Maclean v Pythid Pty Limited - [2023] NSWPICMP 77

DETERMINATION OF APPEAL PANEL
CITATION:	Maclean v Pythid Pty Limited [2023] NSWPICMP 77
APPELLANT:	Scott Maclean
RESPONDENT:	Pythid Pty Limited
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	8 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from 1/10th deduction pursuant to section 323; appellant worked as a bricklayer for at least 20 years; suffered injuries when he fell off a ladder; subsequent treatment revealed degenerative disc disease; no evidence that condition had been symptomatic; whether Medical Assessor (MA) applied the correct test for asymptomatic degenerative disease; Held – MA erroneously assumed that mere presence of degenerative disease required a 10% deduction; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) considered and applied; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 August 2022 Scott Maclean, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Tommasino Mastroianni who issued a Medical Assessment Certificate (MAC) on 18 July 2022.
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 limited to the ground(s) 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, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 28 June 2022 the delegate referred this matter to the Medical Assessor for assessment of WPI caused by injury to the cervical spine, lumbar spine, left lower extremity (ankle) and scarring (TEMSKI), which occurred on an agreed date of 12 January 2015. Mr MacLean was injured on that date when he fell two metres to the ground when scaffolding collapsed, causing bricks present on the scaffold and part of the brick wall to collapse on him.
He sought medical attention and returned to work but found after a week or so the pain was intense and he sought further treatment.
On 25 March 2015 he had a left foot subtalar arthrotomy and reduction and internal fixation of…

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 Maclean v Pythid Pty Limited

Details

AGLC: Maclean v Pythid Pty Limited [2023] NSWPICMP 77
Case: [2023] NSWPICMP 77
Decision Date: 8 March 2023

CaseChat Overview and Summary

In the case of Maclean v Pythid Pty Limited, the applicant, Mr Maclean, appealed a 10% deduction made by the Medical Assessor (MA) under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. Mr Maclean had worked as a bricklayer for over 20 years without any back-related symptoms and suffered injuries from a fall off a ladder. Subsequent treatment revealed degenerative disc disease, which was asymptomatic. The primary legal issue was whether the MA applied the correct test for asymptomatic degenerative disease when making the 10% deduction.

The court examined the reasoning of the MA and found that he had erroneously assumed that the mere presence of asymptomatic degenerative disease required a 10% deduction. The court referenced the decision in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation), which highlighted the importance of considering all evidence when making a s 323 deduction. The MA failed to explain how the asymptomatic degenerative disease contributed to the impairment caused by the accident, particularly considering Mr Maclean's long history of working as a bricklayer without any back-related symptoms. The court held that the MA's assumption that a pre-existing asymptomatic degenerative disease should automatically result in a s 323 deduction was erroneous.

The court revoked the Medical Assessment Certificate due to the MA's erroneous application of the law. The decision underscores the necessity for MAs to consider all relevant evidence and to provide a clear explanation for any deductions made under section 323 of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Her Honour said at [94]:“The medical specialist plainly considered that the evidence established that the Scheuermann's disease, completely asymptomatic and something of which Mr Elcheikh learnt only after treatment for his workplace injury was sought, was primarily responsible for his impairment. In reaching that conclusion he had to consider not only the evidence of the conflicting expert opinions about whether this condition had contributed at all to the impairment, but also the other evidence which shed light on this question. While the medical specialist referred to the various reports in evidence and identified which he preferred, he did not explain why. He also did not refer to the evidence that the pre-existing condition had been asymptomatic, nor did he explain what the other evidence showed its contribution to the resulting impairment to have been.” In the present case Mr Maclean had worked as a bricklayer for many years. His statement was brief, and did not detail his working life. Both Dr Bodel and Dr Gothelf noted that Mr MacLean had worked as a bricklayer for a number of different companies over the years and all around Sydney. Dr Bosanquet took a history that he had worked as a bricklayer for 20 years. Bricklaying is well known to be arduous work, and Mr MacLean did not report any symptoms in his back prior to his accident on 12 January 2015. In his report, Dr Bodel said that there was no clinical indication of any pre-existing abnormality or condition, not that there was no degenerative disease found on the imaging, as was submitted by the respondent. Dr Bodel acknowledged that an underlying disease process was detected in the MRI scan of 9 November 2017. He found no clinical indication that the pre-existing disease process constituted a basis for any deduction for pre-existing impairment.[4][4] Appeal papers page 105. We had some difficulty in understanding the purport of the respondent’s submission that there were no clinical notes or reports from any GP who may have treated Mr MacLean prior to the injury. Mr Maclean reported that he had no prior back pain, and we note that the Medical Assessor found him to be genuine and consistent. Those matters raised a prima facie case that Mr MacLean had no prior back pain. The clinical notes the respondent thought might have been relevant had not been sought pursuant to Commission procedure which was available to the respondent. We reject the submission that there might have been other relevant evidence as being speculative, and unhelpful. The dicta in Elcheikh we have underlined emphasises the importance of all the evidence being considered by a Medical Assessor when making a s 323 deduction. Whilst the Medical Assessor correctly found that the underlying disease was a component of the impairment caused by the subject accident, he was mistaken in therefore making the 1/10th deduction pursuant to s 323. It does not follow that the presence of a pre-existing condition must automatically result in a deduction. The Medical Assessor did not explain how the underlying disease process contributed to the impairment caused by the accident, in light of the evidence pertaining to Mr MacLean’s long history of working as a bricklayer, and when that disease process had not caused any symptoms. The Medical Assessor did not explain how the component he recognised as being a cause of the current impairment - the pre-existing degenerative disease - had also caused an impairment which contributed to that cause. The Medical Assessor assumed that where a pre-existing asymptomatic degenerative disease had been established after the injurious event had occurred, a s 323 deduction should follow as a matter of course. As was explained by Schmidt J, such an assumption is erroneous.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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