KU Children's Services v Hotait - [2022] NSWPICMP 317

DETERMINATION OF APPEAL PANEL
CITATION:	KU Children's Services v Hotait [2022] NSWPICMP 317
APPELLANT:	KU Children’s Services
RESPONDENT:	Fai Fatimeh Hotait
Appeal Panel:	Member Marshal Douglas Medical Assessor Mark Burns Medical Assessor James Bodel
DATE OF DECISION:	5 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - Medical Assessor (MA) diagnosed respondent had Complex Regional Pain Syndrome using criteria of Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines); issue raised in appeal was whether based on what MA had set out in Medical Assessment Certificate (MAC) the respondent met all criteria of clause 3 of Table 17.1 of the Guidelines; Appeal Panel found findings MA recorded in MAC not sufficient to establish whether respondent met criterion for sudomotor/oedema; Appeal Panel re-examined respondent; Held — no findings of sudomotor/oedema on re-examination; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 August 2021KU Children’s Services, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mohammed Assem, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 8 July 2021.
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 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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTURAL BACKGROUND

The appellant employed Fai Fatimeh Hotait (the respondent) as a childcare education assistant. On 19 August 2015 her duties required her to carry a bowl of food to the children’s lunch area. Whilst she was doing this, a child rode close by causing her to stop suddenly to avoid falling over the child, which in turn resulted in her twisting and wrenching her left knee and calf.
On 7 January 2020 the respondent, through her solicitors, notified the appellant’s insurer that she claimed compensation from the appellant under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $112,080 for 37% whole person impairment (WPI) that she said had resulted from her injury. The respondent relied on a report of consultant physician and…

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 317
Decision Date: 5 August 2022

CaseChat Overview and Summary

The parties in this case were KU Children's Services and Ms Hotait, who was an employee of KU Children's Services at the time of the dispute. The nature of the dispute was whether Ms Hotait met the criteria for Complex Regional Pain Syndrome as outlined in the NSW Workers Compensation Guidelines. This matter was heard in the NSW Civil and Administrative Tribunal (NCAT).

The legal issue before the court was whether the Medical Assessor (MA) had adequately established that Ms Hotait met the criteria for Complex Regional Pain Syndrome under clause 3 of Table 17.1 of the Guidelines. Specifically, the issue focused on whether the MA's findings in the Medical Assessment Certificate (MAC) were sufficient to confirm the presence of sudomotor/oedema, one of the criteria for this condition. The Appeal Panel examined the MA's assessment and determined that the findings in the MAC were not sufficient to establish whether Ms Hotait met the required criteria.

The Appeal Panel concluded that the MA's findings were insufficient to confirm the presence of sudomotor/oedema. As a result, the Appeal Panel revoked the MAC. They re-examined Ms Hotait and found no evidence of sudomotor/oedema. The Panel concluded that without this criterion being met, Ms Hotait did not satisfy the requirements for a diagnosis of Complex Regional Pain Syndrome.

The final outcome of the case was that the MAC was revoked, and Ms Hotait did not meet the criteria for Complex Regional Pain Syndrome. This decision was based on the insufficient evidence provided in the MA's assessment to confirm the presence of sudomotor/oedema, which is a necessary component of the condition under the Guidelines.

Orders