Cawley v Blakes Pest Management Pty Ltd

[2024] NSWPICMP 846

DETERMINATION OF APPEAL PANEL
CITATION:	Cawley v Blakes Pest Management Pty Ltd [2024] NSWPICMP 846
APPELLANT:	Richard Cawley
RESPONDENT:	Blakes Pest Management Pty Ltd
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	10 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (left shoulder); respondent agreed that the condition of the left shoulder resulted from injury to the right shoulder; whether Medical Assessor erred in deducting ten-tenths on the basis that the left shoulder condition did not result from injury to the right shoulder; Held – by consent of the parties, Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant worker, Mr Cawley, appeals from the Medical Assessment Certificate (MAC) of Medical Assessor Anderson dated 4 July 2024.

2. Medical Assessor Anderson assessed 14% whole person impairment (11% right shoulder, 0% left shoulder, 3% upper gastrointestinal tract, and 0% lower gastrointestinal tract) as a result of injury to the right shoulder on 24 November 2020, when Mr Cawley injured his right shoulder in the course of his employment as a pest control operator.

3. Mr Cawley appeals only from the assessment of 0% whole person impairment in respect of the left shoulder.

4. Medical Assessor Anderson initially assessed 11% whole person impairment in respect of the left shoulder. No error is alleged in respect of that assessment.

5. From the 11% assessed, he deducted the whole, expressed as ten-tenths, on the basis that the condition of the left shoulder did not result from injury to the right shoulder on
   24 November 2020.

6. Mr Cawley had claimed compensation for impairment of the whole person resulting from:

   (a)    injury to the right shoulder on 24 November 2020;

   (b)    consequential conditions of the left shoulder due to compensating for the right, and

   (c)    consequential conditions of the gastro-intestinal tract.

7. By its s 78 notice dated 9 February 2024, the insurer relevantly disputed that the condition of the left shoulder resulted from the accepted injury to the right shoulder.

8. Mr Cawley says that, at a preliminary conference before a member of the Personal Injury Commission (Commission) on 10 April 2024, the insurer accepted (contrary to its s 78 notice) that the condition of the left shoulder resulted from injury to the right shoulder, and the Commission by consent of the parties referred the left shoulder for assessment on that basis.

9. He says that the purported deduction of ten-tenths also demonstrates error, because:

   (a)    the referral for assessment obliged the Medical Assessor to assess permanent impairment of the left shoulder;

   (b)    the Medical Assessor exceeded his function by expressing an opinion that there was no causal relationship between the left shoulder condition and injury to the right shoulder;

   (c) in any event, deductions are only permitted to take account of previous injuries or pre-existing conditions or abnormalities: s 323, Workplace Injury Management and Workers Compensation Act 1998, and

   (d)    no such deduction is available where, as here, the condition of the left shoulder occurred after injury on 24 November 2020, and as a result of it.

10. By email communication dated 9 August 2024, the respondent’s solicitors informed the Registry that the respondent ‘does not oppose the appeal’ and accordingly ‘will not file a Notice of Opposition’. They did not indicate whether the respondent agreed that the insurer had accepted the left shoulder condition as resulting from injury to the right shoulder at preliminary conference or at all, or whether it consented to the revocation or replacement of the Medical Assessment Certificate and, if so, how.

11. The Appeal Panel directed the respondent to indicate whether it consented to the setting aside and replacement of the Medical Assessment Certificate.

12. In response, the respondent consented to the revocation of the Medical Assessment Certificate, on the basis that the appellant’s left shoulder adhesive capsulitis was sustained as a consequence of the accepted right shoulder injury, and agreed to an assessment of 11% whole person impairment with respect to the left shoulder.

PRELIMINARY REVIEW

1. 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.

EVIDENCE

Documentary evidence

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

SUBMISSIONS

1. The appellant made brief written submissions which are summarised above. They are not repeated in full, but have been considered by the Appeal Panel.

2. As indicated, the respondent did not make reply submissions, but responded to the direction of the Appeal Panel in the manner described above.

FINDINGS AND REASONS

1. The parties agree that the permanent impairment of the left shoulder results from injury to the right shoulder, and that the Medical Assessment Certificate should be set aside.

2. There is no challenge to the assessment of 11% whole person impairment with respect to the left shoulder.

3. In accordance with the parties’ agreement, it remains for the Appeal Panel to set aside the Medical Assessment Certificate and replace it with one which makes no deduction for the assessed 11% whole person impairment (left shoulder).

4. For the benefit of the parties, we indicate that that course is appropriate in any event, for the following reasons:

   (a) Section 323 provides for deductions to take account of pre-existing conditions or abnormalities. No such condition or abnormality was found to exist in respect of the left shoulder. A deduction was not available.

   (b)    What the Medical Assessor did, in effect, was to find that the condition of the left shoulder did not result from injury to the right shoulder, and therefore was not assessable. Putting to one side any admissions that may have been made at preliminary conference, that finding was beyond power, because the issues of injury and its consequences – including whether a condition of one body system results from injury to another body system – lies within the jurisdiction of the Commission: State of NSW v Bishop [2014] NSWCA 3354; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [276].

5. For these reasons, by consent of the parties, the Appeal Panel revokes the MAC issued on
   4 July 2024, and replaces it with the certificate attached.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1912/24
Applicant:	Richard Cawley
Respondent:	Blakes Pest Management Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Right upper extremity (shoulder)	24/11/20	Chapter 2 p10	P 476 F 16-40 P 477 F 16-43 P 479 F 16-46 P 439 T 16-03	11	0	11
Left upper extremity (shoulder)	24/11/20	Chapter 2 p10		11	0	11
Digestive system Upper Gastro-intestinal tract	24/11/20	Chapter 16 p78	P 121 T 6-03	3	0	3
Digestive system Lower gastro-intestinal tract	24/11/20	Chapter 16 p78	P 128 T 6-04	0	0	0
Total % WPI (the Combined Table values of all sub-totals)					23