AFS Systems Pty Ltd v French - [2023] NSWPICMP 623

DETERMINATION OF APPEAL PANEL
CITATION:	AFS Systems Pty Ltd v French [2023] NSWPICMP 623
APPELLANT:	AFS Systems Pty Ltd
RESPONDENT:	Adam French
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Ross Mellick
DATE OF DECISION:	29 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Worker referred for assessment of whole person impairment (WPI) of the left upper extremity (including amputation and complex regional pain syndrome (CPRS)) and scarring as a result of the injury on 20 April 2020; Medical Assessor (MA) assessed 38% WPI (CPRS) and 1% scarring resulting in a total assessment of 39% WPI; the Panel was satisfied that the MA failed to carry out an assessment of CPRS in accordance with Table 17.1 of the Guidelines, this was a demonstrable error; worker re-examined and did not meet the criteria for CRPS under the Guidelines; Panel assessed 17% WPI in respect of the left upper extremity and 1% under TEMSKI, which resulted in a total of 18% WPI; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 August 2023 AFS Systems Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Mohammed Assem, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 July 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 ground(s) 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, Mr French (Mr French), sustained an injury to his left little finger when the finger was crushed within an industrial machine on 10 April 2020. The left little finger was partially amputated on 20 April 2020 and he then developed a consequential condition in the left shoulder.
On 17 May 2023 in a conciliation conference and arbitration before Principal Member John Harris, the parties entered into consent orders on the basis that Mr French be…

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.

Keep reading for free

Create a free CaseChat account to read AFS Systems Pty Ltd v French and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPICMP 623
Decision Date: 29 November 2023

CaseChat Overview and Summary

In the matter of AFS Systems Pty Ltd v French, the dispute arose from the assessment of whole person impairment (WPI) for a worker who sustained injuries to his left upper extremity, including an amputation and complex regional pain syndrome (CRPS), and scarring. The matter was heard in the Workers Compensation Court of Victoria. The primary issue before the court was whether the initial assessment of the worker's WPI was correctly performed in accordance with the relevant guidelines. The court had to determine if the Medical Assessor made a demonstrable error in assessing the WPI, particularly in relation to the CRPS component.

The court considered whether the Medical Assessor properly applied the criteria set out in Table 17.1 of the Guidelines for the Assessment of Permanent Impairment Due to Musculoskeletal Conditions. It was argued that the Assessor did not correctly evaluate the CRPS, leading to an overestimation of the WPI. The Panel concluded that there was a demonstrable error in the initial assessment, as the Assessor failed to properly consider the CRPS. After re-examining the worker, the Panel found that he did not meet the criteria for CRPS and assessed the WPI at 17% for the left upper extremity and 1% under TEMSKI, resulting in a total of 18% WPI.

The court held that the original Medical Assessment Certificate was flawed due to the demonstrable error in the assessment of CRPS. Consequently, the Panel revoked the original certificate and substituted it with a new assessment of 18% WPI. The court's decision provided clarity on the correct application of the Guidelines in assessing WPI, particularly in cases involving CRPS. The final orders included the revocation of the initial Medical Assessment Certificate and the issuance of a new certificate reflecting the corrected WPI assessment.

Orders