Evergreen Lifecare Limited v Offner - [2022] NSWPICMP 363

DETERMINATION OF APPEAL PANEL
CITATION:	Evergreen Lifecare Limited v Offner [2022] NSWPICMP 363
APPELLANT:	Evergreen Lifecare Limited
RESPONDENT:	Kate Offner
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Dr Drew Dixon
MEDICAL ASSESSOR:	Dr Gregory McGroder
DATE OF DECISION:	16 September 2022
CATCHWORDS:	wORKERS cOMPENSATION - Assessment by Medical Assessor (MA) of left upper extremity (shoulder) and cervical spine; appellant submitted that MA incorrectly calculated upper extremity impairment (UEI) based on the recorded left shoulder range of motion; Panel satisfied that the MA made a demonstrable error in either inserting 180 degrees instead of 80 degrees or in his calculation of upper extremity impairment for restricted range of motion in the shoulder; Panel considered that it was open to the MA to conclude on the evidence that no deduction should be made in respect of the injury in the motor vehicle accident in 2014; re-examination; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 May 2022 Evergreen Lifecare Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
28 April 2022.
The respondent to the appeal is Kate Offner (Ms Offner).
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 pursuant to
s 327(3)(c) of the 1998 Act, 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.
The WorkCover Medical Assessment Guidelines 2006 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 2006.
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 reissued on 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 Offner sustained an injury to her cervical spine and left upper extremity shoulder on
20 June 2016 in the course of her employment as an assistant in nursing when she was helping to move a patient.
The matter was referred to the MA, Rob Kuru, on 18 March 2022 for assessment of person impairment of the cervical spine and left upper extremity (shoulder).
The MA examined Ms Offner on 29 March 2022 and assessed 0% whole person impairment (WPI) of the cervical spine and 16% WPI upper extremity impairment of the left shoulder. Therefore, the total…

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

AGLC: Evergreen Lifecare Limited v Offner [2022] NSWPICMP 363
Case: [2022] NSWPICMP 363
Decision Date: 16 September 2022

CaseChat Overview and Summary

Evergreen Lifecare Limited contested a decision of a Workers Compensation Panel concerning the assessment of injuries sustained by an employee. The case was heard in the Queensland Civil and Administrative Tribunal. The primary dispute centred on the calculation of upper extremity impairment (UEI) by a Medical Assessor (MA) for injuries to the left upper extremity and cervical spine. The appellant argued that the MA had incorrectly calculated the UEI based on the recorded left shoulder range of motion.

The legal issues before the tribunal included whether the MA had made a demonstrable error in calculating the UEI and whether it was open to the MA to conclude that no deduction should be made in respect of the injuries sustained in the motor vehicle accident in 2014. The tribunal needed to determine if the MA's calculation errors were significant enough to warrant a revocation of the Medical Assessment Certificate. The appellant submitted that the MA had incorrectly calculated the UEI by either inserting 180 degrees instead of 80 degrees or by miscalculating the upper extremity impairment for the restricted range of motion in the shoulder.

The tribunal found that the MA had indeed made a demonstrable error in the calculation of the UEI. The Panel concluded that it was open to the MA to conclude that no deduction should be made in respect of the injury sustained in the 2014 motor vehicle accident. The tribunal also noted that the re-examination of the evidence supported the conclusion that the MA had erred. Consequently, the tribunal revoked the Medical Assessment Certificate. The appellant's argument was upheld, and the tribunal ruled in its favour, leading to the revocation of the certificate in question.

Orders