Jing Zhi Wong - Evaluation of Permanent Impairment

Wong on Civil Liability

Evaluation of Permanent Impairment, Thresholds and Caps

Work-in-progress, 20 October 2024

[A] Personal Injuries - Table of Quantum of Damages:

Queensland: <https://perma.cc/J69Q-G5VF>, to October 2021.
Victoria: <https://perma.cc/64VC-9AY5>, to May 2021.
New South Wales: <https://perma.cc/4FLP-ECE6>, to February 2022.

[B] Assessment of Permanent Impairment:

General Damages, threshold:

> Victoria: 'Significant Injury' requirement: Wrongs Act 1958 (Vic) pt VBA.

-- see eg, 'Update on "significant injury" requirement for claims concerning or relating to intentional torts' (Nov 2019) <https://www.landers.com.au/legal-insights-news/update-on-significant-injury-requirement-for-claims-concerning-or-relating-to-intentional-torts>, archived at <https://archive.md/5UObU>.

-- see, 'Understanding thresholds and caps in personal injury litigation' (Victorian Government Solicitor's Office) <https://www.vgso.vic.gov.au/understanding-thresholds-and-caps-personal-injury-litigation>, archived at <https://archive.md/2jQOK>.

-- see also, 'Victoria – Public Liability – Damages Thresholds and Caps' (14 April 2024) <https://littleslawyers.com.au/news/victoria-public-liability-damages-thresholds-and-caps/>, archived at <https://archive.md/bF2rT>.

> Western Australia: <https://www.icwa.wa.gov.au/__data/assets/pdf_file/0025/106765/Threshold-Schedule-2023-2024.pdf>.

> **Useful summary of all of the state/territory caps and thresholds:

> 2016: 'Damages Claimable: State-by-state Summary' (2016) AULA Precedent <https://classic.austlii.edu.au/au/journals/PrecedentAULA/2016/19.pdf>, archived at <https://perma.cc/73MU-LPGS>.

> 2019: "Statutory compensation schemes: State-by-state summary" [2019] PrecedentAULA 32: <https://classic.austlii.edu.au/au/journals/PrecedentAULA/2019/32.html>, archived at <https://archive.is/IL0G2>.

> 2022: Charles Simon, State of the Nation - A Practical Guide to Personal Injury in Australia (Wotton Kearney, 2022) <https://www.wottonkearney.com.au/download/13826>, archived at <https://perma.cc/7JNR-DR5K>.

AMA 5th: <https://www.researchgate.net/profile/Edward-Cremata-2/post/What-is-the-minimal-clinically-important-difference-for-shoulder-ROM/attachment/59d61de579197b807797bfa3/AS%3A273829656498176%401442297485241/download/AMA+Guides+5th+v2.pdf> (ResearchGate); archived at <https://perma.cc/7NNX-DJSK>.
AMA 4th, 1993: i, 1, 2, 3 (Table 3 conversion table), 4-5, 6-7, 8-10, 11-12, 13-14, 15-gl, Combined Values. SLQ SBA8089.
Workers' Compensation:

> Qld's Guidelines for evaluation of permanent impairment, 2nd ed (WorkCover, 2016): <https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0011/24122/guidelines-for-evaluation-of-permanent-impairment.pdf>. -- AMA 5.

> NSW's workers compensation guidelines for the evaluation of permanent impairment, 4th ed, 2021: <https://www.sira.nsw.gov.au/resources-library/workers-compensation-resources/publications/health-professionals-for-workers-compensation/NSW-workers-compensation-guidelines-for-the-evalution-of-permanent-impairment.pdf>.

> NT WorkSafe guidelines for the evaluation of permanent impairment: <https://worksafe.nt.gov.au/forms-and-resources/guides/nt-worksafe-guidelines-for-the-evaluation-of-permanent-impairment>.

>Tasmania Guidelines for evaluation of permanent impairment: <https://worksafe.tas.gov.au/__data/assets/pdf_file/0005/542687/Guidelines-for-the-Assessment-of-Permanent-Impairment-Version-3.pdf>.

> Comcare: <https://www.comcare.gov.au/about/forms-pubs/docs/pubs/claims/assessment-of-degree-of-permanent-impairment.pdf>.

> South Australia Return to Work Scheme, Impairment Assessment Guidelines: <https://www.rtwsa.com/media/documents/Impairment-assessment-guidelines.pdf>.

> Western Australia: <https://www.workcover.wa.gov.au/workers/understanding-your-rights-obligations-entitlements/permanent-impairment/>.

[C] Wrongs Act 1958 (Vic) - ss 28LT, 28LW, 28LWB, 28LWD - "Significant Injury":

ss 28LW, 28LWB responses: "48. Section 28LWB is clumsily and awkwardly expressed, but it is tolerably clear that it merely represents the last stage in a process designed to give respondents opportunities to persuade claimants to release them from the impairment assessment regime on the basis that they have been wrongly identified as responsible for the injury. However, it gives the claimant the power, in the end, to reject such a plea and to force the person concerned either to accept the medical assessment or to refer the question of impairment to a medical panel, at the respondent’s own expense. 49. It is worth noting that Part VBA lays down no consequences whatsoever for a statement that a respondent is a “proper respondent to the claim” except where such a statement is accompanied by a waiver of an assessment, a request for an assessment or advice that the respondent has referred or intends to refer a medical question to a medical panel.[15] Even then, any consequences will follow from the combined acts, not from the statement alone; and the consequences are restricted to advancing the processes of the statutory regime for determining “significant injury”. Otherwise, the substantive rights of the parties are not affected. In particular, a respondent who states, whether voluntarily or compulsorily, that the respondent is a proper respondent to the claim remains free in court to deny that he, she or it has been properly identified as being responsible for the injury; and the statement cannot be used in court as an admission against the respondent.": McAlister v Leitch & Ors [2011] VSC 51, [48]-[49] (Cavanough J).
See also, s 28LWD Wrongs Act 1958 (Vic).
ss 28LL(1): "If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment."
treatment of pre-existing injuries and threshold:

> "1. ... Part VBA imposes a limitation on the ability of a person to bring a common law claim for damages for non-economic loss in relation to an injury to the person ‘caused by the fault of another person’.[1] In short, the injury or injuries must amount to ‘significant injury’ as defined in the Wrongs Act.[2] In relation to most kinds of physical injury, the Wrongs Act requires that, in contested cases, there be an assessment of the degree of permanent impairment of the ‘whole person’ resulting from the injury.[3] Generally speaking, assessments of permanent impairment in respect of physical injuries must be carried out in accordance with a certain American publication commonly referred to as ‘the A.M.A. Guides’;[4] and the assessed degree of impairment must satisfy the relevant ‘threshold level’ specified in the Wrongs Act.[5] More details about the relevant provisions of Part VBA of the Wrongs Act are set out in several previous decisions of this Court. 2. Mr Ingle had total knee replacements for both his left leg and his right leg in early 2013. The knee replacements were very successful. Both knees had good function and were pain free. About four years and nine months later, on 27 November 2017, Mr Ingle slipped and fell on a patch of water at the first defendant’s airport at Tullamarine. His (replaced) left knee was damaged permanently. It was rendered painful, with substantially diminished function. Mr Ingle wished to sue the first defendant for negligence as an occupier. For that purpose, he came to need a determination by the Medical Panel to the effect that the injuries he suffered in the slip and fall amounted to ‘significant injury’. 3. However, the formal determination issued by the Panel was to the effect that the degree of impairment from the injuries to Mr Ingle alleged in his claim did not satisfy the threshold level. Indeed, in a statement of reasons accompanying the determination, the Panel said that there was ‘no additional impairment’ resulting from those injuries when assessed in accordance with the A.M.A. Guides. ... 23. On 17 October 2019, the Medical Panel returned its determination. The question and answer were as follows: Question: does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level? Answer: the Panel determined that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level. ... 51. Before the Medical Panel, it was common ground that, some four and three quarter years prior to the incident of November 2017, Mr Ingle had had a total left knee replacement. Needless to say, Mr Ingle did not suggest that the first defendant was responsible for his pre-existing total left knee replacement. Hence any impairment resulting from it was required to be ‘disregarded’, i.e. not counted positively in the Panel’s assessment. On the other hand, a Medical Panel is not bound to evaluate pre-existing impairment in accordance with the A.M.A. Guides. That was established for the purposes of the corresponding impairment assessment scheme under the Accident Compensation Act 1985 (Vic) by the judgment of the Court of Appeal in Lingenberg v Gallichio.[41] There is no relevant distinction between the two schemes in this respect. Indeed, the language of the directly corresponding provision of the Accident Compensation Act scheme, namely s 91(7)(c), is relevantly identical to that of s 28LL(3) of the Wrongs Act. 52. In an appropriate case, it may be open to a Medical Panel to assess impairment from a pre-existing total knee replacement by reference to Tables 64 and 66 of the Guides. An example may be a case involving a second total replacement of the same knee, where a comparison between the results of the two knee replacements may be in order. However, like should be compared with like. A distinct, traumatic aggravation of a pre-existing knee replacement is not relevantly like the knee replacement itself. As indicated above, in my view the aggravation simply does not fall to be assessed by reference to Tables 64 and 66, which are expressly designed to rate the ‘results’ of a total knee replacement. 53. Even if, contrary to my view, it were otherwise open to an assessor to apply Tables 64 and 66 in a ‘before and after’ fashion in relation to a person who suffers a traumatic injury to a totally replaced knee, such a course ought not be adopted if it would produce an ‘arbitrary, capricious or irrational’ result.[42] In circumstances of that kind, ‘slavish adherence’ to the methodology in the A.M.A. Guides is not required.[43] On the Panel’s own findings of fact in the present case, it might well be thought that a conclusion of ‘no additional impairment’, or even a conclusion of non-satisfaction of the threshold level, was ‘arbitrary, capricious or irrational’, even if such a result could be squeezed out of the points system provided for in those Tables;[44] and all the more so because, at least according to Mr Gardiner and Mr Slattery, other methodologies were available under the relevant section of the A.M.A. Guides. However, it is not necessary for me to decide finally whether, even if Tables 64 and 66 were otherwise available, the Panel’s determination was arbitrary, capricious or irrational. 54. As a further matter, Lingenberg v Gallichio establishes, at least by analogy, that s 28LL(3) carries with it an implied requirement that any impairment from injuries or causes that are not ‘unrelated’, i.e. any impairment from (actual) injuries that are claimed to have been caused by the fault of the relevant respondent, must not be disregarded.[45] Any such impairment must be considered and assessed, not excluded.[46] The Court of Appeal said:[47] Section 91(7)(c) requires a Medical Panel to disregard only so much of a worker’s assessed Whole of Person Impairment as is constituted of unrelated injuries or causes. Correlatively, the section does not authorise the Medical Panel to disregard any greater degree of the [worker’s] assessed Whole of Person Impairment. In a case of this kind, application of the methodology of s 3.3f(9) of the [A.M.A. Guides] results in the panel’s disregarding not only impairment from unrelated injuries or causes but also so much of the worker’s assessed Whole of Person Impairment as is due to the injury in question. To that extent, s 3.3f(9) is inconsistent with s 91(7)(c) and, perforce of s 91(1)(a)(iii),[48] is excluded. 55. Likewise, to apply Tables 64 and 66 in the present case would appear to conflict with the implied requirement of s 28LL(3) that impairment from injuries or causes that are not unrelated must be included in the assessment. At least, there would appear to be such a conflict if the result of applying Tables 64 and 66 was to reveal (in the Panel’s own language) ‘no additional impairment’ when the matter was ‘assessed in accordance with the Guides’. The implied requirement of s 28LL(3) that impairment due to the injury in question must be included in the assessment will prevail over any provision to the contrary in the A.M.A. Guides. That is made clear by the combined operation of ss 28LH and 28LZG of the Wrongs Act, the effect of which is that the obligation of assessors (including Medical Panels) to make their impairment assessments in accordance with the A.M.A Guides is subject to the provisions of Division 3 of Part VBA of the Wrongs Act. Section 28LL(3) is included within Division 3. ...": Ingle v Australian Pacific Airports (Melbourne) Pty Ltd [2021] VSC 50.

s 28LL(3): "For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment."
"need to distinguish between the assessment of legal causation of an injury, which is not the Panel’s role and the assessment of medical causation of impairment, which is the Panel’s role": cf Medical Negligence cases: "57. The concept of claim can include a potential claim, provided an injury has been suffered. As Pagone J rightly observed in Melbourne Health v Lloyd:[35] The question referred to the medical panel was whether the degree of impairment resulting from the injury to the claimant alleged in the claim satisfied the threshold level. The claim was not in the terms of the claim alleged in the other proceedings but as set out in a letter of claim which had been written on her behalf to the plaintiffs. It was that claim which the solicitors for the first plaintiff referred to the medical panel. The reference to ‘the other proceedings’ is a reference to the proceeding that is contemplated in s 28LE. 58. Nothing that is said in either Chua v Newman-Morris or Chua v Lothian is inconsistent with this conclusion. Those cases are to be understood in the context of the claimant’s injury and the issue of legal or medical causation that was being explained. The injury was an arthrodesis of the left foot by a medical procedure caused, it was alleged, by medical negligence. A significant pre-existing injury provided the occasion for that medical negligence. 59. Emerton J[36] stated, when explaining the context of the then new definition of ‘medical question’: "36 This does not support an argument that the medical panel can only consider injuries ‘at large’. To the contrary, it makes plain that the Panel is concerned with the injury or injuries alleged in the claim. The Panel must consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged. However, that does not absolve the Panel of responsibility to correctly identify - for the purposes of assessing the degree of impairment - the injury which is alleged to have been caused by the tortfeasor. 37 The requirement that the Panel assess impairment arising from the injury that occurred as a result of the incident which is the basis for the claim does not require the Panel to determine whether the plaintiff caused the injury in respect of which damages are sought. Rather, it requires the Panel to assess the degree of impairment resulting from a particular injury - the injury in respect of which damages are sought. In this case, it is the injury suffered by the plaintiff as a result of delay in the treatment and diagnosis of a pre-existing dysfunction of the lower left leg and ankle. 38 That this is the relevant injury was recognised by both the plaintiff and the claimant in the material that was provided to the Panel, including: · the description of the ‘incident’ in the referral; · the questions Mr Kahn was asked to answer by the claimant’s solicitors and, in particular, in Mr Kahn’s response to the question concerning the percentage by which the claimant’s impairment was greater than it would have been if the injury had been properly diagnosed and treated; · the claimant’s submission to the Panel, referring to ‘far worse outcome’ and ‘the lost opportunity for a better outcome’. 39 Most importantly, the medical question itself required the Panel to assess whether the degree of impairment resulting from ‘the injury alleged in the claim’ satisfied the threshold level. The injury alleged in the claim is not coextensive with the injury ‘at large’. 40 This analysis is consistent with s 28LL of the Wrongs Act, which concerns the assessment of injuries arising out of the same ‘incident’. Injuries arising from the one incident must be included in the one assessment.[37] Conversely, impairments from unrelated injuries or causes are to be disregarded in making an assessment.[38]" 60. Chua v Lowthian was concerned again with the same claimant and the same injury. Relevantly, Osborn J observed: "The medical question in the present case thus required the Panel to first identify a potentially compensable injury and then to assess whether that injury caused the threshold level of impairment. It was not for the Panel to determine whether in fact the injury was caused by the negligence alleged in the common law proceeding. Nevertheless, it must ascertain the existence of an injury as the starting point of its inquiry." 61. The two Chua cases are concerned with different considerations that arise from the particular nature of the injury suffered by that claimant and the need to distinguish between the assessment of legal causation of an injury, which is not the Panel’s role and the assessment of medical causation of impairment, which is the Panel’s role. However, in that context, the obligation upon the Panel to properly identify the injury for which impairment is being assessed was emphasised in each decision. ... 66. It ought also to be borne in mind that assessment of impairment is to be made in accordance with the operational guidelines as to the use of the AMA Guides. It is convenient to recall what Kyrou J said about interpreting the Guides in HJ Heinz Co Australia Ltd v Kotzman:[44] 24 The interpretation of the Guides is a question of law.[45] The determination of a level of impairment is a question of fact.[46] 25 It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law[47] and is a legislative document.[48] 26 However, the Guides is, as its title suggests, a guide.[49] It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic – or a lawyer’s precise – interpretation.[50] It is of paramount importance to be faithful to the Guides’ plain words.[51] The Guides should not be interpreted as if it was a statute.[52] 27 The use of the Guides is designed to promote precision, certainty and consistency.[53] Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.[54] 28 If there is any inconsistency between the AC Act and the Guides, the AC Act will prevail. If there is any inconsistency between the text in the Guides and an example which seeks to illustrate what is said in the text, the text will prevail.[55] 67. Reference to those parts of the Guides that deal with assessment and evaluation reveal that it is the duty of the Panel, when discharging its obligation under Division 3, to make a proper medical evaluation of the consequences of the injuries arising from the incident. So much is clear not just from the language of the Guides as a whole but, in particular, from Chapter 2. As other cases have explained, this task does not involve assessing legal causation for injuries arising from an incident but is a necessary task for the assessment of impairment resulting from injuries claimed from an incident. Being bound to assess impairment for itself, the Panel was bound to make its assessment in the specified operational manner and a proper medical evaluation of the consequences of the injuries arising from the incident was required. This presumably is one reason why a panel is informed by the prescribed information about the circumstances of the incident. That medical assessment is informed, but not limited, by descriptions of injuries, symptoms and impairments given by lawyers. A proper medical assessment in the manner required by the Guides ought to have included assessment of the degree of impairment, if any, from the observed skin condition described as ‘consequential infection of both legs and feet’.": Summers v Director of Housing [2012] VSC 395.
Role of the Medical Panel: see CD v Central Gippsland Health Service [2022] VSC 462. See also, summary of this decision in 'Supreme Court clarifies role of Wrongs Act medical panel in determining medical cause of impairments' (Landers & Rogers, Sept 2022) <https://www.landers.com.au/legal-insights-news/supreme-court-clarifies-role-of-wrongs-act-medical-panel-in-determining-medical-causes-of-impairments>, archived at <https://archive.is/XeIZd>: " Following a clear line of authority on what is meant by the "injury" that a medical panel is tasked to assess under section 28LE, Justice Croucher held that the medical panel is required to restrict its assessment to impairment that is potentially referrable to the fault of the respondent. Therefore, while it is true that a panel has no business determining matters of legal causation — that is, whether the alleged incident or injury was caused in the manner alleged by the claimant — the panel must still make a determination regarding the medical cause of each impairment that it has assessed (Summers v Director of Housing & Ors [2012] VSC 395; Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58). While Justice Croucher commented that CD's alleged injuries would have resulted in a combined physical impairment assessment of 32%, his Honour held that the medical panel was entitled to conclude that there was no evidence of urethral injury from the catheterisation and no other medical explanation for the development of CD's urogenital impairment other than his prostate condition, which was unrelated to the claim made against the respondent. "Evidence" that an unrelated impairment is playing a part in current condition CD argued that, in order for the medical panel to disregard impairment under section 28LL(3), there needs to be "strong evidence" that the impairment arises from an unrelated cause. Justice Croucher concluded that, in a context where the decision-maker is an expert tribunal and not bound by the rules of evidence, the expression "evidence" refers generally to any probative material, whether or not it would be admissible in a court (D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242). The medical panel does not speculate by making a determination that an unrelated cause is playing a part in the claimant's condition, provided that there is a rational and factual basis for the determination. Justice Croucher held that the medical panel's decision will not be assailable on the basis that it acted on evidence of an allegedly inadequate strength and noted that the following evidence was before the medical panel: six doctors' reports (five of which implicated the prostatic hypertrophy and/or the TURP procedure as the cause of CD's urogenital impairment) medical imaging reports that revealed no urethral injury and no abnormalities apart from an enlarged prostate contemporaneous records and reports indicating that CD only experienced sexual dysfunction following the TURP procedure; and the written opinion of the previous panel The corollary is that where there is "some evidence, no matter how unconvincing" for a finding, it will not involve legal error (Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446). In rejecting CD's submission, Justice Croucher concluded that the material before the medical panel provided a basis on which it could rationally find that CD's urogenital system impairment resulted from an unrelated cause. The medical panel was entitled to use its experience, expertise and judgment to conclude that CD's erectile dysfunction and incontinence were impairments from an unrelated cause that it was required to disregard in making its assessment."
Multiple Medical Panel Assessments, each respondent later joined to proceedings entitled to refer to binding medical panel assessments: Citywide Service Solutions Pty Ltd v Rosata; Kabbout v Crown Melbourne Ltd [2023] VSCA 281.

> see eg, 'Court of Appeal provides clarity on the role of Medical Panel determinations in multi-defendant cases' (Barry Nilsson, 22 November 2023) <https://bnlaw.com.au/knowledge-hub/insights/court-of-appeal-provides-clarity-on-the-role-of-medical-panel-determinations-in-multi-defendant-cases/>, archived at <https://archive.is/gINEW>.

> see also, 'Rosata decision set aside: Supreme Court allows multiple Medical Panel determinations' (Landers & Rogers, November 2023) <https://www.landers.com.au/legal-insights-news/rosata-decision-set-aside-supreme-court-allows-multiple-medical-panel-determinations>, archived at <https://archive.is/3iGjy>.

[D] Victoria, Serious Injuries (Workplace)

See eg, Serious Injury Manual (Judicial College of Victoria, 2015) <https://resources.judicialcollege.vic.edu.au/article/1049906>, archived at <https://perma.cc/R54D-ED46>: Workplace Injury Rehabilitation and Compensation Act 2013 (‘WIRCA’), the Accident Compensation Act 1985 (‘ACA’) or the Transport Accident Act 1986 (‘TAA’). Effect of statutory schemes on common law damages under the Wrongs Act 1958.

[E] Specific Injuries and Assessment of Permanent Impairment

Complex Regional Pain Syndrome: Medical Panel Assessment: medical assessor had erred in going outside the bounds of the referral - Complex Regional Pain Syndrome AMA5: "45. ... 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]. 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]. 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. ... 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. 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. 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”. 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]. 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].": Middleton v Hyett t/as Phoenix Rising Cafe [2024] NSWSC 1201.