Burns v Stewart W Burns Pty Ltd - [2023] NSWPICMP 76

DETERMINATION OF APPEAL PANEL
CITATION:	Burns v Stewart W Burns Pty Ltd [2023] NSWPICMP 76
APPELLANT:	Stewart Burns
RESPONDENT:	Stewart W Burns Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	7 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant submitted that the Medical Assessor (MA) erred in relation to the deduction he made pursuant to section 323; the appellant did not challenge the primary assessments by the MA; Panel agreed; no evidence of any pre-existing condition prior to the commencement of his employment in 1984; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 October 2022 Stewart Burns (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 30 September 2022.
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 ground(s) 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in relation to the deduction…

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 76
Decision Date: 7 March 2023

CaseChat Overview and Summary

Burns v Stewart W Burns Pty Ltd involved a dispute concerning workers' compensation where the appellant contested the deduction made by the Medical Assessor under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The appellant argued that the deduction was erroneous. The dispute reached the court where the appellant's contention centred on the correctness of the deduction made by the Medical Assessor.

The primary legal issue before the court was whether the Medical Assessor's deduction was justified. The appellant did not challenge the primary assessments conducted by the Medical Assessor, and instead focused solely on the specific deduction in question. The court had to determine if the deduction was appropriate given the circumstances and the evidence provided. Another significant aspect was whether there was any pre-existing condition that could have contributed to the appellant's current state, which was not contested to exist prior to his employment in 1984.

The Panel found in favour of the appellant, agreeing with the argument that the deduction made by the Medical Assessor was not substantiated. The court noted that there was no evidence presented to suggest any pre-existing condition that could have influenced the appellant's current health status. Consequently, the Panel revoked the Medical Assessment Certificate. This decision underscores the importance of substantiating any deductions made under the Act with appropriate evidence.

The court's decision resulted in the revocation of the Medical Assessment Certificate, affirming that the appellant was entitled to the compensation as initially assessed without the contested deduction.

Orders