Windley v Athena Bakehouse Pty Limited - [2021] NSWPICMP 229

DETERMINATION OF APPEAL PANEL
CITATION:	Windley v Athena Bakehouse Pty Limited [2021] NSWPICMP 229
APPELLANT:	Damien Windley
RESPONDENT:	Athena Bakehouse Pty Limited
APPEAL PANEL:	Member Catherine McDonald Dr David Crocker Dr Drew Dixon
DATE OF DECISION:	2 December 2021
CATCHWORDS:	WORKERS COMPENSATION- Complex regional pain syndrome; remittal from Supreme Court in Windley v Workers Compensation Nominal Insurer; failure to consider Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 was a failure to provide sufficient reasons; Held - Approved Medical Specialist erred in failing to explain in detail why he differed from other reports when his opinion was so different; re-examination; Medical Assessment Certificate revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 November 2020 Damien Windley lodged an Application to Appeal Against the Decision of an Approved Medical Specialist (AMS). The medical dispute was assessed by Dr Yiu-Key Ho, an AMS under the legislation then in force, who issued a Medical Assessment Certificate (MAC) on 23 October 2020.
Mr Windley 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,
· the MAC contains a demonstrable error.
The delegate was 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 grounds of appeal on which the appeal is made.
The WorkCover Medical 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 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).
Because Dr Ho was an AMS at the time he prepared the MAC, we have continued to refer to him as the AMS in these reasons.

RELEVANT FACTUAL BACKGROUND

Mr Windley was employed by Athena Bakehouse Pty Limited (Athena) when he suffered an injury to his right wrist on 27 March 2015. He was pulling a heavy tray of hot cross buns from a high rack in an oven when his wrist gave way.
Mr Windley was treated by an orthopaedic surgeon and an occupational physician. He was referred to Dr K E Khor, a pain management specialist, whom he saw for the first time on 19 May 2016. Dr Khor diagnosed complex regional pain syndrome type 1 (CRPS). In September 2016, Dr Khor recommended a cervical epidural spinal cord stimulator.
Mr Windley made a claim for permanent…

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: [2021] NSWPICMP 229
Decision Date: 2 December 2021

CaseChat Overview and Summary

In Windley v Athena Bakehouse Pty Limited, the applicant, Windley, sought a review of a decision of the Workers Compensation Notional Insurer, which had determined that he was not entitled to a Medical Assessment Certificate (MAC) due to a lack of permanent impairment. Windley claimed that he suffered from complex regional pain syndrome, a condition that he alleged arose from his employment with Athena Bakehouse Pty Limited. The case was heard in the NSW Civil and Administrative Tribunal (NCAT), which had appellate jurisdiction from the decision of the Workers Compensation Notional Insurer.

The legal issues before the Tribunal were whether the Approved Medical Specialist (AMS) had provided sufficient reasons for differing from other reports, and whether the failure to consider Table 17.1 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, constituted a failure to provide sufficient reasons. The Tribunal needed to determine if the AMS had erred in not explaining in detail why his opinion was so different from other reports and if this constituted a failure to provide sufficient reasons. Additionally, the Tribunal had to consider if the re-examination of Windley was warranted and if the revocation of the MAC was appropriate.

The Tribunal found that the AMS had failed to provide sufficient reasons for his differing opinion, particularly in light of the significant difference in his assessment compared to other reports. The Tribunal held that the failure to consider Table 17.1 was a failure to provide sufficient reasons, as it was a relevant guideline that should have been taken into account. The Tribunal determined that the AMS had erred in not explaining in detail why his opinion was so different, and this constituted a failure to provide sufficient reasons. As a result, the Tribunal ordered a re-examination of Windley and revoked the MAC.

Orders