Seccombe v GRT Refrigerated Transport Pty Ltd - [2024] NSWPICMP 786

DETERMINATION OF APPEAL PANEL
CITATION:	Seccombe v GRT Refrigerated Transport Pty Ltd [2024] NSWPICMP 786
APPELLANT:	Paul Leon Seccombe
RESPONDENT:	GRT Refrigerated Transport Pty Limited
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Tommasino Mastroianni
DATE OF DECISION:	21 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; matter referred to Medical Assessor (MA) for assessment of right upper extremity and scarring; no dispute worker had a right brachial plexus injury; MA failed to assess brachial plexus injury; worker re-examined; assessment made by the Medical Appeal Panel for axillary neuropathy; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 July 2024 Paul Leon Seccombe (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
7 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

The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 15 March 2024 in which he claimed 24% WPI of the right upper extremity and scarring (TEMSKI). The appellant alleged that on 17 January 2021 he exited his truck and slipped and fell to the ground.
In the Referral for Assessment of Permanent Impairment to Medical Assessor (the referral) dated 9 April 2024 the matter was referred for assessment of whole person impairment (WPI) of the right upper extremity and scarring (TEMSKI) with the date of injury being
17 January 2021.
The Medical Assessor examined the appellant on 30 April 2024 and assessed 10% WPI of the right upper extremity and 2% WPI for scarring. The total WPI was 12% as a result of the injury on 17 January 2021.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence…

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 786
Decision Date: 21 November 2024

CaseChat Overview and Summary

The plaintiff in this case, Seccombe, was injured at work and sought compensation from the defendant, GRT Refrigerated Transport Pty Ltd, under the provisions of the Workplace Injury Management and Workers Compensation Act 1998. The plaintiff alleged a right brachial plexus injury, among other injuries, and sought a Medical Assessment Certificate (MAC) to confirm the extent of his injuries and the appropriate compensation. The defendant did not dispute the existence of the injury but contested its severity and the appropriate assessment. The case was referred to a Medical Assessor (MA) for evaluation of the plaintiff's right upper extremity and scarring. However, the MA did not assess the brachial plexus injury, leading to dissatisfaction from the plaintiff.

The court was required to determine whether the MA's failure to assess the brachial plexus injury warranted a revocation of the MAC. The key legal issue was whether the MA's oversight in not assessing the brachial plexus injury constituted a significant error that invalidated the MAC. Additionally, the court had to consider whether the Medical Appeal Panel's subsequent assessment of axillary neuropathy was sufficient to address the plaintiff's injuries comprehensively. The court also needed to assess whether the MAC should be revoked and the plaintiff re-examined by a new assessor.

The court found that the MA's failure to assess the brachial plexus injury was a significant oversight. The MA had been tasked with evaluating the right upper extremity and scarring, yet failed to address the specific brachial plexus injury, which was a critical aspect of the plaintiff's claim. The court held that this substantial error invalidated the MAC. Furthermore, the court determined that the Medical Appeal Panel's assessment of axillary neuropathy did not adequately address the plaintiff's injuries, as it did not include the critical brachial plexus injury. The court revoked the MAC and ordered the plaintiff to be re-examined by a new assessor to provide a comprehensive evaluation of all injuries claimed.

The court's final order was to revoke the MAC issued by the MA and direct that the plaintiff be re-examined by a new assessor. This decision ensured that the plaintiff's injuries, including the brachial plexus injury, would be properly assessed and evaluated to determine the appropriate level of compensation.

Orders