Middleton v Hyett t/as Phoenix Rising Cafe

The legislative framework and guidelines

1. The 1987 Act, the 1998 Act, and the Workers Compensation Regulation 2016 (NSW) establish a workplace injury management and workers compensation system. Relevantly for present purposes, the entitlement to compensation for permanent impairment resulting from an injury is addressed in Division 4 of Part 3 of the 1987 Act, while Chapter 7 of the 1998 Act regulates the making of claims for compensation and the administration of those claims.
2. Part 7 of Chapter 7 of the 1998 Act prescribes, among other things, the process for resolving disputes about a person's impairment. Where, as in this case, a dispute arises as to the degree of permanent impairment, it may be referred to the President of the PIC for determination by the PIC: s 288. Pursuant to s 293, the President may refer the dispute for assessment by a medical assessor, subject to any regulations under s 321A (no such regulations have been made). Following assessment, the medical assessor is to give a certificate which is conclusively presumed to be correct as to the degree of permanent impairment in any proceedings before a Court or the PIC: ss 325, 326.
3. Section 322(1) of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the "Workers Compensation Guidelines" (as in force at the time the assessment) issued for that purpose. Guidelines have been made pursuant to s 376 of the 1998 Act. Those presently in force are the 4th edition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines), re-issued by the State Insurance Regulatory Authority on 1 March 2021. The Guidelines, in turn, adopt the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5) "in most cases": Guidelines at [1.1]. Relevantly, however, Chapter 18 of AMA5, which deals with pain, is expressly excluded. The Introduction to the Guidelines states in this regard (at [1.12]): "AMA5 Chapter 18, on pain, is excluded entirely at the present time. Conditions associated with chronic pain should be assessed on the basis of the underlying condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines. Complex regional pain syndrome should be assessed in accordance with [Chapter 17 of the Guidelines]."
4. Section 327(1) of the 1998 Act provides that a party to a medical dispute may appeal against a medical assessment "but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section". A matter is appealable "if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission": s 327(2). The grounds of appeal are set out in subsection (3), and include that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and that the medical assessment certificate contains a demonstrable error (s 327(3)(d)). An appeal is made by application to the President, and is not to proceed unless the President is satisfied on the face of the application and any submissions that at least one of the grounds has been made out: s 327(4).

Background to the decision of the Appeal Panel

1. All of the evidence in these proceedings was contained in an affidavit of Denny Ahn, a law clerk in the employ of the plaintiff's solicitor, sworn 30 July 2024. Mr Ahn annexed to his affidavit the material before the Appeal Panel, as well as the decision of the Appeal Panel, the medical assessment certificate it issued, and the Certificate of Determination that the PIC issued relying on that medical assessment certificate.
2. As I noted above, the subject of the Appeal Panel's decision was a dispute regarding the plaintiff's claim for WPI pursuant to s 66 of the 1987 Act. By letter from her solicitors dated 17 July 2023, the plaintiff had served that claim, specifying the body system affected by the injury as "Right upper extremity". Her claim was supported by a report of Dr Terry Kwong, a Consultant Physician and Rheumatologist, dated 20 March 2023.
3. In his report, Dr Kwong recorded the plaintiff's history as she reported it to him. Relevantly, the plaintiff, who is right-hand dominant, was employed as a chef. She first experienced pain in her right thumb, wrist and elbow in around May 2017, when she was using a manual potato chip cutter to prepare food for a festival. After working through the pain for several months, in September 2017 she experienced a worsening of the pain in her right thumb, elbow and wrist following sustained use of the manual chip cutter. The plaintiff continued to work for the next two weeks as the pain progressively worsened and began to radiate to her shoulder. She took a four-day break before returning to work and working through the pain for approximately 2 weeks. On 10 October 2017, she experienced severe pain radiating from the base of her thumb to her neck and was sent home following an argument with the acting manager regarding her condition. She was made redundant the next day.
4. Under the heading "Diagnosis", Dr Kwong wrote, "Repetitive right wrist and right thumb injuries with tenosynovitis documented objectively by ultrasound and MRI-complicated by complex regional pain syndrome". Before moving to Dr Kwong's assessment of the plaintiff's WPI on the basis of this diagnosis, some context for complex regional pain syndrome (CRPS) is necessary.
5. CRPS is identified in section 16.5e of AMA5 as divided into two sub-types, reflex sympathetic dystrophy and causalgia, known respectively as CRPS type 1 (or CRPS1) and CRPS type 2 (or CRPS2). The hallmark of these syndromes "is a characteristic burning pain that is present without stimulation or movement, that occurs beyond the territory of a single peripheral nerve, and that is disproportionate to the inciting event". The pain is associated with specific clinical findings, "including signs of vasomotor and sudomotor dysfunction and, later, trophic changes of all tissues from skin to bone".
6. Chapter 17 of the Guidelines make provision for the diagnosis and assessment of CRPS. Relevantly, in order for CRPS1 to be present for the purposes of an assessment, the Guidelines require the diagnosis to be confirmed by the criteria set out in Table 17.1. Additionally, the diagnosis must have been present for at least one year and have been verified by more than one examining physician. Other possible diagnoses must also have been excluded.
7. Table 17.1 is titled "Diagnostic Criteria for Complex Regional Pain Syndrome types 1 and 2" and provides as follows.
8. Continuing pain, which is disproportionate to any causal event.
9. 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).
10. 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).
11. 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.

1. If the criteria in Table 17.1 are satisfied, the degree of impairment associated with CRPS1 is assessed by reference to two impairments, loss of joint motion and sensory deficits and pain. The Guidelines prescribe that the extremity impairment resulting from loss of motion of each individual joint involved is first to be rated. Next, the extremity impairment resulting from sensory deficits and pain is to be rated. The two impairments are then combined to obtain a final extremity impairment (using a table in AMA5), which is converted to WPI (again using a table in AMA5).
2. In relation to the assessment of the impairment from sensory deficits and pain resulting from CRPS1, the Guidelines state: "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 [activities of daily living], as described in AMA5 at Table 16.10(a) (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."
3. The stipulation in the Guidelines that a "nerve value multiplier" is not to be used refers back to the section of AMA5 in which Table 16-10 appears, namely, section 16.5. Titled "Impairment of the Upper Extremities Due to Peripheral Nerve Disorders", the introduction to the section refers to the accurate diagnosis of peripheral nerve disorders as "based on a detailed history, a thorough physical examination with special emphasis on the nervous and vascular systems, and appropriate diagnostic tests, including a variety of electrical and imaging studies". The need for an accurate diagnosis is repeated in the paragraph immediately before Table 16-10: "Upper extremity impairments due to sensory deficits or pain resulting from peripheral nerve disorders are determined according to the grade of severity in diminution or loss of function and the relative maximum upper extremity impairment value of the nerve structure involved, as shown in the classification (a) and procedural (b) steps described in Table 16-10 and the impairment determination method detailed in Section 16.5b. Table 16-10 provides a classification for determining impairment of the upper extremity due to a sensory deficit or pain resulting from a nerve disorder. This table is to be used for pain that is due to nerve injury or disease that has been documented with objective physical findings or electrodiagnostic abnormalities. It is not to be used for pain in the distribution of a nerve that has not been injured except in diagnosed cases of complex regional pain syndromes. The examiner must use clinical judgment to estimate the appropriate percentage of sensory deficits or pain within the range of values shown for each severity grade. The maximum value for each grade is not applied automatically." (Emphasis in original.)
4. The procedural steps in part (b) of Table 16-10 include multiplying the severity of sensory deficits by the maximum upper extremity impairment value for the nerve structure involved, so as to obtain the upper extremity impairment. Those values are set out in a number of tables, including, for peripheral nerves, Table 16-15. As I have noted above, the Guidelines do not incorporate this "nerve multiplier" step.
5. Returning to Dr Kwong's report, consistently with the approach in chapter 17 of the Guidelines he was satisfied that the plaintiff fulfilled the diagnostic criteria for CRPS, stating. "- She has continuing pain which is disproportionate to any causal event. -She has sensory symptoms with hyperaesthesia and allodynia. -She has skin discolouration in her right arm. -She reports excessive sweating in her right arm. -She reports decreased range of motion and trophic changes in her fingers of her night thumb and her right hand. -She has evidence of hyperalgesia and allodynia. -She has evidence of vasomotor changes on examination. -She has mild oedema in her right arm. -The diagnosis has been present for 60 months. -The diagnosis has been verified by more than one examining physician. The diagnosis was made by her treating hand surgeon, Dr James Ledgard and was supported by Dr Timothy Scholz, a pain physician. -Other diagnoses have been excluded clinically and with imaging. There is no other diagnosis that better explains her signs and symptoms."
6. Dr Kwong then assessed the plaintiff's degree of impairment flowing from that condition, "based on [the] combination of loss of joint motion and sensory deficits and pain". Using the tables in AMA5, he obtained a combined loss of motion and sensory impairment figure of 83%, which converted to a WPI of 50%.
7. At the request of Phoenix's insurer, the plaintiff was assessed by two orthopaedic surgeons, Dr Ron Haig and Dr Simon Kinny. Dr Haig prepared three reports, of which the most relevant to the issues on this application was dated 19 September 2023. In that report, Dr Haig expressed the opinion that the plaintiff had started to develop pain around the base of her right thumb during 2017, which had become far more widespread over the past six years. He diagnosed her as having a chronic pain syndrome. However, he did not believe that the findings on examination of the plaintiff satisfied those necessary for a diagnosis of CRPS, having regard to the diagnostic criteria in Table 17.1 of the Guidelines. In response to Dr Kwong's report, Dr Haig repeated his opinion that on the basis of his observations of the plaintiff she did not satisfy the conditions for a diagnosis of CRPS. He also considered that Dr Kwong's assessment of the plaintiff's WPI was excessive.
8. Dr Kinny produced two reports, dated 12 August 2022 and 31 August 2022. In his first report, based on a review of the plaintiff's clinical records and an in-person examination on 2 August 2022, he provided the following diagnosis: "I believe it to be a permanent aggravation of pre-existing and asymptomatic osteoarthritis of the first CMC joint of the base of the right thumb. There is a secondary somatic sensitisation disorder involving marked fear-of-pain avoidance of any active use of the right thumb as a consequence. There is likely a secondary psychological diagnosis. Any other diagnoses that have been suggested in the past no longer appear to be present or significant."
9. In particular, Dr Kinny stated that the plaintiff "does not show clinical signs of significant ongoing wrist tendonitis at the present time", and "[w]hilst she may have exhibited symptoms consistent with a CRPS at some point, she does not have same currently".

The application to resolve a dispute

1. On 9 November 2023, the plaintiff lodged an Application to Resolve a Dispute in the PIC. The application identified the matter in dispute by ticking the box which stated: "Lump sum compensation where degree of permanent impairment is in dispute". Consistently with Dr Kwong's diagnosis, the injury was described in the application as: "Right upper extremity (right thumb, right wrist, right elbow) causing CRPS", with a deemed date of injury as 29 September 2017. In the section of the form headed "Permanent Impairment/Pain and Suffering", the plaintiff identified the "Systems Claimed" as "Chronic Pain", and claimed a sum of $181,510 on the basis of a total WPI percentage of 50%.
2. On 21 November 2023, Phoenix lodged a reply to the plaintiff's application to resolve a dispute. Phoenix relied upon materials including the reports of Dr Haig and Dr Kinny, as well as records of Lismore Base Hospital showing that on or around 15 April 2023, shortly after the completion of Dr Kwong's report, the plaintiff suffered a fall resulting in the fracture of her right upper extremity.
3. On 23 November 2023, a representative of the PIC emailed the parties' representatives notifying them that a referral had been made to a medical assessor and advised that any objection to the referral should be made within three days. Phoenix's solicitor responded that same day, stating: "We write to ask that an amendment be made to the MA Referral, specifically in relation to the section which reads 'body part/s referred'. Whilst it is agreed between the parties that the worker suffered a right upper extremity injury affecting her right thumb, right wrist and right elbow, it is not agreed that she suffers from Complex Regional Pain Syndrome. The parties' experts are at odds in this respect, with [Phoenix's] recent expert Dr Ronald Haig having opined that the Plaintiff does not meet the strict criteria contained in Table 17.1 of the Guidelines to enable a diagnosis and assessment based on CRPS. In light of this, we submit that the referral ought to be amended to make this clear, as it will be a matter for Dr Tim Anderson to determine on the day of the assessment whether the applicant meets the criteria for an assessment based on CPRS." (Emphasis in original.)
4. Following an exchange with the plaintiff's solicitor, the President's delegate ultimately expressed the scope of the referral in the following terms: "Body part/s referred: right upper extremity (chronic pain to right thumb, right wrist, right elbow) CRPS - to be determined by the Medical Assessor."
5. The plaintiff attended an examination with the medical assessor on 28 November 2023. On 5 December 2023, the medical assessor issued a medical assessment certificate which assessed the plaintiff's WPI as 37%.
6. The medical assessor identified the "[b]ody parts / systems referred" as "[r]ight upper extremity (thumb, wrist, elbow, CRPS)". This was a truncation of the terms of the referral, which I have set out above. It was truncated further in the formal certificate, in which the "Body Part or system" was stated as "Right upper extremity".
7. Under the heading "Present symptoms", the medical assessor recorded: "Pain radiating from the right elbow, through to the base of the right thumb. She has a very unpleasant buzzing sensation in the right index and ring fingers. There is gross loss of movement and power. There is increased sweating. Sometimes the arm feels hot and sometimes cold. Alterations of climatic temperature, either hot or cold, make the condition worse. This is particularly the case in winter."
8. Under the heading "Findings on Physical Examination", the medical assessor recorded: "She was in gross discomfort with her right forequarter and protectively held the right forearm. The right hand was very obviously sweaty, although there was no swelling, colour change or alteration of temperature in comparison with the left hand. The surgical scar over the volar surface of the right wrist from the internal fixation of the right radius and ulna, which was fractured in April 2023 had healed satisfactorily. The whole arm, hand and all digits was excessively tender. There was restriction of movement of the right thumb, wrist, elbow (minimally) and shoulder. Movement of the fingers when conducted cautiously, was almost normal and symmetrical with the left side."
9. Under the heading "Summary of injuries and diagnoses", the medical assessor stated: "Ms Middleton gives a history of excessive use with her right hand during a period of enhanced activity while working as a chef from May through to September 2017. This has resulted in dysfunction predominantly of the right hand and particularly the base of the right thumb. This has further developed into a chronic pain condition. The condition has been treated as Complex Regional Pain Syndrome, although she did not have the full criteria to diagnose this condition at this assessment. Nevertheless, it was very obvious that this condition is quite debilitating and has affected the whole of the right forequarter."
10. In assessing the plaintiff's WPI, the medical assessor first recorded the plaintiff's range of movement in the upper extremities (right and left), including the shoulders. With no impairment on the left side, the medical assessor recorded the combined range of movement upper extremity impairment (UEI) as follows: FACTOR %UEI Right shoulder 21 Right elbow 2 Right wrist 13 Right thumb 10 Combined value 39% UEI

1. The medical assessor then turned to the topic of neurological dysfunction of the right forequarter, which he described as "quite severe". He identified neurological dysfunction in the medial nerve below the forearm, the ulnar nerve below the mid-forearm, and the radial nerve, resulting in a UEI of 38% (reflecting impairment of 31% for the medial nerve below the forearm, 6% for ulnar nerve below the mid-forearm, and 4% for the radial nerve). Combining the UEI of 39% for the range of movement and 38% for neurological dysfunction in accordance with AMA5, this gave a total of 62% upper extremity impairment, which converted to 37% WPI.
2. The medical assessor observed that Dr Kinny's second report, which found 5% WPI, did not address "the chronic pain condition". On the other hand, Dr Kwong's diagnosis of CRPS had resulted in "a fairly high whole person impairment of 50% WPI". The medical assessor stated that, "whilst it was very obvious that Ms Middleton does have a chronic pain condition, she did not have the specific features to fully diagnose Complex Regional Pain Syndrome".

Appeal to Appeal Panel

1. On 22 December 2023, Phoenix lodged an appeal against the decision of the medical assessor pursuant to s 327 of the 1998 Act. The grounds of appeal were that the assessment was made on the basis of incorrect criteria, and that the medical assessment certificate contained a demonstrable error. Relevantly for present purposes, Phoenix contended that the assessment of 37% was based on incorrect criteria, in circumstances where the medical assessor had assessed body parts not listed in the referral, being the right shoulder, and the right medial, ulnar and radial nerves.
2. On 15 January 2024, the plaintiff filed a notice of opposition to the appeal. She submitted that, properly construed, the amended referral permitted the medical assessor to consider any segment of the right upper extremity which he deemed relevant, although his assessment of "chronic pain" was limited to "right thumb, right wrist, right elbow". She submitted the amended referral broadly noted the "right upper extremity" as the body system which the assessor must assess.
3. On 6 February 2024, the President's delegate determined that the matter should be referred to an Appeal Panel, having been satisfied that an appeal ground was arguable on the face of the application. On 27 March 2024, the Appeal Panel issued its decision. It revoked the medical assessment certificate issued by the medical assessor, and issued a new certificate that assessed the plaintiff's WPI as 14%.
4. The Appeal Panel summarised Phoenix's submissions in [38] of its reasons, noting in [39] that the plaintiff submitted that no errors were made and disputed all of the submissions. Phoenix's submissions relevantly included the following: "(a) The Medical Assessor has assessed body systems outside the bounds of those referred for assessment, namely right shoulder, right medial nerve, right ulnar nerve, and right radial nerve, in circumstances where the Medical Assessor found that the respondent does not meet the criteria for an assessment based on CRPS. On that basis, then pursuant to the referral, the only remaining body systems to be assessed were the right thumb, right wrist and right elbow. (b) No assessment ought to have been provided in respect of the right shoulder, right medial nerve, right ulnar nerve, and right radial nerve. (c) The Medical Assessor's combined UEI for the right thumb, wrist and elbow converts to 14% WPI."
5. The Appeal Panel agreed "with the thrust of the appellant's submissions": at [43]. It stated that a medical assessor "is not entitled to go outside the bounds of the referral" (emphasis in original), noting that there were some exceptions, "notably where the parties agreed to the body parts to be referred but due to an administrative error, not all were included in the referral": at [44]. The exception was likely a reference to the circumstance that arose in Skates v Hill Industries Ltd [2021] NSWCA 142 ("Skates"), to which both parties had drawn the Appeal Panel's attention in their respective written submissions. In that case, the referral had omitted an injury, which the insurer accepted was an error. The primary judge found that the Appeal Panel erred by not assessing the omitted injury, having regard to the insurer's concession before it: at [30]. I will return to Skates below.
6. The Appeal Panel in the present case concluded that the medical assessor was confined to the three body parts identified in the referral: at [45]. He was "thus not entitled to assess the right shoulder or the right medial nerve, right ulnar nerve, and right radial nerve": at [46].
7. Phoenix had also contended that the medical assessor had not clearly dealt with the plaintiff's claim for CRPS. The Appeal Panel noted that the diagnosis of CRPS was a matter for the medical assessor, and that he had recorded that the plaintiff did not have the full criteria to diagnose the condition. It continued: "[51] It seems to us that the Medical Assessor was attempting to confirm a diagnosis of CRPS by addressing pain issues reported by the respondent which he cannot do. [52] The only 'pain' assessable in CRPS1 are the sensory deficits and pain using Table 16-10a of AMA5 (as listed in the third bullet point on p 81 of the Guidelines). The three peripheral nerves that the Medical Assessor used were shown to be normal in Nerve Conduction Studies performed on 26 April 2019. The Medical Assessor was not entitled to assess these nerves. [53] We also point out that the Medical Assessor noted present symptoms as 'Pain radiating from the right elbow, through to the base of the right thumb'. There was no reference to any symptoms in the right shoulder. [54] We are frankly at a loss to understand the Medical Assessor's reasoning, sparse as it was."
8. On 20 May 2024, the PIC issued a certificate of determination to reflect the Appeal Panel's decision.

The grounds of review

1. I have identified the grounds in the further amended summons above (see [6]). Central to the plaintiff's case was the Appeal Panel's construction of the referral. In oral submissions, Counsel for the plaintiff contended that the Appeal Panel had read the referral too narrowly. Counsel relied on Dr Kwong's assessment involving the evaluation of sensory deficits and pain associated with the plaintiff's right elbow, wrist, and thumb, together with the language of the referral, which identified the "Right upper extremity" and "chronic pain" in those specific areas. He submitted that: 1. in circumstances where Dr Kwong's assessment had included sensory deficits and pain, and his assessment was disputed by the specialists retained by Phoenix, the medical assessor had not exceeded the scope of the referral in relying on injury to the medial nerve, radial nerve and ulnar nerve; and 2. the medical assessor had also not exceeded the scope of the referral in including loss of movement in the right shoulder in his assessment of WPI, given the right shoulder was part of the "right upper extremity".
2. The plaintiff submitted that in concluding to the contrary, the Appeal Panel had mischaracterised the scope of the referral and the underlying medical dispute. He emphasised in this respect the following passage from the reasons of Leeming JA in Skates: "[47] Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences 'Referral of medical dispute' and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate. [48] The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the 'referral' to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute. [49] The document signed by the Registrar's delegate and dated 1 September 2017 described itself as a 'Referral for Assessment of Permanent Impairment to Approved Medical Specialist'. Its first numbered subheading was 'Medical Dispute Referred for Assessment' and there it stated, wrongly, 'Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)'. That was wrong insofar as it did not include Mr Skates' wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him."
3. The grounds of review ultimately rested on the plaintiff's contention that the medical dispute, as it "crystallised", included the right shoulder and peripheral nerve injuries that the medical assessor found is not made out on the documents. That underlying premise is not made out in the present case.
4. As I have noted above, although the injury that was identified on the plaintiff's claim form was broadly expressed as "Right upper extremity", it was accompanied by Dr Kwong's report in which he diagnosed the injury as "Repetitive right wrist and right thumb injuries with tenosynovitis documented objectively by ultrasound and MRI-complicated by complex regional pain syndrome (CRPS)". Consistently with his diagnosis, the application to resolve a medical dispute identified the injury as "right upper extremity (right thumb, right wrist, right elbow) causing CRPS". Injury to the left shoulder formed no part of Dr Kwong's diagnosis, and nor did any peripheral nerve injuries that were independent of CRPS.
5. True it is that Dr Kwong assessed "sensory deficits and pain", but that formed part of his assessment of CRPS, having found that the diagnostic criteria in Table 17.1 of the Guidelines was satisfied. The assessment of sensory deficits and pain was undertaken in accordance with the modified approach to the sensory deficits and pain impairment prescribed in the passage of the Guidelines I have set out at [21]-[23] above. Dr Kwong did not separately identify nerve damage in the right upper extremity, including in the three nerves that the medical assessor identified; as I have noted above, CRPS is an injury that "occurs beyond the territory of a single peripheral nerve". As the Appeal Panel observed in its reasons, specifically in relation to nerve damage, the three peripheral nerves that the assessor identified in assessing the plaintiff's WPI "were shown to be normal in Nerve Conduction Studies performed on 26 April 2019".
6. The plaintiff also submitted that as the delegate's referral included "chronic pain" to the right thumb, elbow, and wrist, and CRPS involving the right arm, it was necessary for the Appeal Panel to assess the permanent impairment that flowed from that chronic pain. That submission was not consistent with the Guidelines, which expressly exclude the chapter in AMA5 on pain, a point that Counsel for Phoenix made by reference to the introductory material in Chapter 1 that I have extracted above at [11].
7. Having regard to the documents before the Appeal Panel, its approach was consistent with the approach of the Appeal Panel in Skates, in respect of which the majority of the Court of Appeal found no error. The aspect of the Appeal Panel's decision in Skates that was the subject of the appeal was its conclusion that the approved medical specialist (AMS) (as a medical assessor was then known) had, in his assessment, gone beyond assessment of the medical dispute which had been referred to him. The employer's insurer had noted, in its submissions accompanying its application to appeal, that the claim the subject of the medical dispute was an injury to Mr Skates' left wrist, ring finger and scarring. The referral to the AMS specified "body part/s referred" as "Left Upper Extremity (joint ring finger), scarring (TEMSKI)": at [24].
8. The insurer accepted that there was an error in the body parts identified in the referral, in so far as the left wrist had been omitted. However, it submitted that the AMS had erred "in assessing impairment of restriction of the left shoulder, left elbow, left thumb, index, middle and little fingers": at [22]. The Appeal Panel accepted that the AMS had relied on the severity of the diminished movement of the whole arm, shoulder, elbow, wrist and fingers, and that that involved error: at [23]. As I noted above, the primary judge had set aside the Appeal Panel's decision on the basis that it should have considered the left wrist injury. However, her Honour did not find error in the Appeal Panel's conclusion that the AMS had otherwise exceeded the scope of the referral.
9. As Basten JA set out in his Honour's reasons, Mr Skates contended in his application for leave to appeal "that the scope of the referral was identified by reference to the matters generically stated by reference to the paragraphs in s 319 which, it submitted, were not, and could not be restricted by the non-statutory reference to 'body parts'". This approach, his Honour noted, "did not challenge the proposition that the scope of the referral to the AMS was limited by the terms of the referral: it was merely a question of the proper understanding of the referral itself": at [25].
10. In rejecting Mr Skates' contention, Basten JA (with whom Leeming JA agreed, adding what his Honour did "by way of emphasis": at [43]) gave as the short explanation that a claim under s 66 of the 1987 Act is not at large, but is made with respect to a specific injury, occurring in the course of employment on a specified date: at [27]. After referring to the claim form submitted on Mr Skates' behalf and the medical reports he submitted, which referred to specific injuries of the left wrist and hand (as to which the insurer had admitted liability and made an offer), his Honour noted that this material defined the proper scope of the referral. In the present case, contrary to the plaintiff's submissions, the Appeal Panel's conclusion did not involve a misunderstanding of the medical dispute and the underlying materials.
11. The plaintiff also relied on the decision of Schmidt AJ in Klement v Bull 'N' Bush Nurseries Pty Ltd [2024] NSWSC 466. In that case, her Honour concluded that the Appeal Panel had erred in failing to consider a report that was attached to the plaintiff's claim, which supported that his claim for injury was not confined in the manner for which the employer had contended in the Appeal Panel: at [55]. As her Honour stated at [56], that involved relevant error. Additionally, the Appeal Panel had misunderstood that the plaintiff had claimed injury to his left upper extremity and submitted documents that showed he had suffered an injury to his left shoulder (being part of the left upper extremity), for which he had received treatment: at [57]. Her Honour concluded that the Appeal Panel was thus "plainly mistaken in its understanding of what Mr Klement's claim had advanced": at [58].
12. By contrast, in the present case, the right shoulder and injury to the specific nerves on which the medical assessor relied did not form part of the diagnosis of Dr Kwong, on which the plaintiff placed primary reliance, or of the medical specialists upon whose reports Phoenix relied. The premise on which the plaintiff advanced the grounds of review is not made out, and the grounds can be dismissed on that basis.

Conclusion

1. The further amended summons should be dismissed. Phoenix has sought its costs. Accordingly, I make the following order: 1. The Further Amended Summons is dismissed with costs.

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: 25 September 2024