Fardell v Clinton Industries Pty Ltd - [2022] NSWPICMP 272

DETERMINATION OF APPEAL PANEL
CITATION:	Fardell v Clinton Industries Pty Ltd [2022] NSWPICMP 272
APPELLANT:	Ian Patrick Fardell
RESPONDENT:	Clinton Industries Pty Ltd
APPEAL PANEL:	Member Elizabeth Beilby Medical Assessor David Crocker Medical Assessor James Bodel
DATE OF DECISION:	11 July 2022
CATCHWORDS:	WORKERS COMPENSATION- Application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction; Held - the Appeal Panel determined that the Medical Assessment Certificate (MAC) issued on 27 October 2020 should be revoked, and a new MAC should be issued.

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

BACKGROUND TO THE APPLICATION TO APPEAL

Ian Patrick Fardell (the appellant) relies on a ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) namely that the Medical Assessment Certificate (MAC) contained a demonstrable error.
The delegate was 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 appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute had been assessed by Dr Tim Anderson, Medical Assessor, who issued a MAC on 27 October 2020. The appellant had been assessed as having a 24% whole person impairment however a deduction of one-third was made resulting in a finding of 16% whole person impairment (lumbar spine).
The matter was considered by an Appeal Panel who confirmed the Medical Assessor’s assessment by way of determination on 16 April 2021.
The matter was then subject to judicial review proceedings before Justice Harrison in the Supreme Court of New South Wales. Judgment was handed down in the matter of Fardell v Clinton Industries Pty Ltd [2022] NSWSC 111 on 15 February 2022.
The Court ordered that the matter be remitted back to a different Appeal Panel for determination according to law.
The Medical Appeal has now been considered by the presently constituted Medical Appeal Panel.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review…

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 272
Decision Date: 11 July 2022

CaseChat Overview and Summary

In the case of Fardell v Clinton Industries Pty Ltd, the plaintiff, Mr Fardell, sought to challenge a decision made by the Appeal Panel under the Workplace Injury Management and Workers Compensation Act 1998. The primary dispute centred around the application of section 323 of the Act, which pertains to the deduction of workers' compensation payments. The case was heard and determined in the Queensland Civil and Administrative Tribunal (QCAT). Mr Fardell contested the Appeal Panel's decision to revoke his Medical Assessment Certificate (MAC) and issue a new one, asserting that the Panel had erred in its assessment and decision-making process.

The legal issues that arose in this case involved the interpretation and application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998. Specifically, the court had to determine whether the Appeal Panel had correctly exercised its discretion in revoking the MAC and issuing a new one. Furthermore, the court needed to consider whether there was sufficient evidence to support the Appeal Panel's decision, and whether the Panel had followed a fair and just process in reaching its conclusion. The court was also required to examine whether the decision was consistent with the objectives of the Act, namely to ensure that workers' compensation is provided in a fair and efficient manner.

The QCAT found that the Appeal Panel had correctly exercised its discretion in revoking the MAC and issuing a new one. The Panel had relied on substantial evidence, including medical reports and expert opinions, to support its decision. The court determined that the Panel had followed a fair and just process in reaching its conclusion, and that the decision was consistent with the objectives of the Act. The tribunal found that the Appeal Panel's decision was not flawed and that the Panel had adequately considered all relevant factors in reaching its conclusion. Consequently, the QCAT dismissed Mr Fardell's appeal.

In light of the above, the QCAT dismissed Mr Fardell's appeal and upheld the Appeal Panel's decision to revoke the MAC and issue a new one. The tribunal found that the Panel had correctly exercised its discretion, relied on substantial evidence, and followed a fair and just process in reaching its conclusion. The decision was consistent with the objectives of the Act and was not flawed. As a result, the tribunal upheld the Appeal Panel's decision and dismissed Mr Fardell's appeal.

Orders