Simpson v R&L Refrigeration & Air-Conditioning Pty Ltd - [2024] NSWPICMP 820

DETERMINATION OF APPEAL PANEL
CITATION:	Simpson v R&L Refrigeration & Air-Conditioning Pty Ltd [2024] NSWPICMP 819
APPELLANT:	Clint Simpson
RESPONDENT:	R&L Refrigeration & Air-Conditioning Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Ross Mellick
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	3 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by failing to set out sufficient findings to explain the assessment he made of the appellant’s permanent impairment; Appeal Panel held the MA’s findings from his examination were insufficient to support his assessment; Appeal Panel held it could not rely on a presumption of regularity in this case; Held – Appeal Panel found the Medical Assessment Certificate (MAC) contained a demonstrable error; appellant re-examined; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 July 2024 Clint Simpson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 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 (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 (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 commenced employment with R & L Refrigeration & Air-Conditioning Pty Ltd (the respondent) in 2017 as a fulltime refrigeration mechanic. On 17 November 2019 he suffered an injury to his right shoulder and spine. This occurred while he and a fellow employee of the respondent lifted an object weighing between 100 and 150 kilograms from a truck.
On 10 November 2023 the appellant’s solicitors wrote to the respondent’s solicitors advising them that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury that had been assessed to be 28% whole person impairment (WPI). The appellant’s solicitors enclosed with their correspondence two medical reports to support the appellant’s claim, specifically a report…

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 820
Decision Date: 3 December 2024

CaseChat Overview and Summary

The appellant, Simpson, appealed against a decision of the Appeal Panel of the Workers Compensation Regulator. The dispute centred on the assessment of Simpson's permanent impairment, which the Medical Assessor (MA) had determined. The Appeal Panel found that the MA's findings were insufficient to support his assessment, leading to the revocation of the Medical Assessment Certificate (MAC). Simpson argued that the MA had erred by not providing sufficient findings to explain his assessment of Simpson's permanent impairment.

The primary legal issue before the court was whether the Appeal Panel was correct in finding that the MA's findings were insufficient and whether the presumption of regularity could be applied in this case. The court had to consider the standards expected of the MA's assessment and the extent to which the Appeal Panel could rely on the MA's findings. The court also had to determine whether the Appeal Panel was correct in revoking the MAC due to the insufficient findings.

The court held that the Appeal Panel was correct in finding that the MA had made a demonstrable error by not providing sufficient findings to support his assessment. The court found that the Appeal Panel could not rely on a presumption of regularity in this case, as the MA's findings were insufficient to support his assessment. The court held that the Appeal Panel was justified in revoking the MAC and ordering a re-examination of Simpson. The court found that the Appeal Panel's decision was consistent with the principles of fairness and justice, and there was no error in the Appeal Panel's decision.

The court confirmed the Appeal Panel's decision to revoke the MAC and ordered a re-examination of Simpson. The court found that the Appeal Panel had acted within its jurisdiction and that there was no error in the Appeal Panel's decision. The court held that the MA's findings were insufficient to support his assessment, and the Appeal Panel was justified in revoking the MAC and ordering a re-examination of Simpson.

Orders