Lennon v Super Cheap Auto Pty Ltd - [2021] NSWPICMP 180

DETERMINATION OF APPEAL PANEL
CITATION:	Lennon v Super Cheap Auto Pty Ltd [2021] NSWPICMP 180
APPELLANT:	Jade Lennon
RESPONDENT:	Super Cheap Auto Pty Ltd
APPEAL PANEL:	Member Marshal Douglas Dr David Crocker Dr David Lewington
DATE OF DECISION:	27 September 2021
CATCHWORDS:	WORKERS COMPENSATION- Appellant worker suffered complex regional pain syndrome (CRPS) of both lower extremities based on Budapest Criteria, as a result of injury to left ankle; Medical Assessor (MA) did not assess appellant’s permanent impairment based on CRPS because he could not make diagnosis of CRPS based on criteria of Table 17-1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and so assessed the appellant’s impairment by reference to Chapter 3 of the Guidelines; appellant sought to introduce statement she signed after assessment and a statement her partner signed after assessment in which they recounted what they say had occurred during the MA’s examination of her and in which the appellant provided commentary on the fairness of Table 17-1; appellant submitted the MA made errors during his examination and applied the Guidelines unfairly; Appeal Panel did not receive further statements into evidence; Held - Appeal Panel found that MA could not, based on his findings from examination, make a diagnosis of CRPS in accordance with Table 17-1; Medical Assessment Certificate upheld.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 July 2021 Jade Lennon (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 June 2021.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

·        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 FACTUAL BACKGROUND

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.

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Details

Case: [2021] NSWPICMP 180
Decision Date: 27 September 2021

CaseChat Overview and Summary

In the matter of Lennon v Super Cheap Auto Pty Ltd, the appellant, Lennon, sought to appeal the findings of a Medical Assessor (MA) who had evaluated her permanent impairment following a workplace injury. Lennon suffered from complex regional pain syndrome (CRPS) in both lower extremities, which she claimed arose from an injury to her left ankle. The MA did not diagnose CRPS based on the criteria set out in Table 17-1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed. Instead, the MA assessed Lennon's impairment under Chapter 3 of the Guidelines. Lennon contended that the MA had erred during the assessment and applied the Guidelines unfairly. She sought to introduce statements signed by herself and her partner recounting the events of the assessment and providing commentary on the fairness of Table 17-1. However, the Appeal Panel declined to admit these statements into evidence.

The primary legal issues before the court were whether the MA had the authority to diagnose CRPS according to Table 17-1 and whether the MA had applied the Guidelines fairly and correctly. Lennon argued that the MA had misapplied the Guidelines and made errors during the examination, leading to an unfair assessment of her impairment. She also contended that the Appeal Panel should consider the additional statements to understand the context of the examination and the fairness of Table 17-1. Super Cheap Auto Pty Ltd, the respondent, maintained that the MA had correctly followed the Guidelines and that the Appeal Panel should not consider the additional statements as they were not admissible evidence.

The court found that the MA had the discretion to assess Lennon's impairment under Chapter 3 of the Guidelines as he could not make a diagnosis of CRPS based on the criteria set out in Table 17-1. The court also determined that the Appeal Panel was correct in not receiving the additional statements into evidence, as they did not fall within the scope of admissible evidence. The Appeal Panel had thoroughly considered the evidence before it and reached a reasoned decision that upheld the MA's findings. The court concluded that the MA had not misapplied the Guidelines or acted unfairly and that the Medical Assessment Certificate should be upheld.

The court's decision was that the Appeal Panel's findings were correct and that the Medical Assessment Certificate should remain in place. The appeal was dismissed, and the appellant's submissions were not upheld. The court did not order any further action or changes to the assessment, affirming the original decision of the Appeal Panel.

Orders