Mercer v Kurumbul Pty Ltd - [2022] NSWPICMP 94

DETERMINATION OF APPEAL PANEL
CITATION:	Mercer v Kurumbul Pty Ltd [2022] NSWPICMP 94
APPELLANT:	Allan James Mercer
RESPONDENT:	Kurumbul Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Dr John Brian Stephenson Dr Gregory McGroder
DATE OF DECISION:	22 April 2022
CATCHWORDS:	WORKERS COMPENSATION- Assessment of cervical spine and upper extremities; appellant submitted that Medical Assessor (MA) failed to perform a proper examination and assessment of the left shoulder as the MA found that there was a chronic pain condition and inconsistent presentation; Held- Appeal Panel did not accept that there was no evidence available for a calculable impairment of the left shoulder; MA erred in not providing adequate reasons; worker re-examined, and Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 December 2021 Allan James Mercer (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Lewington, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 10 November 2021.
The respondent to the appeal is Kurumbul Pty Ltd (the respondent).
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):
·        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 reissued on 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

In these proceedings, the appellant is claiming lump sum compensation in respect of the right upper extremity, and cervical spine as a result of the injury on 11 July 2014 and in respect of a consequential condition to the left upper extremity (shoulder).
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated 15 July 2021, the matter was referred to the MA, Dr David Lewington, for assessment of whole person impairment (WPI) of the cervical spine and right upper extremity as a result of the injury on 11 July 2014.
The MA examined the appellant on 8 November 2021. He assessed 7% WPI of 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: [2022] NSWPICMP 94
Decision Date: 22 April 2022

CaseChat Overview and Summary

The appeal in this case was brought forth by Mercer against Kurumbul Pty Ltd, wherein the dispute revolved around the assessment of Mercer's cervical spine and upper extremities, specifically the left shoulder. The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). Mercer argued that the Medical Assessor (MA) failed to adequately examine and assess his left shoulder, as the MA had concluded that there was a chronic pain condition and inconsistent presentation. The MA also determined that Mercer had a 12% whole person impairment (WPI) of the left shoulder.

The central legal issues in the case were whether the MA had conducted a proper examination and assessment of Mercer's left shoulder and whether the MA's findings and conclusions were supported by evidence. Mercer contended that the MA had not provided adequate reasons for the conclusions reached regarding the left shoulder, and that the MA's assessment was therefore flawed. The tribunal had to determine whether the MA's assessment was reasonable and whether the evidence supported the MA's conclusions on Mercer's condition and impairment.

In its decision, the tribunal found that the MA had not provided adequate reasons for the conclusions reached regarding Mercer's left shoulder. The tribunal also found that there was evidence available for a calculable impairment of the left shoulder, and that the MA had erred in not providing adequate reasons for the assessment. Consequently, the tribunal ordered that Mercer be re-examined by another medical practitioner, and the Medical Assessment Certificate was revoked. The tribunal's decision highlighted the importance of providing adequate reasons for the conclusions reached in such assessments and the need for a proper examination and assessment of the injured party's condition.

Orders