Asbury v Donhad Pty Ltd - [2023] NSWPICMP 461

DETERMINATION OF APPEAL PANEL
CITATION:	Asbury v Donhad Pty Ltd [2023] NSWPICMP 461
APPELLANT:	Alan John Ashbury
RESPONDENT:	Donhad Pty Ltd
APPEAL PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	20 September 2023
CATCHWORDS:	WORKERS COMPENSATION - The appellant suffered an accepted right knee injury in 2003; in 2014 the appellant underwent a total knee replacement and further arthroscopic surgery in 2019; in 2020 the Medical Assessor (MA) assessed that the impairment was not fully ascertainable; the claimant subsequently made a claim for permanent impairment based on an updated qualified opinion; the respondent’s qualified doctor also assessed permanent impairment; the appellant alleged that he suffered a further consequential condition in 2022 to the right shoulder; in 2023 the MA reconsidered the Medical Assessment Certificate (MAC) and determined that impairment was fully ascertainable; that determination was made in the absence of an examination and based on the recent qualified opinion; reasons of MA showed that he agreed with opinions of qualified doctors; otherwise no medical dispute and reasons sufficient; Vitaz v Westform (NSW) Pty Ltd applied; right shoulder condition not before MA as not part of medical dispute and liability dispute required determination by Member; Skates v Hills Industries Ltd and State of New South Wales v Bishop referred to; no requirement to conduct medical examination; examination unnecessary based on the medical evidence; Held – MAC confirmed. .

BACKGROUND

Mr Ashbury (the appellant) sustained an injury to the right lower extremity on
21 October 2003 and 22 December 2003 in the course of his employment with the respondent.
In a report dated 21 October 2019, Professor Ghabrial noted that the appellant had undergone recent arthroscopic procedure of the right knee which was settling. The doctor opined that the condition had not stabilised for the purposes of assessing permanent impairment.
In 2020 Mr Ashbury sought a determination of a medical dispute before the Personal Injury Commission (Commission), specifically whether the “degree of permanent impairment of the injured worker is fully ascertainable”. This is a medical dispute within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act).
The medical dispute was referred to and assessed by Medical Assessor Mastroianni who issued a Medical Assessment Certificate dated 10 February 2020 (the MAC). After noting that the appellant had undergone a total knee replacement in 2013 and a further arthroscopic surgery in 2019, the Medical Assessor stated:
“There has been some improvement post-operatively in that the knee no longer locks, however he has a painful and restricted knee and clinical evidence of an inflammatory process as there is increased temperature in the knee.”
The Medical Assessor noted that the appellant then required further investigations and treatment and expressed agreement with the opinion of Professor Ghabrial that the condition had not stabilised for the purposes of assessing permanent impairment.
The effect of that determination was that s 39 of the Workers Compensation Act 1987 (WC Act) did not apply due…

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 461
Decision Date: 20 September 2023

CaseChat Overview and Summary

In the case of Asbury v Donhad Pty Ltd, the appellant sought to establish the extent of his permanent impairment following a right knee injury sustained in 2003, which necessitated a total knee replacement in 2014 and further arthroscopic surgery in 2019. The dispute reached the court when the appellant contested the Medical Assessor's (MA) 2020 determination that his impairment was not fully ascertainable. The appellant submitted a claim for permanent impairment based on a subsequent qualified opinion, while the respondent's qualified doctor also assessed the impairment. The appellant further alleged a consequential condition in his right shoulder in 2022, which was not addressed by the MA. The MA reconsidered the Medical Assessment Certificate (MAC) in 2023, concluding that the impairment was fully ascertainable, a decision reached without an examination and relying on the updated qualified opinion.

The legal issues before the court involved the necessity of conducting a medical examination to ascertain permanent impairment and whether the MA's decision was adequately supported by the medical evidence. The court considered whether the MA's reliance on the recent qualified opinion and the absence of a medical examination was justified. The court applied the principles established in Vitaz v Westform (NSW) Pty Ltd, emphasising that where there is no medical dispute, and the reasons provided by the MA are sufficient, an examination may not be necessary. References were made to Skates v Hills Industries Ltd and State of New South Wales v Bishop to further support the court's understanding of the MA's role and the conditions under which examinations are required.

The court determined that the MA's decision was reasonable and correctly applied the relevant legal principles. The MA's agreement with the qualified doctors' opinions and the absence of a medical dispute supported the conclusion that an examination was unnecessary. The reasons provided by the MA were deemed sufficient, and the court found no requirement to conduct a medical examination. The appellant's claim regarding the right shoulder condition was not before the MA as it did not form part of the medical dispute. The court held that the liability dispute concerning the right shoulder condition required resolution by a Member. Consequently, the court confirmed the MAC as it stood.

Orders