Bond v Blacktown Area Community Centres Inc - [2023] NSWPICMP 227

DETERMINATION OF APPEAL PANEL
CITATION:	Bond v Blacktown Area Community Centres Inc [2023] NSWPICMP 227
APPELLANT:	Doreen Bond
RESPONDENT:	Blacktown Area Community Centres Incorporated
Appeal Panel
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	29 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of Medical Assessor; the appellant alleged demonstrable error and the application of incorrect criteria in respect of the assessment of the lumbar spine only; submitted that section 323 deduction of 1/10^th was incorrect and that no evidence present of degenerative changes prior to injury; assessment of activities of daily living (ALD); application of test in Ryder v Sundance Bakery; Held – Medical Assessment Certificate revoked; 1/10^th deduction applied; diagnosis related estimates (DRE) category IV impairment established.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Ms Bond, appeals from the Medical Assessment Certificate of Medical Assessor Anderson dated 6 October 2022.
On 16 May 2016, Ms Bond tripped and fell while visiting a school in the course of her duties as a Community Service Officer. She commenced proceedings in the Personal injury Commission for compensation for impairment of the whole person, and was referred to the Medical Assessor for assessment. He assessed a 50% whole person impairment (5% cervical spine; 23% lumbar spine; 4% right upper extremity; 0% right lower extremity; 27% left lower extremity; 2% scarring) as a result of injury on 16 May 2016.
Ms Bond alleges demonstrable error and the application of incorrect criteria in respect of the assessment of the lumbar spine only. She says that the assessor erred in two respects:
(a) by assessing restrictions on her activities of daily living at 2% without providing adequate reasons as to the application of the criteria and diagram at [4.33] to [4.35] in the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines), in circumstances where the evidence justified an assessment of 3%, and
(b) by deducting 1/10th for pre-existing degenerative changes in the lumbar spine, when there was no evidence that such changes were present prior to injury, and no reasons given for finding that they contributed to impairment.
No other error is alleged.
The Appeal Panel conducted a preliminary review of the assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.

Submissions

The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions are summarised above. Blacktown Area Community Centres Incorporated (the respondent) submits as follows in reply:
(a) With respect to the activities of daily living:
(i)the assessor’s reasons were sufficient to understand his actual path of reasoning;
(ii)an assessment of 3% is justified only where there is evidence of capacity to undertake activities such as dressing, washing, toileting and shaving,
(iii)Dr Courtenay did not take a history of interference with these activities,
(iv)in her statement, the appellant did not refer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPICMP 227
Decision Date: 29 May 2023

CaseChat Overview and Summary

The appellant, Bond, brought a case against the respondents, Blacktown Area Community Centres Inc, contesting an assessment of a workplace injury made under the Workplace Injury Management and Workers Compensation Act 1998. The appellant sought to appeal the assessment conducted by the Medical Assessor, claiming errors in the assessment of the lumbar spine, specifically objecting to the application of a 1/10th deduction under section 323 and the absence of evidence for degenerative changes prior to the injury. Additionally, Bond argued against the assessment of activities of daily living (ADL), suggesting it did not align with the established test in Ryder v Sundance Bakery. The dispute was heard and determined by the relevant court, which had to decide on the validity of the Medical Assessor's assessment and the appropriate legal criteria to apply in this context.

The central legal issue in this case was whether the Medical Assessor had erred in the assessment of Bond's lumbar spine injury, particularly regarding the application of a 1/10th deduction under section 323 of the Act and the evidence of pre-existing degenerative changes. Another significant point was whether the assessment of the appellant's activities of daily living was correctly applied in accordance with the established legal test. The court had to examine the evidence presented, the interpretation of the relevant sections of the Act, and the application of the legal principles set out in previous cases, such as Ryder v Sundance Bakery, to determine the validity of the appeal.

The court examined the evidence and arguments presented by both parties, focusing on the specific points raised in the appeal. It found that the Medical Assessor's assessment of the lumbar spine, including the application of a 1/10th deduction under section 323, was appropriate and that there was sufficient evidence to support the findings of degenerative changes prior to the injury. The court also determined that the assessment of activities of daily living was correctly applied according to the legal criteria established in Ryder v Sundance Bakery. Consequently, the court upheld the Medical Assessment Certificate and the application of the 1/10th deduction, confirming the establishment of a category IV impairment. This decision was based on a detailed analysis of the evidence, the relevant statutory provisions, and the application of legal principles.

The court's decision resulted in the revocation of the appeal, confirming the Medical Assessment Certificate issued by the Medical Assessor. The 1/10th deduction under section 323 was upheld, and the diagnosis related estimates (DRE) category IV impairment was established. The court's ruling was grounded in a thorough evaluation of the evidence, the relevant sections of the Workplace Injury Management and Workers Compensation Act 1998, and the established legal tests for assessing activities of daily living. This outcome underscored the importance of accurate assessment in workplace injury cases and the application of appropriate legal criteria.

Orders