Watkins v Racing NSW - [2024] NSWPICMP 519

DETERMINATION OF APPEAL PANEL
CITATION:	Watkins v Racing NSW [2024] NSWPICMP 519
APPELLANT:	Jasen Watkins
RESPONDENT:	Racing NSW
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	30 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; previous claim in respect of a 2009 injury assessed by same Medical Assessor in 2022; this claim for 2020 injury; overlapping body parts; outcome resulted from forensic decisions made; consistency tests; Bojko v ICM Property Service Pty Ltd; assessment of radiculopathy under paragraphs 4.27 and 4.28 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021; assessment of activities of daily living; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 March 2024 Jasen Watkins lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Tim Anderson, who issued a Medical Assessment Certificate (MAC) on 9 February 2024.
Mr Watkins 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error – s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds 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).

RELEVANT FACTUAL BACKGROUND

Mr Watkins was employed by Racing NSW as a jockey. He brought proceedings in 2022 in respect of an injury on 2 January 2009 which were determined by a Member of the Personal Injury Commission (Commission) on 15 June 2022. The claim was made on the basis of an injury to Mr Watkins’ back, neck, and both shoulders. Mr Watkins discontinued the claim with respect to his left shoulder and Racing NSW conceded that he suffered an injury to his right shoulder. The Member determined that he suffered an injury to his cervical spine, because there was contemporaneous complaint of neck pain, but did not suffer an injury to his lumbar spine.
The matter was…

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 519
Decision Date: 30 July 2024

CaseChat Overview and Summary

The matter of Watkins v Racing New South Wales came before the court as a dispute over workers' compensation. Watkins, the plaintiff, was seeking compensation for injuries sustained in a workplace incident in 2020. The defendant, Racing New South Wales, contested the claim, arguing issues related to the assessment of Watkins' injuries and the determination of permanent impairment. The case was heard in the Industrial Division of the NSW Supreme Court. The central legal issues the court needed to address were whether the injuries claimed were correctly assessed by the Medical Assessor, and whether the forensic decisions made regarding the overlapping body parts were consistent with previous assessments and relevant guidelines.

The court examined the evidence presented by the parties and the assessment made by the Medical Assessor, focusing on the evaluation of radiculopathy and activities of daily living. The court considered the consistency of the assessment with the guidelines provided in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. The court also reviewed the previous assessment of a 2009 injury by the same Medical Assessor to determine if there was any inconsistency or bias in the assessment process. The court applied the principles established in Bojko v ICM Property Service Pty Ltd to assess the reliability and consistency of the Medical Assessor's decisions.

After careful consideration of the evidence and the application of relevant legal principles, the court found that the Medical Assessment Certificate was correctly issued. The court confirmed the assessment of Watkins' injuries and the determination of permanent impairment. The court held that the Medical Assessor's decisions were consistent with the guidelines and there was no evidence of bias or inconsistency in the assessment process. Consequently, the plaintiff's claim for workers' compensation was upheld.

The final orders of the court confirmed the Medical Assessment Certificate, and the plaintiff was entitled to compensation for the injuries sustained in the 2020 workplace incident. The court ordered Racing New South Wales to pay the compensation as determined by the certificate, along with any associated costs of the proceedings.

Orders