State Transit Authority v Fullbrook - [2023] NSWPICMP 138

DETERMINATION OF APPEAL PANEL
CITATION:	State Transit Authority v Fullbrook [2023] NSWPICMP 138
APPELLANT:	State Transit Authority
RESPONDENT:	Andrew Fullbrook
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	J Brian Stephenson
DATE OF DECISION:	12 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of impairment of upper extremities; injury to both shoulders; employer’s failure to determine claim resulted in all claims referred to Medical Assessor (MA) despite worker’s assessment of 0%; MA found no permanent impairment in right shoulder as a result of the injury but measured loss of the range of motion; failure to apply paragraph 2.20 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, 1 March 2021 and to deduct measured loss in right shoulder from assessed loss in respect of left shoulder injury; application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for previous surgery; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 January 2023 the State Transit Authority (the Authority) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr S K Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 December 2022.
The Authority 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 has been 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, 4th ed, 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Fullbrook was employed by the Authority as a bus driver trainer. He suffered an injury on 1 May 2020 when he tripped and fell forward, landing on his hands and knees. Many years before, Mr Fullbrook had undergone surgery on his left shoulder but it was functioning well before the injury. After conservative treatment, he underwent an arthroscopic rotator cuff repair on 28 October 2021. Mr Fullbrook’s knee injuries also did not improve with conservative treatment and he underwent a left total knee replacement on 2 December 2020.…

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 138
Decision Date: 12 April 2023

CaseChat Overview and Summary

In the matter of State Transit Authority v Fullbrook, the dispute before the Court centred around the assessment of permanent impairment to the upper extremities of the claimant, Fullbrook. The dispute arose from Fullbrook's injuries to both shoulders, which were sustained during the course of his employment with the State Transit Authority. The issue came before the Court as a result of the employer's failure to determine Fullbrook's claim, leading to all claims being referred to a Medical Assessor (MA). Despite the worker's initial assessment of 0% impairment, the MA found no permanent impairment in the right shoulder due to the injury but did measure a loss of range of motion. The key legal issue the Court had to decide was whether the MA had correctly applied the relevant guidelines in assessing Fullbrook's impairment and whether the employer's failure to determine the claim was justified.

The Court examined the application of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, 1 March 2021, particularly paragraph 2.20, and the relevance of section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The Court found that the MA had failed to deduct the measured loss in the right shoulder from the assessed loss in respect of the left shoulder injury. This error was compounded by the MA's failure to consider the previous surgery, which should have been taken into account under section 323 of the Act. Consequently, the Court concluded that the MA's assessment was flawed and revoked the Medical Assessment Certificate. The employer's failure to determine the claim, leading to the referral to the MA, was deemed to have exacerbated the situation, resulting in an incorrect assessment of Fullbrook's impairment.

Following the Court's decision, the outcome was that the Medical Assessment Certificate issued by the MA was revoked due to the errors identified in the assessment process. The Court's ruling highlighted the importance of correctly applying the Workers Compensation Guidelines and considering relevant factors such as previous surgery when assessing impairment. The final orders of the Court included the revocation of the Medical Assessment Certificate and a direction for a new assessment to be conducted in accordance with the relevant guidelines and statutory provisions. This decision underscores the need for accurate and comprehensive assessments to ensure fair and just outcomes for workers who have sustained injuries in the course of their employment.

Orders