Turner v Truss T-Frame Timbers Pty Ltd
[2021] NSWPICMP 232
•6 December 2021
| 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, 4th 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, 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
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 who specialises in treatment of the hand. Dr Tawfik referred the appellant for cortisone injections and aspiration of a ganglion at the wrist. He was subsequently referred to an occupational physician, Dr Ian Tague, a pain specialist, Dr Stuart Tan and, Dr Rob McGrath, a neurologist.
Dr Tan diagnosed chronic regional pain syndrome relating to the appellant’s right forearm, wrist and hand. He prescribed topical creams and ketamine infusions to control the pain. Unfortunately, these treatments have not cured the appellant’s symptoms. By his statement, he says that he has also developed pain in his left elbow as a result of overusing that arm to compensate for his injured right arm.
The respondent accepted liability for the injury to the appellant’s right arm and he has been paid weekly compensation pursuant to the Workers Compensation Act 1987 (the 1987 Act). By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the 1987 Act. His claim is based on the opinion of Dr Min Fee Lai, a general, plastic and reconstructive surgeon, who initially saw the appellant on 29 October 2019 and provided a report of that date to his solicitors.
At his consultation, Dr Lai recorded that the appellant complained of “constant burning and stabbing pain in the whole of his right forearm from the elbow into the wrist as well as into his right hand”. He also recorded that the appellant experienced extreme sensitivity to touch in the right upper extremity and skin colour changes in the right hand (which turned blue and feels cold in comparison to the left hand). Dr Lai diagnosed Complex Regional Pain Syndrome (CPRS) and assessed impairment arising from that condition in accordance with chapter 17 of the Guidelines.
On that basis, he assessed the appellant as suffering from 25% whole person impairment (WPI) in respect of his right upper extremity. He also assessed 1% WPI of the appellant’s left upper extremity where he diagnosed a lateral epicondylitis of the elbow. A combination of those figures resulted in an assessment of 26% WPI.
Dr Breit, an orthopaedic surgeon, saw the appellant at the request of the respondent on 30 January 2020 and provided a report dated 6 February 2020. On examination of the appellant, Dr Breit recorded the following:
“There was a fair range of shoulder movements bilaterally.
The right hand was a little pale compared to the left, there was no swelling and no skin changes. It was not hot, dry or sweaty and there were no hair changes, no nail changes and no digital pulp changes. There was said to be some diminution of sensation involving the entire right hand and the volar aspect of the forearm only, the rest was normal.”
Dr Breit accepted that the appellant suffered bilateral epicondylitis. He stated that there was “nothing to indicate that he had CRPS”. He was asked to comment on Dr Lai’s report but merely stated that the “main area of different [sic] is the diagnosis of CRPS with which I disagree”. He assessed 11% WPI.
As the difference of opinion in relation to WPI gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act, the Registrar of the former Workers Compensation Commission referred the dispute to a MA.
On 3 September 2020, Dr Ho issued a MAC in which he certified that the appellant suffered 6% WPI. He did not accept that the worker suffered from complex regional pain syndrome at the time of his examination although he accepted that the condition of chronic regional pain syndrome had existed “at one point”. It is from that certification that the appellant appeals.
A previous medical assessment panel was convened to consider the appeal. However, the decision of that panel was quashed by Schmidt AJ in Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC 1088 (27 August 2021).
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 2006. As a result of that preliminary review, the panel determined that it was necessary for the worker to undergo a further medical examination.
The appellant requested an examination by a medical practitioner who is a member of the panel in his Application. An initial review of the MAC did not suggest error on the part of the MA. However, Schmidt JA in the Supreme Court quashed the decision of the previous panel on the basis that it had erred in not concluding that the assessor failed to give adequate reasons. The Judge stated at [103] that:
“In this case, however, the assessor having concluded that Mr Turner did not any longer suffer from complex regional pain syndrome, not having doubted that when examined by Dr Lai he was suffering that condition, an explanation, albeit short, had to be given for that conclusion by reference to the applicable criteria. Thus, the assessor’s reasons not only have to refer to the criteria specified in Table 17.1, they have to explain why the assessor concluded that they were no longer satisfied.
The assessor agreed with Dr Breit’s diagnosis, but because the criteria in Ch 17 arose to be considered, it was not sufficient for the assessor to give an account of a claimant’s history and symptoms, to refer to the competing medical opinions and to prefer one over the other. The path of reasoning which led to the conclusion that Mr Turner had suffered, but had recovered from complex regional pain syndrome, had to be disclosed, including by reference to the applicable criteria imposed by Ch17.”
As her Honour held that the reasons proffered by the MA in the MAC were inadequate, the panel determined that it was appropriate for Dr Pillemer to re-examine the appellant.
FRESH EVIDENCE
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
After the MAC was issued, the appellant was re-examined by Dr Lai by video link and telephone on 16 September 2020. He sought to admit the report of Dr Lai of that date and colour photographs of the applicant’s hands, apparently taken by Dr Lai, as fresh evidence on the appeal.
The respondent opposed the admission of these documents. It submitted that the report was “procured in response to, and for the purpose of challenging the substance of the original Medical Assessment Certificate of the MA.” It argued that the report “seeks to cavil with and challenge the clinical findings of the MA. That was inappropriate: CSR Ltd v.Ewins [2020] NSWSC 511”.
It is true that a medical report obtained after the MAC for the sole purpose of challenging the findings of the MA will rarely be admitted into evidence. As the respondent argues, an assessor is required to conduct an assessment of the worker as they present on the day of the assessment. Unless it can be established that there is error, proof of different findings after the medical assessment is irrelevant.
The circumstances of this case, however, are unusual. Dr Lai’s initial report is more than two years old. The original medical assessment has been held to be erroneous by a Judge of the Supreme Court and the panel has determined that a further medical examination is necessary. The respondent has not indicated that it wished to have the appellant re-examined by its qualified orthopaedic surgeon. In those circumstances, the panel concluded that it is in the interests of justice to admit the further medical report from Dr Lai and the photographs.
The panel notes that Dr Lai states in his report that there are “limitations” in regard to physical examination of patient’s audio-visually. Equally, photographic evidence is far from the best evidence of colour changes or the other indicia of complex regional pain syndrome.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original assessment and has taken them into account in this determination.
Further medical examination
Dr Pillemer of the panel conducted an examination of the worker on 1 November 2020 and reported to the panel. His report of that date is as follows:
“1. The workers medical history, where it differs from previous records
I read Mr Turner the history as given to the AMS (Dr Y K Ho) on 31 August 2020. Mr Turner was happy with the history as given. His only concern was that he felt the AMS was concentrating on the left shoulder region, whereas this was simply aggravated, being a pre-existing problem.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Turner was seen by the AMS some 14 months ago and he does feel he is very much the same at the present time with ongoing discomfort in his right wrist region and right elbow, with symptoms being described as being constantly present and ranging from 6-8/10. He says he has simply ‘learnt to live with it’.
He indicates discomfort in the posterior elbow region as well as in the wrist region and radial border of his distal forearm, as well as a feeling of numbness in the fingers of his right hand. On specific questioning he is aware of occasional discomfort extending above the elbow towards his right shoulder region.
Symptoms are aggravated by activities such as trying to put on his shoes and he cannot play with his four children anymore, and he is unable to lift his 4 year old daughter. He even has problems with toileting and opening doors. Sleeping is also a problem for him. He does get some relief by resting and using his splint on the right side.
General Health
This is described as being otherwise good, but he does have ‘mental problems’, and is on antidepressants for this. He says he ‘gets cranky with the kids’.
Past History
Mr Turner feels he has had fractured fingers from playing cricket in the past but has never had any other problems with his right upper extremity.
Activities of Daily LivingHe cannot get back to gainful employment and he says he cannot go fishing in his boat anymore. As mentioned he cannot lift his 4 year old daughter. He used to do all the work in his garden including trimming of the trees, but he now has to get somebody in to do the gardening and mowing for him.
When he plays with the children he cannot really throw with his right arm.
He lives at home with his partner and four children, and he does all of activities using his left arm. When he goes shopping he only carries very light items, once again only using his left arm.
3. Findings on clinical examination
Mr Turner is an adult male in no obvious discomfort and importantly with a very straight-forward and open presentation.
He undresses and dresses without a problem, has a good range of cervical movement and a full range of shoulder movements bilaterally. He has a full range of elbow movements compared to the opposite today with slight restriction of right wrist movements as noted by the AMS.
Importantly Mr Turner does not show any features of complex regional pain syndrome as defined by Table 17.1 of the Guidelines.
1. There is not continuing pain which is disproportionate to any causal event.
2. With regard to the sensory symptoms:
Sensory:
· There is no evidence of hyperaesthesia or allodynia, but importantly he does have fairly generalized hypoaesthesia to pinprick of his right upper extremity which is discussed below.
· Vaso-Motor
There are no reports of any temperature asymmetry or skin colour changes or asymmetry.
· Pseudomotor/Oedema
Mr Turner does feel that he gets slight swelling of the digits of his right hand but no problems with any sweating.
· Motor/Trophic
There is no report of any decreased range of motion or motor dysfunction such as tremor and no trophic changes complained of.
3. On Examination:
· Sensory
As mentioned Mr Turner does have hypoaesthesia in a generalized fashion which is discussed below, but there is no allodynia.
· Vaso-Motor
There is no evidence of any temperature asymmetry or skin colour changes.
· Pseudomotor/Oedema
There is no evidence of any swelling or sweating asymmetry.
· Motor/Trophic
There is no evidence of restricted range of movement apart from slight restriction of his wrist and no evidence of motor dysfunction or trophic changes with regard to hair, nail and skin.
4. In summary then, there is nothing to suggest that Mr Turner is suffering from complex regional pain syndrome as defined in Table 17.1.
Mr Turner does however in my opinion have objective physical signs with distinct hypoaesthesia to pinprick of the whole of his right upper extremity from the shoulder region downwards, and up the medial aspect of his right forearm in the distribution of C5, C6, C7 and C8.
Importantly he then develops normal sensation to pinprick in the medial aspect of his right upper arm in the T1 distribution. This is distinct and present with repeated testing.
In addition percussion in the supraclavicular region of his right shoulder area reproduces paraesthesias radiating down into the fingers of his right hand which are the symptoms that he is complaining of (positive Tinel’s sign). He also has a positive Tinel’s sign in relation to his ulnar nerve on the medial aspect of his left elbow, with paraesthesias radiating into his right hand. These symptoms and signs may represent a brachial plexus injury but they are not evidence of CRPS.”
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been carried out.”
Medical Assessment Certificate
The parts of the MAC which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the appeal panel. The appellant submitted that the AMS had erred in that he had not provided sufficient reasons to support his findings and “particularly for declining to assess WPI as a case of chronic regional pain syndrome”.
The appellant submitted that Dr Lai’s report of 29 October 2019 had addressed “in particular detail the clinical prerequisites for a finding of CRPS set out in Table 17-1 of the Guidelines.” Conversely, the MA had failed to address the clinical findings of Dr Lai as set out in his report. Rather, the MA took “a much more general approach … deciding he could not find ‘any clinical features’”.
The appellant recited the clinical features recorded by Dr Lai in his report. He argued these included:
“Extreme sensitivity to pinprick in his right forearm and hand; sensitivity to pressure and touch in the whole of his right forearm and hand; right hand bluish in colour compared to the left; distended veins obvious; right hand cold to touch; skin of his right forearm appeared shinier than his left; right palm more moist than left; right hand slightly swollen compared to the left hand; decreased range of movement of right wrist and elbow; Tinel’s, Phalen’s signs all positive for the median nerve in the right wrist.”
In particular, the appellant argued that the MA did not record that he had undertaken pinprick testing of the worker’s right forearm and has not referred to the “bluish” character of the right hand or to other features of Dr Lai’s examination including the reference to “obvious” distended veins of the right hand.
The appellant submitted that:
“Given the very large difference in percentage impairment that a finding of chronic regional pain syndrome would make (in this case 26% v. 6%), it was incumbent on the AMS to more particularly address the symptoms that Dr Lai had documented in his report that were applicable to Table 17-1. Instead the AMS has taken a very general approach to documenting his findings on examination, that results in one objectively not being able to properly understand the difference between the assessments, and to accept the AMS assessment one must take a leap of faith and assume he did properly examine for the symptoms that Dr Lai had documented”.
The appellant then referred to the additional report of Dr Lai dated 16 September 2020 and to the colour photographs which were said to demonstrate “the darker tinge of the right hand”. The appellant argued that following this examination Dr Lai was satisfied that all of the pre-conditions for a diagnosis of CRPS in Table 17-1 of the Guidelines had been met.
By its response the respondent submitted that there was no demonstrable error by the AMS in rejecting a diagnosis of CRPS. It observed that on examination the MA had stated that there were:
“No temperature differences, no colour differences and no sweating differences. The AMS noted no trophic changes and the appellant’s hands demonstrated a full range of motion.”
In the MAC, the MA stated that on comparison of the appellant’s hands “he could not see any features of CRPS”. Accordingly, he reached a conclusion that “any features of chronic regional pain syndrome had resolved”. This finding was consistent with the clinical examination of Dr Breit on 5 February 2020.
The respondent referred to the decision of the Supreme Court in Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22 (Mahenthirarasa), where it was said that:
“A demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion.”
The above submissions must, of course, be read in the light of the reasons of her Honour Justice Shmidt in the Supreme Court.
FINDINGS AND REASONS
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. 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.
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
The MA made the following findings on examination:
“On comparing the two hands, I cannot see any features of chronic regional pain syndrome. There is no temperature differences, no colour differences and no sweating differences. The soft tissues look exactly the same. There is no difference in the hair and nail growth. The hands demonstrated full range of movement. He just had voluntary weakness in every joint in the right upper limb from the elbow to the fingers, but I cannot find any feature of carpal tunnel syndrome. Thenar muscle is still bigger on the right compared to the left. I cannot rely on Phalen’s and Tinel sign because patient always says there is numbness in the hand all of the time. But neurologically, there is no features to support carpal tunnel syndrome. On tape measurement, both the right arm and the forearm are bigger than the left. By measurement, it is at least 1.5cm bigger in the arm and 1cm bigger in the forearm when comparing the right to the left. Being right handed, that is corresponding to the right hand dominance feature and cannot explain his significant weakness or problem in the right upper limbs from the patient’s descriptions.
The right elbow has a range of movements 10°120°. The left elbow is 0°-30°. Supination is 60° on the right and 70° on the left. Pronation is 70° on the right and 80° on the left.
For the wrist, right side extension is 50° and left is 60°. Flexion is 60° on both side. Radial deviation is 15° on the right hand and 20° on the left. Ulnar deviation is 20° on the right and 30° on the left.”
Based on these findings, the MA concluded that the appellant may have suffered a right tennis elbow and traumatic carpal tunnel syndrome at the time of his initial injury. However, subsequent EMG testing demonstrated that the carpal tunnel syndrome had abated. He thought there may have been a problem of CRPS in the past but by the time of his examination there were no features of that condition.
Table 17-1 of the Guidelines which is headed Diagnostic Criteria for Complex Regional Pain Syndromes Types 1 and 2 is as follows:
“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.”
On receipt of Dr Pillemer’s report, the panel reconvened to consider his findings, the report of Dr Lai admitted as fresh evidence, and the attached photographs. It also reconsidered the appellant’s medical history since the injury in the context of the diagnostic criteria for CRPS set out in Table 17.1 of the Guidelines. Importantly, these require the presence of a number of signs which must be “observed and documented at the time of the examination” by the medical assessor.
Plainly, the MA did not find evidence of vasomotor, sudomotor/oedema, or motor/trophic changes as required by the Guidelines on his examination of the appellant’s right hand. His findings are quite specific in that regard. As he did not document signs in these categories, it was not open to him to make a finding of CRPS.
Similarly, Dr Pillemer on his examination did not document signs in these categories. Dr Pillemer found sensory changes, which may be consistent with a brachial plexus condition, but this diagnosis has not been established by the extensive investigations undertaken by the appellant’s treating doctors. In particular, neither Dr Tawfik nor Dr McGrath, the appellant’s treating neurologist, have diagnosed such a condition. It has not been established by the EMG testing. It is not a diagnosis propounded by Dr Lai as a cause of the appellant’s permanent impairment. It is necessary to briefly review the evidence of the Dr McGrath and Dr Tan below.
Dr McGrath undertook lateral median and ulnar and motor and sensory nerve conduction studies of the appellant’s upper extremities on two occasions. He concluded that there was no evidence of median or ulnar nerve dysfunction. He concluded that these tests demonstrated:
“Normal upper limb nerve conduction studies”
Dr McGrath also saw the appellant at the request of Dr Tawfik on 13 November 2017, for an opinion. He recorded the following:
“Examining him today there isn’t any wasting around APB. He has no weakness of the thumb in abduction or in distal flexion. His hand flexors are all similarly normal but he has quite significant and intense pain around the lateral aspect of the right wrist, being the dominant site. He also has discomfort involving the dorsal wrist, intermittently extending up to the forearm. There is no obvious swelling to be seen and no colour change distally. Phalen’s test today was pretty much negative and he wouldn’t have been able to do that before.”
Dr McGrath stated that he assured the appellant that there was no evidence of any “ongoing neurological deficit” though he may have had a degree of intermittent median nerve compression. He was unsure of why the appellant had ongoing pain on thumb extension.
In September 2019, the appellant underwent a bone scan at the request of Dr Stuart Tan, the appellant’s pain specialist. Dr Wadhwa reported that the bone scan did not identify any “acute injury”. There were low grade arthritic changes in the elbows in keeping with features of lateral epicondylitis. However, no other significant abnormality was noted. In particular, the radiologist reported:
“Delayed images do not demonstrate features of chronic regional pain syndrome on the right.”
The report from Dr Tan in evidence is a report dated 10 October 2018. That report stated that the appellant’s symptomatology was consistent with CRPS, although he did not record clinical findings which were consistent with the diagnosis of that condition or with the prerequisites for a certification of CRPS obtained in Table 17-1 of the Guidelines.
It is readily apparent from the above that Dr McGrath did not find swelling or colour changes on his examination of the appellant on 13 November 2017. It is, therefore, the case that such signs have been absent on four medical examinations conducted by Dr McGrath, Dr Breit, the MA, and Dr Pillemer over a period of some four years. The only specialist medical practitioner who has observed such signs is Dr Lai. Obviously, the panel cannot conclude that Dr Lai was mistaken in his examination of the appellant. However, it is apparent that his findings in respect of CPRS have not been replicated by any other medical practitioner who provided a report for the purposes of these proceedings. Further, it is not supported by the bone scan which demonstrated no features of CRPS.
The panel concluded that it should prefer the findings and opinion of Dr Pillemer to those of Dr Lai. Dr Pillemer had the advantage of examining the applicant in person on 1 November 2021. That is a considerable advantage when examining for signs in the categories required by Table 17.1 of the Guidelines. The photographs provided by Dr Lai are of rather dubious value in diagnosing CPRS. Dr Pillemer’s findings in respect of CPRS are consonant with most of the other medical evidence in the case.
As the panel noted above, the MA included a quite detailed assessment of his examination of the appellant’s upper extremities in his examination. Patently, he did so in the context of the requirements of Table 17.1 of the Guidelines. He was unable to find and document the signs that are necessary for a conclusion that the appellant suffered from CPRS. With the exception of the findings in respect of sensory loss, Dr Pillemer’s examination replicated that of the MA. In the opinion of the panel, there is no evidence of error in the findings of the MA.
For these reasons, the appeal panel has determined that the MAC issued on 3 September 2020 should be confirmed.
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