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Lake Macquarie City Council v Jones

Lake Macquarie City Council v Jones

Case [2023] NSWPICMP 50 20 February 2023

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DETERMINATION OF APPEAL PANEL
CITATION:	Lake Macquarie City Council v Jones [2023] NSWPICMP 50
APPELLANT:	Lake Macquarie City Council
RESPONDENT:	Leslie Jones
Appeal Panel
Paul Sweeney
MEMBER:
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	20 February 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer alleges error by Medical Assessor (MA) in failing to make a deduction for a previous injury or pre-existing condition pursuant to section 323 or in failing to give adequate reasons for not making a deduction; Panel determines that MA turned his mind to the section 323 issue and concluded that there was insufficient evidence to make a deduction; Panel was of the same opinion; Pereira v Siemens Ltd considered; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 November 2022, Lake Macquarie City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 October 2022.
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 has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
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 the PIC Rules.
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

Leslie Jones (the respondent) was employed by the appellant council for 28 years. For much of that time he worked in erosion control performing physically demanding work involving the manipulation of heavy hoses, lifting and carrying heavy bags of seed, and reloading emoleum. During this time the respondent also performed the role of part-time relief grader and roller driver.
By his statement the respondent says that:
“These machines have a lot of jarring and jolting and there was one occasion where my back hit a bump and I flew out of the seat and landed heavily and had more pain in my back.”
Ultimately, on 22 December 2017 the respondent left his employment. He obtained alternative, less arduous work. He says that he…

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 Lake Macquarie City Council v Jones

Details

AGLC: Lake Macquarie City Council v Jones [2023] NSWPICMP 50
Case: [2023] NSWPICMP 50
Decision Date: 20 February 2023

CaseChat Overview and Summary

Lake Macquarie City Council was the appellant and Jones the respondent in a matter heard by the NSW Civil and Administrative Tribunal (NCAT). The dispute centred around the assessment of workers' compensation entitlements by a Medical Assessor (MA) who determined that Jones was entitled to compensation. The Council argued that the MA erred in not making a deduction for a previous injury or pre-existing condition, as required by section 323 of the Workplace Injury Management and Workers Compensation Act 1998, and in not providing adequate reasons for not doing so. The Council further contended that the NCAT Panel erred in confirming the Medical Assessment Certificate without addressing these alleged errors.

The primary legal issue before the tribunal was whether the MA and the Panel correctly assessed Jones's entitlement to compensation without making a deduction for a previous injury or pre-existing condition, and whether the Panel's confirmation of the Medical Assessment Certificate was justified. The Council argued that the MA did not sufficiently consider the impact of the previous injury on the current claim and that the Panel failed to address this issue adequately. The Council further contended that the Panel's confirmation of the certificate was flawed due to these alleged errors.

The tribunal considered the arguments and found that the MA had indeed turned his mind to the section 323 issue and concluded that there was insufficient evidence to make a deduction for the previous injury or pre-existing condition. The tribunal noted that the Panel agreed with the MA's assessment and found no error in the Panel's decision to confirm the Medical Assessment Certificate. The tribunal referred to the case of Pereira v Siemens Ltd, which supported the view that a Medical Assessment Certificate could be confirmed even if there were no deductions made for previous injuries, provided that the MA had properly considered the relevant provisions and evidence. The tribunal held that the Panel's decision was correct and that the Medical Assessment Certificate was confirmed.

The tribunal dismissed the appeal, finding no error in the Panel's decision to confirm the Medical Assessment Certificate. The tribunal held that the MA had appropriately considered the relevant provisions and evidence and that the Panel's confirmation of the certificate was justified. The tribunal further held that the Panel's decision was consistent with the law and that the Council's appeal was without merit.

Orders