Wollongong City Council v Needham - [2024] NSWPICMP 680

DETERMINATION OF APPEAL PANEL
CITATION:	Wollongong City Council v Needham [2024] NSWPICMP 680
APPELLANT:	Wollongong City Council
RESPONDENT:	Tracey Jayne Needham
APPEAL PANEL
SENIOR MEMBER:	Kerry Haddock
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	24 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Worker sustained injury to her right lower extremity, left upper extremity, and scarring; Medical Assessor (MA) assessed permanent impairment at 17% which included assessment of left ulnar nerve damage; appellant appealed on the grounds that the MA had made a demonstrable error in assessing ulnar nerve condition in the respondent’s left arm as that was not part of the dispute identified by the parties; whether there was lack of procedural fairness as neither party had considered the issue and arguments; appeal upheld; Medical Appeal Panel (Panel) issued a new Medical Assessment Certificate (MAC) assessing the respondent’s permanent impairment at 12% after deduction of the assessment by the MA of impairment as a result of the respondent’s ulnar nerve condition; respondent sought judicial review of the Panel’s decision; the Court held that the Panel had erred in concluding that assessment of the respondent’s upper extremity should be limited to assessment of impairment after arthroplasty of the elbow, upper extremity motion impairment due to lack of flexion and extension of the elbow joint impairment due to lack of pronation and supination; the MA had to look for signs of nerve impairment on his examination and had to make a diagnosis that he then had to take into account in arriving at the respondent’s permanent impairment; the Court ordered that the matter be remitted to be considered by a differently constituted Panel; Needham v Wollongong City Council and Skates v Hills Industries Ltd considered; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 June 2023, Wollongong City Council (the appellant/the Council) lodged an Application to Appeal Against the Decision of a Medical Assessor.
The medical dispute had been assessed by Dr Yiu-Key Ho, who issued a Medical Assessment Certificate (MAC) on 11 May 2023.
The Medical Assessor assessed the respondent’s (Ms Needham’s) whole person impairment (WPI) as 17%. The assessment comprised 3% WPI as a result of injury to the respondent’s right lower extremity and 14% WPI (including scarring/TEMSKI) as a result of injury to the respondent’s left upper extremity.
The matter proceeded through the appeal process to an Appeal Panel (the original Appeal Panel).
On 25 August 2023, the original Appeal Panel issued a Statement of Reasons for Decision of the Appeal Panel in Relation to a Medical Dispute (the Statement of Reasons).
The original Appeal Panel agreed with the appellant that the Medical Assessor made a demonstrable error in assessing impairment (ulnar nerve condition in the left arm) that was not part of the dispute identified by the parties; and it was unfair for the Medical Assessor to treat the ulnar nerve condition in the respondent’s left arm as resulting from the incident on 26 January 2020 without putting the issue to the…

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 680
Decision Date: 24 September 2024

CaseChat Overview and Summary

The Wollongong City Council was the appellant, and Ms. Lisa Needham was the respondent in a workers' compensation dispute. Ms. Needham had sustained injuries to her right lower extremity, left upper extremity, and had scarring. The Medical Assessor evaluated her permanent impairment at 17%, including an assessment of left ulnar nerve damage. The appellant challenged this assessment, arguing that the Medical Assessor had made a demonstrable error in assessing the ulnar nerve condition in Ms. Needham's left arm, as this condition was not part of the dispute identified by the parties. The appellant also argued that there was a lack of procedural fairness since neither party had considered the issue and arguments. The appeal was upheld, and a new Medical Assessment Certificate was issued by the Medical Appeal Panel, assessing Ms. Needham's permanent impairment at 12%, after deducting the assessment by the Medical Assessor of impairment as a result of the ulnar nerve condition. Ms. Needham sought judicial review of the Panel’s decision.

The legal issues before the court were whether the Medical Assessor had made a demonstrable error in assessing the ulnar nerve condition in Ms. Needham's left arm, and whether there was a lack of procedural fairness as neither party had considered the issue and arguments. The court held that the Panel had erred in concluding that the assessment of Ms. Needham's upper extremity should be limited to the assessment of impairment after arthroplasty of the elbow, upper extremity motion impairment due to lack of flexion and extension of the elbow joint, and impairment due to lack of pronation and supination. The court held that the Medical Assessor had to look for signs of nerve impairment on his examination and had to make a diagnosis that he then had to take into account in arriving at Ms. Needham's permanent impairment.

The court found that the Medical Appeal Panel had erred in its decision and remitted the matter to be considered by a differently constituted Panel. The court held that the Medical Assessor had to look for signs of nerve impairment on his examination and had to make a diagnosis that he then had to take into account in arriving at Ms. Needham's permanent impairment. The court found that the Panel had erred in concluding that the assessment of Ms. Needham's upper extremity should be limited to the assessment of impairment after arthroplasty of the elbow, upper extremity motion impairment due to lack of flexion and extension of the elbow joint, and impairment due to lack of pronation and supination. The court ordered that the matter be remitted to be considered by a differently constituted Panel.

The final orders of the court were that the matter be remitted to be considered by a differently constituted Panel. The court held that the Panel had erred in concluding that the assessment of Ms. Needham's upper extremity should be limited to the assessment of impairment after arthroplasty of the elbow, upper extremity motion impairment due to lack of flexion and extension of the elbow joint, and impairment due to lack of pronation and supination. The court held that the Medical Assessor had to look for signs of nerve impairment on his examination and had to make a diagnosis that he then had to take into account in arriving at Ms. Needham's permanent impairment. The court ordered that the matter be remitted to be considered by a differently constituted Panel.

Orders