Lee v Bunnings Group Limited - [2021] NSWPICMP 203

DETERMINATION OF APPEAL PANEL
CITATION:	Lee v Bunnings Group Limited [2021] NSWPICMP 203
APPELLANT:	Sharan Lee
RESPONDENT:	Bunnings Group Limited
APPEAL PANEL:	Member Catherine McDonald Dr Mark Burns A/Prof Christopher Grainge
DATE OF DECISION:	29 October 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker suffered injury when she opened a gardening product and began to cough; previous award of compensation; choice of Medical Assessor (MA); diagnosis by MA different to injury as pleaded; Bindah v Carter Holt Harvey Woodproducts discussed; assessment by analogy; Held – Medical Assessment Certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 April 2021 Sharan Lee lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory Kaufman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 March 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 was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that in s 323(3)(d). The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds 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).
Ms Lee commenced proceedings on the Workers Compensation Commission (WCC) and medical dispute was referred to an Approved Medical Specialist. Between the date of the referral and the date of the MAC, the Personal Injury Commission commenced to operate on 1 March 2021. In this decision we have used the nomenclature which was appropriate at the time of each relevant event.

RELEVANT FACTUAL BACKGROUND

Ms Lee worked in the garden section of the Bunnings store in South Nowra. On 2 June 2010 she was moving bags of Weed and Feed when she noticed that one of the bags had split and gave off a strong odour. She quickly began to cough and noticed a constricted feeling in her throat. She stopped work and her breathing became more difficult and her cough more pronounced. She was taken to the Emergency Department at Shoalhaven Hospital and adrenaline was administered in the ambulance on the way there and at the hospital. She went home after four to five hours and returned to work 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.

Keep reading for free

Create a free CaseChat account to read Lee v Bunnings Group Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPICMP 203
Decision Date: 29 October 2021

CaseChat Overview and Summary

Lee, a worker, brought a case against Bunnings Group Limited after she suffered an injury when she opened a gardening product and began to cough. The issue at hand was whether the worker was entitled to an increased amount of compensation under the relevant workers compensation legislation. The case was heard in the relevant tribunal. The primary legal issue was whether the tribunal could consider the worker's diagnosis by analogy to the injury as pleaded, despite the Medical Assessor providing a different diagnosis.

The tribunal considered whether the worker's injury, as diagnosed by the Medical Assessor, could be considered analogous to the injury as pleaded. The tribunal noted that the decision in Bindah v Carter Holt Harvey Woodproducts was relevant to the issue of assessment by analogy. The tribunal found that the worker's injury was analogous to the injury as pleaded and, therefore, the tribunal could consider the worker's diagnosis by analogy. The tribunal also noted that the Medical Assessment Certificate confirmed the worker's diagnosis by analogy.

As a result, the tribunal allowed the worker's claim for an increased amount of compensation. The tribunal found that the worker's injury was analogous to the injury as pleaded, and the Medical Assessment Certificate confirmed the worker's diagnosis by analogy. The tribunal also noted that the decision in Bindah v Carter Holt Harvey Woodproducts supported the use of assessment by analogy in this context. The tribunal ordered that the worker be paid an increased amount of compensation.

Orders