King v Dark Red Frames & Trusses Pty Ltd - [2024] NSWPICMP 878

DETERMINATION OF APPEAL PANEL
CITATION:	King v Dark Red Frames & Trusses Pty Ltd [2024] NSWPICMP 878
APPELLANT:	James King
RESPONDENT:	Dark Red Frames & Trusses Pty Ltd
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	19 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (lumbar spine); whether Medical Assessor erred in omitting to identify radiculopathy; whether he erred in omitting to conduct a straight leg raising test; whether inadequacy of reasons; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

BACKGROUND

The appellant worker, Mr King, appeals from the Medical Assessment Certificate of Medical Assessor Kuru dated 24 June 2024. He assessed a 14% whole person impairment (13% lumbar spine, 1% scarring) as a result of injury on 19 January 2021.
Mr King appeals from the assessment of 13% whole person impairment with respect to the lumbar spine only.
The grounds of appeal are summarised below. Essentially, he says that the Medical Assessor erred by failing to add 3% whole person impairment for radiculopathy in accordance with Table 4.2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines). The failure to find that radiculopathy was present, he says, flowed from an omission to conduct a straight leg raising test, or alternatively an omission to do so in the supine position.
He relies on his own statement of 2 July 2024, made after the assessment on 18 June 2024. Dark Red Frames & Trusses Pty Ltd (the respondent) objects to its being received on appeal. It submits that, if the statement is received on appeal, procedural fairness would require that the Medical Assessor at least be given an opportunity to respond to it.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

Fresh evidence

Section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Mr King’s statement of 2 July 2024 sets out in detail what he alleges occurred at examination. So far as relevant, he alleges that the Medical Assessor did not conduct a straight leg raising test at all:
“24. I have since reviewed the Medical Assessment Certificate issued by Dr Kuru. He reports on things which did not happen during the consultation.
25. For example, he refers to having completed a straight leg test and that my straight leg raise was to 90 degrees in the sitting position without tension signs. I do not know how he has…

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: [2024] NSWPICMP 878
Decision Date: 19 December 2024

CaseChat Overview and Summary

The case of King v Dark Red Frames & Trusses Pty Ltd involved an appeal by the claimant, King, against the assessment of whole person impairment related to his lumbar spine injury. The dispute arose following King's claim for workers' compensation, and the matter was heard in the Court of Appeal. King sought to challenge the findings of the Medical Assessor, arguing that there were errors in the assessment process.

The central legal issues before the court were whether the Medical Assessor erred by failing to identify radiculopathy and by not conducting a straight leg raising test. Additionally, King contended that the reasons provided by the Medical Assessor were inadequate. The court was tasked with determining whether these alleged errors materially affected the outcome of the assessment and, if so, whether they warranted a different conclusion regarding the degree of whole person impairment.

The court meticulously reviewed the evidence and reasoning provided by the Medical Assessor. It concluded that the Medical Assessment Certificate was correctly affirmed. The court found no merit in the contention that the Medical Assessor erred in omitting to identify radiculopathy or in failing to conduct a straight leg raising test. Furthermore, the court determined that the reasons provided were adequate and did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and the original assessment of whole person impairment was upheld.

As a result of the court's decision, the appeal was dismissed, and the Medical Assessment Certificate was confirmed. No further orders were made by the court.

Orders