Secretary, Department of Communities and Justice v Richards

In the case of Secretary, Department of Communities and Justice v Richards, the worker appealed against the assessment of her thoracic spine (station and gait) while the insurer appealed the assessment of her urinary system (bladder). The lead assessor, a neurologist, assessed 0% whole person impairment (WPI) in respect of the thoracic spine (station and gait) as the nature and extent of impairment observed on examination could not be said to result from the subject injury in the absence of any observable/demonstrable pathology. The insurer appealed against the assessment of the non-lead assessor who assessed 41% WPI in respect of the urinary system (bladder) as the findings of the lead assessor were incompatible with the diagnosis of the non-lead assessor of neurogenic bladder leading to error in the combined Medical Assessment Certificate (MAC). The parties appeared before the Civil and Administrative Tribunal of New South Wales.

The legal issues the court was required to decide included whether the lead assessor had made an error in assessing the thoracic spine (station and gait) and whether the non-lead assessor's diagnosis of neurogenic bladder was appropriate. The court had to determine whether the worker's impairments to station and gait could be attributed to the subject accident and whether the diagnosis of neurogenic bladder was appropriately made.

The court found that the lead assessor had used language which could be understood as indicating a finding that there had been no injury which could be termed “thoracic spine (station and gait)” and to that extent error was made out. However, the court accepted that the terms of the referral indicated a neurological condition and that the impairment of station and gait exhibited by the worker required demonstrable injury to the spinal cord apparent on electromyography (EMG) and other testing. The court found that Magnetic Resonance Imaging (MRI) scans and subsequent EMG testing was normal and the impairments to station and gait exhibited by the worker could not be attributed to the subject accident. With respect to the insurer’s appeal, the court was satisfied that the diagnosis of neurogenic bladder was appropriately made. The non-lead assessor recognised that the condition did not arise from damage to the spinal cord or thoracic spine but was likely consequential upon the subject injury leading to the worker self-catheterising following the subject accident.

The final orders of the court confirmed the combined MAC as it related to the urinary system (bladder) and found that the lead assessor had correctly assessed the worker in relation to the thoracic spine (station and gait).