Equity Transport Group Pty Ltd v Papera - [2021] NSWPICMP 105

DETERMINATION OF APPEAL PANEL
CITATION:	Equity Transport Group Pty Ltd v Papera [2021] NSWPICMP 105
APPELLANT:	Equity Transport Group Pty Ltd
RESPONDENT:	Miranda Papera
APPEAL PANEL:	Member Catherine McDonald Dr Drew Dixon Dr Margaret Gibson
DATE OF DECISION:	28 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for compensation for left shoulder injury and scarring; referral to Medical Assessor for assessment of left upper extremity without limitation; Medical Assessor assessed impairment arising from shoulder and elbow; no claim re elbow; Skates v Hills Industries Ltd considered; Held- MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 March 2021 Equity Transport Group Pty Ltd (Equity Transport) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Siu Kin Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 March 2021.
The appellant relies on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that 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 grounds 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).

RELEVANT FACTUAL BACKGROUND

Ms Papera suffered an injury to her left shoulder when she tripped over a phone charger cord in her office on 10 August 2019. Radiology revealed a displaced lesser tuberosity fracture. Dr A Low, orthopaedic surgeon, undertook an open left shoulder arthroscopic acromioplasty, biceps tenodesis and subscapularis repair on 23 September 2019.
The referral to the Medical Assessor was in respect of the left upper extremity and scarring under the Table for the Evaluation of Minor Skin Impairments (TEMSKI). It did not specify that the injury was to Ms Papera’s shoulder.
The Medical Assessor said that Ms Papera injured her left shoulder and left elbow. He assessed 26% upper extremity impairment (UEI) in respect of her shoulder and 10% UEI in respect of her left elbow. He combined those figures to reach 30% UEI or 18% whole person impairment (WPI). He assessed an additional 1% for scarring.

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…

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.

Keep reading for free

Create a free CaseChat account to read Equity Transport Group Pty Ltd v Papera and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPICMP 105
Decision Date: 28 June 2021

CaseChat Overview and Summary

In the matter of Equity Transport Group Pty Ltd versus Papera, the matter was heard in the Workers Compensation Commission of Victoria. The dispute centred around a claim for compensation for a left shoulder injury and subsequent scarring. Papera sought compensation for the injuries sustained during his employment, and the case required the court to determine whether the compensation claim was valid and if the assessment conducted by the Medical Assessor was appropriate.

The primary legal issues that the court had to address were whether the referral to the Medical Assessor was correctly formulated and whether the assessment of impairment was limited to the shoulder or if it should have encompassed the elbow as well. The court needed to consider the precedent set in Skates v Hills Industries Ltd, which dealt with similar issues regarding the scope of assessments for compensation claims.

The court found that the referral to the Medical Assessor was not adequately specified, as it did not limit the assessment to the left upper extremity, which included the shoulder. Consequently, the court determined that the Medical Assessor assessed impairment arising from both the shoulder and the elbow. However, there was no claim made regarding the elbow. Given this, the court revoked the Medical Assessment Certificate (MAC). The decision was influenced by the precedent set in Skates v Hills Industries Ltd, which emphasised the importance of clear and precise referrals to Medical Assessors in workers compensation claims.

The final order of the court was to revoke the MAC issued in this case, as the referral to the Medical Assessor did not sufficiently limit the scope of the assessment to the shoulder only. The court emphasised that clear and precise referrals are crucial in ensuring that the assessments align with the specific claims made by the employee.

Orders