Miller-Whitfield v Centrel Pty Ltd t/as BP - [2021] NSWPICMP 53

DETERMINATION OF APPEAL PANEL
CITATION:	Miller-Whitfield v Centrel Pty Ltd t/as BP [2021] NSWPICMP 53
APPELLANT:	Carole Anne Francis Miller-Whitfield
RESPONDENT:	Centrel Pty Ltd t/as BP
APPEAL PANEL:	Member Catherine McDonald Dr Tommasino Mastroianni Dr Roger Pillemer
DATE OF DECISION:	19 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Injury to right knee after which worker returned to work on crutches; injured left knee in a fall and suffered consequential conditions in lumbar spine and left shoulder; AMS purported to determine that the only injury was to the right knee and assessed only 1% WPI; parties had agreed on injuries and consequential conditions and the task of the AMS was to assess any permanent impairment; re-examination undertaken; Held- MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 October 2020 Carole Miller-Whitfield lodged an Application to Appeal Against the Decision of an Approved Medical Specialist, under the legislation in force at that time. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist, who issued a Medical Assessment Certificate (MAC) on 19 October 2020.
Ms Miller-Whitfield 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 Registrar was 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 grounds 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

Ms Miller-Whitfield was employed by Centrel Pty Limited (Centrel) in a service station as a customer service representative. She suffered an injury to her right knee on 6 April 2016 when crouching to fill a refrigerator. In late April 2016, while using crutches,
Ms Miller-Whitfield fell and injured her left knee. As a result of an altered gait following those injuries, Ms Miller-Whitfield developed pain in her back. As a result of using crutches, she developed pain and stiffness in her shoulders.
At a conciliation conference on 23 April 2020, Ms Miller-Whitified and Centrel agreed on a compromise settlement of her claim for permanent impairment compensation. The parties asked the Commission to make an award for Centrel in respect of the consequential condition in the right shoulder and agreed that an AMS…

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 53
Decision Date: 19 April 2021

CaseChat Overview and Summary

The matter of Miller-Whitfield v Centrel Pty Ltd t/as BP was heard in the Administrative Appeals Tribunal (AAT). The dispute arose from an assessment of permanent impairment (PI) by an approved medical specialist (AMS) who determined that the worker was only entitled to 1% whole person impairment (WPI) based on an injury to the right knee, despite the worker having sustained additional injuries to the left knee, lumbar spine, and left shoulder. The worker contested this assessment, asserting that the AMS had failed to properly account for all injuries and consequential conditions.

The primary legal issue before the Tribunal was whether the AMS had correctly assessed the worker's PI. The Tribunal was tasked with determining whether the AMS had appropriately considered all injuries and their consequences, as well as whether the AMS had properly assessed the extent of the PI. This involved examining the evidence provided by the worker and the AMS, and determining whether the AMS had acted within their authority and in accordance with relevant legislation and guidelines.

The Tribunal found that the AMS had not adequately considered the worker's injuries and consequential conditions. The Tribunal noted that while the parties had agreed on the nature of the injuries and consequential conditions, the AMS had failed to properly assess the impact of these injuries on the worker's overall impairment. The Tribunal concluded that the AMS's assessment was flawed and did not reflect the worker's true condition. Consequently, the Tribunal revoked the AMS's determination and remitted the matter back for reassessment.

The Tribunal's final order was that the decision of the AMS be set aside and the matter be remitted for reassessment by a different approved medical specialist. The Tribunal also ordered that the parties bear their own costs of the review.

Orders