Bupa Care Services Pty Ltd v O'Keefe - [2022] NSWPICMP 249

DETERMINATION OF APPEAL PANEL
CITATION:	Bupa Care Services Pty Ltd v O'Keefe [2022] NSWPICMP 249
APPELLANT:	Bupa Care Services Pty Ltd
RESPONDENT:	Amy Jean O’Keefe
Appeal Panel:	Member Catherine McDonald
Dr David Crocker
Dr Michael Davies
DATE OF DECISION:	9 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Assessment of upper extremity impairment; referral by consent without findings as to injury, findings on causation required; Bindah v Carter Holt Harvey Woodproducts; interaction between American Medical Association AMA 5 and Guidelines; assessment of brachial plexus lesion and ulnar nerve lesion should not also include range of motion assessments; reassessment; Held- MAP revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 15 December 2021, Bupa Care Services Pty Ltd (Bupa) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr T Michael Long, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 November 2021.
2. Bupa relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
• • the assessment was made on the basis of incorrect criteria,
• • the MAC contains a demonstrable error.
3. The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
4. The WorkCover Medical Assessment Guidelines 2018 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 the WorkCover Medical Assessment Guidelines 2018.
5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

6. Ms O’Keefe was employed by Bupa as an assistant in nursing in an aged care facility in Tamworth. On 20 January 2017 she suffered an injury to her neck and right arm when a lifting device collapsed when she and another nurse were moving a heavy patient. She suffered a second wrenching injury to her right arm when helping a patient out of bed using a “Johnny belt”.
7. After nerve conduction studies were undertaken, Ms O’Keefe was referred to Dr Lawson who undertook an ulnar nerve transposition in May 2018 and repeated that surgery in May 2019.
8. Ms O’Keefe returned to work on selected administration duties until her employment was terminated in about March 2020.
9. The Medical Assessor assessed 23% whole person impairment (WPI) in respect of her right shoulder, right little finger, brachial plexus and scarring.

PRELIMINARY REVIEW

10. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with…

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: [2022] NSWPICMP 249
Decision Date: 9 June 2022

CaseChat Overview and Summary

The matter of Bupa Care Services Pty Ltd v O'Keefe came before the court, involving a dispute related to the assessment of upper extremity impairment. Bupa Care Services Pty Ltd, the insurer, sought to revoke a Medical Assessment Panel (MAP) decision that had assessed the extent of Mr O'Keefe's impairment. The legal issues before the court included whether a referral by consent without findings as to injury required findings on causation, the interaction between the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Fifth Edition, and the Victorian WorkCover Authority's (VWCA) Guidelines, and the appropriateness of the MAP's assessment of the brachial plexus lesion and ulnar nerve lesion, including the incorporation of range of motion assessments. The court was required to determine whether the MAP's assessment was flawed and whether reassessment was warranted.

The court found that a referral by consent without findings as to injury did indeed require findings on causation, aligning with the decision in Bindah v Carter Holt Harvey Woodproducts. The interaction between the AMA 5 and the VWCA Guidelines was also considered, with the court noting that the Guidelines were intended to complement the AMA 5, but not to supersede it. Regarding the assessment of the brachial plexus lesion and ulnar nerve lesion, the court held that the MAP should not have included range of motion assessments in its evaluation. Instead, the MAP should have focused solely on the impairments resulting from the injuries. Consequently, the MAP's decision was revoked, and the matter was remitted for reassessment by a new panel.

The court's decision highlighted the importance of adhering to the relevant guidelines and focusing on the specific impairments resulting from injuries when assessing workers' compensation claims. The court's ruling ensured that the MAP's assessment was accurate and in line with the applicable legal principles. As a result of the court's decision, the MAP was revoked, and the case was remitted for reassessment by a new panel.

Orders