Pace Farms Pty Limited v Taylor - [2021] NSWPICMP 115

DETERMINATION OF APPEAL PANEL
CITATION:	Pace Farms Pty Limited v Taylor [2021] NSWPICMP 115
APPELLANT:	Pace Farms Pty Limited
RESPONDENT:	Lee Taylor
APPEAL PANEL:	Member Catherine McDonald Dr Gregory McGroder Dr Brian Noll
DATE OF DECISION:	5 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Electrocution injury; Medical Assessor assessed reduced range of movement in right shoulder and chronic pain which fell short of CRPS; assessed by analogy to loss of median nerve below the forearm; criteria for assessment by analogy under paragraph 1.23 of Guidelines were fulfilled and choice of analogy was open to Medical Assessor in the exercise of his clinical judgement; Held- MAC confirmed.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 April 2021 Pace Farms Pty Limited (Pace) 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 11 March 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 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

Mr Taylor was employed by Pace as a farm hand at its egg production facility near West Wyalong. On 8 October 2015 he was leaning in to an egg run to clear a blockage when the third, fourth and fifth fingers of his right hand came into contact with an electric wire, causing him to suffer an electrocution injury and develop pain in his right arm. A few days later he returned to work and while working fell back, causing him to suffer pain in his right arm, shoulder and neck.
Mr Taylor underwent physiotherapy, cortisone injections and cervical blocks which were ineffective. He was referred to Dr R Jain for pain management. A spinal cord stimulator was inserted in 2018 after a successful trial in 2017. He began to see a psychologist.
The Medical Assessor diagnosed a reduced range of movement of Mr Taylor’s right shoulder and chronic pain 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: [2021] NSWPICMP 115
Decision Date: 5 July 2021

CaseChat Overview and Summary

Pace Farms Pty Limited brought an appeal against the decision of the Member, arguing that the assessment of the injury and the compensation awarded to the respondent, Taylor, were incorrect. The case was heard in the Administrative Appeals Tribunal (AAT). The primary issue before the court was whether the Medical Assessor correctly applied the criteria for assessing the injury by analogy to the loss of the median nerve below the forearm and whether the compensation awarded was appropriate.

The AAT examined the criteria for assessment by analogy as outlined in paragraph 1.23 of the Guidelines, and whether these criteria were met in this case. The court noted that the criteria were fulfilled, and that the choice of analogy was a matter of clinical judgment for the Medical Assessor. The AAT found that the Medical Assessor had correctly applied the criteria and exercised his clinical judgment appropriately in choosing the analogy. The AAT also considered whether the compensation awarded was appropriate, taking into account the reduced range of movement in the right shoulder and the chronic pain experienced by the respondent. The AAT confirmed that the compensation awarded was appropriate and upheld the decision of the Member.

The AAT dismissed the appeal brought by Pace Farms Pty Limited, confirming the decision of the Member. The AAT found that the Medical Assessor had correctly applied the criteria for assessment by analogy and exercised his clinical judgment appropriately in choosing the analogy. The AAT also found that the compensation awarded was appropriate and upheld the decision of the Member. The appeal was dismissed with no orders for costs.

Orders