MKD Transcorp Pty Ltd v Risteski - [2024] NSWPICMP 82

DETERMINATION OF APPEAL PANEL
CITATION:	MKD Transcorp Pty Ltd v Risteski [2024] NSWPICMP 82
APPELLANT:	MKD Transcorp Pty ltd
RESPONDENT:	Petar Risteski
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Ross Mellick
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	20 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) did not consider relevant evidence attached to appellant’s reply and thereby denied appellant procedural fairness; whether MA wrongly correlated respondent’s symptoms and signs relating to his cervical spine with DRE II; whether MA wrongly assessed respondent’s ADLs as 2% WPI; whether MA erred by not making deduction under section 323(1); Held – Appeal Panel found MA erred by not making deduction under section 323(1) but found no other error in Medical Assessment Certificate (MAC); MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 September 2023 MKD Transcorp 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, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 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 (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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 employed Petar Risteski, the respondent, as a truck driver. On 7 October 2016 the respondent was preparing a trailer to take a load. That required him to construct a wall within the trailer using bars. Whilst undertaking that task he felt a click in his right shoulder and experienced significant pain. He suffered an injury to right shoulder. He subsequently had surgery on 10 March 2017 to repair the rotator cuff of his right shoulder.
The respondent claimed compensation for permanent impairment from his injury. His claim alleged that in the incident of 7 October 2016 he injured his right shoulder and his cervical spine, or alternatively suffered a condition to…

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: [2024] NSWPICMP 82
Decision Date: 20 February 2024

CaseChat Overview and Summary

MKD Transcorp Pty Ltd v Risteski was a workers compensation matter heard in the Appeal Panel of the Dust Diseases Tribunal of NSW. The appellant, MKD Transcorp, sought to challenge the Medical Assessment Certificate (MAC) issued in relation to the respondent, Mr Risteski. The appellant argued that the Medical Assessor (MA) failed to consider relevant evidence, wrongly correlated symptoms with a Dust Related Exposure II (DRE II), incorrectly assessed activities of daily living (ADL) as 2% Whole Person Impairment (WPI), and did not make a deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998.

The legal issues before the Appeal Panel were whether the MA failed to consider relevant evidence, thereby denying the appellant procedural fairness, whether the MA wrongly correlated the respondent’s symptoms and signs with DRE II, whether the MA wrongly assessed the respondent’s ADLs as 2% WPI, and whether the MA erred by not making a deduction under section 323(1) of the Act. The appellant argued that the MA failed to consider relevant evidence attached to their reply, thereby denying them procedural fairness. The appellant also argued that the MA wrongly correlated the respondent’s symptoms and signs relating to his cervical spine with DRE II and wrongly assessed his ADLs as 2% WPI. Finally, the appellant argued that the MA erred by not making a deduction under section 323(1) of the Act.

The Appeal Panel found that the MA erred by not making a deduction under section 323(1) of the Act but found no other error in the MAC. The Panel found that the MA had considered all relevant evidence and did not deny the appellant procedural fairness. The Panel also found that the MA did not wrongly correlate the respondent’s symptoms and signs with DRE II and that the assessment of ADLs as 2% WPI was reasonable. The Panel found that the MA had not erred by not making a deduction under section 323(1) of the Act. The Appeal Panel revoked the MAC and remitted the matter to the MA for reconsideration in light of the Appeal Panel’s findings.

Orders