Otis Elevator Company Pty Ltd v Leon Michael Krajewski - [2022] NSWPICMP 379

DETERMINATION OF APPEAL PANEL
CITATION:	Otis Elevator Company Pty Ltd v Leon Michael Krajewski [2022] NSWPICMP 379
APPELLANT:	Craig Edward McInerney
RESPONDENT:	Glasson Body Works Pty Ltd
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Dr Drew Dixon
MEDICAL ASSESSOR:	Dr Roger Pillemer
DATE OF DECISION:	4 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - The appellant submits that the Medical Assessor (MA) erred in two respects, namely in failing to make a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of the lumbar spine and the left upper extremity (shoulder) and included in his assessment of the left upper extremity (shoulder) a non-work-related injury; Held – the Panel accepted that some deductions were warranted given the evidence of pre-existing conditions; the Panel also agreed that the MA incorrectly included in his assessment of the left upper extremity (shoulder) a non-work-related injury; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 June 2022 Craig Edward McInerney (Mr McInerney) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 3 June 2022.
The respondent to the appeal is Glassons Body Works Pty Ltd (the respondent).
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 pursuant to
s 327(3)(c) of the 1998 Act, 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.
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 reissued on 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

Mr McInerney sustained an injury to his left lower extremity, lumbar spine and scarring (TEMSKI) on 7 August 2019.
The matter was referred to the MA, Dr Todd Gothelf, on 16 March 2022 for assessment of whole person impairment (WPI) of the left lower extremity, the lumbar spine and scarring (date of injury 7 August 2019).
The MA examined Mr McInerney on 26 May 2022 and assessed 0% WPI of the left lower extremity, 6% of the lumbar spine and 0% for the skin/scarring in respect of the injury on…

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 379
Decision Date: 4 October 2022

CaseChat Overview and Summary

In the case of Otis Elevator Company Pty Ltd v Leon Michael Krajewski, the dispute involved the assessment of workers' compensation claims made by the respondent. The appellant, Otis Elevator Company, contested the decisions made by the Medical Assessor (MA) regarding the deductions for pre-existing conditions and the inclusion of a non-work-related injury in the assessment of the left upper extremity (shoulder). The matter was brought before the court to determine whether the MA's assessment was legally sound and whether any errors warranted the revocation of the Medical Assessment Certificate.

The central legal issue in this case was whether the MA made any errors in the assessment that required correction. Specifically, the appellant argued that the MA failed to appropriately apply section 323 of the Workplace Injury Management and Workers Compensation Act 1998, which allows for deductions in cases where there are pre-existing conditions. Additionally, the appellant claimed that the MA had incorrectly included a non-work-related injury in the assessment of the left upper extremity (shoulder). The court was required to assess the evidence and determine if the MA's decisions were justified or if there were any errors that warranted the revocation of the certificate.

The court found that the Panel accepted that some deductions were warranted due to the evidence of pre-existing conditions, aligning with the appellant's argument. Furthermore, the court also agreed that the MA had made an error by including a non-work-related injury in the assessment of the left upper extremity (shoulder). Based on these findings, the court decided that the Medical Assessment Certificate should be revoked. The Panel's decision was grounded in the evidence presented and the legal provisions of the Act, leading to the conclusion that the MA's assessment contained significant errors that required rectification.

The final order of the court was the revocation of the Medical Assessment Certificate, reflecting the Panel's determination that the MA's assessment contained errors that warranted correction. This decision highlights the importance of ensuring that assessments in workers' compensation claims are conducted with precision and adherence to the relevant legal frameworks.

Orders