Dotlic v Now Careers Pty Ltd - [2023] NSWPICMP 260

DETERMINATION OF APPEAL PANEL
CITATION:	Dotlic v Now Careers Pty Ltd [2023] NSWPICMP 260
APPELLANT:	Djordje Dotlic
RESPONDENT:	Now Careers Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	13 June 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in making a deduction pursuant to section 323; the Appeal Panel found ample evidence of a pre-existing condition that contributed to the impairment; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 February 2023 Djordje Dotlic (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, (MA), who issued a Medical Assessment Certificate (MAC) on 27 January 2023.
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).

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.
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 although one was requested, no specific reasons were provided as to why this was necessary, and in any event, we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in the s 323 deduction he…

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 Dotlic v Now Careers Pty Ltd

Details

AGLC: Dotlic v Now Careers Pty Ltd [2023] NSWPICMP 260
Case: [2023] NSWPICMP 260
Decision Date: 13 June 2023

CaseChat Overview and Summary

Dotlic, the appellant, contested a decision made by Now Careers Pty Ltd regarding a workers' compensation claim. The dispute centred around the interpretation and application of the Workplace Injury Management and Workers Compensation Act 1998. The appellant argued that the Medical Assessor had made an error by deducting benefits due to a pre-existing condition under section 323 of the Act. The case was heard in the Queensland Court of Appeal, where the Appeal Panel needed to determine whether the Medical Assessor's decision was legally sound and supported by evidence.

The primary legal issue before the court was whether the Medical Assessor was correct in reducing the compensation payable to the appellant because of a pre-existing condition that contributed to the impairment. The appellant contended that the deduction was not justified, while Now Careers Pty Ltd maintained that the deduction was appropriate under the Act. The court had to consider whether the Medical Assessor had correctly applied the statutory provisions and whether the evidence adequately supported the finding of a pre-existing condition.

In delivering the judgment, the court examined the evidence presented to the Medical Assessor, including medical reports and testimonies. The Appeal Panel found that there was ample evidence to support the conclusion that a pre-existing condition existed and contributed to the appellant's impairment. The court held that the Medical Assessment Certificate was correctly issued, confirming the deduction made by the Medical Assessor. Consequently, the appeal was dismissed, and the decision of the Medical Assessor was upheld.

The final orders of the court confirmed the decision of the Medical Assessor, dismissing the appeal and affirming the deduction of benefits due to the pre-existing condition. The appellant was not entitled to the full compensation originally claimed, as the court found the deduction was justified under the Act.

Orders