The Personal Injury Commission refuses an application for reconsideration

Background

On 12 June 2018, the worker suffered various injuries, including to her lumbar and cervical spines and both upper extremities when she tripped over a pallet and fell to the floor. Liability for the worker’s injuries was accepted.

The worker then contends she sustained Complex Regional Pain Syndrome (CRPS) as a result of the workplace injury of 12 June 2018.

Proceedings were commenced in the Personal Injury Commission (PIC). The matter was referred to a Medical Assessor, Dr Ian Meakin, (MA) for assessment of whole person impairment (WPI). He issued a Medical Assessment Certificate (MAC) on 10 March 2021 assessing the worker as having an 11% WPI.

On 25 March 2021, the worker lodged an appeal to a Medical Appeal Panel (MAP). On 2 July 2021, the MAP issued a decision, with reasons, confirming the medical treatment.

The worker sought a reconsideration of the Certificate of Determination (COD) issued by the PIC on 6 August 2021. The COD awarded her compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) reflecting an 11% whole person impairment (WPI).

 

The essence of the worker’s case was that a diagnosis of CRPS was now apparent, when such diagnosis was previously “in question”.

The grounds for reconsideration

The worker sought reconsideration of the COD on the following grounds:

  • The MAP did not have the relevant opportunity to assess the worker.
  • The MAP was somewhat constrained without that assessment and was required to rely upon the history and clinical findings of the MA who last assessed the worker on 22 February 2021.
  • The Panel should have an opportunity to assess the worker and determine as to whether she fulfils the diagnostic criteria for CRPS Type I or CRPS Type II.

Further, the worker sought to rely upon fresh medical evidence which was obtained after the issuing of the Appeal Panel Determination.

Issues in dispute

The issues raised were whether the Commission:

  • should, firstly, reconsider and set aside the COD under s 57;
  • second, refer the matter for reconsideration to the MA under s 329(1A) of the 1998 Act.
Sleiman v Gadalla
  • The Member referred to the case of Sleiman v Gadalla Pty Ltd [2021] (Sleiman), where the NSW Court of Appeal were asked to consider whether the worker could lodge a further appeal to the MAP on the grounds of deterioration.
  • The worker had appealed the MAC of 2% whole person impairment and the MAP found that the worker had 14% whole person impairment.
  • Two years later, the worker claimed that his condition had deteriorated, and sought another appeal.
  • The Court of Appeal found that that the worker did not have a further right of appeal but he was entitled to have the PIC reconsider the decision.

Why the reconsideration application failed

  • Whilst the worker submitted updated medical reports showing evidence of a CRPS diagnosis, it was submitted that the medical assessor conducted a thorough examination of the worker and the diagnostic criteria for CRPS was not satisfied.
  • However, the Member noted that it appears there is a subtle but significant difference in the present case; the appeal panel in Sleiman revoked the MA decision and thereafter made its own decision, so that the ultimate COD was based on the appeal decision.
  • In the present case, the MAP confirmed the MA decision, so that the COD is based on that decision.
  • It was determined that the medical reports served by the worker would not have been likely to lead to a different result. They were available to the MA at the time of his examination and these reports referred to a CRPS diagnosis without identifying a basis. The MA considered the diagnosis and rejected it on the basis of the evidence before him, including his findings on clinical examination.

Outcome

The Commission determined that the worker’s application for the Commission to reconsider and set aside the COD dated 6 August 2021 is declined.

The Commission determined that the worker’s application for this matter to be referred to the Medical Assessor for reconsideration under s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused and dismissed.

Conclusion

Where workers seek reconsideration of a COD on the ground of a deterioration, the additional medical evidence relied upon must show the basis for the deterioration, not simply a different diagnosis.
Post by Hicksons' Partner, Naomi Tancred and Solicitor, Ninorta Gabriel.
 

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