MJS Quality Constructions Pty Ltd v Yacoub - [2023] NSWPICMP 27

DETERMINATION OF APPEAL PANEL
CITATION:	MJS Quality Constructions Pty Ltd v Yacoub [2023] NSWPICMP 27
APPELLANT:	MJS Quality Constructions Pty Ltd
RESPONDENT:	Fadi Yacoub
Appeal Panel
MEMBER:	Brett Batchelor
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	31 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against assessment of a Medical Assessor (MA) of 15% whole person impairment (WPI) as a result of injury to the right lower extremity; the MA found two separate injuries to the right lower extremity, an injury to the muscle of the right thigh and a separate peripheral nerve injury to the saphenous nerve; the appellant submitted that Table 17-2 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) prevented an assessment of the peripheral nerve injury and loss of muscle strength in the right lower extremity; the respondent submitted that the two separate injuries permitted them both to be assessed in reaching a total assessment of WPI for the right lower extremity examination of relevant Tables in Chapter 7 of AMA 5 and also Chapter 3 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; Held – the MA was correct in his diagnosis of two separate injuries to the right lower extremity, and that Table 17-2 of AMA 5 did not prevent the two separate injuries to the right lower extremity being assessed, and combined to give the total assessment in respect of injury to the right lower extremity as found by the MA; Medical Assessment Certificate of the MA confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 October 2022 MJS Quality Constructions Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns (the MA), a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 September 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 incorrect criteria ground), and
· the MAC contains a demonstrable error (the demonstrable error ground).
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel (the 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

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

AGLC: MJS Quality Constructions Pty Ltd v Yacoub [2023] NSWPICMP 27
Case: [2023] NSWPICMP 27
Decision Date: 31 January 2023

CaseChat Overview and Summary

MJS Quality Constructions Pty Ltd, as the insurer, appealed against the assessment of a Medical Assessor who found that the claimant had suffered a 15% whole person impairment (WPI) as a result of an injury to the right lower extremity. The claimant had suffered two separate injuries: one to the muscle of the right thigh and a peripheral nerve injury to the saphenous nerve. The insurer contended that the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5), prevented an assessment of the peripheral nerve injury and loss of muscle strength in the right lower extremity. The claimant argued that the two separate injuries allowed for both to be assessed in reaching a total assessment of WPI for the right lower extremity using the relevant tables in Chapter 7 of AMA 5 and Chapter 3 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, reissued 1 March 2021.

The court considered whether the two injuries could be assessed separately or whether Table 17-2 of AMA 5 precluded such an assessment. The court found that the Medical Assessor correctly diagnosed two separate injuries to the right lower extremity. The court further held that Table 17-2 of AMA 5 did not prevent the two separate injuries from being assessed, and the combined assessment resulted in the total WPI found by the Medical Assessor. The court examined the relevant tables in AMA 5 and the NSW Workers Compensation Guidelines and found that the Medical Assessor's assessment was consistent with the applicable guidelines.

Accordingly, the court upheld the assessment of the Medical Assessor, and the Medical Assessment Certificate was confirmed. The court's decision affirmed the Medical Assessor's findings and provided clarity on the assessment of separate injuries under the relevant guidelines.

Orders