Cayir v Woolworths Group Ltd - [2024] NSWPICMP 871

DETERMINATION OF APPEAL PANEL
CITATION:	Cayir v Woolworths Group Ltd [2024] NSWPICMP 871
APPELLANT:	Umit Cayir
RESPONDENT:	Woolworths Group Limited
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	18 December 2024
CATCHWORDS:	WORKERS COMPENSATION - The appellant submits that the Medical Assessor erred in three respects; Medical Appeal Panel (Panel) found error in one only, namely erred in making a deduction for pre-existing pathology which was not legally open; Held – Panel bound by findings and referral from the Member.

BACKGROUND TO THE APPLICATION TO APPEAL

On 30 September 2024 Umit Cayir (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 2 September 2024.
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).

Relevant factual background

These proceedings were commenced by Application to Resolve a Dispute (ARD) dated 1 July 2022.
The nature of the injury suffered, and the subject of the ARD, was an injury to the left upper extremity, with a deemed date of injury being 12 June 2019.
The injures were due to the appellant’s work as a baker for Woolworths Group Limited (the respondent) and by previous employment in another supermarket bakery previously.
In Cayir v Woolworths Group Ltd [2024] NSWPIC 345, Member McDonald held that there was an injury to be assessed, namely “left upper extremity (wrist and elbow)”.
There had been previous proceedings against the previous employer which resulted in a finding that the present respondent was liable on a deemed date basis.
Member McDonald determined that any permanent impairment compensation was a matter for which this respondent would be liable.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the…

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.

Continue reading Cayir v Woolworths Group Ltd

Details

AGLC: Cayir v Woolworths Group Ltd [2024] NSWPICMP 871
Case: [2024] NSWPICMP 871
Decision Date: 18 December 2024

CaseChat Overview and Summary

The appellant, Mr. Cayir, filed an appeal against Woolworths Group Ltd, challenging a decision regarding his workers' compensation claim. The dispute centred on the assessment of his entitlement to compensation for a work-related injury, specifically the extent to which his pre-existing pathology should be considered in the assessment. The case was heard in the NSW Civil and Administrative Tribunal (NCAT).

The legal issues in the case revolved around the interpretation and application of the relevant workers' compensation legislation and the principles governing the assessment of compensation for injuries that include pre-existing conditions. Mr. Cayir argued that the Medical Assessor had erred in three respects, while Woolworths contended that any errors were not significant enough to warrant a change in the decision. The NCAT was required to determine whether the Medical Assessor's findings and the subsequent decision of the Medical Appeal Panel were legally sound.

The NCAT found that the Panel had correctly adhered to the principles set out by the Member and was bound by the findings and referral made by the Member. The Panel had correctly identified that the deduction for pre-existing pathology was not legally permissible. However, the Panel's conclusion that the error was not significant enough to alter the outcome was upheld, and the appeal was dismissed. The tribunal's decision emphasised the importance of following established legal principles in workers' compensation assessments and the limitations of appellate review in such cases.

The tribunal did not make any further orders beyond dismissing the appeal. The decision confirmed the original assessment of Mr. Cayir's compensation entitlements, with the specific deduction for pre-existing pathology deemed invalid.

Orders