Sleiman v AGR Tyres Pty Ltd - [2023] NSWPICMP 111

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, 4^th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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…

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: [2023] NSWPICMP 111
Decision Date: 29 March 2023

CaseChat Overview and Summary

The applicant, Mr Sleiman, sought a reconsideration of a Medical Assessment Certificate (MAC) issued by AGR Tyres Pty Ltd, which was the outcome of a previous medical appeal. The matter was before the Court of Appeal, which had to determine whether reconsideration of the MAC was warranted. The dispute centred around the applicant's entitlement to workers' compensation benefits, with the key issue being whether the MAC should be revoked due to a deterioration in the applicant's condition since the initial assessment.

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.

Orders