Lara v Toll Group Ltd - [2023] NSWPICMP 696

DETERMINATION OF APPEAL PANEL
CITATION:	Lara v Toll Group Ltd [2023] NSWPICMP 696
APPELLANT:	George William Lara
RESPONDENT:	Toll Group Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	21 December 2023
CATCHWORDS:	WORKERS COMPENSATION - The appellant submitted that the Medical Assessor erred in finding that the appellant had not reached maximum medical improvement (MMI); the Panel agreed; re-examination confirmed MMI and a whole person impairment assessment was made; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 30 August 2023 George William Lara (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Clayton Smith, a Medical Assessor who issued a Medical Assessment Certificate (MAC) on 3 August 2023.
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 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 the worker should undergo a further medical examination because we determined that the Medical Assessor erred with respect to his conclusion that the appellant had not reached maximum medical improvement (MMI) having regard to the whole of the evidence.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) a report of Dr Bisht dated 23 August 2023.
The appellant submits that the evidence is relevant…

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: [2023] NSWPICMP 696
Decision Date: 21 December 2023

CaseChat Overview and Summary

Lara appealed against a decision made by the Respondent, Toll Group Ltd, in relation to her workers' compensation claim. The central issue was whether the Medical Assessor had erred in determining that Lara had not reached maximum medical improvement (MMI). The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT). The appellant argued that the Medical Assessor's finding was incorrect, and that she had indeed achieved MMI. The Panel was tasked with reviewing the evidence and determining the correctness of the Medical Assessor's decision.

The Panel examined the evidence presented and concluded that the Medical Assessor had indeed erred in finding that Lara had not reached MMI. A re-examination was subsequently conducted, which confirmed that Lara had reached MMI. Following this, a whole person impairment assessment was carried out. The Panel's decision hinged on the accuracy of the evidence presented and the proper interpretation of the medical findings. The Tribunal considered the weight of the evidence and the Medical Assessor's assessment process in reaching its conclusion.

The Panel revoked the Medical Assessment Certificate and ordered a new assessment to reflect Lara's current medical condition and MMI status. The Tribunal found that the original Medical Assessment Certificate was based on incorrect information and did not accurately reflect Lara's condition. The Tribunal's decision was based on a thorough review of the evidence and the applicable legal principles. The Tribunal's order mandated a re-examination and a new assessment, ensuring that the appellant's entitlements were properly determined.

Orders