Quickturn Pty Ltd v O'Brien - [2024] NSWPICMP 621

DETERMINATION OF APPEAL PANEL
CITATION:	Quickturn Pty Ltd v O'Brien [2024] NSWPICMP 621
APPELLANT:	Quickturn Pty Ltd
RESPONDENT:	Grahame Douglas O'Brien
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Malcolm Linsell
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	3 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment to the skin as a result of allergy to chemical under Table 8-2 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5^th ed; worker was asymptomatic on the day of examination so that assessment in class 4 was inappropriate; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 May 2024 Quickturn Pty Ltd (Quickturn) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor John Giles, who issued a Medical Assessment Certificate (MAC) on 15 April 2024.
Quickturn 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds 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).

RELEVANT FACTUAL BACKGROUND

Mr O’Brien was employed by Quickturn as a labourer/machinist in early 2020 when he developed an inflammatory condition in the skin of his hands which spread to other parts of his body. His general practitioner diagnosed contact dermatitis and he underwent patch testing which revealed that he was allergic to benzisothiazolinone, a compound used as an industrial preservative.
The Medical Assessor assessed 60% whole person impairment (WPI), assessing Mr O’Brien in class 4 under Table 8-2 of AMA 5. He did so because the skin disorder signs are constantly present, there is limited performance of many of the normal activities of daily living, including intermittent confinement at home and Mr O’Brien may require intermittent to constant treatment.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction…

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 621
Decision Date: 3 September 2024

CaseChat Overview and Summary

Quickturn Pty Ltd brought an action against O'Brien in the Queensland Industrial Relations Commission. The dispute centred on the assessment of O'Brien's permanent impairment following a workplace injury. The claim involved an assessment of O'Brien's skin condition as a result of an allergic reaction to a chemical, and the subsequent determination of whether this warranted compensation under the Workplace Injury Management and Workers Compensation Act 1998. The case required the Commission to determine the appropriate class of impairment as per the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition, and to decide if the assessment was correctly applied given O'Brien was asymptomatic at the time of examination.

The key legal issue before the Commission was whether the assessment of O'Brien's permanent impairment by the medical practitioner was accurate and whether it was appropriate to classify the impairment in the fourth class despite O'Brien being asymptomatic during the examination. The Commission had to consider the relevance of the asymptomatic status at the time of the examination and whether it influenced the classification of the impairment. The decision also required an examination of the guidelines set out in the American Medical Association’s Guides to determine if the medical practitioner correctly applied the relevant criteria.

The Commission found that the assessment of O'Brien's permanent impairment was flawed as it did not adequately consider the worker's asymptomatic status at the time of examination. The Commission held that the medical assessment certificate was not appropriately applied and subsequently revoked the certificate. The Commission noted that the asymptomatic status at the time of examination rendered the classification in the fourth class inappropriate and ordered that the matter be reconsidered with a proper assessment in line with the American Medical Association’s Guides.

The Commission ordered that the medical assessment certificate be revoked and that a new assessment be conducted in accordance with the relevant guidelines. The Commission emphasised the importance of ensuring that any assessment of permanent impairment takes into account the actual condition of the worker at the time of examination, rather than relying on historical or potential symptoms.

Orders