Willoughby City Council v Lu - [2023] NSWPICMP 162

DETERMINATION OF APPEAL PANEL
CITATION:	Willoughby City Council v Lu [2023] NSWPICMP 162
APPELLANT:	Willoughby City Council
RESPONDENT:	Xiao Chun Lu
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	27 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment pursuant to section 323(2) from finding of 19% whole person impairment (WPI); whether finding by Medical Assessor (MA) that claimant had a pre-existing condition in face of the claimant’s denials relevant to assessment; Held – the claimant had denied any pre-existing condition to the experts concerned with her case, but contemporaneous records demonstrated that the claimant was being treated for a condition acquired in similar circumstances just one month prior to her commencing with the subject employer; MA found that the pre-existing condition had been relapsed and exacerbated by the subject injury but did not explain why he ignored this finding in calculating the 1/10th deduction; Ferguson v State of NSW, Cole v Wenaline P/L and Yang v Industrie Clothing considered and applied; Medical Assessment Certificate revoked and 30% deduction substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 November 2022 Willoughby City Council, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 October 2022.
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 13 April 2022 Consent Orders were entered into and on 2 September 2022 the matter was referred to the Medical Assessor for assessment of WPI caused by psychological injury deemed to have occurred on 11 February 2020.
Ms Lu was an After-School Care Educator and commenced with the appellant…

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.

Keep reading for free

Create a free CaseChat account to read Willoughby City Council v Lu and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPICMP 162
Decision Date: 27 April 2023

CaseChat Overview and Summary

The case of Willoughby City Council v Lu involved a dispute over the assessment of a worker's compensation claim following an injury sustained in the course of employment. The matter was brought before the Court of Appeal, with the council appealing an assessment that concluded the claimant had suffered a 19% whole person impairment (WPI). The crux of the appeal was the decision by the Medical Assessor (MA) to account for a pre-existing condition in the claimant, despite her explicit denials to the contrary. The council contended that the MA should not have factored in the pre-existing condition in the assessment of the WPI.

The legal issue before the court was whether the MA was correct in law to consider the pre-existing condition in calculating the WPI. The claimant had denied any pre-existing condition to the experts involved in her case, but the court found that contemporaneous records showed she was being treated for a condition arising from similar circumstances just a month before starting with the subject employer. The MA found that the pre-existing condition had relapsed and been exacerbated by the subject injury, but failed to adequately explain why this finding did not affect the calculation of the WPI. The court considered previous cases such as Ferguson v State of NSW, Cole v Wenaline P/L and Yang v Industrie Clothing to determine the correct approach to such findings in WPI assessments.

The court held that the MA had erred in law by not applying the findings regarding the pre-existing condition to the WPI assessment. The contemporaneous records clearly indicated the presence of a condition that was relevant to the claimant's current injury, and the MA’s failure to adjust the WPI calculation accordingly was a significant error. The court revoked the original Medical Assessment Certificate and substituted a 30% deduction, reflecting the proper consideration of the pre-existing condition in the WPI assessment. This decision underscores the importance of accurate and comprehensive assessments in workers' compensation claims.

Orders