Collinson v G M Kane & Sons Pty Ltd - [2023] NSWPICMP 2

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…

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: [2023] NSWPICMP 2
Decision Date: 9 January 2023

CaseChat Overview and Summary

The case of Collinson v G M Kane & Sons Pty Ltd involved the claimant seeking a review of a decision regarding the calculation of a workers' compensation deduction. The claimant argued that the respondent, the insurer, had incorrectly applied a 75% deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The dispute was heard by the Administrative Appeals Tribunal of New South Wales. The central legal issue before the tribunal was whether the deduction of 75% was appropriate based on the evidence presented, or if the correct deduction under section 323(1) should have been 50%. The tribunal needed to determine the correct percentage of the deduction that should have been applied to the compensation amount awarded to the claimant.

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