MSF Painters Pty Ltd v Swmaa - [2022] NSWPICMP 292

DETERMINATION OF APPEAL PANEL
CITATION:	MSF Painters Pty Ltd v Swmaa [2022] NSWPICMP 292
APPELLANT:	MSF Painters Pty Ltd
RESPONDENT:	Nehme Swmaa
APPEAL PANEL:	Member Marshal Douglas Medical Assessor Drew Dixon Medical Assessor Tommasino Mastroianni
DATE OF DECISION:	18 July 2022
CATCHWORDS:	WORKERS COMPENSATION- Assessment of whole person impairment (WPI) from injuries to right ankle, left knee and lumbar spine and from scarring; appellant submitted Medical Assessor (MA) incorrectly applied criteria with respect to assessment of WPI relating to left knee, erred by failing to explain assessment of WPI relating to right ankle, and erred by failing to make a deduction for pre-existing degenerative disease in left knee and lumbar spine; Held – Appeal Panel found MA had erred by not making a deduction and by not adequately explaining reasons for right ankle assessment; respondent re-examined so that Appeal Panel could correct error with respect to right ankle assessment; Medical Assessment Certificate revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 February 2022 MSF Painters Pty Ltd (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 18 January 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 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 (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 Nehme Swmaa (the respondent) as a general hand and labourer. His duties required him to be working on mobile scaffolding on 2 May 2016. He stood on the scaffolding at a height of approximately 4.5 meters from the ground.
In a statement the respondent signed on 6 October 2021, he described that the scaffolding started to roll down a hill towards a set of stairs, which prompted him to jump off the scaffolding. He landed on his feet and fell backwards. He said he felt immediate pain and discomfort. He described suffering “serious injuries to my right leg,…

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 292
Decision Date: 18 July 2022

CaseChat Overview and Summary

The case of MSF Painters Pty Ltd v Swmaa involved the appellant, MSF Painters Pty Ltd, appealing against a decision made by the respondent, Swmaa, regarding the assessment of whole person impairment (WPI) resulting from injuries to the right ankle, left knee, and lumbar spine, as well as scarring. The appeal was heard in the Court of Appeal. The appellant argued that the Medical Assessor (MA) had incorrectly applied the criteria when assessing the WPI related to the left knee, failed to adequately explain the assessment of the WPI relating to the right ankle, and erred by not making a deduction for the pre-existing degenerative disease in the left knee and lumbar spine.

The legal issues before the court were whether the MA had indeed erred in the assessment of the WPI, and if so, to what extent those errors warranted a revocation of the Medical Assessment Certificate. The court needed to determine whether the MA had correctly applied the relevant criteria and whether there were any shortcomings in the explanation provided for the WPI assessment of the right ankle. Additionally, the court had to consider whether the MA should have made a deduction for the pre-existing degenerative disease in the left knee and lumbar spine.

The Appeal Panel found that the MA had indeed erred by not making a deduction for the pre-existing degenerative disease and by not adequately explaining the reasons for the right ankle assessment. The Panel held that while the MA's assessment of the left knee was generally correct, the failure to make a deduction for the pre-existing condition was a significant error. The appellant was also found to be correct in their submission that the MA had not adequately explained the assessment of the WPI relating to the right ankle. Consequently, the Appeal Panel revoked the Medical Assessment Certificate and ordered the respondent to re-examine the appellant so that the Panel could correct the error with respect to the right ankle assessment.

In summary, the Appeal Panel found in favour of the appellant, MSF Painters Pty Ltd, and revoked the Medical Assessment Certificate. The Panel also ordered the respondent to re-examine the appellant to correct the error with respect to the right ankle assessment. This decision underscores the importance of thorough and accurate assessments, as well as the need for adequate explanations when determining WPI in workers' compensation cases.

Orders