Hayes v PFD Food Services Pty Ltd - [2024] NSWPICMP 883

DETERMINATION OF APPEAL PANEL
CITATION:	Hayes v PFD Food Services Pty Ltd [2024] NSWPICMP 883
APPELLANT:	Leslie Hayes
RESPONDENT:	PFD Food Services Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	20 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding the appellant had a pre-existing condition in his cervical spine that contributed a proportion of his permanent impairment from the injuries the appellant suffered to his cervical spine; whether MA had proper regard to the evidence; whether MA explained his finding that the appellant had a pre-existing condition; whether MA explained his finding that one-third of the appellant’s permanent impairment from injuries the appellant suffered to his cervical spine was due to a pre-existing condition; Medical Appeal Panel (Panel) found MA was correct to find that the appellant had a pre-existing condition and that a proportion of the appellant’s permanent impairment from the injuries the appellant suffered to his cervical spine is due to that pre-existing condition, and in so finding the MA had proper regard to all relevant evidence; Panel found that MA did not adequately explain why one third of the appellant’s permanent impairment was due to that pre-existing condition and the MA ought to have assumed in accordance with section 323(2) that the deductible proportion was one tenth; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 October 2024 Leslie Hayes, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson , a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 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 (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

The appellant commenced employment as a storeman…

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 883
Decision Date: 20 December 2024

CaseChat Overview and Summary

In the case of Hayes v PFD Food Services Pty Ltd, the appellant challenged the decision of a Medical Assessor (MA) who found that the appellant had a pre-existing condition in his cervical spine, which contributed to a proportion of his permanent impairment from injuries suffered in a workplace incident. The dispute was considered by the Medical Appeal Panel (Panel) under the provisions of the Workplace Injury Management and Workers Compensation Act 1998. The appellant argued that the MA had erred in several respects, including that the MA failed to properly consider the evidence, did not adequately explain the finding of a pre-existing condition, and did not sufficiently justify the determination that one-third of the appellant's permanent impairment was due to the pre-existing condition.

The Panel was tasked with determining whether the MA erred in concluding that the appellant had a pre-existing condition and that this condition contributed to the appellant's permanent impairment. The Panel also had to assess whether the MA had properly considered all relevant evidence and adequately explained the proportion of permanent impairment attributable to the pre-existing condition. The Panel found that while the MA was correct in identifying a pre-existing condition and its contribution to the appellant's impairment, the MA did not sufficiently explain the rationale for attributing one-third of the impairment to the pre-existing condition. The Panel concluded that the MA should have applied the statutory presumption under section 323(2) of the Act, which sets the deductible proportion at one-tenth.

The Panel revoked the Medical Assessment Certificate, highlighting the importance of clear and comprehensive explanations in medical assessments under the Act. The Panel’s decision underscores the necessity for assessors to adequately justify their findings, particularly where statutory presumptions are not applied. The revocation of the Certificate means that a new assessment must be conducted, taking into account the statutory presumption regarding the proportion attributable to a pre-existing condition.

Orders