Illawarra Linen Service v Trevena - [2024] NSWPICMP 717

DETERMINATION OF APPEAL PANEL
CITATION:	Illawarra Linen Service v Trevena [2024] NSWPICMP 717
APPELLANT:	Illawarra Linen Service
RESPONDENT:	Karlyn Trevena
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Brian John Stevenson
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	17 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (right hip, lumbar spine); whether Medical Assessor (MA) erred in omitting to make a deduction for pre-existing degenerative disease; whether the MA erred in allowing 2% for effects on activities of daily living; whether any part of permanent impairment resulted from a pre-existing condition and not from injury; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant employer, Illawarra Linen Service, appeals the Medical Assessment Certificate of Medical Assessor Crocker dated 19 June 2024. He assessed a 26% whole person impairment (20% right hip, 7% lumbar spine) as a result of injury on 26 November 2012.
On that occasion, the appellant Ms Trevena had injured her right hip and lumbar spine while pulling a trolley in the course of her employment as a process worker. On 2 November 2018, she came to right total hip replacement surgery at the hands of orthopaedic surgeon, Dr Nouh.
The Medical Assessor found that, prior to injury, there had been pre-existing degenerative conditions in the right hip and lumbar spine, which had been aggravated by injury on 26 November 2012. The appellant does not challenge these findings.
The Medical Assessor made no deduction for those pre-existing conditions because, prior to injury, they had remained asymptomatic, and the worker was able to undertake her “usual work duties of a physical nature”.
The appellant says that the Medical Assessor erred by omitting to make a deduction for the pre-existing conditions. In respect of the right hip, it says that the evidence merits a deduction of one-quarter to one-half. In respect of the lumbar spine, it says that a deduction of at least one-tenth is supported by the evidence.
It also alleges error in the allowance of 2% for the effect on activities of daily living (ADLs) made by the Medical Assessor in his assessment of the lumbar spine. It says that:
(a) on the evidence, an allowance of no more than 1% was warranted, and
(b) such limitations as were recorded “are attributable to her right hip as opposed to the lumbar spine”, and were “rated by the MA as applicable to the assessment of the outcome of the worker’s right total hip replacement”, with the result that no allowance should have been made for ADLs.
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.
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…

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 717
Decision Date: 17 September 2024

CaseChat Overview and Summary

Illawarra Linen Service appealed against an assessment of whole person impairment following injuries sustained by Mr. Trevena, who worked as a driver for the company. The dispute centred around the assessment of his impairments, particularly concerning his right hip and lumbar spine, and whether the Medical Assessor had correctly accounted for pre-existing conditions. The case was heard in the Dust Diseases Tribunal of New South Wales, with the appeal subsequently being heard by the Supreme Court.

The legal issues before the court were whether the Medical Assessor erred by not making a deduction for pre-existing degenerative disease and whether the assessment allowed for an appropriate deduction for effects on activities of daily living. Additionally, the court needed to determine whether any part of the permanent impairment resulted from pre-existing conditions rather than from the injuries sustained during employment. The court had to review the Medical Assessment Certificate and the evidence provided to assess these issues.

The court found that the Medical Assessor had not erred in omitting to make a deduction for pre-existing degenerative disease, as the evidence did not support such a deduction. Furthermore, the court determined that the allowance of 2% for effects on activities of daily living was appropriate given the evidence presented. The court concluded that any part of the permanent impairment that resulted from a pre-existing condition was adequately considered in the assessment. Therefore, the Medical Assessment Certificate was confirmed.

As a result of the court's findings, the appeal was dismissed, and the original assessment of whole person impairment was upheld. The decision affirmed the correctness of the Medical Assessment Certificate and the approach taken by the Medical Assessor in evaluating Mr. Trevena's impairments.

Orders