Asbury v RMH Enterprises Pty Ltd
[2024] NSWPICMP 525
•30 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Asbury v RMH Enterprises Pty Ltd [2024] NSWPICMP 525 |
| APPELLANT: | Darren Asbury |
| RESPONDENT: | RMH Enterprises Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 30 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Demonstrable error on face of Medical Assessment Certificate (MAC); appellant suffered injury to his lumbar spine on 14 September 2021; Medical Assessor (MA) incorrectly recorded the findings of the appellant’s independent medical examiner, and made an assessment of the appellant’s whole person impairment based on the findings of radiological reports, rather than the radiological films themselves; Held – error found; Medical Appeal Panel obtained the relevant imaging and conducted an assessment based on it, rather than the radiological reports; applicant suffers from an impairment identical with that found by the MA; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 April 2024 Darren Asbury lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil A Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 March 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
There is no issue the appellant suffered an injury to his lumbar spine in the course of his employment with the respondent on 14 September 2021. The permanent impairment dispute in relation to that injury was referred for assessment by Medical Assessor Dr Neil Berry, who issued a MAC on 27 March 2024. Assessor Berry found the appellant suffered a 7% whole person impairment (WPI) as a result of the injury.
The appellant alleges Assessor Berry erred in incorrectly recording Dr Habib as having found the applicant suffered a 7% WPI, and assessment which Assessor Berry then said he agreed with, when in fact Dr Habib recorded a 22% WPI. Additionally, the appellant alleges Assessor Berry provided insufficient reasons for his assessment of WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the nature of the physical assessment carried out by the Assessor was not under attack on appeal, and in any event the appellant’s WPI is capable of assessment by reference to the material before the Appeal Panel.
EVIDENCE
Documentary evidence
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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that Assessor Berry’s misreading of Dr Habib’s findings and his lack of reasons for reaching his settlement are fatal to the appellant’s claim for compensation.
In reply, the respondent submits that although Assessor Berry may have misdescribed Dr Habib’s assessment, such misdescription did not affect the outcome, as the Assessor carried out his own assessment as required, and was not bound to accept Dr Habib’s or any other assessment provided by the parties.
FINDINGS AND REASONS
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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
It is apparent on the face of the MAC that Assessor Berry erred in his attribution of 7% WPI to Dr Habib.
It is also apparent to the Appeal Panel that in himself assessing a 7% WPI, Assessor Berry referred to the findings of the radiological reports which are in evidence to assist in making his assessment and failed to make reference to the radiological films themselves, as required by the Guidelines. The failure to state that an assessment of the relevant imaging was undertaken constitutes, in the view of the Appeal Panel, a failure to provide sufficient reasons for his assessment.
As such, the Appeal Panel is of the view Assessor Berry erred. In order to remedy that error, the Appeal Panel directed the parties provide X ray films of the affected body part which were taken on 17 June 2022 and 22 September 2023, together with any bone scan imaging taken after the date of injury. Such images were provided to the Appeal Panel on 1 July 2024.
Having received the radiological imaging, the Appeal Panel then undertook an examination of it. Having reviewed the imaging, the Panel is of the view a fracture is only visible at L4, not L4 and L5 as found by Dr Habib. That finding is consistent with the findings of Assessor Berry.
On examination of the relevant imagery, one set of X rays demonstrated a 22% vertebral body compression, the other a 17% vertebral body compression at the same level. As each of these numbers is less than 25%, according to the Guidelines, the appellant’s impairment falls within DRE II. Such a finding is consistent with that of Assessor Berry. Allowing for an ADL rating, these findings lead to a 7% WPI, consistent with the findings of Assessor Berry.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 March 2024 should be confirmed.
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