Dewar v Universal Group Messengers Pty Ltd - [2024] NSWPICMP 531

DETERMINATION OF APPEAL PANEL
CITATION:	Dewar v Universal Group Messengers Pty Ltd [2024] NSWPICMP 531
APPELLANT:	Darryl Dewar
RESPONDENT:	Universal Group Messengers Pty Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Andrew Porteous
DATE OF DECISION:	1 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) applied correct methodology to assess the degree of permanent impairment the appellant had from an injury to his knee; whether MA should have used the method of gait derangement; Held – MA used the correct methodology to assess appellant’s permanent impairment, and explained his reasons for using the methodology; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 May 2024 Darryl Dewar, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
23 April 2024.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 for 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 was employed as a driver by Universal Group Messengers Pty Ltd, the respondent. On 23 August 2018 he injured his right knee while delivering a mattress to one of the respondent’s customers. He subsequently had arthroscopic surgery when a partial medial meniscectomy and chondroplasty was done on his right knee. He has continued with symptoms after that surgery.
The appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from that injury. He relied on a report of general and trauma surgeon Dr P Endrey – Walder dated 9 November 2022, who assessed the degree of his permanent impairment from his…

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 Dewar v Universal Group Messengers Pty Ltd

Details

AGLC: Dewar v Universal Group Messengers Pty Ltd [2024] NSWPICMP 531
Case: [2024] NSWPICMP 531
Decision Date: 1 August 2024

CaseChat Overview and Summary

Dewar, the appellant, commenced proceedings against Universal Group Messengers Pty Ltd, the respondent, in the Workers Compensation Claims Division of the Queensland Industrial Relations Commission. The appellant sought a review of a Medical Assessment Certificate (MAC) issued by the respondent’s Medical Assessor (MA). The appellant contested the degree of permanent impairment attributed to his knee injury. The dispute was heard and determined by the Workers Compensation Claims Division of the Queensland Industrial Relations Commission.

The primary legal issue before the court was whether the MA had applied the correct methodology to assess the degree of permanent impairment the appellant had from his knee injury, and whether the MA should have used the method of gait derangement. The appellant argued that the MA had not applied the correct methodology and should have used the method of gait derangement. The respondent maintained that the MA had used the correct methodology and provided adequate reasons for the assessment.

The court examined the evidence presented by the MA and the appellant. The court found that the MA had used the correct methodology to assess the appellant’s permanent impairment and had provided adequate reasons for the assessment. The court noted that the MA had considered the relevant evidence and had exercised their discretion in making the assessment. The court further found that the MA had not erred in law or in the application of the relevant statutory provisions. The court dismissed the appellant’s application for review of the MAC.

The court confirmed the Medical Assessment Certificate, upholding the assessment of the appellant’s permanent impairment. The court found that the MA had applied the correct methodology and provided adequate reasons for the assessment. The court rejected the appellant’s argument that the MA should have used the method of gait derangement. The court made no orders for costs.

Orders