Headon v Tasco Carriers Pty Ltd - [2023] NSWPICMP 426

DETERMINATION OF APPEAL PANEL
CITATION:	Headon v Tasco Carriers Pty Ltd [2023] NSWPICMP 426
APPELLANT:	Wayne Headon
RESPONDENT:	Tasco Carriers Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	4 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant suffered an injury of a compressed fracture of the T5 vertebra; appellant had an undiagnosed pre-existing plasmacytoma of the T5 vertebra which was treated after injury and either eliminated or substantially reduced; Medical Assessor (MA) made a deduction of 50% under section 323(1) for the proportion of the appellant’s permanent impairment that he considered was due to the plasmacytoma; whether the MA erred by doing so; Appeal Panel held that the MA adopted the wrong approach by focusing on the role the plasmacytoma had in the occurrence of injury rather than the contribution it makes to the appellant’s current impairment; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 May 2023 Wayne Headon, 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 19 April 2023.
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 truck driver with Tasco Carriers Pty Ltd, the respondent, in December 2020. On 3 May 2021 he was trying to open a heavy gate to access the yard from which he worked. That required him to use a steel bar to lever the bottom of the gate from the ground. Whilst doing that he felt a stabbing sensation in the middle of his upper back. He completed his first delivery but whilst attempting his second delivery he experienced severe pain in his…

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: [2023] NSWPICMP 426
Decision Date: 4 September 2023

CaseChat Overview and Summary

In this case, the appellant, Headon, brought a claim against Tasco Carriers Pty Ltd for a work-related injury that resulted in a compressed fracture of the T5 vertebra. The dispute centred on the Medical Assessor’s decision to deduct 50% from the appellant’s permanent impairment assessment due to an undiagnosed pre-existing plasmacytoma of the T5 vertebra. The Appeal Panel was tasked with determining whether the Medical Assessor erred in their approach.

The primary legal issue was whether the Medical Assessor correctly applied the relevant provisions of the Workplace Injury Management and Workers Compensation Act 1998. Specifically, the court had to consider if the deduction for the contribution of the pre-existing condition to the appellant’s current impairment was appropriate. The Appeal Panel held that the Medical Assessor had misapplied the law by focusing on the role the plasmacytoma played in the occurrence of the injury, rather than its contribution to the appellant's current state of impairment.

The Appeal Panel concluded that the Medical Assessor had adopted an incorrect approach, thereby leading to an erroneous assessment. The Panel found that the proper focus should have been on the contribution the pre-existing plasmacytoma made to the appellant’s current impairment rather than its role in the injury. Consequently, the Appeal Panel revoked the Medical Assessment Certificate and determined that the Medical Assessor had erred in their assessment.

As a result of the Appeal Panel's findings, the Medical Assessment Certificate was revoked, and the matter was remanded for a new assessment in accordance with the correct legal principles.

Orders