Gashi v Lend Lease Structures Pty Limited - [2021] NSWPICMP 164

DETERMINATION OF APPEAL PANEL
CITATION:	Gashi v Lend Lease Structures Pty Limited [2021] NSWPICMP 164
APPELLANT:	Adam Gashi
RESPONDENT:	Lend Lease Structures Pty Limited
APPEAL PANEL:	Brett Batchelor Dr Tommasino Mastroianni Dr John Ashwell
DATE OF DECISION:	7 September 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal by worker on the grounds that the Medical Assessor (MA) had incorrectly assessed him in that he found that radiculopathy was not present in accordance with the criteria in paragraph 4.27 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^thed 1 April 2016 (the Guidelines) and that the modifiers in Table 4.2 of the Guidelines, adding 3% WPI in respect of spinal surgery with residual symptoms and radiculopathy, were not therefore applied; the appellant also alleged that he should have been assessed at 1% WPI in respect of scarring following back surgery pursuant to the table for the evaluation of minor skin impairment (TEMSKI -Table 14.1 of the Guidelines); Held – finding that the MA was correct in his assessment that on his examination of the appellant, neither a major nor a minor criterion should be found such as to enable a conclusion that radiculopathy was present; therefore Table 4.2 modifiers could not apply; finding that the uncomplicated scar for a standard surgical procedure was correctly assessed at 0% WPI in accordance with paragraph 14.6 of the Guidelines and TEMSKI; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 June 2021 Adam Gashi (the appellant/Mr Gashi) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Davies, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 May 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
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

The appellant commenced work for Lend Lease Structures Pty Limited (the respondent) as a formwork carpenter in November 2013. He was employed on a multi storey building under construction at Barangaroo, Sydney, and for about six…

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: [2021] NSWPICMP 164
Decision Date: 7 September 2021

CaseChat Overview and Summary

The case of Gashi v Lend Lease Structures Pty Limited involved the appellant, Mr Gashi, contesting the decision of the Medical Assessor (MA) in relation to his workers compensation claim. The appellant argued that the MA had incorrectly assessed his condition, particularly regarding the presence of radiculopathy, and the application of relevant modifiers for permanent impairment. Additionally, the appellant contended that his scarring following back surgery should have resulted in a 1% whole person impairment (WPI) rating. The dispute was heard in the Civil and Administrative Tribunal of New South Wales (CAT).

The legal issues before the court were whether the MA correctly assessed the appellant’s condition, particularly in regard to the presence of radiculopathy and the application of the modifiers outlined in Table 4.2 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. The court was also required to determine if the assessment of the scarring following back surgery was accurate according to the Guidelines and the table for the evaluation of minor skin impairment (TEMSKI). The appellant's arguments centred on the interpretation and application of these guidelines in assessing his impairments.

The tribunal found that the MA was correct in his assessment that neither a major nor minor criterion for radiculopathy was present, thus no Table 4.2 modifiers were applicable. The tribunal reviewed the evidence and noted that the MA's findings were supported by the medical examination and the relevant criteria in the Guidelines. Regarding the scarring, the tribunal concluded that the MA correctly assessed it as an uncomplicated scar from a standard surgical procedure, resulting in a 0% WPI rating as per the guidelines. The tribunal upheld the MA's assessment and confirmed the Medical Assessment Certificate.

In summary, the tribunal dismissed the appellant's appeal and upheld the MA's assessment that neither radiculopathy nor the scarring warranted additional WPI ratings beyond those already assessed. The tribunal confirmed the Medical Assessment Certificate in its entirety.

Orders