Regency Realty Pty Limited v Arzoumani - [2024] NSWPICMP 355

DETERMINATION OF APPEAL PANEL
CITATION:	Regency Realty Pty Limited v Arzoumani [2024] NSWPICMP 355
APPELLANT:	Regency Realty Pty Limited
RESPONDENT:	Anita Arzoumani
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	3 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of threshold dispute, based on reports of two years; Medical Assessor assessed left wrist in respect of which there had never been a claim; Skates v Hills Industries Ltd, Secretary, New South Wales Department of Education v Connolly, and Voudouris v TDV Constructions Pty Ltd referred to; Held – Medical Assessment Certificate revoked.

BACKGROUND

Anita Arzoumani suffered an injury to her right elbow and wrist on 10 August 2015 in the employ of Regency Realty Pty Ltd (Regency) as a real estate salesperson. She suffered a consequential condition in her left elbow. After considerable conservative treatment, Ms Arzoumani underwent surgery in the form of right posterior interosseous nerve decompression and repair of her biceps tendon on 31 July 2019. Dr Lawson performed a right carpal tunnel release on 19 November 2020. On 5 April 2023 Dr Hughes performed a left distal biceps tendon repair. Regency’s insurer approved right wrist surgery in March 2023.
On 22 December 2021, Ms Arzoumani’s solicitors made a claim for permanent impairment compensation for 16% whole person impairment (WPI) based on reports by Dr Soo dated 19 October and 22 December 2021. The injuries assessed were to Ms Arzoumani’s right elbow, wrist and forearm and to her left elbow. The report was prepared at a time when further surgery was contemplated.
On 20 March 2023 Regency’s insurer wrote to Ms Arzoumani and told her that her treatment expenses would end on 23 June 2023. On 27 March 2023 Ms Arzoumani’s solicitors asked Regency to concede that she satisfied “the threshold of at least 11% WPI and that her entitlement to claim treatment expenses will continue up to at least 23 June 2026 (5 years after her weekly benefits ceased)”. The request was based on Dr Soo’s 2021 assessment. On the following day, Regency said that it did not concede the threshold.
When Regency did not make that concession, Ms Arzoumani filed an Application for Assessment by a Medical Assessor, seeking an assessment as to whether the degree of permanent impairment is more than 10% for the purpose of s 59A of the Workers Compensation Act 1987 (the 1987 Act).
The medical dispute was referred to Medical Assessor SK Cyril Wong who issued a Medical Assessment Certificate (MAC) on 23 October 2023. The Medical Assessor assessed 15% WPI in respect of Ms Arzoumani’s right upper extremity, left upper extremity and scarring. The Medical Assessor included 8% upper extremity impairment (UEI) in his assessment in respect of Ms Arzoumani’s left wrist.
On 17 November 2023 Regency lodged an Application to Appeal Against the Decision of a Medical Assessor. Regency relies on the grounds of appeal under s 327(3)(c) and (d) of…

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 355
Decision Date: 3 June 2024

CaseChat Overview and Summary

Regency Realty Pty Limited, the insurer, brought an application to the Workers Compensation Registry of the Supreme Court of New South Wales to have a Medical Assessment Certificate revoked, which had been issued in favour of the worker, Arzoumani. The dispute centred around the validity of the Medical Assessment Certificate issued for a left wrist injury, despite no prior claim for this injury having been made. The insurer contended that the assessment was flawed as it pertained to an injury that was never claimed, and thus, no assessment should have been made. The worker argued that the assessment was appropriate and should be upheld.

The primary legal issue was whether the Medical Assessment Certificate could be revoked due to the absence of a prior claim for the injury in question. The court had to consider the statutory framework under the Workplace Injury Management and Workers Compensation Act 1998, and how the Medical Assessment Certificate process applied to claims that had not been previously made. The court also needed to interpret relevant case law, including Skates v Hills Industries Ltd, Secretary, New South Wales Department of Education v Connolly, and Voudouris v TDV Constructions Pty Ltd, to determine if there was a valid basis for the assessment and subsequent revocation.

The Workers Compensation Registry, presided over by his Honour Judge Lee, found that the Medical Assessment Certificate was indeed flawed and should be revoked. The court reasoned that the statutory provisions and relevant case law indicated that an assessment should not be made for an injury that had never been claimed. The certificate was based on medical reports that spanned two years, during which no claim for the left wrist injury had been made. The court held that the assessment process was misapplied, as it did not align with the legislative intent and precedent. Consequently, the Medical Assessment Certificate was revoked, aligning with the insurer's application.

The final orders of the court were that the Medical Assessment Certificate issued for the left wrist injury was revoked, and the matter was to be remitted to the Workers Compensation Commission of New South Wales for further consideration in light of the revoked assessment. The decision underscored the importance of adhering to legislative requirements and judicial precedent when assessing claims under the Workers Compensation Act.

Orders