Hesketh v Sunnyfield - [2022] NSWPICMP 419

DETERMINATION OF APPEAL PANEL
CITATION:	Hesketh v Sunnyfield [2022] NSWPICMP 419
APPELLANT:	Martin Hesketh
RESPONDENT:	Sunnyfield
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Patrick Morris
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	24 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal by worker against Medical Assessor’s (MA) finding of no Maximum Medical Improvement (MMI); whether application of chapter 1.15 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) demonstrated that MMI had occurred when consideration given to relevant facts; whether MA diverted by confusion about causation; Held – contemporaneous medical reports showed the worker’s condition to have been well stabilised for almost 2 years and that the medical treatment referred to by the MA had already been given; it was accordingly unlikely that the condition would change in the next 12 months; MA failed to adequately explain his reasons; MA may also have been diverted from his task by irrelevant concerns as to causation; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, Jaffarie v Quality Castings Pty Ltd and Skates v Hills Industries Ltd considered; error established and worker re-examined by Panel member; Medical Assessment Certificate revoked and award for 24% substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 March 2022 Martin Hesketh, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Andrew McClure, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
7 March 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, 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.
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, 4th ed, reissued
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 22 November 2021 the delegate of the President referred this matter for a WPI assessment arising from psychological/psychiatric disorder which occurred on
16 November 2016.
The appellant was employed as a support worker when he was assaulted by a very large and strong young…

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 419
Decision Date: 24 October 2022

CaseChat Overview and Summary

In Hesketh v Sunnyfield, the worker appealed against the Medical Assessor's (MA) finding that there was no Maximum Medical Improvement (MMI). The appeal centred on whether the application of chapter 1.15 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) correctly demonstrated that MMI had occurred, given the relevant facts and whether the MA had been diverted by confusion about causation. The matter was heard in the Workers Compensation Court of New South Wales.

The court was required to decide whether the MA had correctly applied the relevant guidelines and whether the MA had been influenced by irrelevant concerns about causation. The court had to examine the contemporaneous medical reports to determine the stability of the worker's condition over the past two years and whether the treatment referred to by the MA had already been administered. Additionally, the court needed to assess whether the MA adequately explained his reasoning and whether he had considered all relevant factors.

The court found that the contemporaneous medical reports indicated that the worker's condition had been well stabilised for almost two years, and the medical treatment referred to by the MA had already been provided. Consequently, it was unlikely that the condition would change in the next 12 months. The MA failed to adequately explain his reasons for the decision and may have been diverted by irrelevant concerns about causation. The court considered the precedents set by Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, Jaffarie v Quality Castings Pty Ltd, and Skates v Hills Industries Ltd in reaching its decision. The court established that there was an error in the MA's assessment, and the worker was re-examined by a Panel member. The Medical Assessment Certificate was revoked, and an award for 24% permanent impairment was substituted.

Orders