Oswell v Sublime Install Pty Ltd - [2023] NSWPICMP 570

DETERMINATION OF APPEAL PANEL
CITATION:	Oswell v Sublime Install Pty Ltd [2023] NSWPICMP 570
APPELLANT:	William Oswell
RESPONDENT:	Sublime Install Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	James Bodel
DATE OF DECISION:	13 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in making a deduction pursuant to section 323; in addition, the appellant seeks a reconsideration of the Medical Assessment Certificate (MAC) on the grounds that the MA did not include an assessment for scarring; Panel held the evidence supported a deduction; the appellant failed to make a claim for scarring; Skates v Hills Industries Ltd considered; no errors; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 July 2023 William Oswell (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
27 June 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):
· 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).

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 Procedural Direction PIC7.
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
In addition, we note that this appeal also includes an Application for Reconsideration of the MAC issued by Medical Assessor Mastroianni.
We propose to deal firstly with the substantive issues on appeal and will then consider the reconsideration application.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents…

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 Oswell v Sublime Install Pty Ltd

Details

AGLC: Oswell v Sublime Install Pty Ltd [2023] NSWPICMP 570
Case: [2023] NSWPICMP 570
Decision Date: 13 November 2023

CaseChat Overview and Summary

The appellant, Oswell, brought an appeal against the respondent, Sublime Install Pty Ltd, regarding the assessment of a workers' compensation claim. The appellant contested the Medical Assessor's decision to make a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 and sought a reconsideration of the Medical Assessment Certificate on the grounds that scarring was not assessed. The dispute was heard by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the Medical Assessor erred in making a deduction and whether the appellant's failure to claim scarring during the assessment process precluded the Tribunal from considering this issue on appeal. The Tribunal also examined whether the Medical Assessment Certificate was correctly issued, considering all relevant evidence.

The Tribunal found that the evidence presented supported the Medical Assessor's deduction. It was noted that the appellant did not raise the issue of scarring during the assessment, which limited the Tribunal's ability to consider this matter on appeal. The Tribunal referred to the case of Skates v Hills Industries Ltd, which established that claims not raised during the assessment cannot be considered on appeal. As a result, the Tribunal upheld the Medical Assessment Certificate, concluding that no errors were made in the assessment process.

The Tribunal confirmed the Medical Assessment Certificate and dismissed the appeal.

Orders