Caringbah Steel Pty Ltd v Coy - [2021] NSWPICMP 167

DETERMINATION OF APPEAL PANEL
CITATION:	Caringbah Steel Pty Ltd v Coy [2021] NSWPICMP 167
APPELLANT:	Caringbah Steel Pty Ltd
RESPONDENT:	Stephen Eric Coy (Deceased)
APPEAL PANEL:	Member Brett Batchelor Dr John F W Garvey Dr John Dixon-Hughes
DATE OF DECISION:	14 September 2021
CATCHWORDS:	WORKERS COMPENSATION- Appellant employer claims that the Medical Assessor (MA) assessed respondent worker’s undisputed right hernia injury, in part, by reference to restriction in movement of the right hip claimed to have been caused by scarring from surgery; the digestive system (hernia) was the only body system/part referred for assessment, not the right upper extremity (hip); finding that the MA had assessed a body system/part not referred to him, and that this constituted a demonstrable error; Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW), State of New South Wales v Bishop and O’Callaghan v World Energy Corp Ltd referred to; Held - on assessment of the medical evidence, and without the benefit of re-examination of the respondent worker as he had passed away before such re-examination could take place, the Medical Appeal Panel found that the assessment of the digestive system (hernia) of the MA was correct; Drosd v Workers Compensation Nominal Insurer and Roads and Maritime Services v Wilson referred to; Medical Assessment Certificate (MAC) revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 March 2021 Caringbah Steel Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil A Berry, an Approved Medical Specialist (AMS), but since 1 March 2021 referred to as, and referred to herein as, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 February 2021.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 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 re-issued 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

On 11 November 2010 Stephen Eric Coy (the respondent/Mr Coy), was unloading an oxy bottle from a truck in the course of his employment by the appellant employer, Caringbah Steel Pty Ltd.…

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 167
Decision Date: 14 September 2021

CaseChat Overview and Summary

In the matter of Caringbah Steel Pty Ltd v Coy, the dispute arose from an assessment of a workers' compensation claim by a Medical Assessor (MA). The respondent, Coy, had suffered a right hernia injury during his employment with the appellant, Caringbah Steel Pty Ltd. The primary contention was whether the MA had correctly assessed the injury by considering a restriction in movement of the right hip, which the appellant argued was caused by scarring from surgery. The appellant submitted that the MA had assessed a body system, namely the right upper extremity (hip), that had not been referred to him for assessment.

The legal issue for the court to determine was whether the MA had made a demonstrable error by evaluating a body system that was not part of the referral for assessment. The appellant referred to precedents including Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW), State of New South Wales v Bishop, and O’Callaghan v World Energy Corp Ltd to support their claim of error. Conversely, the respondent relied on cases such as Drosd v Workers Compensation Nominal Insurer and Roads and Maritime Services v Wilson to argue that the MA's assessment of the hernia was accurate and should stand.

The court held that the MA's assessment of the digestive system (hernia) was correct, following an evaluation of the medical evidence. The court noted that the respondent had passed away before the possibility of re-examination, which limited the scope of the assessment. Consequently, the Medical Appeal Panel revoked the original Medical Assessment Certificate (MAC) and issued a new one, aligning with the findings that the MA's evaluation of the hernia was accurate.

Orders