Janala Pty Limited v Jackson - [2021] NSWPICMP 60

DETERMINATION OF APPEAL PANEL
CITATION:	Janala Pty Limited v Jackson [2021] NSWPICMP 60
APPELLANT:	Janala Pty Limited
RESPONDENT:	Anthony Jackson
APPEAL PANEL:	Member Brett Batchelor Dr Richard Crane Dr Ross Mellick
DATE OF DECISION:	26 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal by employer on the basis of the alleged failure of the Medical Assessor (then AMS) to make a deduction pursuant to section 323 of the 1998 Act for pre-existing injury, condition or abnormality; finding that one of two previous injuries suffered by the respondent worker contributed to the current level of 17% whole person impairment assessed by the Medical Assessor as a result of injury to the lumbar spine (undisputed by the appellant and respondent worker); finding that the Medical Assessor was in error in not making a section 323 deduction; appellant’s submission that, based on the assessment of the IME engaged by it, that the deduction should be 6% rejected; finding that having regard to the evidence there should be a deduction of 1/10^th from the 17% WPI assessed by the Medical Assessor, reducing the final level of injury caused WPI to 15% WPI; Held- MAC of Medical Assessor revoked and new MAC issued.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 October 2020 Janala Pty Limited lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor (formerly referred as an Approved Medical Specialist – ‘AMS’), who issued a Medical Assessment Certificate (MAC) on 11 September 2020.
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,
· 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 noted however that the delegate was in error in his decision dated 28 January 2021 when he named Anthony Jackson as the appellant and Janala Pty Limited as the respondent to the appeal. Janala Pty Limited is the appellant and has lodged submissions dated 9 October 2020 in support of its appeal. Anthony Jackson is the respondent to the appeal and has lodged submissions dated 30 October 2020 opposing the appeal. 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 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…

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

AGLC: Janala Pty Limited v Jackson [2021] NSWPICMP 60
Case: [2021] NSWPICMP 60
Decision Date: 26 April 2021

CaseChat Overview and Summary

Janala Pty Limited, an employer, appealed a decision made by the Medical Assessor (then known as AMS) regarding the level of whole person impairment (WPI) attributed to a respondent worker, Jackson, who had suffered an injury to his lumbar spine. The employer argued that the Medical Assessor had failed to make a deduction for a pre-existing injury, condition, or abnormality as required by section 323 of the Workers Compensation Act 1998. This omission allegedly resulted in an inflated assessment of the worker's current WPI.

The court was tasked with determining whether the Medical Assessor should have made a deduction under section 323 for the pre-existing condition and, if so, the appropriate percentage of the deduction. The court needed to examine the evidence presented by both the employer and the worker to ascertain the extent to which the pre-existing injury contributed to the current WPI. The employer argued that a 6% deduction should be made based on the assessment of an Independent Medical Examiner (IME) they had engaged. In contrast, the court had to consider whether a deduction of 1/10th of the WPI, as suggested by the worker, was more appropriate.

In its decision, the court found that the Medical Assessor had indeed erred in not making a deduction under section 323 for the pre-existing injury. The court acknowledged that one of the two previous injuries suffered by Jackson contributed to the current level of 17% WPI. However, the court rejected the employer's submission that a 6% deduction was appropriate, instead finding that a deduction of 1/10th of the WPI, resulting in a 15% WPI, was more accurate. Consequently, the court revoked the Medical Assessor's original assessment and issued a new assessment, reducing the level of injury caused WPI to 15%.

Orders