Woolworths Group Limited v Kirkby - [2023] NSWPICMP 388

DETERMINATION OF APPEAL PANEL
CITATION:	Woolworths Group Limited v Kirkby [2023] NSWPICMP 388
APPELLANT:	Woolworths Group Limited
RESPONDENT:	Michelle Kirkby
Appeal Panel
MEMBER:	John Isaksen
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	11 August 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether the Medical Assessor (MA) complied with the requirements of Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) to meet the criteria for Complex Regional Pain Syndrome (CRPS); whether the MA disclosed a path of reasoning for a diagnosis of CRPS; reference to Elsworthy v Forgacs Engineering, Windley v Workers Compensation Nominal Insurer and Turner v Truss-T-Frame Timbers; Held – the MA properly met the strict and demanding requirements of Chapter 17 of the Guidelines for an assessment of permanent impairment for CRPS; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 30 May 2023, the appellant employer, Woolworths Group Limited, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 May 2023.
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 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

The respondent worker, Michelle Kirkby, sustained an injury to her right hand, in particular the little and ring fingers of that hand, while employed as a night filler with the appellant employer, Woolworths Group Limited at its Penrith store on 23 July 2018.
The respondent lost her balance when stepping onto a pallet to remove some cartons and she fell forward. She attempted to break her fall by putting her hands out in front of her and suffered a hyperextension injury to the right hand when that hand was bent back on the edge of a carton.
Dr Yeoh performed a…

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 388
Decision Date: 11 August 2023

CaseChat Overview and Summary

The case of Woolworths Group Limited versus Kirkby dealt with an assessment of permanent impairment, specifically whether a Medical Assessor (MA) complied with the necessary guidelines to diagnose Complex Regional Pain Syndrome (CRPS). The dispute was heard in the New South Wales Civil and Administrative Tribunal (NCAT). Kirkby, the claimant, contested the MA's assessment, arguing that the MA did not adhere to the strict requirements outlined in Chapter 17 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, dated 1 March 2021, nor did the MA provide a clear path of reasoning for the diagnosis of CRPS.

The legal issues before the tribunal involved whether the MA's assessment met the criteria set by the Guidelines for diagnosing CRPS and whether the MA disclosed a path of reasoning that was transparent and justifiable. The tribunal considered precedent cases such as Elsworthy v Forgacs Engineering, Windley v Workers Compensation Nominal Insurer, and Turner v Truss-T-Frame Timbers, which highlighted the importance of following established guidelines and the necessity for clear disclosure of the reasoning process in medical assessments. The tribunal's task was to determine whether these criteria were met and whether the Medical Assessment Certificate should be confirmed.

The tribunal found that the MA had properly adhered to the strict and demanding requirements of Chapter 17 of the Guidelines. The MA's assessment was thorough and complied with the necessary procedural steps to diagnose CRPS. Furthermore, the reasoning provided by the MA was deemed adequate and transparent, aligning with the principles established in the precedent cases. Consequently, the tribunal confirmed the Medical Assessment Certificate, upholding the MA's diagnosis and the assessment of permanent impairment for CRPS. The tribunal's decision was based on the MA's compliance with the Guidelines and the satisfactory disclosure of the reasoning process.

Orders