Prasad v Toll Holdings Ltd

Case •

[2021] NSWPICMP 222

•

25 November 2021
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 5th 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

  1. 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.

  1. 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.

  2. 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.

  3. 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).

  4. The fourth edition guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[3]

    [3] Clause 1.1 of the fourth edition guidelines.

  1. The respondent qualified Dr Gregor Bruce to assess the appellant. Dr Bruce opined that the appellant did not meet the diagnostic criteria for CRPS.[4]

    [4] Reply, p 57.

  1. The appellant then commenced proceedings in the Personal Injury Commission (the Commission) seeking permanent impairment compensation. The matter was listed before the Commission when the Member referred the assessment of the right upper extremity to a Medical Assessor for assessment.

  2. The assessment was referred to Medical Assessor Ian Meakin, who examined the appellant and provided the Medical Assessment Certificate dated 19 May 2021 (the MAC).

  1. The relevant findings made by the Medical Assessor pertinent to the various grounds of appeal are set out later in these Reasons.

  2. The respondent was assessed at 9% WPI of the right upper extremity for loss of range of movement of the shoulder and elbow. The Medical Assessor found that the appellant did not qualify as suffering from CRPS.

REASONS PROVIDED BY THE MEDICAL ASSESSOR

  1. The Medical Assessor examined the appellant on 10 May 2021. The examination proceedings included the following:[5]

“At the time of examination Mr Prasad was able to remove his long sleeved hoody jacket and shirt and was able to put them on although there was some difficulty getting his right arm into the jacket and I had to assist him.  However, at the time of observing him undressing and dressing there seemed to be a lesser discomfort exhibited than at the time of formal examination.

At the time of sensory examination one noted a complete hemi-paraesthesia over the whole of the right upper extremity up to and including the adjacent chest to the mid-line and down to the right nipple level extending around to the posterior thoracic region in a similar hemi-fashion.

At the time of today’s examination there was no evidence of tenderness over the medial or lateral epicondyle.  There was diffuse discomfort throughout the left shoulder, arm and elbow region to the mid-forearm.”

[5] MAC, p 5.

  1. The summary of injuries and diagnosis was as follows:[6]

    “Mr Prasad had a moderate injury to his right upper extremity during his working duties on 20 February 2019 with no past history to be considered.  His investigations suggest a minor soft tissue injury relating to the right shoulder and common extensor tendinosis on scan.

    There have been symptoms and signs documented by other specialist advisors early in the post traumatic history that suggested a diagnosis of Complex Regional Pain Syndrome and which led to various injection treatments with no improvement.  On examination today it is evident that a number of these clinical findings have not persisted through to the present time. 

    There is a continuing swelling of the right arm and forearm distal to a vigorously applied tennis elbow strap on the proximal forearm which, when released and observed over a period of 30 to 40 minutes, shows a significant decrease of the swelling.  At the time of my examination today, I found active loss of range of motion terminally of the right shoulder and right elbow but only minimal symptoms and signs which would not support a diagnosis of ongoing Chronic Regional Pain Syndrome.  

    It is my opinion that there has been a soft tissue injury to the right shoulder and the right wrist and the right elbow of a mild to moderate intensity with some ongoing discomfort.  The continuing partial sensory loss and hyperalgesia is completely non-anatomical.  It is my clinical opinion that the presence of the tennis elbow strap is only complicating the whole clinical picture but remains in place due to Mr Prasad’s insistence, although I urged him to continue to be reviewed in the very near future by his attending medical practitioner.”

    [6] MAC, p 6.

  1. The Medical Assessor assessed loss of range of movement of the right shoulder at 13% upper extremity impairment (UEI) and 2% UEI of the right elbow. This loss converted to 9% WPI.

  2. The Medical Assessor concluded that the appellant did not suffer from CRPS. After noting that CRPS is to be assessed in accordance with Chapter 17 of the fourth edition guidelines, the Medical Assessor turned to various provisions of AMA 5.  He stated:[7]

    “Item 16.5(e), page 49 of AMA 5 states that the hallmark of Complex Regional Pain Syndromes is that of a burning pain present without stimulation or movement that occurs beyond the territory of a single peripheral nerve and is disproportionate of the inciting event. The pain and is associated with specific clinical findings including signs of vaso motor, pseudo motor dysfunction, and late atrophic changes of all tissues and skin.   In the case of Mr Prasad, his characteristic of burning pain appears only to occur with physical external stimulation or movement.  It was certainly not occurring at the time of putting on his long sleeved hoody jacket.”

    [7] MAC, pp 7-8.

  3. The Medical Assessor then stated:

    “Table 16.16 outlines 11 criteria that require equal or greater than 8 to be present before the diagnosis is established.

    Vaso Motor Change: At the time of today’s assessment there is no asymmetrical skin colour or skin temperature noted and in my opinion the oedema in the right upper extremity noted to day is related to the secondary effect of the very tight tennis elbow strap and this was proven at the time of my assessment. 

    Pseudo Motor Change:    There is no evidence  of asymmetrical or pseudo motor change with no evidence of asymetrical dry skin or overtly moist skin. 

    There were no atrophic changes noted. There is no evidence of asymmetrical skin texture or soft tissue atrophy. 

    It was noted today that there was normal pulp in all fingers. 

    There is decreased passive range of motion due to pain. 

    There is no evidence of nail, hair or other skin changes. 

    There is no radiographic evidence of atrophic bone change or osteoporosis.

    The regional bone scan showed some diffuse hyperaemia of the right forearm of a mild form that can be consistent with Chronic Regional Pain Syndrome.

    The definition as set out in Item 16.16 of AMA 5 and the Guidelines is significantly not met.  It is also my opinion that the area of partial sensory deficit as outlined is non-anatomical.”

THE APPEAL

  1. On 1 June 2021, the appellant filed an Application to Appeal Against a Medical Assessment (the appeal) to the delegate of the Commission.

  1. On 18 June 2021, the respondent filed an Opposition to the Appeal.

  2. The WorkCover Medical Assessment Guidelines (the Guidelines) set out the practice and procedure in relation to appeals to Medical Appeal Panels under s 327 of the 1998 Act.

  1. The appellant claims that the medical assessment by the Medical Assessor should be reviewed based on the application of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act and/or that the MAC contains a demonstrable error pursuant to s 327(3)(d).

  2. On 21 July 2021, the President’s delegate determined that a ground of appeal was capable of being made out.

EVIDENCE

  1. The Appeal Panel (AP) has before it all the documents that were sent to the Medical Assessor for the original assessment and has referred to portions of the evidence and taken them into account in making this determination.

PRELIMINARY REVIEW

  1. The AP conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines.

  1. As a result of that preliminary review, the AP determined that the assessment was made on the basis of incorrect criteria.

  1. The appellant submitted that the AP could conclude that he suffers from CRPS1 although it is “likely the Panel would benefit from their own assessment”.[8]

    [8] Appellant’s submissions, [24].

  2. The respondent submitted that any error was “simply an ‘obvious error’ on the part of the Assessor by referring to a redundant table”[9] and the Medical Assessor should be asked to issue a replacement certificate.

    [9] Respondent’s submissions, [20].

  1. We reject the appellant’s submission that the matter could be assessed on the papers. The four criteria in Part 3 of Table 17.1 must be shown at the time “of the impairment evaluation”.[10] The AP was unable to determine the correct criteria for CRPS based on findings of an incorrect criteria made by the Medical Assessor. The matter cannot be currently assessed by applying historical findings made by treating and qualified doctors. CRPS is a fluctuating condition and can resolve. It is an incorrect submission that because a person displayed symptoms of CRPS at some historical point, then those symptoms will continue to be present at the current time.

    [10] See Table 17.1 of the fourth edition guidelines.

  2. That point is illustrated in the present matter because the appellant was complaining of and had been diagnosed with CRPS in the right lower limb. However, Dr Popoff noted in October 2020 that the CRPS in the lower limb had “settled’ and then “recurred”.[11]

    [11] Reply, p 118.

  3. We also reject the appellant’s submissions because there was medical evidence contrary to his assertion that he had CRPS. Dr Gregor Bruce did not diagnose CRPS when he examined the appellant in October 2020 although he recognised that the assessment was outside of his area of expertise and the doctor otherwise also incorrectly applied Table 16-16 of AMA 5.[12] To the extent that some of the examination findings of the Medical Assessor were relevant albeit addressing an incorrect test, they do not support a conclusion that the appellant then suffered from CRPS.

    [12] Reply, p 57.

  1. We reject the respondent’s submission because the AP cannot refer the matter back to the Medical Assessor to correct an obvious error. That power lies elsewhere. The power of the AP is restricted to either confirming the certificate or revoking it and issuing a replacement certificate.[13]

    [13] Section 328(5) of the 1998 Act.

  2. The correct approach was for the appellant to be re-examined by a specialist accredited in that speciality in accordance with the correct criteria. Accordingly, the AP determined that a re-examination was necessary and advised the parties that the appellant would be examined in-person by Medical Assessor Crocker, a member of the AP. Unfortunately, that examination was substantially delayed because COVID-19 restrictions prevented an
    in-person examination for some months.

  1. The AP also advised the parties that the examination would include an assessment of the loss of range of motion of the right shoulder and right elbow. Whilst we are conscious that there were no grounds of appeal contesting those assessments, an examination of CRPS in the right upper extremity requires an assessment of the various joints.[14] Accordingly, the reassessment of those body parts was required to avoid the prospect of inconsistent findings.

    [14] See the criteria under Table 17.1 which requires an assessment of “loss of joint motion”.

  1. The AP is otherwise required to reassess according to law: Drosd v Nominal Insurer.[15] That requirement meant that this could only be properly undertaken through a further examination.

    [15] [2016] NSWSC 1053.

GROUND OF APPEAL

Appellant’s submissions

  1. The appellant submitted that the assessment of CRPS was based on incorrect criteria because table 16.16 of AMA 5 was used rather than table 17.1 of the fourth edition guidelines. The medical assessor did not address the correct matters set out in Chapter 17 of the fourth edition guidelines. Reference was made to paragraph 17.5 of the fourth edition guidelines that specifically provides that table 16.16 of AMA 5 is replaced by table 17.1 of the fourth edition guidelines.

  2. The medical assessor’s comments on sensory symptoms were “extremely brief” and “failed to correctly consider whether or not the injured worker reported sensory symptoms”. This was asserted to be a denial of procedural fairness and a failure to comply with the guidelines.

  1. The Medical Assessor did not correctly consider all aspects of vasomotor symptoms and “did not consider whether there were skin colour changes present or skin asymmetry”.[16] In relation to the temperature changes it was “unclear how this was done”[17] and what device was used.

    [16] Appellant’s submissions, [15].

    [17] Appellant’s submissions, [21].

  1. The appellant submitted that the Medical Assessor did not consider sweating asymmetry and did not look for evidence of oedema and/or sweating.[18]

    [18] Appellant’s submissions, [16] and [22].

  1. The appellant otherwise submitted that there was clear evidence of sensory signs and motor/trophic changes.

Respondent’s submissions

  1. The respondent referred to the meaning of “incorrect criteria” as discussed by the Supreme Court at first instance in Campbelltown City Council v Vegan.[19]

    [19] [2004] NSWSC 1129 (Vegan) at [59] and [66]-[70].

  2. The respondent noted that the Medical Assessor referred to the fourth edition guidelines in his reasons and expressly stated that CRPS “is assessed using the method outlined in Chapter 17 of the Guides”.[20]

    [20] Respondent’s submissions, [12].

  1. The respondent observed that the Medical Assessor “noted some further guidance” about the diagnosis of CRPS by referencing paragraph 16.5e of the AMA 5.[21]

    [21] At page 8 of the MAC the Medical Assessor referred to p 49 of AMA 5 which was a topographical error.

  1. The respondent submitted:[22]

“The above demonstrates that when the totality of the Certificate is fairly read and considered, it is clear that the criteria within table 17.1 [has] been considered and the appellant’s injury, along with the resultant WPI, assessed with reference to those criteria; it was simply the case though that a diagnosis of CRPS was not warranted. To illustrate the point, the table below includes the diagnostic indicators listed at table 17.1 and symptoms, including where they are noted/considered in the Certificate.”

[22] Respondent’s submissions, [15].

  1. The respondent provided a table purporting to summarise the various findings made by the Assessor with reference to the criteria set out in table 17.1 of the fourth edition guidelines. It submitted that whilst the Medical Assessor “has incorrectly referred to Table 16.16, his conclusion that the appellant does not suffer CRPS was nonetheless done by applying the correct criteria”. This was “simply an example of loose language, falling within the class of variance considered permissible”[23] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang[24].

    [23] Respondent’s submissions, [17].

    [24] (1996) 185 CLR 259 at pp 271-272.

  2. The appellant’s submissions that other doctors have assessed CRPS is “prone to mislead” and “irrelevant” as assessment of impairment is based on the appellant’s presentation on the day of the assessment.[25]

    [25] Respondent’s submissions, [19].

  1. The respondent referred to the meaning of demonstrable error as discussed by the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd[26]. It submitted that any error was not material as the Medical Assessor ultimately determined that the appellant’s condition was best described as pain from a soft tissue injury and not CRPS.[27]

REASONS

[26] [2018] NSWCA 324 (Vannini) at [77]-[82] per Gleeson JA.

[27] Respondent’s submissions, [23].

  1. As previously noted, the fourth edition guidelines prevail over AMA 5.

  2. Chapter 17 of the fourth edition guidelines expressly provides that Chapter 18 of AMA 5 is excluded.[28] Paragraph 17.4 of the fourth edition guidelines also excludes Table 16.16 of AMA 5. 

    [28] Paragraph 17.2 of the fourth edition guidelines.

  1. Table 16-16 of AMA 5 is headed “Objective Diagnostic Criteria for CRPS” and contains 11 clinical and radiographic signs. The table provides that a diagnosis of CRPS is met if eight or more signs are established.

  1. The diagnostic criteria for CRPS are contained in Table 17.1 of the fourth edition guidelines which contains four sections, all of which must be satisfied. Table 17.1 contains the following criteria:

“1.     Continuing pain, which is disproportionate to any causal event.

2.     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.

• Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry.

• Motor/trophic: Reports of decreased 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.

*A sign is included only if it is observed and documented at time of the impairment evaluation.”

  1. The Medical Assessor correctly referred to the assessment of CRPS as based upon chapter 17 of the fourth edition guidelines. However, he then incorrectly addressed the 11 criteria contained in Table 16.16 of AMA 5.

  2. Whilst there are some common criteria between Table 16.16 of AMA 5 and Table 17.1 of the fourth edition guidelines, there are differences in the language used in the provisions. It is clear from the language used by the Medical Assessor that he has 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.

  1. Part 2 of Table 17.1 refers to the worker reporting “at least one symptom in each of the four following categories”. The symptoms in Part 2 are not restricted to the time of the examination process as the respondent submitted. This is not in accordance with the plain meaning of the words in the provision which provide that the worker “must report at least one symptom in each of the four following categories”. There is no reason why the reporting of these symptoms cannot be contained in other medical reports where such a report has been made. Clearly Part 2 of Table 17.1 relates to the previous reporting of symptoms and signs whereas Part 3 relates to present symptoms and signs. That interpretation in consistent with the line below the table which refers to signs which must be “observed and documented at [the] time of the impairment evaluation”.

  1. For that reason, we reject the respondent’s submissions that there was no evidence that satisfied the Part 2 of Table 17.1.

  1. There were various references in the medical reports which satisfied Part 2 of Table 17.1.

  1. Dr Mastroianni provided a report dated 15 July 2020.[29] The doctor recorded a history of constant pain in the arm described as a burning sensation and random electric shock. On examination the doctor found hyperaesthesia in the right arm, dry skin, mottling, discoloration and restricted shoulder and arm movements and diagnosed CRPS.

    [29] Application, p 29.

  1. Dr James Yu, Pain Physician, treated the appellant and provided a report dated 24 February 2020.[30] The doctor noted allodynia and hyperalgesia throughout the length of his right upper limb, swelling of the right hand with a dusky discolouration and warmth compared to his left hand.

    [30] Application, p 51.

  1. In January 2020, Dr Ivan Popoff, surgeon, observed quite marked pain avoidance behaviour, hand swelling, temperature and colour change affecting the right limb.[31]

    [31] Application, p 66.

  1. Dr Faiz Noore, Consultant Psychiatrist and Physician, diagnosed CRPS although the brief reports do not include the signs and symptoms supporting this diagnosis.[32]

    [32] Reply, pp 112 and 116.

  1. Dr Jane Standen, Pain physician was qualified by the respondent and provided a report dated 14 October 2020.[33] Dr Standen diagnosed CRPS type 1. The doctor recorded a history of burning pain extending down the right upper extremity and associated disability. Examination findings included generalised erythema of the right upper limb compared with the left, notable sweating in the right upper limb and no hair or growth changes in the right hand compared with the left hand. Sensory examination showed hyperalgesia to light brush over the right upper limb.

    [33] Reply, p 44.

  2. The appellant provided an extensive statement dated 10 February 2020[34] where he details the extensive pain and disabilities in the right upper limb.

    [34] Application, p 2.

  1. However, critically Part 3 relates to four categories which must be observed and documented at the time of the examination. Those four categories are Sensory, Vasomotor, Sudomotor/edema and Motor/Trophic. Those categories differ in their language from the criteria provided by Table 16.16 of AMA 5.

  1. The respondent submitted that the error made by the Medical Assessor was simply “an example of loose language” permissible in accordance with the principles articulated in Wu Shan Liang. It submitted that this principle has been applied to excuse other errors referring to Workers Compensation Nominal Insurer v Arcaba.[35]

    [35] [2016] NSWSC 1647 (Arcaba).

  1. In Arcaba the “error” was described by the Court as “loose language [and] nothing flows from it”. Indeed, the Court went further and stated that it did not reflect well on the insurer to “identify as errors in the decision now sought to be reviewed the matters described as errors 1 and 2 which lead nowhere and cannot result in a different outcome”.[36] It was in that context that the Court referred to and applied the principle articulated in Wu Shan Liang.

    [36] Arcaba at [35].

  1. The Wu Shan Liang principle was discussed by the Court of Appeal in Ballas v Department of Education[37]. Relevantly Bell P and Payne noted that the principle “cannot be taken too far nor invoked so as to mask jurisdictional error that emerges in, or from, a decision-maker’s reasons”.[38]

    [37] [2020] NSWCA 86 (Ballas).

    [38] Ballas at [79].

  1. There was nothing akin to loose language in the MAC. The Medical Assessor 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.

  1. In these circumstances there has been a clear application of incorrect criteria as discussed by the Court of Appeal in Marina Pitsonis v Registrar of the Workers Compensation Commission of New South Wales[39] applying Basten JA in Vegan.

    [39] [2008] NSWCA 88 (Marina Pitsonis) at [40]-[42], McColl and Bell JJA (as their Honours then were) agreeing.

  1. Given our conclusion it is unnecessary to address the issue of demonstrable error. However, we mention and reject a further appellant submission.

  1. The appellant submitted that there was error because it was “unclear” and the Medical Assessor did not state how he measured temperature changes.   

  1. There is a presumption of regularity that the Medical Assessor has performed such tests as might be required: Jones v Registrar of the Workers Compensation Commission (Jones)[40]. A similar presumption arises with respect to regularity which affects administrative action: Bojko v ICM Property Services Pty Ltd[41] and Jones[42]. Relevantly in Jones the Court stated:[43]

“The second defendant clearly made a clinical examination of the plaintiff and he stated in his certificate his finding that “the range of motion in the cervical spine was symmetrical”. There is a presumption of regularity that the AMS had performed such tests as might be required to determine whether the range of motion in the cervical spine was symmetrical or asymmetrical. The medical science the second defendant was applying was not controversial and his reasons were not required to be extensive or detailed.”

[40] [2010] NSWSC 481 at [50].

[41] [2009] NSWCA 175 at [36] per Handley JA, with whom Allsop and Giles JJA agreed.

[42] At [36].

[43] AT [50].

  1. In our view it would be an absurdity and create an unjust requirement for a Medical Assessor to state how precisely he or she undertook a task which was not controversial.

REASSESSMENT

  1. The appellant was re-examined by Medical Assessor Crocker on 16 November 2021. The Medical Assessor’s report was in the following terms:

    “Prior to the assessment, Mr Prasad demonstrated proof of having undergone double vaccination in relation to the COVID-19 virus.  He also demonstrated that he had undergone a PCR nasopharyngeal swab test on 14.11.21 with the result proving negative.  Mr Prasad stated that he has not recently suffered from a fever, cough or other respiratory complaints.  He was found to be afebrile by means of use of a transdermal thermometer device.   Surgical masks were mutually worn throughout the consultation and within the waiting room area.

    The consultation was conducted with Mr Prasad unaccompanied.

    1.     The worker’s medical history, where it differs from previous records

    Mr Prasad was initially given the opportunity of reviewing the Medical Assessment Certificate that had been prepared by Dr Ian Meakin, Medical Assessor, at the request of the Personal Injury Commission/Workers Compensation Division.  In particular, the history outlined was inspected.  Mr Prasad did not raise any particular issues in relation to this.

    He confirmed that there has been nil paid employment since approximately June 2019. 

    With respect to past medical history/general health, he confirmed that he had been diagnosed as suffering from epilepsy at approximately 16 years of age.  This is managed by means of the oral agents, Keppra and Tegretol.

    Mr Prasad reported that he has experienced pain to the region of the low back and right lower extremity for approximately two years.  I have noted that an MRI examination of 2019 had demonstrated changes consistent with an anular tear at L5/S1. 

    He reported that at approximately 18 years of age, he had sustained fractures of the 4th and 5th metacarpal bones of the left hand that had required open reduction and internal fixation. 

    He stated that he had sustained a fall on steps approximately one month prior to this assessment and had developed a haematoma that required surgical drainage to the region of the coccyx under general anaesthesia.

    He has also undergone banding for the condition of haemorrhoids.

    In relation to social history/family history, Mr Prasad reported that he moved with his family to Brisbane in March 2021.

2.      Additional history since the original Medical Assessment Certificate was performed

Aspects relating to Mr Prasad’s physical complaints were reviewed, in particular, pertaining to recent months.

He reports that he is continuing to experience constant “burning” pain to the regions of the right side of the neck, right shoulder girdle and right upper limb to a diffuse distribution.  Pain also extends to the right upper anterior chest wall.  He also indicates that he experiences shooting pain extending to the right upper limb on a number of occasions per day.

He reports unpleasant sensation if the upper limb if touched.  There is also a feeling of “pins and needles” to a diffuse distribution.

There is marked limitation with active range of motion with respect to the right shoulder girdle and multiple joints within the right upper limb.  Mr Prasad also reported that the right upper limb feels generally “weak”.

With respect to specific issues relating to the Workers Compensation Guidelines pertaining to criteria that need to be met for the diagnosis of chronic regional pain syndrome (CRPS) Type 1, the symptomatology may be summarised as follows:

With respect to sensory complaints, it is evident that Mr Prasad reports clinical features of hyperalgesia and allodynia affecting the right upper limb.

In relation to vasomotor features, he states that the limb distally (palmar aspect of the hand) may appear “dottish”.  He also felt that there may be colour changes of a “redness and purplish” hue. 

In relation to sudomotor/oedematous features, he reports that marked swelling is apparent of the affected part.  He thinks that there may be increased sweating of the limb.

With respect to motor/trophic features, it is evident that there is reported marked limitation with active range of motion relating to the right shoulder girdle and upper limb.  He has not noted changes with respect to hair, nail and skin of the limb.

In relation treatment update, it has been indicated that Mr Prasad has moved with his family to Brisbane.  He has made contact with a new General Practitioner.  There is also a planned consultation with a Pain Consultant there.

He is continuing with the oral agents, Keppra and Tegretol.  He also utilises an over the counter analgesic agent but was unsure of the details of this.  Other earlier stronger analgesia has been ceased in that he had been troubled by constipation and other side-effects.

He has reportedly made contact with a Physiotherapist in Brisbane.

Hot packs are utilised.

Mr Prasad wears a tennis elbow strap applied to the right proximal forearm on a regular basis.

He hopes to make contact with a Psychologist.

3.      Findings on clinical examination

Mr Prasad was a cooperative man who sat awkwardly during the consultation in view of his recent injury to the coccygeal region.  He was noted to shake the left hand at various times which he indicated he undertakes as a distraction from pain affecting the right upper limb. 

Surgical masks were mutually worn throughout the consultation.

Mr Prasad was informed that I would require his full cooperation but that I would cease or modify any manoeuvres that were potentially distressing for him.

The tennis elbow strap was removed at the commencement of the consultation.

His temperature was satisfactory at 36.8°C.

His weight was 106kg, lightly clothed, with a height of 171cm in bare feet.  According to Nutrition Australia, the healthy weight range for an Australian of this height is 54-72kg.

Active range of motion was assessed on multiple occasions at both shoulder girdles with use of a goniometer with maximal findings noted as follows:

Shoulder Movements Active ROM Measured
RIGHT 		Active ROM Measured
LEFT
Flexion 45° 160°
Extension 35° 60°
Adduction 35° 60°
Abduction 45° 160°
Internal Rotation 35° 70°
External Rotation 20° 80°

Mr Prasad reported discomfort also arising at the right shoulder girdle when testing active range of the left side.

Girth measurements within the upper limbs were as follows:  36.5cm (right mid upper arm); 37cm (left mid upper arm); 31.5cm (maximal right forearm girth); 32cm (maximal left forearm girth).

Girth measurements were also taken with respect to the wrists bilaterally with these noted to be as follows:  22cm (right wrist); 19cm (left wrist).

Active range of motion was assessed in a similar manner at both elbows with maximal findings noted as follows:

Elbow Movements Active ROM Measured
RIGHT 		Active ROM Measured
LEFT
Flexion 110° 135°
Extension -2° 0°
Pronation 90° 90°
Supination 80° 80°

Active range was similarly assessed at both wrists with maximal findings noted as follows:

Wrist Movements Active ROM Measured
RIGHT 		Active ROM Measured
LEFT
Flexion 35° 70°
Extension 30° 55°
Radial Deviation 10° 20°
Ulnar Deviation 20° 45°

Active range of motion was assessed in relation to the small joints of both hands with findings noted as follows:

Thumb Movements

Active ROM Measured

RIGHT

 Active ROM Measured
LEFT

§  CMC joint

·     Radial abduction

·     Adduction

·     Opposition

§  MP joint

·     Flexion

·     Extension

§  IP joint

·     Flexion

·     Extension

60°
4cm
5cm

40°
0°

60°
0°

80°
2cm
6cm

55°
0°

70°
+5°
Index Finger Movements

Active ROM Measured

RIGHT

 Active ROM Measured
LEFT

§  MP joint

·     Flexion

·     Extension

§  PIP joint

·     Flexion

·     Extension

§  DIP joint

·     Flexion

·     Extension

60°
0°

70°
0°

40°
0°

80°
0°

90°
0°

60°
+2°
Middle Finger Movements

Active ROM Measured

RIGHT

 Active ROM Measured
LEFT

§  MP joint

·     Flexion

·     Extension

§  PIP joint

·     Flexion

·     Extension

§  DIP joint

·     Flexion

·     Extension

50°
0°

70°
0°

40°
0°

80°
0°

95°
0°

60°
+2°
Ring Finger Movements

Active ROM Measured

RIGHT

 Active ROM Measured
LEFT

§  MP joint

·     Flexion

·     Extension

§  PIP joint

·     Flexion

·     Extension

§  DIP joint

·     Flexion

·     Extension

50°
0°

75°
0°

40°
0°

80°
0°

95°
0°

55°
+2°
Little Finger Movements

Active ROM Measured

RIGHT

 Active ROM Measured
LEFT

§  MP joint

·     Flexion

·     Extension

§  PIP joint

·     Flexion

·     Extension

§  DIP joint

·     Flexion

·     Extension

50°
0°

75°
0°

30°
+2°

80°
+5°

95°
0°

55°
+2°

With respect to the specific components pertaining to the physical examination and criteria relating to the Workers Compensation Guidelines pertaining to clinical signs for a diagnosis of CRPS Type 1, see the following:

With respect to sensory features, marked hyperalgesia and allodynia were evident upon physical examination to a diffuse distribution pertaining to the right upper extremity with light touch and point pressure sensation. 

In relation to vasomotor features, nil temperature difference was observed with respect to the upper extremities upon light touch and with use of a transdermal thermometer device.  There was asymmetry, however, with respect to skin colour with a more prominent “mottling” appearance pertaining to the right palm as compared to the left.

With respect to sudomotor/oedematous features, marked oedema was observed in relation to the right upper extremity.  The tennis elbow strap was removed sometime prior to the physical examination being commenced.  Nil sweating was observed affecting either upper limb.  It is considered that both the use of the tennis elbow strap and the underlying condition of CRPS Type 1 are contributory to the marked finding of oedema affecting the part.

With respect to motor/trophic features, it is evident that marked limitation with active range of motion was apparent pertaining to the shoulder girdle and more distally pertaining to the right upper extremity.  Nil asymmetry was apparent with respect to hair growth, the nails and skin integrity.  Mild changes, however, were evident to an area of the right proximal forearm with the skin appearing there to have a dry appearance.  It is considered that this is as a consequence of frequent use of the tennis elbow strap.

Provocation testing in relation to carpal tunnel syndrome and de Quervain’s tenosynovitis was not able to be undertaken in view of the apparent discomfort for Mr Prasad upon physical examination.

There were nil overt features of embellishment upon the history or augmentation on physical examination.  As such, it is considered that consistency was present.

4.     Results of any additional investigations

Mr Prasad did not indicate that he has undergone any further investigations since the time of the earlier assessment of 10.5.21.

I did, however, take the opportunity of reviewing the multiple radiological reports that he had with him at the time of the current assessment as follows:

·Regional bone scan with SPECT/CT (7.8.19)

·Diagnostic ultrasound examination (22.2.19) of the right forearm

·CT and Doppler examination (12.7.19) pertaining to the right thoracic inlet

·MRI examination (12.7.19) of the cervical spine

·Diagnostic ultrasound examination (28.2.19) of both shoulder girdles (without accompanying report)

·MRI examination (21.3.19) of the right shoulder

·CT scan examination (10.4.19) of the cervical spine

5.     Determination of permanent impairment

In relation to the current dispute, it has been questioned whether the criteria pertaining to the Workers Compensation Guidelines have been fully met with respect to a diagnosis of chronic regional pain syndrome (CRPS) Type 1.  It had not been the opinion of the Medical Assessor at the time of the assessment of 10.5.21 at the request of the Personal Injury Commission that this had been the case.

In relation to this re-examination, aspects relating to symptomatology that have been evident to date have been inquired upon and documented above.  It is evident that each of the categories with respect to these appear to have been the case.

With respect to clinical signs, it is also considered that abnormal clinical features to meet each of the categories were apparent at this examination, as documented above.

In relation the further requirements outlined in Chapter 17 of the Workers Compensation Guidelines, it is also indicated that a diagnosis of CRPS would need to have been present for at least one year.  This has been the case.  Further, the diagnosis would need to have been verified by more than one examining physician.  This has also been satisfied.  It is also considered that other possible diagnoses have been excluded.

Taking the above into account, it is considered that Mr Prasad’s clinical presentation does fully meet the Workers Compensation Guidelines for a diagnosis of CRPS Type 1.

With respect to a determination of Whole Person Impairment and taking into account limitation with active range of motion at the shoulder girdle, a 23% upper extremity impairment is determined. 
A potential 3% upper extremity impairment is apparent in relation to the contralateral side, however, it is not considered appropriate that this is subtracted from the finding to the right side as it is considered that there was not full active range of the left shoulder girdle as a consequence of discomfort arising to the right side with testing.

In relation to limitation with active range of motion at the right elbow and taking into account a reduced active range of motion, a 4% upper extremity impairment is determined.  In relation to the contralateral side, a 1% upper extremity impairment is determined.  It is considered that this is reflective of what is “normal” for Mr Prasad and should be subtracted from the 4% upper extremity impairment.  As such, a 3% upper extremity impairment is applicable in relation to the right elbow.

With respect to the right wrist and taking into account limitation with active range of motion, a 14% upper extremity impairment is determined.  For the contralateral side, a 2% upper extremity impairment is noted.  For similar reasons as above, when the 2% is subtracted from 14%, a 12% upper extremity impairment is determined relating to the right wrist.

With respect to impairment pertaining to the right hand and taking into account limitation with active range of motion, a 30% upper extremity impairment is determined.  In relation to the left non-affected side, a 15% upper extremity impairment is determined.  It is considered that this should be subtracted from the finding pertaining to the right hand.  As such, there is a 15% upper extremity impairment in relation the right hand.

When the upper extremity impairments of 23%, 3%, 12% and 15% are combined, a 45% upper extremity impairment is determined when taking into account limitation with active range of motion.

With respect to sensory changes affecting the right upper limb, reference needs to be made to Table 16-10 (Chapter 16, pg 482, AMA 5).  It is considered that a grade 2 range is applicable pertaining to Mr Prasad, ie 61-80%.  In his case, it is considered that a 65% percentage sensory deficit is applicable. 

When taking into account sensory deficit in accordance with Chapter 17 of the Workers Compensation Guidelines, it is outlined that a nerve value multiplier is not utilised and that the determination taken from the percentage sensory deficit range is utilised.

When the 45% upper extremity impairment pertaining to limitation with active range of motion relating to the right upper extremity is combined with 65%, an 81% upper extremity impairment is determined.  This converts to a 49% WPI.

It is considered that there is nil evidence to support any deductions in this case by way of contributory impairment. 

This has been outlined in the table that follows.

Body Part or system Date of Injury Chapter,
page and paragraph number in NSW Workers Compensation 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)

Right upper extremity

20.2.19

Chapter 2,
pp 10-12;

Chapter 17,
Table 17.1,
pp 80-82

Chapter 16, Table 16-10, pg 482;
16.4, Figs 16-12, 16-5,
Tables 16-8a, 16-8b,
Figs 16-21, 16-23, 16-25,
16-28, 16-31, 16-34, 16-37, 16-40, 16-43, 16-46, pp 450-479;
Tables 16-1 – 16-3, pp 438-439;
16.5b, Table 16-10, pp 481-483

49%

¾

49%

Total % WPI (the Combined Table values of all sub-totals)  

49%”

  1. The Panel adopts the precise reasons provided by Medial Assessor Crocker which identify the particular criteria in Table 17.1 of the fourth edition guidelines.

  2. In reaching the conclusion that the appellant suffers from diagnosable CRPS in accordance with Table 17-1, the Panel refers to the examination findings and conclusions of previous medical examiners set out at paragraphs 54 – 58 herein and the appellant’s statement referred to at paragraph 59 together with the history provided to and recorded by Medical Assessor Crocker. That material satisfies Part 2 of Table 17.1.

  3. The appellant clearly suffers from continuing pain as recorded by Medical Assessor Crocker. That pain is disproportionate to the injury which involved a strap rebounding and striking the arm. Part 1 of Table 17.1 is satisfied.

  4. The findings of Medical Assessor Crocker carefully described a sign in the four distinct categories in Part 3 of Tale 17.1. That Part is satisfied.

  1. There is no other diagnosis that better explains the appellant’s signs and symptoms. Our conclusion is fortified by the preponderance of medical opinion which supports the presence of CRPS on previous occasions. Part 4 of Table 17.1 is satisfied.

  2. The various criteria at page 80 of the fourth edition guidelines are otherwise satisfied. The medical evidence referred to in these Reasons satisfies the criteria that the symptoms have been present for longer than one year and that at least one other physician has verified the diagnosis. The AP, on review of the medical evidence and Medical Assessor Crocker’s findings are satisfied that other possible diagnoses are excluded. This is particular clear in light of the extensive signs of CRPS present on examination before Medical Assessor Crocker.

  3. The CRPS condition has existed for over two years. For that reason, we are satisfied, in accordance with paragraph 1.15 of the fourth edition guidelines, that maximum medical improvement has been attained.

  4. There is no basis and no suggestion in the medical reports to make any deduction pursuant to s 323 of the 1998 Act.

CONCLUSION

  1. In these circumstances the MAC is revoked and a new medical assessment certificate, attached to these Reasons, is issued. The calculations provided by Medical Assessor Crocker are attached to these Reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received before 1 January 2002

This Certificate is issued pursuant to section 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Meakin dated 19 May 2021 and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Body Part or system Date of Injury

Chapter,

page and paragraph number in fourth edition guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5

% WPI WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction) Sub-total/s % WPI (after any deductions in column 6)

Right upper extremity

CRPS

 20.2.19

Chapter 2,
pp 10-12;

Chapter 17,
Table 17.1,

pp 80-82

 Chapter 16, Table 16-10, pg 482;
16.4, Figs 16-12, 16-5,
Tables 16-8a, 16-8b,
Figs 16-21, 16-23, 16-25,
16-28, 16-31, 16-34, 16-37, 16-40, 16-43, 16-46, pp 450-479;
Tables 16-1 – 16-3, pp 438-439;
16.5b, Table 16-10, pp 481-483

  49%

     nil

  49%
Total % WPI (the Combined Table values of all sub-totals)               49%

John Harris

Principal Member

Dr David Crocker

Medical Assessor

Dr James Bodel

Medical Assessor

25 November 2021


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