Fletcher v Cope Transport - [2022] NSWPICMP 521

DETERMINATION OF APPEAL PANEL
CITATION:	Fletcher v Cope Transport [2022] NSWPICMP 521
APPELLANT:	Darren Fletcher
RESPONDENT:	Janala Pty Limited t/as Cope Sensitive Freight
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	John Stephenson
DATE OF DECISION:	19 December 2022
CATCHWORDS:	wORKERS cOMPENSATION- Worker alleges Medical Assessor (MA) erred in failing to assess whole person impairment (WPI) of ankle by manual muscle testing in accordance with Ch 17.2e of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines); in failing to demonstrate the path by which he chose the range of motion methodology in Ch 17.2f of the Guidelines; Held – in view of the qualifications imposed by the Guidelines on the use of manual muscle testing methodology its use to assess WPI in this case was strongly contraindicated and the MA did not err in utilising the range of movement methodology; the actual path by which the MA preferred the range of movement methodology can be readily inferred from the Medical Assessment Certificate (MAC) and the evidence in the case; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 October 2022, Darren Fletcher (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 8 September 2022.
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 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 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 the PIC Rules.
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

On 31 January 2013 and 18 April 2013, the appellant suffered injury to his left ankle and foot in the course of his employment with Janala Pty Limited t/as Cope Sensitive Freight (the respondent). Following the injury, he came under the care of his general practitioner Dr Singh of Mayfield who treated him with painkillers and physiotherapy. When his condition did not improve, he was referred to Dr Rao, an orthopaedic surgeon.
On 21 November 2014, the appellant underwent a lateral…

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.

Continue reading Fletcher v Cope Transport

Details

AGLC: Fletcher v Cope Transport [2022] NSWPICMP 521
Case: [2022] NSWPICMP 521
Decision Date: 19 December 2022

CaseChat Overview and Summary

The case of Fletcher v Cope Transport involved a worker, Fletcher, who was claiming compensation from his employer, Cope Transport, due to an injury sustained at work. The primary dispute centred around the assessment of Fletcher’s whole person impairment (WPI) of his ankle, particularly questioning whether the Medical Assessor (MA) erred in their methodology. The case was heard in the NSW Civil and Administrative Tribunal (NCAT). The worker argued that the MA had failed to adhere to specific guidelines when evaluating his impairment, particularly by not using manual muscle testing as stipulated in Chapter 17.2e of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, dated 1 April 2016.

The legal issues before the court were twofold: firstly, whether the MA erred in not using manual muscle testing to assess the WPI, and secondly, whether the MA adequately demonstrated the rationale for selecting the range of motion methodology as outlined in Chapter 17.2f of the Guidelines. The court needed to consider the application and interpretation of the Guidelines, particularly the circumstances under which manual muscle testing and range of motion assessments are appropriate. The tribunal was tasked with determining whether the MA's approach was in accordance with the Guidelines and if it was reasonable in the given circumstances.

In delivering its judgment, the tribunal found that the use of manual muscle testing in this case was strongly contraindicated, given the qualifications imposed by the Guidelines. The tribunal reasoned that the MA appropriately exercised their professional judgment in opting for the range of motion methodology, which was supported by the evidence and findings documented in the Medical Assessment Certificate (MAC). The tribunal further held that the MA's rationale for the chosen methodology could be inferred from the MAC and the evidence presented, thereby satisfying the requirements set out in the Guidelines. Consequently, the tribunal confirmed the MAC as it stood.

The tribunal's decision was that the MA did not err in their assessment of Fletcher's WPI, and the MAC was upheld. This conclusion meant that Fletcher's claim for compensation based on the alleged error in the assessment was dismissed. The tribunal’s reasoning was grounded in the application and interpretation of the relevant guidelines, ensuring that the MA's methodology was both appropriate and substantiated by the evidence.

Orders