by Brayden Mead and Ratna Siva
Flavorjen Pty Limited v Timothy Yates [2021] NSWWCCMA 39
The worker suffered physical injuries to his cervical spine, left upper extremity and right upper extremity in the course of his employment with the employer.
The worker made a claim for permanent impairment compensation (PIC) under section 66 of the Workers Compensation Act 1987 for 23% WPI. The employer declined the claim on the basis that the section 66(1) threshold of greater than 10% WPI was not reached.
The worker was referred for examination by Approved Medical Specialist (AMS), Dr M Assem, for assessment of the cervical spine, left upper extremity, right upper extremity, nervous system and chronic pain.
On 20 October 2020, the worker consented to an Amended Referral for Assessment of Permanent Impairment to Approved Medical Specialist (Amended Referral) which referred to "Cervical Spine, Chronic Regional Pain Syndrome (right arm), Left Upper Extremity (shoulder)".
Dr Assem issued a Medical Assessment Certificate (MAC) dated 16 November 2020 assessing 24% WPI. On 1 December 2020 the employer lodged an appeal from the decision of AMS.
The Appeal
The appeal from the AMS decision was on the following grounds:
- The MAC contained a demonstrable error as the permanent impairment assessment by the AMS included parts of the left upper extremity other than the shoulder and this was not referred on the terms of the Amended Referral, and;
- The assessment for impairment for Chronic Regional Pain Syndrome for the right arm was based on incorrect criteria.
Appeal Panel Decision
The worker submitted that the words 'with respect to' in section 325(2)(b) of the Workplace Injury Management and Workers Compensation Act 1998 should not be interpreted in a way that would frustrate the proper permanent impairment assessment.
The Appeal Panel rejected this submission and stated that those words relate to the 'details of the matters referred for assessment' in subsection (2)(a), which were clearly outlined in the Amended Referral.
The worker also argued that there were two referrals to the AMS. This too was rejected by the Appeal Panel, finding that the more recent Amended Referral annulled the earlier referral. The AMS was bound to assess the worker in accordance with the matters referred in the Amended Referral.
In the MAC, Dr Assem did not consider the worker to satisfy the criteria for Chronic Regional Pain Syndrome in the right upper extremity. However, the AMS then made an assessment by analogy for residual carpel tunnel syndrome present after surgery.
The Appeal Panel was satisfied that the referral to the AMS was for Chronic Regional Pain Syndrome of the right arm only. The Appeal Panel states at paragraph 68 "In short, the only referral to the AMS was for a chronic regional pain syndrome in the right arm. There was no other referral in respect of the assessment of this limb". It was determined that it was not open to the AMS to go beyond the terms of the referral and make an assessment by analogy after having found insufficient evidence to establish Chronic Regional Pain Syndrome.
Similarly, the Appeal Panel found that the referral to the AMS was for the left shoulder only. The AMS's assessment by reference to loss of range of motion in the left elbow and left wrist in addition to sensory symptoms constituted a demonstrable error.
The Appeal Panel determined that the MAC dated 16 November 2020 should be revoked. The Appeal Panel issued a new MAC based on the AMS assessment of 0% WPI of the cervical spine, 2% WPI of the left shoulder and 0% WPI for CRPS (right arm). The total permanent impairment was therefore assessed at 2% WPI.
Implications
This case makes it clear that an AMS is not at liberty to make assessments beyond those in the referral. It is also a timely reminder to ensure that the terms of the referral to the AMS are carefully identified with regard to body parts/systems.
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