Lynch v Woolworths Group Limited - [2023] NSWPICMP 600

DETERMINATION OF APPEAL PANEL
CITATION:	Lynch v Woolworths Group Limited [2023] NSWPICMP 600
APPELLANT:	Kylie Theresa Lynch
RESPONDENT:	Woolworths Group Limited
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	22 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Injury to left ankle and consequential condition in lumbar spine with development of chronic regional pain syndrome (CRPS); Medical Assessor did not set out path of reasoning to determination that CRPS not present; re-examination; strict criteria in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 not fulfilled; Elsworthy v Forgacs Engineering Pty Ltd considered; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 August 2023 Kylie Lynch lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 July 2023.
Ms Lynch relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Lynch was employed by Woolworths in a store, picking products to fulfil online orders. On 21 November 2020 she felt a popping sensation in her left ankle while reaching for some cold meat on a shelf. She was diagnosed with Achilles tendinosis and bursitis. She used crutches and then a scooter to avoid weight bearing and returned to work on selected duties while using the scooter. Whilst performing her duties in a flexed position, she began to experience significant lumbar pain. That pain was aggravated when walking up a travellator on crutches to attend work.
Ms Lynch was diagnosed with chronic regional pain syndrome (CRPS). Ms Lynch relied on Dr Kwong’s assessment of 42% whole person impairment (WPI), based on an assessment of 13% WPI in respect of her lumbar spine and 33% WPI in respect of her left lower…

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 600
Decision Date: 22 November 2023

CaseChat Overview and Summary

In Lynch v Woolworths Group Limited, the claimant sought a review of a Medical Assessment Certificate (MAC) issued by the defendant. The claimant, who had suffered an injury to his left ankle and developed a consequential condition in his lumbar spine, including chronic regional pain syndrome (CRPS), contested the defendant's determination that CRPS was not present. This dispute was heard in the Workers Compensation Court of New South Wales.

The central legal issues the court had to address were whether the Medical Assessor followed the correct path of reasoning in reaching the conclusion that CRPS was not present and whether the reassessment process adhered to the strict criteria outlined in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021. The court was also required to consider whether the reassessment constituted a valid review under the relevant statutory framework.

The court found that the Medical Assessor failed to adequately set out the path of reasoning that led to the conclusion that CRPS was not present. This failure meant that the reassessment process did not align with the statutory requirements. The court further noted that the strict criteria in the SIRA guidelines were not fulfilled, thereby rendering the reassessment invalid. The decision in Elsworthy v Forgacs Engineering Pty Ltd was cited as a relevant precedent, reinforcing the need for a clear and detailed reasoning process in such assessments. Consequently, the court confirmed the MAC, indicating that the claimant's CRPS was indeed present.

As a result of the court's decision, the claimant's original contention regarding the presence of CRPS was upheld. The court's ruling mandated that the MAC be confirmed, and the claimant was entitled to the benefits associated with the recognition of CRPS.

Orders