Sutton v Lambing Flat Enterprises Pty Ltd - [2024] NSWPICMP 313

DETERMINATION OF APPEAL PANEL
CITATION:	Sutton v Lambing Flat Enterprises Pty Ltd [2024] NSWPICMP 313
APPELLANT:	Lesa Joan Sutton
RESPONDENT:	Lambing Flat Enterprises Pty Limited
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Michael Davies
MEDICAL ASSESSOR:	Robin Fitzsimons
DATE OF DECISION:	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from one tenth section 323 deduction, and failure to apply Chapter 1.32 of the Guides; whether Medical Assessor (MA) applied section 323 correctly; whether effects of treatment warranted application of a modifier; Held – appellant had serious prior brain condition treated by surgery 8 months before subject motor vehicle injury; MA found it was not causal, but that the motor vehicle injury had caused musculoligamentous strain of the neck; his reasons for the one tenth deduction were not clear, and reference to post-operative scarring not adequately explained; Cole v Wenaline Pty Ltd considered and applied; Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak applied; Medical Assessment Certificate revoked; section 323 not applied; no evidence that treatment effects qualified under Chapter 1.32 as substantial or total elimination of impairment.

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 December 2023 Lesa Joan Sutton, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
20 November 2023.
The appellant 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 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.
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, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 30 October 2023 an amended referral was made for an assessment of WPI caused by injury to the cervical spine on 20 August 2018.
The appellant was employed as a Mental Health Case Worker when on 20 August 2018 she was involved in a motor accident…

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: [2024] NSWPICMP 313
Decision Date: 22 May 2024

CaseChat Overview and Summary

In the matter of Sutton v Lambing Flat Enterprises Pty Ltd, the appellant, Sutton, sought to appeal a decision made by a Medical Assessor (MA) under the Workplace Injury Management and Workers Compensation Act 1998. Sutton argued that the MA erred in applying a one-tenth section 323 deduction and in failing to consider Chapter 1.32 of the Guides, which pertains to the effects of treatment. Sutton contended that the MA should have considered the effects of his treatment for a prior brain condition, which was treated by surgery eight months before a motor vehicle accident that resulted in a musculoligamentous strain of the neck. The MA concluded that the effects of treatment did not warrant the application of Chapter 1.32, and thus the one-tenth deduction was applied.

The court was required to determine whether the MA applied section 323 correctly, particularly in relation to the one-tenth deduction, and whether the effects of Sutton's treatment for his prior brain condition warranted the application of Chapter 1.32. The court examined the MA's reasons for the one-tenth deduction and noted that they were not clear, particularly with respect to the reference to post-operative scarring. The court considered the cases of Cole v Wenaline Pty Ltd and Western Sydney Local Health District v Chan, and applied the principles established in Wingfoot Australia Pty Ltd v Kocak. The court found that the MA's reasons for the one-tenth deduction were inadequate, and that there was no evidence to suggest that the effects of Sutton's treatment qualified under Chapter 1.32 as substantial or total elimination of impairment.

The court revoked the Medical Assessment Certificate and held that section 323 should not have been applied. The court found that the MA's failure to adequately explain the one-tenth deduction and the effects of Sutton's treatment led to an incorrect outcome. The court ordered that the one-tenth deduction should not have been applied and that the Medical Assessment Certificate should be revoked. The court also found that there was no evidence to suggest that the effects of Sutton's treatment qualified under Chapter 1.32 as substantial or total elimination of impairment. The court's decision was based on a careful examination of the MA's reasons and the application of relevant case law.

Orders