to light touch, deep somatic pressure or joint movements.
He has oedema in the foot and colour change, and temperature asymmetry as well as restricted movements.
In accordance with Table 17-1 in the PIC Guidelines the diagnostic criteria for complex regional pain syndrome, the claimant must satisfy the criteria in Sections 1, 2, 3 and 4.
Section 3 states that at least one sign has to be displayed in each category at the time of evaluation.
The claimant satisfies the criteria in Section 1 with continuing pain, and also criteria in Section 2 where he reports symptoms in sensory, vasomotor, sudomotor/oedema, and motor/trophic categories.
He satisfies the criteria in Section 4 as there is no other diagnosis that better explains the signs and symptoms, however in Section 3 he meets the criteria for vasomotor, sudomotor/oedema and motor/trophic categories but does not satisfy the sensory category.
I could not elicit either hyperalgesia and /or allodynia to light touch, deep pressure or joint movement. He therefore does not meet the criteria in the sensory category as there were no clinical signs.
As the criteria for sensory category in Section 3 is not met, the claimant does not meet the criteria of CRPS 1 as per the PIC Guidelines, 4th Edition, page 81, table 17-1.”
In these circumstances, the Appeal Panel considered that a re-examination of the appellant was necessary and Medical Assessor David Crocker, a member of the Appeal Panel was appointed to conduct the re-examination. The re-examination took place on 29 August 2023 and Medical Assessor David Crocker reported to the Appeal Panel as follows:
REPORT OF THE EXAMINATION BY APPROVED MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-W718/23
Appellant: Mr Christopher Peppernell
Respondent: BBW Lawyers for Hotel Employers Mutual Ltd
Examination Conducted By: Dr David Crocker
Date of Examination: 29.8.23
The worker’s medical history, where it differs from previous records
Mr Peppernell was given the opportunity of reviewing the history as outlined in the Medical Assessment Certificate dated 4.4.23 as prepared by Dr Tommasino Mastroianni.
He did not comment in relation to substantial or detailed issues by way of content. He commented upon a minor typographical error.
Additional history since the original Medical Assessment Certificate was performed
I took the opportunity of seeking/clarifying the medical history to facilitate the current assessment and re-examination.
It is evident that the region of the left lower extremity and, in particular, whether complex regional pain syndrome Type 1 is present is the primary component of the dispute.
With respect to this region, Mr Peppernell confirmed the date of injury as 2.12.21.
He reported that he has been experiencing swelling to the dorsal aspect of the left foot. This varies in degree. He stated that swelling is more prominent following various triggers that he included as walking, sitting, type of shoes that are worn and “stressful thoughts”.
He stated that there has been “discolouration” of the left foot on an intermittent and daily basis. This reportedly can extend just above the ankle. He commented that this region may appear “orange and purple” and “spotty” pertaining to these colours.
He stated that he has experienced sweating on a few occasions per day affecting both feet.
He reported that the left foot may appear “a lot colder” than the right.
He describes “constant pain” affecting the left lower extremity, in particular, extending proximally to knee level and sometimes to the thigh. This may be “strong” at times, especially in relation to the foot.
He stated that the region can be “very sensitive” to touch. Light touch can reportedly be very “hurtful”. He also describes an “itchy” sensation at times.
Mr Peppernell reported that he considers that the toenails of the left foot grow more quickly than pertaining to the contralateral side.
He reported that he considers that he is depressed. He feels frustrated by his limitations and medical condition.
Aspects relating to Mr Peppernell’s current treatment were discussed. Oral medication includes Lyrica and CBD oil.
He is attending his General Practitioner approximately on a monthly basis.
He attends Dr Trudi Richmond, Pain Consultant of Camden, every few months.
He is not currently utilising topical creams.
He is attending a Psychologist on a monthly basis.
He has input from an Exercise Physiologist approximately on a fortnightly basis. He is not currently attending a Physiotherapist.
With respect to activities of daily living, he states that his sleep is “terrible”. This is reportedly contributed to by pain and “bad dreams”. He has limitations in relation to his sitting and standing postures.
He reports that he has a limping gait.
He indicated that he endeavours to assist in relation to household chores but has to have frequent breaks.
He has reported difficulty with more extended driving. I note that he has access to an automatic motor vehicle.
With respect to aspects of personal care, he stated that he endeavours to wear slip on shoes. He indicated that he needs to be careful with his lower limbs when dressing. He reported that he frequently requires assistance with showering.
With respect to other aspects of the medical history, he stated that he has had a weight gain of approximately 10kg. It has been noted that contained in the General Practitioner case notes that Mr Peppernell has been diagnosed with the inherited condition of Birt-Hogg-Dubé syndrome. This is also the case in relation to his brother and father.
Mr Peppernell is married. There are nil children.
He stated that he enjoys painting and drawing. He had previously engaged in ball games with his nephews and brother-in-law.
Findings on clinical examination
Masks were mutually worn throughout the consultation and in the adjacent waiting room area.
Mr Peppernell was a cooperative man who appeared to experience variable discomfort with ambulation and positioning for the physical examination.
He was informed that I would require his full cooperation but that I would cease or modify any manoeuvres that were particularly distressing for him.
His temperature was 36.9°C.
The weight was 81kg, lightly clothed, with a height of 173cm in bare feet. According to Nutrition Australia, the healthy weight range for an Australian of this height is 55-74kg.
Mr Peppernell exhibited a limping gait when observed walking within the confines of my office.
Girth measurements within the lower limbs were approximately as follows: 46.5cm (right thigh); 46.5cm (left thigh); 36.5cm (right calf); 36cm (left calf).
There was satisfactory unrestricted active range of motion with respect to both knees.
Active range of motion was assessed on multiple occasions with use of a goniometer of both ankles/hindfeet with maximal findings noted as follows:
| Ankle Movements | Right | Left |
| Dorsiflexion (extension) | 20° | 10° |
| Plantarflexion | 45° | 30° |
| Hindfoot Movements | Right | Left |
| Inversion | 30° | 30° |
| Eversion | +5° | -5° |
Active range of motion was also assessed with respect to the great toes in a similar manner with maximal findings noted as follows:
Toe Movements
Right
Left
1st metatarsophalangeal joint
Dorsiflexion (extension)
Flexion
Interphalangeal joint
Flexion
40°
25°
10°
35°
15°
5°
There appeared to be normal symmetric active range of motion in relation to the other toes of both feet.
Upon general inspection, the left foot appeared plethoric/”reddish” and mottled. This was not the case pertaining to the contralateral side.
The left foot was cooler to touch as compared to the contralateral side. A transdermal thermometer device confirmed this with a finding of a temperature of 32.6°C relating to the left foot and that of 34.4°C to the right.
I could not discern abnormalities or asymmetry with respect to the appearance of the toenails, hair growth or the presence of sweating.
Diffuse tenderness was evident with light touch and single and dual point pressure testing pertaining to the left lower leg, foot and ankle. It was evident that this created an unpleasant sensation for Mr Peppernell.
There was also mild tenderness with palpation pertaining to the right ankle and hindfoot.
Results of any additional investigations
I did not have the opportunity of inspecting radiological investigations at the time of the assessment.
Determination of permanent impairment
It is evident that consideration needs to be given as to the presence or otherwise of a complex regional pain syndrome Type 1 affecting the left lower extremity.
Reference is required to Chapter 17 of the SIRA Workers Compensation Guidelines.
This outlines that the following requirements to be satisfied:
· 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:
oApply the diagnostic criteria for complex regional pain syndrome Type 1 (Table 17.1).
With respect to the above, based upon the current assessment, it is considered that all of the relevant criteria contained in Table 17.1 have been identified that would allow this diagnosis to be made (see below).
It is evident that this diagnosis has been made by multiple other clinicians which date back for a period of greater than one year. It is apparent that three medical practitioners have made this diagnosis based upon review of the medical evidence. It is considered that other possible diagnoses have been excluded.
With respect to the diagnostic criteria contained in Table 17.1 also see below.
Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2 outlines the following:
1. Continuing pain which is disproportionate to any causal event – this has been clearly reported.
2. Must report at least one symptom in each of the four following categories:
• Sensory: Reports of hyperaesthesia and/or allodynia.
• Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry.
• Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry.
• Motor/trophic: Reports of increased range of joint motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin).
3. Must display at least one sign at time of evaluation in all of the following four categories:
• Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement).
• Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes.
• Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry.
• Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin).
4. There is no other diagnosis that better explains the signs and symptoms.
In relation to the criteria contained above, I will address these in turn.
With respect to the four components related to symptomatology, please note the following:
Mr Peppernell reports symptoms consistent with hyperalgesia and allodynia (sensory). He also reports temperature asymmetry and colour changes affecting the left foot (vasomotor). There are also reported changes with respect to oedema asymmetry and sweating (sudomotor/oedema). He has also reported limitation with range of motion pertaining to the left lower extremity and nail changes (motor/trophic).
With respect to the clinical signs as documented above, please note the following:
It is considered that the clinical findings were consistent with hyperalgesia and allodynia (sensory). There was evidence of temperature and skin colour asymmetry (vasomotor). There was clear evidence of oedema affecting the left foot and ankle (sudomotor/ oedema). I did not observe sweating being evident at the time of the assessment as an additional feature beyond that of oedema. There was clear evidence of limitation with active range of motion affecting regions within the left lower extremity (motor/trophic). Hair and nail changes were not observed.
It is considered that the clinical findings are not better explained by diagnoses other than complex regional pain syndrome Type 1.
Given the above, it is appropriate that a whole person impairment is undertaken relating to the clinical findings pertaining to the disputed region of the left lower extremity.
When considering limitation with active range of motion, a 9% lower extremity impairment is determined relating to the ankle/hindfoot. A lesser potential impairment is evident in relation to the contralateral side, however, this cannot be considered as “normal” in this case and therefore, is not deducted.
With respect to the left great toe, a 2% lower extremity impairment is determined. A similar finding is observed in relation to the contralateral side. In view of complaints also present affecting the right lower extremity, it is not appropriate that a deduction is made for this.
With respect to the presence of CRPS Type 1 and reference to Table 16-10a (Chapter 16, pg 482, AMA 5), it is considered that Grade 2 pertaining to sensory deficits is appropriate. This has a range of 61-80%. In Mr Peppernell’s case, it is considered that a 65% lower extremity impairment is appropriate. Chapter 17 indicates that a nerve value multiplier is not to be utilised with respect to a determination.
When the left lower extremity impairments of 9%, 2% and 65% are combined, a final lower extremity impairment of 69% is determined which converts to 28% WPI.
It is considered that there is nil evidence of a pre-existing injury or condition that needs to be taken into account by way of contributory impairment that would necessitate any deductions in relation to the above.
It is evident that the other impairments pertaining to the right lower extremity and lumbar spine have not been disputed. As such, the following table reflects this inclusive of the current finding with respect to impairment relating to the left lower extremity.
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Left Lower Extremity | 2/12/21 | Chapter 3, pp 13-23; Chapter 17, Table 17.1, pp 80-82 | Chapter 17, 17.2f, Tables 17-11 – 17-14, pp 533-538; Chapter 16, 16.5, Table 16-10, pp 486-488; Table 17-3, pg 527 | 28% | ¾ | 28% |
| 2. Right Lower Extremity | 2/12/21 | Chapter 3, pp 13-23 | Chapter 17, 17.2f, Tables 17-11 – 17-14, pp 533-538 | 4% | ¾ | 4% |
| 3. Lumbar Spine | 2/12/21 | Chapter 4, pp 24-30 | Chapter 15, 15.4, Table 15-3, pp 384-388; DRE I | 0% | ¾ | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 31% | |||||
Signed:
Date: 29.8.23
The Appeal Panel adopts the report and findings of Medical Assessor Crocker. On this basis the MAC will be revoked and a new MAC issued.
For these reasons, the Appeal Panel has determined that the MAC issued on
4 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W718/23 |
Applicant: | Christopher Peppernell |
Respondent: | Thirlmere Hotel Pty Ltd |
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 Medical Assessor Tommasino Mastroianni 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Left Lower Extremity | 21/2/21 | Chapter 3, pp 13-23; Chapter 17, Table 17.1, pp 80-82 | Chapter 17, 17.2f, Tables 17-11 – 17-14, pp 533-538; Chapter 16, 16.5, Table 16-10, pp 486-488; Table 17-3, pg 527 | 28% | ¾ | 28% |
| 2. Right Lower Extremity | 21/2/21 | Chapter 3, pp 13-23 | Chapter 17, 17.2f, Tables 17-11 – 17-14, pp 533-538 | 4% | ¾ | 4% |
| 3. Lumbar Spine | 1/2/21 | Chapter 4, pp 24-30 | Chapter 15, 15.4, Table 15-3, pp 384-388; DRE I | 0% | ¾ | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 31% | |||||
0
2
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