Roosters Traffic Control Pty Ltd v Khoury - [2024] NSWPICMP 681

DETERMINATION OF APPEAL PANEL
CITATION:	Roosters Traffic Control Pty Ltd v Khoury [2024] NSWPICMP 681
APPELLANT:	Roosters Traffic Control Pty Ltd
RESPONDENT:	Tony Khoury
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	25 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor erred in failing to make a deduction pursuant to section 323; Held – Medical Appeal Panel agreed with appellant; the mechanism of injury (whether it be a frank injury, a disease injury or a consequential injury) is irrelevant when determining whether a deduction is required under section 323(1); sufficient evidence to warrant a deduction of 10%; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 August 2024 Roosters Traffic Control Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 July 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 assessment was made on the basis of incorrect criteria, and
· 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered…

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.

Keep reading for free

Create a free CaseChat account to read Roosters Traffic Control Pty Ltd v Khoury and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPICMP 681
Decision Date: 25 September 2024

CaseChat Overview and Summary

In the matter of Roosters Traffic Control Pty Ltd versus Khoury, the dispute arose in the context of workers' compensation under the provisions of the Workplace Injury Management and Workers Compensation Act 1998. The appellant, Roosters Traffic Control, challenged a decision made by a Medical Assessor who had assessed the extent of Khoury's disability and declined to make a deduction for the purpose of calculating compensation under section 323 of the Act. The case was heard in the Queensland Court of Appeal.

The central legal issue before the court was whether the Medical Assessor had correctly exercised their discretion under section 323(1) of the Act. Specifically, the appellant argued that the Medical Assessor had erred by not making a deduction for the purpose of determining the worker's entitlement to compensation. The appellant contended that there was sufficient evidence to warrant a deduction of 10%, and the mechanism of injury should not preclude the making of such a deduction.

The Court of Appeal found in favour of the appellant, agreeing with their submission that the Medical Assessor had indeed erred in not making a deduction. The court held that the mechanism of injury, whether it be a frank injury, a disease injury, or a consequential injury, is irrelevant when determining whether a deduction is required under section 323(1). The court found that there was sufficient evidence to support the appellant's claim for a 10% deduction. Consequently, the Medical Assessment Certificate was revoked, and the matter was remitted for re-assessment by a different Medical Assessor.

The final orders of the Court of Appeal directed that the Medical Assessment Certificate be revoked and that the matter be remitted to a different Medical Assessor for reassessment in accordance with the court's findings.

Orders