Portelli v Marble Group Pty Ltd - [2021] NSWPICMP 31

DETERMINATION OF APPEAL PANEL
CITATION:	Portelli v Marble Group Pty Ltd [2021] NSWPICMP 31
APPELLANT:	Jason Portelli
RESPONDENT:	Marble Group Pty Ltd
APPEAL PANEL:	Member John Wynyard Dr Margaret Gibson Dr Brian Noll
DATE OF DECISION:	22 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Whether contralateral small joints in the hand showing pronounced restriction of movement was “normal” to be used as a base line; Chapter 2.20 of the Guidelines considered; Nguyen v Pasarela Pty Ltd [2020] NSWSC considered; 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 20 November 2020 Jason Portelli, the appellant, lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr David Crocker, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 30 October 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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
·        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 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.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is a reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

Following Consent Orders on 21 August 2020 a delegate of the Registrar on 20 October 2020 made an amended referral for an assessment of permanent impairment caused to the “right upper extremity (wrist, hand, shoulder) – consequential injury” by injury on 29 January 2015.
The Consent Orders, when compared to the original pleadings in the ARD form, demonstrate that by consent a number of claims for compensation had not been pressed, amongst them, the claims for injury to the left arm and the left wrist:[1]
“Injury Description / Cause of Injury
Neck, right arm, right shoulder, right elbow, right hand, right thumb, left arm, left wrist
On or about 29 January 2015 the applicant was working at a bench gluing wooden boxes together. Once the glue was applied, he then had to take the boxes to hold…

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.

Keep reading for free

Create a free CaseChat account to read Portelli v Marble Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPICMP 31
Decision Date: 22 March 2021

CaseChat Overview and Summary

The case of Portelli v Marble Group Pty Ltd involved a dispute regarding workers' compensation, specifically whether contralateral small joints in the hand showing pronounced restriction of movement could be considered "normal" for use as a baseline in determining compensation. The matter was heard in the Workers Compensation Commission of Victoria. The plaintiff argued that the pronounced restriction of movement in the contralateral small joints should not be used as a baseline, while the defendant maintained that it was appropriate to use such a baseline.

The central legal issue before the court was whether the contralateral small joints in the hand, which showed pronounced restriction of movement, could be deemed "normal" for use as a baseline. The court was required to consider the relevant guidelines, particularly Chapter 2.20, and evaluate the precedent set in Nguyen v Pasarela Pty Ltd. The court needed to assess whether the pronounced restriction of movement in the contralateral small joints should impact the determination of compensation.

The court, after careful consideration, confirmed the decision of the MAC. The reasoning involved a detailed examination of Chapter 2.20 of the Guidelines and the principles established in Nguyen v Pasarela Pty Ltd. The court concluded that the pronounced restriction of movement in the contralateral small joints should not be used as a baseline for determining compensation. The decision was based on the premise that the restriction in movement was not indicative of a "normal" state and thus should not be used as a comparative baseline.

The final orders of the court confirmed the decision of the MAC, with no further orders made beyond this confirmation. The plaintiff's argument that the pronounced restriction of movement in the contralateral small joints should not be used as a baseline was upheld. The court's decision aligns with the principle that a "normal" state should not be based on pronounced restrictions, thereby ensuring a fair assessment of compensation.

Orders