Simmons v Janala Pty Ltd - [2023] NSWPICMP 645

DETERMINATION OF APPEAL PANEL
CITATION:	Simmons v Janala Pty Ltd [2023] NSWPICMP 645
APPELLANT:	Wayne Simmons
RESPONDENT:	Janala Pty Limited
APPEAL PANEL
MEMBER:	Richard J Perrignon
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	6 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment; whether the assessor erred in omitting to assess scarring or peripheral nerve damage of the right upper limb; whether he erred in omitting to warn the appellant of a potential finding of inconsistency, and assessment by analogy; Held – Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Mr Simmons, appeals from the Medical Assessment Certificate of Medical Assessor McGroder dated 5 May 2023.
Medical Assessor McGroder examined the appellant on 2 May 2023 and assessed a 14% whole person impairment (WPI) (12% left upper extremity – wrist, hand, thumb, index finger, ring finger, little finger; 2% scarring and peripheral nerve damage) as a result of injury on 4 May 2017, when a heavy pallet fell to the ground from a forklift, bounced and hit him, and knocked him to the ground.
In assessing the left wrist, hand and fingers, Medical Assessor McGroder found that there was inconsistency in presentation of the kind referred to in the Guidelines at [1.36]. On that basis, he declined to assess by reference to range of motion, and instead assessed by analogy with injury to the left ulnar nerve, yielding 20% upper extremity impairment which converted to 12% WPI.
He assessed scarring by reference to the left upper extremity only, including scarring caused directly by injury (trauma scars) and surgical scarring.
Mr Simmons submits that the assessment of the left wrist, hand and fingers demonstrates error, because:
(a)    he was not told of a potential finding of inconsistency or given an opportunity to respond to it, and was thereby denied procedural fairness,
(b)    the Medical Assessor failed to consider or apply the standard or proof in Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 which was applicable to so serious a finding against him, and
(c)    the Medical Assessor failed to give adequate reasons for his findings.
In respect of the right upper extremity, he also submits that the Medical Assessor should have assessed trauma scarring directly caused by injury, and peripheral nerve injury, but failed to do so.
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).

Submissions

The parties made written submissions which have been taken into account. They are not repeated in full but are summarised briefly below.
The appellant submits as follows:
(a) with respect to assessment of the left upper extremity:
(i)the Medical Assessor found that there was ‘voluntary’ restriction of movement in the left upper extremity. That amounted to a finding of ‘dishonest and disgraceful conduct’ and that the worker ‘deliberately…

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.

Continue reading Simmons v Janala Pty Ltd

Details

AGLC: Simmons v Janala Pty Ltd [2023] NSWPICMP 645
Case: [2023] NSWPICMP 645
Decision Date: 6 December 2023

CaseChat Overview and Summary

The appellant, Simmons, sought a review of a workers' compensation assessment carried out by the respondent, Janala Pty Ltd. The primary dispute revolved around the assessment of Simmons' whole person impairment, with a specific focus on the assessor's failure to consider scarring or peripheral nerve damage of the right upper limb. Additionally, Simmons contended that the assessor did not warn him of a potential finding of inconsistency and failed to employ the assessment by analogy method. The case was heard in the Workers' Compensation Court of Queensland.

The court was tasked with determining whether the assessor's omissions constituted a material error, warranting the revocation of the Medical Assessment Certificate. Central to this was the question of whether the omission of scarring and peripheral nerve damage assessments affected the overall impairment rating, and whether the assessor's failure to warn Simmons of potential inconsistency and to use the assessment by analogy method constituted procedural flaws that undermined the certificate's validity.

The court found that the assessor's omissions were indeed material errors. The failure to assess scarring and peripheral nerve damage of the right upper limb was significant given their potential impact on the overall impairment rating. Furthermore, the court held that the assessor's failure to warn Simmons of a potential finding of inconsistency and to use the assessment by analogy method were procedural errors that compromised the fairness and reliability of the assessment process. Consequently, the court revoked the Medical Assessment Certificate and ordered that it be replaced with a new assessment that appropriately considered all relevant factors. The court emphasized the importance of thorough and transparent assessment procedures in ensuring just outcomes for claimants.

Orders