Ralph Lauren Australia Pty Ltd v Zunic

[2024] NSWPICMP 401

DETERMINATION OF APPEAL PANEL
CITATION:	Ralph Lauren Australia Pty Ltd v Zunic [2024] NSWPICMP 401
APPELLANT:	Ralph Lauren Australia Pty Ltd
RESPONDENT:	Laura Zunic
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	25 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Respondent suffered laceration injury to middle finger of right hand for which she had surgery following which she developed complex regional pain syndrome (CRPS), about which there was no dispute; at the time the Medical Assessor (MA) assessed the degree of permanent impairment from her injury she did not meet the criteria of Table 17-1 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (the Guidelines) for a diagnosis of CRPS to be made, which finding party challenged in the appeal; MA assessed the degree of the appellant’s permanent impairment by reference to the restricted range of movement she had in her fingers of right hand and by reference to sensory deficits; both parties agreed MA made an error by converting impairment respondent had of each of the joints of her fingers to hand impairment rather than combining the finger impairment for each joint of the finger and then converting the overall finger impairment to hand impairment; whether MA provided sufficient reasons for his grading of the severity of the respondent’s sensory deficits; Held – MA provided sufficient reasons for his grading of the severity of the respondent’s sensory deficits; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 3 April 2024 Ralph Lauren Australia Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 March 2024.

2. The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground for 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.

4. Rule 128 of the Personal Injury Commission Rules 2021 (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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. The appellant employed Laura Zunic, the respondent, as a sales assistant from 2019. On
   19 March 2020 the respondent was sliding a stack of 50 to 60 shirts onto a shelf. The shelf above had a sharp jagged edge. As the respondent withdrew her hand from the shelf onto which she loaded the shirts, this jagged edge severely lacerated the middle finger of her right hand.

2. Dr Mark Ryder, a hand surgeon, subsequently identified that the respondent had lacerated her extensor tendon over the metacarpophalangeal (MCP) joint of her middle finger. On
   31 March 2020 Dr Ryder repaired that laceration in surgery. When the respondent’s dressings were removed following her surgery it was discovered she had developed complex regional pain syndrome (CRPS) of her right hand.

3. On 12 August 2022 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for “53% whole person impairment for the right upper extremity and chronic pain”. In support of the respondent’s claim, the respondent’s solicitors provided the insurer with a copy of a report of the consultant physician and rheumatology Dr Terry Kwong dated 3 May 2022, and a copy of a report of hand and micro surgeon Associate Professor Graham Gumley dated 18 February 2022.

4. Dr Kwong had examined the appellant on 3 May 2022 and in his report advised the respondent fulfilled the diagnostic criteria for CRPS specified in Table 17.1 of the Guidelines and that he assessed the degree of the respondent’s permanent impairment from her injury, by reference to the criteria of Chapter 17 of the Guidelines, was 51% whole person impairment (WPI).

5. Dr Gumley had examined the respondent on 17 February 2022 and in his report he advised that he assessed the respondent had 16% WPI from her injury. His assessment was based on the range of motion the appellant had in the digits of her right hand.

6. To respond to the respondent’s claim the appellant’s solicitor organised for the respondent to be examined by occupational physician Dr Greg McGroder on 10 October 2022. In a report dated 17 October 2022 Dr McGroder advised the respondent did develop CRPS as a result of her injury but this condition had improved considerably and was resolving and did not qualify for an assessment of impairment by reference to the criteria of Chapter 17 of the Guidelines. Dr McGroder assessed the respondent’s impairment by reference to the restricted range of movement the respondent had in the digits of her right hand. Based on that method, he assessed the degree of the respondent’s impairment from her injury was 13% WPI.

7. On 9 December 2022 the appellant’s solicitors wrote to the respondent’s solicitors advising them that their client was prepared to pay the respondent compensation under s 66 for 13% WPI. That offer was not accepted by the respondent as she subsequently commenced proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation.

8. A delegate of the President of the Commission issued a referral on 12 February 2024 to the Medical Assessor to assess various medical disputes relating to the respondent’s injury, including the degree of permanent impairment of the respondent as a result of her injury. The body parts specified in that referral to be assessed were described as “right upper extremity complex regional pain syndrome”. 

MEDICAL ASSESSMENT CERTIFICATE

1. The Medical Assessor examined the respondent on 22 February 2024, and recorded in the MAC making the following findings from his examination:

   “Miss Zunic was of average stature with a height of 1.63m. Her weight was 53kg. With

   these parameters, she currently has a body mass index of a little over 23, which is right in the mid-range of healthy normal. She was in moderate discomfort with the right forequarter.

   Cervical Spine. There was some ache in the right of the neck. This was mostly

   musculature and I was unable to identify any other specific features other than a slight

   restriction of movement. Although forward flexion and extension were both normal, lateral flexion to each side was reduced to half the normal range. Lateral rotation to each side was slightly better, at two-thirds of the range.

   No significant features were identified with the shoulders, elbows, the wrists or the thumbs. She had the following digital movements:

JOINT	INDEX		MIDDLE		RING		LITTLE
	RIGHT	LEFT	RIGHT	LEFT	RIGHT	LEFT	RIGHT	LEFT
MCP	40°-70°	-20°-90°	40°-70°	-20°-90°	40°-70°	-20°-90°	40°-70°	-20°-90°
PIP	30°-70°	0°-100°	30°-70°	0°-100°	30°-70°	0°-100°	30°-70°	0°-100°
DIP	20°-40°	0°-70°	20°-40°	0°-70°	20°-40°	0°-70°	20°-40°	0°-70°

Neurologically there was globally dull sensation to pinprick, which extended up the arm just distal to the right elbow complex. Sensation on the left side was easily normal.

Due to the condition of the right arm, it was not realistically possible to carry out reflex

assessments.

The right hand did appear to be a little cold in comparison with the left but I was unable to identify any other current features which could suggest Complex Regional Pain Syndrome. (From the clinical literature, it does seem very obvious that earlier on in the history of her condition, she did experience this condition.)”

1. The Medical Assessor, based on the restricted movement he found the respondent had of the fingers in her right hand, assessed the respondent had 59% upper extremity impairment. The Medical Assessor provided the following explanation for that assessment:

   “Miss Zunic continues to have significant dysfunction of the digits of the right hand. At this assessment, it was very obvious that the range of movement of each specific joint of all fingers was exactly the same. This was also clearly demonstrated by incomplete capacity to make a fist and incomplete capacity to fully extend the fingers. An exception to this was the range of movement for the thumbs, which was the same bilaterally.

   As can be seen from the ranges of movement of the left hand, all of these were effectively very normal and therefore, there is 0% WPI with the left hand.

   Therefore, the further whole person impairment will strictly address the condition of the right hand in an attempt to avoid clumsy and overfilled tables.

AMA 5 REF	JOINT	INDEX	% FI*	MIDDLE	% FI*	RING	% FI*	LITTLE	% FI*
P 464 F 16-25	MCP	40°-70°	30	40°-70°	30	40°-70°	30	40°-70°	30
P 438 T 16-01	** HI	8	8	4	4
PIP	30°-70°	29	30°-70°	29	30°-70°	29	30°-70°	29
P 438 T 16-01	** HI	12	12	3	3
DIP	20°-40°	19	20°-40°	19	20°-40°	19	20°-40°	19
P 438 T 16-01	** HI	4	4	2	2

* % Finger Impairment

** % Hand Impairment

All of the hand impairments are added. This gives 66% hand impairment, which converts to 59% Upper Extremity Impairment from Table 16-02 on Page 439.”

1. The Medical Assessor also assessed the respondent had 9% upper extremity impairment due to neurological dysfunction of her right hand and forearm. He provided the following explanation for that assessment:

   “Neurological Dysfunction. The state of the right hand and forearm is very clearly

   abnormal and although Miss Zunic did not have all of the hallmark features to fully diagnose Complex Regional Pain Syndrome, she still has a chronic pain condition of the right forequarter. This is further addressed on Page 492, Table 16-15. It is identified that the three major nerve structures supplying the forearm and hand are involved. From this table, the maximum upper extremity impairment due to sensory deficit is:

NERVE	% UEI
Median (below the mid-forearm)	39
Radial	5
Ulnar	7

It is considered that the most effective way of addressing this further is to combine these values. This gives a value of 46%. This, in turn, is significantly modified by Table 16-10 on Page 482. Although not exactly filling the described criteria, the closest and fairest that I can assess is that she is in Grade IV with 20% of the maximum. This therefore gives 9% upper extremity impairment for the neurological features.”

1. The Medical Assessor combined the upper extremity impairment he assessed the respondent had due to her restricted range of movement of the fingers on her right hand with the upper extremity impairment he assessed the respondent had due to neurological dysfunction, which produced 63% upper extremity impairment. He converted that in accordance with Table 16-03 of AMA5, to 38% WPI.

2. The Medical Assessor explained that although it seemed probable the respondent had experienced CRPS it did not exist at the time of assessment and he assessed the degree of the respondent’s permanent impairment from CRPS to be 0% WPI. No issue is taken with that in the appeal against the MAC.

3. The Medical Assessor did not identify any pre-existing condition to which a proportion of the respondent impairment from her injury is due. No issue is taken with respect to that.

4. The Medical Assessor certified he assessed the respondent’s impairment is permanent and that the degree of her permanent impairment is fully ascertainable. No issue has been raised with the Medical Assessor’s assessment of these medical issues.

5. Consequently, the Medical Assessor assessed, and certified, that the degree of the respondent’s permanent impairment from her injury is 38% WPI.

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This because neither party sought the respondent be re-examined.  Further, neither party contested the findings the Medical Assessor made from his examination of the respondent, as distinct from the Medical Assessor’s assessment based on his findings, and hence the Appeal Panel can rely on those findings.  There is consequently no utility in re-examining the respondent. 

EVIDENCE

1. 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. 

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that the Medical Assessor erred by converting the impairment that he assessed the respondent had for each joint of each of her fingers to hand impairment before adding each of those joint impairments as required by the criteria on page 465 of AMA5. The appellant also submitted that the Medical Assessor erred when converting finger impairment to hand impairments. The appellant noted that the Medical Assessor said that the respondent had 30% finger impairment for the MCP joint of the index and middle fingers which he converted to 8% hand impairment, but the appellant submitted that the Medical Assessor ought to have converted that to 6% hand impairment in accordance with Table 16-1 of AMA5. The appellant noted that the Medical Assessor found the respondent had a 29% impairment of the proximal interphalangeal (PIP) joint which the Medical Assessor converted to 12% hand impairment. The appellant submitted that converted to 6% hand impairment. The appellant noted that the Medical Assessor did the same with respect to the respondent’s middle finger.

3. The appellant also submitted that the Medical Assessor erred by not providing sufficient justification for his grading of the severity of the respondent’s sensory deficits.

4. In reply, the respondent submitted that it appeared to be the case that the Medical Assessor had converted the abnormal motion of each joint of her fingers to a hand impairment and then added the hand impairments to arrive at an overall hand impairment caused by the particular digit. The respondent submitted that the correct method required the Medical Assessor to combine the relevant finger impairment for each joint of the finger and then convert the overall finger impairment to hand impairment, which, according to the respondent would have resulted in the assessment of 40% hand impairment.

5. With respect to the Medical Assessor’s assessment of her impairment due to neurological dysfunction, the respondent submitted that the Medical Assessor provided a detailed description of her neurological dysfunction and also the method by which he made his assessment of her impairment due to sensory disturbance. The respondent submitted that absent compelling reasons why Medical Assessor’s observations and opinion, which were made in a clinical setting, should be overturned, the Appeal Panel shall not overturn them. 

FINDINGS AND REASONS

1. 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.

2. 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.

3. As both parties have acknowledged in their respective submissions, the Medical Assessor made an error by not abiding the instructions within page 465 of AMA5, in that the Medical Assessor converted the figures for digit impairment into hand impairment at each level of the digit including the MCP, PIP and distal interphalangeal (DIP) joints, whereas the instructions within page 465 required the Medical Assessor to add the digit impairments together before converting to hand impairment.

4. The Appeal Panel observes that paragraph 2.6 of the Guidelines recommends a Medical Assessor use Figure 16-1a of AMA5 to document the Medical Assessor’s findings relating to motion impairment of the digits. The Medical Assessor’s spurned doing so in this case. Potentially that led him into the error he made, given that Figure 16-1a essentially provides the instructions within page 465 in a diagrammatic or flowchart fashion.  By completing that a Medical Assessor is taken through the steps by which the upper extremity impairment due to abnormal motion of the digits is converted from digit impairment to hand impairment.

5. As mentioned earlier, no challenge has been made to the Medical Assessor’s findings relating to his examination of the respondent’s fingers of her right hand. The Appeal Panel has tabulated those figures in Figure 16-1a and has attached that to its statement of reasons.

6. That reveals that the respondent’s digit impairment for each of her fingers on her right hand is 64%, which, in accordance with the Table 16-1 of AMA5 means she has a hand impairment of 13% relating to her index finger, a hand impairment of 13%, relating to her middle finger, a hand impairment of 6% relating to her ring finger, and a hand impairment of 6% relating to her little finger. These add to 38% hand impairment, which converts to 34% upper extremity impairment, in accordance with Table 16-2 of AMA5.

7. The Appeal Panel does not accept the appellant’s submission that the Medical Assessor did not provide sufficient justification for grading the severity of the respondent’s sensory deficits as Grade IV. Within the MAC the Medical Assessor detailed that the respondent had pain in her right hand and arm, that she described feeling cold and wet in her right hand, that she frequently drops items, and that she has reduced sensation and a tingling sensation. The Medical Assessor found from his examination that the respondent had dull sensation to pin prick globally that extended up her arm distally to the right elbow complex. He found that the respondent’s right hand was a little cold in comparison to her left. He found that the respondent had chronic pain. He considered that she had neurological dysfunction that was significant due to a chronic pain condition. He stated that the appearance of the respondent’s right hand and forearm is clearly abnormal and that the three major nerve structures supplying her forearm and hand are involved.

8. Table 16-10 of AMA5, at part b3 requires a Medical Assessor to use clinical judgement to select an appropriate percentage within the range of percentages for a grade to apply to the rating the Medical Assessor makes of a worker’s sensory impairment. In the Appeal Panel’s view it is not demonstrable from the MAC that the Medical Assessor has made any error in the exercise of his clinical judgement by selecting 20% of the range of percentages permitted for a grade IV classification.

1. For these reasons, the Appeal Panel has determined that the MAC issued on 6 March 2024 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W437/24
Applicant:	Laura Zunic
Respondent:	Ralph Lauren Australia 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 Tim Anderson 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 WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Right upper extremity	19/03/2020	Chapter 2 Page 11-12	Chapter 16 Pages 433-521	24%	-	24%
CRPS	19/3/2020	Chapter 17 Page 81	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals)					24%