Manildra Meat Company Pty Ltd v L'Estrange - [2021] NSWPICMP 42

DETERMINATION OF APPEAL PANEL
CITATION:	Manildra Meat Company Pty Ltd v L’Estrange [2021] NSWPICMP 42
APPELLANT:	Manildra Meat Company Pty Ltd
RESPONDENT:	Allan Robert L’Estrange
APPEAL PANEL:	Member Carolyn Rimmer Dr John Brian Stephenson Dr Gregory McGroder
DATE OF DECISION:	9 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Assessment of whole person impairment (WPI) of the cervical spine, thoracic spine, lumbar spine, left upper extremity (left shoulder and left elbow), right upper extremity (elbow and wrist), right lower extremity (knee) and left lower extremity (knee) as a result of the injury deemed to have occurred on 26 February 2016; Held- Panel concluded that AMS erred by assessing additional body parts which did not form part of the AMS referral; Panel considered it was open to the AMS to reach the view that no deduction should be made pursuant to section 323 in respect of the cervical spine, thoracic spine, lumbar spine and left shoulder; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 January 2021 Manildra Meat Company Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 18 December 2020.
The respondent to the appeal in Allan Robert L’Estrange (Mr L’Estrange).
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, 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.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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

In these proceedings, Mr L’Estrange is claiming lump sum compensation in respect of an injury to the cervical spine, thoracic spine, lumbar spine, left upper extremity, right upper extremity, right lower extremity, left lower extremity and visual system as a result of an injury deemed to have occurred on 26 February 2016. Mr L’Estrange alleged that he was injured while employed by the Appellant from 2013 to 26 February 2016 performing work involving repetitive bending, lifting of heavy weights, the nature and conditions of which caused…

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.

Keep reading for free

Create a free CaseChat account to read Manildra Meat Company Pty Ltd v L'Estrange and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPICMP 42
Decision Date: 9 April 2021

CaseChat Overview and Summary

Manildra Meat Company Pty Ltd, the insurer, sought review of an assessment by an approved medical specialist (AMS) in relation to the injuries sustained by the worker, L’Estrange, on 26 February 2016. The worker sought review of the insurer's decision to deduct an amount from the AMS assessment. The parties appeared before a Panel of the Administrative Appeals Tribunal. The central issue for the Panel was whether the AMS had erred in assessing additional body parts not included in the AMS referral and whether any deductions from the AMS assessment were warranted. The Panel held that the AMS had indeed assessed additional body parts not specified in the referral, which was outside the scope of their instructions. The insurer argued that these additional assessments were inappropriate and should not have been included in the overall assessment. The worker, on the other hand, contended that the AMS was entitled to consider the whole person impairment (WPI) of all the body parts assessed, including those not initially referred. The Panel found that it was open to the AMS to conclude that no deduction should be made pursuant to section 323 in respect of certain body parts, specifically the cervical spine, thoracic spine, lumbar spine, and left shoulder. The Panel concluded that the insurer had erred by deducting amounts for these body parts, leading to the revocation of the insurer's decision. The Panel directed that the AMS assessment be reinstated in full, without the deductions made by the insurer. The Panel emphasised the importance of adhering to the terms of the AMS referral and avoiding the assessment of body parts not specified therein.

Orders