Turner v Truss T Frame Timbers Pty Ltd
[2021] NSWPICMP 9
•8 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Turner v Truss T Frame Timbers Pty Ltd [2021] NSWPICMP 9 |
| APPELLANT: | Matthew Turner |
| RESPONDENT: | Truss T Frame Timbers Pty Ltd |
| APPEAL PANEL: | Ms Jane Peacock Dr James Bodel Dr Brian Stephenson |
| DATE OF DECISION: | 8 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Chronic Regional Pain Syndrome (CRPS); appellant complained about the Medical Assessor’s (MA) failure to assess impairment from CRPS and adequacy of reasons; Held- MA provided sufficient and clear reasons why CRPS was not assessed because on his clinical findings on the day of examination there was no rateable impairment; MAC upheld. |
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 Mr Matthew Turner (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yui Key Ho, a Medica Assessor (MA), 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 (1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The Registrar 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 Workers compensation medical dispute assessment guidelines 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 Workers compensation medical dispute assessment guidelines.
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).
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 Workers compensation medical dispute assessment guidelines.
As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition 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.
The appellant seeks to admit the following evidence:
(a) Medical Report of Dr Min Fee Lai dated 16 September 2020 and photographs.
The report cannot be admitted because it was evidence in the form of a medical opinion that was available to the appellant prior to the medical assessment by the MA and concerns whether the appellant can be classified as suffering Chronic regional Pain Syndrome (CRPS) and rated according to the Guides. This is the very question assessed by the MA who is required to make his assessment on the day of examination. The photographs are of the appellant’s upper extremities which were examined by the MA on the day of assessment.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) Medical Report of Dr Min Fee Lai dated 16 September 2020 and photographs.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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 have been considered by the Appeal Panel.
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. 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.
The matter was referred by the Registrar to the MA as follows:
“The following matters have been referred for assessment (s 319 of the 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: 23 November 2016
· Body part/s referred: Right upper extremity (wrist, elbow)
Left upper extremity (elbow) consequential condition
· Method of assessment: Whole person impairment
· Issues Determined by Arbitrator: refer Certificate of Determination dated 17 June 2020 by Arbitrator William Dalley”
The MA issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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 (wrist + elbow) | 23 November 2016 | Figure 16-28, 31, 34 and 37 | 5% | No deduction | 5% | |
| 2. Left upper extremity | 23 November 2016 | Page 12, Clause 2.18 | 1% | No deduction | 1% | |
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
The worker appealed.
In summary, the appellant’s complaints on appeal concerns the MA’s failure to assess WPI as a case of CRPS and that the MA had failed to provide sufficient reasons.
In summary, Truss T-Frame Timbers Pty Ltd (the respondent) submitted that the MA did not apply incorrect criteria nor did he make a demonstrable error and he provided sufficient reasons that the MAC should be confirmed.
The role of the MA is to conduct an independent assessment on the day of examination. The MA is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment. An assessment of impairment is made on the basis of the findings on the day of examination. That assessment must be made on the basis of a correct application of the criteria in the Guides.
The Panel notes that the MA has taken a detailed history of injury which is consistent with the other evidence that was before him.
The MA has taken a detailed history as follows:
“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Patient claimed he worked in a process line and involved a lot of timbers. On 23 November 2016, he suffered a lifting injury of the heavy timbers at work. The first time he noticed the pain in the right elbow, he could not recall where the pain was but just everywhere in the right elbow. Then he had to lift the second time, he complained of pain in the right wrist. He carried on to work but made a report about the problems. The next day, the pain was still bad, especially in the right wrist, so he went to see the family doctor. Investigation was done, which included MRI of the right elbow and right wrist on 2 December 2016. In the elbow, there was some extensor tendinosis, what we call tennis elbow, without tendon tear. In the right wrist, there was a ganglion, which was of a reasonable size and the mass effect can create carpal tunnel syndromes. He was referred on to see hand surgeon Dr John Tawfik, with the review on 14 December 2016, roughly three weeks after the injury. There was a suspicion of carpal tunnel syndrome, so he was advised to have aspiration of the ganglion from the wrist area together with steroid injections. He was also referred to do a nerve conduction test to confirm carpal tunnel syndromes. There was a suggestion from Dr Tawfik, that surgery may be required if the steroid injection did not help with the carpal tunnel syndromes. Certainly, he was also diagnosed to have tennis elbow.
The nerve conduction test was done on 22 December 2016. It was a normal study. He was under the care of Dr Tawfix. Repeated MRI of the right wrist was done on 6 February 2017 and 30 June 2017. Both confirmed the ganglion cyst was decreasing in size. Although the patient mentioned to me that aspiration was not successful and only steroid was given around the median nerve and he still had the trouble. There was also a repeated nerve conduction test on 20 July 2017, which was also a normal study. He has also been reviewed by neurologist Dr McGrath in November 2017 and no positive diagnosis was found. Certainly, there was no features of chronic regional pain syndrome at that time when assessed by the neurologist as Dr John Tawfix failed to find any surgical lesions, but at one point as he was noticed to have colour change, temperature differences in the right hand, he was referred on to see Dr Tan, the pain specialist and rehabilitation doctor in 2018. He was treated as a case of chronic regional pain syndromes and has tried ketamine infusion. Unfortunately, he only mentioned the infusion probably only helped the problem for two days when he was in the hospital. Subsequently, there was further investigations including repeating MRI of the right wrist on 19 November 2018. Once again, there was no major pathologies noticed. He was also sent back to Dr John Tawfix, who failed to find any surgical lesions when he was reviewed in January 2019. Repeated ultrasound around that time also confirmed there was no more ganglion inside the carpal tunnel and the median nerve is normal in size and appearance. He mentioned to me that there were some attempts to inject the tennis elbow on the right side but it was not helpful according to the patient.
He also told me he used to have problem in the left shoulder, which happened many years before this work injury four years ago in 2016. He had repeated dislocations of the left shoulder and due to favouring the use of right upper limbs, he found more trouble in the left shoulder. He did not complain very much about the left elbow, only with mild discomfort on the lateral side. Certainly, no problem of the left wrist.
· Present treatment:
He is using ketamine cream. He put on a wrist splint on the right side and he is taking painkillers including Neurofen.
· Present symptoms:
He complained of pain in the right elbow, globally everywhere, more seems to be on the extensor surface of the forearm. The elbow remains sore, stiff and weak. Similarly in the wrist, he also complained of stiffness. Most of the pain according to him, seems to be on the lateral side of the distal radius corresponding to the area which we diagnose as a case of De Quervain's disease. He says the right hand is not strong. He cannot make a full grip and he always complained of numbness in the right hand, but when I asked where the numbness is, he said globally everywhere in the hand, both on the dorsum and the anterior aspect.
· Details of any previous or subsequent accidents, injuries or condition:
He declined any previous or subsequent accidents, injuries or condition.
· General health:
He claims to be in good health except the left shoulder have recurrent dislocation.
· Work history including previous work history if relevant:
· Social activities/adl:
He says he cannot use the right hand doing very much and have to use the left hand on all the jobs.”
The guides provide specific criteria for the assessment of CRPS at Chapter 17 as follows:
“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.
Complex Regional Pain Syndrome Type 1
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:
o 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.”
The MA conducted a physical examination and recorded his findings as follows:
“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 differences in the hair and nail growth. The hands demonstrated full range of movement. He just have voluntary weakness in every joint in the right upper limb from the elbow to the fingers, but I cannot find any features of carpal tunnel syndrome. Thenar muscle is still bigger on the right compared to the left. I cannot rely on Phalen’s test and Tinel sign because patient always says there is numbness in the hand all 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 have a range of movement 10˚ - 120˚. The left elbow is 0˚ - 130˚. 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 the left is 60˚. Flexion is 60˚ on both side. Radial deviation is 15˚ on the right and 20˚ on the left. Ulnar deviation is 20˚ on the right and 30˚ on the left.”
The MA had regard to the available radiological investigations.
The MA summarised the injury and his diagnosis as follows:
“Summary of injuries and diagnoses:
Mr Matthew Turner seems to have a lifting injury, presenting with right tennis elbow and probably with traumatic carpal tunnel syndromes. The initial pathology was the injury probably causing a ganglion cyst that may compress on the median nerve but that ganglion decreased in size and the median nerve and nerve conduction test all reported back as normal. So, carpal tunnel syndrome was excluded. At one point there was a problem of chronic regional pain syndrome with treatment attempted and poor outcome, but gradually all these features disappeared on the date of examination.
Consistency of presentation:
I believe there is consistency of the clinical presentation to the history of problems and the clinical findings and radiological investigations.”
The MA has had regard to the other evidence that was before him:
“My opinion certainly concur with Dr Breit. My clinical examination findings in the range of movement of the right elbow and wrist is probably even better than his examination finding six months ago. That explains why I only came up to 9% upper limb impairment, which will equal to 5% whole person impairment.
I cannot agree with Dr Lai. I do not agree he can qualify as a case of chronic regional pain syndrome because I cannot find any clinical features to support that diagnosis, which probably explains why there is such a big discrepancy between our assessments. There is difference in the examination findings in the range of movement in the right wrist. For the left elbow, I agree with Dr Lai’s assessment.”
The MA’s role is to make an independent assessment on the day of examination. He has to rely on his findings on the day of examination and must make clinical judgments using his clinical expertise. He is not bound to follow the opinion of other experts whose opinions are in evidence before him. The MA has had clear regard to the other opinions that were before him and given a brief explanation of why his opinion differs. He is not required to do more than this. The MA’s findings on physical examination, and his regard to the other evidence that was before him, provide sufficient reasons to support his finding that CRPS is not a rateable impairment as a result of the injury referred to him.
The Panel can discern no error in the assessment by the MA that CRPS was not a rateable diagnosis in this case.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 September 2020 is confirmed.