DETERMINATION OF APPEAL PANEL	
	
CITATION:	Retail Ready Operations Pty Ltd v Kaur [2022] NSWPICMP 353	
		
APPELLANT:	Retail Ready Operations Pty Ltd	
		
RESPONDENT:	Harleen Kaur	
		
Appeal Panel		
		
MEMBER:	Marshal Douglas	
		
MEDICAL ASSESSOR:	Dr James Bodel	
		
MEDICAL ASSESSOR:	Dr David Crocker	
		
DATE OF DECISION:	9 September 2022	
		
CATCHWORDS: 	wORKERS cOMPENSATION- Respondent referred for assessment of right upper extremity including Complex Regional Pain Syndrome (CRPS); Medical Assessor (MA) diagnosed CRPS, which was not challenged; Appellant submitted that MA did not compute Whole Person Impairment (WPI) for CRPS in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021, and respondent agreed; Appeal Panel found error with the way in MA computed WPI; Medical Assessment Certificate revoked 	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 14 June 2022 Retail Ready Operations Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mohammed Assem, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 May 2022.
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act): 
•	the assessment was made on the basis of incorrect criteria,
•	the MAC contains a demonstrable error.
3.	The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made. 
4.	The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
5.	The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). 
RELEVANT FACTUAL BACKGROUND
6.	Harleen Kaur, the respondent, commenced employment with the appellant as a process worker in July 2018. On 21 September 2018 she was removing empty trays from a conveyer belt. A tray became caught in the belt and she attempted to retrieve the tray. Her hand became caught between rollers of the conveyer belt resulting in her suffering a crush injury to her right hand.
7.	The respondent consulted lawyers who referred her to occupational physician Dr Uthum Dias to provide an opinion on various matters about the respondent’s injury including a diagnosis of her injury and her whole person impairment (WPI) resulting from her injury. Dr Dias examined the respondent on 22 January 2021 and in a report of the same date to the respondent’s solicitors advised that the respondent, as a consequence of the incident on 21 September 2018:
“(a) 	developed Complex Regional Pain Syndrome Type 1 (CRPS1);
(a)	suffered a soft tissue injury to her right index finger which had healed within several weeks of the incident;
(b)	developed a posttraumatic right wrist dorsal ganglion cyst that had subsequently resolved; and 
(c)	developed consequential symptoms of right sided cervical pain, stiffness and discomfort due to “prolonged overcompensation and altered posture, as a result of her above-mentioned right upper limb condition”.
8.	Dr Dias in an additional report also dated 22 January 2021 advised the respondent’s solicitors that he had assessed the respondent had 33% WPI from her injury. He explained that with respect to the respondent’s CRPS1 he found that the respondent had 26% right upper extremity impairment due to loss of range of movement of her right upper extremity and had 30% right upper extremity impairment due to a sensory deficit of her right upper extremity, and that these impairments combined to 48% right upper extremity impairment which correlated with a WPI of 29%. He explained that he had found the respondent had 5% WPI due to her cervical spine and when that was combined with the WPI she had relating to CRPS1 the result was that the respondent had 33% WPI resulting from her injury. 
9.	Relying on that report, the respondent’s solicitors wrote to “Coles Group”, which seems to be a trading name of the appellant, notifying it that the respondent claimed compensation from it in the amount of $98,150 for 33% WPI from her injury. 
10.	It seems from the material before the Appeal Panel that the appellant failed to determine the respondent’s claim, precipitating the respondent to lodge with the Personal Injury Commission (the Commission) an Application to Resolve a Dispute (Application) by which she sought the Commission determine the claim for compensation she had made against the appellant. In its Reply to that Application the appellant indicated that it disputed that the degree of the respondent’s permanent impairment from her injury was 33% WPI. It advised that it relied upon a report of Dr Mark Burns which it attached to its Reply who had assessed the degree of the respondent’s permanent impairment from her injury was 12% WPI.
11.	Thereupon a delegate of the President issued a referral to the MA in the following terms:
 “MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
 	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: 		21/9/18
Body part/s referred: 	Cervical Spine, Right Upper Extremity (including
CRPS)
Method of assessment: 	Whole Person Impairment”
12.	As mentioned the MA issued a MAC on 19 May 2022. He certified in that, that he had assessed the respondent to have 39% WPI resulting from her injury, comprised of 7% WPI due to her cervical spine, 19% WPI due to restricted range of movement of her right upper extremity and 18% WPI due to CRPS (which in fact was 30% right upper extremity impairment due to sensory deficit). He combined those to obtain the figure of 39% WPI.
PRELIMINARY REVIEW
13.	The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
14.	As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because neither party requested the respondent be re-examined and the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.
EVIDENCE
15.	The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 
SUBMISSIONS 
16.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
17.	The appellant submitted that the MA’s assessment of the respondent’s permanent impairment was not in accordance with the medical dispute that had been referred to the MA as set out in the referral. The appellant highlighted that the MA’s assessment for CRPS was separate to his assessment for the right upper extremity whereas the referral required that the assessment of the respondent’s impairment of her right upper extremity include CRPS. 
18.	The appellant submitted that the MA erred with respect to his assessment of the respondent’s impairment for CRPS in that the MA failed to follow the correct procedure for assessing that. The appellant highlighted that the MA converted to a WPI rating what he had assessed for the respondent’s right upper extremity impairment due to sensory deficit of her right upper extremity and did likewise for what he had assessed for the respondent’s right upper extremity due to impaired range of motion of the right upper extremity and then combined those WPI figures. The appellant submitted the MA made an error in that regard because he was required under the Guidelines to combine the right upper extremity impairments he had found the respondent to have for loss of range of motion and sensory deficit and then convert that combined figure to WPI.
19.	The Appeal Panel observes that the appellant did not challenge the MA’s finding that the respondent met the criteria set out in Table 17.1 of the Guidelines and the MA’s consequent diagnosis that the respondent had CRPS1. Further, the appellant did not challenge the MA’s findings from his examination of the appellant’s right upper extremity and did not challenge the right upper extremity impairments the MA assessed the respondent to have relating to sensory deficit and to restricted range of motion. The appellant also did not challenge the MA’s assessment of the respondent’s WPI relating to her cervical spine. Simply put, the substance of the appellant’s appeal against the MAC is that the respondent did not follow the Guidelines with respect to how the right upper extremity impairments he found the respondent to have due to sensory deficit and loss of range of movement should be combined and converted to a WPI rating. 
20.	The respondent agreed with the appellant’s submissions. The respondent further submitted that the MA ought to have assessed her to have 31% WPI in respect of right upper extremity (including CRPS), which when combined with the 7% WPI he assessed her to have for her cervical spine would result in an assessment of 36% WPI from her injury. The respondent agreed to the MAC being set aside and submitted the Appeal Panel should issue a MAC for 36% WPI.
FINDINGS AND REASONS 
21.	The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. 
22.	In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 
23.	As mentioned, no challenge has been made to the MA’s assessment of the respondent’s permanent impairment due to her cervical spine nor has any challenge been made to the MA’s diagnosis that the respondent met the criteria specified within Table 17.1 of the Guidelines for a diagnosis to be made that the respondent has CRPS1 for the purposes of assessing the respondent’s impairment of her right upper extremity.
24.	Once a diagnosis has been made of CRPS1, in accordance with Table 17,1 of the Guidelines, the method by which the degree of permanent impairment of a worker is to be assessed, as stipulated by the Guidelines, is as follows:
 “• 	Rate the extremity impairment resulting from loss of motion of each individual joint involved. 
• 	Rate the extremity impairment resulting from sensory deficits and pain, according to the grade that best fits the degree or amount of interference with ADL, as described in AMA5 Table 16.10a (p 482). Use clinical judgement to select the appropriate severity grade and the appropriate percentage from within the range shown in each grade. The maximum value is not automatically applied. The value selected represents the extremity impairment. A nerve value multiplier is not used. 
• 	Combine the extremity impairment for loss of joint motion with the impairment for pain or sensory deficit using the Combined Values Chart (AMA5, p 604) to obtain the final extremity impairment. 
• 	Convert the final extremity impairment to WPI using AMA5 Table 16.3, (p 439) for the upper extremity and AMA5 Table 17.3 (p 527) for the lower extremity.” 
25.	Within s 10b of the MAC the MA set out his calculations for how he had computed that the respondent had 39% WPI from her injury. They were as follows:
“Cervical spine 	DRE Cervical Category II 			= 7% WPI
R) Shoulder 	ROM 						= 18% RUEI
R) Elbow 		ROM 						= 4% RUEI
R) Wrist 		ROM 						= 12% RUEI
Combined right upper extremity impairment 			= 31% RUEI
= 19% WPI
CRPS 								= 30% RUEI
= 18% WPI
Combined Whole Person Impairment = 19+18+7 		= 39% WPI”
26.	It is immediately apparent, as the appellant submitted and as the respondent agreed, that the MA did not abide the Guidelines with respect to his assessment of the respondent’s WPI relating to her right upper extremity. Having diagnosed the respondent as having CRPS1 the MA, correctly, rated the respondent’s impairment due to loss of motion of her right shoulder, right elbow and right wrist, being the affected joints, and also rated, correctly, the respondent’s impairment resulting from sensory deficits in accordance with Table 16.10a of AMA5. The MA was then required to combine, in accordance with the Combined Value Charts in AMA5, the respondent’s extremity impairment for loss of motion of her joints in her right upper extremity with the extremity impairment he assessed the respondent to have for sensory deficits. He did not do that. Rather, as the appellant submitted, the MA converted the extremity impairment for loss of motion of the respondent’s joints in her right upper extremity to WPI and did likewise with respect to the extremity impairment he found the respondent to have for sensory deficits in her right upper extremity and then combined those WPI figures. That was contrary to the criteria set out in Chapter 17 of the Guidelines. Consequently, the MAC does contain a demonstrable error.
27.	The Appeal Panel observes that the 31% right upper extremity impairment the MA assessed the respondent to have for the loss of motion of the joints in her right upper extremity when combined with 30% right upper extremity impairment he found the respondent to have for sensory deficits of her right upper extremity, produces 52% right upper extremity impairment in accordance with the Combined Values Chart at page 604 of AMA5. That converts to 31% WPI in accordance with Table 16.3 at page 439 of AMA5. That when combined with the 7% WPI the MA found that respondent to have for her cervical spine produces a figure of 36% in accordance with the combined values chart at page 604 of AMA5.
28.	For these reasons, the Appeal Panel has determined that the MAC issued on 19 May 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number:	W1744/22	
Applicant:	Harleen Kaur	
Respondent:	Retail Ready Operations Pty Ltd	
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Mohammed Assem and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI) 
Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides 	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
	% WPI 	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)	
1. Cervical spine	21/9/2018	Chapter 4	Table 15-5, page 392	7%	-
	7%	
2. Right upper extremity/
CRPS		Chapter 17		31%	-
	31%	
Total % WPI (the Combined Table values of all sub-totals)	36%