Freckelton v Secretary (Department of Communities and Justice) - [2023] NSWPICMP 110

DETERMINATION OF APPEAL PANEL
CITATION:	Freckelton v Secretary (Department of Communities and Justice) [2023] NSWPICMP 110
APPELLANT:	Julie Freckelton
RESPONDENT:	Secretary, Department of Communities and Justice
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	28 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor (MA) provided any or adequate reasons for his assessment of the appellant’s permanent impairment relating to the compromise of the appellant’s activities of daily living (ADLs); whether the MA provided any or adequate reasons for his assessment of the appellant’s permanent impairment relating to the thoracic spine; whether the MA erred, with respect to his assessment of the appellant’s permanent impairment relating to her lumbar spine, by concluding the appellant did not have radiculopathy; whether MA erred by not referring to the ultrasound of the appellant’s right shoulder when assessing the appellant’s permanent impairment of her right upper extremity; Held – Appeal Panel considered MA was correct to conclude the appellant did not have radiculopathy; Appeal Panel considered the ultrasound was irrelevant to the assessment of the appellant’s permanent impairment; Appeal Panel determined the MA did not adequately explain his reasoning with respect to his assessment of the appellant’s permanent impairment relating to her ADLs and thoracic spine; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 December 2022 Julie Freckelton, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yui-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
4 November 2022.
The appellant relies on the following grounds for 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 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 (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

The appellant commenced employment as a case worker in August of 2005 with the New South Wales Government working in what was then known as Department of Family and Community Services, and which the…

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: Freckelton v Secretary (Department of Communities and Justice) [2023] NSWPICMP 110
Case: [2023] NSWPICMP 110
Decision Date: 28 March 2023

CaseChat Overview and Summary

The case of Freckelton v Secretary (Department of Communities and Justice) was heard in the context of a workers' compensation claim. The appellant, Freckelton, sought to challenge the assessment of her permanent impairment by a Medical Assessor (MA), appointed by the Department of Communities and Justice. Freckelton contended that the MA's assessment was flawed in several respects, including the reasons provided for the evaluation of her activities of daily living (ADLs) and thoracic spine, the conclusion regarding radiculopathy in her lumbar spine, and the omission of an ultrasound of her right shoulder from the assessment of her right upper extremity.

The legal issues before the court centred on the adequacy and correctness of the MA's assessment. Specifically, the court had to determine whether the MA provided sufficient reasons for his conclusions about Freckelton's impairment related to her ADLs and thoracic spine, whether there was an error in concluding she did not have radiculopathy in her lumbar spine, and if the MA was incorrect in not referring to the ultrasound of her right shoulder in the assessment of her right upper extremity. The court also examined the overall process and reasoning behind the MA's assessment to ascertain if it adhered to the requisite standards.

The Appeal Panel concluded that the MA was correct in determining that Freckelton did not have radiculopathy and that the ultrasound of her right shoulder was irrelevant to the assessment of her permanent impairment. However, the Appeal Panel found that the MA did not adequately explain his reasoning regarding the assessment of Freckelton's impairment related to her ADLs and thoracic spine. The Appeal Panel determined that the MA's assessment did not sufficiently address these areas, leading to a revocation of the Medical Assessment Certificate. This decision highlights the importance of thorough and transparent reasoning in medical assessments related to workers' compensation claims.

Orders