Gencer v Chelsam Joinery Pty Ltd - [2021] NSWPICMP 84

DETERMINATION OF APPEAL PANEL
CITATION:	Gencer v Chelsam Joinery Pty Ltd [2021] NSWPICMP 84
APPELLANT:	Faruk Gencer
RESPONDENT:	Chelsam Joinery Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Dr Drew Dixon Dr Tommasino Mastroianni
DATE OF DECISION:	3 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Arbitrator remitted matter to the Registrar to refer to an AMS for assessment of whole person impairment (WPI) of the cervical spine and thoracic spine as a result of injury on 22 February 2018; the AMS found that there had not been a significant injury to either the cervical spine or the thoracic spine and did not give any further consideration to the assessment of any impairment in the cervical spine or the thoracic spine; the AMS did not refer to any of his clinical findings in those body parts, did not identify which DRE category was appropriate to those two areas and gave no reasons why any particular DRE category was to be assessed; Held- in failing to make a proper assessment of both the cervical spine and thoracic spine, the AMS made a demonstrable error; worker re-examined and MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 February 2020 Faruk Gencer (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 24 January 2020.
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, 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.
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

In these proceedings, the appellant is claiming lump sum compensation in respect of an injury to the cervical spine, thoracic spine and lumbar spine as a result of an injury in the course of his employment as a cabinet maker on 22 February 2018. The appellant alleged that he was injured when he was lifting a large cabinet weighting 30-40kilograms with a co-worker and he experienced an immediate onset of…

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 84
Decision Date: 3 June 2021

CaseChat Overview and Summary

The case of Gencer v Chelsam Joinery Pty Ltd involved a worker who had sustained injuries during employment, leading to a workers' compensation claim. The dispute centred around the assessment of whole person impairment (WPI) of the worker's cervical and thoracic spines, following an injury on 22 February 2018. The matter was referred to an Approved Medical Specialist (AMS) for evaluation, but the AMS concluded that there had not been a significant injury to either the cervical spine or the thoracic spine, without further assessment of impairment in those areas. The case was heard by the Court of Appeal, which needed to determine whether the AMS had made a proper assessment of the injuries.

The legal issues revolved around whether the AMS had correctly assessed the impairments resulting from the injuries and whether the AMS's failure to assess impairments constituted a demonstrable error. The key question was whether the AMS's omission to evaluate the impairments properly meant the assessment was flawed. The worker argued that the AMS did not refer to any clinical findings related to the cervical and thoracic spines, did not identify the appropriate DRE category, and did not provide reasons for the assessment of any particular DRE category.

The Court of Appeal found that the AMS's failure to make a proper assessment of both the cervical spine and thoracic spine amounted to a demonstrable error. The AMS did not refer to any of the clinical findings related to these body parts, did not identify the appropriate DRE category, and provided no reasons for their assessment. This lack of a proper evaluation was deemed significant, as it precluded any meaningful assessment of the impairments. Consequently, the Court revoked the Medical Assessment Certificate issued by the AMS, and the worker was re-examined.

The final orders of the Court included the revocation of the Medical Assessment Certificate and the re-examination of the worker to ensure a proper assessment of the injuries and any resulting impairments. The Court's decision underscored the necessity for thorough and reasoned evaluations in workers' compensation claims to ensure that all injuries are adequately assessed and addressed.

Orders