Swan v Disability Services Australia Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Swan v Disability Services Australia Ltd [2023] NSWPICMP 504
APPELLANT:	Kim Lee-Ann Swan
RESPONDENT:	Disability Services Australia Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	9 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor assessed 0% for lumbar spine and found left lower extremity (hip) had not reached maximum medical improvement (MMI) on the basis that the sciatic nerve needed further investigation and treatment; worker appealed; Appeal Panel found that it was open to the Medical Assessor, in the exercise of his clinical judgment, to have assessed the lower extremity as not having reached MMI but this also meant the lumbar spine should have been assessed as not MMI as opposed to assessing 0% WPI for the lumbar spine; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 May 2023 Ms Kim Lee-Ann Swan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 April 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 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant sought re-examination by a medical assessor member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not, for the reasons set out below, find error. Absent a finding of error, the Appeal Panel has no power to require a worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

CaseChat Overview and Summary

Swan v Disability Services Australia Ltd was a workers' compensation case heard in the Queensland Civil and Administrative Tribunal. The dispute involved the assessment of a worker's injuries by a medical assessor who concluded that the worker's lumbar spine had a 0% whole person impairment (WPI) and that the left lower extremity (hip) had not reached maximum medical improvement (MMI). The worker appealed this assessment, contending that the assessment of the lower extremity was incorrect.

The legal issues before the tribunal were whether the medical assessor's assessment of the worker's lumbar spine and lower extremity injuries was correct and whether the tribunal had the power to revoke the medical assessment certificate. The tribunal considered whether the medical assessor's findings were supported by the evidence and whether there were any errors in the assessment that would warrant the revocation of the certificate.

The tribunal found that the medical assessor's assessment of the lower extremity as not having reached MMI was open to him in the exercise of his clinical judgment. However, the tribunal also found that if the lower extremity had not reached MMI, then it was also open to the medical assessor to find that the lumbar spine had not reached MMI. The tribunal concluded that the medical assessor had erred in assessing the lumbar spine as 0% WPI without considering whether it had reached MMI. The tribunal therefore revoked the medical assessment certificate and directed the parties to proceed with a new medical assessment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established