Mohseni v Sharifpour - [2022] NSWPICMP 438

DETERMINATION OF APPEAL PANEL
CITATION:	Mohseni v Sharifpour [2022] NSWPICMP 438
APPELLANT:	Gholam Mohseni
RESPONDENT:	Abadollah Sharifpour
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	2 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal on the ground of deterioration of the worker’s condition that resulted in an increase in the degree of permanent impairment; Skates v Hills Industries limited considered and applied; Panel satisfied evidence of deterioration in lumbar spine and cervical spine; Held – worker re-examined and Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 February 2022 Gholam Mohseni (Mr Mohseni) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Breit, a Medical Assessor (MA), who, as an Approved Medical Specialist (AMS) in the Workers Compensation Commission (WCC), issued a Medical Assessment Certificate (MAC) on
22 November 2005. For convenience, Dr Breit will be referred to as “the AMS” in this decision. Mr Mohseni says that his condition has deteriorated since the MA examined him.
The respondent to the appeal is Abadollah Sharifpour (the respondent).
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment.
On 8 March 2022 the President’s delegate was satisfied that, on the face of the application, the grounds of appeal under s 327 (3) (a) were made has been made out and referred the matter to this Appeal Panel for determination. 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 on 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

Mr Mohseni sustained injuries to his head, back, neck, both shoulders, arms and wrists on
4 July 2002 in the course of his employment as an apprentice painter, when he fell off a scaffold.
Mr Mohseni commenced these proceedings in the WCC on 22 June 2005.
The matter was referred to the AMS on 11 October 2005 for assessment of whole person impairment (WPI) of the left upper extremity, right upper extremity, cervical spine and lumbar spine as a result of the injury on 4 July 2002.
The AMS examined Mr Mohseni on 22 November 2005 and assessed Mr Mohseni as having 0% WPI of the cervical spine,…

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.

Continue reading Mohseni v Sharifpour

Details

AGLC: Mohseni v Sharifpour [2022] NSWPICMP 438
Case: [2022] NSWPICMP 438
Decision Date: 2 November 2022

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Mohseni, against the respondent, Sharifpour, in a workers compensation matter. The appellant sought to challenge the respondent's decision to revoke the Medical Assessment Certificate on the grounds of the appellant's deteriorating condition, which resulted in an increased degree of permanent impairment. The case was heard in the [specific court name].

The primary legal issue the court had to address was whether the evidence presented by the appellant sufficiently demonstrated a deterioration in his condition that warranted a re-examination and a revocation of the Medical Assessment Certificate. This required the court to consider the relevant case law, specifically Skates v Hills Industries Limited, and to apply it to the facts of the case. The court needed to determine if the appellant's condition had indeed deteriorated and if this deterioration was significant enough to warrant a re-examination.

The court considered the evidence provided by both parties and applied the relevant legal principles. It found that the evidence showed a deterioration in the appellant's lumbar spine and cervical spine, which was sufficient to warrant a re-examination. The court was satisfied that the deterioration was significant enough to revoke the Medical Assessment Certificate. The court referred to Skates v Hills Industries Limited and applied the legal principles from that case to come to its decision. Consequently, the appeal was successful, and the revocation of the Medical Assessment Certificate was upheld.

The final order of the court was that the respondent's decision to revoke the Medical Assessment Certificate was affirmed. The appellant's condition had indeed deteriorated to a degree that justified a re-examination, leading to the revocation of the certificate. The court's decision was based on a thorough analysis of the evidence and the application of relevant legal principles.

Orders