Windley v Athena Bakehouse Pty Limited

[2021] NSWPICMP 229

DETERMINATION OF APPEAL PANEL
CITATION:	Windley v Athena Bakehouse Pty Limited [2021] NSWPICMP 229
APPELLANT:	Damien Windley
RESPONDENT:	Athena Bakehouse Pty Limited
APPEAL PANEL:	Member Catherine McDonald Dr David Crocker Dr Drew Dixon
DATE OF DECISION:	2 December 2021
CATCHWORDS:	WORKERS COMPENSATION-  Complex regional pain syndrome; remittal from Supreme Court in Windley v Workers Compensation Nominal Insurer; failure to consider Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 was a failure to provide sufficient reasons; Held - Approved Medical Specialist erred in failing to explain in detail why he differed from other reports when his opinion was so different; re-examination; Medical Assessment Certificate revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 19 November 2020 Damien Windley lodged an Application to Appeal Against the Decision of an Approved Medical Specialist (AMS). The medical dispute was assessed by Dr Yiu-Key Ho, an AMS under the legislation then in force, who issued a Medical Assessment Certificate (MAC) on 23 October 2020.

2. Mr Windley 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.

3. The delegate was 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.

4. 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.

5. 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).

6. Because Dr Ho was an AMS at the time he prepared the MAC, we have continued to refer to him as the AMS in these reasons.

RELEVANT FACTUAL BACKGROUND

1. Mr Windley was employed by Athena Bakehouse Pty Limited (Athena) when he suffered an injury to his right wrist on 27 March 2015. He was pulling a heavy tray of hot cross buns from a high rack in an oven when his wrist gave way.

2. Mr Windley was treated by an orthopaedic surgeon and an occupational physician. He was referred to Dr K E Khor, a pain management specialist, whom he saw for the first time on 19 May 2016. Dr Khor diagnosed complex regional pain syndrome type 1 (CRPS). In September 2016, Dr Khor recommended a cervical epidural spinal cord stimulator.

3. Mr Windley made a claim for permanent impairment compensation, supported by a report of Dr Min Fee Lai who assessed 56% whole person impairment (WPI). Athena’s insurer obtained a report from Dr L Reiter, rheumatologist, who agreed that Mr Windley suffered CRPS. She did not consider on the day of her examination that he met the criteria for assessment under Table 17. 1 of the Guidelines but assessed 18% WPI because of the restricted range of motion in his wrist.

4. The AMS did not consider that Mr Windley suffered CRPS. He assessed 10% WPI and deducted half of his assessment under s 323 of the 1998 Act, resulting in an assessment of 5% WPI.

5. An Appeal Panel revoked the MAC with respect to the deduction under s 323 of the 1998 Act only and Mr Windley sought judicial review in the Supreme Court. Her Honour Associate Justice Harrison set aside the decision of the first Appeal Panel and remitted the matter to the President for determination according to law. The President’s delegate constituted this Appeal Panel. 

PRELIMINARY REVIEW

1. We 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.

2. As a result of that preliminary review, we determined that the worker should undergo a further medical examination because the AMS failed to engage with the diagnostic criteria in the Guidelines and failed to provide sufficient reasons for his assessment. There was insufficient material in the file to determine the appeal without that examination.

3. Dr Crocker of the Appeal Panel examined Mr Windley on 9 November 2021 and prepared a report. His report is attached to these reasons and we agree that it accurately reflects Mr Windley’s permanent impairment.

Fresh evidence

1. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in 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.

2. The Appeal Application included photographs and a statement which Mr Windley sought to introduce as fresh evidence. Those documents were rejected by the first Appeal Panel and Harrison AsJ upheld that part of their decision. It is not necessary for us to consider the application to admit the photographs and statement. In any event, they are not relevant because a re-examination has been undertaken.

CRPS

1. Athena did not dispute that Mr Windley suffers CRPS type 1. The criteria for assessing the condition 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.”

EVIDENCE

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. We have set out the relevant paragraphs of the MAC below and refer to other evidence in our findings and reasons as necessary.

The MAC

1. The AMS set out the history of the injury and the present treatment. With respect to the present symptoms he said that Mr Windley:

   “…says he cannot use the right upper limb, from the shoulder all the way downwards, every joint in the right upper limb is stiff, painful, and he cannot use it. When asked to move, he says he cannot move the hand and wrist and to try to move the elbow and shoulder, he needs a support and help of the left upper limb. But he does not complain of any difference in colour, temperature and sweating. There is no difference in the rate of the nail growth and no difference in the hair pattern.”

2. With respect to his physical examination, the AMS said:

   “When observing him, I can certainly see he can use the right hand to hold the documents and the letters for me to see. I cannot see any features to support the diagnosis of chronic regional pain syndromes. The two hands are the same colour, same temperature and no differences in sweating. I cannot see any difference in the growth of nail and hair. There is no soft tissue atrophic change. Most importantly on tape measurement, the right arm and the right forearm, they were both respectively half a centimetre bigger than the left side, which fits into the picture of right hand dominant but cannot fit into the picture that he claimed to be totally useless in the right upper limbs and cannot actively move it without the use and support of the other arm in all the joint. Most interestingly, he need the family member to help him to undress but when he put back the long sleeve t-shirt, I can see he can have much better range of movement in both the elbow joint and shoulder joint compared to when he demonstrated to me actively.”

3. The AMS set out his observations of the range of movement of both of Mr Windley’s shoulders, elbows and wrists. He said with respect to his hand:

   “He claimed he cannot move his fingers, but I can observe him during the consultation that he can fully move the right hand and hold a piece of paper, while the left hand shows normal range of movement. Certainly, there is no features to support the diagnosis of chronic regional pain syndromes.”

4. The AMS summarised the injury and diagnoses:

   “Mr Damien Windley had a hyperextension injury of the right wrist, probably suffering from some sort of soft tissue injury. Despite all sort of treatments, he still complained of pain and every pain management became useless.”

5. With respect to consistency of presentation, the AMS said:

   “I believe the history of injury from the physical examination and the radiological investigations, but I do not think he tried his best to demonstrate the normal functions of the right upper limb as well as the left upper limb.”

6. The AMS said that there was no proportion of the loss which was due to a previous injury, pre-existing condition or abnormality.

7. In providing his opinion and his assessment, the AMS said:

   “I believe Mr Damien Windley have reached maximum medical improvement. It is already five years since the injury. He has suffering problems, mainly in the right wrist, but I do not think he tried his best to do the physical examinations even in the normal left upper limbs. He has a lot of stiffness in all the joints, which cannot be explained, and failure of improvement with all sort of pain management does not make sense either. He is not qualify as a case of chronic regional pain syndrome according to the criteria because there is no features suggestive of vasomotor changes in terms of skin colour, skin temperature, oedema, no differences in sweating and no atrophic changes in the soft tissues. There certainly is no x-ray and bone scan to support either, but definitely he is not a case of chronic regional pain syndrome.

   To assess the whole person impairment, I think it is fair to look at the whole upper limbs, but we also have to compare with the so called normal left upper limb in terms of the loss of functions and I believe based on my observation, he certainly can do much better than he demonstrated in the active movement in all the joints, whether in the elbow or in the shoulder, when I observed him dressing and when I observed him using the right hand to hold the letters and documents. I think he has not tried his best to show his clinical function in the right upper limbs.

   In relation to the area of injury in the wrist, he also demonstrated significant stiffness in the left wrist as well. So, to assess the permanent impairment of the right wrist, I think we have to take into consideration of the poor function of the left.”

8. The AMS said:

   “I would not consider he has any trouble in the right shoulder or in the right elbow despite they are stiff due to the reasons I have mentioned above. I certainly cannot consider any problems in the right hand, similarly.

   Looking at the right wrist, using AMA Guide 5th Edition, figure 16-28, 20˚ of flexion is 7%, 20˚ of extension is 7%, so that will give rise to 14%, but we have to consider the left side, which has 20˚ of flexion, also 7% and 50˚ of extension is 2%, that will give rise to 9%. The difference in performance between the two wrists only give rise to 5% upper limb impairment. Using figure 16-31, in the radial deviation, the right side is 2%, ulnar deviation is 3%, that will give rise to 5% on the right side, but then the left side also have 1% for radial deviation and 1% for ulnar deviation. So the difference is 3%. When they are combined together, that will give rise to an 8% upper limb impairment and taking into the consideration of the poor function of the left as well. That means there is only a 5% whole person impairment due to the injury.”

9. When commenting on the other medical reports, the AMS said:

   “I cannot agree with the opinion of Dr Lai. I do not think he fits into the features of chronic regional pain syndrome. So, all the stiffness in all the other joints as explained above I cannot take into consideration. I have to deduct the permanent impairment by comparing the right and the left because even the left, the so called normal side, does not have normal function.

   I am more or less agree with Dr Reiter because we both agree that the only problem is in the wrist but the difference with mine and her assessment, is that I do not take into consideration of just the problem of the right wrist because the so called normal left wrist is not normal in function. I am still very doubtful how genuine is his case in terms of the constant pain and poor function as mentioned above, I cannot find any muscle wasting in the whole right upper limb based on the fact that he has had this trouble for five years. The right arm and right forearm are still bigger than the left.”

10. In the Table, the AMS said that he assessed 10% WPI and deducted 5% under s 323, resulting in an impairment of 5%.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary and in submissions prepared by Mr G Horan of counsel, Mr Windley submitted that Dr Lai was satisfied that Mr Windley suffered CRPS type 1 and provided reasoning which was capable of being understood by reference to the Guidelines. Dr Reiter also noted that Mr Windley had many features of CRPS type 1 but did not observe some of the features on the date of her examination.

3. Mr Horan noted that the AMS stated that he could not see any features of CRPS and submitted that the AMS erred in that he gave insufficient reasons for declining to assess WPI as a case of CRPS. Given the large difference in percentage impairment, Mr Horan said that it was incumbent on the AMS to address the symptoms that Dr Lai and Dr Reiter had observed. The failure to document his findings meant that “one must take a leap of faith and assume he did properly and fairly undertake his examination”.

4. Mr Horan also submitted that the AMS had erred in deducting 50% of his assessment under s 323 and had failed to explain what pre-existing condition he had relied on or why the deduction was so high.

5. In reply, and in submissions prepared by its solicitor, Ms Rich, Athena elicited four main grounds of appeal from Mr Windley’s submissions. Athena submitted that the AMS had provided his path of reasoning and said that in the absence of vasomotor and sudomotor changes on examination, the AMS could not be satisfied that the criteria for a finding of CRPS in Table 17.1 of the Guidelines had been met.

6. Ms Rich summarised ground 2 of the appeal as a submission that the AMS failed to give sufficient weight to the reports of Dr Lai and Dr Reiter. Citing State of New South Wales (NSW Department of Education) v Kaur) (Kaur)[1], she said that it was not the function of the AMS to “decide between competing arguments” and that he was required to assess Mr Windley as he presented on the day.

   [1] [2016] NSWSC 346.

7. In respect of the failure to conduct a proper examination, she said that even though the AMS’s reasons were brief, there was no error in the way he conducted the examination and that he had correctly applied paragraph 2.20 when he observed a loss of motion in Mr Windley’s left wrist.

8. With respect to the deduction under s 323, Ms Rich said that the AMS deducted the loss of the range of motion observed in Mr Windley’s left wrist and that no s 323 deduction had been made.

SUPREME COURT DECISION

1. Mr Windley appealed the MAC and the reasons of the first Appeal Panel were the subject of an application for judicial review. In Windley v Workers Compensation Nominal Insurer[2] Harrison AsJ set aside the decision and reasons of the previous appeal panel and remitted the matter to the President to be determined according to law. Before considering the parties’ original submissions, we have reviewed her Honour’s decision to determine the scope of our task.

   [2] [2021] NSWSC 1125.

2. In considering the appeal afresh, we must look at the grounds presented in the parties’ submissions. The arguments made in the Supreme Court were slightly different.

3. Her Honour upheld the reasons of the first Panel with respect to the admission of the fresh evidence on which Mr Windley sought to rely. It is not necessary for us to consider that evidence and it is no longer relevant when an examination has been undertaken.

4. The second ground her Honour considered was whether the first panel was wrong to find that the AMS had provided sufficient reasons. Her Honour said that Fagan J’s decision in Elsworthy v Forgacs Engineering Pty Ltd[3] (Elsworthy) was instructive and set out part of his Honour’s decision using (a) to (d) and (i) to (iv) to better explain Table 17.1:

   [3] [2018] NSWSC 1638.

   “[8] Chapter 17 of the Guidelines is entitled “Evaluation of permanent impairment arising from chronic pain (exclude AMA5 Chapter 18)”. Clause 17.5 includes the following:

   17.5   … 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.

   …
   [41] … Of the four requirements a-d at the commencement of the criteria for consideration of CRPS, item a is that the AMS should confirm the diagnosis by application of the criteria in Table 17.1. Undoubtedly those criteria are strict and demanding. The Guidelines state at length in cll 17.1-17.5 why these strict criteria have been adopted, including the following:

   17.3 [P]ain is a subjective experience and is, therefore, open to exaggeration or fabrication in the compensation setting. Assessment depends on the credibility of the subject being assessed. In order to provide reliability, applicants undergoing pain assessments require more than one examiner at different times, concordance with the established conditions, consistency over time, anatomical and physiological consistency, agreement between the examiners and exclusion of inappropriate illness behaviour.

   [42] I construe the word “diagnosis” in items a-d as having the same meaning each time it appears. That is, it refers to a diagnosis arrived at by application of the criteria in Table 17.1, as item a explicitly states. This means that for CRPS to be present for the purposes of assessment it must have been diagnosed according to those criteria for at least one year and the diagnosis must have been verified according to those criteria by more than one examining physician. Not only does the language of items a-d indicate, by the undifferentiated use of the word “diagnosis”, that the diagnosis over at least one year and the diagnosis by more than one physician must all be according to the Guidelines but, further, this construction addresses the explicit concern stated in cl 17.3. That concern would not be met if items b-d could be satisfied by other physicians’ diagnoses, spanning a year or more, made according to undefined criteria, perhaps less stringent than those of Table 17.1. This consideration supports the construction I have adopted.

   [43] The plaintiff’s submissions to the Court dwelt upon the opinions of treating clinicians predating Dr Lewington’s examination. A number of these were to the effect that the plaintiff suffered from CRPS. These opinions are apparently what is referred to in the expression “history and management of the worker” in ground (e). The plaintiff’s argument is that Dr Lewington should have found the diagnosis of CRPS “has been present for at least one year” (item b) and “has been verified by more than one examining physician” (item c) on the basis of the “history and management of the worker” reflected in his treating clinicians’ opinions, irrespective of the criteria those clinicians applied.

   [44] Upon the construction of items a-d outlined above I reject this. Notably, all but one of these other diagnoses were based upon the “Budapest criteria”. These are set out in a report of Dr Russo, pain specialist, dated August 2011, as follows:

   According to the Budapest clinical criteria for CRPS the patient must report continuing pain that is disproportionate to the inciting event… The patient must also report one symptom in three of the four following categories:
   Sensory (report of hyperesthesia (sic) or allodynia) - …
   Vasometer (sic) (temperature asymmetry and/or skin colour changes …
   Sudomotor/oedema - …
   Motor/trophic changes (decreased range of movement and/or motor dysfunction and/or trophic changes to the hair, skin, nails) - …

   The patient must also display at least one sign in two of the above four categories.

   [45] The Budapest criteria are less demanding for a diagnosis of CRPS than Table 17.1 of the Guidelines. Contrary to the plaintiff’s submissions I do not consider that these other opinions, based upon criteria different from those which Dr Lewington was bound in law to apply, establish error by him or by the Panel or have any relevance to the validity of their decisions. Only one of the other doctors, of Dr Glass in a report dated 18 November 2016, found all criteria of Table 17.1 satisfied. On examination in November 2016 Dr Glass found signs under items 3i-iv which were not present at Dr Lewington’s examination on 1 May 2017.”

1. In Elsworthy, (a) to (d) are the requirements for assessment before Table 17.1 and (i) to (iv) are each of the symptoms in boxes 2 and 3 in Table 17.1.

2. Her Honour noted that Table 17.1 “contains no clinical component, or other broad discretionary makeup”. She said:

   “In the correct application of Chapter 17, steps 1, 2 and 3 of Table 17.1 look to whether a worker's condition and complaints meet specified criteria. Step 4 of Table 17.1 then does a different thing. Step 4, if steps 1, 2 and 3 are satisfied, poses whether: "There is no other diagnosis that better explains the signs and symptoms".

   As was identified in Elsworthy at [5]-[9], [41] and [45], the satisfaction, or not, of the criteria in Table 17.1 is a strict process. The assessment of the degree of permanent impairment must be done by the correct application of the applying guidelines, rather than determined clinically, or by some broad discretionary makeup.

3. Her Honour said that because the criteria are strict it would be expected that the AMS would identify and address each of the criteria in Table 17.1. She noted that he referred to the symptoms in each of the criteria in general terms. Her Honour said that it was not appropriate to fill in the gaps in the AMS’ reasoning.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan[4] 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.

   [4] [2006] NSWCA 284.

3. The parties did not seek to file any further submissions on the redetermination of the medical appeal. It is therefore necessary for us to consider the appeal by reference to the original submissions made, omitting that with respect to fresh evidence.

Failure to provide sufficient reasons

1. The Guidelines set out the requirements for a medical report and provide:

   “As the Guidelines are to be used to assess permanent impairment, the report of the evaluation should provide a rationale consistent with the methodology and content of the Guidelines. It should include a comparison of the key findings of the evaluation with the impairment criteria in the Guidelines. If the evaluation was conducted in the absence of any pertinent data or information, the assessor should indicate how the impairment rating was determined with limited data.”

2. The Guidelines provide that the diagnosis is to be confirmed by the criteria in Table 17.1 and that the assessment is made by applying the diagnostic criteria in Table 17.1. That means that it was necessary for the AMS to set out the criteria in the Guidelines and explain how his observations and assessment fulfilled those criteria.

3. The AMS did not refer to Chapter 17 or Table 17.1 in his MAC. That of itself shows that the AMS has failed to provide sufficient reasons for his decision. The reasons he did provide were general and the factor to which he gave the most weight – the relative size of his forearms – is not a factor in Chapter 17 at all.

Failure to consider other medical reports

1. Athena’s submissions characterised the submission with respect to other medical reports as a failure to give weight to the findings of the independent medical examiners, referring to Kaur to argue that the AMS was not required to choose between the opinions put forward by the parties. Campbell J said in Kaur[5]:

   “In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:

   ‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’

   Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

   ‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”

   [5] At [25]-[26].

2. As we read Mr Horan’s submissions, Mr Windley’s complaint is that the very different findings and opinions of Dr Lai and Dr Reiter required the AMS to address the symptoms to which those doctors observed. We agree that he was required to do that.

3. The failure to engage with those reports and the reports of Mr Windley’s treating doctors also constitutes a failure to give reasons because the AMS failed to explain why his diagnosis was different to all of the reports in the file.

4. Mr Windley’s treating doctors diagnosed CRPS. After treatment by an orthopaedic surgeon and an occupational physician and after undergoing hand therapy, Mr Windley was referred to Dr Khor who diagnosed CRPS and began treatment in 2016. Dr Khor continued to treat him and in 2019 recommended cannabidiol, to allow his consumption of other medication to be reduced.

5. In 2018, Mr Windley saw Dr L Crowle, an occupational physician, to consider occupational rehabilitation. Her examination confirmed CRPS and she said:

   “Examination identified changes of Damien's right forearm, wrist and hand consistent with his right upper limb CRPS type 1 diagnosis. He removed his soft splint for my assessment and there was obvious tan line. There was allodynia of the right forearm, wrist and hand with visual swelling. His right hand and fingers were warmer than the left hand. He was unable to make a fist with the right hand. He was unable to complete my patient information form and signed his name using his right hand with difficulty. There was reduction of the right upper arm circumference compared to the left upper arm (at equivalent points by tape measurement: right upper arm = 29cm; left upper arm = 30cm). This measurement is consistent with his reduced use of the right arm and reliance-on the left arm.”

6. Dr Reiter saw Mr Windley at the request of Athena’s insurer and reported on 14 March 2019. She considered each of the criteria in Table 17.1 and determined that Mr Windley met all of the criteria except that she did not observe any vasomotor changes on the day of her examination. She assessed 18% WPI as a result of the reduced range of motion of his right wrist.

7. Dr Lai reported to Mr Windley’s solicitors on 11 February 2020. He set out his findings on examination and said:

   “Examination of his right upper limb revealed that he has been wearing the wrist brace continuously with demarcation marks where the wrist and hand had not been exposed to the sun.

   Swelling was present and the right hand felt moist in comparison to the contra lateral hand.

   During the time of examination, twitching of the thumb and fingers were noticed.

   There was also a bluish to purplish tinge of his right palm which was of different colour to his left palm.

   There was allodynia with light touch to his right lateral upper arm, right lateral forearm and wrist as well as the whole of his right hand in comparison to his left side. Similarly, he also experienced extreme sensitivity to pinprick in these areas.”

8. Dr Lai set out his detailed measurements of the range of movement, observing a dramatic difference between the range of movement of each relevant joint on the left and right. He set out the basis for his diagnosis:

   “The evaluation of permanent impairment arising from chronic pain will be according to guidelines provided in chapter 17 of WCG4.

   •Mr Windley has a complex regional pain syndrome type 1 of his right upper extremity. My opinion is based on him satisfying the criteria summarised on page 80 of WCG4.

   From my physical examination, items 1, 2, 3 and 4 in table 17-1 on page 81 of WCG4 have been satisfied. He has continuing pain which is disproportionate to any causal event (satisfying 1). He has symptoms of sensory, vasomotor, pseudomotor and motor dysfunction (satisfying item 2). He has signs of sensory, vasomotor, pseudomotor and motor dysfunction (satisfying item 3). There is no other diagnosis that better explain the signs and symptoms.

•The diagnosis of his complex regional pain syndrome has been present for more than a year.

•His diagnosis has also been verified by one other examining physician, Dr K E Khor (Pain Physician).

•Other possible diagnoses have been excluded.”

1. Dr Lai went on to make an assessment of 56% WPI he used incorrect methodology because he referenced various nerve value multipliers when carrying out the sensory deficit/pain component of the impairment assessment.

2. Dr Reiter saw Mr Windley again at the request of Athena’s solicitors and reported on 6 April 2020, having reviewed the information attached to the Application to Resolve a Dispute. Her report is closest in time to the MAC.

3. On this occasion, Dr Reiter did not observe vasomotor or sudomotor signs on the day of the examination. She said:

   “Mr Windley has many features of CRPS Type 1. However, given that again ON THE DAY I did not observe any Vasomotor or Pseudomotor features, he did not meet the ‘NSW workers compensation guidelines for the evaluation of permanent impairment” Fourth Edition – 1 April 2016, p.81, Table 17.1, Diagnostic Criteria for Complex Regional Pain Syndromes Type 1’.

   However, he does meet the Budapest Criteria for complex regional pain syndrome -CRPS.”

4. Dr Reiter set out the Budapest Criteria which are widely used in the medical profession for the diagnosis of CRPS. The difference between those criteria and the Guidelines is that the Budapest Criteria only require the assessor to observe one sign in two or more of the categories in Part 3 of Table 17.1 on the day of the examination.

5. When all of those reports appeared in the file, it was incumbent on the AMS to engage more deeply with the diagnosis and his failure to do so constituted an error. We do not suggest that the AMS was required to accept or choose between the reports of the independent medical examiners.

6. The reports should all have alerted the AMS to consider Table 17.1. Instead he effectively dismissed the analysis made by Dr Lai and Dr Reiter because he considered that
   Mr Windley’s left arm did not have normal function. None of the other doctors observed a restriction of movement in Mr Windley’s left arm.

Failure to properly conduct the examination

1. This ground of appeal turns on the statement on which Mr Windley sought to rely. As that statement cannot form part of the material before us, we will not consider the ground of appeal further. Because we have found error above, it is not necessary for us to do so.

Section 323 deduction

1. In the certificate, the AMS purported to make a deduction under s 323. The certificate does not accord with the explanation of the calculations in the body of the MAC. It is clear from the extract quoted at [26] above, that the AMS in fact made a deduction from his assessment of Mr Windley’s right wrist under paragraph 2.20 of the Guidelines by comparing it to his left wrist, which the AMS considered demonstrated less than average mobility. We do not agree, based on Dr Crocker’s examination, that the left wrist did demonstrate less than average mobility.

Conclusion

1. For these reasons, the Appeal Panel has determined that the MAC issued on 23 October 2020 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Yiu-Key Ho and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Chronic pain condition in right upper extremity (shoulder, elbow, wrist & hand)	27.3.15	Chapter 17, Table 17.1, pp 80-82	Chapter 16, 16.4, Figs 16-12 & 16-15, Tables 16-8a, 16-8b & 16-9, Figs 16-21, 16-23, 16-25, 16-28, 16-31, 16-34, 16-37, 16-40, 16-43, 16-46, pp 450-479; Tables 16-1 – 16-3, pp 438-439; 16.5b, Table 16-10, pp 481-483	51%	0%	51%
Total % WPI (the Combined Table values of all sub-totals)					51%

Catherine McDonald

Member

Dr David Crocker

Medical Assessor

Dr Drew Dixon

Medical Assessor

2 December 2021

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR MEMBER OF THE APPEAL PANEL

Matter No:   M1-4250/20
Appellant:   Mr Damien Windley
Respondent:   Athena Bakehouse Pty Ltd

Examination Conducted By:      Dr David Crocker
Date of Examination:  9.11.21

Prior to the assessment, Mr Windley demonstrated proof of having undergone double vaccination in relation the COVID-19 virus.  He also confirmed that he had undergone a PCR nasopharyngeal swab test on 6.11.21 with the result proving negative.  Mr Windley stated that he has not recently suffered from a fever, cough or other respiratory complaints.  He was found to be afebrile by means of use of a transdermal thermometer device.   Surgical masks were mutually worn throughout the consultation and within the waiting room area.

The consultation was conducted with Mr Windley unaccompanied.

1. The worker’s medical history, where it differs from previous records

Mr Windley was given the opportunity of reviewing aspects pertaining to medical history as outlined in the Medical Assessment Certificate of 23.10.20 as prepared by Dr Yiu-Key Ho, Consultant Orthopaedic Surgeon of Sydney. Mr Windley did not highlight any particular aspects of the Certificate which he wanted to raise pertaining to the history that was outlined.

1. Additional history since the original Medical Assessment Certificate was performed

   Mr Windley reported that he remains certified fully unfit for work and is presently on a disability support pension. 

   He reported that he is experiencing ongoing significant complaints referable to the right upper extremity.

   Specifically, he reports severe and constant pain affecting the limb.  This may “dull down a bit” at times subject to various medication that is required. 

   With respect to sensory complaints, he reports constant altered sensation affecting the limb.  He indicates that there is a feeling of “pins and needles”.  Touch to the limb is altered and can cause him discomfort inclusive of that without light touch.  He also indicates that there is patchy hypoaesthesia at times.

   With respect to possible vasomotor features, he reports that the limb continues to “go hot and cold, more often hot than cold”.  He also reports that the region can “go from red to white”. 

   With respect to possible sudomotor/oedematous features, he states that the radial side of the right distal forearm and wrist can become swollen which he endeavours to massage away.  He indicates that the palm of the right hand is at times “sweaty”.  This is not observed with respect to the contralateral side.

   In relation to motor/trophic features, he continues to have marked limitation with active range of motion affecting the limb inclusive of that to the shoulder girdle.  He has also noted a mild tremor affecting the right hand.  He reports that the upper limbs tend to have limited hair.  He states that the nails of his right hand tend to break.  He thinks that there may be some alteration in the texture of the skin of the right upper extremity, however, he concedes that the limb is often covered which may impact upon this.

   With respect to activities of daily living, he reports that he suffers frequent sleep disruption inclusive of this arising when turning over onto the region where the battery of the spinal cord stimulator is implanted.  He is only undertaking limited walking.  He comments that this is negatively impacted upon by the manner in which he is restricted with respect to right upper limb mobility.  His partner attends to household chores.  He has been advised not to drive a motor vehicle.  He requires frequent assistance with showering, dressing and undressing.  In this regard, he commented that his partner works in aged care nursing.

   Concerning treatment, Mr Windley is requiring multiple therapeutic agents on a daily basis as follows: 

   ·        Palexia SR100mg, gabapentin 600mg, Avanza 30mg, Targin15/7, CBD 1ml (am);

   ·        Palexia IR 150mg (midmorning);

   ·        Palexia SR 100mg gabapentin 600mg (lunchtime);

   ·        Palexia SR 100mg, gabapentin 600mg, Targin 15/7.5, Avanza 30mg, Palexia IR 100mg, Seroquel 400mg, CBD 1.5ml (at night).

   Mr Windley also takes Nurofen Plus tablets as required, however, these are often more for headaches.

   Nil topical therapeutic agents are utilised.  He does not apply hot or cold packs. 

   I have noted that Mr Windley utilises a sling and support for the right upper limb on a regular basis.

   I have noted that he had previously had a spinal cord stimulator implanted, however, this has reportedly not been functioning for approximately four weeks.  In this regard, there is a plan to either modify this or proceed to re-implantation of a new device/battery.

   Mr Windley is attending Dr Sam Wise, General Practitioner of Unanderra, on approximately two occasions per week.  He continues in the care of Dr KE Khor, Pain Consultant of Randwick with consultations arising on a few occasions per year.

   He is about to recommence consultations with a Psychologist. 

   He is not attending physiotherapy treatment.

   There have been nil recent therapeutic injection procedures.

   With respect to other medical conditions, he did not state that any further injuries or conditions have arisen since the time of the earlier assessment.  He did comment, however, that he has lost greater than 10kg in weight.

   Concerning social history/family history, he reported that he had earlier enjoyed surfing.  He has cut back upon smoking to approximately 15 cigarettes per day.  He does not take alcohol.

1. Findings on clinical examination

Mr Windley was a cooperative man who appeared to experience discomfort at various times throughout the consultation.

Surgical masks were mutually worn throughout the assessment.

He was informed that I would require his full cooperation but that I would cease or modify any manoeuvres that were potentially distressing for him.

His temperature was satisfactory at 36.2°C as measured with a transdermal device.

His weight was 54kg, lightly clothed, with a height of 165cm in bare feet.  According to Nutrition Australia, the healthy weight range for an Australian of this height is 51-68kg.

He was noted to be utilising a sling and a compressive support for the right upper limb.  These were removed to facilitate the assessment.

Active range of motion was assessed on multiple occasions at both shoulder girdles with use of a goniometer with maximal findings noted as follows:

Shoulder Movements	Active ROM RIGHT	Active ROM LEFT
Flexion	50°	150°
Extension	25°	40°
Adduction	25°	55°
Abduction	40°	85°
Internal Rotation	45°	70°
External Rotation	55°	60°

It was apparent that marked discomfort arose at the right shoulder girdle when also testing to the left side.

Girth measurements within the upper limbs were as follows:  26cm (right mid upper arm); 25.5cm (left mid upper arm); 25cm (maximal right forearm girth); 25cm (maximal left forearm girth).

Active range of motion was assessed in a similar manner at both elbows with maximal findings noted as follows:

Elbow Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	70°	130°
Extension	-5°	-5°
Supination	50°	60°
Pronation	80°	90°

Active range of motion was assessed in a similar manner at both wrists with maximal findings noted as follows:

Wrist Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	10°	65°
Extension	10°	55°
Radial Deviation	10°	40°
Ulnar Deviation	5°	30°

Active range of motion was assessed in relation to the small joints of both hands with findings noted as follows:

Thumb Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§ CMC joint ·     Radial abduction ·     Adduction ·     Opposition § MP joint ·     Flexion ·     Extension § IP joint ·     Flexion ·     Extension	45° 4cm 4cm 40° -5° 30° 0°	60° 2cm 4cm 40° +5° 70° 0°

Index Finger Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§ MP joint ·     Flexion ·     Extension § PIP joint ·     Flexion ·     Extension § DIP joint ·     Flexion ·     Extension	50° -5° 70° 0° 60° 0°	70° +2° 95° 0° 65° 0°

Middle Finger Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§  MP joint ·     Flexion ·     Extension §  PIP joint ·     Flexion ·     Extension §  DIP joint ·     Flexion ·     Extension	40° -5° 80° 0° 60° 0°	80° +5° 95° 0° 70° +2°

Ring Finger Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§  MP joint ·     Flexion ·     Extension §  PIP joint ·     Flexion ·     Extension §  DIP joint ·     Flexion ·     Extension	40° 0° 80° 0° 65° 0°	80° +10° 95° 0° 75° +2°

Little Finger Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
§  MP joint ·     Flexion ·     Extension §  PIP joint ·     Flexion ·     Extension §  DIP joint ·     Flexion ·     Extension	50° 0° 85° 0° 70° +2°	85° +10° 100° 0° 80° 0°

With respect to sensory changes within the right upper limb, allodynia, patchy hyperalgesia/ hypoaesthesia were evident with light touch and point pressure sensation.  Diffuse tenderness was evident upon general palpation of the joints of the right upper extremity inclusive of the shoulder girdle. Similar findings were not evident to the left upper limb.

In relation to vasomotor features, there was apparent pallor of the right hand as compared to the left.  Nil temperature changes were evident on this occasion.

With respect to sudomotor features, fullness was observed to the radial side of the right distal forearm/wrist.  This was not present to the contralateral side.  The right palm was moist to touch with this not being evident to the contralateral side (NB the right hand had not been covered prior to the assessment being performed).

With respect to motor/trophic changes, marked limitation with active range of motion has been documented above pertaining to the right upper extremity.  A fine tremor was also observed in relation to the right hand.  There were nil observed changes noted pertaining to hair, nails and skin texture in relation to the upper extremities.

1. Results of any additional investigations

Nil additional investigations appear to have been performed that required review on this occasion.

1. Determination of permanent impairment

It is evident that Mr Windley has a longstanding and chronic pain presentation affecting the right upper extremity.  The date of injury had been 27.3.15 as a consequence of a work-related injury with initial clinical features being referable to the region of the right wrist.

He has required review by multiple medical practitioners, undergone various investigations and therapeutic procedures inclusive of a Ketamine infusion and insertion of a spinal cord stimulator.  Psychological assistance has also been required.

He is continuing to require extensive oral agents to assist him.

There are significant associated ongoing functional limitations.

With respect to a determination of Whole Person Impairment, it has been noted that referral had been made to the Medical Assessor with respect to the right upper extremity (wrist) or, in the alternative, a chronic pain presentation pertaining to the multiple regions of the right upper extremity.

It had been the opinion of the Medical Assessor that all of the criteria as outlined in the Workers’ Compensation Guidelines had not been met pertaining to a diagnosis of chronic regional pain syndrome (CRPS) Type 1.

For a diagnosis of this nature, ie CRPS Type 1, various criteria need to be met as follows:  The diagnosis needs to be confirmed in accordance with the Workers’ Compensation Guidelines; the diagnosis needs to be present for at least one year; the diagnosis has needed to be verified by more than one examining physician; other possible diagnoses need to be excluded; the diagnostic criteria contained in the Workers’ Compensation Guidelines per Chapter 7, Table 7.1, pg 81 need to be satisfied.

Based upon the current assessment, it is considered that all of the above criteria are met.

With respect to the components contained in the medical history by way of symptoms that may have previously been present or remain the case, these various components have been documented above with respect to sensory, vasomotor, sudomotor/oedema and motor/trophic complaints.

With respect to the clinical signs that need to be satisfied upon physical examination, ie pertaining to each of these categories, these have also been documented above as having been found on the current physical examination.

Further, it is considered that no other diagnosis better explains the clinical features.

When determining impairment based upon the presence of CRPS Type 1, the various limitations with active range of motion need to be taken into account.  In this regard, the various findings are documented in the accompanying worksheets.

With respect to the right upper extremity, the following upper extremity impairments have been deduced based upon limitation with active range of motion:  Shoulder 22%; elbow 14%; wrist 20%; hand 18%.  These findings are inclusive of deductions pertaining to what may be considered normal in Mr Windley’s case pertaining to findings of the non-affected contralateral side relating to the elbow, wrist and hand.  A similar deduction has not been made in relation to the right shoulder girdle as marked limitation with active range of motion was also observed pertaining to the left shoulder girdle as examination of this region caused him marked discomfort to the affected side and, therefore, cannot be considered as “normal” for him.

When these upper extremity impairments are combined, a 56% upper extremity impairment is determined.

With respect to impairment based upon sensory deficits and pain, reference needs to be made to Table 16-10 (Chapter 16, 16.5b, pg 482) of AMA 5.  In Mr Windley’s case, it is considered that his presentation equates with a grade 2 determination.  Within this range, it is estimated that a 65% upper extremity impairment is appropriate.  It needs to be highlighted that this figure is not modified by a nerve value multiplier in accordance with Chapter 17 contained in the Workers’ Compensation Guidelines.

When the upper extremity impairments of 56% and 65% are combined, an 85% upper extremity impairment is determined.  This converts to a 51% WPI.

It is considered that nil previous injuries or conditions need to be taken into account by way of any deductions pertaining to a contributory impairment.

Signed: David Crocker

Date:              9.11.21