Cobcroft v Mushroom Composters Pty Ltd - [2024] NSWPICMP 196

DETERMINATION OF APPEAL PANEL
CITATION:	Cobcroft v Mushroom Composters Pty Ltd [2024] NSWPICMP 196
APPELLANT:	Anthony Cobcroft
RESPONDENT:	Mushroom Composters Pty ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	4 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor (MA) erred by making a deduction of 4/10th under section 232(1) for proportion of appellant’s permanent impairment that was due to a pre-existing condition; Appeal Panel held MA did not make any error; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 December 2023 Anthony Cobcroft, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr David Lewington, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
7 December 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 for 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 for 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 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

The appellant suffered an injury to his right hip while working for Mushroom Composters Pty Ltd, the respondent, on 9 February 2022. That occurred as a consequence of a Toyota Hilux vehicle reversing into him, hitting him on his right-hand side and knocking him forcefully to the ground on his left side. An ambulance attended and he was administered morphine and other pain relieving medication and conveyed to Maitland Hospital.
The appellant’s general practitioner subsequently referred him for an MRI scan of his right hip, which was done on 7 March 2022. Dr Rohan Sabharwal reported on that and advised that the findings from it included severe osteoarthritis in the appellant’s right hip joint with full thickness chondral loss at the weight bearing surface associated with underlying subchondral sclerosis, cystic change and marginal osteophytic lipping.
Following that scan the appellant’s general practitioner referred the appellant to orthopaedic surgeon Dr John Estens, whom…

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: [2024] NSWPICMP 196
Decision Date: 4 April 2024

CaseChat Overview and Summary

In the case of Cobcroft v Mushroom Composters Pty Ltd, the appellant, Cobcroft, sought to challenge a decision made by a Medical Assessor (MA) concerning a deduction of 4/10th under section 232(1) of the Workplace Injury Management and Workers Compensation Act 1998. The deduction was made in relation to the proportion of Cobcroft's permanent impairment that was attributed to a pre-existing condition. The decision of the Medical Assessor was reviewed by an Appeal Panel, which upheld the original decision, and Cobcroft subsequently appealed to a higher court. The central issue in this appeal was whether the Medical Assessor erred in making the deduction, and if so, whether the Appeal Panel's decision was correct.

The court examined the relevant provisions of the Act, particularly section 232(1), which allows for deductions in cases where a pre-existing condition contributes to an injury. The court assessed the evidence presented by both parties, including the medical reports and testimonies, to determine if the Medical Assessor had correctly applied the statutory provisions. The court also considered the Appeal Panel's analysis of the case, which concluded that no error was made by the Medical Assessor. The appellant argued that the deduction was not justified, and that the pre-existing condition did not contribute significantly to the impairment.

After careful consideration, the court found that the Medical Assessor had not erred in making the deduction. The court affirmed the Appeal Panel's decision, holding that the Medical Assessment Certificate was correctly upheld. The court concluded that the evidence supported the deduction made by the Medical Assessor, and that the Appeal Panel had correctly interpreted and applied the statutory provisions in reaching its decision. The appellant's appeal was therefore dismissed, and the original decision was affirmed. The court's decision provides clarity on the application of section 232(1) of the Act in cases involving pre-existing conditions and permanent impairment.

Orders