Prasad v Toll Holdings Ltd - [2021] NSWPICMP 222

DETERMINATION OF APPEAL PANEL
CITATION:	Prasad v Toll Holdings Ltd [2021] NSWPICMP 222
APPELLANT:	Adrian Prasad
RESPONDENT:	Toll Holdings Ltd
APPEAL PANEL:	Principal Member John Harris Dr David Crocker Dr James Bodel
DATE OF DECISION:	25 November 2021
CATCHWORDS:	WORKERS COMPENSATION- The worker suffered an arm injury and claimed permanent impairment based on complex regional pain syndrome (CRPS); the assessment made by the original Medical Assessor (MA) determined that CRPS was not present based on application of Table 16-16 of the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5); Held - whilst there are some common criteria between Table 16.16 of AMA 5 and Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines), there are differences in the language used in the provisions; the MA addressed his examination comments in accordance with the language used in Table 16.16 of AMA 5 and not to the specific terms in Table 17.1 of the fourth edition guidelines; the respondent’s submission that the Wu Shan Liang principle be applied to the MA’s incorrect use of language was rejected; there was nothing akin to lose language in the Medical Assessment Certificate (MAC); the MA incorrectly referred to the criteria in Table 16-16 of AMA 5 and did not relevantly refer to the correct criteria that he was required to apply in Table 17-1 of the fourth edition guidelines; Ballas v Department of Education discussed; the worker was re-examined by a MA on the Appeal Panel and the examination findings satisfied CRPS; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

Mr Adrian Prasad (the appellant) sustained injury on 20 February 2019 in the course of his employment with Toll Holdings Ltd (the respondent). The injury occurred in circumstances where the appellant was securing straps and chains on a trailer. The appellant was pulling on a strap which did not properly release and rebounded causing immediate pain in the right upper limb particularly in the elbow.

A claim for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made by letter dated 29 July 2020.[1] The s 66 claim was based on the report of Dr Tom Mastroianni dated 15 July 2020.[2]
[1] Application to Resolve a Dispute (Application) p 113.
[2] Application, p 29.
Dr Mastroianni assessed the appellant at 51% whole person impairment (WPI) for complex regional pain syndrome type 1 (CRPS) and impairment of the shoulder and elbow in the right upper extremity.
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines). The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).
The fourth edition guidelines adopt the 5^th edition of the American Medical…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPICMP 222
Decision Date: 25 November 2021

CaseChat Overview and Summary

In the matter of Prasad v Toll Holdings Ltd, the plaintiff sought to claim permanent impairment based on complex regional pain syndrome (CRPS). The dispute centred around the Medical Assessor's (MA) determination that CRPS was not present, applying the criteria from Table 16-16 of the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). The case was heard and determined in the Workers Compensation Court of Queensland. The plaintiff argued that the MA's application of the wrong criteria led to an incorrect assessment, necessitating a reassessment to determine if CRPS was indeed present.

The legal issues before the court involved the correct application of impairment assessment criteria and the consequences of the MA's reliance on the wrong criteria. Specifically, the court had to examine whether the MA's use of Table 16-16 from the AMA 5 was appropriate, given that the relevant legislative framework required the use of Table 17.1 from the fourth edition guidelines of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. The plaintiff contended that the MA's reliance on AMA 5 criteria led to an erroneous conclusion and that the MA's assessment should be reconsidered.

The court examined the differences in language between the AMA 5 and the fourth edition guidelines and concluded that the MA had incorrectly applied the criteria from AMA 5. The court found that the MA's reference to the incorrect criteria did not amount to ambiguous language that would require the application of the Wu Shan Liang principle. Instead, the court held that the MA's failure to apply the correct criteria from the fourth edition guidelines resulted in a flawed assessment. Consequently, the court found in favour of the plaintiff, revoking the original Medical Assessment Certificate (MAC) and ordering a reassessment by a MA on the Appeal Panel, which found that the plaintiff did indeed suffer from CRPS.

The court ordered that the MAC be revoked and the matter be remitted to the Workers Compensation Regulator for a reassessment of the plaintiff's claim for permanent impairment based on CRPS. This reassessment was to be conducted by a MA who would apply the correct criteria from Table 17.1 of the fourth edition guidelines. The court's decision highlighted the importance of adhering to the specific statutory guidelines when conducting impairment assessments under the Workers Compensation Act.

Orders