Lagana v MCBC Group Pty Ltd - [2024] NSWPICMP 755

DETERMINATION OF APPEAL PANEL
CITATION:	Lagana v MCBC Group Pty Ltd [2024] NSWPICMP 755
APPELLANT:	Roy Lagana
RESPONDENT:	MCBC Group Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	4 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal in respect of a 100% deduction pursuant to section 323 for a pre-existing condition; parties agreed that worker had a consequential condition in the right shoulder following injury to the left shoulder on 17 December 2019; Medical Assessor (MA) determined that there was no consequential condition in the right shoulder and deducted 100% of the 11% whole person impairment assessed in the right shoulder; MA erred in determining there was no consequential condition in the right shoulder and also in failing to provide adequate reasons; Medical Appeal Panel reviewed the evidence and deducted one half pursuant to section 323; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 July 2024 Roy Lagana (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson (Medical Assessor), who issued Medical Assessment Certificate (MAC) on 6 August 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 in the MAC of the Medical Assessor. 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).

RELEVANT FACTUAL BACKGROUND

The appellant suffered an injury to his left shoulder and back when he slipped on food scraps and fell during his employment with MCBC Group Pty Ltd (the respondent) on
17 December 2019. The appellant suffered a consequential condition in the right shoulder and developed a gastric ulcer and gastroesophageal reflux disease due to the medications taken after the injury on 17 December 2019.
Mr Lagana lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 7…

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 755
Decision Date: 4 November 2024

CaseChat Overview and Summary

The case of Lagana v MCBC Group Pty Ltd involved a dispute between the appellant, Lagana, and the respondent, MCBC Group Pty Ltd, regarding a workers' compensation claim. The central issue was a 100% deduction made by the Medical Assessor (MA) for a pre-existing condition in Lagana's right shoulder, following an injury to his left shoulder on 17 December 2019. Both parties concurred that Lagana had a consequential condition in his right shoulder, but the MA concluded there was none, resulting in a full deduction. The appeal was based on the MA's alleged error in determining the absence of a consequential condition in the right shoulder and in providing adequate reasons for the deduction.

The primary legal question was whether the MA correctly assessed the consequential condition in Lagana's right shoulder and justified the 100% deduction. The appeal centred on the MA's interpretation of the evidence and the adequacy of the reasons provided for the deduction. The court examined the MA's decision-making process, focusing on whether the MA had properly considered all relevant evidence and whether the reasons for the deduction were sufficient and clear.

The court found that the MA erred in determining that there was no consequential condition in the right shoulder and also in failing to provide adequate reasons for the 100% deduction. The Medical Appeal Panel reviewed the evidence and determined that a deduction of one half was appropriate under section 323. Consequently, the court revoked the Medical Assessment Certificate, ruling in favour of the appellant and ordering a reduction in the deduction amount.

The final orders of the court included the revocation of the Medical Assessment Certificate and the adjustment of the deduction to one half, reflecting the findings of the Medical Appeal Panel. This decision underscored the importance of thorough and reasoned assessments in workers' compensation claims, ensuring that all relevant evidence is considered and appropriately justified.

Orders