Riley v Boral Constructions Materials Group Limited - [2021] NSWPICMP 36

DETERMINATION OF APPEAL PANEL
CITATION:	Riley v Boral Constructions Materials Group Limited [2021] NSWPICMP 36
APPELLANT:	Robert Riley
RESPONDENT:	Boral Constructions Materials Group Limited
APPEAL PANEL:	Member Catherine McDonald Dr John Giles Dr Tommasino Mastroianni
DATE OF DECISION:	25 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Skin cancer as a result of sun exposure during employment as a truck driver; no issue with assessments of facial disfigurement and skin; deemed date of injury where claims for further WPI; AMS sought to assess WPI since deemed date of injury with section 323 deduction; Cole v Wenaline Pty Ltd and NSW Fire and Rescue v Clinen discussed; Held- no evidence of impairment before commencement of employment so no section 323 deduction appropriate; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 September 2020 Robert Riley lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr G P Curtin, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 7 September 2020.
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,
· the MAC contains a demonstrable error.
The Registrar was 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Riley spent most of his working life as a truck driver and was employed by Boral Constructions Materials Group Limited (Boral) from about 1969 until 2002. In the course of that employment he was exposed to sunlight and he has previously been compensated on two occasions for permanent impairment as a result of the damage suffered to his skin.
Mr Riley made a claim for permanent impairment compensation on 1 March 2004, which is the deemed date of injury. He was compensated for 4% whole person impairment (WPI) under an agreement registered in the Workers Compensation Commission on 11 November 2005. He was compensated for a further 5% WPI under a complying agreement dated 16 August 2011. Having had considerable further treatment for skin cancer, Mr…

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 Riley v Boral Constructions Materials Group Limited

Details

AGLC: Riley v Boral Constructions Materials Group Limited [2021] NSWPICMP 36
Case: [2021] NSWPICMP 36
Decision Date: 25 March 2021

CaseChat Overview and Summary

Riley initiated proceedings against Boral Constructions Materials Group Limited, asserting that his employment as a truck driver caused skin cancer due to sun exposure. The dispute was heard by the NSW Civil and Administrative Tribunal (NCAT). The key legal issue was whether a Workers Compensation claim for permanent impairment (WPI) should include a section 323 deduction, considering that the claimant had no pre-existing impairment before employment. The claimant argued that the skin cancer was work-related, and sought to assess WPI from the deemed date of injury without a section 323 deduction. The tribunal examined previous cases such as Cole v Wenaline Pty Ltd and NSW Fire and Rescue v Clinen, which dealt with similar issues of pre-existing conditions and their impact on Workers Compensation claims.

The tribunal found that the claimant's skin cancer was indeed work-related, as it was a result of sun exposure during his employment as a truck driver. The tribunal further determined that there was no evidence to suggest that the claimant had any pre-existing impairment before commencing employment. Based on this, the tribunal ruled that a section 323 deduction was not appropriate. Consequently, the tribunal revoked the approved medical specialist's assessment, which had included a section 323 deduction, and ordered a reassessment of the WPI from the deemed date of injury without any such deduction. This decision was grounded in the absence of evidence supporting any pre-existing impairment, which is a prerequisite for applying a section 323 deduction under the Workers Compensation Act.

Orders