Naves- Gomez v The Legislature - [2021] NSWPICMP 35

DETERMINATION OF APPEAL PANEL
CITATION:	Naves- Gomez v The Legislature [2021] NSWPICMP 35
APPELLANT:	Santiago Naves- Gomez
RESPONDENT:	The Legislature
APPEAL PANEL:	Member Brett Batchelor Dr John Dixon-Hughes Dr Neil Berry
DATE OF DECISION:	23 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal by worker on the grounds of assessment was made on the basis of incorrect criteria, and that the MAC contained a demonstrable error; the appellant worker claimed that the Medical Assessor (then an Approved Medical Specialist) was in error in making a one tenth deduction from an assessment of 15% WPI as a result of injury to the digestive system (bilateral hernias) and scarring (TEMSKI); the appellant accepted the 15% WPI assessed but submitted that the Medical Assessor made three demonstrable errors in finding that pre-existing conditions in the respiratory system (asthma, chronic obstructive airways disease and smoking) contributed towards impairment in the gastrointestinal tract, that a deduction of 10% was made for these pre-existing respiratory conditions and that the Medical Assessor had not provided reasons as to why the pre-existing conditions contributed towards impairment of the gastrointestinal system; Held- the Appeal Panel found that the pre-existing conditions suffered by the appellant worker contributed to the WPI sustained by him as a result of injury to the digestive system, but that the Medical Assessor had failed to provide reasons for the deduction of one tenth for pre-existing conditions pursuant to section 323 of the 1998 Act that he made from his assessment of 15% WPI; the Appeal Panel re-assessed the deduction to be made and found that there was no error in the one tenth deduction made by the Medical Assessor; MAC confirmed.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 December 2020 Santiago Naves-Gomez (the appellant/Mr Naves-Gomez) lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr John F W Garvey, an Approved Medical Specialist (now referred to as a Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 26 November 2020.
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…

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: [2021] NSWPICMP 35
Decision Date: 23 March 2021

CaseChat Overview and Summary

In the case of Naves-Gomez v The Legislature, the appellant worker, Naves-Gomez, contested the decision of the Medical Assessment Committee (MAC) in relation to a workers' compensation claim. The appellant argued that the assessment was incorrect and contained errors, particularly regarding the deduction made for pre-existing respiratory conditions which the appellant contended had contributed to impairment in the gastrointestinal tract. The dispute was brought before the court for appeal on the grounds that the MAC had made a demonstrable error in its assessment.

The central legal issues before the court involved whether the MAC correctly assessed the appellant's whole person impairment (WPI) and if the Medical Assessor's deductions for the pre-existing respiratory conditions were justified and adequately reasoned. Specifically, the court needed to determine if the pre-existing conditions indeed contributed to the WPI and if the one tenth deduction made for these conditions was appropriately justified under the relevant legislative provisions.

The court's reasoning focused on the contributions of the pre-existing conditions to the WPI. It found that the pre-existing respiratory conditions did contribute to the WPI, aligning with the appellant's acceptance of the 15% WPI assessment. However, the court also noted that the Medical Assessor had failed to provide adequate reasons for the one tenth deduction made for these conditions, as required by the relevant legislation. Despite this failure, the court determined that the deduction itself was correct and no error was evident in the assessment. Consequently, the Appeal Panel's reassessment upheld the original deduction, and the MAC's decision was confirmed.

The final orders of the court confirmed the MAC's assessment of the appellant's WPI, including the one tenth deduction for the pre-existing respiratory conditions, despite the lack of explicit reasoning provided by the Medical Assessor. The appellant's appeal was thus dismissed, and the MAC's decision remained in place.

Orders