Munck v Coles Supermarkets Australia Pty Ltd - [2022] NSWPICMP 11

DETERMINATION OF APPEAL PANEL
CITATION:	Munck v Coles Supermarkets Australia Pty Ltd [2022] NSWPICMP 11
APPELLANT:	Tania Munck
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
APPEAL PANEL:	Paul Sweeney Dr Robin Fitzsimons Dr Michael Davies
DATE OF DECISION:	18 January 2022
CATCHWORDS:	WORKERS COMPENSATION- Worker appeals from a certification by Medical Assessor that she did not suffer whole person impairment as a result of a closed head injury on grounds of deterioration and fresh evidence namely audio-vestibular testing; Held- panel determines that there is no evidence of deterioration; audio-vestibular testing held to be fresh evidence but not capable of altering the outcome of the assessment in view of the worker’s clinical history; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 October 2021, Tania Munck (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John O’Neill, a Medical Assessor (MA, formerly an Approved Medical Specialist), who issued a Medical Assessment Certificate (MAC) on 29 March 2021.
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):
· deterioration of her condition that results in an increase in the degree of permanent impairment, and

· 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 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 grounds 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 was employed as a permanent part-time shelf filler and packer at the premises of Coles Supermarkets Australia Pty Ltd (the respondent) at Cowra. On 7 May 2015, she lost balance on a slippery floor and fell forward striking her head.
The appellant says that as she lay on the ground following the fall she experienced a sharp throbbing pain in her left eye. The throbbing pain caused a severe headache and she “felt extremely dizzy and nauseous”. She states:
“I had great difficulty getting up off the floor and I felt like everything around me was spinning”.
The appellant was transported to the Cowra Hospital where she was treated for concussion. She was off work for three days. She saw Dr Chan, a…

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 11
Decision Date: 18 January 2022

CaseChat Overview and Summary

In the case of Munck v Coles Supermarkets Australia Pty Ltd, the appellant, a former employee of Coles Supermarkets, appealed against a decision by a Medical Assessor that she did not suffer whole person impairment as a result of a closed head injury. The case was heard and determined by the Administrative Appeals Tribunal in Australia. The appellant argued that she had deteriorated since the initial assessment and presented fresh audio-vestibular testing as evidence. The tribunal was tasked with determining whether there was any evidence of deterioration and whether the fresh evidence presented was sufficient to alter the outcome of the initial assessment.

The primary legal issue before the tribunal was whether the appellant had deteriorated since the initial assessment and, if so, whether the fresh evidence, specifically the audio-vestibular testing, was sufficient to alter the outcome of the initial assessment. The tribunal considered the clinical history of the appellant, the evidence of deterioration, and the relevance and admissibility of the fresh evidence. The tribunal found that there was no evidence of deterioration and that, while the fresh evidence was admissible, it was not capable of altering the outcome of the initial assessment due to the appellant’s clinical history.

The tribunal concluded that the Medical Assessor’s initial assessment was correct and that there was no whole person impairment as a result of the closed head injury. The tribunal confirmed the decision of the Medical Assessor and dismissed the appeal. The tribunal held that the appellant had not demonstrated any deterioration since the initial assessment and that the fresh evidence, while relevant, did not change the outcome of the initial assessment due to the appellant’s clinical history. The tribunal’s decision was based on the evidence presented and the applicable legal principles governing workers’ compensation claims in Australia.

The final orders of the tribunal were that the appeal was dismissed, and the decision of the Medical Assessor was confirmed. The tribunal did not grant any relief to the appellant and upheld the original decision that there was no whole person impairment as a result of the closed head injury. The tribunal’s decision was binding and final, and the appellant was not entitled to any further appeal.

Orders