Allen v Dux Manufacturing Pty Ltd - [2023] NSWPICMP 75

DETERMINATION OF APPEAL PANEL
CITATION:	Allen v Dux Manufacturing Pty Ltd [2023] NSWPICMP 75
APPELLANT:	Louis Allen
RESPONDENT:	Dux Manufacturing Pty Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Paul Curtin
MEDICAL ASSESSOR:	Michael Long
DATE OF DECISION:	7 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Rehearing following Supreme Court remittal; appeal from 4% whole person impairment (WPI) assessment for hernia and left leg thrombosis; whether adequate reasons given; whether incorrect criteria applied as to classification; Held – Medical Assessor failed to adequately explain his reasons; appellant re-examined; Medical Assessment Certificate revoked and fresh certificate for 5% WPI issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 February 2022 Harrison AsJ in Louis Allen v Dux Manufacturing Pty Ltd [2022] NSWSC 158 quashed the decision of an Appeal Panel dated 19 July 2021 and the matter has been remitted to the present Appeal Panel. We are accordingly required to consider the same case de novo.
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, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

Relevant factual background

The appellant worker, Mr Allen, appeals from the Medical Assessment Certificate of Approved Medical Specialist (AMS) Dr Crane, dated 4 November 2020.
On 27 March 2007, Mr Allen suffered a paraumbilical hernia at work. After coming to surgical repair at Bowral Hospital, he suffered thrombosis in the left lower extremity, which was treated conservatively.
The AMS assessed a 4% WPI (4% left lower extremity, 0% digestive system, and 0% scarring) as a result of injury on 27 March 2007. In doing so, he assessed a class 1 impairment in respect of the left lower extremity, and in respect of the digestive system found that rectal bleeding did not result from injury on 27 March 2007.
Mr Allen appeals from the assessment:
(a) of the left lower extremity, on the basis that his symptoms were inconsistent with a class 1 impairment and consistent with a class 2 impairment, and
(b) of the digestive system, on the basis that the AMS should have been satisfied that rectal bleeding resulted from injury.
No error is alleged in respect of the assessment of scarring.
On 27 January 2021, the…

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.

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Details

Case: [2023] NSWPICMP 75
Decision Date: 7 March 2023

CaseChat Overview and Summary

Allen brought an appeal against a 4% whole person impairment (WPI) assessment for a hernia and left leg thrombosis, following a remittal by the Supreme Court. The respondent, Dux Manufacturing Pty Ltd, was involved in the dispute. The matter was heard in the relevant Australian court.

The legal issues centred on whether the Medical Assessor provided adequate reasons for the WPI assessment and if the correct criteria were applied in classifying the impairment. The appellant argued that the Medical Assessor did not sufficiently explain the basis for the assessment and that the criteria used were incorrect.

The court found that the Medical Assessor failed to adequately explain the reasons for the WPI assessment. Consequently, the appellant was re-examined, leading to the revocation of the initial Medical Assessment Certificate. A fresh certificate was issued, awarding a 5% WPI.

The court's decision led to the original assessment being overturned, and a new certificate was issued reflecting a higher percentage of impairment. This outcome underscored the importance of providing clear and adequate reasons for medical assessments in workers' compensation cases.

Orders