Hakainsson v Direct Group Pty Ltd - [2024] NSWPICMP 761

DETERMINATION OF APPEAL PANEL
CITATION:	Hakainsson v Direct Group Pty Ltd [2024] NSWPICMP 761
APPELLANT:	Denice Hakainsson
RESPONDENT:	Direct Group Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	Todd Gothelf
DATE OF DECISION:	6 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether deduction Medical Assessor (MA) made under section 323(1) involved error; whether appellant had a pre-existing condition; Held – the appellant had a pre-existing condition and that condition contributed to her present permanent impairment; MA was correct to engage section 323(1) and the deduction he made did not involve error; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 August 2024 Denice Hakainsson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Drew Dixon, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 July 2024.
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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

On 18 July 2008 the appellant injured her lumbar spine whilst working for Direct Group Pty Ltd. Her injury occurred as a consequence of a lift in which she was traveling coming to a sudden stop and jamming, which caused her to jar her back.
The appellant first consulted her general practitioner, Dr Ian Longhurst, on
28 November 2008 regarding her injury, at which time she described to her doctor feeling a “crunch in her lower back” at the time she suffered her injury. She also described experiencing a repeat of that sensation a couple of weeks after the incident and also experiencing tingling down her legs centrally and past her knee to the lateral leg and calf on the left.
Dr Longhurst referred her for a CT scan of her lumbar spine, which was done on
5 January 2009. The report…

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: Hakainsson v Direct Group Pty Ltd [2024] NSWPICMP 761
Case: [2024] NSWPICMP 761
Decision Date: 6 November 2024

CaseChat Overview and Summary

Hakainsson, the appellant, brought a claim against Direct Group Pty Ltd, the respondent, seeking review of a decision to reduce her workers' compensation benefits. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The core issue before the tribunal was whether the Medical Assessor (MA) correctly applied section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 in making a deduction from the appellant's benefits due to a pre-existing condition that contributed to her current permanent impairment. The tribunal needed to determine if the MA's deduction was erroneous and if the appellant had a condition that pre-dated her workplace injury.

The tribunal examined the evidence and submissions from both parties, focusing on the appellant's medical history and the MA's assessment. It found that the appellant had a documented history of a pre-existing condition which was exacerbated by her work-related injury. The tribunal considered the Medical Assessment Certificate and the MA's reasoning in concluding that the appellant's pre-existing condition did indeed contribute to her current state of permanent impairment. Given the evidence, the tribunal determined that the MA correctly applied the relevant provisions of the Act and that the deduction made was justified. Consequently, the tribunal upheld the MA's decision and dismissed the appellant's claim for review.

The tribunal's decision was based on the thorough analysis of the medical evidence and the application of the statutory provisions. The tribunal found that the MA's assessment was both reasonable and in line with the statutory requirements, and therefore, the deduction made from the appellant's benefits was not erroneous. As a result, the tribunal confirmed the Medical Assessment Certificate and dismissed the appellant's application for review.

Orders