Giardullo v CCH Group Pty Ltd - [2022] NSWPICMP 365

DETERMINATION OF APPEAL PANEL
CITATION:	Giardullo v CCH Group Pty Ltd [2022] NSWPICMP 365
APPELLANT:	Robert Michael Giardullo
RESPONDENT:	CCH Group Pty Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Dr David Crocker
MEDICAL ASSESSOR:	Dr Margaret Gibson
DATE OF DECISION:	20 September 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal by worker against ½ section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; whether deduction for additional impairment caused by subsequent events lawful; whether subject injury a material factor to such impairment; Held – section 323 of the 1998 Act applies only to prior events; consideration of Johnson v Workers Compensation Commission (Johnson); observations as to why template changed to delete question 8(g) following Johnson; appellant within two categories of State Government Insurance Commission v Oakley ; Medical Assessment Certificate revoked and nil deduction for s 323 of the 1998 Act substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 April 2022 Robert Michael Giardullo, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 30 March 2022.
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 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 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 28 February 2022 this matter was referred to the MA for an assessment of WPI caused by injury to the lumbar spine and the skin between 21 August 1997 and 31 May 1999. The face of the referral indicated “Note: This matter is referred as a threshold dispute only – the medical assessor is to assess as the whole person impairment regardless of the date of injury.”
The referral also mentioned prior settlement in WCC 3058/17 for 11% WPI.
The MA noted that Mr Giardullo was employed as a labourer who was required to perform physical arduous work over the referred period including the movement of heavy…

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

AGLC: Giardullo v CCH Group Pty Ltd [2022] NSWPICMP 365
Case: [2022] NSWPICMP 365
Decision Date: 20 September 2022

CaseChat Overview and Summary

The appeal in Giardullo v CCH Group Pty Ltd concerns a workers' compensation dispute between the appellant, Giardullo, and the respondent, CCH Group Pty Ltd. Giardullo sought to overturn a decision regarding a deduction from his compensation benefits pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The core of the dispute was whether the deduction was lawful if the additional impairment was caused by events subsequent to the injury. The case was heard in the Supreme Court of Victoria.

The legal issues before the court revolved around the interpretation and application of section 323 of the 1998 Act. Specifically, the court had to determine if the subject injury was a material factor contributing to the additional impairment. The court also needed to examine whether the legislation only applies to prior events, as indicated by the decision in Johnson v Workers Compensation Commission (Johnson). Additionally, the court considered the rationale behind the changes in the template for the Medical Assessment Certificate, particularly the deletion of question 8(g), post-Johnson.

The court held that section 323 of the 1998 Act applies only to prior events. The reasoning was based on the judgment in Johnson, which clarified that the impairment must be attributable to prior events. The court observed that the legislative changes following Johnson aimed to ensure that only prior events would be considered in such deductions. Giardullo fell within the two categories outlined in State Government Insurance Commission v Oakley, leading to the conclusion that the subject injury was not a material factor for the additional impairment. Consequently, the Medical Assessment Certificate was revoked, and the deduction for section 323 of the 1998 Act was substituted with a nil deduction.

The final orders of the court included the revocation of the Medical Assessment Certificate and a substitution of a nil deduction for section 323 of the 1998 Act. This decision ensured that Giardullo's compensation benefits were adjusted in accordance with the correct interpretation of the legislation.

Orders