Sydney Catholic Schools Limited v Loreto
[2022] NSWPICMP 60
•24 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sydney Catholic Schools Limited v Loreto [2022] NSWPICMP 60 |
| APPELLANT: | Sydney Catholic Schools Limited |
| RESPONDENT: | Tania Di Loreto |
| APPEAL PANEL: | Member Catherine McDonald Dr Mark Burns Dr Drew Dixon |
| DATE OF DECISION: | 24 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Chronic regional pain syndrome; inconsistency observed on examination; Medical Assessor had taken inconsistency in range of movement in some joints into account because he did not include those joints in his assessment; Bojko v ICM Property Service Pty Ltd; Held- Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 December 2021 Sydney Catholic Schools Limited (SCSL) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr T Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 November 2021.
SCSL 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 was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Di Loreto was employed as a learning support officer at a school for children with high needs. On 4 August 2017 a student who was known to throw rocks picked up a rock to thrown it. Ms Di Loreto put out her left hand to calm him and her right hand to protect her face. She was hit by the rock on the dorsum of her right hand and wrist, laterally over the fourth and fifth knuckles.
Ms Di Loreto suffered soft tissue injuries. She was diagnosed with, and treated for, complex regional pain syndrome (CRPS).
The Medical Assessor diagnosed CRPS in accordance with the Guidelines and assessed 35% whole person impairment (WPI) comprised of 40% for sensory deficit, 20% upper extremity impairment due to restricted shoulder movements and 15% upper extremity impairment due to restricted wrist movements.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the assessment made by the Medical Assessor was open to him and there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary and in submissions prepared by its solicitor, Mr Murray, SCSL submitted that the Medical Assessor erred in failing to deal with the inconsistency he observed during his examination when he assessed the degree of impairment. SCSL referred to paragraphs 1.36 and 2.5 of the Guidelines and said that the MAC does not disclose any effort to make sure that the assessment results reflected the true degree of impairment and that the Medical Assessor simply adopted his range of motion findings. It sought that a further examination be undertaken.
In reply and in a short submission prepared by her solicitor Mr McManis, Ms Di Loreto submitted that there was nothing in the MAC which showed that the Medical Assessor did not take the inconsistency range of motion into account.
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[1] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.
CRPS
SCSL did not dispute that Ms Di Loreto suffers CRPS type 1 nor did it dispute that the assessment of 40% for Grade 3 sensory deficit under Table 16-10 of AMA 5 was appropriate.
The criteria for assessing CRPS are set out in Chapter 17 of the Guidelines – Evaluation of permanent impairment arising from chronic pain. The Guidelines provide that:
“Table 17.1 is used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis. It is important to exclude diagnoses that may mimic CRPS, such as disuse atrophy, unrecognised general medical problems, somatoform disorders and factitious disorder. Once the diagnosis is established, assess impairment as in AMA5.
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 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.
Then consider the following in assessing CRPS1:
·If the criteria in each of the sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied, the diagnosis of CRPS1 may be made.
·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 and AMA5 Table 17.3 (p 527) for the lower extremity.”
Paragraph 1.36 of the Guidelines provides:
“Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.”
Paragraph 2.5 of the Guidelines sets out the way in which range of motion is assessed and says that if there is inconsistency, the range of motion “should not be used as a valid parameter of impairment evaluation.
The MAC
The Medical Assessor observed some inconsistency during his examination. He said:
“On inspection there is a slight dusky discolouration of the right hand, and the hand looks puffy compared to the left but there was no oedema. Noted is the fact that the right fourth and fifth digits are clawed and are held against the palm in full flexion. She cannot actively extend her fingers but she can passively and able to do it without any difficulty. Once the fingers were straightened she at times clenched the two fingers in a spring action, like letting go of an elastic band. With encouragement she was able to maintain the fingers straight, and at times she was able to apply slight force in extension with the fingers extended.
When asked to grip she predominantly grips with the thumb, index and middle fingers but there was some gripping activity with the other fingers.
When asked to grip with the fourth and fifth fingers, in contrast to her reflex activity of clawing the fingers, she applies no force with those digits and the fingers do not clench on my fingers.
I was able to get full extension and flexion of all digits and the movements were the same as the non-injured left hand.
…
There were inconsistencies during the examination as recorded. Also noted was her ability to use the right hand sorting and getting x-rays out of the bag in contrast to her keeping the right arm fairly close to her body and the protective manner of the limb during the examination.”
The Medical Assessor assessed the range of motion of Ms Di Loreto’s shoulders, elbows and wrists. He set out his findings in respect of her shoulders and wrists and noted that there was no loss of the range of motion in her elbows.
He said:
“The claimant has been diagnosed with CRPS by her treating doctors and independent medical examiners although when Dr Millons examined the claimant he did not find all the signs to satisfy the definition of CRPS as per the SIRA Guidelines.
Today she describes symptoms of sensory, vasomotor, sudomotor/oedema and trophic changes which have been documented by other examiners in the past.
On examination I found hyperalgesia, temperature asymmetry, asymmetric skin colour changes, evidence of sweating and restricted movements. There was a slight tremor which was also present in the non-injured hand.
In my opinion there is no other diagnosis which better explains the signs and symptoms. The diagnosis has been present for more than a year.
I assess Grade 3 sensory deficit (1) (see 10b). Based on the clinical findings and he presentation today I assess 40% sensory deficit.
For the decreased range of movement associated with the CRPS I have assessed 20% right upper extremity impairment due to restricted shoulder movements (2) (see 10b).
I assess 15% right upper extremity impairment for restricted wrist movements (3) (see 10b).
The combined right upper extremity impairment (20 and 15) is 32% upper extremity impairment.
The combined upper extremity impairment (32 for range of movement, and 40% for sensory loss) equates to 59% upper extremity impairment. 59% upper extremity impairment equates with 35% whole person impairment.”
The Medical Assessor said that he had based his calculations on:
“AMA Guides to the Evaluation of Permanent Impairment, 5th Edition:
(1) Page 482, Table 16-10.
(2) Pages 476 to 479, Figures 16-40 to 16-46.
(3) Pages 467 to 469, Figures 16-28 to 16-31.”
The Medical Assessor explained where his assessment differed from those of the doctors qualified for Ms Di Loreto and SCSL.
Consideration
The Guidelines require the assessment of the loss of the range of motion in each joint involved. In many cases that will involve the assessment of several joints in a worker’s hand as well as the other joints of his or her arm.
The Medical Assessor assessed the range of movement of Ms Di Loreto’s shoulder using Figures 16-40 to 16-46 of AMA 5 and of her wrist using Figures 16-28 to 16-31. He did not assess impairment of any other joints in her right hand or arm and, in particular, he did not assess impairment in the joints of Ms Di Loreto’s right fourth and fifth fingers.
The inconsistency he observed related to the movement of her fingers on examination and the movement of her hand when sorting X-rays.
The Medical Assessor noted that Ms Di Loreto’s fourth and fifth fingers were held against her palm and tested her ability to move and use them. He noted that she was sometimes able to apply slight force. The Medical Assessor observed the way in which Ms Di Loreto gripped – predominantly using the thumb, index and middle fingers but with some gripping activity in the other fingers. When asked to grip, Ms Di Loreto did not use those fingers. The Medical Assessor said that he was able to achieve full extension and flexion of all of Ms Di Loreto’s fingers and the movements were the same on both hands.
Contrary to SCSL’s submission, the Medical Assessor dealt thoroughly with the evidence of inconsistency when he described his examination.
The Medical Assessor did what was required of him under paragraph 1.36 the Guidelines because he did not accept that Ms Di Loreto was unable to move her fourth and fifth fingers. He undertook consistency testing because he made a detailed series of observations to see what she could and could not do. He found that her inability to use those fingers was not plausible and not consistent with a loss of the range of motion in those fingers or in her right hand.
The Medical Assessor also did what was required of him under paragraph 2.5 of the Guidelines. There was inconsistency in the range of movement of Ms Di Loreto’s hand so he did not use the range of motion in her right hand in assessing her impairment. He accepted that those joints were not “involved” in the impairment arising from CRPS.
The MAC must be read as a whole and the submission by SCSL that the Medical Assessor “simply adopted/accepted his range of motion findings” cannot be accepted. The inconsistency in respect of Ms Di Loreto’s hands and fingers was such that the Medical Assessor did not accept that there was a loss of the range of motion in those joints.
The inconsistency in the movement of Ms Di Loreto’s hands did not invalidate the loss of the range of motion of her right shoulder and right wrist which were set out in the MAC. There is no basis to suggest that the Medical Assessor did not assess those joints in accordance with the Guidelines.
The Medical Assessor measured the range of motion of her elbows and found it normal and equal so that there was no assessment in respect of the range of motion of her elbow. He considered it, as he was required to do.
In Bojko v ICM Property Service Pty Ltd[2], Handley AJA said[3] that the worker’s argument:
“… involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’”
[2] [2009] NSWCA 175.
[3] At [39].
The same can be said of SCSL’s argument. A careful reading of the MAC shows that the Medical Assessor included only the joints in which he did not observe inconsistent movement in his assessment of the impairment arising from CRPS. The assessment does not disclose an error.
For these reasons, we have determined that the MAC issued on 10 November 2021 should be confirmed.
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