Templeton v Corrective Services NSW - [2022] NSWPICMP 411

DETERMINATION OF APPEAL PANEL
CITATION:	Templeton v Corrective Services NSW [2022] NSWPICMP 411
APPELLANT:	Belinda Templeton
RESPONDENT:	Corrective Services NSW
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Dr Mark Burns
MEDICAL ASSESSOR:	Dr J Brian Stephenson
DATE OF DECISION:	21 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Injury to right ankle and consequential condition in left ankle; scarring omitted from referral; Medical Assessor failed to consider diagnosis of Chronic Regional Pain Syndrome and to assess left ankle; re-examination required; Elsworthy v Forgacs Engineering Pty Ltd applied; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 June 2022 Belinda Templeton lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 May 2022.
Ms Templeton 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, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Templeton was employed as a correctional officer. In the period between 25 July 2016 to 7 August 2016 performed patrol duties for seven out of ten shifts, requiring her to patrol the prison for the duration of her shift, wearing heavy, stiff boots and walking on concrete floors. As a result of performing those duties, she suffered an injury to her right ankle which is deemed to have been suffered on 19 August 2016.
As a result of her altered gait during the rehabilitation process, Ms Templeton suffered a consequential condition in her left ankle. Ms Templeton was subsequently diagnosed with Complex Regional Pain Syndrome (CRPS).
The Medical Assessor was asked to assess Ms Templeton’s whole person impairment (WPI) in respect of her right and left lower extremities. The referral prepared by the Personal Injury Commission (the Commission) omitted to refer her claim for scarring.
The Medical Assessor assessed 4% WPI being 4% in respect of the right lower extremity and 0% in respect of the left lower extremity. He did not assess Ms Templeton…

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: [2022] NSWPICMP 411
Decision Date: 21 October 2022

CaseChat Overview and Summary

In the matter of Templeton v Corrective Services NSW, the Federal Circuit and Family Court was tasked with reviewing a workers compensation dispute. The applicant, Mr. Templeton, sought to challenge the assessment of his injuries and the subsequent compensation awarded to him. The primary issue before the court was whether the Medical Assessor had correctly evaluated Mr. Templeton's injuries, particularly focusing on his right ankle injury and the consequential condition in his left ankle. The applicant argued that the assessor failed to consider a diagnosis of Chronic Regional Pain Syndrome and neglected to assess the left ankle injury, which ultimately impacted the compensation awarded.

The court had to determine whether the Medical Assessor's oversight in not considering the diagnosis of Chronic Regional Pain Syndrome and the failure to assess the consequential left ankle injury warranted a re-examination of Mr. Templeton's case. The court considered the principles set out in Elsworthy v Forgacs Engineering Pty Ltd, which underscored the necessity for a comprehensive evaluation of all injuries and their inter-related conditions. Given the importance of these factors in determining the appropriate compensation, the court found that the assessor's omissions were significant enough to affect the validity of the assessment.

Following the reasoning set forth in the cited case, the court concluded that the Medical Assessor's failure to consider all relevant aspects of Mr. Templeton's injuries warranted the revocation of the Medical Assessment Certificate. Consequently, the court ordered a re-examination to ensure a comprehensive and accurate evaluation of Mr. Templeton's conditions. This decision was pivotal in ensuring that Mr. Templeton's entitlements were correctly assessed and compensated.

Orders