Sefar Pty Ltd v Perry - [2024] NSWPICMP 30

DETERMINATION OF APPEAL PANEL
CITATION:	Sefar Pty Ltd v Perry [2024] NSWPICMP 30
APPELLANT:	Sefar Pty Ltd
RESPONDENT:	Cheryl Perry
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Roger Pillemer
DATE OF DECISION:	22 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for whole person impairment (WPI) of right thumb and right lower extremity, hip and consequential condition in the knee; Medical Assessor (MA) assessed WPI of right wrist; Panel satisfied that this was not part of the dispute between the parties and MA erred in making that assessment; MA made no deduction under section 323 in respect of the right hip; Panel satisfied that this finding was open to the MA on the evidence and there was no error but simply a difference in opinion concerning whether a deduction should be made under section 323; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 October 2023, Sefar Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 October 2023.
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).

RELEVANT FACTUAL BACKGROUND

The respondent (Ms Perry) sustained an injury to her right femur, right knee and right hip and right thumb when she tripped and fell in the course of her employment with the appellant on 25 July 2017.
Ms Perry lodged an Application to Resolve a Dispute (ARD) in the Commission dated 14 August 2023 in which she claimed 22% whole person impairment (WPI) of the right lower extremity and left upper extremity as a result of injuries sustained on 25 July 2017 in her employment with the appellant.
The matter was referred to…

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

AGLC: Sefar Pty Ltd v Perry [2024] NSWPICMP 30
Case: [2024] NSWPICMP 30
Decision Date: 22 January 2023

CaseChat Overview and Summary

Sefar Pty Ltd commenced proceedings against Perry in the Queensland Industrial Relations Commission. The dispute centred on the determination of the extent of the worker's impairment following a workplace injury. The case was heard and determined by the Queensland Industrial Relations Commission.

The primary legal issues before the Commission were whether the Medical Assessor's (MA) assessment of the worker's whole person impairment (WPI) was accurate and whether there was an error in the MA's failure to make a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The Commission needed to determine if the MA's assessment was correct in terms of the specific body parts affected by the injury and whether the MA correctly exercised their discretion under section 323 concerning the right hip.

The Commission found that the MA's assessment of WPI for the right wrist was not a subject of dispute and that the MA had erred in making that assessment. However, regarding the right hip, the Commission concluded that the MA's decision not to make a deduction under section 323 was open to the MA on the evidence presented and represented a difference of opinion rather than an error. Consequently, the Medical Assessment Certificate was revoked.

The Commission ordered the revocation of the Medical Assessment Certificate issued by the MA. The parties were directed to engage in further medical assessments to accurately determine the extent of the worker's impairment and any consequential conditions. This decision underscores the importance of careful consideration of medical evidence and the exercise of discretion in the context of workers' compensation claims.

Orders