Gens v Autocare Services Pty Ltd - [2022] NSWPICMP 343

DETERMINATION OF APPEAL PANEL
CITATION:	Gens v Autocare Services Pty Ltd [2022] NSWPICMP 343
APPELLANT:	Raymond Philip Gens
RESPONDENT:	Autocare Services Pty Ltd
Appeal Panel:	Member Carolyn Rimmer Medical Assessor Margaret Gibson Medical Assessor J Brian Stephenson
DATE OF DECISION:	26 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - Applicant referred to Medical Assessor (MA) for assessment of whole person impairment of the right upper extremity, left upper extremity and skin as a result of the injury on 17 August 2016; applicant submitted that the MA had failed to consider the nerve conduction studies as well as complaints of pain, range of motion and loss of strength and the MA did not provide valid nor adequate reasoning for his conclusions; Held — Panel satisfied that the MA failed to properly assess medial nerve function and that this failure was an error; Panel considered that the MA had concluded that the appellant did not have carpal tunnel syndrome (CTS) without providing adequate reasons and considering adequately the many presentations of CTS; re-examination; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 March 2022 Raymond Philip Gens (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Yiu-Key Ho, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 March 2022.
The respondent to the appeal is Autocare Services Pty Ltd (the respondent).
The appellant relies on the following ground 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 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

In these proceedings, the appellant is claiming lump sum compensation in respect of the right upper extremity, left upper extremity and scarring /TEMSKI as a result of the injury on 17 August 2016.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated
15 July 2021, the matter was referred to the MA, Dr Yiu-Key Ho, for assessment of whole person impairment (WPI) of the right upper extremity (wrist, median nerve), left upper extremity (wrist) and skin (TEMSKI (right wrist) as a result of the injury on 17 August 2016.
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

Case: [2022] NSWPICMP 343
Decision Date: 26 August 2022

CaseChat Overview and Summary

In the case of Gens v Autocare Services Pty Ltd, the applicant, Gens, sought compensation for whole person impairment of the right upper extremity, left upper extremity and skin following an injury sustained on 17 August 2016. The matter was heard in the Administrative Appeals Tribunal (AAT). Gens contended that the Medical Assessor (MA) had made an error in assessing his impairments by not considering certain nerve conduction studies, complaints of pain, range of motion, and loss of strength. Furthermore, Gens argued that the MA's conclusions were not adequately reasoned.

The Tribunal was required to determine whether the MA had erred in his assessment and whether the MA had provided adequate reasoning for his conclusions. In particular, the Tribunal examined whether the MA had properly assessed the medial nerve function and whether the MA had adequately considered the many presentations of carpal tunnel syndrome (CTS). The Tribunal found that the MA had failed to properly assess the medial nerve function and that this failure constituted an error. Additionally, the Tribunal considered that the MA had concluded that Gens did not have CTS without providing adequate reasons and considering the many presentations of CTS adequately.

In light of the findings, the Tribunal was satisfied that the MA had erred in his assessment and that the MA's conclusions were not adequately reasoned. Consequently, the Tribunal revoked the Medical Assessor's decision and ordered a re-examination of Gens' impairments by a different Medical Assessor. The Tribunal did not make any further orders in relation to the matter.

Orders