Australian Plant Hire Pty Ltd v Al-Ameri - [2024] NSWPICMP 575

DETERMINATION OF APPEAL PANEL
CITATION:	Australian Plant Hire Pty Ltd v Al-Ameri [2024] NSWPICMP 575
APPELLANT:	Australian Plant Hire Pty Ltd
RESPONDENT:	Haydar Al-Ameri
APPEAL PANEL
MEMBER:	Rachel Homan
MEDICAL ASSESSOR:	Alan Home
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	16 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); whether demonstrable error or assessment on the basis of incorrect criteria in Medical Assessor’s determination that no deduction applied for pre-existing condition pursuant to section 323 of 1998 Act; where experts on both sides expressed opinion that a one-tenth deduction should apply for pre-existing but asymptomatic degenerative disease; Medical Assessor failed to engage with those opinions in making his own assessment; Held – demonstrable error found; Medical Appeal Panel not satisfied that any pre-existing condition or abnormality contributed to the impairment; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 May 2024, Australian Plant Hire Pty Ltd [A.C.N. 092 021 059 Pty Ltd] (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Croker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 May 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 (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 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

The respondent, Mr Haydar Al-Ameri, who is currently 25 years old, sustained an injury to his right knee while driving a truck on 11 December 2019. Several months after the injury, the respondent reported central low back pain, which he attributed to abnormal gait resulting from the right knee injury.
The respondent made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation At 1987 (the 1987 Act) on 15 December 2022, relying on an assessment of 13% whole person impairment (WPI) made by occupational physician, Dr Tommasino Mastroianni on 20…

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

AGLC: Australian Plant Hire Pty Ltd v Al-Ameri [2024] NSWPICMP 575
Case: [2024] NSWPICMP 575
Decision Date: 16 August 2024

CaseChat Overview and Summary

The case of Australian Plant Hire Pty Ltd v Al-Ameri involved a dispute over the determination of a workers' compensation claim. The claimant, Al-Ameri, had suffered an injury at work, and the issue at hand was whether a pre-existing degenerative condition should have been taken into account when assessing the degree of impairment resulting from the workplace injury. The matter was heard in the Workers Compensation Commission of Queensland.

The primary legal issue before the Court was whether the Medical Assessor had made a demonstrable error or had based his assessment on incorrect criteria when determining that no deduction should be applied for the pre-existing condition under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. Both parties had presented expert medical opinions that a one-tenth deduction should apply for the pre-existing condition, yet the Medical Assessor did not engage with these opinions in his own assessment.

The Court found that the Medical Assessor had indeed made a demonstrable error in his assessment. It was noted that the Assessor failed to adequately consider the expert opinions on both sides, which recommended a one-tenth deduction for the pre-existing condition. Consequently, the Medical Appeal Panel was not satisfied that any pre-existing condition or abnormality contributed to the impairment. As a result, the Court confirmed the Medical Assessment Certificate, which had been issued without the appropriate deduction for the pre-existing condition.

The final orders of the Court confirmed the Medical Assessment Certificate, with the specific direction that the pre-existing condition be taken into account in future assessments, and that a one-tenth deduction should be applied as recommended by the experts.

Orders