The Westhaven Association v Heycox - [2022] NSWPICMP 37

DETERMINATION OF APPEAL PANEL
CITATION:	The Westhaven Association v Heycox [2022] NSWPICMP 37
APPELLANT:	The Westhaven Association
RESPONDENT:	Kylie Ann Heycox
APPEAL PANEL:	Member Carolyn Rimmer Dr David Crocker Dr Drew Dixon
DATE OF DECISION:	8 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Worker injured her lumbar spine; Medical Assessor assessed 25% whole person impairment of the lumbar spine and applied a one tenth deduction for prior injury and pre-existing condition; whether a one tenth deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was manifestly too low given the evidence in the matter; Held- by the Panel that a deduction of one tenth was open to the Approved Medical Specialist on the evidence; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 January 2022 The Westhaven Association (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 December 2021.
The respondent to the appeal is Kylie Ann Heycox (Ms Heycox).
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.
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 reissued on1 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 Heycox sustained an injury to her lumbar spine on 27 February 2000 in the course of her employment as a personal care assistant when she was pushed by a patient and her back impacted against the corner of a bench.
The matter was referred to the MA, Dr Tim Anderson, on 24 June 2021 for assessment of person impairment of the lumbar spine and scarring (TEMSKI) in a threshold dispute as to the degree of permanent impairment.
The MA examined Ms Heycox on 22 November 2021 and assessed 25% WPI in respect of the lumbar spine. The MA made a deduction of one-tenth pursuant to s 323 of the 1998 Act. Therefore, the total WPI was assessed as 23% WPI as a result of the injury on 27 February 2000.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original…

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.

Continue reading The Westhaven Association v Heycox

Details

AGLC: The Westhaven Association v Heycox [2022] NSWPICMP 37
Case: [2022] NSWPICMP 37
Decision Date: 8 March 2022

CaseChat Overview and Summary

In the case of The Westhaven Association v Heycox, the parties involved were the Westhaven Association, as the insurer, and Heycox, the worker who claimed workers compensation. Heycox had injured her lumbar spine in the course of her employment, and the matter before the court was to determine the extent of her impairment and the appropriate compensation. The decision was made by a panel within the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues at the heart of the case centred on the assessment of Heycox's whole person impairment of the lumbar spine by the Medical Assessor, who determined a 25% impairment. The assessor applied a one tenth deduction to this percentage, considering Heycox's prior injury and pre-existing condition. The dispute was whether this one tenth deduction was manifestly too low, given the evidence presented in the matter. Specifically, the Panel needed to determine if the deduction was reasonable in light of the statutory provisions and the medical evidence.

In examining the evidence, the Panel found that the deduction of one tenth was within the range that the Approved Medical Specialist could reasonably apply. The Panel reviewed the statutory provisions under the Workplace Injury Management and Workers Compensation Act 1998, particularly section 323, which allows for deductions based on prior injuries and pre-existing conditions. The Panel concluded that the deduction was consistent with the medical evidence and the statutory framework. As a result, the Panel upheld the Medical Assessment Certificate and confirmed the one tenth deduction.

The final orders of the Panel were to confirm the Medical Assessment Certificate, which determined a 25% whole person impairment of the lumbar spine with a one tenth deduction for prior injury and pre-existing condition. The Panel's decision effectively resolved the dispute in favour of the Westhaven Association, maintaining the assessment as determined by the Medical Assessor.

Orders