Harris v Trojan Workforce No 3 Pty Ltd - [2024] NSWPICMP 284

DETERMINATION OF APPEAL PANEL
CITATION:	Harris v Trojan Workforce No 3 Pty Ltd [2024] NSWPICMP 284
APPELLANT:	Leslie Harris
RESPONDENT:	Trojan Workforce No 3 Pty Limited
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Robin Fitzsimons
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	10 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment regarding cervical spine and nervous system; respondent conceded error regarding calculation of impairment for cervical spine; whether Medical Assessor (MA) had failed to consider medical material; whether he had given adequate reasons for a nil impairment for the nervous system; Held – WPI increased from 15% to 28% for a DRE IV cervical spine; Chapter 4 of the Guides considered and applied; nil impairment confirmed for nervous system; MA had addressed the relevant medical material and explained why he differed; presumption of regularity considered; whether impugned evidence rebutted presumption; Bojko v ICM Property Service Pty Ltd considered and applied; MA required to apply medical experience and expertise; Wingfoot Australia Pty Ltd v Kocak considered and applied.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 October 2023 Leslie Harris, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 October 2023.
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 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 (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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 1 August 2023 this matter was referred to the Medical Assessor for a WPI assessment of impairment caused to the cervical spine, and to the nervous system caused by injury on
5 August 2005.
On 22 August 2023, following email correspondence from the parties with the President’s delegate, an amended referral was made which was to alter the agreed date of injury to
3 August 2005, and to add the words…

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 284
Decision Date: 10 May 2024

CaseChat Overview and Summary

The case of Harris v Trojan Workforce No 3 Pty Ltd involved an appeal against an assessment of workers' compensation concerning injuries to the cervical spine and the nervous system. The respondent conceded that there was an error in the calculation of impairment for the cervical spine but disputed the appellant's claims that the Medical Assessor (MA) had failed to consider relevant medical material and had not provided adequate reasons for determining no impairment for the nervous system. The appeal was heard in the Workers' Compensation Court of Queensland.

The primary legal issues the court had to address were whether the MA had appropriately considered the medical material and provided sufficient reasons for his assessment regarding the nervous system, and whether the presumption of regularity in the MA's decision-making process had been rebutted. The court needed to determine whether the MA's assessment was reasonable and whether the presumption of regularity could be overturned by the appellant's evidence.

The court held that the presumption of regularity applied to the MA's assessment and that the appellant had not successfully rebutted this presumption. The court found that the MA had properly considered the medical material and had provided adequate reasons for his assessment, including applying Chapter 4 of the Guides and concluding that there was no impairment for the nervous system. The court considered the principles from Bojko v ICM Property Service Pty Ltd and Wingfoot Australia Pty Ltd v Kocak, affirming that the MA was required to use his medical experience and expertise. The court increased the whole person impairment (WPI) for the cervical spine from 15% to 28% based on a DRE IV cervical spine and confirmed the nil impairment for the nervous system.

The final orders of the court maintained the nil impairment for the nervous system, increased the WPI for the cervical spine to 28%, and rejected the appellant's claims regarding the MA's consideration of medical material and adequacy of reasons provided.

Orders