Woolworths Group Limited v Whittaker - [2022] NSWPICMP 110

DETERMINATION OF APPEAL PANEL
CITATION:	Woolworths Group Limited v Whittaker [2022] NSWPICMP 110
APPELLANT:	Woolworths Group Limited
RESPONDENT:	Janelle Margaret Whittaker
APPEAL PANEL:	Member Paul Sweeney Dr John Brian Stephenson Dr Tommasino Mastroianni
DATE OF DECISION:	10 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Employer’s appeal against failure of the Medical Assessor (MA) to make a deduction for a pre-existing condition pursuant to section 323 (1) of the Workplace Injury Management and Workers Compensation Act 1998 in respect of whole person impairment (WPI) resulting from total replacement of worker’s osteoarthritic right knee; worker had a long history of right knee problems including two significant surgical procedures and a diagnosis of osteoarthritis before performing the work tasks which aggravated her knee; Held- that the MA had erred in not engaging with this medical history and in failing to make a deduction to reflect pre-existing osteoarthritis; determined that the worker’s employment and her pre-existing condition contributed equally to her WPI; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 December 2021, Woolworths Group Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 November 2021.
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 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.
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 the PIC Rules.
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).

RELEVANT FACTUAL BACKGROUND

Janelle Margaret Whittaker (the respondent) has a long history of problems with her right knee. According to her initial signed statement of 18 July 2018, she dislocated that knee when she was 19 years of age while working at Flemings. In September 1997, she underwent a right patella-femoral reconstruction under Dr David Wood. In June 2006, she fell at home and tore a meniscus in her right knee. The respondent says that she underwent arthroscopic surgery following that incident. She states that following the surgery she had “no ongoing problems until my work-related right knee injury”.
The respondent has also experienced difficulty with her feet…

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: [2022] NSWPICMP 110
Decision Date: 10 May 2022

CaseChat Overview and Summary

In the case of Woolworths Group Limited v Whittaker, the central issue revolved around the employer's appeal concerning the failure of the Medical Assessor (MA) to account for a pre-existing condition of the worker, Ms. Whittaker, under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998. Ms. Whittaker, a former employee, had undergone total replacement of her osteoarthritic right knee, a condition that predated her employment and involved a history of knee problems, significant surgical procedures, and a diagnosis of osteoarthritis. The employer argued that the MA's decision to not make a deduction for the pre-existing condition when determining the whole person impairment (WPI) was erroneous.

The court was tasked with determining whether the MA had properly considered Ms. Whittaker's pre-existing condition and whether there was an obligation to make a deduction in the assessment of WPI. The legal issue was whether the pre-existing osteoarthritis should have been factored into the assessment, thereby reducing the compensation payable. The court had to weigh the contribution of the worker's employment and her pre-existing condition to the WPI, and ascertain if the MA's approach was consistent with the statutory provisions.

In its reasoning, the court found that the MA had failed to engage with Ms. Whittaker's medical history and had not appropriately made a deduction for the pre-existing osteoarthritis. The court determined that the worker's employment and her pre-existing condition contributed equally to the WPI. Consequently, the court concluded that the MA's assessment was flawed, and the Medical Assessment Certificate was revoked. The court's decision underscores the importance of a comprehensive evaluation of a worker's medical history when assessing WPI under the Act.

Orders