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Aatsco Pty Ltd v Summerfield

Aatsco Pty Ltd v Summerfield

Case [2022] NSWPICMP 298 20 July 2022

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DETERMINATION OF APPEAL PANEL
CITATION:	AATSCO Pty Ltd v Summerfield [2022] NSWPICMP 298
APPELLANT:	AATSCO Pty Ltd
RESPONDENT:	Gary Summerfield
APPEAL PANEL:	Member Paul Sweeney Medical Assessor Joseph Scoppa Medical Assessor Paul Niall
DATE OF DECISION:	20 July 2022
CATCHWORDS:	WORKERS COMPENSATION- Industrial deafness; employer’s appeal alleging error by the Medical Assessor (MA) in finding that worker’s noisy employment as a crane operator in Queensland was connected to the state of New South Wales (NSW) and in failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for the effect of that work; Held – the MA erred in finding that the work in Queensland was connected to NSW; on reassessment of Queensland employment, less than 12 months in total exposure of 40 years, Panel determines that it is appropriate to make a section 323 of the 1998 Act deduction; Medical Assessment Certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 April 2022, AATSCO Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Henley Harrison, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 30 March 2022.
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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
·        the assessment was made on the basis of incorrect criteria,
·        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.
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

Gary Summerfield (the respondent) is 71 years of age. During his working life, he has been employed as a greenkeeper, truck driver, and a crane operator. He states that he was exposed to loud industrial noise, particularly in the latter occupation.
The respondent says that he worked as a crane operator for various…

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.

Continue reading Aatsco Pty Ltd v Summerfield

Details

AGLC: AATSCO Pty Ltd v Summerfield [2022] NSWPICMP 298
Case: [2022] NSWPICMP 298
Decision Date: 20 July 2022

CaseChat Overview and Summary

Aatsco Pty Ltd has appealed a decision of the Medical Assessor (MA) regarding a workers compensation claim made by one of its employees, Mr Summerfield. Mr Summerfield alleged that his industrial deafness arose from his employment as a crane operator in Queensland, which was noisy. The dispute primarily centred around whether the MA had correctly identified that the employment was connected to New South Wales (NSW) and whether the MA should have made a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for the impact of that employment. The case was heard in the NSW Civil and Administrative Tribunal (NCAT).

The key legal issues before the tribunal were whether the MA had correctly determined that the employment in Queensland was connected to NSW, and if the MA should have applied a deduction under section 323 of the 1998 Act. The tribunal needed to examine the MA's findings and decide whether they were correct and whether the MA had properly applied the relevant legislation. The tribunal also needed to determine whether the MA's decision to not make a deduction under section 323 was appropriate given the evidence presented.

The tribunal found that the MA had erred in determining that the employment in Queensland was connected to NSW. The tribunal noted that the work in Queensland was for less than 12 months in total over a 40-year employment period, and therefore it was not appropriately connected to NSW. The tribunal also found that it was appropriate to make a deduction under section 323 of the 1998 Act, given the relatively short period of exposure to the noisy employment in Queensland. As a result, the tribunal confirmed the Medical Assessment Certificate, which included the appropriate deduction.

The tribunal's decision confirmed the Medical Assessment Certificate, which included the appropriate deduction under section 323 of the 1998 Act. The tribunal's determination that the MA had erred in finding the employment was connected to NSW and that a deduction under section 323 should be made, was upheld. This decision provides clarity for future workers compensation claims involving similar circumstances, ensuring that the MA's findings are properly assessed and that the correct legal principles are applied.

Orders