Elsworthy v Forgacs Engineering Pty Ltd

Supreme Court of NSW|2018-08-01|Before: Fagan J

Solicitors: Whitelaw McDonald & Associates (plaintiff) Kaden Boriss (first defendant) Crown Solicitor's Office (second, third and fourth defendants) File Number(s): 2017/363075

Judgment

By an amended summons filed on 5 July 2018 the plaintiff seeks judicial review of a decision of a Medical Appeal Panel ("the Panel") appointed by the Workers Compensation Commission ("the Commission") under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act"). The Commission is the second defendant and the Panel is the third defendant. The Panel's decision was made on 1 September 2017. The plaintiff claims a declaration that the Panel's decision and statement of reasons are void and an order that they be set aside.
In 2011 the plaintiff was a boilermaker employed by the first defendant, whose interests are defended in these proceedings by its insurer, Allianz Australia Workers Compensation. On 2 May 2011 the plaintiff tripped at work and claims to have fallen face forward onto his outstretched hands, landing heavily on the left side and injuring his left wrist, elbow and knee. He was then aged 51 years. The plaintiff claims he developed Complex Regional Pain Syndrome ("CRPS") as a result of the injury to the left wrist. On 20 March 2017 an arbitrator in the Commission remitted the claim to the Registrar, for referral of assessment of the plaintiff's whole person impairment to an Approved Medical Specialist ("AMS") pursuant to s 321 of the 1998 Act.

Guidelines for assessing Complex Regional Pain Syndrome ("CRPS")

The issues raised by the plaintiff under its amended summons are entirely concerned with the correct understanding and application of very specific and prescriptive diagnostic criteria for CRPS which the AMS and the Panel were bound to apply. Those criteria must be identified before considering the reasons of the AMS and of the Panel.
The NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) ("the Guidelines") were made under s 376 of the 1998 Act and talk effect from 1 April 2016. The plaintiff and the first defendant, being the only two active parties in the proceedings on the amended summons, both agree that the Guidelines have the character and legal effect of delegated legislation. It is stated in cl 1.1 of the Guidelines that in most cases they adopt the 5th edition of the American Medical Associations Guides to the Evaluation of Permanent Impairment ("AMA5").
Two important principles of assessment are stated in the following extracts from Section 1 of the Guidelines: 1.6a Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking into account the claimant's relevant medical history and all available relevant medical information … 1.6b Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment …
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.
Clauses 17.1-17.5 specifically exclude the use of AMA5 Chapter 18 in diagnosing whether CRPS is present. Those clauses provide an explicit rationale for that exclusion. The present case is concerned with CRPS Type 1, as distinct from Type 2 (also referred to as causalgia, wherein "the mechanism is an injury to a specific nerve"). It is necessary to set out from the Guidelines the whole section which appears under the heading "Complex Regional Pain Syndrome Type 1" (using identifying letters a-e and numbers i-iv in place of bullet points for ease of reference; some emphasis added): For Complex Regional Pain Syndrome Type 1 (CRPS1) to be present for the purposes of assessment: a the diagnosis is to be confirmed by criteria in Table 17.1 b 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) c the diagnosis has been verified by more than one examining physician d other possible diagnoses have been excluded. e 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: i Sensory: Reports of hyperaesthesiae and/or allodynia. ii Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry. iii Sudomotor/oedema: Reports of oedema and/or sweating increase or decrease and/or sweating asymmetry. iv 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: i Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement). ii Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes. iii Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry. iv 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. [Remaining points in this section concern rating of the impairment and are not relevant to the determination of the summons].

Assessment by the Approved Medical Specialist

When Dr Lewington examined the plaintiff on 1 May 2017 he was 57 years old. He provided a history that in the fall at work he had suffered an avulsion fracture through the radial styloid of his left wrist. This was treated with a back slab and then a plaster cast. Approximately one month later he developed severe pain in the left knee when bending to pick up items from the floor. He twisted his knee. He saw a general practitioner and then an orthopaedic surgeon. The latter diagnosed a meniscal injury which was treated with debridement by arthroscopy in July 2011.
The plaintiff recounted to Dr Lewington that his left wrist remained painful from the time of the fall and he developed hypersensitivity to light touch. His hands started to go red in colour. He was referred to pain physicians who treated him with two stellate ganglion blocks of the left upper arm in September 2011. The plaintiff said this did not relieve his pain but induced slurred speech and abdominal spasm. Medications produced side-effects but no relief. According to the plaintiff the pain in his left wrist began to spread proximally towards the left elbow and he experienced sweating, weakness and colour changes. Symptoms, including itching and colour changes, spread to the right hand and lower limbs from September 2011. Pain became widespread involving all limbs, his chest and back. By October 2011 he had developed tremors in both arms.
The plaintiff said that in 2012 he developed numbness in his left little toe and towards his left knee, sweatiness of the left foot and numbness in the left side of his face. The plaintiff described to Dr Lewington the development of other symptoms including poor memory and concentration, depression, anxiety, mood swings, poor sleep and fatigue.
In the reasons which formed part of his MAC of 8 May 2017 Dr Lewington found that items 1 and 2i-2iv of Table 17.1 (pain disproportionate to any causal event and at least one symptom in each of four categories) were satisfied. In section 7 of his reasons the doctor listed his findings with respect to the signs referred to in items 3i-3iv of Table 17.1. In setting out those findings below I have incorporated relevant parts of the doctor's more detailed record of observed signs, from an earlier section of his reasons entitled "5. Findings on physical examination": i Sensory: Evidence of hyperalgesia (to pin prick) and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement). Yes - Allodynia [increased response to normally non-painful stimulation] to light touch. ii Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes. No - No temperature or colour asymmetry. I thought there was (sic) some very mild skin changes of possible chronic venous insufficiency affecting the appearance of the lower legs and perhaps slight livedo retiularis [mottled purplish discolouration of the skin] (which can be seen in many conditions including fibromyalgia). [From section 5: There were no temperature abnormalities or asymmetry noted of the hands or feet.] iii Sudomotor/oedema: Evidence of oedema and/or sweating asymmetry. Yes/No. There was no sweating asymmetry. The sweaty palms and armpits is consistent with anxiety. Mild ankle oedema was present but as aforementioned there are many causes of mild ankle oedema such as venous insufficiency, liver disease, cardiac disease et cetera which would need to be reasonably excluded before attributing its presence to CRPS. There was some evidence clinically of mild venous insufficiency. [From section 5: There was mild symmetrical sweatiness over the palms of the hands and to less extent feet. There was more marked bilateral axillary hyperhidrosis [excessive sweating of armpits]. There was perhaps mild redness or palmar erythema [redness caused by increased blood flow in superficial capillaries] over the palms of the hands. I thought this was slight livedo reticularis over the palms and flexor forearms. These changes were symmetrical. There were some signs of chronic venous insufficiency of the skin around the ankles. There was no oedema/swelling in the upper limbs, hands or fingers. There was mild oedema in the ankles with very slight pitting within the limits of testing (causing extreme pain). Swelling was symmetrical.] iv Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nail, skin). No. In my opinion there was (sic) insufficient clinical changes to make a diagnosis of definite trophic changes. Active joint range of movement was seen to be variable and therefore, in my opinion, unreliable. It is difficult to be certain whether this is related to effort, cooperation, or pain inhibition due to chronic pain factors and psychosocial influences. [Reference made to Chapter 7 of the Guidelines regarding unreliability of measurements of range of motion]. With regards to tremor, I note that has been considered non-organic by two neurologists and in my opinion is not a reliable motor sign of CRPS. [From section 5: Tremor was noted in the right upper limb and assuming an unusual character not conforming to an identifiable pattern such as Parkinsonism or other neurological disorder. Similar tremors were noticed in the right lower limb at times. All joint movement testing was restricted by pain and seen in some cases to be variable. This was noted for example with opening and closing of the hands which appeared to be much more full and more free when grasping his elbow crutch compared to formal examination. Shoulder examination on repeated testing varied from approximately 90º to 110º and once again appeared restricted by pain. A brief attempt at measuring finger joint movements with a goniometer proved to be clinically impractical due to pain and variable movements and/or tremor. Power was reduced in upper and lower limbs with at times giving way responses. Formally testing extending the leg against resistance caused marked pain behaviour. It was noted however he could raise independently up from the chair, support his weight against gravity with legs extended and walked, albeit with the assistance of one elbow crutch. The strength required to do this far exceeded demonstrated strength on formal testing. Testing deep tendon reflexes in the limbs again caused marked pain behaviour but in general the reflexes were brisk, if not hyper brisk, and symmetrical. In my opinion there were no obvious trophic changes in the upper limbs including hands or fingers, including fingernails. There was some toenail changes such as a split in his great toe and some yellowing of one toe but they were not overtly trophic such as curling. The subcutaneous tissue bulk and skin texture was normal in the upper limbs and lower limbs including toes and fingers. I considered the hair distribution in the upper limbs to be normal. There appeared to be reduction in hair over the ankles and below. There was no increased hair growth.]
Thus Dr Lewington found one sign in the sensory category (item 3i) and one in the sudomotor/oedema category (item 3iii), namely, oedema, which was present to a mild degree in the ankles. The doctor considered this equivocal as a sign of CRPS. "Sudomotor" refers to the functioning of the nerves which control sweating. Such sweatiness as was observed was symmetrical and therefore did not contribute to the fulfilment of this criterion.
Most importantly, Dr Lewington found no sign in the vasomotor category (item 3ii, concerned with the function of dilation and constriction of blood vessels). His finding of "No temperature or colour asymmetry" was explicit and without qualification. In the motor/trophic category (item 3iv), the term "trophic" refers to changes in soft tissue (eg skin, muscle), resulting from interruption of nerve supply. Again the doctor's findings are explicit that definite trophic changes could not be identified. With regard to motor function he found the joint range of movement "variable and therefore, in my opinion, unreliable". This is further explained in the doctor's record of observations in section 5 of his reasons where it is noted the plaintiff demonstrated a degree of strength and a range of movement when using a crutch and getting up from a chair, which was inconsistent with his strength and movement results when being formally tested.
With respect to item 4 in Table 17.1 Dr Lewington did not accept that there was "no other diagnosis that better explains the signs and symptoms". He said: The diagnosis of fibromyalgia, with significant psychological influences (the latter noted by multiple examiners) (see section 10C), is in my opinion (and Dr Reiter) a more plausible diagnosis and consistent with the clinical features. The clinical diagnosis of fibromyalgia is supported by the score of 27/31 on the ACR [American College of Rheumatology] 2011 Modification of the 2010 Fibromyalgia Criteria.
The doctor's reference to "section 10C" was to a part of his reasons in which he reviewed the opinions and reports of a number of other doctors who had examined the plaintiff, including treating clinicians. The reference to a score of 27/31 was to sections 6 and 7 of the reasons in which Dr Lewington applied a set of criteria he regarded as "widely regarded and used in research as well as clinical applications" for the diagnosis of fibromyalgia. According to those criteria a score greater than or equal to 13 would be consistent with fibromyalgia.
Dr Lewington's findings that there were no signs in categories 3ii or 3iv meant that the criteria in Table 17.1 were not satisfied and the rateable impairment of CRPS could not be diagnosed. Additionally and independently, his finding under item 4 (that fibromyalgia explained such signs and symptoms as could be found better than a diagnosis of CRPS) also excluded CRPS. However it was unnecessary for Dr Lewington to have considered under item 4 whether any alternative diagnosis "better explains the signs and symptoms" because he did not find present all of the signs in item 3i-3iv to which item 4 refers.

The Appeal Panel's decision

In submissions to the Appeal Panel the plaintiff contended that, of the possible grounds of appeal under 327(3) of the 1998 Act, the following were established: (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error.
The Panel found no error in either respect. At [31]-[36] of their reasons dated 1 September 2017 the Panel summarised Dr Lewington's findings that signs in categories 3i and 3iii were present, although the mild ankle oedema in category 3iii could be caused by a condition other than CRPS, but that no sign in either of categories 3ii and 3iv was exhibited. At [37] the Panel said that it was: satisfied that the AMS used his entire range of clinical skill and judgement when assessing whether [the plaintiff] displayed at least one sign in the four categories required by Table 17.1 to meet the diagnostic criteria for CRPS.
At [37]-[41] the Panel found no fault in Dr Lewington's review of other medical opinions, including those of the plaintiff's treating clinicians. The Panel concluded as follows: [42] The Panel finds the AMS carried out a very thorough examination of the [plaintiff] and gave adequate reasons for the conclusions reached and findings made, in exercise of his clinical skill and judgement, based upon the clinical examination. [43] The Panel finds the AMS correctly applied the principles of assessment in accordance with Part 2 of Chapter 1 of the Guidelines. [44] The photographs taken by the AMS, in the Panel's view, show descriptions found on examination by the AMS consistent with his findings that the diagnostic criteria for CRPS were not fulfilled as required by Table 17.1 of the Guidelines. [45] The Panel, after carefully considering the [plaintiff's] submissions and reviewing the medical evidence, distils no error on the part of the AMS that he based his assessment on incorrect criteria to reach his conclusion that the [plaintiff] does not meet the diagnostic criteria for CRPS as required by Chapter 17 of the Guidelines. [46] As a result of the clinical findings on examination and the conclusion reached that the [plaintiff] does not satisfy the diagnostic criteria for CRPS, the AMS was not required to assess permanent impairment of the limbs as submitted by the [plaintiff] because no rateable diagnosis was found. [47] The Panel distils no demonstrable error in the MAC.
The Panel summarised at [25] the plaintiff's submissions on the appeal. At subpar (f) of [25] they noted the contention that "The AMS erred in concluding the [plaintiff's] symptoms are more consistent with fibromyalgia". In their reasons the Panel did not address this submission. They did not need to. Dr Lewington's conclusion that fibromyalgia was a better explanation than CRPS for the plaintiff's symptoms and for such signs as he had found on examination was, for the reasons given at [18] above, superfluous to the outcome recorded in his MAC. The Panel found that correct criteria had been applied and no demonstrable error had been made in Dr Lewington's finding that signs 3ii and 3iv were not present. From that it followed, for precisely the reasons given by the Panel at [45]-[47], that the MAC for 0% whole person impairment should stand.

Grounds of review in the plaintiff's summons

The grounds of review of the Panel's decision, as set out in the plaintiff's summons, are considered under the following headings. Ground (a), that the Panel should have found Dr Lewington acted on incorrect criteria, is merely a general statement which need not be considered separately from the particulars of it, which are articulated in other grounds.

Ground (b)

Ground (b) is that the Panel should have found Dr Lewington "misapplied the Guidelines by eliminating each of the observed 'signs' [ie items 3i-3iv] on the basis that each observed 'sign' could be explained by a different condition such as fibromyalgia" instead of recording all symptoms and signs as required by items 1-3 of Table 17.1 and then determining under item 4 whether there was "no other diagnosis that better explains" the totality of such symptoms and signs.
This ground attributes to the AMS a process of reasoning which, manifestly on the face of his reasons, he did not employ. The doctor did not eliminate any sign which he observed within the categories 3i-3iv by applying the test of whether a diagnosis other than CRPS better explained the particular sign individually. With respect to item 3ii the doctor found, unequivocally, "no temperature or colour asymmetry". Asymmetry was a mandatory requirement under Table 17.1 and the absence of it was, alone, fatal to a diagnosis of CRPS. Although the doctor went on to state that such mild skin discolouration as he observed might be present in any of a number of conditions, this was an additional remark which in no way subverted his correct application of the criterion. The skin discolouration was not asymmetric and the sign required by item 3ii was therefore not present.
Similarly in relation to item 3iv Dr Lewington did not find decreased active joint range of motion, or motor dysfunction (such as tremor), or trophic changes. It is not the case that he identified such signs but then dismissed them on the basis they could be better explained by some other diagnosis, individually and without reference to other symptoms and signs. There is not to be found in Dr Lewington's reasons with respect to sign 3iv any hint of such an approach.
It is apparent on the face of Dr Lewington's reasons that he made his clinical assessment of item 3iv, in particular, as required by cll 1.6a and 1.6b of the Guidelines (see [7] above). He took into account "the claimant's relevant medical history and all available relevant medical information" and he exercised his clinical judgment. Upon that approach Dr Lewington found the range of movement observed on examination "unreliable" and therefore not clinically established. With respect to tremor he had regard to the medical history of two neurologists who found these symptoms to be "non-organic" and he observed that such tremor as the plaintiff exhibited did not conform to an identifiable pattern of a neurological disorder. With respect to trophic changes Dr Lewington simply did not find any.
In relation to sign 3iii Dr Lewington found one of the alternatives, namely, oedema. This was present to a mild degree in the ankles. If the plaintiff is correct that the question at item 4 in Table 17.1 should only be applied to the totality of signs and symptoms found under items 1, 2 and 3, then Dr Lewington's conclusion that the mild ankle oedema should not be attributed to CRPS without first excluding the many other possible causes of this sign was, at worst, superfluous. As the doctor did not find any signs in the essential categories 3ii and 3iv, item 4 did not need to be applied. In the correct application of Table 17.1 a diagnosis of CRPS was excluded by the absence of signs 3ii and 3iv.
Although this is not necessary to my decision on this ground, I do not consider item 4 bears the rigid and restrictive construction for which the plaintiff contends. I do not consider that the wording of the item precludes the AMS from considering whether one or more of the signs he or she observes is better explained by some diagnosis other than CRPS, provided of course that all other signs and symptoms are taken into account in considering a putative better explanation of any one individual sign.

Ground (c)

Ground (c) is that the Panel should have found Dr Lewington erred by considering, separately and individually, whether the manifestations (symptoms or signs, as the case may be) which satisfied items 1-3 in Table 17.1 resulted from CRPS. This complaint can only directed to item 3 of Table 17.1 because Dr Lewington found items 1 and 2 favourably to the plaintiff. The second part of ground (c) is a contention that "on the true operation of Table 17.1, steps 1, 2 and 3 (and their sub-components) were satisfied" by the doctor's findings.
The first part of this ground is indistinguishable from ground (b) which I have already dealt with. It asserts error on Dr Lewington's part arising from an approach he is alleged to have taken but which I do not consider he took at all. As earlier mentioned (at [28]), to the extent that he considered whether the sign of mild ankle oedema referable to item 3iii may be explicable by something other than CRPS, this was surplusage to his correct application of the criteria in Chapter 17 of the Guidelines.
The second part of the ground is not concerned with application of incorrect criteria but is, apparently, a contention that the Panel should have found Dr Lewington made a demonstrable error in determining whether the requirements of Table 17.1 were satisfied. In Dr Lewington's reasons quoted at [13] above, I see no demonstrable error which the Panel ought to have identified. The doctor set out in very clear terms precisely the basis upon which some of the "sub-components" of item 3 were not satisfied by the findings from his examination.

Ground (d)

Ground (d) is that the Panel should have found, in applying item 4 of Table 17.1, that Dr Lewington wrongly used a test of whether some diagnosis other than CRPS "consistently explained the signs and symptoms" whereas he ought to have asked whether another diagnosis "better explains the signs and symptoms".
This ground is already disposed of by my conclusion that the Appeal Panel did not need to consider the manner in which Dr Lewington applied item 4 because they were bound to uphold the MAC upon finding no error in the AMS's conclusion that signs 3ii and 3iv were absent. Ground (d) would be unsustainable, even if it had to be considered on its merits. Although Dr Lewington applied the test in item 4 to the symptoms which the plaintiff reported to him and to such of the signs in item 3 as he found present (whereas he need not have applied the test at all in the absence of signs 3ii and 3iv), repeated statements throughout the MAC show that he did not misunderstand the item 4 test in the manner contended for by the plaintiff.
The first such statement is in the passage quoted at [16] above (which was a repetition of a passage in identical terms in section 7 of the reasons at p 11). There the doctor concluded that "fibromyalgia, with significant psychological influences" is "a more plausible diagnosis and consistent with the clinical features". There is in substance no difference between this formulation and the test prescribed in item 4 of a "diagnosis that better explains the signs and symptoms".
Secondly, in section 7 of his reasons Dr Lewington stated: Whilst there has (sic) been some historical features of [CRPS] in my opinion the current clinical diagnosis is more consistent with fibromyalgia. Again, this is in substance equivalent to saying that fibromyalgia better explains the signs and symptoms which have been clinically ascertained.
Thirdly, in section 10C of Dr Lewington's reasons he discussed the conclusions of a rheumatologist, Dr Reiter, and said: I also agree that the clinical diagnosis of fibromyalgia with strong psychological influences ("abnormal illness behaviour") overall better explains the symptomatology.
In written and oral argument the plaintiff's counsel's sought to persuade the Court that Dr Lewington had done no more than consider whether the symptoms and signs with which the plaintiff presented were consistent with fibromyalgia and had failed to address the question whether those signs and symptoms were "better explained" by that diagnosis. On a fair reading of Dr Lewington's reasons I find no merit or substance in these arguments.

Ground (e)

Ground (e) is that the Panel should have found that, in applying items b, c and d at the commencement of Table 17.1 (concerning whether a diagnosis of CRPS had been present for at least one year, whether the diagnosis had been verified by more than one examining physician and whether other possible diagnoses had been excluded), Dr Lewington erred by treating these items as directed to a diagnosis under Table 17.1 rather than "being factual enquiries directed to the history and management of the worker". The second part of this ground is a contention that Dr Lewington erroneously treated "other possible diagnoses" as not having been excluded whereas they were "speculative and conjectural".
The first part of this ground, if established, could not justify setting aside the Panel's decision. Neither Dr Lewington nor the Panel had to consider items b-d unless item a was satisfied, that is, that the diagnosis of CRPS was confirmed by criteria in Table 17.1. In the absence of signs 3ii and 3iv that diagnosis was not so confirmed. Item b (whether the diagnosis had been present for at least one year), item c (whether the diagnosis had been verified by more than one examining physician) and item d (whether other possible diagnoses had been excluded) did not arise.
If the first part of this ground had to be considered on its merits I would reject it. Of the four requirements a-d at the commencement of the criteria for consideration of CRPS (see [9]), 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.
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 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.
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.
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.
In par 16 of the plaintiff's written submissions the following argument is advanced: [A] diagnosis under the Budapest criteria was a relevant consideration to step 4 which was favourable to the [plaintiff]. At the step 4 stage, a medically proper clinical diagnosis of CRPS by application of other accepted diagnostic formula for CRPS could only be evidence that negatived the ousting satisfaction of step 4. That is because if there was a proper diagnosis of CRPS under the Budapest criteria, that evidence is a relevant factor to the proposition that there was no other diagnosis that better explain the situation.
I reject this submission. "Step 4" was never reached and never had to be applied by Dr Lewington or by the Panel in the absence of signs 3ii and 3iv, for the reasons already given. But even if the assessment process had reached the stage of requiring consideration whether any other diagnosis might explain the plaintiff's symptoms and signs better than CRPS, clinical criteria different from and less exacting than those prescribed in the Guidelines could not lawfully have been applied in the comparison.
The second part of ground (e) (see the last sentence of [39]) again concerns item 4 in Table 17.1, complaints about which, for reasons already given, cannot touch the correctness of the MAC which rests upon absence of signs 3ii and 3iv. If this part of ground (e) had to be determined it would turn upon whether the Appeal Panel ought to have concluded that Dr Lewington made a "demonstrable error" in regarding fibromyalgia as an alternative diagnosis which could better explain the plaintiff's symptoms and signs. This point is not concerned with "incorrect criteria", being the alternative category of ground raised before the Panel (see [19]).
Dr Lewington explained his reasoning with respect to the alternative diagnosis of fibromyalgia in sections 5 and 7 of the MAC. As noted at [16] and [17] he applied diagnostic criteria of the American College of Rheumatology which he considered to be clinically established and reliable. In section 7 he considered generally the overlap of some clinical features between CRPS, chronic pain syndrome, fibromyalgia and significant psychological influences. The doctor made reference to literature with respect to these conditions. The plaintiff's characterisation of the alternative diagnosis of fibromyalgia as "speculative and conjectural" is entirely unjustified.
In relation to this ground the plaintiff asserted that the American College had issued a 2016 modification of its diagnostic criteria for fibromyalgia, to which Dr Lewington did not refer. However this modification was not before either the AMS or the Appeal Panel and is not part of the record for the purpose of identifying whether any reviewable error was made. Fibromyalgia is not a rateable impairment under the Guidelines and they do not specify criteria for diagnosis of that disorder. If it was relevant for the plaintiff to show demonstrable error in Dr Lewington's conclusion that signs and symptoms were better explained by fibromyalgia, that could not be done simply by pointing to a 2016 revision of the document issued by the American College.

Ground (f)

Ground (f) is that the Panel failed to deal with the plaintiff's argument that Dr Lewington had erred in finding his symptoms were "more consistent with fibromyalgia" than with CRPS. This has been dealt with at [20]-[22] above. There was no error in the Panel refraining from addressing the plaintiff's argument about the AMS's application of item 4 in Table 17.1 given that they were bound to uphold the MAC upon his findings, without error, that signs 3ii and 3iv were absent.

Ground (g)

Ground (g) is that the Panel should have conducted a clinical examination of the plaintiff. The nature of the grounds raised by the plaintiff in his appeal to the Panel and the scope of his submissions in support as summarised at [25] of the Panel's reasons was such that further examination of the plaintiff could not have had any bearing upon the outcome of the appeal. The Panel determined (at [8] their reasons) that they could decide the appeal on the documentary evidence and the parties' submissions. I see no reviewable error in this. The grounds and submissions brought before the Panel were much the same as the grounds of review now raised in the plaintiff's summons. The Panel had no more need of the physical examination of the plaintiff to decide these matters than does the Court.

Ground (h)

Ground (h) is that the Panel applied incorrect diagnostic criteria for the alternative diagnosis of fibromyalgia. The plaintiff made no attempt to elaborate or support this ground either in writing or orally. In any event the contention is irrelevant because it could only have a bearing upon the question under item 4 of whether fibromyalgia explains the plaintiff's signs and symptoms, which did not arise for the AMS or for the Panel, as earlier explained.

Ground (i)

Ground (i) is that the Panel gave inadequate reasons. The inadequacy of which the plaintiff complains is that the Panel did not give reasons for failing to uphold his complaint that Dr Lewington had "erred in concluding [the plaintiff's] symptoms were more consistent with fibromyalgia". This ground thus raises the same subject as ground (f) and has already been dealt with at [20]-[22] and [51] above.

Judicial review of Dr Lewington's MAC

The plaintiff would require an extension of time for judicial review of the MAC. His original summons was filed on 30 November 2017, more than six months after the issue of the MAC and well outside the time limit of 28 days. The first defendant did not submit that there is any procedural bar to an extension of time being granted for judicial review of the MAC to be undertaken. It was not submitted that because in the meantime the plaintiff has pursued his right of appeal to the Panel he can no longer seek review of the MAC and is confined to judicial review of the Panel's decision. However the first defendant contends that an extension of time should not be granted as it would be futile, everything of substance with respect to whether Dr Lewington made reviewable error being before the Court upon review of the panel's decision.
I accept the last-mentioned submission. Grounds (a)-(e) of review of Dr Lewington's MAC, as set out in the amended summons, correspond in substance with grounds (b)-(e) and (h) in respect of the Panel's decision. Ground (f) of review of the MAC is that Dr Lewington failed to give adequate reasons. In argument this was directed solely to his alleged failure to explain how he had concluded that the signs and symptoms presented to him would justify a diagnosis of fibromyalgia. For reasons earlier given this was concerned with item 4 in Table 17.1 and was unnecessary to Dr Lewington's finding that CRPS could not be diagnosed due to the absence of signs 3ii and 3iv. Even if I had to consider this ground on its merits I would find no substance in it. I consider that Dr Lewington fully and adequately explained all his relevant conclusions.
As the grounds (a)-(e) for the review of the MAC have in substance been decided adversely to the plaintiff in relation to judicial review of the Panel's decision and as ground (f) in relation to the MAC lacks sufficient merit to warrant an extension of time, such extension is refused.

Orders

In accordance with these reasons the summons will be dismissed and the plaintiff will be ordered to pay the costs of the first defendant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2018

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