| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sleiman v AGR Tyres Pty Ltd [2023] NSWPICMP 111 |
| APPELLANT: | Ali Sleiman |
| RESPONDENT: | AGR Tyres Pty Ltd |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | John Garvey |
| DATE OF DECISION: | 29 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Reconsideration of Medical Assessment Certificate (MAC) issued as a result of previous medical appeal; sought for the purpose of a threshold dispute; consideration by the Court of Appeal; Sleiman v Gadalla Pty Ltd discussed; reconsideration appropriate based on deterioration; Martinovic v Workers Compensation Commission of New South Wales and Riverina Wines Pty Ltd v Workers Compensation Commission considered; Held – MAC revoked. |
BACKGROUND
Ali Sleiman was employed by AGR Tyres Pty Ltd (AGR) as a tyre fitter from early 2000. He suffered an injury which is deemed to have occurred on 14 May 2014. In 2016 Mr Sleiman made a claim under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for compensation for 46% whole person impairment (WPI). His claim was disputed and he filed an Application to Resolve a Dispute in the former Workers Compensation Commission.
The Workers Compensation Commission was abolished and from 1 March 2021 under the Personal Injury Commission Act 2020, the matter was assigned to the Workers Compensation Division of the Personal Injury Commission (the Commission). We have used the titles applicable to the relevant decision makers at the time their decisions were made.
The procedural history of the matter is extensive. At a conciliation conference and arbitration hearing on 21 December 2016, the parties agreed that the dispute about Mr Sleiman’s permanent impairment should be referred to an Approved Medical Specialist (AMS). The AMS was asked to assess impairment in respect of Mr Sleiman’s left and right upper extremities (shoulders), lumbar spine and lower digestive tract.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
On 19 January 2017 the AMS, Dr Truskett, issued a Medical Assessment Certificate (MAC) in which he assessed 2% whole permanent impairment (WPI), being 1% in respect of each of Mr Sleiman’s upper extremities (shoulders). The AMS assessed Mr Sleiman in DRE Lumbar category I resulting in 0% WPI and assessed 0% WPI in respect of his lower digestive tract.
Mr Sleiman appealed under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and his appeal was referred to a Medical Appeal Panel comprised of a former arbitrator of the Workers Compensation Commission and Drs Dixon and Garvey.
Mr Sleiman was re-examined by Dr Dixon for the purpose of the appeal on 24 May 2017. On 16 June 2017 the Appeal Panel revoked the MAC and issued a new MAC certifying 14% WPI, comprised of 8% in respect of the right upper extremity and 6% in respect…
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- Case
- [2023] NSWPICMP 111
- Decision Date
CaseChat Overview and Summary
The Court of Appeal needed to decide if the deterioration in Mr Sleiman's condition since the original MAC was issued justified a reconsideration. The Court referred to previous cases, including Sleiman v Gadalla Pty Ltd, where the reconsideration of a MAC was considered appropriate based on a deterioration in the applicant's condition. The Court also examined Martinovic v Workers Compensation Commission of New South Wales and Riverina Wines Pty Ltd v Workers Compensation Commission to determine the criteria for reconsideration. The Court found that the circumstances in this case warranted a reconsideration of the MAC.
The Court of Appeal concluded that the MAC should be revoked based on the deterioration in Mr Sleiman's condition since the initial assessment. The Court found that the original MAC did not adequately account for the changes in his condition, and that the reassessment was necessary to ensure that the applicant received appropriate compensation. The Court of Appeal's decision was influenced by the principles established in previous cases, which emphasised the importance of considering a deterioration in an applicant's condition when reviewing a MAC. The Court revoked the MAC, allowing for a new assessment to be conducted, which would more accurately reflect Mr Sleiman's current condition.
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Background
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