Gardener v Cochran - [2022] NSWPICMP 454

DETERMINATION OF APPEAL PANEL
CITATION:	Gardener v Cochran [2022] NSWPICMP 454
APPELLANT:	Tania Gardener
RESPONDENT:	Glenn Peter Cochran
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Paul Curtin
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	11 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Worker alleges two errors in the Medical Assessor (MA) misquoting Independent Medical Examiner’s (IME) assessment of whole person impairment (WPI) of right leg and his failure to provide reasons why he rejected IME’s opinion; De Gelder v Roger followed; and failure to make enquiries as to the impact of scarring on her activities of daily living (ADLs) or give adequate reasons for his findings; Held – while the MA misquoted the IME’s assessment of WPI, the actual path by which he determined WPI was transparent; he was not required to comment on the correctness of other opinions; Wingfoot Australia Partners Pty Ltd v Kocak followed; the MA determined that the scarring had no impact on ADLs; there was no evidence to the contrary and this conclusion was open to him; it was unnecessary to give more extensive reasons; the MA also gave sufficient reasons as to why 4% WPI was the “best fit” for the worker’s scarring; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 June 2022 Tania Gardener (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 6 May 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 assessment was made on the basis of incorrect criteria,
· 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 grounds 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

The appellant was formerly employed by Glenn Peter Cochran (the respondent) as a cleaner. On 24 April 2018, in the course of that work, she fell from a ladder and suffered serious injury to her right knee and left wrist. While the appellant’s left wrist was managed conservatively, she came to internal fixation…

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 Gardener v Cochran

Details

AGLC: Gardener v Cochran [2022] NSWPICMP 454
Case: [2022] NSWPICMP 454
Decision Date: 11 November 2022

CaseChat Overview and Summary

The case of Gardener v Cochran involved a worker who claimed that two errors were made by the Medical Assessor (MA) in relation to her workers compensation claim. The first error was that the MA misquoted the Independent Medical Examiner’s (IME) assessment of whole person impairment (WPI) of the worker's right leg and failed to provide reasons for rejecting the IME’s opinion. The second error was the MA’s failure to make enquiries as to the impact of scarring on her activities of daily living (ADLs) or to give adequate reasons for his findings. The dispute was heard in the Workers Compensation Court of Victoria.

The court was required to determine whether the MA had erred in misquoting the IME’s assessment of WPI and in failing to provide reasons for rejecting the IME’s opinion. The court also had to decide whether the MA erred by not making enquiries as to the impact of scarring on the worker's ADLs or by not providing adequate reasons for his findings. The court needed to assess whether the MA's findings were transparent and whether they were open to him based on the evidence.

The court found that although the MA had misquoted the IME’s assessment of WPI, the actual path by which he determined WPI was transparent. The court followed the case of De Gelder v Roger, stating that the MA was not required to comment on the correctness of other opinions. The court referred to Wingfoot Australia Partners Pty Ltd v Kocak, where it was held that the MA determined that the scarring had no impact on the worker’s ADLs, and there was no evidence to the contrary, which made this conclusion open to him. The court held that it was unnecessary for the MA to give more extensive reasons. The MA also provided sufficient reasons as to why 4% WPI was the "best fit" for the worker's scarring. Therefore, the Medical Assessment Certificate was confirmed.

The final orders of the court confirmed the Medical Assessment Certificate, upholding the MA’s findings and conclusions. The worker’s appeal was dismissed.

Orders