Woolworths Group Limited v Kirkby
[2023] NSWPICMP 388
•11 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Woolworths Group Limited v Kirkby [2023] NSWPICMP 388 |
| APPELLANT: | Woolworths Group Limited |
| RESPONDENT: | Michelle Kirkby |
| Appeal Panel | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 11 August 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Whether the Medical Assessor (MA) complied with the requirements of Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) to meet the criteria for Complex Regional Pain Syndrome (CRPS); whether the MA disclosed a path of reasoning for a diagnosis of CRPS; reference to Elsworthy v Forgacs Engineering, Windley v Workers Compensation Nominal Insurer and Turner v Truss-T-Frame Timbers; Held – the MA properly met the strict and demanding requirements of Chapter 17 of the Guidelines for an assessment of permanent impairment for CRPS; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 May 2023, the appellant employer, Woolworths Group Limited, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 May 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent worker, Michelle Kirkby, sustained an injury to her right hand, in particular the little and ring fingers of that hand, while employed as a night filler with the appellant employer, Woolworths Group Limited at its Penrith store on 23 July 2018.
The respondent lost her balance when stepping onto a pallet to remove some cartons and she fell forward. She attempted to break her fall by putting her hands out in front of her and suffered a hyperextension injury to the right hand when that hand was bent back on the edge of a carton.
Dr Yeoh performed a right ring finger pulley release and tenosynovectomy on
7 May 2020 at Strathfield Private Hospital.The respondent continued to experience pain in her right hand, with pain radiating up to her forearm and elbow region, following that surgery. She was referred to
Dr Deshpande, a pain management specialist. The respondent has undergone a right stellate ganglion block and right brachial plexus block performed by Dr Deshpande on the following occasions - 1 September 2020, 19 January 2021, 20 July 2021,
11 October 2022 and 1 March 2022.There are multiple reports from Dr Deshpande which indicate that the blocks she performed on the respondent provided her with some relief from her symptoms, but there was then a worsening of those symptoms. For instance, Dr Deshpande records on 16 March 2022 that the respondent had great benefit to her complex region pain syndrome (CRPS) symptoms following the stellate ganglion block and brachial plexus block on 1 March 2022, but on 18 August 2022 Dr Deshpande records that the respondent’s CRPS symptoms were coming back.
The respondent attended Dr Martin, neurologist, on 22 April 2021. Dr Martin found allodynia over the entire right arm, erythema of the palm, and the right side to be warmer compared to the left. He wrote that the respondent’s clinical features “would fit with a complex regional pain syndrome”.
The respondent saw Dr Martin again in October 2022 and Dr Martin confirmed that the respondent had type 1 CRPS of the right upper limb.
Dr Mendelsohn, general surgeon, has provided a report at the request of the respondent’s lawyers dated 29 August 2022 wherein he opines that the respondent has sustained tenosynovitis of the right ring finger and the development of CRPS and makes an assessment of 49% whole person impairment of the right upper limb.
Dr Masson, hand and plastic surgeon, has provided reports at the request of the appellant’s lawyers dated 21 March 2021 and 20 December 2022. In his report dated 21 March 2021, Dr Masson diagnoses the respondent as having flexor synovitis of the right ring finger and the subsequent development of CRPS involving the right hand.
Dr Masson opines that CRPS will often resolve with time, but it is entirely unpredictable.Dr Masson provides a different diagnosis in his report dated 20 December 2022, wherein he opines that the hyperextension injury to the right ring and little fingers resulted in flexor tendinitis of the ring finger and subsequent hyperalgesia of the ulnar side of the ring finger extending into the palm. Dr Masson opines that the respondent does not reach the threshold for a diagnosis of CRPS under the Workcover Guidelines because it is necessary for there to be greater than eight signs needed for a probable diagnosis of CRPS, and the respondent demonstrated only sudomotor changes on examination by way of overly moist skin. Dr Masson assessed the respondent as having 4% whole person impairment.
The referral to the Medical Assessor by the Commission was for an assessment of whole person impairment of the right upper extremity (Complex Regional Pain Syndrome).
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel, for reasons explained below, found that the Medical Assessor assessed the respondent’s permanent impairment based on correct criteria and the MAC did not contain a demonstrable error.
EVIDENCE
Documentary evidence
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.
Medical Assessment Certificate
The Medical Assessor diagnosed the respondent as having right ring flexor tenosynovitis and CRPS, right upper limb.
The Medical Assessor assessed the respondent as having 43% whole person impairment as a result of her injury on 23 July 2018, which was a combination of loss of active motion of the ring and little fingers of the right hand and pain resulting from CRPS.
Other parts of the MAC which 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 they are summarised herein and have been considered by the Appeal Panel.
The appellant’s submissions
The appellant submits that the MAC was made on the basis of incorrect criteria and/or contains a demonstrable error for the following reasons:
(a) the Medical Assessor failed to provide adequate explanation regarding how the respondent met the criteria of Table 17.1 of the Guidelines;
(b) the Medical Assessor failed to comply with the requirements of cl 17.5 of the Guidelines;
(c) the Medical Assessor failed to explain whether he considered any other diagnosis which could explain the respondent’s presentation, and
(d) the Medical Assessor failed to disclose a path of reasoning for the diagnosis of CRPS.
The appellant submits that the Medical Assessor’s reasoning for the application of the criteria in Table 17.1 of the Guidelines of CRPS is limited to identifying that criterion and then stating “YES”. The appellant submits that the Medical Assessor does not interact and identify the symptoms in each of the categories in Table 17.1 in order to identify which symptom the medical assessor is satisfied with as being applicable and relevant.
The appellant submits that the Medical Assessor limits his reasoning to: “The above criteria from SIRA chapter 17 SIRA are satisfied for a CRPS 1”, and that this is insufficient and fails the requirement to provide reasoning referred to by the High Court in Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43 (Kocak) at [55].
The appellant submits that the Medical Assessor is silent as to whether the diagnosis of CRPS has been present for at least a year and has been confirmed by more than one practitioner, as is required in Chapter 17 of the Guidelines. The appellant refers to what was said by Fagan J in Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 (Elsworthy) at [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.”
The appellant submits that the Medical Assessor failed to consider any other diagnosis that could explain the respondent’s presentation. The appellant submits that this is a mandatory step in the assessment to be undertaken by the Medical Assessor.
The appellant submits that the Medical Assessor proffers no explanation for his determination of 70% upper extremity impairment (UEI) for CRPS.
The appellant submits that the Medical Assessor has failed to engage with the report of Dr Masson in relation to the differing opinion as to diagnosis or lack thereof of CRPS. The appellant relies upon the dicta of Brereton JA in Lederer v Insurance Australia Limited trading as NRMA Insurance [2022] NSWSC 322 (Lederer).
The respondent’s submissions
The respondent submits that the Medical Assessor’s answers of “YES” do not sit on their own but are based on findings on clinical examination of allodynia to light touch of the ulnar aspect of the right hand, asymmetrical skin colour changes, observed sweating of the right hand and slight swelling, and decreased active motion of the right hand.
The respondent submits that Dr Masson made a diagnosis of CRPS in his report dated 21 March 2021, which is some two years before the Medical Assessor also diagnosed CRPS in the MAC dated 2 May 2023.
The respondent submits that having regard to the findings made by the Medical Assessor on examination and the Medical Assessor’s reference to other medical reports, it is quite apparent that the Medical Assessor has considered other diagnoses that could have explained the respondent’s presentation.
The respondent submits that the process undertaken by the Medical Assessor of history taking, clinical examination and subsequent findings is explained in more than adequate detail and there can be no doubt as to the essential reasoning process applied by the Medical Assessor.
The respondent submits that the Medical Assessor does provide an explanation for making a determination of 70% UEI when he writes: "grade 2 is reasonable as there is moderate pain which prevents some activities.”
The respondent submits that the Medical Assessor is not obliged to explain his own reasoning process when Dr Masson does not explain why he initially concluded that the respondent had CRPS (in his report dated 21 March 21), but he opined in a later report (dated 20 December 2022) that the respondent did not have CRPS.
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.
Chapter 17 of the Guidelines for the “Evaluation of permanent impairment arising from chronic pain” includes the following in regard to the assessment of CRPS:
“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:• 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 hyperaesthesia 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.”
The Medical Assessor recorded from the respondent that her hand becomes blotchy and feels hot at times, that the hand sweats periodically, and that there is constant swelling of the right hand.
The Medical Assessor made the following findings on examination of the respondent:
“There was observed allodynia to light touch of the ulnar aspect of the right hand, there were asymmetrical skin colour changes, there was observed sweating of the right hand and slight swelling, there was decreased active motion.”
The Medical Assessor addressed Chapter 17 of the Guidelines as they applied to the respondent as follows:
“1. Continuing pain, which is disproportionate to any causal event. YES
2. Symptoms (one symptom in each of the four categories)
a. Sensory: reports of hyperaesthesiae and/or allodynia YES
b. Vasomotor: Reports of temperature asymmetry, skin colour changes, skin colour asymmetry YES
c. Sudomotor/Oedema: Reports of oedema, sweating increase or decrease, sweating asymmetry YES
d. Motor/trophic: Reports of decreased ROM, motor dysfunction (tremor, dystonia), trophic changes (hair, nail, skin) YES
3. One Sign at the time of assessment in ALL of the four categories
a. Sensory: Hyperalgesia (to pin prick), allodynia (to light touch, deep pressure, or joint movement YES
b. Vasomotor: Temperature asymmetry, asymmetric skin colour changes. YES
c. Sudomotor/oedema: Evidence of oedema or sweating asymmetry. YES
d. Motor/trophic: Decrease active joint ROM, motor dysfunction (tremor, dystonia), trophic changes (hair, nail, skin) YES
4. There is no other diagnosis that better explains the signs and symptoms YES”
The Medical Assessor then concludes that the above criteria satisfy the definition of CRPS1 from Chapter 17 of the Guidelines.
Recent decisions of the Supreme Court have emphasised that Chapter 17 of the Guidelines, and in particular Table 17.1 within that Chapter, must be strictly adhered to by a Medical Assessor and Appeal Panel when making an assessment of permanent impairment for the condition of CRPS. Fagan J in Elsworthy at [5] referred to “the correct understanding and application of very specific and prescriptive criteria for CRPS which the AMS and the Panel were bound to apply”.
In Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125 (Windley), Harrison AsJ said at [74] that the assessment of the degree of permanent impairment for CRPS “must be done by the correct application of the applying guidelines, rather than determined clinically, or by some broad discretionary makeup”.
Associate Justice Harrison was critical of the failure by the Medical Assessor in that dispute to properly apply the criteria set out in Table 17.1 of the Guidelines. Her Honour continued at [75-77]:
“As the criteria in Table 17.1 (a) to (d) are strict it would be expected that the Medical Assessor would make specific reference and identify which of the requirements he was addressing (e.g Table 17.1(a)).
As explained in 17.3 of the Guidelines, the reason why the criteria are so strict is that pain is a subjective experience. It is therefore open to exaggeration and fabrication in the compensation setting.
In this case, the Medical Assessor does not, in terms, address table 17.1. The Medical Assessor’s path of reasons contains statements which generally refer to the topic of chronic regional pain syndrome, but make no special reference to table 17.1.”
In Turner v Truss-T-Frame Timbers Pty Ltd [2021] NSWSC 1088 (Truss-T-Frame), Schmidt AJ cautioned the Appeal Panel when considering whether a Medical Assessor had properly applied the criteria in Table 17.1 of the Guidelines when her Honour said at [110]:
“The panel was not at liberty to resolve the appeal simply by explaining that it had come to the same conclusion as the assessor. It could only come to that conclusion by itself having regard to the criteria specified in Table 17.1.”
The appellant is critical of the Medical Assessor merely answering “yes” to the criteria set out in table 17.1 of the Guidelines for CRPS and submits that the Medical Assessor does not identify symptoms in each of the categories in order to identify which symptom he is satisfied with as being applicable and relevant.
However, the Panel considers that those answers provided by the Medical Assessor cannot be read in isolation. Those answers must be read with the symptoms recorded by the Medical Assessor and, more importantly, the findings made by the Medical Assessor upon his examination of the respondent.
The Medical Assessor found on examination that the respondent has allodynia to light touch of the right hand, asymmetrical skin colour changes, sweating of the right hand and slight swelling, and decreased active motion. The Medical Assessor then correlates the reports of symptoms and the signs found on examination to the criteria in Table 17.1.
For example, the Medical Assessor records that the respondent states that her hands sweat periodically, he observes sweating and slight swelling of the right hand, and he then confirms sudomotor/oedema symptoms and signs to satisfy the criteria in (c) of Table 17.1. The same path of reasoning is employed for subclauses (a), (b) and (d).
The Panel is therefore satisfied that the Medical Assessor has properly identified and addressed the criteria in sub-clauses (a) to (d) inclusive in Table 17.1. The Medical Assessor has applied the “very specific and prescriptive criteria for CRPS” (Elsworthy) by recording symptoms, identifying signs and then providing confirmation from those signs and symptoms in the criteria set by the Guidelines for CRPS.
The Panel is also satisfied that the respondent has met the requirement in Chapter 17 that the diagnosis of CRPS has been present for at least one year. Dr Martin in his capacity as a treating neurologist makes a diagnosis of CRPS in April 2021. That is at least a year before the same diagnosis is made by the Medical Assessor.
Furthermore, Dr Masson also diagnoses the respondent as having CRPS when he examines the respondent in March 2021, which is a year before the diagnosis made by the Medical Assessor.
There is therefore sufficient medical opinion available which allows the respondent to meet the requirement that she had been diagnosed with CRPS of the right upper extremity for at least one year when that diagnosis is confirmed by the Medical Assessor in March 2023.
The Panel is satisfied that the Medical Assessor has properly considered whether there is any other diagnosis that better explains the respondent’s signs and symptoms.
The Panel does not consider it should be necessary for the Medical Assessor to list all the possible diagnoses for the symptoms which the respondent presents with at the time of assessment. That places an unfair and unreasonable burden upon the Medical Assessor.
The Panel accepts that it is implicit in the findings made on examination by the Medical Assessor, his consideration of relevant reports (in particular those of Dr Masson), and the affirmative answers he gives for the criteria set out in Table 17.1, that the Medical Assessor has concluded that there is no other diagnosis that better explains the respondent’s signs and symptoms. That is reinforced by the Medical Assessor acknowledging and answering the specific question as to whether there is another diagnosis that better explains the respondent’s signs and symptoms.
The Panel rejects the submission made by the appellant that the Medical Assessor proffers no explanation for his determination of 70% UEI for CRPS.
The Medical Assessor’s conclusion that the respondent had moderate pain which prevents her from undertaking some activities is consistent with the complaints made by the respondent and the findings made by the Medical Assessor during his examination that the respondent has continuing pain and has allodynia to light touch of the right hand, asymmetrical skin colour changes, sweating of the right hand and slight swelling, and decreased active motion of the right hand. The Medical Assessor then places the respondent in the mid-range for a grade 2 Description of Pain in Table 16.10 of the AMA 5 Guides, which attracts an assessment of 70% UEI.
The Panel does not accept that it was necessary for the Medical Assessor to engage with the differing opinion of Dr Masson. Firstly, the authority which the respondent relies upon of Lederer is concerned with the operation of the motor accidents scheme, which differs from the workers compensation scheme.
Secondly, while a Medical Assessor can have regard to other medical opinions, it is not necessary for the Medical Assessor to opine on the correctness of other medical opinions. In Western Sydney Local Health District v Chan [2015] NSWSC 1968 (Chan), Adams J held that the role of an Approved Medical Specialist was analogous to the task of a Medical Panel referred to in the High Court decision of Kocak. The High Court in Kocak (French CJ, Crennan, Bell, Gaegler and Keane JJ agreeing) said at [47]:
“The material supplied 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 a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
Thirdly, it is not reasonable for the Medical Assessor to engage in a critique of the differing opinion of Dr Masson when Dr Masson does not adequately explain why he initially concluded that the respondent did have CRPS but then in a later report resiled from that opinion.
In summary, the Panel accepts that the Medical Assessor has fulfilled the task set out in decisions of Elsworthy and Windley whereby he has made specific reference to and identified the requirements in Table 17.1 of the Guidelines for the assessment of permanent impairment for the condition of CRPS. The Panel finds that the MAC is not based on incorrect criteria or that the MAC contains a demonstrable error.
For these reasons, the Appeal Panel has determined that the MAC issued on
2 May 2023 should be confirmed.
0
7
0