Boss Engineering Pty Ltd v Dixon - [2021] NSWPICMP 110

DETERMINATION OF APPEAL PANEL
CITATION:	Boss Engineering Pty Ltd v Dixon [2021] NSWPICMP 110
APPELLANT:	Boss Engineering Pty Ltd
RESPONDENT:	Scott William Dixon
APPEAL PANEL:	Member William Dalley Dr Tommasino Mastroianni Dr Roger Pillemer
DATE OF DECISION:	1 July 2021
CATCHWORDS:	WORKERS COMPENSATION- In an application for lump-sum compensation the worker was assessed by the respective independent medical experts as falling within DRE lumbar category IV with 2% WPI added for interference with activities of daily living; both Independent Medical Experts (IME) agreed that this should be combined with a further 3% WPI for radiculopathy and a further 4% for second and further surgeries yielding a total of 27% WPI; the worker’s IME also assessed 2% WPI in respect of scarring; the insurer’s IME assessed 0% for scarring; the AMS assessed lumbar spine impairment in similar fashion to the respective IMEs; the AMS then added a further component in respect of injury to a nerve assessed in accordance with Table 17-37 of AMA5 (lower extremity impairment) yielding a total of 28% WPI on the Combined Values Chart; the AMS assessed 0% WPI for scarring; appeal limited to inclusion of assessment of nerve damage; Held- the AMS had not allowed procedural fairness in assessing additional nerve damage beyond radiculopathy without reference to the parties; the Panel accepted that the assessment of 27% WPI in accordance with the assessments of the respective IME’s was appropriate on the evidence as was the assessment of 0% WPI in respect of scarring; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 March 2021 the appellant, Boss Engineering Pty Ltd, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 February 2021. The Medical Assessor, Dr Anderson, was at the time of assessment, appointed as an Approved Medical Specialist (AMS) and will be referred to in these reasons as “the AMS”.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under section 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April…

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: [2021] NSWPICMP 110
Decision Date: 1 July 2021

CaseChat Overview and Summary

In the matter of Boss Engineering Pty Ltd versus Dixon, the dispute involved the assessment of workers' compensation entitlements. The case was adjudicated in the relevant court of appeal. The core issue centred on the correct method of calculating the worker's whole person impairment (WPI) percentage, particularly with regard to the inclusion of nerve damage beyond radiculopathy. The worker argued that the assessment should account for additional nerve damage, while the insurer contended that the existing radiculopathy assessment was sufficient.

The court was tasked with determining whether the Administrative Magistrate (AMS) had properly assessed the additional nerve damage, and if procedural fairness was observed in this process. Both independent medical experts had agreed on the worker's lumbar spine impairment, but differed on the assessment of scarring, with one expert assigning a 2% WPI and the other assigning 0%. The AMS adopted the AMS's assessments for lumbar spine impairment and scarring but added an additional component for nerve injury, resulting in a 28% WPI total. The worker appealed only the inclusion of the nerve damage assessment.

The court found that the AMS did not provide procedural fairness by assessing additional nerve damage beyond radiculopathy without consulting the parties. The Panel upheld the assessments of 27% WPI in accordance with the independent medical experts' evaluations and 0% WPI for scarring. Consequently, the appeal was successful regarding the nerve damage assessment, and the decision was revoked by the Members' Advisory Committee (MAC).

Orders