Albright & Wilson (Australia) Limited v Bisson - [2023] NSWPICMP 618

DETERMINATION OF APPEAL PANEL
CITATION:	Albright & Wilson (Australia) Limited v Bisson [2023] NSWPICMP 618
APPELLANT:	Albright & Wilson (Australia) Pty Limited
RESPONDENT:	David Thomas Bisson
APPEAL PANEL
MEMBER:	Richard J Perrignon
MEDICAL ASSESSOR:	Alan Home
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	28 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (right upper extremity); whether the assessor erred in failing to use the contralateral left limb ‘as a baseline comparator’ in accordance with the Guidelines at 2.20; whether he failed to take into account an argument that such a comparator should be used; Held – Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Giles dated 23 April 2023.
He assessed a 23% whole person impairment (23% right upper extremity, 0% scarring) as a result of injury on 17 April 2018, when the worker injured his right thumb while pushing a high-pressure hose into a hose coupling in the course of his duties as a maintenance fitter. On 21 August 2018, he came to fusion of the carpometacarpal joint of the right thumb at the hands of Dr Kadir, involving right thumb trapeziectomy and suspension plasty.
The appellant submits that the Medical Assessor erred in his assessment of the right upper extremity only, by:
(a) failing to make a deduction for a pre-existing condition or abnormality pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998, by using the contralateral left limb ‘as a baseline comparator’ as did
Dr Breit, on whose assessment the insurer had relied;
(b) failing to explain why he made no deduction, and
(c) failing to take into account the report of independent orthopaedic surgeon Dr Breit dated 29 November 2022.
In accordance with the President’s referral, the Medical Assessor assessed the right upper extremity by reference to impairment of the right thumb, fingers and wrist. The parties agree that he erred when combining the various impairments together. They agree that, when accurately combined, these impairments amount to 29% upper extremity impairment in respect of the right hand, and 6% upper extremity impairment in respect of the right wrist, yielding 33% upper extremity impairment which converts to 20% whole person impairment, rather than the 23% assessed.
Nothing turns on it as, for the reasons given below, the Panel has referred the worker to one of its members for examination and assessment.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).

Submissions

The parties made written submissions which have been taken into account. The appellant’s submissions are summarised briefly above.
The respondent’s worker’s submissions are not repeated in full, but are summarised briefly below.
(a) in effect, Dr Breit assessed a 21% whole person impairment with respect to the right upper extremity and…

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 Albright & Wilson (Australia) Limited v Bisson 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 618
Decision Date: 28 November 2023

CaseChat Overview and Summary

In the matter of Albright & Wilson (Australia) Limited versus Bisson, the dispute centred on the assessment of the whole person impairment (WPI) related to the right upper extremity of the claimant. The case was heard in the relevant Australian court of appeal. The claimant, Bisson, sought a reassessment of the WPI, arguing that the original assessment did not correctly apply the relevant guidelines. Specifically, Bisson contended that the assessor had failed to use the contralateral left limb as a baseline comparator, as stipulated in the Guidelines at 2.20. Additionally, Bisson argued that the assessor overlooked the necessity to consider the contralateral limb in the assessment process.

The court was tasked with determining whether the assessor's omission constituted an error that warranted a reassessment of the WPI. The primary legal issue revolved around the proper application of the statutory guidelines in conducting the impairment assessment and whether the failure to use the contralateral limb as a comparator was a significant oversight. The court considered the statutory framework and the Guidelines in evaluating the assessor's methodology and the implications of the contralateral limb's role as a comparator. The court also examined whether the argument regarding the contralateral comparator was adequately presented and considered during the initial assessment.

The court found that the assessor indeed erred in not using the contralateral left limb as a baseline comparator, as mandated by the Guidelines. The court held that this failure to apply the guidelines correctly constituted a significant oversight that affected the accuracy of the WPI assessment. Consequently, the Medical Assessment Certificate was revoked and replaced. The court ordered that a new assessment be conducted in accordance with the correct application of the Guidelines, ensuring that the contralateral limb was appropriately considered in the evaluation of the right upper extremity impairment.

Orders