| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Remondis Australia Pty Ltd v Griffiths [2024] NSWPICMP 650 |
| APPELLANT: | Remondis Australia Pty Ltd |
| RESPONDENT: | Jeff Griffiths |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 12 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; section 323; Medical Assessor made no deduction; worker had previous history of back pain including fusion; pre-existing condition asymptomatic at time of work injury but had been symptomatic at various times for many years; scarring claimed but not referred for assessment; Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq), and Ryder v Sundance Bakehouse considered; Vitaz v Westform (NSW) Pty Limited applied; Held – Medical Assessment Certificate revoked; deduction made; commentary as to scarring. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 July 2024, Remondis Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 June 2024.
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 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Jeff Griffiths (the respondent) was employed by the appellant as a truck driver, but apparently as part of that role he attended to other duties. On the day of the injury in question, he was asked to clean out some drainage pits at work, requiring the lifting of a heavy metal grate. He noticed a twinge in his low back, which developed into pain over the next few days. Mr Griffiths eventually required surgery, being a laminectomy and neurolysis at L4/5 and L5/S1. This resulted in some improvement, although he has gradually developed further symptoms.
The above work-related injury is on the background of a significant history of back issues, dating back to 1989. A major incident occurred in 1997, when he…
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- Case
- [2024] NSWPICMP 650
- Decision Date
CaseChat Overview and Summary
The tribunal considered several legal issues, primarily focusing on the applicability of section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The court examined the relevance of Griffiths' pre-existing condition, which had been asymptomatic at the time of the work injury but had a significant history of previous symptoms and treatments, including a fusion. Additionally, the tribunal needed to address whether the scarring claimed by Griffiths should have been referred for assessment and if it warranted any deduction in the compensation.
The tribunal found that the Medical Assessor's decision not to make a deduction was flawed. It held that the pre-existing condition of Griffiths, despite being asymptomatic at the time of the work injury, had to be considered in the assessment of the current claim. The tribunal relied on previous cases such as Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq), and Ryder v Sundance Bakehouse, to emphasise the need for a comprehensive assessment of all relevant factors. Applying the decision in Vitaz v Westform (NSW) Pty Limited, the tribunal revoked the Medical Assessment Certificate and ordered a deduction to be made, reflecting the influence of the pre-existing condition on the current injury. The tribunal also commented on the issue of scarring, noting that it was not referred for assessment and thus did not warrant a deduction.
The final orders of the tribunal included the revocation of the Medical Assessment Certificate and the making of a deduction from the compensation payable to Griffiths, reflecting the influence of his pre-existing back condition. The tribunal did not make any specific orders regarding the scarring as it had not been assessed.
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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