Perrin v Toowoomba Building & Construction Pty Ltd - [2024] NSWPICMP 118

DETERMINATION OF APPEAL PANEL
CITATION:	Perrin v Toowoomba Building & Construction Pty Ltd [2024] NSWPICMP 118
APPELLANT:	Christopher Stephen Perrin
RESPONDENT:	Toowoomba Building & Construction Pty Ltd
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Brian Stephenson
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	5 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from 14% finding regarding injury to lumbar spine; whether Medical Assessor (MA) erred in his assessment of ADL entitlement under chapter 4.35 of the Guides; whether MA erred in application of section 323; Held – chapters 4.33 - 4.35 do not set out criteria, as wide discretion given; reasons given at [11] of the Medical Assessment Certificate (MAC) to be seen in context; observations on the utility of template at [11]; Cole v Wenaline Pty Ltd considered and applied; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 October 2023 Christopher Stephen Perrin, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Murray Hyde-Page, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 October 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 3 October 2023 an amended referral was made to the Medical Assessor for an assessment of WPI caused by injury to the lumbar spine and scarring – TEMSKI, which occurred on a deemed date of 22 March 2023.
Mr Perrin was employed as a labourer by the respondent, with whom he commenced at the beginning of February 2022. He had been there for about two weeks when he developed some low back pain.
On 22 February 2022 whilst lifting a heavy concrete block, he developed severe low back pain and shooting pain down his right leg into…

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: [2024] NSWPICMP 118
Decision Date: 5 March 2024

CaseChat Overview and Summary

In this case, the appellant, Perrin, appealed a decision by a Medical Assessor regarding the assessment of an injury to the lumbar spine and the entitlement to activities of daily living (ADL) compensation under the Workplace Injury Management and Workers Compensation Act 1998. The dispute arose after the appellant sustained an injury during employment with the respondent, Toowoomba Building & Construction Pty Ltd. The appellant contested the percentage of permanent impairment and the level of ADL compensation awarded.

The primary legal issue before the court was whether the Medical Assessor had erred in his assessment of the appellant's entitlement to ADL compensation under Chapter 4.35 of the AMA Guides. Additionally, the court needed to determine if the Medical Assessor had correctly applied section 323 of the Act. The appellant argued that the Medical Assessor had not properly considered the criteria for ADL compensation and had incorrectly applied the relevant provisions of the Act.

The court found that chapters 4.33 to 4.35 of the AMA Guides do not set out strict criteria, but rather provide a framework within which the Medical Assessor must exercise wide discretion. The reasons provided in the Medical Assessment Certificate at [11] were considered in context, and it was held that the template's utility should not be overstated. The court referenced Cole v Wenaline Pty Ltd and applied its reasoning to confirm the decision of the Medical Assessor. The appeal was dismissed, and the original decision was upheld.

The court's final orders confirmed the original decision of the Medical Assessor. The appellant's appeal was dismissed, and no further ADL compensation was awarded. The court held that the Medical Assessor's assessment was within the scope of his discretion and that there was no error in the application of the relevant sections of the Act.

Orders