Lloyd v Newcastle City Council - [2023] NSWPICMP 34

DETERMINATION OF APPEAL PANEL
CITATION:	Lloyd v Newcastle City Council [2023] NSWPICMP 34
APPELLANT:	Sandra Lloyd
RESPONDENT:	Newcastle Council
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	3 February 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant assessed for whole person impairment from injury to right knee and consequential condition in left knee; appellant had previously had total right knee replacement and had extensive pre-existing osteoarthritis in left knee; whether deduction of 100% under section 323 with respect to left knee and deduction of 73% under section 323 of with respect to right knee was an error; Held – Appeal Panel held it was an error; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 December 2022 Sandra Lloyd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
8 November 2022.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 appellant was an employee of Newcastle City Council, the respondent. She worked in its “child care division”. On 4 December 2015 she stepped backwards onto a toy telephone which caused her to twist awkwardly and fall heavily. She injured her right knee.
The following day the appellant consulted her general practitioner (GP) who referred her to orthopaedic surgeon Dr Jonathan Young, whom she consulted on 10 December 2015.
Dr Young had previously performed a total replacement of the appellant’s right knee joint in December 2013. That was to manage osteoarthritis that the appellant then had in that joint. The appellant recovered well from that surgery in that immediately preceding her injury on
4 December 2015 she had a stable right knee, reasonable movement and no pain.
Following the consultation between the appellant and Dr Young on 10 December 2015,
Dr Young wrote to the appellant’s GP advising him that the appellant had a fracture of…

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: [2023] NSWPICMP 34
Decision Date: 3 February 2023

CaseChat Overview and Summary

Lloyd brought a claim against Newcastle City Council for injuries sustained at work. Lloyd suffered an injury to his right knee and a consequential condition in his left knee. The Council assessed Lloyd's whole person impairment, taking into account his previous total right knee replacement and extensive pre-existing osteoarthritis in his left knee. Lloyd challenged the Council's assessment, arguing it was erroneous to deduct 100% under section 323 with respect to his left knee and 73% under section 323 for his right knee. The dispute was brought before the court for resolution.

The court was required to determine whether the Council's assessment of Lloyd's whole person impairment was correct. This involved interpreting sections 323 of the Workplace Injury Management and Workers Compensation Act 1998, and applying them to the facts of Lloyd's case. The court had to assess whether the Council's deductions were justified and whether the assessment was in accordance with the relevant legislation.

The Appeal Panel found that the Council's assessment was indeed erroneous. The Panel held that the deduction of 100% for the left knee and 73% for the right knee was not supported by the evidence and did not align with the statutory provisions. The Panel revoked the Medical Assessment Certificate issued by the Council and ordered that a new assessment be conducted. The court's reasoning was based on a detailed analysis of the evidence and the applicable legal provisions, leading to the conclusion that the Council's assessment did not accurately reflect Lloyd's impairment.

The final orders of the court included the revocation of the Medical Assessment Certificate and a directive for the Council to conduct a new assessment of Lloyd's whole person impairment in accordance with the law. The Council was also required to pay Lloyd's costs associated with the appeal. This decision underscored the importance of accurate and legally compliant assessments in workers' compensation cases.

Orders