Hearn v Statewide Mechanical Services - [2021] NSWPICMP 24

DETERMINATION OF APPEAL PANEL
CITATION:	Hearn v Statewide Mechanical Services [2021] NSWPICMP 24
APPELLANT:	Michael Hearn
RESPONDENT:	Statewide Mechanical Services
APPEAL PANEL:	Ms Catherine McDonald Dr Mark Burns Dr Roger Pillemer
DATE OF DECISION:	17 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker suffered a back injury and a knee injury; fresh evidence; application of the criteria for the assessment of radiculopathy; no major criterion in paragraph 4.27 of the Guidelines; method of assessment of knee injury following partial meniscectomy; re-examination sought to determine if was error; role of AMS in considering assessments by independent medical examiners; State of New South Wales v Kaur considered; Held- MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 December 2020 Michael Hearn lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr Tommasino Mastroianni, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 8 December 2020.
Mr Hearn 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 Registrar was 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Hearn was employed by Statewide Mechanical Services (NSW) Pty Ltd as a sheet metal worker when he fell on 15 July 2017 whilst walking down concrete fire stairs and carrying a box. He injured his back and left knee.
Mr Hearn underwent an arthroscopic chondroplasty and partial meniscectomy on 4 October 2017. Afterwards, he continued to suffer back pain and leg pain and he underwent an MRI scan which revealed lateral recess stenosis at L3/4 and L 4/5 as well as degenerative disc disease. A/Prof M Jaeger, neurosurgeon, recommended peri-radicular steroid injections which Mr Hearn underwent in May 2018.
On 30 August 2018, A/Prof Jaeger performed a L3/4 and L4/5 left microdiscectomy, spinal canal decompression and rhizolysis.
The AMS assessed 13% whole person impairment (WPI) in respect of Mr Hearne’s lumbar spine and deducted one-tenth to reflect the contribution of…

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: [2021] NSWPICMP 24
Decision Date: 17 March 2021

CaseChat Overview and Summary

In the matter of Hearn v Statewide Mechanical Services, the respondent, a worker, brought an appeal against the decision of the Member of the Industrial Commission of New South Wales, seeking compensation for injuries sustained in the course of employment. The worker contended that they suffered a back injury and a knee injury, and sought a review of the assessment criteria applied to their injuries, particularly regarding radiculopathy and the knee injury post-surgery. The case was heard and determined in the Industrial Commission of New South Wales.

The primary legal issues in this appeal were the application of the criteria for assessing radiculopathy as outlined in the relevant guidelines, and the appropriate methodology for evaluating the worker’s knee injury following a partial meniscectomy. The worker argued that the Commission erred in its assessment of the radiculopathy by not identifying a major criterion and in its evaluation of the knee injury. The worker sought a re-examination to establish if there were errors in the assessment process.

The Commission reviewed the evidence, including the findings of the independent medical examiners, and concluded that there were no major criteria present for the radiculopathy as per the Guidelines. The Commission also considered the appropriate methodology for assessing the knee injury following surgery and found that the worker's evidence did not meet the necessary threshold for compensation. The Commission noted that in assessing the evidence, it was required to give weight to the independent medical assessments, but also had the discretion to determine the credibility and reliability of the evidence presented. The decision in State of New South Wales v Kaur was cited as relevant to the approach taken by the Commission in this regard.

Ultimately, the Commission confirmed the original decision, finding no error in the assessment of the worker's injuries. The worker’s appeal was dismissed, and the compensation order remained unchanged.

Orders