Skocic v Edwards Engineering Pty Limited - [2021] NSWPICMP 111

DETERMINATION OF APPEAL PANEL
CITATION:	Skocic v Edwards Engineering Pty Limited [2021] NSWPICMP 111
APPELLANT:	Branko Skocic
RESPONDENT:	Edwards Engineering Pty Limited
APPEAL PANEL:	Member Marshal Douglas Dr Roger Pillemer Dr Gregory McGroder
DATE OF DECISION:	1 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Medical dispute referred to Medical Assessor required assessment of the degree of permanent impairment of worker for injury involving both knees, lumbar spine and scarring due to surgeries for the knees; Medical Assessor assessed no permanent impairment with respect to right lower extremity and lumbar spine but provided no reasons in MAC for so doing; worker appealed; Held- Appeal Panel found MAC contained demonstrable error because of the failure of the Medical Assessor to expose path of reasoning for his assessments relating to lumbar spine and right lower extremity; worker re-examined; MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 March 2021 Branko Skocic (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Richard Crane, an Approved Medical Specialist (now referred to as a Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 16 February 2021.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

On 2 May 2006 the appellant was involved in a car accident while working for Edwards Engineering Pty Limited (the respondent). The driver of the other vehicle involved in the accident assaulted the appellant immediately after the accident, rendering the appellant unconscious. The appellant suffered a fracture of his left upper tibia and tibial plateau in either the accident or the assault. He was admitted to Mona Vale Hospital subsequent to the incident and his fracture was treated with open reduction and internal fixation. There were subsequent complications with infection.
Thereafter the appellant had numerous surgeries to his left knee. In September 2009 he had a total replacement of the left knee.
In January…

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: [2021] NSWPICMP 111
Decision Date: 1 July 2021

CaseChat Overview and Summary

Skocic v Edwards Engineering Pty Limited involved a dispute between the applicant, who was a worker, and the respondent, a company, regarding the assessment of the degree of permanent impairment for injuries sustained by the worker. The dispute was brought before the New South Wales Court of Appeal. The worker argued that the Medical Assessor had erred in his assessment of the degree of permanent impairment for injuries involving both knees, the lumbar spine, and scarring due to surgeries for the knees. Specifically, the Medical Assessor found no permanent impairment with respect to the right lower extremity and lumbar spine but did not provide reasons in the Medical Assessment Certificate (MAC) for doing so. The worker appealed the decision, and the Appeal Panel found that the MAC contained a demonstrable error due to the failure of the Medical Assessor to expose the path of reasoning for his assessments relating to the lumbar spine and the right lower extremity. Consequently, the worker was re-examined, and the MAC was revoked.

The primary legal issue was whether the Medical Assessor had properly assessed the degree of permanent impairment for the worker's injuries and whether the failure to provide reasons in the MAC for certain assessments constituted a demonstrable error. The court was required to determine whether the lack of reasoning in the MAC led to a miscarriage of justice and whether the worker should be re-examined. The court considered the principles of natural justice and the importance of providing reasons for decisions affecting a person's legal rights.

The court found that the Medical Assessor's failure to provide reasons in the MAC for his assessments relating to the lumbar spine and right lower extremity constituted a demonstrable error. The court emphasised the importance of providing reasons in administrative decisions to ensure transparency and fairness. The Appeal Panel held that the absence of reasons meant the worker could not effectively challenge the assessments, which was a breach of natural justice. Therefore, the court revoked the MAC and ordered a re-examination of the worker, allowing for a proper assessment of the degree of permanent impairment.

Orders