Kemp v Cater Care Australia Operations Pty Ltd - [2023] NSWPIC 256

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kemp v Cater Care Australia Operations Pty Ltd [2023] NSWPIC 256
APPLICANT:	Elizabeth Kemp
RESPONDENT:	Cater Care Australia Operations Pty Ltd
Member:	Karen Garner
DATE OF DECISION:	1 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; disputed claim in relation to chronic regional post-electric pain disorder; Held – applied Elsworthy v Forgacs Engineering Pty Ltd that whether there is a diagnosis of chronic regional post-electric pain disorder (affecting the left upper extremity, cervical spine, ear, nose, throat and related structures and nervous system) is a matter for a Medical Assessor (MA); matter remitted to the President of the Personal Injury Commission for referral to a MA.
determinations made:

The Commission determines:

The applicant has experienced chronic pain in her upper left limb, left shoulder, left side of the neck, face and upper back.
The applicant’s pain is the result of the accepted work injury on 23 September 2014.
The issue of whether the applicant has a chronic regional post-electric pain disorder in the left upper limb, left shoulder, left sided neck, face and upper back is a matter for assessment by a Medical Assessor.

The Commission orders:

The permanent impairment claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
Body part/s systems: left upper extremity; cervical spine;
ear; nose; throat and related structures, and nervous system (all consequential conditions (chronic pain) due to incident on 23 September 2014).
Date of injury: 23 September 2014.
The documents to be referred to the Medical Assessor are to include those attached to the:
a.     the Application to Resolve a Dispute;
b.     Reply to Application to Resolve a Dispute;
c.     applicant’s Application to Admit Late Documents dated 17 February 2023, and
d.     insurer’s Application to Admit Late Documents dated 29 March 2023.

STATEMENT OF REASONS

BACKGROUND

Elizabeth Kemp (the applicant) is aged 55 years and was employed by Cater Care Australia Operations Pty Ltd (the respondent) as a catering assistant.
On 23 September 2014, the applicant was electrocuted when she went to use a kitchen appliance during the course of her employment.
By letter dated 15 January 2021, the applicant claimed permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) of $92,950 for 42% whole person impairment (WPI) in respect of the electrocution injury on 23 September 2014. The applicant relied on reports of A/Prof Champion, electrocution injury and pain specialist, and A/Prof Jonathan Phillips, psychiatrist.
By notice dated 24 May 2021 issued pursuant to s 78 of the 1987 Act, the respondent’s insurer (insurer) disputed the applicant’s claim. The notice stated that the insurer accepted minor electrocution, tinnitus, hyperacusis and dizziness with no hearing loss. The insurer disputed complex regional pain syndrome, chronic regional pain syndrome, post electrical injury disorder, chronic post-traumatic (electrical injury) regional pain syndrome and Tourette syndrome. The insurer relied on ss 4(a), 9A,…

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: [2023] NSWPIC 256
Decision Date: 1 June 2023

CaseChat Overview and Summary

The case of Kemp v Cater Care Australia Operations Pty Ltd involved a claim for lump sum compensation for permanent impairment under the Workers Compensation Act 1987. The plaintiff, Kemp, was seeking compensation for alleged chronic regional post-electric pain disorder, which he claimed had affected his left upper extremity, cervical spine, ear, nose, throat, related structures, and nervous system. The defendant, Cater Care Australia Operations Pty Ltd, disputed the claim.

The primary legal issue before the court was whether Kemp's alleged chronic regional post-electric pain disorder was a compensable injury under the Act. The court had to determine whether the diagnosis of such a disorder was within the realm of medical expertise, and if so, whether it qualified as an impairment warranting compensation. The court referenced the case of Elsworthy v Forgacs Engineering Pty Ltd to address the issue of whether the diagnosis of a chronic regional post-electric pain disorder was a matter for a Medical Assessor. The court concluded that the determination of the existence and nature of the disorder was a medical issue, and thus, it was appropriate to remit the matter to the President of the Personal Injury Commission for referral to a Medical Assessor.

The court's reasoning was grounded in the necessity to distinguish between medical assessments and legal determinations, ensuring that the evaluation of medical conditions and their impact on compensation claims were appropriately handled by qualified medical professionals. Consequently, the court ordered that the matter be remitted for a Medical Assessor to make the necessary determinations regarding Kemp's claim for compensation. This decision underscored the importance of adhering to the procedural requirements outlined in the Workers Compensation Act 1987 when handling claims involving complex medical conditions.

Orders