Blacktown City Council v D'Angelo - [2024] NSWPICMP 683

DETERMINATION OF APPEAL PANEL
CITATION:	Blacktown City Council v D'Angelo [2024] NSWPICMP 683
APPELLANT:	Blacktown City Council
RESPONDENT:	Sam D'Angelo
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	27 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against Medical Assessor’s (MA) assessment of impairment in relation to the left lower extremity (knee) on the basis that the MA erred in failing to have regard to the respondent’s left knee symptoms in 2007 and 2010 therefore in not making a deduction from the impairment in accordance with section 323; error found for failure to consider relevant and significant material being the clinical notes of the respondent’s treating general practitioners in 2007 and 2010; following consideration of the clinical notes as well as a further medical examination conducted on behalf of the Medical Appeal Panel (Panel) it is found that the respondent’s left knee symptoms in 2007 and 2010 do not constitute a previous injury, pre-existing condition or abnormality sufficient to warrant a deduction from the impairment assessed by the MA in accordance with section 323; the Panel is not satisfied that the respondent’s degree of impairment would not have been as great but for any previous injury, pre-existing condition or abnormality; Ryder v Sundance Bakehouse, Tattersall v Registrar of the Workers Compensation Commission of NSW and Anor, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Campbelltown City Council v Vegan, Prasad v Workers Compensation Commission, Wentworth Community Housing Limited v Brennan and Cole v Wenaline Pty Ltd considered; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 May 2024, Blacktown City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The medical dispute the subject of the Appeal was assessed by Medical Assessor Berry (the Medical Assessor) who issued a Medical Assessment Certificate (MAC) on 4 April 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 President’s delegate is satisfied that, on the face of the Appeal, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, but limited to the grounds of appeal in relation to which the Appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 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…

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: [2024] NSWPICMP 683
Decision Date: 27 September 2024

CaseChat Overview and Summary

In the case of Blacktown City Council v D'Angelo, the dispute revolves around the assessment of impairment to the left lower extremity (knee) made by a Medical Assessor (MA) under the Workers Compensation Act 1998. D'Angelo appealed the MA's assessment on the basis that the MA had failed to take into account his left knee symptoms in 2007 and 2010, thereby not making a deduction from the impairment in accordance with section 323 of the Act. The appeal was heard by the Medical Appeal Panel (Panel), which was tasked with determining whether the MA had erred in this regard.

The primary legal issue before the Panel was whether the MA had correctly applied the statutory provisions in assessing the degree of impairment. Specifically, it was contested whether the MA had failed to consider relevant and significant material—namely, the clinical notes of D'Angelo's treating general practitioners from 2007 and 2010—when making the assessment. The Panel was required to decide if these notes constituted a previous injury, pre-existing condition, or abnormality that warranted a deduction from the impairment as assessed by the MA.

The Panel found that while the MA had indeed failed to consider the clinical notes from 2007 and 2010, this did not necessarily mean that the assessment was flawed. Upon reviewing the clinical notes and conducting a further medical examination, the Panel determined that D'Angelo's left knee symptoms in 2007 and 2010 did not constitute a previous injury, pre-existing condition, or abnormality that would warrant a deduction from the impairment. The Panel concluded that it was not satisfied that D'Angelo's degree of impairment would have been less severe but for any previous injury, pre-existing condition, or abnormality. The Panel considered relevant case law in reaching its decision, which included cases such as Ryder v Sundance Bakehouse, Tattersall v Registrar of the Workers Compensation Commission of New South Wales, and others.

Ultimately, the Panel upheld the Medical Assessment Certificate, confirming the original assessment of impairment made by the MA. This decision was based on the Panel's conclusion that the 2007 and 2010 symptoms did not amount to a previous injury or pre-existing condition warranting a deduction under section 323 of the Workers Compensation Act 1998.

Orders