Bunnings Group Limited v Kennedy
[2024] NSWPICMP 100
•26 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bunnings Group Limited v Kennedy [2024] NSWPICMP 100 |
| APPELLANT: | Bunnings Group Limited |
| RESPONDENT: | Katrina Shari Kennedy |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 26 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from decision of Medical Assessor (MA); whether assessment made on basis of incorrect criteria and contains a demonstrable error; the dispute referred to the Medical Assessor by the Commission was for bilateral upper extremities; the Medical Assessor included in his assessment a component for bilateral shoulders, however, the respondent’s claim was not made in relation to any shoulder impairment; the appellant employer appealed; the respondent opposed the appeal and also sought leave to amend the claim to plead a bilateral shoulder impairment; Held – leave to amend refused; to allow an amendment post-Medical Assessment Certificate (MAC) in circumstances where the appellant did not have the opportunity to examine and assess the shoulders would be against the principles of procedural fairness and natural justice; the MAC contains a demonstrable error and was decided on incorrect criteria; MAC dated 23 August 2023 revoked, and a new Certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 September 2023 Bunnings Group Limited lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Jonathan Negus, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
23 August 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
There is no issue the respondent, Katrina Shari Kennedy, suffered an injury to her right wrist on 5 November 2014, and developed a consequential condition to her left upper extremity as a result. The injury and consequential condition was said to have arisen from the worker performing heavy manual handling tasks including lifting heavy tins of paint, such that she sustained injury to her right hand/wrist and as a result of overuse of the left wrist, developed a consequential condition to that body system.
The worker brought a claim for permanent impairment compensation totalling 11% in relation to injuries suffered to the right and left upper extremities. The proceedings were referred to Medical Assessor Negus, and the referral was on terms of an assessment of the bilateral upper extremities. Medical Assessor Negus included in his assessment of the upper extremities bilateral shoulder impairment. Medical Assessor Negus assessed the applicant as suffering from a 16% whole person impairment, including impairments assessed for the shoulders.
The appellant lodged within time an appeal against the decision of Medical Assessor Negus, alleging it contained a demonstrable error due to the assessment of the shoulders, which was not a matter within the ambit of the medical dispute between the parties.
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 as the clinical findings were not in dispute.
Further submissions
After the preliminary review on 26 October 2023, the Appeal Panel requested the parties provide further submissions on the respondent's application, contained within her submissions, to amend the Application to Resolve a Dispute (the Application) to include a claim for bilateral shoulder impairment. The respondent worker lodged submissions on this aspect of the matter on 16 November 2023 and the appellant on 13 November 2023.
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
The Appeal Panel concluded that a further medical examination was not required.
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.
Leave to amend the Application
On balance, the Appeal Panel declines to grant leave to amend the Application for Medical Assessment. To grant such an amendment would, contrary to the interests of justice and procedural fairness, allow the respondent to broaden her claim of injury in an attempt to have the Medical Assessment Certificate confirmed. Neither party included any evidence in relation to shoulder impairment, and to allow an amendment at this late stage without affording any opportunity to the appellant to respond to a claim for impairment to a body system which had not been previously claimed would, in the view of the Appeal Panel, deny the appellant procedural fairness, as it would not have the opportunity to present to examine the respondent and present medical evidence in relation to the newly admitted alleged impairment. Such prejudice is, in the view of the Appeal Panel, sufficiently significant as to militate against the granting of leave to amend as sought by the respondent.
SUBMISSIONS
Both parties made written submissions on the substantive aspects of the appeal. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits the respondent worker failed to previously notify the bilateral shoulders as body parts eligible for impairment, and the appellant therefore did not respond to any claim in relation to those body systems.
The appellant submitted that in accordance with the decision in Skates v Hill Industries Ltd [2021] NSWCA 142 (14 July 2021), the medical dispute between the parties is determined with reference to the material in the Application and Reply, together with the medical reports relied upon by the parties. In these circumstances, the appellant submitted the scope of the medical dispute, pertaining to assessment of permanent impairment resulting from the injury, was limited to an assessment of the bilateral wrists. There was no assessment of impairment for the right or left upper extremity as an injury or body part distinct from the wrist assessments in any of the material put before the Medical Assessor.
The appellant submitted the respondent's claim for permanent impairment compensation was in the amount of 11%, based on the assessment of independent medical examiner (IME) Dr Hicks. The respondent worker’s expert did not find or assess a right or left shoulder condition. To the contrary, Dr Hicks stated in his report dated 25 May 2023, that it was now over three and a half years since the incident and he considered that any aggravating effect from the injurious event would have long resolved by the time of his report.
The appellant also noted that given the nature of the respondent's claim, it did not instruct its expert to undertake an assessment of the respondent's bilateral shoulders.
In reply, the respondent submits that in her statement of evidence dated 9 December 2021 attached to the Application, she gave evidence of developing further consequential conditions of her elbows and shoulders as a result of the subject injury to her right wrist and consequential condition of the left wrist. The respondent submitted there was no demonstrable error in the Medical Assessment Certificate arising from the assessment or impairment of the shoulders, as such impairment is within the scope of the referral of the “left and right upper extremities”. She submitted it was open to the Medical Assessor to make findings about the degree of impairment of the worker's upper extremities resulting from the subject injury, including the shoulders.
The respondent also submitted she did not have medical evidence to claim permanent impairment of the shoulders, but there was other medical evidence which established she had relevant consequential conditions of those body parts, and it was therefore open to the Medical Assessor to assess the evidence filed by the parties to make their own assessment of whether there was relevant impairment of the shoulders resulting from the injury.
The respondent also relied on the decision in Skates, noting the medical dispute between the parties is to be determined by reference to the body parts and systems contained within the Registrar referral and the material in the relevant pleadings relied upon by the parties. The respondent submitted it was clear she alleged she had relevant consequential conditions to her shoulders and it was therefore open to the Medical Assessor to examine her upper extremities and make relevant findings about them.
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.
There are no jurisdictional issues for consideration.
The additional submissions lodged by the parties relate to the respondent worker’s application to amend the Application to make claims for permanent impairment of the shoulders. The Appeal Panel determines that such applications should be refused. As noted by the respondent, no claim for permanent impairment of the bilateral shoulders was by the respondent on the appellant's insurer, nor was any medical evidence set forth to establish a claim for permanent impairment of the shoulders. In the circumstances, the appellant's submission that it therefore did not seek an assessment of the bilateral shoulders or substantively respond to any claim in relation to those body systems is well made. The Appeal Panel accepts the appellant's submission that it would be prejudiced where the late amendment of the pleading to claim bilateral shoulder impairment allowed, as it has not had the opportunity to have the respondent examined in relation to those body systems.
On balance, the Appeal Panel's view is the Medical Assessment Certificate contains an obvious error on the part of the Medical Assessor in that he has assessed the bilateral shoulders when no claim for the shoulders was made by the respondent, and therefore no dispute between the parties in relation to them was extant.
That is, it was apparent from the pleadings and the documents attached to them that no claim for permanent impairment in relation to the shoulders had been made, and as a result no dispute in relation to them had arisen. As the Court of Appeal noted in Merza v Registrar of the Workers Compensation Commission (NSW), a Medical Assessor who conducts an assessment in respect of a matter not referred to them under s 321(1) and provides a Medical Assessment Certificate pursuant to s 325(1) in respect of that matter falls into demonstrable error.
In the Appeal Panel's view, the Medical Assessor fell into demonstrable error of the kind for which there is no information or material to support the finding made. That is, there is no evidence before the Medical Assessor in relation to questions of causation relating to any shoulder impairment, itself a ground of appeal for the finding of demonstrable error, as there was no basis for a finding of impairment to the shoulders.
The Appeal Panel also considers it unnecessary for the respondent worker to be assessed again in relation to the degree of permanent impairment. Rather, the Appeal Panel will make orders setting aside the Medical Assessment Certificate and instead substituting permanent impairment of 6% right upper extremity, which converts to 4% whole person impairment in respect of the wrist and a null percent whole person impairment in respect of the left wrist, each of which were impairments assessed by the Medical Assessor, and which neither party takes issue with.
For these reasons, the Appeal Panel has determined that the MAC issued on
23 August 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: | W3652/23 |
Applicant: | Katrina Shari Kennedy |
Respondent: | Bunnings Group Limited |
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 Jonathon Negus 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. Left upper extremity (wrist) | 5 November 2014 | 4% | 0 | 4 | ||
| 2. Left upper extremity (wrist) | 5 November 2024 | 0 | N/A | 0 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 4% | |||||
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.
0
2
0