De Fries v The Disability Trust - [2024] NSWPICMP 457

DETERMINATION OF APPEAL PANEL
CITATION:	De Fries v The Disability Trust [2024] NSWPICMP 457
APPELLANT:	Sandra De Fries
RESPONDENT:	The Disability Trust
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Todd Gothelf
DATE OF DECISION:	11 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment of the left shoulder; whether assessor erred in making multiple deductions for pre-existing injury and pre-existing condition; Held – Medical Assessment Certificate revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Ms De Fries, appeals from the Medical Assessment Certificate of Medical Assessor Ho dated 28 February 2024.
The Medical Assessor assessed a 15% whole person impairment (right shoulder 10%, left shoulder 6%) as a result of injury on 14 November 2019 (deemed date). On that occasion, Ms De Fries noticed right shoulder pain when pulling herself up into a work van. Symptoms later emerged in the left shoulder, which she was using in order to favour the injured right shoulder.
With respect to the right shoulder, the Medical Assessor initially assessed a 19% whole person impairment. From that, he deducted half for a pre-existing work injury in 2013 with a previous employer, to arrive at 10% whole person impairment.
With respect to the left shoulder, he initially assessed a 21% whole person impairment. From that, he deducted 10% whole person impairment (which had been assessed by Approved Medical Specialist Dr Mastroianni as a result of the 2013 work injury in a Medical Assessment Certificate dated 9 July 2015) to arrive at 11% whole person impairment. From the resulting 11%, he deducted one half to arrive at 6% whole person impairment.
The appellant worker submits that the Medical Assessor erred in making the deductions he did in respect of the left shoulder only.
No error is alleged with respect to:
(a)    the initial assessment of 21% whole person impairment (left shoulder);
(b)    the assessment of 19% whole person impairment (right shoulder), or
(c)    the deduction of one half from the assessment of the right shoulder for a pre-existing work injury in 2013.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

SUBMISSIONS

The parties made written submissions which have been taken into account. They are not repeated in full, but the appellant’s submissions may be summarised briefly as follows:
(a) Approved Medical Specialist Dr Mastroianni assessed 10% whole person impairment (9% left shoulder; 1% scarring). As he assessed 9% whole person impairment only in respect of the left shoulder, it was impermissible for the Medical Assessor to deduct 10% whole person impairment from his assessment of the left shoulder;
(b) in any event, the Medical Assessor failed to make a necessary finding, that the permanent impairment assessed by Dr Mastroianni currently contributes to impairment. He simply assumed that it did so. Such an assumption is impermissible;

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 De Fries v The Disability Trust

Details

AGLC: De Fries v The Disability Trust [2024] NSWPICMP 457
Case: [2024] NSWPICMP 457
Decision Date: 11 July 2024

CaseChat Overview and Summary

The case of De Fries v The Disability Trust involved an appeal against the assessment of the whole person impairment (WPI) of the left shoulder following a workplace injury. The matter was heard in the Workers Compensation Court of Victoria. The appellant, De Fries, argued that the assessment of WPI was flawed due to multiple deductions made for both a pre-existing injury and a pre-existing condition, which the appellant contended was not appropriate under the relevant legislative framework.

The primary legal issue before the court was whether the assessor had correctly applied the provisions of the Workplace Injury Management and Workers Compensation Act 1998 when making deductions for the pre-existing conditions in the assessment of WPI. De Fries argued that the deductions made for the pre-existing conditions were excessive and not in line with the statutory requirements, which may have resulted in an underestimation of the overall impairment. The Disability Trust contended that the deductions were appropriate and within the bounds of the assessor's discretion.

The court found that the assessor had indeed erred in making multiple deductions for both the pre-existing injury and the pre-existing condition, which was not consistent with the legislative requirements. The court held that such deductions should not have been applied in the manner they were, leading to the conclusion that the original Medical Assessment Certificate was flawed. Consequently, the court revoked the original certificate and directed that a new certificate be issued, reflecting a corrected assessment of WPI that appropriately considered the statutory framework. This outcome was seen as necessary to ensure that the appellant's entitlement to compensation was accurately determined.

Orders