Mertoa v Hunt Civil Pty Ltd - [2021] NSWPICMP 149

DETERMINATION OF APPEAL PANEL
CITATION:	Mertoa v Hunt Civil Pty Ltd [2021] NSWPICMP 149
APPELLANT:	Junior Merota
RESPONDENT:	Hunt Civil Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Dr John Brian Stephenson Dr Gregory McGroder
DATE OF DECISION:	16 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Appellant sustained injury to the right shoulder and developed Chronic Regional Pain Syndrome which Medical Assessor (MA) assessed at 60% WPI; MA then deducted one-tenth pursuant to section 323 in respect of impairment from a fall some months after the work injury; Held- MA erred in making a deduction pursuant to section 323 for a subsequent injury; Panel not satisfied that any impairment was caused in the fall; MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 July 2021 Junior Merota (the appellant) made an application to appeal against a medical assessment (the appeal) to the Personal Injuries Commission (the Commission). The medical assessment was made by Dr Mohammed Assem, Medical Assessor (the MA) and issued on 7 June 2021.
The respondent to the appeal is Hunt Civil Pty Ltd.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· 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 reissued 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

In these proceedings, the appellant is claiming lump sum compensation in respect of an injury to the right upper extremity as a result of the injury on 27 September 2019.
In the Amended Referral for Assessment of Permanent Impairment to a Medical Assessor dated 31 May 2021, the matter was referred to the MA, Dr Mohammed Assem, for assessment of whole person impairment (WPI) of the right upper extremity as a result of the injury on 27 September 2019.
The MA examined the respondent on 2 June 2021. He assessed 60% WPI of the right upper extremity and deducted 1/10^th pursuant to s 323 of the 1998 Act for pre-existing injury, condition or abnormality. Therefore, the total assessment was 54% WPI in respect of the injury on 27 September 2019.

PRELIMINARY REVIEW

The Appeal Panel conducted a…

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: [2021] NSWPICMP 149
Decision Date: 16 August 2021

CaseChat Overview and Summary

The appellant, Mertoa, brought a case against Hunt Civil Pty Ltd regarding a workers' compensation dispute. The appellant sustained a work-related injury to the right shoulder and subsequently developed Chronic Regional Pain Syndrome (CRPS). The Medical Assessor (MA) evaluated the appellant's condition and assessed the Work-Related Percentage Impairment (WPI) at 60%. However, the MA made a deduction of one-tenth of the WPI due to an impairment resulting from a fall that occurred some months after the original work injury. The appellant challenged this deduction, arguing it was improper. The court had to determine whether the MA correctly applied section 323 in deducting the impairment caused by the subsequent fall.

The primary legal issue was whether the MA was correct in making a deduction pursuant to section 323 for the impairment resulting from the fall after the initial work injury. The court needed to ascertain whether the MA's assessment was justified and if the impairment from the fall could be considered separate and distinct from the original work injury. The appellant argued that the fall did not cause any additional impairment and that the deduction was therefore erroneous. Conversely, the respondent argued that the fall did contribute to the overall impairment and that the deduction was appropriately made.

The court examined the evidence and concluded that the MA erred in making a deduction pursuant to section 323 for the impairment from the fall. The Panel found that there was insufficient evidence to establish that any impairment was caused by the fall. The Panel was not satisfied that the fall had contributed to the appellant's overall impairment in a manner that warranted a separate deduction. As a result, the Panel revoked the MA's decision regarding the impairment deduction.

The final orders included the revocation of the MA's decision to deduct one-tenth of the WPI for the impairment caused by the subsequent fall. The appellant's WPI was reinstated at 60%, without any deduction for the fall. The appellant was entitled to receive compensation for the original work-related injury and associated CRPS, without any reduction due to the fall.

Orders