Long v Colin Green Demolitions - [2024] NSWPICMP 564

DETERMINATION OF APPEAL PANEL
CITATION:	Long v Colin Green Demolitions [2024] NSWPICMP 564
APPELLANT:	Phillip John Long
RESPONDENT:	Colin Green Demolitions
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Ross Mellick
MEDICAL ASSESSOR:	Michael Steiner
DATE OF DECISION:	13 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Assessment under the Table of Disabilities by Medical Assessor (MA) in respect of loss of sight in both eyes as a result of an injury on 5 April 2001; MA assessed 0% loss of efficient use or impairment of the visual and nervous system; worker appealed on the grounds that the decision was made on the basis of incorrect criteria and the decision contained a demonstrable error; MA failed to discuss the reports of Associate Professor Fraser and explain why his opinion differed; Held – demonstrable error found; Medical Appeal Panel reviewed the evidence and concluded that that there was an obvious history of visual neglect on one side but no obvious history of visual field defects; 25% loss of efficient sight in both eyes; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 May 2024 Phillip John Long (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ron Granot, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 May 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.
This matter is assessed under the Table of Disabilities.

RELEVANT FACTUAL BACKGROUND

The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 26 October 2023 in which he claimed an amount of $55,000 in respect of 55% loss of sight in both eyes. The appellant alleged that on 5 April 2001 he fell from a ladder onto concrete hitting his head causing injury to his head and brain including visual processing issues which resulted in permanent loss of vision in both eyes.
In a Certificate of Determination – Consent Orders (COD) dated 1 December 2023, Member Peacock made the following orders:
“1. Admit late reply.
2. The matter is remitted to the President for referral to…

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 Long v Colin Green Demolitions

Details

AGLC: Long v Colin Green Demolitions [2024] NSWPICMP 564
Case: [2024] NSWPICMP 564
Decision Date: 13 August 2024

CaseChat Overview and Summary

Long brought a claim against Colin Green Demolitions seeking assessment of his injuries under the Workers Compensation Act. Long suffered loss of sight in both eyes as a result of an injury sustained on 5 April 2001. The Medical Assessor appointed by the employer assessed Long as having no loss of efficient use or impairment of the visual and nervous system. Long appealed this assessment on the grounds that it was based on incorrect criteria and contained a demonstrable error. In particular, Long submitted that the Medical Assessor had failed to discuss the reports of Associate Professor Fraser and had not explained why his opinion differed from that of the Medical Assessor.

The court was required to determine whether the Medical Assessor had erred in his assessment of Long's injuries and, if so, what the appropriate level of compensation should be. The court noted that the Medical Assessor had not discussed the reports of Associate Professor Fraser and had not provided an explanation for why his opinion differed. The court found that this was a demonstrable error, as the Medical Assessor was required to consider all relevant evidence before making his assessment. The court also noted that the Medical Assessment Certificate was revoked and that a Medical Appeal Panel reviewed the evidence and concluded that there was an obvious history of visual neglect on one side but no obvious history of visual field defects. Based on this review, the court found that Long should be assessed at 25% loss of efficient sight in both eyes.

The court ordered that the Medical Assessment Certificate be revoked and that a new assessment be made in accordance with the findings of the Medical Appeal Panel. Long was to be compensated at a rate of 25% loss of efficient sight in both eyes. The employer was also ordered to pay Long's legal costs. This decision provides guidance for employers and workers in assessing injuries under the Workers Compensation Act and highlights the importance of considering all relevant evidence before making an assessment.

Orders