Campbell v Star Electrical Company Pty Ltd - [2024] NSWPICMP 172

DETERMINATION OF APPEAL PANEL
CITATION:	Campbell v Star Electrical Company Pty Ltd [2024] NSWPICMP 172
APPELLANT:	Warwick Campbell
RESPONDENT:	Star Electrical Company Pty Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	22 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) based his assessment on incorrect criteria and thereby made an error by not assessing the appellant’s permanent impairment by reference to the criteria of paragraph 17.5 of the Guidelines; whether MA made any finding with respect to the appellant’s sensory deficit; whether MA erred by not detailing what tests he conducted to make his findings from examination; whether the MA erred by not including any rating for scarring in his assessment of the appellant’s permanent impairment; Appeal Panel found that MA’s findings with respect to hyperalgesia and allodynia were ambiguous, but the MA specifically found that the appellant did not have any temperature asymmetry or asymmetry of skin colour, and hence the appellant did not exhibit a vasomotor sign during examination and the MA accordingly could not confirm a diagnosis of CRPS so as to assess the appellant’s permanent impairment based on CRPS; Appeal Panel held that a presumption of regularity applied to the MA’s assessment such that it is presumed the MA undertook all necessary tests to assess the appellant’s permanent impairment, and the appellant had not rebutted that presumption; the appellant’s claim for compensation for permanent impairment did not include any component for scarring, and the MA was consequently not required to assess scarring; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 November 2023 Warwick Campbell, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 October 2023.
The appellant 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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for 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 (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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides…

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: [2024] NSWPICMP 172
Decision Date: 22 March 2024

CaseChat Overview and Summary

The parties involved in this case are the appellant, Campbell, and Star Electrical Company Pty Ltd, the respondent. The dispute centres around the appellant's claim for permanent impairment compensation under the workers' compensation scheme. The decision was handed down by the court. The primary legal issues the court needed to address were whether the Medical Assessor (MA) correctly applied the criteria in paragraph 17.5 of the Guidelines, if the MA made any findings regarding the appellant's sensory deficit, whether the MA sufficiently detailed the tests conducted for his findings, and if the MA appropriately considered scarring in his assessment.

The court examined the MA's assessment process and findings. It noted that the MA's findings concerning hyperalgesia and allodynia were ambiguous, but explicitly stated that the appellant did not exhibit temperature asymmetry or asymmetry of skin colour, and therefore did not display vasomotor signs during the examination. Consequently, the MA could not confirm a diagnosis of Complex Regional Pain Syndrome (CRPS) to assess the appellant's permanent impairment. The court also considered the presumption of regularity applied to the MA's assessment, meaning it was presumed that the MA undertook all necessary tests. The appellant had not successfully rebutted this presumption. Additionally, the appellant's claim for compensation did not include any component for scarring, hence the MA was not required to assess for scarring.

The court concluded that the Medical Assessment Certificate was confirmed. It found no errors in the MA's assessment process or findings, and that all necessary criteria and tests were appropriately applied. The court upheld the MA's assessment, thereby dismissing the appellant's claims for additional compensation based on the contested points.

Orders