Apollo Window Blinds Pty Ltd v Callus - [2023] NSWPICMP 288

DETERMINATION OF APPEAL PANEL
CITATION:	Apollo Window Blinds Pty Ltd v Callus [2023] NSWPICMP 288
APPELLANT:	Apollo Window Blinds Pty Limited
RESPONDENT:	Michael Callus
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	10 May 2023
DATE OF amendment:	22 June 2023
CATCHWORDS:	wORKERS cOMPENSATION - Lead assessor mistakenly certifies all body parts/systems referred for assessment without reference to Medical Assessment Certificate (MAC) of non-lead assessor who certified body parts referred to him for assessment had not reached maximum medical improvement (MMI); conflicting MACs issued by two assessors; Aircons Pty Ltd v Registrar considered; re-examination by member of Panel of all body parts; Held – both MACs revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 October 2022, Apollo Window Blinds Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Cyril Wong, a Medical Assessor (MA) as lead assessor and Dr Mark Burns, an MA. Dr Wong issued a Medical Assessment Certificate (MAC) on 13 September 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):
· 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 grounds 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

Michael Callus (the respondent) was formerly employed by the appellant as a branch manager at its premises at Silverwater. On 2 November 2018, he suffered a right inguinal hernia when lifting a bundle of blinds in the course of his employment. He sought treatment from his general practitioner (GP), Dr Chow, who referred him to a general surgeon, Dr Thomas Oh.
On 10 December 2018, Dr Oh carried out a laparoscopic mesh repair of the right inguinal hernia at Westmead Private Hospital. The respondent continued to experience symptoms in his right groin and leg following surgery. He was diagnosed with a deep vein thrombosis (DVT) and a right lower lobe pulmonary embolism.
In March 2019, 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.

Continue reading Apollo Window Blinds Pty Ltd v Callus

Details

AGLC: Apollo Window Blinds Pty Ltd v Callus [2023] NSWPICMP 288
Case: [2023] NSWPICMP 288
Decision Date: 10 May 2023

CaseChat Overview and Summary

The case of Apollo Window Blinds Pty Ltd v Callus involved a dispute regarding workers compensation and the certification of medical assessments. The primary issue was the conflicting certification of body parts and systems for assessment by two medical assessors. The court was required to determine the appropriate course of action in light of these conflicting assessments.

The legal issues before the court centred on the interpretation and application of the relevant workers compensation laws. Specifically, the court had to consider whether the lead assessor had acted appropriately in certifying all body parts and systems for assessment without reference to the Medical Assessment Certificate (MAC) of the non-lead assessor. The non-lead assessor had certified that the body parts referred to him had not reached maximum medical improvement (MMI). The case of Aircons Pty Ltd v Registrar was cited as relevant authority, which provided guidance on the handling of conflicting MACs issued by different assessors.

The court found that the lead assessor had erred in certifying all body parts and systems for assessment without reference to the non-lead assessor's MAC. The court emphasised the importance of considering the non-lead assessor's certification, particularly in cases where the body parts referred to him had not reached MMI. The court revoked both MACs and ordered a re-examination by a member of the Panel of all body parts, in accordance with the principles established in Aircons Pty Ltd v Registrar. A new MAC was subsequently issued.

The final orders of the court included the revocation of the conflicting MACs and the direction for a re-examination by a member of the Panel of all body parts, followed by the issuance of a new MAC. This decision underscores the importance of adhering to the proper procedures in workers compensation cases, particularly in relation to the certification of medical assessments.

Orders