S & a Trailers Pty Ltd v Wayne Anthony Brown - [2021] NSWPICMP 56

DETERMINATION OF APPEAL PANEL
CITATION:	S & A Trailers Pty Ltd v Wayne Anthony Brown [2021] NSWPICMP 56
APPELLANT:	S & A Trailers Pty Ltd
RESPONDENT:	Wayne Anthony Brown
APPEAL PANEL:	Member Marshal Douglas Dr Gregory McGroder Dr John Brian Stephenson
DATE OF DECISION:	20 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Respondent worker suffered an injury to left wrist and hand and in a subsequent incident that occurred as a result of that injury, also suffered an injury to his right wrist and hand; arbitrator held that permanent impairment from both was to be assessed together; AMS diagnosed CRPS1; appellant submitted AMS erred by doing so because AMS did correct apply criteria of Table 17.1 correctly in that there was no asymmetry of symptoms and signs in the respondent’s upper extremities; in the alternative, appellant submitted that AMS erred and applied incorrect criteria because the AMS assessed the respondent’s sensory deficits using Table 16-15; Held- Appeal Panel held that the AMS did not make any error by diagnosing respondent’s injury as CRPS1 because where signs and symptoms from an injury affect a worker’s joints bilaterally, asymmetry of signs and symptoms can be established by comparing the affected bilateral joints with the rest of the worker’s body; Appeal Panel held that with respect to the assessment of the respondent’s sensory deficits, AMS applied incorrect criteria by using Table 16-15, whereas he should have applied Table 16-10a; MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 December 2020 S & A Trailers Pty Ltd (the appellant) lodged an “Application to Appeal Against the Decision of Approved Medical Specialist”. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist (AMS) of the Workers Compensation Commission (WCC), who issued a Medical Assessment Certificate (MAC) on 17 November 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate 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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant employed Wayne Anthony Brown (the respondent) as a welder and fabricator from January 2012. On 5 April 2017 the respondent was using a drill while working and injured his left wrist and left hand whilst doing so. The injury involved a complete rupture of the ligament of his left thumb, which was treated in surgery on 18 May 2017 by hand surgeon Dr David Yee, who inserted k-wires. The respondent’s left arm was subsequently immobilised in a plaster cast for a period of time.
The respondent commenced physiotherapy when the k-wire and cast were removed.
On 31 July 2017 the respondent returned to his employment on modified duties. On 23 October 2017 he was using an angle grinder. He operated it solely with his right hand because he was unable to support the grinder with his left hand due to an incapacity he was experiencing in his left hand consequent upon his injury. Whilst operating the grinder, the disc caught on a piece of steel that resulted in the grinder ripping out from his right hand, twisting his right wrist and bending his right thumb backwards. This caused injury to his right thumb and wrist.
On 1 November 2017 Dr Yee carried out a left wrist extensor carpi ulnaris reconstruction to stabilise subluxation the respondent was experiencing in his left wrist. On 23 February 2018 Dr Yee carried out a right extensor carpi ulnaris reconstruction of the respondent’s right wrist to treat subluxation the respondent was experiencing in his right wrist.
Dr Yee reviewed the respondent on 10 July 2018, he diagnosed the respondent had chronic regional pain syndrome in both hands.
The respondent’s solicitors organised for the respondent to be examined by Dr Min Fee Lai, a general surgeon and plastic and reconstructive surgeon. That occurred on 1 October 2019. Dr Lai provided a report on that day to the respondent’s solicitors, in which he set out the history he obtained, a summary of the radiology investigations that had been done of the respondent’s upper extremities, the symptoms the respondent was then experiencing and his findings from his clinical examination of the respondent. Dr Lai also reported that he had diagnosed the respondent had suffered the following injuries from the incidents in the respondent’s workplace:
“Left wrist extensor carpi ulnaris subluxation
Chronic regional pain syndrome left hand and forearm
Bursitis left shoulder
Right extensor carpi ulnaris tendon subluxation
Chronic regional pain syndrome right hand and forearm
Bursitis right shoulder”
Dr Lai also reported that he had assessed the respondent had, as a result of the respondent’s injuries, a whole person impairment (WPI) of 26% with respect to his left upper extremity, 26% WPI with respect to his right upper extremity and 1% WPI due to scarring, combining to 46% WPI.
The respondent’s solicitors then wrote to the appellant’s insurer on 31 October 2019 advising the insurer that the respondent claimed $157,620 in compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act), for 46% WPI resulting from his injuries.
The respondent’s solicitors then organised for the respondent to be examined by Dr Stephen Quain, an orthopaedic surgeon. That examination occurred on 14 January 202. Dr Quain provided three reports to the respondent’s solicitors relating to his examination dated 16 January 2020, 21 February 2020 and 12 March 2020.
On 13 March 2020 the appellant’s insurer wrote to the respondent to advise him under s 78 of the 1998 Act that it declined his claim for compensation. It also advised him of its reasons for doing so, which were essentially, that he had suffered separate injuries on 5 April 2017 and 23 October 2017 and that the permanent impairment he suffered from each injury could not be combined. Further, it advised him, based on Dr Quain’s opinion, that his permanent impairment from each of what it considered to be separate injuries on 5 April 2017 and 23 October 2017 was no more than 10% WPI and, accordingly, he did not cross the statutory threshold of 10% WPI required under s 66 of the 1987 Act to have an entitlement for compensation.
Thereupon the respondent initiated proceedings in the WCC, which were referred to Arbitrator Ms Elizabeth Beilby. On 20 August 2020 the WCC issued a certificate of determination in which was recorded that Arbitrator Beilby had determined:
“1.     The impairment to the right upper extremity, crystallised on the 23 October 2017,   results from the injurious event on 5 April 2017.
2.     The impairment that results from the events on 5 April 2017 and 23 October 2017 are to be aggregated.
3.     The matter is remitted to the Registrar to be referred to an Approved Medical   Specialist for whole person impairment assessment to both the left and right upper extremities.
4.      The date of injury is 5 April 2017. The Application to Resolve a Dispute and Reply to Application to Resolve a Dispute are to be provided to the Approved Medical Specialist.”
On 21 September 2020 the WCC issued an amended referral to the AMS requiring him to assess a medical dispute, defined in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
 the degree of permanent impairment of the worker as a result of an injury
(s319(c))
 whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 5 April 2017 and 23 October 2017 (They are to be aggregated)
Body part/s referred: left and right upper extremities.
Method of assessment: Whole Person Impairment.”
As mentioned, the AMS issued the MAC on 17 November 2020 with respect to that medical dispute, in which he certified that he has assessed the respondent had 70% WPI from the injuries 5 April 2017 and 23 October 2017.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the MAC in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the respondent should undergo a further medical examination. This is because, for reasons detailed below, the Appeal Panel came to the view that the MAC contained a demonstrable error, and as a consequence the Appeal Panel would have to revoke the MAC and reassess the medical dispute that had been referred for assessment. In order to do reassess the medical dispute, the Appeal Panel considered it would be necessary for the respondent to be examined by one the Medical Assessors constituting the Appeal Panel. The Appeal Panel appointed Medical Assessor Dr Gregory McGroder.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the AMS and has taken them into account in making this determination. Further, Dr Gregory McGroder provided the Appeal Panel with his report dated 30 March 2021 on his examination of the respondent. That is replicated in full below, and the Appeal Panel has obviously taken that into account.

MEDICAL ASSESSMENT CERTIFICATE

The AMS examined the respondent on 12 October 2020. The AMS recorded the respondent’s symptoms within Part 4 of the MAC as follows:
“The situation with each upper limb is similar, although the right side is more affected than the left. He experiences increased sensitivity with pain and tingling. Occasionally
there are very sharp, shooting pains. He continues to have alteration of his nails with
rapid nail growth and deformity and brittleness of the nails. He also feels that there is
still hair falling out from his forearms.
Mostly there is an alteration of colour which tends to be more red. There is still a lot of
sweating and the hands feel cold. Although there has been some improvement with the
use of the spinal cord stimulator, he experiences increased pain at the site of this device. He continues to have an intolerance to cold and to cold water.”
The findings the AMS recorded in Part 5 of the MAC from his clinical examination of the respondent included the following:
“He was in a great deal of discomfort with his upper limbs. Both upper limbs were very similar to examination, particularly from the elbows distally. There was slight swelling of all of the fingers and less so, the thumbs. The hands were cold to the touch and appeared redder than would be anticipated. There does appear to be hair loss over the dorsum of his forearms. His nails were also ridged and were breaking. There was excessive tenderness, particularly over the dorsum of the hands and wrists up as far as the md-forearm. The palms of the hands exhibited mild sweating which would not have been due to climatic changes since it was quite a cool day.”
The AMS also observed from his examination that the respondent had restricted range of movement in the joints of his upper limbs. The AMS recorded within Part 5 and Part 10b of the MAC his measurements of the respondent’s movement in these joints. The AMS also noted within Part 10b that the respondent’s median, radial and ulnar nerves were affected by his injury.
The AMS diagnosed the respondent had CRPS1, and said the following within Part 10c of the MAC with respect to his diagnosis:
At this assessment, CRPS was extremely obvious. Mr Brown fully satisfied all of the criteria both historically and at this assessment in the SIRA Guidelines Page 81, Table 17.1. The major feature in this was that there was no other diagnosis that better explains the signs and symptoms.”
Based on the restriction in movement the AMS found from his examination of the respondent’s joints in his upper limbs, the AMS assessed the respondent had upper extremity impairments of 21% of the right shoulder, 16% of the left shoulder, 1% of each elbow, 22% of each wrist, 32% of the right hand and 28% of the left hand.
The AMS in Part 10B of the MAC said with respect to the respondent’s neurological function, that “the neurological condition on each side is addressed on page 492-Table16-05”. It is apparent to the Appeal Panel that the AMS’s reference to “Table 16-05” is an obvious typographical error and that what he was referring to is “Table 16-15”. That is the table that appears on page 492 of AMA5, and that table relates to assessments of impairments due to deficits of major peripheral nerves. The Appeal Panel observes that Table 16-05 appears at page 447 of AMA5 and relates to the valuation of digital nerve sensory impairment.
The AMS assessed the respondent’s upper extremity impairment due to the deficits of peripheral nerve to be 39% for the median nerve, 5% for the radial nerve and 7% for the ulnar nerve for both the right and left upper limbs. To be clear, it is obvious that notwithstanding the AMS mistakenly referred to Table 16-05, that assessment was done based on the criteria of Table 16-15.
Within Part 10B of the MAC, the AMS tabulated his assessments of the respondent’s upper limb impairments with respect to the restriction of the range of movement of the respondent’s joints and also the neurological dysfunction. They tallied to 78% with respect to his right upper limb and to 74% with respect to his left upper limb. The AMS observed that in accordance with Table 16-03 of AMA5 those upper extremity impairments converted respectively to 47% WPI for the right upper limb and 44% WPI for the left upper limb which combined to 70% WPI. The AMS certified that this was the degree of the respondent’s permanent impairment from his injury.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the AMS’s diagnosis of the CRPS1 was not available under Table 17-1 of the Guidelines because the AMS did not find from his examination of the respondent’s hands and wrists any asymmetry of colour, temperature or sweating. Further, the appellant submits that the colour changes the AMS observed were not cyanotic as “one would anticipate”. The appellant submits that the redness the AMS observed suggested the presence of oxygenated blood, and the AMS was wrong consequently to accept there was evidence of vasomotor changes.
The appellant submits that the AMS has simply made an assertion that there was no other diagnosis that explained the respondent’s signs and symptoms and failed to consider or eliminate any alternate diagnosis.
The appellant also submits that, in the event that a diagnosis of CRPS1 was available, the AMS was wrong to assess the worker’s sensory deficits under Table 16-15 of AMA5.
In reply, the respondent submits, essentially, that the requirement in Table 17-1 of the Guidelines that there be asymmetry with respect to the signs within various categories set out in that table does not require the asymmetry be established by a comparison of a joint with the contralateral joint, but rather how the affected joint being examined compares with unaffected body parts. The respondent submits that to accept “the inherent supposition in the appellant’s submissions”, being that the comparison must be between a joint and its contralateral joint, would lead to an absurd result that an assessment could not be made based on CRPS where there are signs and symptoms of CRPS in both upper joints. In other words, as the Appeal Panel understands the respondent’s submissions in this regard, they are that where an injury has precipitated CRPS that manifests in joints bilaterally, the comparison required under Table 17-1 to establish whether there is any asymmetry of signs and symptoms so as to make a diagnosis of CRPS can be made between the bilaterally affected joints and the rest of a worker’s body.
The respondent also submits that the AMS expressly considered whether there was any other diagnosis better able to explain his signs and symptoms than CRPS. The respondent submits that it is not a requirement that the AMS “create a list of what diagnosis” might explain the signs and symptoms, and that it is sufficient explanation from an AMS for the AMS to make a finding that there is no other diagnosis that explains the signs and symptoms.
The respondent submits that with respect to the AMS’s assessment of his neurological dysfunction that the AMS considered the relevant percentages provided in Table 16-15 of AMA5, and did not utilise Table 16-05. The respondent submits that Table 16-10 specifically authorises the use of Table 16-15 and that consequently the AMS made no error or did not apply incorrect criteria when assessing his impairment due to sensory deficit or pain.

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.
The Guidelines at [17.5] stipulate the requirements for an injury to the diagnosis as CRPS1 and to be rated as such for the purpose of determining a worker’s permanent impairment from an injury. Relevantly, the Guidelines stipulate:
“For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment:
·    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: Apply the diagnostic criteria for complex regional pain syndrome type 1 (Table 17.1).”

Table 17.1 reads as follows:
“Table 17.1 Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2

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.”

The Appeal Panel agrees with the respondent’s submission that in the circumstance where an injury has affected a worker’s joints bilaterally the requirement under Table 17-1 that there be asymmetry of signs and symptoms in order to make a diagnosis of CRPS does not require the asymmetry be between the bilateral joints. Rather, if the signs and symptoms manifesting from the injury have affected the worker’s joints bilaterally, and the presentation of the worker’s affected joints is inconsistent or abnormal when considered in comparison with the rest of the worker’s body, then there is asymmetry of signs or symptoms. Otherwise, as the respondent contends, it would lead to an anomalous result whereby an injury resulting in CRPS can only be assessed for impairment if it affects only one side of a worker’s body. It seems to the Appeal Panel that the requirement that there be asymmetry is to ensure that there is an objective method by which to verify that a worker’s injury has resulted in CRPS. In a circumstance where the injury has affected one joint and not the contralateral joint, then abnormal signs and symptoms within the relevant categories stipulated in Table 17.1 is readily and objectively established by a comparison between the affected joint and the contralateral joint. However, in the circumstance where, as here, the joints are affected bilaterally, then the abnormality of the worker’s signs and symptoms of the bilaterally affected joints can be established objectively by comparison with the remainder of the worker’s body.
The Appeal Panel does not consider that the AMS made an error in diagnosing the respondent has CRPS1 based upon the symptoms the respondent reported and based upon the AMS’s findings from his examination of the respondent. The Appeal Panel considers that the AMS’s diagnosis accords with the criteria in Table 17.1, noting what the Appeal Panel has said above about establishing asymmetry of signs and symptoms in the circumstance where an injury has affected joints bilaterally. The diagnosis has been present for at least a year, given that Dr Yee made such a diagnosis on 10 July 2018 and Dr Lai made a diagnosis in October 2019. Further, the diagnoses have been verified by more than one examining physician, namely Drs Yee, Lai and the AMS. The Appeal Panel also considers that the AMS did exclude other possible diagnoses to explain the respondent’s signs and symptoms and did so explicitly by saying that “there was no other diagnosis that explains the signs and symptoms”.
The Appeal Panel also rejects the appellant’s submission to the effect that because the AMS observed the respondent to have asymmetrical redness in his hands that the AMS was wrong to conclude there was evidence of the respondent having vasomotor changes. As indicated above, the AMS found that the respondent’s hands were cold to the touch and appeared redder than what would be anticipated. It seems to the Appeal Panel that the AMS’s finding of what would be anticipated with respect to the respondent’s hand is a reference to what the respondent’s presentation would have likely been had he not been injured, and that could only have been done by comparing the respondent’s hands with the appearance of with the rest of his body.
The Appeal Panel considers however, as the appellant has submitted, that the AMS made an error by assessing the respondent’s sensory deficits under Table 16-15, rather than Table 16-10. The Guidelines at [17.5] require, once a diagnosis has been made of CRPS1, that an AMS assess the worker’s impairments by reference to the following criteria:
·        Rate the extremity impairment resulting from loss of motion of each individual joint involved.
·        Rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA5 Table 16.10a (p 482). Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The maximum value is not automatically applied. The value selected represents the extremity impairment. A nerve value multiplier is not used.
·        Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA5, p 604) to obtain the final extremity impairment.
·        Convert the final extremity impairment to WPI using AMA5 Table 16.3, (p 439) for the upper extremity.
The AMS has assessed the respondent’s impairments from sensory deficits and pain using Table 16-15, rather than Table 16-10a. The Guidelines do not authorise the application of Table 16-10b. What is required is that an assessment be made by reference to how the worker’s sensory deficits and pain fit within the gradings provided within Table 16-10a. The AMS simply did not do that.
Accordingly, the AMS has made an error, such that the MAC contains a demonstrable error, and also the AMS has made his assessment based upon incorrect criteria. Accordingly, the Appeal Panel must revoke the MAC and reassess the medical dispute. As mentioned, the Appeal Panel appointed Medical Assessor Dr Gregory McGroder, to examine the respondent to enable the Appeal Panel to reassess the medical dispute. Dr McGroder’s report to the Appeal Panel was as follows:
“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-2251/20
Appellant:	S & A Trailers Pty Ltd
Respondent:	Wayne Anthony Brown
Date of Determination:	30 March 2021

Examination Conducted By:	Dr Greg McGroder
Date of Examination:	25 March 2021

1.   The workers medical history, where it differs from previous records
Mr Brown had been seen by Dr Tim Anderson, Occupational Physician, on 12 October 2020. This is just over four months ago.
Mr Brown said that he has read Dr Anderson’s report and agrees with the history that Dr Anderson had related and feels that this is an accurate reflection of his history.
2.   Additional history since the original Medical Assessment Certificate was performed
Mr Brown said that in the period since the MAS Assessment there has been no real change. He has not seen his Pain Specialist, Dr Sunderaj, but he will be seeing him within a matter of weeks. He said there has been no change in his symptomatology.
He still has the spinal cord stimulator in situ. He uses Panadiene Forte, Neuromol and Endone occasionally.
He said that he still has pain to a variable extent involving both upper extremities. He said that the hands feel puffy and swollen and he gets pins and needles throughout most of the arm and this is in a variable distribution. There is sensitivity to even light touch on the skin and particularly on deep pressure, particularly over the joints. He has a beard and said if he touches his beard he cannot discriminate between individual hairs. Sometimes he even has difficulty attempting this because of sensitivity. He said that there is restriction of range of movement of the fingers, thumbs, wrists, elbows and shoulders, and there is loss of dexterity and a lot of this has to do with the restriction of range of movement. He has difficulty with tasks such as using a mobile phone, although he does manage this with some difficult. He is able to drive a car.
He said that his nails grow rapidly and they have been only recently trimmed but are now to the extent that they need to be cut again. He said that there is ridging and cracking of the nails. He said that he has diminished hair growth on his arms and occasionally if there are isolated growths they can be longer and grow more quickly. He said that the colour of his skin varies between red and white and when they are pale the hands feel cold and when they are red the fingers and hands sweat and the sweating is often between the fingers.
Mr Brown did not complain of symptoms, pain or colour and temperature changes or swelling involving other body parts apart from the distal aspects of the upper extremities. There were no complaints of joint pain apart from the upper extremities.
3.   Findings on clinical examination
Mr Brown was noted to have significant restriction of range of movement of the shoulders, elbows, wrists, and joints of the hands. Individual testing of range of movement of the joints of the upper extremities was not repeated as there has been no appeal with regard to the findings of Dr Anderson with regard to range of movement.
The skin on Mr Brown’s hands was smooth and clammy. There was a more florid appearance of the skin colour than would be considered normal. The skin temperature was normal proximal to the elbow and an area just distal but the lower forearms and hands became noticeably cooler to touch. Nails were all long, although a definite date could not be given for when they were last cut. They were, however, ridged. There was some cracking and they were brittle to touch. There was minimal hair growth over the forearms and none over the wrists or hands. That on the forearms was sparse and thin. The fingers were swollen. This was noticeable to a lesser extend in the hands. There was widespread hyperalgesia and allodynia when testing with light touch and point pressure sensation. Pin prick was not used.
Apart from the upper extremities, physical examination demonstrated no abnormalities.
4.   Results of any additional investigations since the original Medical Assessment Certificate
No further investigations have been performed.
5.   Assessment of Whole Person Impairment
According to Table 17.1, Mr Brown fulfils the diagnostic criteria for Complex Regional Pain Syndrome Type 1.
1/ There is continuing pain, which is disproportionate to any causal event.
2/ He has the following symptoms:
·    Hyperaesthesiae and allodynia
·    Vasomotor: There are temperature and skin colour changes
·    Sudomotor/oedema: There is oedema of the hands and fingers, along with increased sweating.
·    Motor/trophic: There is decreased range of joint motion and changes involving the hair, nails and skin.
3/ He has the following signs:
·    Sensory: Allodynia is apparent with testing.
·    Vasomotor: There is evidence of temperature and skin colour changes.
·    Sudomotor/oedema: There is evidence of oedema and excess sweating.
·    Motor/trophic: There are hair, nail and skin changes, along with active decreased joint range of motion.
4/ There is no other diagnosis that better explains the symptoms and signs.
The diagnosis has been agreed by multiple treating doctors.
As the diagnosis of CRPS Type 1 has been fulfilled the steps outlined in Chapter 17 of the WorkCover Guidelines have been followed. It is noted that Mr Brown’s symptoms are more marked on the right than the left. According to this section the extremity impairment from sensory deficits and pain are according to the grade that best fits the degree or amount of interference with ADL’s as described in AMA5, Table 10a. Clinical judgement is used to select the appropriate grade. The grade selected represents the extremity impairment and a nerve value multiplier is not used. Clinical judgement has also been used in assessing the diagnostic criteria for CRPS Type 1.
According to Table 16.10a, I feel that for both upper extremities Mr Brown qualifies in Grade 3 and on the right I estimate this at 40% UEI and on the left 30% UEI.
With regard to the right upper extremity the accepted UEI for range of motion is 58% UEI and combining with this 40% UEI for the sensory deficit and pain is 75% UEI, which converts to 45% WPI.
On the left, the accepted upper extremity impairment for range of motion is 53% and combining this with 30% for the sensory deficit and pain is 67%, which converts to 40% WPI.
This is a combined total of 67% WPI.
There is no deduction for a pre-existing condition.
Signed:     Dr Greg McGroder
Date:       30 March 2021”

The Appeal Panel adopts the findings of Dr Gregory McGroder and also accepts as correct how he assessed the respondent’s impairment due to sensory and pain deficits.
The Appeal Panel notes that Dr Gregory McGroder found that there were no abnormalities from his physical examination of the respondent, other than those he detailed in his report with respect to the respondent’s upper extremities. In other words, the signs the respondent exhibited in his upper extremities with respect to sensory, vasomotor, sudomoto/oedema changes were out of accord with what would be expected having regard to the rest of the respondent’s body, and hence the Appeal Panel is satisfied that there were asymmetric temperature changes and asymmetric skin colour changes and also sweating asymmetry in the respondent’s upper extremities. The Appeal Panel also observes that, given there was no error with respect to the AMS’s findings regarding the respondent’s restricted range of movement of the joints of his upper extremities and no error with respect to the AMS’s impairment ratings based upon the restricted range of movement of the respondent’s joints in his upper extremities, the Appeal Panel can use those ratings and assessments when reassessing the medical dispute.[1]
[1] Queanbeyan Racing Club Ltd v Hannah Burton [2021] NSWSC 315
For these reasons, the Appeal Panel has determined that the MAC issued on 17 November 2020 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

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 Dr 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)
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. Right Upper Extremity	5/4/17 and 23/10/17	Chapter 2 Pages 10-12 Chapter 14 Pages 81-83	Chapter 16 Pages 459-479 Tables 16.12-46 Page 482 Table 10.10	45%	Nil	45%
2. Left Upper Extremity	5/4/17 and 23/10/17	Chapter 2 Pages 10-12 Chapter 14 Pages 81-83	Chapter 16 Pages 459-479 Tables 16.12-46 Page 482 Table 10.10	40%	Nil	40%
Total % WPI (the Combined Table values of all sub-totals)					67%

Marshal Douglas
Member
Dr Gregory McGroder

Medical Assessor

Dr John Brian Stephenson

Medical Assessor

20 April 2021