Aquilina v Secretary, Department of Transport

[2022] NSWPICMP 460

DETERMINATION OF APPEAL PANEL
CITATION:	Aquilina v Secretary, Department of Transport [2022] NSWPICMP 460
APPELLANT:	David Aquilina
RESPONDENT:	Secretary, Department of Transport
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Brian Noll
DATE OF DECISION:	16 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal by worker against finding of 13% whole person impairment; whether section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction was excessive; whether adequate reasons given for the deduction; Held – Medical Assessor (MA) erred in failing to give adequate reasons for a deduction of 50% of one part of the lower extremity assessment; the deduction was not properly particularised in the Table 2 certificate; the MA had included a 20% lower extremity assessment for a condition that the appellant had not suffered; Medical Assessment Certificate revoked but new certificate issued in the same amount.

BACKGROUND TO THIS AMENDED CERTIFICATE

1. On 11 June 2021 David Aquilina, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Damodaran Prem Kumar, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
   14 May 2021.

2. On 10 September 2021 the Panel revoked the MAC, finding the MA’s reasons to be inadequate. We also found that the methodology employed by the MA was not permitted by the relevant Table of AMA5, and after applying the appropriate method, reduced the deduction made by the MA pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act1998 from 50% to 10%.

3. The worker appealed, and on 7 July 2022 the Supreme Court issued an ex-tempore judgement directing the Panel to issue a Medical Assessment Certificate certifying that the degree of permanent impairment resulting from the worker’s injuries is 15%.

4. We accordingly issue an amended Medical Assessment Certificate.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	7567/20
Applicant:	David Aquilina
Respondent:	Secretary, Department of Transport

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Damodaran Prem Kumar and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Left lower extremity	16/8/17	Chapter 3 Page 13	Table 17-2, page 526 Table 17-3, page 527 Table 17-11, Table 17-12 page 537	9%	(1/10th for the lower extremity impairment to the talar dome, already factored into the total % WPI	9%
Lumbar spine	16/8/17	Item 4.35 Page 28 Chapter 4	7%	0%	7%
Total % WPI (the Combined Table values of all sub-totals)					15%