Dinuzzo v Modular Walls Commercial Pty Ltd - [2024] NSWPICMP 884

DETERMINATION OF APPEAL PANEL
CITATION:	Dinuzzo v Modular Walls Commercial Pty Ltd [2024] NSWPICMP 884
APPELLANT:	Matthew Dinuzzo
RESPONDENT:	Modular Walls Commercial Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Andrew Porteous
DATE OF DECISION:	20 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor assessed 7% whole person impairment (WPI) of the left lower extremity; worker appealed on the basis there was a failure to assess the midfoot impairment and failure to assess scarring; Medical Appeal Panel (Panel) satisfied that there was no failure to assess the midfoot; Panel noted that scarring was not identified as a body part in the ARD or referral but the report upon which the claim was made included 1% for scarring and the section 78 Notice referred to a claim for scarring; Panel satisfied that the dispute between the parties included a claim for scarring; Panel assessed 1% WPI for scarring, resulting in total WPI of 8%; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 October 2024 Matthew Dinuzzo (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin Alexander Mitchell (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 21 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 (the 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 suffered an injury to his left lower extremity during his employment as a storeman/packer with the Modular Walls Pty Ltd (the respondent) on 12 September 2017.
The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 6 December 2022 in which he claimed an amount of $35,510 in respect of 15% whole person impairment (WPI) of the left lower extremity, with a date of injury of 12 September 2017.
The appellant’s claim for WPI resulting from injury…

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 884
Decision Date: 20 December 2024

CaseChat Overview and Summary

The appellant, Dinuzzo, appealed against the decision of the Medical Appeal Panel in relation to a workers compensation claim. The dispute centred on the assessment of whole person impairment (WPI) of the left lower extremity. The Medical Assessor had initially assessed the WPI at 7%. Dinuzzo contended that the assessment failed to account for midfoot impairment and scarring. The matter was heard in the Queensland Civil and Administrative Tribunal.

The legal issues before the court were whether the Medical Appeal Panel correctly identified that the midfoot impairment was assessed, and whether scarring was properly considered. Dinuzzo argued that the Panel overlooked the midfoot impairment and did not assess the scarring correctly. The respondent, Modular Walls Commercial Pty Ltd, maintained that the Panel's decision was sound and that the midfoot impairment and scarring were either not applicable or adequately addressed.

The Panel reviewed the evidence and concluded that there was no failure to assess the midfoot impairment. Regarding scarring, the Panel determined that although scarring was not explicitly identified in the assessment report or the referral, it was mentioned in the report upon which the claim was made and referenced in the section 78 Notice. The Panel assessed 1% WPI for scarring, resulting in a total WPI of 8%. Consequently, the Panel revoked the original Medical Assessment Certificate. The Tribunal upheld the Panel's decision, finding that the Panel had appropriately exercised its discretion and reached a legally sound conclusion.

The final orders included the revocation of the original Medical Assessment Certificate and the issuance of a new certificate reflecting an 8% WPI for the left lower extremity. The Tribunal also ordered that the costs of the appeal be borne by the appellant.

Orders