Habak v State Emergency Services - [2021] NSWPICMP 191

DETERMINATION OF APPEAL PANEL
CITATION:	Habak v State Emergency Services [2021] NSWPICMP 191
APPELLANT:	Joseph Habak
RESPONDENT:	State Emergency Services
Appeal Panel:	Member Jane Peacock Dr Robert Payten Dr Henley Harrison
DATE OF DECISION:	13 October 2021
CATCHWORDS:	wORKERS cOMPENSATION- Acoustic trauma; Medical Assessor could not obtain audiogram and relied on other expert’s findings; did not complete Medical Assessment Certificate (MAC) as required; Held - Appeal Panel satisfied as to error and that re-examination was required; MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 December 2020 Mr Joseph Habak (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by
Dr Kenneth Howison, a MA, who issued a Medical Assessment Certificate (MAC) on 18 November 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 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant sought that he be re-examined by a MA who is a member of the Appeal Panel. The respondent submitted that a re-examination was not necessary. As a result of the Panel’s preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Appeal Panel was satisfied that the MA had erred.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
In addition the Appeal Panel as a result of its preliminary review directed as follows:
“The Panel has determined that the following medical records, not already before it, should be produced:
1Vestibular Function Test conducted at Prince of Wales Hospital April 2019
2CERA conducted by Dr Brian Williams (x2)
3CERA conducted by Precision Hearing
4Vestibular function test conducted by Precision Hearing”
There was some considerable delay in the documents being…

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.

Continue reading Habak v State Emergency Services

Details

AGLC: Habak v State Emergency Services [2021] NSWPICMP 191
Case: [2021] NSWPICMP 191
Decision Date: 13 October 2021

CaseChat Overview and Summary

The appellant in this case, Habak, sought to challenge the decision of the respondent, the State Emergency Services, to revoke his medical assessment certificate (MAC) for workers compensation purposes. The appellant had suffered acoustic trauma and applied for compensation, which was initially granted. However, the State Emergency Services subsequently revoked the MAC, asserting that the initial assessment was flawed due to the medical assessor's failure to obtain an audiogram and reliance on another expert's findings, and because the assessor did not complete the required MAC. The appellant's appeal to the Appeal Panel was dismissed, leading to his challenge in the court.

The central legal issue before the court was whether the Appeal Panel was correct in upholding the decision to revoke the MAC. Specifically, the court had to determine if the failure to obtain an audiogram and the reliance on another expert's findings constituted an error in the medical assessment that warranted the revocation of the MAC. Additionally, the court needed to consider whether the omission of completing the MAC was a sufficient ground for revocation.

The court held that the Appeal Panel's decision was correct. It found that the medical assessor's failure to obtain an audiogram and reliance on another expert's findings constituted a significant error in the assessment process. This error was compounded by the failure to complete the MAC as required, which further undermined the integrity of the initial assessment. The court found that the Appeal Panel was justified in concluding that a re-examination was necessary to ensure an accurate and comprehensive assessment of the appellant's condition. Consequently, the revocation of the MAC was upheld.

The court's decision was final, and the appellant's appeal was dismissed. The revocation of the MAC stood, and the appellant's claim for compensation was subject to a re-assessment.

Orders