Finch v N. Moit & Sons (NSW) Pty Ltd - [2024] NSWPICMP 703

DETERMINATION OF APPEAL PANEL
CITATION:	Finch v N. Moit & Sons (NSW) Pty Ltd [2024] NSWPICMP 703
APPELLANT:	Shaun Finch
RESPONDENT:	N Moit & Sons (NSW) Pty Ltd
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	9 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal by claimant who suffered a serious hand injury and was seeking a lump sum for the primary psychological consequences thereof; whether Medical Assessor gave adequate reasons for his assessment of 8% whole person impairment; Held – reasons inadequate regarding self-care and social and recreational activities; re-examination ordered; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 April 2024 Shaun Finch, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 March 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 9 February 2024 this matter was referred to the Medical Assessor for assessment of WPI caused by a psychiatric/psychological disorder dated 14 August 2019.
Mr Finch worked in the heavy machine business for almost 30 years. He was working for the respondent for about two years when he suffered a serious accident on 14 August 2019. He was working with heavy machinery, doing excavation 60 metres down when the hydraulic arm moved and wrapped his arm with a chain dragging him 20 feet across the open space. It pulled his left hand and he sustained injuries to his left ring finger and left little finger.
He was taken to St George Hospital and subsequently transferred to Royal North Shore.
Mr Finch thought he was going to be killed as he was dragged.
He underwent surgery which…

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 Finch v N. Moit & Sons (NSW) Pty Ltd 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: [2024] NSWPICMP 703
Decision Date: 9 October 2024

CaseChat Overview and Summary

Finch appealed against a decision of the Workers Compensation Commission of New South Wales, challenging the assessment of his entitlement to compensation for psychological consequences of a hand injury sustained at work. The dispute centred on the adequacy of the reasons provided by the Medical Assessor for concluding that Finch's whole person impairment was 8%. Finch argued that the reasons were inadequate in respect of the impact of his injury on self-care and social and recreational activities, which he claimed warranted a higher level of impairment. The Court of Appeal was tasked with determining whether the Medical Assessor's reasons were sufficient and, if not, what remedy should be ordered.

The court examined the legal standards for assessing the adequacy of reasons provided by a Medical Assessor in workers compensation cases. It noted that the reasons must be sufficient to enable the injured worker to understand the basis of the assessment and to challenge it if necessary. The court considered whether the reasons provided in this case met this standard, particularly in relation to the specific areas of self-care, social and recreational activities. The court found that the reasons were deficient in these respects, as they did not sufficiently explain how the assessment was reached in relation to these activities. This inadequacy undermined the ability of Finch to properly challenge the assessment.

Consequently, the Court of Appeal ordered a re-examination of Finch's impairment, finding that the reasons provided were not adequate to justify the Medical Assessor's conclusion of 8% whole person impairment. The court revoked the Medical Assessment Certificate and directed that a new assessment be conducted, which would provide sufficient reasons for the determination of Finch's impairment. This decision underscored the importance of clear and adequate reasons in workers compensation assessments, ensuring that claimants can effectively understand and challenge their entitlements.

Orders