Meremere v Symbion Pty Ltd - [2022] NSWPICMP 506

DETERMINATION OF APPEAL PANEL
CITATION:	Meremere v Symbion Pty Ltd [2022] NSWPICMP 506
APPELLANT:	Riki Meremere
RESPONDENT:	Symbion Pty Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Garvey
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	9 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against half section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction for pre-existing condition of obesity; appellant injured ankle and suffered a significant increase in his weight to the extent that bariatric was necessitated; appellant claimed the ankle injury had restricted his usually active life and whilst he had been obese at the time of the ankle injury, his restriction in motion had caused his weight to reach a point of morbid obesity; Held – Cole v Wenaline Pty Ltd and Fardell v Clinton Industries Pty Ltd considered and applied; relevant injury was to the digestive system; appellant’s obesity a relevant pre-existing condition, and significant in contributing to the morbid obesity that required surgical correction; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 September 2022 Riki Meremere, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 August 2022.
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,
· 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 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 Guides) 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 8 June 2022 the delegate of the President referred this matter to the MA for an assessment of WPI caused by injury to the left lower extremity and digestive system on 12 January 2018.
Mr Meremere was employed as a forklift driver for Symbion Pty Ltd (the respondent) and on 12 January 2018 suffered an inversion injury to his left ankle.
Conservative management was unsuccessful and on 24 May 2018 he came to arthroscopic procedure which has given a fairly…

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: [2022] NSWPICMP 506
Decision Date: 9 December 2022

CaseChat Overview and Summary

In the case of Meremere v Symbion Pty Ltd, the appellant, Meremere, sought to appeal against a deduction made under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The dispute arose following an injury to Meremere's ankle, which subsequently led to a significant increase in his weight, necessitating bariatric surgery. Meremere argued that the ankle injury restricted his active lifestyle, leading to a marked increase in his weight to a point of morbid obesity. The respondent, Symbion Pty Ltd, contested the claim, asserting that Meremere's pre-existing condition of obesity was a significant contributing factor to the morbid obesity and the need for surgical intervention. This case was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether the pre-existing condition of obesity could be considered a significant factor in the appellant's morbid obesity and the resultant need for bariatric surgery. Furthermore, the court had to assess if the ankle injury was the primary cause of the morbid obesity or if the pre-existing condition played a substantial role. The case hinged on interpreting the relevant sections of the Workers Compensation Act and understanding the interplay between the pre-existing condition and the injury in contributing to the appellant's current health status.

The court found that the relevant injury was not solely to the ankle but extended to the digestive system, given the significant weight gain post-injury. By examining the precedents set in Cole v Wenaline Pty Ltd and Fardell v Clinton Industries Pty Ltd, the court concluded that the pre-existing condition of obesity was indeed significant in contributing to the morbid obesity. The appellant's restriction in motion due to the ankle injury did exacerbate his weight gain, but the pre-existing condition was a critical factor in reaching the morbid obesity stage requiring surgical intervention. The Medical Assessment Certificate supported this finding, affirming that the pre-existing condition was a relevant factor.

Consequently, the court upheld the deduction under section 323 of the Act, finding that the pre-existing condition of obesity was a significant contributor to the appellant's morbid obesity. The appeal was dismissed, and the deduction was maintained. The court ordered that the appellant's claim for compensation be adjusted accordingly.

Orders