Field v WH Health
[2021] NSWPICMP 102
•28 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Field v WH Health [2021] NSWPICMP 102 |
| APPELLANT: | Peter Field |
| RESPONDENT: | WH Health, ML, EC, MH, RA, JR |
| APPEAL PANEL: | Member Jane Peacock Dr Gregory McGroder |
| DATE OF DECISION: | 28 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Injury to lumbar spine; reconsideration application where the Panel was asked to reconsider a decision dated 11 February 2019 that the degree of permanent impairment was not fully ascertainable; the decision formerly made by the Panel was based on the fact that further surgery was contemplated at the time of the original assessment; further surgery was in fact undertaken and it has now been greater than 12 months; Held- the degree of permanent impairment is now considered to be fully ascertainable; decision made by the Panel on 11 February reconsidered. |
STATEMENT OF REASONS FOR RECONSIDERATION OF THE DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION FOR RECONSIDERATION
The President’s Delegate made a decision on 4 May 2021 to refer the matter to the Appeal Panel for reconsideration of its decision dated 11 February 2019 that the applicant worker had not reached maximum medical improvement (MMI) and that the degree of permanent impairment as a result of injury to the lumbar spine 31 January 2000 was not fully ascertainable.
The President’s delegate set out the following history:
“On 23 November 2018, the worker lodged an Application for Assessment by an Approved Medical Specialist. The worker sought assessment of whether the degree of permanent impairment in respect of an accepted injury to the lumbar spine on 31 January 2000 was fully ascertainable, pursuant to s 319(g) of the 1998 Act.
“The Commission referred the matter to Dr John Douglas McKee, Approved Medical Specialist (now known as Medical Assessor), for assessment pursuant to s 319(g) of the 1998 Act. On 14 December 2018, Dr McKee issued a Medical Assessment Certificate (MAC). In the MAC, Dr McKee certified that the worker had reached maximum medical improvement. He certified that the impairment was permanent and that the degree of permanent impairment was fully ascertainable.
On 8 January 2019, the worker lodged an Appeal Against a Decision of an Approved Medical Specialist. The worker sought to appeal against Dr McKee’s finding that he had reached maximum medical improvement, on the basis that the MAC contained a demonstrable error pursuant to s 327(3)(d) of the 1998 Act.
The appeal was referred to a Medical Appeal Panel for determination. The Medical Appeal Panel was constituted by member Jane Peacock, Dr Roger Pillemer and
Dr Greg McGroder. On 11 February 2019, the Medical Appeal Panel revoked the MAC of Dr McKee. The Medical Appeal Panel certified that the worker’s degree of permanent impairment as a result of injury to the lumbar spine was not fully ascertainable, as only 8 months had lapsed since the last spinal surgery and further surgery was contemplated.”
On 3 March 2021, the respondent employer lodged an application for reconsideration of the Medical Appeal Panel’s findings.
The applicant worker does not oppose, in principle, the reconsideration application and indeed concedes that his condition has reached MMI and is stable for the assessment of permanent impairment.
The referral to the panel has been confined by the President’s delegate to the following:
“The reconsideration of Medical Appeal Panel decision is to be limited to the terms of the referral for assessment dated 26 November 2018. That is, the reconsideration is to be limited to whether the degree of permanent impairment of the injured worker is fully ascertainable pursuant to s 319(g) of the 1998 Act. Any determination of the worker’s permanent impairment must be heard by a Medical Assessor at first instance.”
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to it pursuant to the decision of the President’s delegate dated 4 May 2021 which includes a copy of that decision and the following documents:
(a) Application for Assessment by an Approved Medical Specialist, dated 23 November 2018, together with supporting documents;
(b) Referral for assessment, dated 26 November 2018;
(c) Reply to Application for Assessment by an Approved Medical Specialist, dated 4 December 2018, together with supporting documents;
(d) Medical Assessment Certificate of Dr John Douglas McKee, dated 14 December 2018;
(e) Application to Appeal Against a Decision of an Approved Medical Specialist, dated 8 January 2019, together with supporting documents;
(f) Notice of Opposition to Appeal Against a Decision of an Approved Medical Specialist, dated 15 January 2019, together with supporting documents;
(g) Proceed Decision of Delegate Parnel McAdam, dated 18 January 2019;
(h) Medical Appeal Panel decision, dated 11 February 2019;
(i) Application for reconsideration, dated 3 March 2021, together with supporting material;
(j) Reply to the application for reconsideration, dated 24 March 2021, and
(k) Further submissions filed by the respondent employer by email, dated 18 April 2021.
The panel has had regard to the documents referred to it as set out above and has taken them into account in making this determination.
FINDINGS AND REASONS
The Appeal Panel determined in a decision dated 11 February 2019 that the Medical Assessment Certificate (MAC) issued by the Approved Medical Specialist (AMS), Dr John Douglas McKee dated 14 December 2018 should be revoked. In the MAC the AMS certified that the degree of permanent impairment in respect of injury to the lumbar spine on 31 January 200 was fully ascertainable.
On 11 February 2019 the panel revoked the MAC on the basis of the panel’s finding that the degree of permanent impairment as a result of injury to the lumbar spine on 31 January 2000 was not fully ascertainable.
The panel notes that this decision was the correct one at the time given further surgery was contemplated and indeed the applicant worker came to further surgery on 12 November 2019 in the form of L4/5 and L5/S1 posterior instrumented fusion.
The panel takes into account that it is now June 2021 and the last surgery was undertaken in November 2019 and hence more than 12 months (in fact some 19 months) has elapsed since that surgery was undertaken. There is no evidence that further surgery is contemplated. Indeed, the applicant concedes his condition is now stable for assessment.
In these circumstances the panel reconsiders its decision and now considers that the injury to the lumbar spine and scarring on 31 January 2000 is stable for assessment and that the degree of permanent impairment is fully ascertainable.
Accordingly the decision made by the panel on 11 February 2019 is reconsidered on this basis and the decision of the panel that the degree of permanent impairment is fully ascertainable as a result of injury on 31 January 2000 to the lumbar spine and scarring be substituted instead.
The degree of permanent impairment in respect of injury to the lumbar spine and scarring on 31 January 2000 is fully ascertainable, pursuant to s 319(g) of the Workplace Injury Management and Workers Compensation Act 1998.
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