Orange City Council v Maric - [2022] NSWPICMP 19

DETERMINATION OF APPEAL PANEL
CITATION:	Orange City Council v Maric [2022] NSWPICMP 19
APPELLANT:	Orange City Council
RESPONDENT:	Joseph Zeiko Maric
APPEAL PANEL:	Member Jane Peacock Dr Brian Noll Dr Gregory McGroder
DATE OF DECISION:	15 February 2022
CATCHWORDS:	WORKERS COMPENSATION- Lumbar spine injury; appeal limited to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; Medical Assessor had deducted one-tenth under section 323 of the 1998 Act to account for the pre-existing injury, abnormality or condition; the employer appealed the extent of the deduction; the Appeal found that the deduction of one-tenth was not at odds with the available evidence and confirmed the Medical Assessment Certificate (MAC); Held- MAC confirmed.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 November 2021 Orange City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Robert Kuru, a MA, who issued a Medical Assessment Certificate (MAC) on 26 October 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):
· 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not, for the reasons set out below find error. Absent a finding of error the Appeal Panel has no power to require that the worker be re-examined: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

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 19
Decision Date: 15 February 2022

CaseChat Overview and Summary

The case of Orange City Council v Maric involved a dispute over a workers compensation claim for a lumbar spine injury. The matter was heard in the Dust Diseases Tribunal of NSW. The central issue for the Tribunal was whether the Medical Assessor's deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) was justified. Specifically, the Tribunal needed to determine whether the deduction of one-tenth made by the Medical Assessor to account for the pre-existing injury, abnormality or condition was in line with the available evidence.

The Tribunal examined the evidence presented and the application of section 323 of the 1998 Act. It concluded that the deduction made by the Medical Assessor was consistent with the evidence and did not overstate the contribution of the pre-existing condition to the overall injury. The Tribunal found that the deduction of one-tenth was reasonable and did not contradict the Medical Assessment Certificate (MAC). Consequently, the Tribunal upheld the MAC as it was originally issued, rejecting the employer's appeal regarding the extent of the deduction.

Given the Tribunal's findings, the final orders were that the Medical Assessment Certificate was confirmed. The Tribunal upheld the assessment made by the Medical Assessor, including the one-tenth deduction for the pre-existing condition, and dismissed the employer's appeal.

Orders