Elena Martinez v Paraplegic & Quadriplegic Association of NSW [2019] NSWWCCMA 111 (13 August 2019)

Summary

This case concerns a decision by the Medical Appeal Panel (‘MAP’) of the Workers Compensation Commission in relation to an appeal against the decision of an Approved Medical Specialist (AMS). The MAP determined that the decision of the AMS should be revoked because the AMS failed to provide sufficient reasons for his decision. There was also consideration of whether the AMS had adequately considered all of the available medical evidence.

Background

The worker was employed as a personal carer. On 22 November 2015, the worker suffered an injury to her right shoulder while assisting another carer to move a patient to a position higher up on a bed.

Following her work injury, the worker fell in an unrelated incident at Aldi on 21 January 2018, which aggravated the pain in her shoulder.

The worker made a claim for lump sum compensation in respect of her work injury and was referred to an AMS who assessed her total permanent impairment at 19% WPI.

However, the AMS attributed only 10% WPI to the work injury. The AMS provided his reasons for this as follows:

“She has a significantly reduced range of motion which is less than that found following the operation and in subsequent reviews, prior to the fall on 21/01/2018.
Therefore, impairment attributable to injury 22/11/2015 = 10% WPI.”

The worker filed an Application to Appeal against the decision of the AMS on the grounds that the AMS had failed to provide adequate reasons explaining why he attributed only 10% WPI to the injury on 22 November 2015. The worker further alleged that the AMS had failed to consider all of the available medical evidence and had made assumptions that were not sustainable given the whole of the evidence.

Decision

The MAP agreed with the submission that the AMS had failed to provide adequate reasons for why he assessed 19% WPI but only attributed 10% WPI to the work injury.

The AMS was found to have disregarded a number of medical opinions to the effect that the deterioration of the worker’s condition was a result of her work injury (as distinct from the fall in January 2018).

Overall, the MAP agreed with the AMS’ assessment of 19% WPI. However, the MAP considered that the appropriate deduction to be applied to take account of the impairment not related to the work injury was one-fifth (being attributable to pre-existing degenerative changes, rather than the incident on 21 January 2018). This resulted in the assessment of permanent impairment attributable to the work injury being determined as 15% WPI so that the Medical Assessment Certificate was ordered to be revoked and a new Medical Assessment Certificate issued in its place.

Implications

This decision underscores the obligations of an AMS, which include giving adequate consideration to all of the available medical evidence and providing satisfactory reasons for their findings.