Crown Scaffold Pty Ltd v King - [2024] NSWPICMP 847

DETERMINATION OF APPEAL PANEL
CITATION:	Crown Scaffold Pty Ltd v King [2024] NSWPICMP 847
APPELLANT:	Crown Scaffold Pty Ltd
RESPONDENT:	Jordan King
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	10 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by failing to explain his assessment of respondent’s impairment due to injury to long thoracic nerve; whether MA erred by combining respondent’s impairment due to restricted range of motion of left shoulder and respondent’s impairment due to injury to long thoracic nerve; whether MA erred by failing to grade the respondent’s impairment due to long thoracic nerve; Appeal Panel held MA erred by failing to grade the respondent’s impairment due to long thoracic nerve, but did not err with respect to the other matters appellant raised; respondent re-examined; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 July 2024 Crown Scaffold Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
25 June 2024.
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 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 (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 employed Jordan King, the respondent, as a scaffolder. On 6 July 2018 the respondent, while working for the appellant, fell 3.5m injuring his neck, left shoulder, back and both knees.
The respondent had surgery on his left shoulder on 2 November 2018 when an arthroscopy, anterior stabilisation, capsular plication and labral reconstruction were done. On
29 August 2019 he had further surgery on his shoulder when further decompression and a repair of a SLAP lesion was done. He also had surgery on his left knee and two surgeries on his right knee.
At the request of his solicitors, Dr Roger…

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 847
Decision Date: 10 December 2024

CaseChat Overview and Summary

The case of Crown Scaffold Pty Ltd v King involved a dispute concerning workers' compensation, specifically focusing on the assessment of the respondent's impairments by the Medical Assessor. The primary issue was whether the Medical Assessor had erred in his assessment of the respondent's impairment due to injury to his long thoracic nerve, whether he had incorrectly combined impairments related to the restricted range of motion of the respondent's left shoulder and the long thoracic nerve injury, and whether he had failed to grade the respondent's impairment due to the long thoracic nerve. These questions were brought before the court following an appeal from the respondent.

The legal issues that the court had to address were centered around the accuracy and thoroughness of the Medical Assessor's report and his methodology in assessing the respondent's impairments. The appellant argued that the Medical Assessor had made errors in his evaluation, particularly in failing to explain his assessment of the long thoracic nerve injury, combining different impairments incorrectly, and not providing a grade for the impairment due to the nerve injury. The court had to examine the Medical Assessor's report, consider the evidence presented by both parties, and determine if the appellant's concerns were substantiated.

In its decision, the court found that the Medical Assessor had indeed erred by failing to grade the respondent's impairment due to the long thoracic nerve injury, but did not find any errors in the other aspects of the assessment that the appellant had raised. The Appeal Panel's conclusion was that the Medical Assessment Certificate should be revoked due to the identified error in the grading of the impairment. Subsequently, the respondent was re-examined, and the court reviewed the new evidence and assessment. The final outcome was that the Medical Assessment Certificate was revoked, and further assessments were ordered to accurately reflect the respondent's impairments.

Orders