Coles Group Limited v Malouf - [2023] NSWPICMP 53

DETERMINATION OF APPEAL PANEL
CITATION:	Coles Group Limited v Malouf [2023] NSWPICMP 53
APPELLANT:	Coles Group Limited
RESPONDENT:	Anthony Malouf
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Neil Berry
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	22 February 2023
CATCHWORDS:	wORKERS cOMPENSATION -Workplace Injury Management and Workers Compensation Act 1998; employer alleges error by Medical Assessor (MA) in assessing abnormal motion of the left upper extremity for a neurological condition contrary to Chapter 2.9 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021; in assessing a grade III deficit for injury to the right upper extremity; in failing to record, consider, or make a deduction for a pre-existing condition of carpal tunnel syndrome pursuant to section 323; Held – as the impairment of the worker’s left upper extremity resulted solely from a neurological injury the MA erred in assessing both loss of motion and neurological impairment; there was no evidence of error or incorrect criteria in the methodology used to assess a grade III deficit of the right upper extremity in accordance with Table 16-15 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed; there was no satisfactory evidence of a previous injury or pre-existing condition to permit a deduction being made pursuant to section 323; Medical Assessment Certificate (MAC) revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 November 2022, Coles Group Limited (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 17 October 2022.
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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the 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

Anthony Malouf (the respondent) was employed by the appellant as a process worker. On 29 October 2019, while at work, his foot…

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 Coles Group Limited v Malouf

Details

AGLC: Coles Group Limited v Malouf [2023] NSWPICMP 53
Case: [2023] NSWPICMP 53
Decision Date: 22 February 2023

CaseChat Overview and Summary

The case of Coles Group Limited v Malouf involved a dispute between an employer and a former employee concerning the assessment of a worker’s compensation claim. The employer, Coles Group Limited, sought to challenge the Medical Assessment Certificate (MAC) issued by a Medical Assessor (MA) regarding the extent of the employee's injuries. The dispute was heard and determined by the Industrial Relations Commission of New South Wales. The employer argued that the MA had erred in several respects, including the assessment of abnormal motion in the left upper extremity, the grading of a deficit in the right upper extremity, and the failure to consider a pre-existing condition of carpal tunnel syndrome.

The legal issues before the court centred on whether the MA had correctly applied the relevant legislation and guidelines in assessing the employee's injuries. Specifically, the court needed to determine if the MA had erred in assessing both loss of motion and neurological impairment in the left upper extremity, whether the MA had correctly applied the criteria for assessing a grade III deficit in the right upper extremity, and if there was sufficient evidence of a pre-existing condition to warrant a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The employer contended that the MA had failed to follow the appropriate guidelines, while the employee maintained that the assessment was accurate and in compliance with the law.

In its decision, the court found that the MA had indeed erred in assessing both loss of motion and neurological impairment in the left upper extremity, as the impairment resulted solely from a neurological injury. However, the court determined that there was no evidence of error in the methodology used to assess a grade III deficit in the right upper extremity. Additionally, the court held that there was insufficient evidence to support a deduction for a pre-existing condition of carpal tunnel syndrome. Consequently, the court revoked the original MAC and ordered the issuance of a new one, reflecting the correct assessment of the employee’s injuries. This decision underscores the importance of precise adherence to legislative guidelines in workers' compensation assessments.

Orders