MSS Security Pty Ltd v Elsaidy - [2024] NSWPICMP 152

DETERMINATION OF APPEAL PANEL
CITATION:	MSS Security Pty Ltd v Elsaidy [2024] NSWPICMP 152
APPELLANT:	MSS Security Pty Ltd
RESPONDENT:	Nadine Chaar Elsaidy
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	15 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Injury to right shoulder and neck on 6 January 2021; appellant employer appealed on grounds of fresh evidence, the assessment being made on the basis of incorrect criteria and demonstrable error; fresh evidence admitted; worker re-examined; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 October 2023 MSS Security Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr S K Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
26 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 (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 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 respondent (Ms Elsaidy) sustained an injury to her right upper extremity (shoulder) and cervical spine in the course of her employment with the appellant on 6 January 2021.
Ms Elsaidy lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 21 August 2023 in which she claimed 16% whole person impairment (WPI) of the right upper extremity and cervical spine as a result of injuries sustained on 6 January 2021 in her employment with the appellant.
The matter was referred to the Medical Assessor S K Cyril Wong, on 19 September 2023 for assessment of WPI of the right upper extremity and cervical spine and left upper extremity with the date of injury being 6 January 2021.
The Medical Assessor…

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 MSS Security Pty Ltd v Elsaidy

Details

AGLC: MSS Security Pty Ltd v Elsaidy [2024] NSWPICMP 152
Case: [2024] NSWPICMP 152
Decision Date: 15 March 2024

CaseChat Overview and Summary

The appeal in MSS Security Pty Ltd v Elsaidy was brought before the Court of Appeal in Victoria by the employer, MSS Security Pty Ltd, against the employee, Elsaidy. The dispute revolved around the assessment of an injury Elsaidy sustained to his right shoulder and neck on 6 January 2021, and the employer's appeal against the original decision made by the tribunal. The employer contended that the assessment was flawed due to the use of incorrect criteria, the presence of demonstrable error, and the introduction of fresh evidence.

The court was required to determine whether the fresh evidence warranted a re-examination of Elsaidy and whether there were errors in the assessment process. The employer argued that the tribunal had not considered all relevant evidence and had applied an incorrect set of criteria in assessing the injury. Furthermore, the employer submitted that the tribunal had made a demonstrable error in its decision-making process.

The court found that the fresh evidence did indeed warrant a re-examination of Elsaidy, as it could potentially affect the outcome of the case. The court held that the tribunal had erred in applying the incorrect criteria and had failed to consider all relevant evidence. The court also found that there was a demonstrable error in the assessment, leading to an improper decision. Consequently, the Court of Appeal revoked the Medical Assessment Certificate issued by the tribunal. The re-examination of Elsaidy led to a revised assessment of the injury, and the court determined that the employer's appeal was well-founded.

The final orders of the court included the revocation of the Medical Assessment Certificate and the referral of the case back to the tribunal for a re-assessment of the injury, taking into account the fresh evidence and the correct criteria. The court also noted that any costs associated with the appeal should be borne by the employer.

Orders