Turner v Truss-T-Frame Timbers Pty Ltd

The leave sought in respect of the medical assessor's decision cannot be granted

1. In Ryder v Sundance Bakehouse [2015] NSWSC 526 Campbell J concluded at [8] that an assessor was not a proper party to an appeal against a decision of a medical appeal panel, it being "a competent and higher authority which holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary": Wishart v Fraser 64 CLR 470; [1941] HCA 8 at 478. His Honour followed Basten JA's judgment, McColl JA and Handley AJA agreeing, in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [20], [24] and [54] - [56], where at [20] his Honour said: "a challenge by way of judicial review to the decision of the [AMS] is incompetent where there has been an appeal to an Appeal Panel".
2. That was also found to follow from Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [25], that an order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal or purported legal effect of which is moot or spent, making such an order unavailable.
3. I accept that the authorities Campbell J referred to are binding, with the result that the leave sought under the Rules in relation to the assessor's certificate may not be granted.
4. The insurer also drew attention to Skates v Hills Industries Ltd [2021] NSWCA 142, where orders were made setting aside a decision of an arbitrator, made under the Workers Compensation Act 1987 (NSW), after an assessment of a medical dispute and resolution of an appeal by an appeal panel. The Court also directed that the President, in determining the terms of any referral for a further medical assessment, include a body part to be assessed, which had erroneously not been referred to the medical assessor, in the referral.
5. What was there decided does not appear to be relevant to the question of whether the assessor was a proper party to these proceedings.

What was referred to the assessor for determination?

1. Another issue not relied on before the medical appeal panel, but raised on this application was that the medical assessor was not bound to resolve what lay in issue between the parties about whether or not Mr Turner suffered complex regional pain syndrome, that not having been referred for assessment.
2. The insurer submitted that there had been no issue as to Mr Turner's injuries. Given the terms of the referral the assessment of impairment the assessor was required to undertake was only in relation to his left and right upper extremities, not complex regional pain syndrome. That assessment had to be undertaken in accordance with guidelines which related to injury to the upper extremities.
3. The Guidelines required the referral to make clear the injury or condition to be assessed: Guideline 1.6. What was referred was an assessment of Mr Turner's upper extremities, his right wrist and elbow and left elbow, to which Ch 2 applied.
4. Guideline 1.6 also required the assessment to be undertaken as Mr Turner presented on the day of assessment, taking account of relevant medical history and information. Thus, the assessor had to refer to Dr Lai's diagnosis. But the assessor had to determine his own diagnosis, exercising his clinical judgment: guideline 1.6b.
5. In the result the assessor was not obliged to consider or apply Ch 17 of the guidelines.
6. I am satisfied that this may not be accepted. This was not what the insurer advanced before the assessor, nor could it have been, given the medical dispute Mr Turner pursued and what was referred to the assessor.

The statutory scheme

1. The statutory scheme is to have factual and legal issues resolved by an arbitrator, subject to appeal under the 1987 Act and to have certain medical issues decided by an approved medical specialist, again, subject to an appeal under the 1998 Act: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156 at [109].
2. It is s 66 of the 1987 Act which entitles workers who are injured at work and suffer permanent impairment greater than 10% as a result, to receive compensation from their employer. It also specifies how such compensation is to be calculated. Whether a claimant has suffered such an injury is thus now for the Personal Injury Commission of New South Wales to determine.
3. Under s 65 of the 1987 Act the degree of permanent impairment that results from an injury must be assessed under the 1998 Act by a medical assessor, in the event of a medical dispute: Bindah at [111]-[112].
4. How claims are to be made and dealt with is specified in Ch 7 of the 1998 Act. "Claim" is defined in s 4(1) to mean "a claim for compensation or work injury damages that a person has made or is entitled to make." "Work injury damages" is defined in s 250 to mean "damages recoverable from a worker's employer in respect of - (a) an injury to the worker caused by the negligence or other tort of the employer, or (b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer, whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.
5. "Injury" is defined in s 4(1) of the 1998 Act to mean: injury - (a) means a personal injury arising out of or in the course of employment, and (b) includes - (i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but (c) does not include (except in the case of a worker employed in or about a mine) - (i) a dust disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of a dust disease.
6. The term "personal injury" is not defined and so takes its ordinary meaning. It is not in issue that such injury is not confined to physical injury which a worker suffers at work, but encompasses conditions which are caused by such injury, such as complex regional pain syndrome. On assessment diagnosis of that syndrome must be undertaken in accordance with Ch 17 of the applicable Guidelines issued under s 376 of the 1998 Act, they having the effect of delegated legislation: Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97].
7. Section 254 of the 1998 Act provides that compensation and work injury damages are not recoverable unless the injured worker gives notice of the injury as soon as possible after it happened and before he or she has voluntarily left the employment in which the injury occurred. Such notice can obviously not be given in relation to conditions which later result from the notified injury.
8. Section 260 of the 1998 Act specifies how a claim is to be made in accordance with guidelines which may make provision for matters such as the form in which a claim is to be made; the manner in which it is made; the information it is to contain and the documents and other material which is "to accompany or form part of a claim: s 260(2)(e).
9. Section 264(1) of the 1998 Act requires employers who receive claims or documentation to forward them to their insurer.
10. Part 4 Compensation dispute determination of the 1998 Act applies to disputes about claims between claimants, employers and insurers: s 287. Such disputes can be referred to the Commission in specified circumstances: ss 287A - 289A. Section 290 provides for the exchange of documents and s 293 permits proceedings before the Commission to be deferred, while medical disputes are referred under Ch 7 for assessment.
11. Section 321 of the 1998 Act provides for regulations to be made in relation to referrals of medical disputes by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute. There is no such regulation. The Workers Compensation Regulation (NSW) deals with other matters.
12. "Medical dispute" is defined in s 319 of the 1998 Act to mean: a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable.
13. It follows from this definition that under the 1998 Act medical disputes are not confined to disputes about physical injury suffered at work. They comprehend disputes about conditions which result from such injury, such as complex regional pain syndrome, as well as their aetiology or cause, their treatment, the degree of impairment which is suffered as a result and whether it is fully ascertainable.
14. Section 322 requires that assessment of the degree of permanent impairment suffered be undertaken in accordance with guidelines issued for that purpose under s 376. The medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable: s 322(4).
15. Chapter 17 of the Guidelines contains a table which prescribes a set of criteria for Type 1 complex regional pain syndrome, which Dr Lai applied. That table thus had to be considered by the medical assessor in the resolving of the medical dispute over whether he suffered that syndrome: Elsworthy v Forgacs Engineering Pty Ltd [2018] NSWSC 1638 at [5]-[9].
16. Chapter 17 also requires, in the case of complex regional pain syndrome type 1, that the diagnosis must be present for at least one year, to ensure accuracy and to permit adequate time to achieve maximum medical improvement.
17. There can only be one such assessment of the degree of permanent impairment which results from the development of that syndrome, subject to appeal: s 322A.
18. Section 324 specifies the assessor's powers on assessment of a medical dispute and s 325 requires the medical assessor to issue a certificate in a specified form which sets out details of the matters referred; certifies the assessor's assessment with respect to those matters; sets out the medical assessor's reasons for that assessment, and the facts on which that assessment is based: s 325(2).
19. Section 327 of the 1998 Act provides a right of appeal against such a certificate on limited grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error.
20. In this case Mr Turner's complaints on appeal included that: 1. the assessor had not applied the correct criteria, which appear in the Guidelines in Ch 17, to which Dr Lai had had regard in arriving at his conclusions; and 2. that the assessor had not satisfied the obligations imposed by s 325 of the 1998 Act, the reasons given being inadequate to explain why he had come to a different view, with the result that his whole person impairment had not been assessed by reference to the complex regional pain syndrome he had been diagnosed to be suffering, which was the subject of the medical dispute.

The evidence before the assessor

1. There was no issue about the injury which Mr Turner had suffered at work, or that it had caused a consequential injury to his left arm. There was also no issue that if Mr Turner's injury had also resulted in complex regional pain syndrome, he was entitled to claim compensation for any permanent impairment which he suffered as a result. What was not agreed was that he had suffered that syndrome, as he claimed.
2. In evidence is the form 2 application to resolve a medical dispute which Mr Turner filed; the documents which accompanied his claim; the insurer's response; and the documents which accompanied its response.
3. Mr Turner's form identified that what was in dispute was "lump sum compensation where degree of permanent impairment is in dispute". The form required injury details to be provided. There Mr Turner specified the place of work to be where his injury occurred on 23 November 2016 and gave the injury description: "Right upper extremity impairment; Left upper extremity impairment"
4. Permanent impairment/Pain and suffering details also had to be given. There it was indicated: "Systems Claimed Right upper extremity; Systems Claimed Left upper extremity Total WPI Percentage 26% Total WPI Amount $67,470.00"
5. Mr Turner did not specify in the form that the pain he was suffering in his right and left upper extremity was complex regional pain syndrome, but that this was the basis upon which Mr Turner claimed to have suffered 26% whole person impairment, was apparent from his supporting documents. They included his statement; reports from Dr Tan and Dr Lai; other medical records and correspondence, in which reliance was placed on Dr Lai's report, for the claim advanced under s66 of the 1987 Act for the 26% impairment claim, which was responded to by an offer of 11%.
6. That the medical insurer understood that the medical dispute was over that claim was supported by the correspondence and confirmed by its 2A Reply to the application to resolve dispute it filed. That form did not require the insurer to identify what was in dispute, but it required supporting documents to be provided. They included Dr Breit's 5 February and 3 March 2020 reports, which explained why he did not agree with the diagnosis of complex regional pain syndrome; that he had diagnosed Mr Turner to be suffering epicondylitis; and how he had arrived at the conclusion that Mr Turner had suffered 11% whole person impairment as a result.
7. The s 319 referral to the assessor was not in evidence, but it was referred to in the assessor's certificate, which identified the details of the matters referred under s 319 to be: "• the degree of permanent impairment of the worker as a result of an injury (s319(c)) • whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d)) • whether impairment is permanent (s319(f)) • whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g)) Date of injury: 23 November 2016 Body part/s referred: Right upper extremity (wrist, elbow) Left upper extremity (elbow) consequential condition Method of assessment: Whole person impairment Issues Determined by Arbitrator: refer Certificate of Determination dated 17 June 2020 by Arbitrator William Dalley"
8. The certificate also indicates that the brief provided to the assessor included Mr Turner's application and attached documents; the reply and attached documents and the arbitrator's certificate of determination. As observed in Skates at [30], "this material defined the proper scope of the referral". Unlike in that case, nothing Mr Turner had raised by his application for referral of the medical dispute was thereby omitted.
9. While it is for the Commission to determine whether an injury has been suffered, it is not the role of an arbitrator to be involved in the determination of the degree of permanent impairment that has resulted: Bindah at [112]. What had been determined by the Arbitrator, which was also not in evidence, was: "By and with the consent of the parties, the determination of the Commission in this matter is as follows: 1. The claim pursuant to section 66 of the Workers Compensation Act is remitted to the registrar to be held in the 'Medical Assessment Pending List' awaiting referral to an approved medical specialist to determine whole person impairment arising from personal injury on 23 November 2016 to the right upper extremity (wrist, elbow) and a consequential condition in the left upper extremity (elbow). 2. The material to be provided to the approved medical specialist should include: (a) the application to resolve a dispute and attached documents and; (b) the reply and attached documents."

The insurer's contention cannot be accepted

1. I am satisfied that the insurer's contention, raised for the first time in these proceedings, that the assessor was not obliged to resolve the medical dispute about whether Mr Turner suffered complex regional pain syndrome with the resulting impairment he claimed, because of what was referred to the assessor, may not be accepted.
2. That the insurer understood that the medical dispute Mr Turner sought to have resolved by his application and that which was referred for assessment concerned whether he had suffered complex regional pain syndrome in his upper extremities, with the claimed resulting impairment, was established by the documents by which it joined issue on the questions of the nature of his condition and his resulting impairment. To establish its case, it relied on Dr Breit's reports, in which he explained why he disagreed with Dr Lai's diagnosis of complex regional pain syndrome.
3. That was confirmed by the submissions the insurer later advanced before the appeal panel, in response to Mr Turner's complaint that the assessor had applied the incorrect criteria in resolving the medical dispute, not having considered or referred in his certificate, as he was obliged to do, to Ch 17 of the Guideline which applied to complex regional pain syndrome, which Dr Lai had applied.
4. Then it was submitted that: "4. The Respondent submit that there had been no error by the AMS in declining to assess WPI as a case for CRPS. At paragraph 7 of the MAC, the AMS commented that at one point there was a problem of chronic regional pain syndrome, however the AMS commented that gradually all of these features had resolved as at the date of the AMS's examination. 5. The Respondent submits that an AMS is obliged, in their role as AMS, to conduct a clinical assessment of a worker based on the presentation of the worker at that examination. 6. Chapter 17 of the SIRA Guidelines for Evaluation of Permanent Impairment (the Guides) dictates for a diagnosis of CRPS Type 1, the first step in respect of an assessment of CRPS is that the diagnosis must be confirmed pursuant to criteria is listed in Table 17.1 of the Guides. The AMS at paragraph 5 of the MAC has demonstrated his consideration and application of the relevant criteria pursuant to Table 17.1 of the Guides. 7. The AMS recorded on examination there to be no temperature differences, no colour differences and no sweating differences. The AMS noted no trophic changes and that the appellants hands demonstrated a full range of motion. 8. The AMS stated (at paragraph 5) that upon his comparison between the appellants hands, he could not see any features of CRPS. The AMS commented at paragraph 7 of the MAC that at the date of his examination, any features of chronic regional pain syndrome had resolved. This finding of the AMS is consistent with the clinical examination and findings of Dr Breit, in his report of 5 February 2020. 9. Whilst the MAC does not necessarily record whether the AMS had conducted "Pinprick testing", the Respondent submits this is irrelevant as this is one of the many symptoms to be considered by Table 17.1. The AMS has demonstrated that the Appellant, at the time of his assessment did not display signs in the Vasomotor, Sudomotor or Motor/Trophic changes categories. Therefore, even if the AMS had elicited a positive "pinprick test", satisfaction of the other three categories would not have been achieved on clinical assessment. Table 17.1 expressly states a sign is included only if it is observed and documented at the time of the impairment evaluation. 10. Having regard to the above, the Respondent submits that the Appellants appeal does not disclose that the AMS had based his assessment on the basis of incorrect criteria. The Respondent submits that the MAC discloses he AMS had considered and applied the relevant criteria pursuant to Chapter 17 and Table 17.1 of the Guides in respect of his assessment."
5. In this case it was also the documents referred to the assessor which "defined the proper scope of the referral": Skates at [30]. They established the nature and extent of the medical dispute about which the parties could not agree, given Dr Lai and Dr Breit's differing opinions about the ongoing pain which Mr Turner suffered in his right and left upper extremities and the permanent impairment which had resulted.
6. Like in Skates, any "infelicity" of parts of the covering form by which a medical dispute is referred to an assessor "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": at [49].
7. Unlike in that case, however, the appeal panel did not come to grips with what had been raised by Mr Turner's appeal and was finally not correct in concluding that the assessor had not erred in his assessment of the medical dispute which had been referred to him.

Mr Turner

1. Mr Turner complained that while the appeal panel had concluded that the assessor had assessed him on the day of the examination, as he was obliged to do, it had not engaged with his case about the insufficiency of the reasons given, or the assessor's failure to apply the applicable criteria to his assessment, specified in Table 17.1 of the Guideline.
2. Mr Turner contended that the Panel had also itself failed to consider these criteria and had instead adopted a different broad and general approach, which was not available to it. This reflected the assessor's conclusion that despite Mr Turner having suffered complex regional pain syndrome which had been treated with poor outcome, he had recovered prior to the examination. But there was no body of evidence which dealt with him having suffered that syndrome and having recovered from it, before the assessor's examination.
3. Mr Turner also submitted that even if it were accepted that the Panel did have necessary regard to Table 17.1, its reasons established that it had also not adhered to its obligation to give adequate reasons for its decision.

The insurer

1. The insurer's case was that the referral to the assessor having "invited no consideration of Table 17.1" and the assessment having been conducted in accordance with the referral and applicable guidelines, there was no jurisdictional error involved in the assessor's decision and the Table thus also cannot have been involved in the Panel's decision.
2. The Appeal Panel was thus also not required to consider Ch 17 and the reasons which it gave for its decision were thus adequate.

What was before the assessor?

1. In resolving whether the appeal panel erred, it is necessary to consider the documents and other information which the assessor had to consider in his assessment.
2. On Mr Turner's statement he had suffered injury at work to his right arm, elbow and wrist. This had caused pain to run down his right arm, which continued over time in his forearm, wrist and hand, with colour and temperature changes. The result of overuse of his left hand and upper limb had also caused pain in his left elbow as well.
3. Mr Turner also explained that his GP had referred him to Dr Tan, for treatment of the ongoing pain which he suffered. He had eventually been diagnosed and treated for complex regional pain syndrome type 1 and was later assessed by Dr Lai to have suffered 26% whole person impairment as a result of that condition.
4. Dr Tan's October 2018 report explained Mr Turner's ongoing symptoms, the treatment he had been receiving, therapy which he could pursue and his case management plan.
5. Dr Lai's October 2019 report explained Mr Turner's history, which included ongoing pain and developing numbness and paraesthesia, or pins and needles, in his right forearm and hand and the development of constant burning and stabbing pain, even at rest, as well as sensitivity to touch, colour changes, swelling and sweatiness, as well as stiffness and restricted range of movement. Dr Lai summarised the investigations which had been undertaken and explained his findings on physical examination of Mr Turner's right hand, wrist, forearm and elbow and left elbow.
6. Dr Lai concluded that Mr Turner's condition was stable, he was suffering from chronic pain disproportionate to any causal event, which he had thus assessed in accordance with Ch 17 of the guidelines. In his opinion Mr Turner was suffering from complex regional pain syndrome type 1, for reasons he explained. Application of Ch 17 to what Dr Lai had found on physical examination, resulted in the conclusion that Mr Turner had suffered 26% whole person impairment.
7. In February 2020 Dr Breit disagreed with the diagnosis of complex regional pain syndrome, although he made no reference to Ch 17. He outlined Mr Turner's history and present complaints, which included ongoing pain and some of the symptoms to which Dr Lai referred, but they did not include numbness or tingling. He explained his findings on examination and referred to past investigations, then turning to answer questions posed to him. Dr Breit concluded that while Mr Turner did suffer chronic pain, what he was suffering was epicondylitis, an inflammatory condition in a bone in the elbow, often referred to as tennis elbow, not complex regional pain syndrome. The result was an assessment of 11% whole person impairment under Ch 16 of the guidelines. No reference was made to Ch 17.
8. In his further March 2020 report Dr Breit answered other questions posed to him. He there also did not refer to Ch 17 of the guidelines, but said: "If one makes a diagnosis of CRPS then an assessment of sensory change should be undertaken. This is extremely difficult in the absence of a specific peripheral nerve lesion because the complaint is of widespread non-anatomical sensory change. You note that the neurophysiological studies by Dr McGrath showed of no abnormality which is not surprising. The sensory changes in CRPS are not associated with abnormal electrophysiological studies. The SIRA Guides talk about CRPS 1 and CRPS 2, the latter is where there has been a peripheral nerve injury. There is no peripheral nerve injury in CRPS 1 but, nevertheless, the Guides state that the impairment resulting from sensory deficit and pain must be graded according to the best fit model and that quantum is combined with the impairment from loss of movement. Dr Lai's assessment is appropriate on the basis of her diagnosis of CRPS."

What the assessor found

1. The medical assessor, an orthopaedic surgeon, certified that Mr Turner had suffered 6% whole person impairment constituted by his right upper extremity, assessed at 5% and his left upper extremity, assessed at 1%, having examined him and agreeing with Dr Breit, that Mr Turner suffered from epicondylitis, not complex regional pain syndrome.
2. In arriving at these conclusions, the assessor also made no reference to Ch 17 of the guidelines.

The reasons given in the Assessor's certificate

1. The assessor explained Mr Turner's details and a brief history, which included both his account of how he injured his right elbow and wrist at work; resulting investigations; what they found and what followed, including:

• referral to a hand surgeon Dr Tawfik in 2016, with suspected carpal tunnel syndrome; nerve conduction testing; Dr Tawfik advising aspiration of a suspected ganglion, steroid injection for the carpal tunnel syndrome and possible surgery if that did not help, with a diagnosis of tennis elbow;
• repeated nerve conduction testing, which was normal; MRI testing and referral in November 2017 to a neurologist Dr McGrath, who made no positive diagnosis;
• at that time there were no features of complex regional pain syndrome, but colour change and temperature differences were later observed in Mr Turner's right hand, with the resulting referral to Dr Tan, who diagnosed complex regional pain syndrome type 1, which was treated with ketamine infusion in hospital, which provided relief for only 2 days; and
• after further MRI investigations further treatment by Dr Tawfik, who found no surgical lesions; further ultrasound testing finding no ganglion in the carpal tunnel and attempts to treat the tennis elbow on the right not being helpful.

1. The assessor described Mr Turner's current treatment and symptoms, the latter being: "He complained of pain in the right elbow, globally everywhere, more seems to be on the extensor surface of the forearm. The elbow remains sore, stiff and weak. Similarly in the wrist, he also complained of stiffness. Most of the pain according to him, seems to be on the lateral side of the distal radius corresponding to the area which we diagnose as a case of De Quervain's disease. He says the right hand is not strong. He cannot make a full grip and he always complained of numbness in the right hand, but when I asked where the numbness is, he said globally everywhere in the hand, both on the dorsum and the anterior aspect."
2. The assessor's findings on physical examination were: "On comparing the two hands, I cannot see any features of chronic regional pain syndrome. There is no temperature differences, no colour differences and no sweating differences. The soft tissues look exactly the same. There is no differences in the hair and nail growth. The hands demonstrated full range of movement. He just have voluntary weakness in every joint in the right upper limb from the elbow to the fingers, but I cannot find any features of carpal tunnel syndrome. Thenar muscle is still bigger on the right compared to the left. I cannot rely on Phalen's test and Tinel sign because patient always says there is numbness in the hand all the time. But neurologically, there is no features to support carpal tunnel syndrome. On tape measurement, both the right the right arm and the forearm are bigger than the left. By measurement, it is at least 1.5cm bigger in the arm and 1cm bigger in the forearm when comparing the right to the left. Being right handed, that is corresponding to the right hand dominance feature and cannot explain his significant weakness or problem in the right upper limbs from the patient's descriptions. The right elbow have a range of movement 10˚ - 120˚. The left elbow is 0˚ - 130˚. Supination is 60˚ on the right and 70˚ on the left. Pronation is 70˚ on the right and 80˚ on the left. For the wrist, right side extension is 50˚ and the left is 60˚. Flexion is 60˚ on both side. Radial deviation is 15˚ on the right and 20˚ on the left. Ulnar deviation is 20˚ on the right and 30˚ on the left"
3. After giving details of special investigations Mr Turner had undergone, under the heading 'Summary", the assessor said: "• Summary of injuries and diagnoses: Mr Matthew Turner seems to have a lifting injury, presenting with right tennis elbow and probably with traumatic carpal tunnel syndromes. The initial pathology was the injury probably causing a ganglion cyst that may compress on the median nerve but that ganglion decreased in size and the median nerve and nerve conduction test all reported back as normal. So, carpal tunnel syndrome was excluded. At one point there was a problem of chronic regional pain syndrome with treatment attempted and poor outcome, but gradually all these features disappeared on the date of examination. • Consistency of presentation: I believe there is consistency of the clinical presentation to the history of problems and the clinical findings and radiological investigations."
4. The assessor then explained that his evaluation was based on "detailed history taking, careful physical examination and review of all the medical reports and radiological investigations in the file."
5. The reasons given for the assessment began with: "a. My opinion and assessment of whole person impairment: I believe he has reached maximum medical improvement. Injury is already four years ago. The initial injury suggestive of tennis elbow and probably traumatic injury to the wrist complicated with carpal tunnel syndrome. The ganglion cyst was at a reasonable size but it has decreased with treatment and time. Carpal tunnel syndrome is excluded by clinical examination by orthopaedic surgeon, neurologist and nerve conduction test. Repeated investigation also confirmed median nerve remained normal and the ganglion gradually completely disappeared. So, he has recovered well from the carpel tunnel syndrome. He probably still left with problems of tennis elbow and residual stiffness in the movement of the right wrist and elbow. In relation to left upper limb, he complained of significant problem of left shoulder due to pre-existing pathology of recurrent dislocation and pain in left elbow without stiffness."
6. The assessor then explained at b, his calculation of whole person impairment in tables which identified movement and impairment of Mr Turner's right elbow and wrist, with the result 4% upper extremity impairment in the elbow and a total of 5 % taking into account impairment in the right wrist. He explained that: "I do not think he has carpal tunnel syndrome due to the negative radiological finding, neurophysiological study and clinical examination. I do not think he has De Quervain's disease and certainly he does not have features to qualify for chronic regional pain syndrome. In relation to the left upper extremity in the elbow, he only have some pain but there is no loss of movement in every directions. Instead, he probably have some left shoulder problems but that was a recurrent dislocation dated back many years before the injury. Hence he is suffering from tennis elbow, and using WorkCover Guide 4th Edition, page 12, clause 2.18, he has a 2% UEI which is equal to 1% WPI"
7. The assessor then said: "c My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs: My opinion certainly concur with Dr Breit. My clinical examination findings in the range of movement of the right elbow and wrist is probably even better than his examination finding six months ago. That explains why I only came up to 9% upper limb impairment, which will equal to 5% whole person impairment. I cannot agree with Dr Lai. I do not agree he can qualify as a case of chronic regional pain syndrome because I cannot find any clinical features to support that diagnosis, which probably explains why there is such a big discrepancy between our assessments. There is difference in the examination findings in the range of movement in the right wrist. For the left elbow, I agree with Dr Lai's assessment."
8. It follows that contrary to the case advanced for the insurer in these proceedings, the assessor both understood and resolved the disagreement between Dr Breit and Dr Lai about whether Mr Turner suffered from complex regional pain syndrome but in doing so, like Dr Breit, made no reference to the applicable Ch 17 or Table 17.1. But he came to a different conclusion than Dr Breit as to Mr Turner's whole person impairment, even though he agreed with the diagnosis of epicondylitis.

What was raised on the appeal?

1. In his appeal application Mr Turner pursued two grounds, that the assessment was made on the basis of wrong criteria and that the certificate contained demonstrable error: s 327(3)(c) and (d).
2. Mr Turner also sought to rely on a further report from Dr Lai, which the appeal panel rejected. The complaint made in the summons about this aspect of the panel's decision was abandoned at the hearing.

Referral of the appeal

1. The Registrar was satisfied that on the face of the application and submissions, at least one of Mr Turner's grounds of appeal had been made out, with the result that his appeal was referred to the Appeal Panel: s 327(3). That is, that a ground was arguable or capable of being made out on his submissions: Ballas and Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324.
2. That was understandable given that what the assessor seemingly did not do in resolving the medical dispute was to have regard to Ch 17, which he was bound to apply in determining whether Mr Turner suffered complex regional pain syndrome. Had the assessor done so, undoubtedly, he would have said so in the certificate, as he did when he explained his application of that part of the guidelines which he did apply in arriving at his conclusions, clause 2.18 at p 12.

Mr Turner

1. In written submissions Mr Turner submitted to the appeal panel that he had relied on Dr Lai's report, in which his history of suffering symptoms of ongoing pain, gradual onset of paraesthesia and numbness in the right hand and forearm as well as swelling and temperature and colour changes in his right, together with the outcome of testing undertaken, which had identified sensory, vasomotor, motor and sudomotor/oedema symptoms, was explained and had resulted in a diagnosis of complex regional pain syndrome. It was submitted that Dr Lai's approach had accorded with the requirements of Ch 17 of the Guidelines.
2. Before the assessor the employer had relied on Dr Breit's diagnosis, with which the assessor had agreed. But it was submitted that the assessor had failed to give sufficient reasons for his conclusion that Dr Breit's diagnosis was correct, having not addressed the symptoms on which Dr Lai's opinion rested, or the requirements of the Guidelines.
3. The assessor had also not undertaken testing of the kind that Dr Lai had undertaken, with the result that he had not properly addressed Dr Lai's findings as to sensitivity to touch and pressure. Nor had the assessor mentioned the colour of his right hand, obvious distended veins, the appearance of his skin, swelling of his right hand, decreased range of motion of his right wrist and elbow, or the positive Tinel and Phalen's testing Dr Lai had undertaken, all symptoms relevant to the diagnosis of complex regional pain syndrome and required by Ch 17 of the guidelines to be considered
4. The amount of impairment the assessor had found was also significantly less than even Dr Breit had found. In the circumstances it was argued that more had to be done to explain the reasons why the assessor had come to that conclusion and had not concurred with Dr Lai's diagnosis, given the symptoms and testing it rested on.
5. The reasons given by the assessor were thus insufficient and the failure to address Dr Lai's findings reflective of demonstrable error, the assessor having failed to make his assessment by reference to Ch 17, as he was required to do.

The insurer

1. The insurer contended in its written submissions that there had been no error in the assessor declining to assess Mr Turner's whole person impairment by reference to complex regional pain syndrome, having accepted that he had suffered such a problem, but finding that those features had gradually resolved.
2. It was submitted that paragraph 5 of the assessor's certificate established that he had considered and applied the relevant criteria listed at Table 17.1. The result of no features of the syndrome being found, was the conclusion that it had resolved. That the certificate did not establish that pin prick testing had been undertaken was irrelevant, that being one of the many symptoms to be considered under the Table. The assessor concluded that signs in the other categories were not present, so that a positive pin pick test would not have elicited a positive conclusion.
3. Demonstrable error required more than a difference of opinion, which gave rise to no right of appeal. While the path of reasoning had to be disclosed, expansive reasons were not required: Wingfoot and Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284.
4. The reasons given were sufficient, clearly indicating that the assessor could not agree with Dr Lai, because on Mr Turner's clinical examination, clinical features which supported a diagnosis could not be found.

The Panel's decision

1. In its statement of reasons for its decision, the appeal panel noted that it was bound by s 328 of the 1998 Act and the appeal process set out in the guidelines. The appeal was by way of review of the assessment, but it was limited to the grounds of appeal advanced by Mr Turner: s 328(2). The appeal panel was empowered to affirm or revoke the certificate: s 328(5).
2. The panel noted that its preliminary review had resulted in a decision that it did not need to examine Mr Turner itself.
3. After noting the documents before it, which included the assessor's certificate, the parties' submissions and the documents the assessor had to consider, the appeal panel turned to the cases which the parties had advanced. They were summarised to be: "In summary, the appellant's complaints on appeal concerns the MA's failure to assess WPI as a case of CRPS and that the MA had failed to provide sufficient reasons. In summary, Truss T-Frame Timbers Pty Ltd (the respondent) submitted that the MA did not apply incorrect criteria nor did he make demonstrable error and he provided sufficient reasons that the MAC should be confirmed."
4. The panel then identified the assessor's role to be: "The role of the MA is to conduct an independent assessment on the day of the examination. The MA is required to take a history, conduct a physical examination, make a diagnosis and have due regard to other evidence and other medical opinion that is before the MA. The MA must bring his clinical expertise to bear and exercise his clinical judgment when making an assessment of impairment. An assessment of impairment is made on the basis of the findings on the day of examination. That assessment must be made on the basis of a correct application of the criteria in the Guides."
5. The panel then from paragraphs 24 - 28 quoted extensively from what the assessor had observed in his certificate, finishing with the conclusions quoted at [79] above.
6. The panel then observed: "The MA's role is to make an independent assessment on the day of the examination. He has to rely on his findings on the day of examination and must make clinical judgments using his clinical expertise. He is not bound to follow the opinion of other experts whose opinions are in evidence before him. The MA has had clear regard to the other opinions that were before him and given a brief explanation of why his opinion differs. He is not required to do more than this. The MA's findings on physical examination, and his regard to the other evidence that was before him, provide sufficient reasons to support his finding that CRPS is not a rateable impairment as a result of the injury referred to him. The panel can discern no error in the assessment by the MA that CRPS was not a rateable diagnosis in this case."
7. That was the extent of the reasons given for dismissing Mr Turner's appeal, the panel making no reference either to the complaint that the Guidelines which applied to complex regional pain syndrome had not been applied by the assessor, or that the reasons given had not been adequate.

The Appeal Panel erred in not concluding that the assessor failed to give adequate reasons

1. The assessor's reasons had to be read in the way explained in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259; [1996] HCA 6 at 272. That is, without being construed "minutely and finely with an eye keenly attuned to the perception of error" or "scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": at [271]- [272]. But such a reading does not permit gaps in the reasoning to be filled or reworked in order to provide reasoning which is not present: Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216; 67 MVR 601 at [47].
2. In a case where more than one conclusion is open, it is also necessary for some explanation to be given for the preference of one conclusion over another, although the reasons given need not "be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment": Vegan at [121]-[123].
3. In this case, however, the assessor having concluded that Mr Turner did not any longer suffer from complex regional pain syndrome, not having doubted that when examined by Dr Lai he was suffering that condition, an explanation, albeit short, had to be given for that conclusion by reference to the applicable criteria. Thus, the assessor's reasons not only had to refer to the criteria specified in Table 17.1, they had to explain why the assessor concluded that they were no longer satisfied.
4. The assessor agreed with Dr Breit's diagnosis, but because the criteria specified in Ch 17 arose to be considered, it was not sufficient for the assessor to give an account of a claimants' history and symptoms, to refer to the competing medical opinions and to prefer one over the other. The path of reasoning which led to the conclusion that Mr Turner had suffered, but had recovered from complex regional pain syndrome, had to be disclosed, including by reference to the applicable criteria imposed by Ch 17.
5. The assessor also came to a different conclusion than Dr Breit about the extent of Mr Turner's impairment. That also had to be explained by more than the observation that his clinical examination of Mr Turner's range of movement in his right elbow and wrist "is probably even better than" Dr Breit's examination findings 6 months ago.
6. Despite this, the panel did not find that the assessor's reasons were inadequate. In coming to that conclusion, it erred. They plainly were.

The appeal panel erred in not concluding that the assessor had failed to apply the correct criteria

1. That neither the assessor nor the panel considered the applicable criteria is apparent from the reasons which they each gave.
2. The conclusion that Mr Turner was not suffering complex regional pain syndrome was not a matter simply left to the assessor's clinical judgment on assessment, even having himself examined Mr Turner. Despite this the assessor made no reference at all to Ch 17. For its part the appeal panel certainly quoted from Ch 17 and Table 17.1, which relevantly provide: 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.
3. As Fagan J explained in Elsworthy, there are other criteria by which complex regional pain syndrome may be diagnosed in clinical practice. But for the purpose of resolution of a medical dispute under the 1998 Act over whether that syndrome is suffered, it is only the criteria specified in Ch 17 which may be applied.
4. Mr Turner's appeal required the appeal panel to consider whether the assessor, who made no reference at all to those criteria, had given them the necessary consideration. 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.
5. True it is that an assessor must make an independent assessment on the day of examination, relying on his or her findings on that day and making a clinical judgement, using clinical expertise. But that judgment must be informed by other relevant matters which arise to be considered, including in this case not only Mr Turner's history and the competing opinions of Dr Lai and Dr Breit, but the requirements of Table 17.1. It required consideration to be given to ongoing pain, reported symptoms, signs of the four specified categories "observed and documented at the time of the impairment evaluation" and whether any other diagnosis better explained the symptoms.
6. It follows that in explaining why he arrived at the conclusion that Mr Turner no longer suffered complex regional pain syndrome, the assessor had to refer to these requirements.
7. But the assessor did not refer to Table 17.1, or to what it required, even though that was the only basis upon which the dispute over whether Mr Turner suffered from complex regional pain syndrome could be resolved and Dr Lai having found that those requirements had been satisfied, for reasons explained in his report. Instead the assessor merely referred to the absence of some symptoms which he identified, but that did not accord with the requirements of Ch 17.
8. What was also required if other requirements were satisfied was that consideration be given to whether "no other diagnosis better explains the signs and symptoms". The assessor concluded that Mr Turner suffered tennis elbow, but not having considered the criteria by which he was bound, that could not satisfy the obligation to resolve the dispute by application of the Ch 17 criteria.
9. The Panel did not indicate that it had considered whether the assessor's reasons established that he had given the requirements of Ch 17 the necessary consideration, let alone explain why it considered that he had. From the scant reasons which were given the proper inference is that the appeal panel also did not give this aspect of Mr Turner's appeal the necessary consideration.
10. In the result, Mr Turner's case that the Panel erred, must be accepted.

The appeal panel's reasons were also inadequate

1. The appeal panel's obligation was to disclose the path of reasoning which led it to conclude that Mr Turner's appeal had to be dismissed, the assessor not having erred in his application of the criteria which governed the resolution of the question of whether he suffered complex regional pain syndrome type 1 and having given adequate reasons for his decision.
2. That required an explanation to be given in the panel's reasons by reference to the criteria specified in Ch 17. Those given failed to deal with them in even a cursory way, apart from quoting them.
3. Even reading those reasons in the way earlier discussed, it must be concluded that the result of its approach was that appeal panel did not meet its own obligation to disclose the path of reasoning by which it reached its decision.
4. By the approach it adopted, the appeal panel failed to engage with either aspect of Mr Turner's appeal, which could not be determined simply on the basis that it agreed with the conclusions which the assessor had reached.

The appeal panel's decision must be set aside

1. I am satisfied, given the errors into which the appeal panel fell, that the orders Mr Turner pressed in relation to its decision must be made and that the Court's discretion to refuse to make the orders sought should not be exercised.
2. True it is that in August 2018 in Elsworthy, Fagan J held that the proper construction of Ch 17 of the guidelines was that the word "diagnosis" had the same meaning each time it there appears. The result, his Honour concluded, was that for complex regional pain syndrome to be present for the purposes of assessment under the 1987 Act, 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: at [42].
3. Mr Turner's application was made in May 2019, but this construction of Ch 17 was not raised by the parties before the referral was made, or for either the assessor or the appeal panel to consider. Had it been and the dispute had still been referred to the assessor, it appears possible that he could have exercised the power given by s 322(4) of the 1998 Act to decline to make an assessment of Mr Turner's degree of permanent impairment, until satisfied that his impairment was permanent and that its degree was fully ascertainable, given the requirements of Ch17. Or if he did not, the appeal panel may have concluded that the assessor ought to have come to that conclusion.
4. Before the assessment Mr Turner had been diagnosed by two specialists as having suffered complex regional pain syndrome, having suffered the pain which resulted in those diagnoses for more than one year and still complaining of suffering ongoing pain and other relevant symptoms. But on the evidence led in these proceedings only Dr Lai undertook his diagnosis by reference to the requirements of Ch 17.
5. If Dr Tan's diagnosis did not have regard to those requirements, declining to undertake the assessment would appear to have accorded with the explanation given in the guidelines for the adoption of the Ch 17 criteria: "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."
6. But the question of whether Mr Turner's degree of impairment was fully ascertainable is not for this court to resolve.
7. In the circumstances I consider that the Court's discretion cannot justly be exercised with the result that Mr Turner would thereby be deprived of the right which he is given by the statutory scheme, to have one opportunity to have the ongoing pain which was caused by the injury which he suffered at work, which has been diagnosed to be complex regional pain syndrome, assessed in accordance with Ch 17 of the applicable Guidelines.

Costs

1. The usual costs order under the Uniform Civil Procedure Rules 2005 is that costs follow the event, which in this case is an order in favour of Mr Turner. Unless the parties' approach to be heard within 7 days, that will be the Court's order.
2. For these reasons I order that: 1. The decision of the appeal panel be set aside; 2. Remit the matter to the President of the Personal Injury Commission of New South Wales to be determined in accordance with law; 3. Unless the parties' approach to be heard within 7 days, Mr Turner's costs, as agreed or assessed, are to be borne by 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: 27 August 2021