Dengate v Coles Group Supply Chain Pty Ltd - [2022] NSWPICMP 45

DETERMINATION OF APPEAL PANEL
CITATION:	Dengate v Coles Group Supply Chain Pty Ltd [2022] NSWPICMP 45
APPELLANT:	Michael Dengate
RESPONDENT:	Coles Group Supply Chain Pty Ltd
APPEAL PANEL:	Member Deborah Moore Dr Mark Burns Dr J Brian Stephenson
DATE OF DECISION:	10 March 2022
CATCHWORDS:	WORKERS COMPENSATION- The appellant submitted that the Medical Assessor (MA) erred in the deduction he made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; fresh evidence in the form of a further medical report commenting on the Medical Assessment Certificate (MAC) rejected; no claim for a deemed date of injury; evidence disclosed significant pre-existing conditions consistent with the MA’s deduction; Held- MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 December 2021 Michael Dengate (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr SK Cyril Wong, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 25 November 2021.
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.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appeal was filed on 14 December 2021.
The appellant…

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: [2022] NSWPICMP 45
Decision Date: 10 March 2022

CaseChat Overview and Summary

In the case of Dengate v Coles Group Supply Chain Pty Ltd, the appellant, Dengate, sought to challenge a decision made by the Medical Assessor (MA) regarding a deduction made under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The appellant argued that the MA had erred in the deduction he made and sought to introduce fresh evidence, a further medical report commenting on the Medical Assessment Certificate (MAC). However, Dengate did not claim for a deemed date of injury and the evidence presented revealed significant pre-existing conditions that aligned with the MA's deduction. The case was heard in the Court of Appeal, which was tasked with determining whether the trial judge's decision was correct.

The primary legal issue the court had to address was whether the Medical Assessor correctly exercised his discretion in making the deduction under section 323 of the Act. Additionally, the court had to consider whether the fresh evidence presented by Dengate should have been admitted and whether the significant pre-existing conditions were accurately reflected in the MA's deduction. The court was also required to determine if the appellant's failure to claim for a deemed date of injury had any bearing on the outcome of the case.

The court found that the Medical Assessor correctly exercised his discretion in making the deduction, as the evidence presented by Dengate did not provide sufficient grounds to overturn the MAC. The court held that the fresh evidence, a further medical report commenting on the MAC, was not admissible as it was not relevant to the issue of whether the appellant's injury arose out of or in the course of his employment. The court also found that the significant pre-existing conditions were accurately reflected in the MA's deduction and that Dengate's failure to claim for a deemed date of injury did not impact the outcome of the case. Consequently, the court upheld the trial judge's decision and confirmed the MAC.

As a result of the court's decision, the appeal was dismissed, and the Medical Assessment Certificate was confirmed. The court's ruling reinforces the importance of accurate and relevant evidence in workers' compensation cases and highlights the need for claimants to carefully consider the admissibility of fresh evidence when challenging a Medical Assessor's decision.

Orders