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Kelly v Simmonds Plastering Pty Ltd

Kelly v Simmonds Plastering Pty Ltd

Case [2021] NSWPICMP 216 12 November 2021

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DETERMINATION OF APPEAL PANEL
CITATION:	Kelly v Simmonds Plastering Pty Ltd [2021] NSWPICMP 216
APPELLANT:	Adam Kelly
RESPONDENT:	Simmonds Plastering Pty Ltd
APPEAL PANEL:	Member Paul Sweeney Dr Brian Noll Dr David Crocker
DATE OF DECISION:	12 November 2021
CATCHWORDS:	WORKERS COMPENSATION- Medical dispute referred for assessment on basis of a frank injury to right knee and disease injuries to both knees caused or materially aggravated by the nature of the applicant’s employment as a plasterer; Medical Assessor only assesses frank injury and makes a deduction of 50% pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Medical Assessment Certificate revoked; section 323 reassessed on basis of a frank injury and disease injuries to both knees; Cullen v. Woodbrae Holdings Pty Ltd considered and distinguished; Held - a “pre-existing injury or condition” is one that existed before the deemed date of injury.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 September 2021, Adam Kelly (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 (MA), who issued a Medical Assessment Certificate (MAC) on 12 August 2021.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· 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 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

The appellant is a plasterer having completed his apprenticeship in 1990. During most of the ensuing 28 years, he performed the work of a plasterer for Simmonds Plastering Pty Ltd (the respondent). By his statement of 5 February 2021, he describes his work as follows:
“My duties involve substantial amounts of climbing up and down scaffolding, and also using ladders. I was required to carry sheets of plaster over rough terrain on building sites. My duties involved carrying, bending, squatting and long periods of weight bearing on my lower limbs. I was required to use wheelbarrows to remove waste or rubbish from worksites and other manual tasks required of myself on building sites. My employment duties often involved stress,…

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 Kelly v Simmonds Plastering Pty Ltd

Details

AGLC: Kelly v Simmonds Plastering Pty Ltd [2021] NSWPICMP 216
Case: [2021] NSWPICMP 216
Decision Date: 12 November 2021

CaseChat Overview and Summary

The case of Kelly v Simmonds Plastering Pty Ltd involves the applicant, Kelly, who sought workers compensation for injuries sustained during his employment as a plasterer. The dispute arose over the assessment of his medical condition, specifically injuries to his right knee and disease injuries to both knees. The Medical Assessor initially assessed only the frank injury to the right knee, reducing the compensation by 50% in accordance with section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The applicant contested this assessment, arguing it failed to consider the disease injuries to both knees, which he claimed were caused or materially aggravated by his employment. The matter was brought before the court to determine the proper scope of the assessment under the Act.

The central legal issue before the court was whether the Medical Assessor was correct in limiting the assessment to the frank injury of the right knee, and consequently applying the 50% reduction under section 323. The court needed to interpret the statutory provisions, particularly the definition of a "pre-existing injury or condition" and whether the disease injuries to both knees qualified under this definition. The applicant argued that both knees should have been assessed, and that the Medical Assessor’s decision to disregard the disease injuries was erroneous. The respondent, Simmonds Plastering Pty Ltd, contended that the assessment was appropriate as only the frank injury was relevant for compensation purposes.

The court examined the statutory language and relevant case law, notably distinguishing Cullen v. Woodbrae Holdings Pty Ltd, which held that a "pre-existing injury or condition" must have existed before the deemed date of injury. The court concluded that the Medical Assessor's decision was flawed because it did not consider the disease injuries to both knees. The assessment should have encompassed both the frank injury and the disease injuries, which were caused or materially aggravated by the nature of the applicant’s employment. Consequently, the court revoked the Medical Assessment Certificate and ordered a reassessment to include the disease injuries to both knees.

The final order of the court was to revoke the Medical Assessment Certificate and direct the Medical Assessor to reassess the applicant's condition, taking into account both the frank injury to the right knee and the disease injuries to both knees. This reassessment was to be conducted in accordance with the proper interpretation of the statutory provisions, ensuring all relevant injuries were considered for compensation purposes.

Orders