Harbach v Noni B Holdings Pty Ltd - [2024] NSWPICMP 803

DETERMINATION OF APPEAL PANEL
CITATION:	Harbach v Noni B Holdings Pty Ltd [2024] NSWPICMP 803
APPELLANT:	Renee Harbach
RESPONDENT:	Noni B Holdings Pty Limited
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	27 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) made a deduction of one half for pre-existing conditions in the right hip and right knee; MA failed to provide adequate reasons for the deduction in circumstances where the worker was asymptomatic before the work injury; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 September 2024 Renee Harbach (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 4 September 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 in the MAC of the Medical Assessor. 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 (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 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

The appellant suffered an injury to her right hip and right knee back when she tripped on a piece of cabling and her right knee hit a cabinet.
The Appellant lodged an Application for Assessment by a Medical Assessor in the Personal Injury Commission (Commission) on 17 June 2024 for assessment as to whether the degree of permanent impairment is more that 20% (s 39, Workers Compensation Act 1987 (1987 Act)) and assessment as to whether the degree of permanent impairment is more that 30% (s 32A 1987 Act.)
On 17 July 2024 Member Seaton issued a Certificate of Determination - Consent Orders as follows;
“1. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows;
a. date of injury: 22 February 2019;
b. body systems/parts: right lower extremity (right hip…

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: [2024] NSWPICMP 803
Decision Date: 27 November 2024

CaseChat Overview and Summary

The case of Harbach v Noni B Holdings Pty Ltd involved a worker who sustained injuries at work and subsequently received a medical assessment certificate from a Medical Assessor. The assessor deducted one half of the compensation due to pre-existing conditions in the right hip and right knee. The worker contested this deduction, arguing that the assessor failed to provide adequate reasons, especially since the worker was asymptomatic before the work injury. The dispute was brought before the court to determine whether the deduction was justified and whether the assessor provided sufficient reasons.

The court had to decide whether the deduction made by the Medical Assessor was appropriate and whether the assessor provided adequate reasons for the deduction. The primary focus was on whether the pre-existing conditions significantly contributed to the worker's current state and whether the worker was asymptomatic before the injury. The court also examined the adequacy of the reasons provided by the Medical Assessor to support the deduction.

In its reasoning, the court found that the Medical Assessor did not adequately justify the deduction for the pre-existing conditions. The court highlighted that the worker was asymptomatic before the work injury, and thus, the pre-existing conditions did not significantly contribute to the current state. Additionally, the reasons provided by the assessor were deemed insufficient to support the deduction. Consequently, the court revoked the Medical Assessment Certificate and concluded that the deduction was not justified. The court's decision underscored the importance of providing clear and sufficient reasons for any deductions made in medical assessment certificates.

As a result of the court's decision, the Medical Assessment Certificate was revoked, and the deduction made by the Medical Assessor was deemed unjustified. The court's ruling emphasised the necessity for assessors to provide adequate reasons for their decisions, especially in cases where the worker was asymptomatic prior to the work injury.

Orders