Garwell v Alphasafe (NSW) Pty Ltd - [2025] NSWPICMP 106

DETERMINATION OF APPEAL PANEL
CITATION:	Garwell v Alphasafe (NSW) Pty Ltd [2025] NSWPICMP 106
APPELLANT:	Ryan Garwell
RESPONDENT:	Alphasafe (NSW) Pty Ltd
APPEAL PANEL
SENIOR MEMBER:	Kerry Haddock
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Andrew Porteous
DATE OF DECISION:	19 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Appellant appealed against finding of Medical Assessor (MA) that he had not reached maximum medical improvement (MMI); MA found inconsistencies in range of motion of left upper extremity and therefore found the appellant had not reached MMI; Held – assessment made on basis of incorrect criteria; Medical Assessment Certificate (MAC) contained demonstrable error; appellant examined by member of Appeal Panel; MAC revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 September 2024, Ryan Garwell lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 August 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 - sets 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 sustained injury to his right upper extremity (right shoulder) on 9 October 2019, when he lifted a piece of aluminium sheeting. The appellant has also sustained a consequential condition of his left upper extremity (left shoulder) and cervical spine.
The appellant made a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury to his right upper extremity; left upper extremity; and cervical spine.
The appellant lodged an Application to Resolve a Dispute with the Personal Injury Commission (Commission) on 29 September 2022.
The appellant claimed to have 30% whole person impairment (WPI) as a result of injury on
9 October 2019 to his right upper extremity; left upper extremity; cervical spine; thoracic spine; and TEMSKI scarring.
The respondent lodged its…

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: [2025] NSWPICMP 106
Decision Date: 19 February 2025

CaseChat Overview and Summary

The parties involved in this case were the appellant, Mr. Garwell, and the respondent, Alphasafe (NSW) Pty Ltd. The nature of the dispute was centred around the appellant's claim for workers' compensation, specifically regarding whether he had reached maximum medical improvement (MMI) following an injury. The case was heard in the relevant court, which reviewed the decision of the Medical Assessor (MA) who had determined that the appellant had not reached MMI.

The legal issues that the court was required to decide included whether the MA's assessment was made on the basis of correct criteria and whether the Medical Assessment Certificate (MAC) contained any demonstrable errors. The MA had found inconsistencies in the range of motion of the appellant's left upper extremity, which led to the conclusion that the appellant had not reached MMI. The appellant argued that the assessment was based on incorrect criteria and that the MAC contained errors.

The court found that the assessment was indeed made on the basis of incorrect criteria. The MA had relied on inconsistencies in the range of motion of the left upper extremity as a determinant of whether the appellant had reached MMI. However, the court held that this was not an appropriate criterion for making such a determination. Additionally, the court found that the MAC contained a demonstrable error, as the appellant was examined by a member of the Appeal Panel, which had not occurred previously. As a result, the court revoked the MAC and issued a new one, in light of the correct criteria and the absence of error in the assessment process.

Orders