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Jenkins v Coastwide Steel & Metalwork Pty Ltd

Jenkins v Coastwide Steel & Metalwork Pty Ltd

Case [2021] NSWPICMP 39 1 April 2021

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DETERMINATION OF APPEAL PANEL
CITATION:	Jenkins v Coastwide Steel & Metalwork Pty Ltd [2021] NSWPICMP 39
APPELLANT:	William Jenkins
RESPONDENT:	Coastwide Steel & Metalwork Pty Ltd
APPEAL PANEL:	Principal Member John Harris Dr Gregory McGroder Dr John Ashwell
DATE OF DECISION:	1 April 2021
CATCHWORDS:	WORKERS COMPENSATION- The appellant suffered injury to the lumbar and thoracic spines; the AMS assessed 7% for the lumbar spine and 5% for the thoracic spine and made a 50% deduction for the lumbar spine pursuant to section 323; the only issue on appeal was the section 323 deduction for the lumbar spine; Held- the AMS failed to provide any reasons as to how the pre-existing condition contributed to impairment; El Masri v Woolworths Ltd applied; demonstrable error established; on reassessment the Appeal Panel was satisfied that the pre-existing condition at L5/S1 contributed to impairment because the appellant was suffering from a herniated disc which was compromised because he was subject to recurrent flare ups and at times resulted in radiating pain down the buttocks; those types of symptoms indicated that the pre-existing condition was sufficiently compromised to the extent that the appellant was more vulnerable to injury, and if injured, the impairment would be worse; the Appeal Panel was entitled to use clinical experience in making this finding; Vannini v Woolworths Demolitions Pty Ltd applied; MAC revoked and deduction of one-tenth made as the extent of the deduction difficult to determine and not at odds with the available evidence.

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

BACKGROUND TO THE APPLICATION TO APPEAL

Mr William Jenkins (the appellant) sustained injury to the thoracic and lumbar spine deemed to have occurred on 15 August 2014 in the course of his employment with Coastwide Steel & Metalwork Pty Ltd (the respondent).

The appellant served a letter of claim dated 11 December 2019 seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).[1] The claim was based on the opinion expressed by Dr James Bodel for 12% whole person impairment (WPI) comprising 7% WPI for the lumbar spine and 5% for the thoracic spine.[2]
[1] Application, p 18.
[2] Application, p 33.
By letter dated 30 March 2020 the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) when it denied liability in respect of the allegation of injury to the lumbar spine based on the opinion expressed by Dr Panjratan in a report dated 9 March 2020.[3] Dr Panjratan assessed the appellant at 7% WPI attributable to the thoracic spine and no impairment in respect of the lumbar spine.
[3] Reply, p 14.
The appellant commenced proceedings claiming permanent impairment compensation pursuant to s 66 of the 1987 Act for the lumbar and thoracic spines.

The claim was then referred to a Commission Arbitrator who determined that the appellant had sustained an injury to the lumbar spine pursuant to s…

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.

Continue reading Jenkins v Coastwide Steel & Metalwork Pty Ltd

Details

AGLC: Jenkins v Coastwide Steel and Metalwork Pty Ltd [2021] NSWPICMP 39
Case: [2021] NSWPICMP 39
Decision Date: 1 April 2021

CaseChat Overview and Summary

Jenkins, the appellant, filed an appeal against Coastwide Steel & Metalwork Pty Ltd, the respondent, in a workers' compensation matter. Jenkins suffered injuries to his lumbar and thoracic spines. The Accident Management Scheme (AMS) assessed his lumbar spine impairment at 7% and his thoracic spine impairment at 5%, with a 50% deduction applied to the lumbar spine under section 323. The sole issue on appeal was the 50% deduction for the lumbar spine.

The court was tasked with determining whether the AMS's deduction for the lumbar spine impairment was lawful and whether there were sufficient reasons for the deduction, considering the appellant's pre-existing condition. The court referred to El Masri v Woolworths Ltd, which established that a demonstrable error occurs when the AMS fails to provide reasons for the extent of a deduction based on a pre-existing condition. The court also applied Vannini v Woolworths Demolitions Pty Ltd, which allowed the Appeal Panel to use clinical experience when determining the extent of the contribution of a pre-existing condition to impairment.

The Appeal Panel reassessed the case and concluded that the appellant's pre-existing condition at L5/S1 significantly contributed to his impairment. The appellant had a herniated disc, which was compromised by recurrent flare-ups, causing radiating pain down his buttocks. These symptoms indicated that the pre-existing condition made the appellant more vulnerable to injury and that any injury would result in worse impairment. The Appeal Panel's decision was deemed reasonable and not in conflict with the available evidence. The court found that the AMS's initial deduction was incorrect, and the matter was remitted for reassessment with a one-tenth deduction due to the difficulty in determining the precise extent of the deduction.

Orders