Marqus v Sky High Contracting Pty Ltd - [2023] NSWPICMP 608

DETERMINATION OF APPEAL PANEL
CITATION:	Marqus v Sky High Contracting Pty Ltd [2023] NSWPICMP 608
APPELLANT:	Nahi Marqus
RESPONDENT:	Sky High Contracting Pty Ltd
APPEAL PANEL
MEMBER:	John Isaksen
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Andrew Porteous
DATE OF DECISION:	23 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Appellant worker assessed as having 0% whole person impairment for injury to the left shoulder and cervical spine; findings of inconsistent presentation by the worker; consideration and application of clause 1.36 of the Guidelines (inconsistent presentation); whether adequate reasons provided by Medical Assessor (MA) and whether the worker was afforded procedural fairness during examination; no demonstrable error or assessment made on the basis of incorrect criteria by the MA; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 September 2023 the appellant, Nahi Marqus, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 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 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 grounds 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).

RELEVANT FACTUAL BACKGROUND

The appellant worker, Nahi Marqus, was working in the course of his employment as a formworker with the respondent employer, Sky High Contracting Pty Ltd, on 7 April 2020 when he lost his balance when moving a screen and fell from the first floor landing onto the left side of his body. He sustained an injury to his neck and left shoulder.
The appellant was taken by car to Westmead Hospital and understands that he sustained a dislocation of the left acromioclavicular joint. His left arm was put in a sling and he returned home.
The appellant underwent a MRI scan of the left shoulder on 24 April 2020 which reported evidence of recent injury to the acromioclavicular joint with fluid around the lateral third…

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 608
Decision Date: 23 November 2023

CaseChat Overview and Summary

In the case of Marqus v Sky High Contracting Pty Ltd, the appellant sought to challenge an assessment that found they had a 0% whole person impairment for injuries to the left shoulder and cervical spine. The dispute was heard in the court, which examined the legal issues surrounding the assessment, particularly in relation to the application of clause 1.36 of the Guidelines, which addresses inconsistent presentation by the worker. The court had to determine whether the Medical Assessor (MA) provided adequate reasons for the assessment and whether the worker was afforded procedural fairness during the examination.

The central legal issues involved the validity of the MA's assessment and whether the worker was given a fair opportunity to present their case. The appellant argued that the MA had failed to provide adequate reasons for the assessment and that procedural fairness was not observed during the examination. The court considered whether there was any demonstrable error in the assessment process and whether the MA had based their assessment on incorrect criteria. The court also examined the consistency of the appellant's presentation and whether it aligned with the findings of the MA.

After thorough consideration, the court found that there was no demonstrable error in the assessment process. The MA had provided adequate reasons for the assessment, and the appellant's inconsistent presentation did not undermine the validity of the findings. The court determined that the worker was afforded procedural fairness during the examination, and there was no basis to conclude that the assessment was made on incorrect criteria. As a result, the court confirmed the Medical Assessment Certificate.

The court's decision upheld the findings of the MA, confirming the Medical Assessment Certificate. The appellant's challenge to the assessment was dismissed, and the 0% whole person impairment rating for the injuries to the left shoulder and cervical spine was maintained.

Orders