Redman v Protech Personnel Pty Ltd - [2022] NSWPICMP 458

DETERMINATION OF APPEAL PANEL
CITATION:	Redman v Protech Personnel Pty Ltd [2022] NSWPICMP 458
APPELLANT:	Mathew Redman
RESPONDENT:	Protech Personnel Pty Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	16 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against 1/10th deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) applied the wrong test; whether the MA’s reasons demonstrated his actual path of reasoning; Held – MA description of pre-existing condition as predisposing the appellant to further deterioration not the correct test; Cole v Wenaline considered and applied; MA took inadequate history of back injury and failed to give a diagnosis; path of reasoning not adequately set out; Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak applied; Medical Assessment Certificate revoked and 1/10th deduction rejected.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 July 2022 Mathew Redman, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on
6 June 2022.
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):
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 14 April 2022 the delegate of the President referred this matter to the MA for an assessment of WPI caused by injury to the lumbar spine, left lower extremity and scarring (TEMSKI) on 11 May 2019.
Mr Redman was employed as a construction labourer and suffered an injury to his left foot on 11 May 2019 when a truck ran over it.
He suffered injury to his left foot below the ankle and was taken to Grafton Hospital.
The wound was severe and it was debrided and cleaned after which he was transferred to Coffs Harbour when he…

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 Redman v Protech Personnel Pty Ltd

Details

AGLC: Redman v Protech Personnel Pty Ltd [2022] NSWPICMP 458
Case: [2022] NSWPICMP 458
Decision Date: 16 November 2022

CaseChat Overview and Summary

In the matter of Redman v Protech Personnel Pty Ltd, the respondent, Protech Personnel, sought a review of a determination that rejected a 1/10th deduction of the appellant's workers' compensation payments under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The dispute centred on the adequacy of the Medical Assessor's (MA) evaluation of the appellant's entitlement to compensation. Specifically, it was argued that the MA had applied an incorrect legal test and failed to sufficiently detail his reasoning process.

The central legal issues that the court had to address were whether the MA had correctly applied the relevant legal standards in assessing the appellant's condition and whether the MA's written reasons adequately reflected his reasoning path. The court was required to determine if the MA's identification of a pre-existing condition as predisposing the appellant to further injury was the appropriate legal standard and if the MA's documentation accurately captured his decision-making process.

The court found that the MA had not applied the correct legal test in determining the appellant's condition, as outlined in Cole v Wenaline. The court noted that the MA's description of the pre-existing condition did not align with the required legal standard, which focuses on whether the injury arose out of and in the course of employment. Additionally, the MA's failure to adequately document the history of the back injury and provide a diagnosis was deemed problematic. The court held that the MA's reasons did not adequately demonstrate the actual path of reasoning, as required by Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak. Consequently, the court revoked the Medical Assessment Certificate and rejected the 1/10th deduction of the appellant's compensation payments.

Orders