Remondis Australia Pty Ltd v Griffiths - [2024] NSWPICMP 650

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, 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

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…

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 650
Decision Date: 12 September 2024

CaseChat Overview and Summary

Remondis Australia Pty Ltd brought a proceeding against Griffiths in the Queensland Civil and Administrative Tribunal, focusing on the assessment of a worker's compensation claim. The dispute centred around the assessment of a claim made by Griffiths for a workplace injury, particularly whether the pre-existing condition of back pain should have influenced the assessment of his current injury claim. The case required the tribunal to determine whether a deduction should be made from the compensation payable to Griffiths for his injury, considering his history of back issues.

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.

Orders