Uborg v Maranoa Haulage Pty Ltd
[2024] NSWPIC 176
•9 April 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Uborg v Maranoa Haulage Pty Ltd [2024] NSWPIC 176 |
| APPLICANT: | Robert Thomas Uborg |
| RESPONDENT: | Maranoa Haulage Pty Ltd |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 9 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for complex regional pain syndrome (CRPS); whether medical dispute existed; whether Commission could make section 66 order without remittal to Medical Assessor; Held – the alleged dispute was an attempt by the respondent’s legal advisor to distance the respondent from the opinion of its expert witness; all medical experts in agreement that CRPS is the appropriate diagnosis; respondent misunderstood their expert’s response to a question; Etherton v ISS Property Services Pty Ltd, The Star Entertainment Group Ltd v Samaan and first instance cases cited; Table 17.1 of the Guides considered; section 319 of the Workplace Injury Management and Workers Compensation Act 1998 considered; Procedural Direction PIC 6 applied; award applicant for section 66 claim. |
| DETERMINATIONS MADE: | The Commission determines: 1. No relevant medical dispute has been demonstrated. 2. Accordingly, the respondent will pay to the applicant pursuant to s 66 a lump sum equivalent to 31% whole person impairment in accordance with the report of Dr Robinson dated |
STATEMENT OF REASONS
BACKGROUND
Robert Thomas Uborg, the applicant, brings an action against Maranoa Haulage Pty Ltd, the respondent, for lump sum compensation in respect of his left upper extremity, chronic pain and scarring caused by injury on 27 April 2019.
Dispute notices were duly issued and the proceedings were commenced.
ISSUE FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Does Mr Uborg have a diagnosable chronic pain condition?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was set down for hearing by video link on 1 February 2024 but due to a malfunction of counsel’s Internet, written submissions were ordered. Ms Lyn Goodman of counsel appeared for the applicant briefed by Mr Joshua Allen. Mr Greg Young of counsel appeared for the respondent briefed by Ms Jennifer Doyle and Ms Bianca Necovski.
Mr Nathan Ye appeared for the insurer.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents from the respondent, and
(c) Application to Admit Late Documents (AALD) dated 29 January 2024 from the respondent.
Oral evidence
No application was made in regard to oral evidence.
FINDINGS AND REASONS
The facts are in short compass. It is agreed that Mr Uborg sustained injury to his left upper extremity in the course of his employment. Mr Uborg’s occupation was truck driving, which he has been doing since he was 18 years old (he was born in 1970). He commenced working for the respondent in March 2019 and suffered his injury on 27 April 2019, when alighting from the cab of his truck. He rolled his right ankle as he put his foot down, lost his balance and took his weight on his outstretched left hand and wrist, as well as impacting his left hip region.
After undergoing investigations and treatment, on 16 December 2022 he lodged the present claim, relying on the report of Dr Utham Dias, consultant occupational physician, who diagnosed, inter alia, complex regional pain syndrome type 1 (CRPS) affecting the entire left upper limb.
The issue concerns whether the opinion of Dr Paul Robinson, orthopaedic surgeon, who was retained for the respondent, raised a medical dispute.
A referral to a Medical Assessor was made on 20 November 2023, which prompted the respondent to seek the preliminary conference of 8 January 2024 to object to its terms, and to have the issue regarding the CRPS determined by the Commission.
Dr Dias
Dr Uthum K Dias, consultant occupational physician, issued two medicolegal reports on behalf of Mr Uborg, dated 9 December 2022[1] and 5 May 2023.[2]
[1] ARD page 19.
[2] ARD page 38.
In his report of 9 December 2022 Dr Dias took a full and comprehensive history of
Mr Uborg’s career, injuries and treatment. He confirmed on a number of occasions that
Mr Uborg had acquired a complex regional pain syndrome type 1 in his left upper limb. Relevantly, he said:[3]“Mr Uborg has suffered with debilitating symptoms of left wrist pain, stiffness and discomfort on a continual basis over the course of the past 3½ years. Unfortunately, his left wrist condition evolved over the weeks and months following the subject accident into complex regional pain syndrome type 1 affecting his entire left upper limb. The condition was formally diagnosed by September 2019, by a pain specialist, Dr Richard Pendleton.”
[3] ARD page 29.
Dr Dias also said:[4]
“With respect to Mr Uborg’s left upper limb condition, Mr Uborg fulfils the diagnostic criteria for complex regional pain syndrome type 1. Mr Uborg has motor, sensory, vasomotor (skin colour changes), and oedema symptoms and signs consistent with complex regional pain syndrome type 1 affecting his left upper limb. Therefore, impairment assessment for Mr Uborg’s left upper limb should follow along the principles outlined on Page 81 of the New South Wales Workers’ Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition.
With respect to Mr Uborg’s sensory deficits affecting his left upper limb, a formal neurological examination of Mr Uborg’s left upper limb was not possible on today's assessment, due to the limitations of the video link assessment…..”
[4] ARD page 35.
I note that Dr Stapleton’s opinion was dated 20 September 2019 and stated:[5]
“Andrew, I agree that Tom is presenting a lot of symptoms consistent with a complex regional pain syndrome including pain across the entire hand and wrist spreading up his arm, significant oedema, dystonia with abnormal posturing of his fingers, oedema likely neurogenic, trophic changes including brittle nails and fast nail growth and a glassy appearance across his skin, and pseudo motor changes including redness, purple discolouration and sweating. He meets the full diagnostic criteria.”
[5] ARD page 85.
The second report from Dr Dias concerned the opinions of Dr Paul Robinson, orthopaedic surgeon, retained as the employer’s medicolegal expert. It is convenient therefore to refer to Dr Robinson’s reports at this point.
Dr Paul Robinson
Dr Robinson provided two reports to the respondent dated 6 February 2023[6] and
9 March 2023.[7][6] Reply page 6.
[7] Reply page 18.
In his report of 6 February 2023 Dr Robinson took an accurate history of Mr Uborg’s injuries and treatment. His opinion was that, relevantly, the fusion of the left wrist had “been complicated by what has been diagnosed as a chronic regional pain syndrome…”[8]
[8] Reply page 11.
Dr Robinson noted:[9]
“A diagnosis of chronic regional pain syndrome was made, and this was treated by pain specialists – Dr R Pendleton….”
[9] Reply page 8.
Dr Robinson confirmed that diagnosis and explained his calculation:[10]
“With respect to his left wrist, he satisfies the requirements for a diagnosis of complex regional pain syndrome, defined on Page 81 of the SIRA Guidelines; Table 17.1. He has sensory, pseudomotor and motor problems satisfying the major requirements and also has clinical evidence of his problems and I believe thus, he satisfies the diagnosis of having a CRPS 1 condition.”
[10] Reply page 16.
Dr Robinson assessed 31% whole person impairment (WPI). He was asked to comment on the assessment of 33% WPI by Dr Dias and noted that Dr Dias had assessed Mr Uborg by video link whereas he had not.[11]
[11] Reply page 17.
On 27 February 2023 Ms Doyle from Messrs Hicksons lawyers wrote on behalf of the respondent to Dr Robinson.[12] Relevantly she said:
“For the sake of clarify, can you please provide a supplementary report addressing sections 1, 2, 3 and 4 of Table 17.1 of the Guidelines as follows:
1. Do you consider the claimant has continuing pain which is disproportionate to the causal event? If so, please explain your reasoning.”
[12] AALD 29, 1.24.
Ms Doyle then set out the remaining diagnostic criteria required for a diagnosis of CRPS by Table 17.1 of the Guides, the first of which is, as will be seen, a requirement that there be “continuing pain, which is disproportionate to any causal event”.
Dr Robinson replied on 9 March 2023, explaining that in relation to each criterion he had found the appropriate symptoms and signs. He also noted that he could not determine any other diagnosis “that does explain the symptoms and signs which [Mr Uborg] experiences”.
Dr Robinson concluded by saying:[13]
“...Thus, I do believe he satisfies the criteria for CRPS as defined in the SIRA Guidelines.”
[13] Reply page 20.
However, Dr Robinson answered the first question asked of him as to disproportionate pain to the causal event by saying:[14]
“I had no reason to believe that the pain which he experiences is disproportionate to the events. He has had severe injury which has resulted in the fusion of his wrist and he has a deformity of the hand as in my report and at the time of the consultation I also took photographs of the hand which exhibited the severe problems he has with such.”
[14] Reply page 19.
Armed with Dr Robinson’s reports, Ms Doyle wrote to Mr Uborg’s solicitors on
23 March 2023. An offer of settlement for 13% WPI was made for left wrist impairment and Ms Doyle said, relevantly:[15]“We enclose by way of service the reports of Dr Robinson dated 6 February 2023 and 9 March 2023.
You will note that Dr Robinson has expressed the opinion that your client’s [sic] satisfies the diagnostic criteria for complex regional pain syndrome.
We have reviewed the report of Dr Robinson and we do not agree that the claimant satisfies Category I of Table 17.1 as Dr Robinson does not believe that the continuing pain symptoms are disproportionate to the causal event.”
[15] ARD page 12.
Ms Doyle continued that “we do not believe Dr Robinson has adequately explained” two of the particulars he had given to demonstrate compliance with the criteria required by Table 17.1.
Dr Dias was asked to respond, and was given access to Dr Robinson’s reports, and the letter of 23 March 2022. On 5 May 2023 he responded to a schedule of questions concerned with the detail of the criteria required pursuant to Table 17.1. Dr Dias rejected the observations made by Ms Doyle, Dr Dias said:[16]
“Whilst my examination of Mr Uborg in November 2022 was necessarily limited due to the video link assessment, I disagree with virtually the entirety of Hicksons Lawyers reasoning with respect to this matter. With respect to observing sensory signs and observation of vasomotor signs, Mr Uborg clearly had sensory symptomatology and signs in his left upper limb, with allodynia and altered sensation, affecting his left hand, left wrist and left forearm. This was corroborated by Dr Robinson and indeed has been corroborated throughout Mr Uborg’s case by his treating medical practitioners and treating medical specialists. Furthermore, I noted evidence of colour changes, and swelling, affecting Mr Uborg’s left hand, wrist and distal left forearm, consistent with vasomotor and oedema signs, as seen in my examination report. I believe Hicksons Lawyers reasoning in this regard is grossly erroneous and misleading. The findings of my examination were also corroborated by their commissioned expert specialist,
Dr Paul Robinson, Orthopaedic Surgeon.”[16] ARD page 42.
With regard to the beliefs expressed by Messrs Hicksons, Dr Dias confirmed that
Dr Robinson had adequately explained his diagnosis. Dr Dias said:[17]“My opinion and Dr Robinson's opinion, appears to be entirely consistent in this regard and in accordance with the entire weight of the medical evidence in this case.
SUBMISSIONS
Mr Young
[17] ARD page 41.
As indicated above, written submissions were ordered. Mr Young gave a brief address on behalf of the respondent when Ms Goodman announced that she was about to lose her Internet connection due to a power failure. Accordingly written submissions were ordered.
Mr Young concluded his submissions in writing. He referred to the criteria set out in Chapter 17 of the Guides for a diagnosis of CRPS. He submitted that on 9 December 2022 Dr Dias, although diagnosing that condition, could not have done so reliably as he assessed Mr Uborg by video link. Indeed, Mr Young observed, Dr Dias stated that a neurological examination of the left upper limb was not possible, but he accepted the diagnosis of CRPS as it had been diagnosed by Dr Richard Pendleton in September 2019.
Mr Young then considered the report of his own medicolegal specialist, Dr Paul Robinson, orthopaedic surgeon, of 6 February 2023, acknowledging that Dr Robinson too had diagnosed CRPS in accordance with Chapter 17 of the Guides. The respondent sought a supplementary report from Dr Robinson as to the criteria set out at Table 17.1.
Mr Young, whilst conceding that the diagnosis had been made (and that therefore liability was not disputed) submitted that neither qualified expert had satisfactorily complied with those criteria. Dr Dias conceded that he had been unable to conduct a neurological examination, Mr Young argued, and Dr Robinson had erred in his opinion in view of his statement regarding the proportionality of Mr Uborg’s symptoms.
Mr Young referred to Kemp v Cater Care Australia Operations Pty Ltd[18] and cases cited therein in support of a submission that the Commission did not have jurisdiction to decide the question of whether CRPS was present or not, as that was an issue squarely within the domain of a Medical Assessor.
[18] [2023] NSW PIC 256.
Thus, Mr Young argued, there was no dispute as to liability and the matter should be referred to a Medical Assessor for an assessment of WPI caused by injury to the left upper extremity (shoulder and wrist), complex regional pain syndrome and scarring.
Ms Goodman
For the applicant, Ms Goodman submitted that the issue in dispute was not whether the criteria for CRPS had been satisfied but rather that because there was no issue as to liability the respondent should pay the equivalent of 31% WPI in accordance with its own expert medical advice. Accordingly, it was submitted, the Commission should simply make an award in favour of the applicant for the monetary equivalent to the 31% WPI Dr Robinson had assessed. The Commission had jurisdiction to do so, Ms Goodman submitted, as had been established in a series of cases.[19]
Mr Young in reply
[19] Etherton v ISS Property Services Pty Ltd [2019] NSWWCCPD 53; The Star Entertainment Group Ltd v Samaan [2023] NSWPICPD 50; Henderson v Reece Australia Pty Ltd [2022] PIC 50; Kemp v Cater Care Australia Operations Pty Ltd [2023] NSWPIC 256 Grant v Dateline Imports Pty Ltd [2021] NSWPIC 83
Mr Young did not cavil with the authorities and the legislative provisions invoked. However, he repeated the employer’s submission that there was extant in this case a medical dispute, as the claim has not been properly assessed. Mr Young pressed his submission that the assessments of Dr Dias and Dr Robinson were defective.
DISCUSSION
Table 17.1 of Guides provides:
“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.
Complex Regional Pain Syndrome Type 2, causalgia For Complex Regional Pain Syndrome Type 2 (CRPS2), the mechanism is an injury to a specific nerve. The
methodology in AMA5 (pp 496–97) is to be followed:
•• If the criteria in each of sections 1, 2, 3 and 4 in Table 17.1, above, are satisfied and there is objective evidence of an injury to a specific nerve, the diagnosis of CRPS2 may be made.
•• Rate the extremity impairment due to loss of motion of each individual joint involved.
•• Rate the extremity impairment resulting from sensory deficits and pain of the injured nerves according to the determination methods described in AMA5 Chapter 16, Section 16.5b and Table 16-10a. Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within each range shown in the grade.
•• Rate the extremity impairment resulting from motor deficits and the loss of power of the injured nerve according to the determination method in AMA5 Chapter 16, Section 16.5b and Table 16-11a.”
The issue in this matter is whether there is a medical dispute to be referred to the Medical Assessor. I am grateful for the industry demonstrated by the content of the submissions of both sides, but the matter may be decided on first principles.
A medical dispute is defined by s 319 of the 1998 Act:
“‘medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim-
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker's fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
The “dispute” relied on by the respondent is one between its expert witness and its solicitors. There is no dispute between the medical experts that Mr Uborg suffers, inter alia, the condition known as chronic regional pain syndrome, or CRPS. CRPS is defined by Table 17.1, and the dispute is that the respondent’s solicitors do not accept the opinion of their qualified expert, Dr Robinson, that the criteria therein defined have been complied with.
The reasons for this were specifically that Dr Robinson did not find that the first criteria had been complied with, and that his reasons for accepting the presence of the symptoms and signs required were inadequate.
It is quite apparent that in answering Ms Doyle’s question as to whether Mr Uborg’s continuing pain was disproportionate to the causal event, Dr Robinson misunderstood the purport of the question. This is evident firstly from his response that Mr Uborg’s pain was not “disproportionate to the events”. Secondly, Dr Robinson then referred to Mr Uborg’s “severe injury”, his “deformity of the hand” and the “severe problems” Mr Uborg had with these difficulties. The question was concerned with the Table 17.1 criteria for CRPS and
Ms Doyle’s intent was to have Dr Robinson answer seriatim each criterion, including the first – that there be “continuing pain, which is disproportionate to any causal event”.
Dr Robinson’s intent on the other hand, appears to have been to assure his retaining solicitor that Mr Uborg was genuine.I reject the submission that Dr Robinson did not believe that the continuing pain symptoms were disproportionate to the causal event, which was the interpretation advanced by the respondent in its letter of 23 March 2023. A careful reading of his answer simply shows that Mr Uborg’s pain was not disproportionate to “the events”. These events included his psychiatric difficulties, his multiple surgeries and the left wrist injury itself. The “causal event” is a different matter. Dr Dias described the difference in his report of 5 May 2023:[20]
“With respect to Category 1 of Table 17.1 on Page 81 of the New South Wales Workers’ Compensation Guidelines, 4th Edition, in my opinion, Mr Uborg clearly satisfies Category I, in that he suffers from continuing pain which is disproportionate to any causal event. Whilst Mr Uborg suffered from a significant injury affecting his left wrist, and has had to undergo multiple surgical procedures for his left wrist condition, his condition of complex regional pain syndrome type 1 is distinct, and his symptomatology associated with complex regional pain syndrome type 1, is considerably more severe, than the symptomatology that would be expected from a healed fused left wrist, at approximately 14½ months post fusion (at the time of my assessment of Mr Uborg in late November 2022). Mr Uborg's sensory symptomatology associated with complex regional pain syndrome type 1, coupled with his pain symptomatology, is disproportionate to the causal event, despite the severity of Mr Uborg's initial injury. Therefore, in my opinion, Mr Uborg clearly fulfils Category I of Table 17.1 of the New South Wales Workers’ Compensation Guidelines, 4th Edition.”
[20] ARD page 40.
I accept Dr Dias’ explanation as to the application of this criterion, which underlines further that Dr Robinson’s answer was non-responsive to the purport of Ms Myles’ question.
Dr Robinson was unequivocal that Mr Uborg satisfied the criteria for CRPS as defined in the Guides. Dr Dias was similarly satisfied, although limited by his inability to carry out a neurological examination because his assessment was conducted by video link. He could not therefore reliably test for vasomotor symptoms nor for the decreased range of joint motion or motor dysfunction for motor/trophic symptoms required by Table 17.1 (2) of the Guides. I note that both Dr Dias and Dr Robinson recorded that CRPS had been diagnosed by
Dr Stapleton, and his opinion is accordingly of some limited relevance, bearing in mind that he did not address the criteria for diagnosing CRPS in Table 17.1.Whilst the opinion of Dr Dias also cannot be said to have satisfied all the criteria required by the Guides, the same cannot be said for Dr Robinson, to whose opinion I attach considerable weight.
The conduct of the respondent in serving its expert report and then disparaging it was very brave. One of the problems, despite the more obvious one of the misdescription of
Dr Robinson’s answer, was that the respondent’s solicitor was challenging her own expert witness’s opinion without anything more than an expression of belief to substantiate her reservations. In the face of the unanimous support from Dr Stapleton, Dr Dias and
Dr Robinson that Mr Uborg’s condition is indeed CRPS, it would take more than the belief of a legally qualified person to affect the weight of their opinions, and particularly Dr Robinson’s advice that the technical and medical requirements of Table 17.1 had been complied with.In the final analysis the dispute raised by the respondent concerns the misunderstanding by Dr Robinson of Ms Doyle’s question, which he thought went to the question of whether
Mr Uborg was genuine, whereas Ms Doyle’s intent was to have Dr Robinson confirm the first criteria in table 17.1.In view of Dr Robinson’s clearly expressed diagnosis on several occasions in his reports, the point raised by the respondent needs to be considered in context. I reject its submission that Dr Robinson did not properly assess Mr Uborg’s entitlement pursuant to Table 17.1. The answer given to Ms Doyle’s question did not respond in terms to the requirements of the criterion. In view of the consistency of Dr Robinson’s diagnoses of CRPS I think that, had the question been put to Dr Robinson again in terms that it was related to the first criterion,
Dr Robinson would probably have answered it consistently with his diagnosis, and with the explanation given by Dr Dias, given the agreement between Dr Dias and Dr Robinson.Looked at in that light, the “dispute” alleged by the respondent is no more than a disagreement between its solicitors and its expert witness. It is not a “medical dispute” as it does not respond to the definitions in s 319 of the 1998 Act. I doubt also that a respondent’s insurer’s legal advisor in these circumstances would qualify as a “person on whom a claim is made”.
Procedural Direction PIC 6 provides relevantly:
“23. A liability dispute in relation to a claim for permanent impairment compensation must be resolved, either by agreement between the parties or determined by a member of the Commission before the degree of permanent impairment is assessed.
25. A dispute in relation to the degree of permanent impairment may be referred to a member for conciliation, in appropriate circumstances. If the matter remains unresolved, a member may determine the dispute in accordance with the evidence. Alternatively, the member may refer the matter to a medical assessor for assessment.”
As there is no dispute, these circumstances are appropriate for a determination. Noting that the applicant has accepted the assessment of the respondent’s medicolegal expert,
Dr Robinson, there will be an award in favour of the applicant as set out above.
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