Cassidy v BUPA Aged Care Australia Pty Ltd - [2024] NSWPICMP 793

DETERMINATION OF APPEAL PANEL
CITATION:	Cassidy v BUPA Aged Care Australia Pty Ltd [2024] NSWPICMP 793
APPELLANT:	Peta Danielle Cassidy
RESPONDENT:	BPA Aged Care Australia Pty Ltd
APPEAL PANEL
MEMBER:	Jacqueline Snell
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	25 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessment Certificate (MAC) contained demonstrable error as the Medical Assessor (MA) failed to assess TEMSKI/scarring on the appellant’s right and left elbows; whether the MA’s assessment was on the basis of incorrect criteria as the MA ought to have assessed the appellant “by way of analogy” in accordance with paragraph 1.23 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, 1 March 2021; Medical Appeal Panel accepted the MA erred in failing to assess TEMSKI/scarring on the appellant’s right and left elbow and the method he adopted in assessing the permanent impairment sustained by the appellant resulting from her bilateral upper extremity injury; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 September 2024 Peta Danielle Cassidy (Ms Cassidy) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 August 2024.
Ms Cassidy 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Cassidy made a claim for permanent impairment compensation resulting from injuries to her left upper extremity (elbow) and right upper extremity (elbow) during the course of her employment with BUPA Aged Care Australia Pty Ltd (BUPA), with date of injury of 1 September 2018, which was disputed. An Application to Resolve a Dispute with lodged with the Personal Injury Commission (Commission) on 24 May 2024 and a Reply was lodged 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: [2024] NSWPICMP 793
Decision Date: 25 November 2024

CaseChat Overview and Summary

In the matter of Cassidy v BUPA Aged Care Australia Pty Ltd, the appellant sought to challenge the validity of a Medical Assessment Certificate (MAC) provided by a Medical Assessor (MA). The appellant argued that the MA had made a demonstrable error in failing to assess TEMSKI/scarring on her right and left elbows. Furthermore, the appellant contended that the MA had assessed her using incorrect criteria, as they should have evaluated her by way of analogy, in accordance with paragraph 1.23 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021. The dispute was heard in the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issues in this case were whether the MA had made a demonstrable error by not assessing the scarring on the appellant’s right and left elbows and whether the MA had used incorrect criteria in their assessment. The appellant argued that the MA's failure to assess the scarring constituted a demonstrable error, and that the MA's method of assessment was flawed as they did not assess the appellant by way of analogy. The respondent, BUPA Aged Care Australia Pty Ltd, maintained that the MA had conducted a proper assessment and that the appellant’s arguments should be dismissed.

The Court of Appeal found that the Medical Appeal Panel had accepted that the MA erred in not assessing the TEMSKI/scarring on the appellant’s right and left elbow and in the method they adopted for assessing the permanent impairment sustained by the appellant as a result of her bilateral upper extremity injury. The Court upheld the decision of the Medical Appeal Panel, which revoked the MAC. The Court found that the MA's failure to assess the scarring constituted a demonstrable error and that the MA had not assessed the appellant in accordance with the correct criteria.

As a result of the Court of Appeal’s decision, the Medical Assessment Certificate was revoked. The appellant’s appeal was successful, and the Court found in her favour, setting aside the MAC provided by the MA. This outcome means that the appellant will be entitled to a reassessment of her permanent impairment in accordance with the proper criteria, as outlined in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021.

Orders