Risteski v Bunnings Group Ltd - [2022] NSWPICMP 48

DETERMINATION OF APPEAL PANEL
CITATION:	Risteski v Bunnings Group Ltd [2022] NSWPICMP 48
APPELLANT:	Steve Risteski
RESPONDENT:	Bunnings Group Ltd
APPEAL PANEL:	Member Catherine McDonald Dr David Crocker Dr Roger Pillemer
DATE OF DECISION:	15 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Section 323 deduction of the Workplace Injury Management and Workers Compensation Act 1998; avascular necrosis (AVN) of humeral head observed on post-injury MRI scan of right shoulder; surgery to acromioclavicular joint and subsequent monitoring of AVN; consequential condition in left shoulder where AVN also present; Medical Assessor deducted one third, speculating that earlier non-work related hip replacements were also the result of AVN; Cole v Wenaline, Ryder v Sundance Bakehouse, Fardell v Clinton Industries referenced; one-tenth deduction was appropriate; Held- Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 November 2021 Steve Risteski lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 November 2021.
Mr Risteski relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We 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 2018 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 2018.
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 Risteski injured his right shoulder on 17 August 2016 when he lifted several hot water systems each about weighing 25 kg. He continued working until December 2016 when he saw his general practitioner. He was referred to Dr V Kinzel who diagnosed an aggravation of osteolysis in his acromioclavicular joint and operated in April 2017. After a second operation to remove a loose screw, she advised Mr Risteski not to lift weights with his right arm or to raise it above shoulder height.
He returned to work on gatekeeper duties and began to use his left shoulder more because of the limitations imposed by the right shoulder injury.
In a Certificate of Determination dated 27 July 2021, a Member of the Commission determined that Mr Risteski suffered a consequential condition in his left shoulder as a result of favouring his right arm following the injury on 17 August 2016. The assessment of permanent impairment as a result of the injury and the…

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: [2022] NSWPICMP 48
Decision Date: 15 March 2022

CaseChat Overview and Summary

The matter before the court involved a claim for workers' compensation by the appellant, Risteski, against the respondent, Bunnings Group Ltd. The dispute centred around the appropriate deduction to be made under Section 323 of the Workplace Injury Management and Workers Compensation Act 1998 due to the presence of avascular necrosis (AVN) in both of Risteski's shoulders, a condition observed post-injury. The Medical Assessor had initially deducted one-third of the compensation, speculating that Risteski's earlier non-work related hip replacements were also the result of AVN. Risteski contested this deduction, arguing that a one-tenth deduction was more appropriate, and sought the revocation of the Medical Assessment Certificate. The court was required to determine the correct percentage of the deduction to be applied in this situation.

The central legal issue before the court was the correct application of Section 323 of the Act, specifically in relation to the appropriate percentage of deduction for the presence of AVN in Risteski's shoulders. The court had to consider the Medical Assessor's decision to deduct one-third of the compensation and assess whether this was in line with the relevant statutory provisions and case law. The court needed to examine the evidence provided, including the post-injury MRI scans and the medical history of Risteski, and determine whether the deduction was justified or if a lesser deduction, such as one-tenth, was more appropriate. The case law references provided, including Cole v Wenaline, Ryder v Sundance Bakehouse, and Fardell v Clinton Industries, were also considered to ascertain the correct approach to the issue.

In its decision, the court held that the deduction applied by the Medical Assessor was excessive and not supported by the evidence. The court noted that the presence of AVN in both shoulders was a consequence of the work-related injury, but that the deduction should be proportionate to the contribution of the work injury to the overall condition. The court determined that a one-tenth deduction was appropriate, as the non-work related factors, such as the earlier hip replacements, were not sufficiently linked to the AVN in the shoulders. The court found that the deduction made by the Medical Assessor was speculative and not supported by the evidence. Consequently, the court revoked the Medical Assessment Certificate and ordered that a new certificate be issued with a one-tenth deduction.

The final orders of the court included the revocation of the original Medical Assessment Certificate and the issuance of a new certificate reflecting a one-tenth deduction for the presence of AVN in both shoulders. The court's decision provided clarity on the appropriate approach to deductions under Section 323 of the Act, emphasising the need for evidence-based and proportionate deductions. This decision serves as a useful precedent for similar cases involving the application of workers' compensation deductions.

Orders