Australian Bale Press Company Pty Ltd v Bird (Formerly Richardson)
[2023] NSWPICMP 686
•19 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Australian Bale Press Company Pty Ltd v Bird (Formerly Richardson) [2023] NSWPICMP 686 |
| APPELLANT: | Australian Bale Press Company Pty Ltd |
| RESPONDENT: | Edward Bird (formerly Richardson) |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 19 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from decision of Medical Assessor (MA); MA included in his assessment a determination in relation to the worker’s right medial nerve in circumstances where the referral called, inter alia, for assessment of the right radial nerve; the Panel determined it was unnecessary for the worker to be reassessed and found the Medical Assessment Certificate (MAC) contained a demonstrable error on its face in that it assessed the incorrect body system despite the MA having examined and made findings with regards to the radial nerve; the Panel therefore reassessed the applicant’s whole person impairment (WPI) using the findings on examination of the MA; Held – MAC dated 17 March 2023 is therefore set aside and the certificate of the Panel substituted, with the applicant found to have suffered a 30% WPI. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 May 2023, Australian Bale Press Company Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 March 2023.
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
The respondent carried extensive and arduous work with both hands and arms in his occupation as a steel fabricator, experiencing progressive strain and dysfunction, mostly of his right wrist and then of his left wrist, with a deemed date of injury of 5 March 2018. The applicant brought a claim for permanent impairment compensation in respect of his left upper extremity and right upper extremity.
On 17 October 2022, the respondent’s injuries were referred for assessment on the following basis:
“Date of injury: 5 March 2018 – deemed
Body parts referred: Right upper extremity (hand, wrist, elbow and radial nerve)
Left extremity (wrist and ulnar nerve)
Method of assessment: Whole person impairment.”
The appellant submits the Medical Assessor erred in assessing the respondent’s right medial nerve instead of his radial nerve as referred by the Personal Injury Commission (Commission). The respondent acknowledges the Medical Assessor assessed the medial nerve and not the radial nerve, however, opposes the appeal and submits the matter should be referred back to the Medical Assessor for further assessment pursuant to s 327(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as an alternative to an appeal against the assessment.
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 degree of impairment is readily ascertainable by reference to the assessments of the body systems referred which were carried out by the Medical Assessor. Throughout the body of the MAC, the Medical Assessor consistently referred to an assessment of the respondent’s radial nerve, however, he then assessed impairment of the medial nerve, contrary to the agreed referral of the parties.
Fresh evidence
No fresh evidence was sought to be called by either party to the appeal.
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.
Further medical examination
As noted, no further medical examination was undertaken.
The Medical Assessor referred to and conducted examinations in relation to, interalia, the applicant’s ulnar nerve. However, in making his assessment of whole person impairment, the Medical Assessor provided reasons in relation to the medial nerve instead of the ulnar nerve, which both parties agree ought to have been referred.
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 the Medical Assessor erred in providing an assessment of the applicant’s right medial nerve instead of ulnar nerve.
In reply, the respondent submits that it is unclear whether there is any error, and in any event the matter should be referred back to the Medical Assessor to provide an assessment of the ulnar nerve instead of the medial nerve.
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.
The Panel was of the view there is a material error on the part of the Medical Assessor, namely an assessment of an incorrect body system. That is apparent on the face of the Medical Assessment Certificate.
The Panel has formed the view there is no requirement for a further medical assessment, and in lieu of the findings of the Medical Assessor, substitutes the following.
Assessing the combined right and left upper extremity impairments as assessed by the Medical Assessor in relation to both neurology and range of motion, but substituting the right radial and ulnar nerve instead of the right radial and medial nerve, the following upper extremity impairments, which were referred to in the body of the Medical Assessor’s report, are applicable:
· radial nerve 4% UEI, and
· range of motion 23% upper extremity impairment.
In relation to the left upper extremity, the unchallenged impairments as found by the Medical Assessor actually come to a combined 28% upper extremity impairment, not 26% as originally assessed. Accordingly, a 28% right upper extremity impairment accords to a 17% whole person impairment, and a right upper extremity impairment of 16% whole person impairment is applicable.
Applying the combined values, with a 16% left upper extremity impairment and a right upper extremity impairment of 17%, a combined impairment of 30% whole person impairment is applicable.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 March 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5671/22 |
Applicant: | Edward Bird (formerly Richardson) |
Respondent: | Australian Bale Press Company Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Tim Anderson 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. Right upper extremity (hand, wrist, elbow, radial nerve) Left upper extremity (wrist, ulnar nerve) | 05/03/18 (deemed) | Ch 2 p 10 | P467 F16 to 28, P469 F16 to 31, P492 T-15, P482 T-16-10, P439 T-16-03 | Right upper extremity is 16% WPI Left upper extremity is 17% WPI | 0 0 | 16 17 |
| Total % WPI (the Combined Table values of all sub-totals) | 30% WPI | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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