Turner v Truss T-Frame Timbers Pty Ltd - [2021] NSWPICMP 232

DETERMINATION OF APPEAL PANEL
CITATION:	Turner v Truss T-Frame Timbers Pty Ltd [2021] NSWPICMP 232
APPELLANT:	Matthew Turner
RESPONDENT:	Truss T-Frame Timbers Pty Ltd
APPEAL PANEL:	Member Paul Sweeney Dr Roger Pillemer Dr John Ashwell
DATE OF DECISION:	6 December 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker appeals from determination of Medical Assessor that he did not have Complex Regional Pain Syndrome (CRPS) in accordance with Table 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016; fresh evidence received from Dr Lai, a hand surgeon, who assessed whole person impairment on the basis of CRPS; Held - after further medical examination, the panel determined that the appellant did not have clinical signs in all of the categories required for CPRS; only Dr Lai had recorded the presence of the signs in each of the categories in his examination; Medical Assessment Certificate confirmed.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 September 2020, Matthew Turner (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor (MA, formerly an Approved Medical Specialist) who issued a Medical Assessment Certificate (MAC) on 3 September 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria; and
· 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 grounds 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 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was formerly employed by Truss-T Frames Pty Ltd (the respondent) assembling trusses and frames. The work required the repetitive use of a hammer to nail the framework and the lifting of the complete frames for the purposes of storage.
On 23 November 2016, while performing this work, the appellant experienced “a popping sensation” in his right arm. He has continued to experience pain in that arm.
The appellant was initially treated by Dr Hezajin, a general practitioner, who recommended conservative treatment. When his symptoms did not abate, he was referred to Dr John Tawfik, an orthopaedic surgeon…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] NSWPICMP 232
Decision Date: 6 December 2021

CaseChat Overview and Summary

Turner brought an appeal against the determination of a medical assessor that he did not have Complex Regional Pain Syndrome (CRPS) in accordance with Table 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. The determination was being appealed by Turner as he had sought compensation for CRPS. The appeal was heard in the District Court of New South Wales. Turner's appeal hinged on fresh evidence provided by Dr Lai, a hand surgeon, who had assessed Turner's whole person impairment based on CRPS. The court had to decide whether the fresh evidence provided by Dr Lai was sufficient to overturn the original determination.

The central legal issue was whether Dr Lai's evidence was sufficient to establish that Turner had CRPS in accordance with Table 17. Turner argued that Dr Lai's assessment was sufficient as it met the criteria in Table 17. However, the respondent argued that Dr Lai was the only medical professional to record the presence of the signs in each of the categories and that further medical examination showed Turner did not have clinical signs in all of the categories required for CRPS. The court had to weigh the evidence of Dr Lai against the findings of the further medical examination.

The court found that only Dr Lai had recorded the presence of the signs in each of the categories in his examination. The further medical examination showed that Turner did not have clinical signs in all of the categories required for CRPS. The court was not satisfied that Dr Lai's evidence was sufficient to establish that Turner had CRPS. The court confirmed the Medical Assessment Certificate. Turner's appeal was dismissed.

The court dismissed Turner's appeal and confirmed the Medical Assessment Certificate. The court was not satisfied that the fresh evidence provided by Dr Lai was sufficient to establish that Turner had CRPS. Turner's appeal was dismissed, and the determination of the medical assessor that Turner did not have CRPS was upheld.

Orders