Kershaw v Spotless Services Australia Pty Ltd - [2024] NSWPICMP 471

DETERMINATION OF APPEAL PANEL
CITATION:	Kershaw v Spotless Services Australia Pty Ltd [2024] NSWPICMP 471
APPELLANT:	Karina Kershaw
RESPONDENT:	Spotless Services Australia Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	5 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant submitted that the Medical Assessor erred in his application of section 323 and in his assessment of scarring; Held – error in application of section 323; no error as regards to scarring; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 February 2024 Karina Kershaw (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 22 January 2024
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 r 128(1) of the PIC Rules.
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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in his application of s 323 of the 1998 Act and in his assessment of scarring.
In reply, the respondent submits…

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 471
Decision Date: 5 June 2024

CaseChat Overview and Summary

The appellant, Kershaw, was involved in a legal dispute with Spotless Services Australia Pty Ltd, the respondent, before the Court of Appeal in New South Wales. The case concerned the interpretation and application of provisions within the Workplace Injury Management and Workers Compensation Act 1998, specifically focusing on a Medical Assessment Certificate (MAC) issued by a Medical Assessor. Kershaw contested the Medical Assessor's application of section 323 of the Act and his assessment of scarring resulting from an injury sustained during his employment.

The central legal issue that the court had to address was whether the Medical Assessor had correctly applied section 323 of the Act in his assessment of Kershaw's injuries and resultant scarring. The appellant argued that there was an error in the application of section 323, and as such, the MAC should be revoked. Conversely, the respondent argued that the Medical Assessor had correctly applied the relevant statutory provisions and that the assessment of scarring was accurate.

Upon reviewing the evidence and the arguments presented by both parties, the court found that the Medical Assessor had indeed erred in his application of section 323 of the Act. However, the court also found no error in the assessment of scarring. Consequently, the court revoked the MAC issued by the Medical Assessor. The decision was grounded in a detailed examination of the statutory language and the context in which it was applied, as well as the medical evidence provided.

The final orders of the court included the revocation of the MAC due to the identified error in the application of section 323 of the Act. The court did not find merit in the appellant's argument concerning the scarring assessment, thus no further action was taken regarding that part of the dispute. The decision mandated that the matter be remitted back to the appropriate tribunal for the issuance of a new MAC, free from the errors identified by the court.

Orders