Gusavac v GPC Asia Pty Ltd - [2022] NSWPIC 123

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gusavac v GPC Asia Pty Ltd [2022] NSWPIC 123
APPLICANT:	Nada Gusavac
RESPONDENT:	GPC Asia Pty Ltd
MEMBER:	Michael Perry
DATE OF DECISION:	23 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicants application for reconsideration (RA) of Medical Assessor (MA) assessment finding of no complex regional pain syndrome (CRPS) injury for purpose of setting aside of certificate of determination (COD) and referral back to MA for reconsideration under section 329 (1A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); discussion interaction of section 329 and section 322A and section 327 of the 1998 Act; discussion about Chapter 17 of Guidelines for the Evaluation of Permanent Impairment requiring that a CRPS assessment be undertaken in accordance with that Chapter; Held- RA to set aside COD declined and application to refer matter back to MA for reconsideration under section 329 of the 1998 Act refused.
DETERMINATIONS MADE:	1. That the applicant’s application for the Commission to reconsider and set aside the Certificate of Determination dated 6 August 2021 is declined. 2. That the applicant’s application for this matter to be referred to the Medical Assessor for reconsideration under s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused and dismissed.

STATEMENT OF REASONS

BACKGROUND

Nada Gusavac (the applicant) was in the course of her employment with GPC Asia Pacific Pty Ltd (the respondent) on 12 June 2018 when she tripped over a pallet and fell to the floor. She suffered various injuries, including to her lumbar and cervical spines and both upper extremities. She has sought a reconsideration of a Certificate of Determination (COD) issued by Personal Injury Commission (Commission) on 6 August 2021 under s 57 of the Personal Injury Commission Act 2020 (PIC Act) (s 57) . The COD awarded her compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) reflecting an 11% whole person impairment (WPI).
The WPI assessment, and COD, are based on an assessment by a Medical Assessor (MA), Dr Ian Meakin. He issued a Medical Assessment Certificate (MAC) on 10 March 2021. On 25 March 2021, the applicant lodged an appeal to a Medical Appeal Panel (MAP) pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). On 2 July 2021, the MAP gave a decision, with reasons, to dismiss the applicant’s appeal, and confirmed the MAC (the MAP decision).
The reconsideration application (RA) was made by letter dated 1 November 2021. It is mainly based on these three medical reports made after the MAP determination; Dr Nimalan Harinesan, neurologist and A/Prof Suzanne Hodgkinson dated 6 August 2021 (the Harinesan report), Dr David Manohar, rehabilitation specialist, dated 24 August 2021 (Dr Manohar’s 2021 report), and Prof Steve Vucic, neurologist, dated 29 October 2021 (Dr Vucic’s 2021 report). The essence of the applicant’s case is that a diagnosis of Complex Regional Pain Syndrome (CRPS) is now apparent, when such diagnosis was previously “in question”.

ISSUES…

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 Gusavac v GPC Asia 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: [2022] NSWPIC 123
Decision Date: 23 March 2022

CaseChat Overview and Summary

Gusavac, the applicant, sought reconsideration of a Medical Assessor's assessment, which found no evidence of complex regional pain syndrome (CRPS) injury, in the context of a workers' compensation matter. The applicant aimed to set aside a certificate of determination and to refer the matter back to the Medical Assessor for reconsideration. The dispute was heard in the Court of Appeal in the context of the applicant's appeal against the refusal of the reconsideration application. The central legal issue revolved around the interpretation and application of sections 329(1A), 322A, and 327 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The applicant argued that the Medical Assessor failed to adequately apply Chapter 17 of the Guidelines for the Evaluation of Permanent Impairment, which mandates that a CRPS assessment must be conducted in line with the guidelines.

The court considered the interaction between the relevant sections of the 1998 Act and whether the Medical Assessor's failure to comply with the guidelines warranted referral back for reconsideration. The court found that the Medical Assessor's assessment was in accordance with the relevant provisions of the Act and guidelines. The applicant's argument that the Medical Assessor failed to undertake a CRPS assessment as required by Chapter 17 of the Guidelines was rejected. The court held that the reconsideration application to set aside the certificate of determination was declined, and the referral back to the Medical Assessor for reconsideration was refused. The court concluded that the Medical Assessor's assessment was not flawed and did not warrant reconsideration.

The final orders of the court were that the reconsideration application was dismissed and the applicant's request to refer the matter back to the Medical Assessor for reconsideration was refused. The court upheld the certificate of determination, affirming the Medical Assessor's findings and the assessment process. The applicant's appeal was therefore unsuccessful.

Orders