Stewart v Camden Council - [2021] NSWPICMP 106

DETERMINATION OF APPEAL PANEL
CITATION:	Stewart v Camden Council [2021] NSWPICMP 106
APPELLANT:	Russell Stewart
RESPONDENT:	Camden Council
APPEAL PANEL:	Member Paul Sweeney Dr Tommasino Mastroianni Dr John Ashwell
DATE OF DECISION:	29 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal by worker against a determination by a Medical Assessor (MA) of 1% WPI for TEMSKI/ scarring; Held- as the MA failed to identify the criteria which led to his determination he had failed to explain the path of his reasoning; Wingfoot Australia Partners Pty Limited v Kocak considered; after re-examination, the panel determined that 1% WPI was the best fit for the worker’s scar in accordance with the criteria and descriptors in Table 14.1; 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 February 2021 Russell Stewart (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (formerly an Approved Medical Specialist or AMS). The medical dispute was assessed by Dr Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 28 January 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 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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was formerly employed as a plant operator by the Camden Council. He suffered an injury to his low back while performing arduous physical work in the course of his employment on 30 July 2006. He came under the care of Dr Michael, a general practitioner of Narellan, who diagnosed an L5/S1 disc lesion. He was treated with physiotherapy, anti-inflammatory medication and pain management. He was referred to a number of medical specialists.
Unfortunately, the appellant was unable to return to his pre-injury duties. He was terminated by the respondent in 2009 and although he has attempted several different jobs since that time has been unable to re-enter the workforce. Dr Michael has expressed the opinion that he is unfit for work which involved lifting, bending, pushing, pulling or twisting. This, of course,…

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 106
Decision Date: 29 June 2021

CaseChat Overview and Summary

In the matter of Stewart v Camden Council, the worker appealed against a determination made by a Medical Assessor regarding the assessment of his permanent impairment due to scarring. The dispute centred on the accuracy of the 1% whole person impairment (WPI) rating assigned by the Medical Assessor for the scar caused by the injury. The case was heard in the relevant appellate court, which reviewed the assessor's decision and the evidence presented.

The court was tasked with determining whether the Medical Assessor appropriately applied the criteria and descriptors in Table 14.1 when assigning the WPI rating for the scarring. The critical issue was whether the assessor had adequately explained the reasoning behind the 1% WPI rating. The worker argued that the assessor had not sufficiently identified the criteria that led to the determination, which was necessary to understand the path of the reasoning.

Upon review, the court found that the assessor had indeed failed to explain the criteria used in arriving at the 1% WPI rating, thereby not properly demonstrating the path of their reasoning. The court considered the principles outlined in Wingfoot Australia Partners Pty Limited v Kocak, which emphasise the necessity for assessors to clearly articulate the criteria used in their assessments. After re-examining the evidence, the panel concluded that 1% WPI was the best fit for the worker's scar according to the criteria and descriptors in Table 14.1. Consequently, the court confirmed the Medical Assessor’s determination of 1% WPI.

Orders