Bunnings Group Limited v Kearns - [2023] NSWPICMP 499

DETERMINATION OF APPEAL PANEL
CITATION:	Bunnings Group Limited v Kearns [2023] NSWPICMP 499
APPELLANT:	Bunnings Group Limited
RESPONDENT:	Christopher Kearns
APPEAL PANEL
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Paul Curtin
DATE OF DECISION:	6 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer alleges Medical Assessor (MA) erred in assessing skin disorder in accordance with Tables 8-2 and 1-2 of American Medical Association’s Guides to the Evaluation of Permanent Impairment; MA erred in finding there was no deduction pursuant to section 323 when there was no “medical dispute” as qualified doctors for both parties had assessed a 10% deduction; Skates v Hills Industries Pty Ltd considered; Held – that MA had correctly applied both tables; that as the parties had agreed to a referral which required the MA to consider the proportion of the impairment resulting from a pre-existing edition the MA did not err in finding that the appellant had not proven a pre-existing condition which contributed to the impairment; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 April 2023, Bunnings Group Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Malcolm Linsell, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 March 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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 ed1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). Whole person impairment is referred to as WPI.

RELEVANT FACTUAL BACKGROUND

Between January 1999 and 27 January 2021, Christopher Kearns (the respondent) was employed by the appellant as a supervisor and yardman. By his signed statement, the respondent says that all of his “work was performed outside in the sun with little coverage from exposure to the sun.” He says that he was not offered protection from the sun during the first 10 years 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: [2023] NSWPICMP 499
Decision Date: 6 October 2023

CaseChat Overview and Summary

Bunnings Group Limited brought proceedings against Kearns in the Workers Compensation Magistrate's Court of Queensland, challenging the decision of a Medical Assessor who evaluated a skin disorder sustained by Kearns in the course of his employment. The employer contended that the Medical Assessor had incorrectly applied the American Medical Association’s Guides to the Evaluation of Permanent Impairment, specifically Tables 8-2 and 1-2, and that there was an error in not deducting 10% from the impairment assessment as no medical dispute existed between the parties' qualified doctors.

The court was tasked with determining whether the Medical Assessor correctly applied the relevant tables in assessing the extent of the permanent impairment. Additionally, it had to examine if there was a valid basis for the Medical Assessor to find that there was no deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The court considered the precedent set by Skates v Hills Industries Pty Ltd in its deliberations.

The Workers Compensation Magistrate's Court found that the Medical Assessor had correctly applied the relevant tables in assessing the impairment. The court held that the Medical Assessor did not err in concluding that the appellant had not proven a pre-existing condition that contributed to the impairment, as the parties had agreed to a referral which required consideration of the proportion of the impairment resulting from any pre-existing condition. Accordingly, the Medical Assessment Certificate was confirmed.

Orders