Wolper Jewish Hospital v Bohlock - [2023] NSWPICMP 347

DETERMINATION OF APPEAL PANEL
CITATION:	Wolper Jewish Hospital v Bohlock [2023] NSWPICMP 347
APPELLANT:	Wolper Jewish Hospital
RESPONDENT:	Lee-Anne Elke Bohlock
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	21 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor (MA) erred by assessing respondent’s impairment due to scarring as 4% whole person impairment (WPI); Appeal Panel found (MA) did not err as his findings relating to the features of the appellant’s scars were best reflected by the criteria in Table 14.1 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 for 3-4% WPI; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 May 2023 the appellant, Wolper Jewish Hospital, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 April 2023.
The appellant 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, 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 (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

The appellant employed the respondent, Lee-Anne Elke Bohlock, as a nurse from around 2012. On 9 September 2017, Ms Bohlock caught her left foot on a food trolley, whilst performing her duties, causing her to trip and fall. The fall caused pain in her left foot. She continued to work her shift and her shifts over the ensuing few weeks but with increasing symptoms in her left ankle and achilles tendon area. Her general practitioner (GP) referred her for an ultrasound of her left ankle which revealed a partial tear of her achilles tendon. She was initially treated conservatively with physiotherapy and an injection of steroid. That did not relieve her symptoms.
In January 2018 she consulted orthopaedic surgeon Dr Andrew Wines who carried out a percutaneous debridement of her…

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: [2023] NSWPICMP 347
Decision Date: 21 July 2023

CaseChat Overview and Summary

In the case of Wolper Jewish Hospital v Bohlock, the dispute centred on the assessment of the respondent's impairment due to scarring by a Medical Assessor. The appeal was heard and determined by the New South Wales Court of Appeal. The respondent challenged the accuracy of the Medical Assessor's assessment, which determined that his scarring resulted in a 4% whole person impairment (WPI). The appeal panel was tasked with reviewing the correctness of this assessment.

The central legal issue before the court was whether the Medical Assessor had erred in his assessment of the respondent's impairment. The appeal panel examined the criteria set out in Table 14.1 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, dated 1 March 2021. The panel had to determine if the findings of the Medical Assessor regarding the features of the respondent's scars accurately reflected the criteria for a 3-4% WPI. The panel concluded that the Medical Assessor's findings aligned with the relevant criteria, and thus, the assessment was correct.

The court, in its reasoning, confirmed that the appeal panel's decision was well-founded. The panel's analysis of the scarring features in relation to the guidelines demonstrated that the Medical Assessor's assessment was not erroneous. The court upheld the findings of the appeal panel, which led to the confirmation of the Medical Assessment Certificate. The appeal was dismissed, and the assessment of 4% WPI was upheld as accurate.

The final orders of the court confirmed the appeal panel's decision and maintained the Medical Assessment Certificate. The respondent's appeal against the Medical Assessor's assessment was dismissed, and the 4% WPI rating due to scarring was affirmed.

Orders