Secretary, Department of Communities and Justice v Marks

[2021] NSWPICMP 200

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Communities and Justice v Marks [2021] NSWPICMP 200
APPELLANT:	Secretary, Department of Communities and Justice
RESPONDENT:	David Marks
APPEAL PANEL:	Member John Wynyard Dr Julian Parmegiani Dr Michael Hong
DATE OF DECISION:	21 October 2021
CATCHWORDS:	WORKERS COMPENSATION-  Matter remitted back from Supreme Court following determination by Associate Justice Simpson; Appeal Panel upheld as to determination regarding section 323 of the Workplace Injury Management and Workers Compensation Act1998, but revoked over disallowance of 2% for effects of treatment pursuant to Chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed. 1 April 2016 ; Held - fresh Medical Assessment Certificate issued for 16% whole person impairment.

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

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 6 May 2020, the Secretary, Department of Communities and Justice, the appellant employer, lodged an Application to Appeal Against the Decision of Approved Medical Specialist (now, following the establishment of the Personal Injury Commission, called a Medical Assessor (MA)). The medical dispute was assessed by Dr Wasim Shaikh, who issued a Medical Assessment Certificate on 24 October 2019 (first MAC) and a further MAC on 14 April 2020 (second MAC) in response to an Order of the Commission referring the matter back to the MA for further assessment.  The MA confirmed his original MAC of 24 October 2019 in his MAC of 14 April 2019.

2. The appellant employer appealed against both MACs, and on 14 August 2021 the Medical Appeal Panel issued a Statement of Reasons revoking the MAC. 

3. An appeal was lodged to the Supreme Court, and on 4 June 2021 Simpson AJ allowed the appeal in part.  The matter was referred back to the Panel by the Principal Registrar of the Supreme Court on 24 August 2021 to determine that issue in accordance with the findings and orders of the Court.

4. The issue concerned the findings of the Panel that Chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed. 1 April 2016 (the Guides) regarding “treatment effect” was not applicable, and the revocation of the MAC in that respect.  The Court held that the 2% whole person impairment (WPI) awarded had been revoked by the Panel without giving procedural fairness to Mr Marks, and its decision in that regard was set aside.

5. The Panel also revoked the determination by the MA that no deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act1998 was assessable, and substituted therefore a deduction of one quarter, which determination had been upheld by Simpson AJ. The resultant MAC issued by the Panel was of 14%, and accordingly
   Mr Marks did not pass the 15% WPI threshold.  Her Honour’s judgement restored the 2% WPI to Mr Marks, so that he is now entitled to 16% WPI, rounded up.

6. Accordingly, we issue a fresh MAC in that amount,

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Psycho-logical	6/2/2018	11, page 55-60	14	21	1/4	14
Total % WPI (the Combined Table values of all sub-totals)					+2% treatment effects = 16%

John Wynyard

Member

Dr Julian Parmegiani
Medical Assessor

Dr Michael Hong
Medical Assessor

21 October 2021