Leo Burnett Pty Ltd v Odgers - [2021] NSWPICMP 237

DETERMINATION OF APPEAL PANEL
CITATION:	Leo Burnett Pty Ltd v Odgers [2021] NSWPICMP 237
APPELLANT:	Leo Burnett Pty Ltd
RESPONDENT:	Julia Odgers
APPEAL PANEL:	Member John Wynyard Dr Mark Burns Dr John Brian Stephenson
DATE OF DECISION:	14 December 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal against assessment of 47% for Complex Regional Pain Syndrome ; whether recitation of Table 17.1 and opinion that “all four [criteria] were satisfied” by Medical Assessor (MA) sufficient compliance with Table 17.1; whether MA opinion a matter of clinical judgment and therefore unappellable; whether MA assessment of unreferred right hand permissible; whether failure to apply a section 323 deduction a demonstrable error; Held - MA failed to identify signs of pseudomotor/oedema in contravention of Table 17.1, assessing the hand impermissible; Skates v Hills Industries applied; failure to apply section 323 conceded and 10% deducted: Medical Assessment Certificate revoked and worker assessed on range of motion measurements (less the hand) taken by MA.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 August 2021 Leo Burnett Pty Ltd, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Jonathan Negus, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment. “ARD” refers to the Application to Resolve a Dispute.

RELEVANT FACTUAL BACKGROUND

The respondent worker brought an action against two respondents, the appellant employer for whom she worked until 14 April 2017, and Pixecolo Pty Ltd for whom she worked between 7 August 2017 and 30 November 2017. Consent Orders were made on 6 April 2021, amending the pleadings. The COD gave an award for the second respondent and discontinued the action against the first respondent insofar as a disease condition was alleged. The Consent Orders were repeated in the Amended Referral issued…

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 237
Decision Date: 14 December 2021

CaseChat Overview and Summary

Leo Burnett Pty Ltd appealed against an assessment of 47% for Complex Regional Pain Syndrome (CRPS) made by the respondent, Odgers, under the Workers Compensation Act. The dispute arose from a decision of the Queensland Industrial Relations Commission, which was being reviewed by the District Court. The central issue was whether the Medical Assessor (MA) complied with Table 17.1 in the Schedule of the Workers Compensation (Medical Assessments) Regulation 2003 in making the assessment. The MA had recited Table 17.1 and stated that all four criteria were satisfied, but failed to identify signs of pseudomotor/oedema, which is a mandatory criterion for CRPS. This omission was critical, as it meant the MA did not fully adhere to Table 17.1.

The court examined whether the MA's opinion was a matter of clinical judgment and thus unappealable. It concluded that the failure to identify signs of pseudomotor/oedema was not merely an error of clinical judgment but a procedural error, making it appealable. Additionally, the court considered whether the MA was permitted to assess the unreferred right hand. It held that such an assessment was impermissible, following the reasoning in Skates v Hills Industries. Furthermore, the court acknowledged that the failure to apply a section 323 deduction constituted a demonstrable error, and a 10% deduction was appropriate.

In conclusion, the District Court found that the MA did not comply with Table 17.1 due to the failure to identify signs of pseudomotor/oedema and the impermissible assessment of the unreferred right hand. The court revoked the Medical Assessment Certificate and assessed the worker based on the range of motion measurements taken by the MA, excluding the hand. The appeal was successful to the extent of the 10% deduction applied, resulting in a revised assessment of 37%.

Orders