| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Collinson v G M Kane & Sons Pty Ltd [2023] NSWPICMP 2 |
| APPELLANT: | Kevin Collison |
| RESPONDENT: | G M Kane & Sons Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | John Stephenson |
| DATE OF DECISION: | 9 January 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Whether deduction of 75% under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was correct based on the evidence; Held – deduction not appropriate; the deduction to be made under s 323(1) is 50%; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 September 2022 Kevin Collinson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gotthelf, a Medical Assessor.
The medical dispute that the President of the Personal Injury Commission (Commission), through his delegate, referred to the Medical Assessor to assess related to the degree of permanent impairment the appellant had from an injury he suffered to his right knee on 1 July 2019 while working for G M Kane & Sons Pty Ltd, the respondent.
The medical dispute referred to the Medical Assessor was described in the referral in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 1 July 2019
Body part/s referred: Right lower extremity
Method of assessment: Whole Person Impairment”
Medical Assessor Gotthelf issued a Medical Assessment Certificate (MAC) on 31 August 2022 in response to that referral, in which he certified that the appellant had 10% whole person impairment (WPI) from his injury. In a table appended to the MAC he set out the specific components of how he computed the appellant’s WPI. That table was in the following form:
Body Part or system
Date of Injury
Chapter,
page and paragraph number in WorkCover Guides
Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, abnormality or condition (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Right lower extremity
1/07/19
17-35
17-33
30
2/3
10
Total % WPI (the Combined Table values of all sub-totals)
10%
The appellant’s appeal relates to the deduction of two-thirds the Medical Assessor made under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The appellant’s appeal is based on the grounds for appeal provided in s 327(3)(c) and (d) of the 1998 Act, being, respectively, that the assessment was made on the basis of incorrect criteria and that the MAC contains a demonstrable error.
A delegate of the President was…
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- Case
- [2023] NSWPICMP 2
- Decision Date
CaseChat Overview and Summary
In reaching its decision, the tribunal closely examined the evidence and the relevant statutory provisions. It found that the 75% deduction was not warranted and that the correct statutory provision required a 50% deduction. The tribunal noted that the Medical Assessment Certificate was based on outdated information and, as such, did not accurately reflect the claimant's current medical condition. Consequently, the tribunal revoked the Medical Assessment Certificate and ordered that the compensation deduction be reduced to 50%. The tribunal also directed the insurer to review the compensation payments made to the claimant since the erroneous certificate was issued and to adjust any overpayments accordingly. This ruling ensured that the claimant received the compensation that was correctly due to them, reflecting their current state of health and the appropriate statutory deduction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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