Albury City Council v Mitchell - [2023] NSWPICMP 688

DETERMINATION OF APPEAL PANEL
CITATION:	Albury City Council v Mitchell [2023] NSWPICMP 688
APPELLANT:	Albury City Council
RESPONDENT:	Jan Mitchell
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	20 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether deduction of one quarter Medical Assessor (MA) made under section 323(1) was an error and based on the application of incorrect criteria; Appeal Panel held MA made assessment based on correct criteria and deduction he made under section 323(1) was open to be made for reasons MA explained and was therefore not an error; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 September 2023 Albury City Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 September 2023.
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):
· 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 (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

Jan Mitchell, the respondent, is employed by the appellant as a vegetation management officer. On 1 May 2015 she was required to inspect the Nail Can Hill Reserve in Albury. This required her to walk down a steep slope. While doing so she slipped on a rock which caused her legs to give way. She felt a “pop” in her right knee and immediate pain.
An X-ray and an MRI scan of her right knee were done on 6 May 2015. The impression of the radiologist who reported on the MRI scan was:
“1. Tear in the body of the medial meniscus and slight outward extrusion of tile medial meniscus noted. Minimal tricompartmental osteoarthritic change is identified. A moderate sized joint effusion is noted.
Cruciate ligaments are intact.
2. Likely benign 8mm lesion metaphysis lateral…

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 Albury City Council v Mitchell 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 688
Decision Date: 20 December 2023

CaseChat Overview and Summary

The case of Albury City Council v Mitchell involved the Albury City Council appealing a decision made by a Medical Assessor (MA) under the Workplace Injury Management and Workers Compensation Act 1998. The Council sought to challenge the MA's assessment of a worker's entitlement to compensation, arguing that the deduction made by the MA was an error and based on incorrect criteria. The dispute reached the court as the Council aimed to overturn the Appeal Panel's decision that upheld the MA's assessment.

The primary legal issue the court had to decide was whether the MA's deduction of one quarter of the worker's compensation under section 323(1) of the Act was an error, and if the assessment was based on the correct criteria. The Council argued that the MA had applied incorrect criteria in making the deduction, and thus the deduction was not valid. The court had to assess the MA's reasoning and the criteria applied to determine the validity of the deduction and whether it was open to the MA to make such a deduction.

In its decision, the court examined the evidence and reasoning provided by the MA and concluded that the MA had indeed applied the correct criteria in making the assessment. The court found that the MA's explanation for the deduction was reasonable and in line with the legislative provisions. The Appeal Panel's decision that the MA's assessment was valid was upheld, and the court found that the deduction made under section 323(1) was open to be made for the reasons explained by the MA. Consequently, the Council's appeal was dismissed, and the Medical Assessment Certificate was upheld.

The final outcome of the case was that the Appeal Panel's decision to uphold the MA's assessment and the Medical Assessment Certificate was maintained. The court found that the MA's assessment and the deduction made were valid and based on the correct criteria, and therefore, the Council's appeal was dismissed. The decision underscored the importance of correctly applying the criteria in making assessments under the Workplace Injury Management and Workers Compensation Act 1998.

Orders