St Charbels College v Stevanovski - [2023] NSWPICMP 349

DETERMINATION OF APPEAL PANEL
CITATION:	St Charbels College v Stevanovski [2023] NSWPICMP 349
APPELLANT:	St Charbel’s College
RESPONDENT:	Marianco “Mario” Stevanovski
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	24 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of right upper extremity and cervical spine; Medical Assessor (MA) assessed impairment from a right carpal tunnel condition as well at the right shoulder; no claim made for carpal tunnel condition; Panel satisfied that the dispute between the parties was a dispute concerning the degree of permanent impairment in the right shoulder and cervical spine and the MA erred in assessing impairment that was unrelated to the injury referred for assessment; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 May 2023 St Charbel’s College (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Cyril Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 (the 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 respondent (Mr Stevanovski) sustained an injury to his right shoulder in the course of his employment on 17 September 2015 and a consequential condition in the cervical spine.
The matter was referred to the Medical Assessor, Dr Cyril Wong, on 21 February 2023 for assessment of whole person impairment (WPI) of the cervical spine and right upper extremity with the date of injury being 17 September 2015.
The Medical Assessor examined Mr Stevanovski on 24 March 2023 and assessed 7% WPI of the cervical spine and 22% WPI of the right upper extremity. The Medical Assessor made no deduction pursuant to s 323 of the 1998 Act. The combined total was 27% WPI as a result of the injury on 17 September…

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 349
Decision Date: 24 July 2023

CaseChat Overview and Summary

St Charbels College sought a review of a Medical Assessment Certificate (MAC) issued by a Medical Assessor (MA). The MAC assessed impairment from a right carpal tunnel condition as well as the right shoulder. St Charbels College argued that no claim was made for the carpal tunnel condition and that the MA erred by including it in the assessment. The dispute centred on the degree of permanent impairment in the right shoulder and cervical spine and whether the MA correctly assessed these impairments.

The court considered whether the dispute between the parties concerned the degree of permanent impairment in the right shoulder and cervical spine and if the MA had erred in including an unrelated condition in the assessment. The court found that the dispute was indeed about the right shoulder and cervical spine and that the MA's inclusion of the carpal tunnel condition was erroneous. The court determined that the MA had assessed impairment that was unrelated to the injury referred for assessment.

The Panel revoked the MAC and found that the dispute was about the degree of permanent impairment in the right shoulder and cervical spine. The court held that the MA erred by assessing impairment that was unrelated to the injury referred for assessment. Consequently, the MAC was revoked, and the dispute was to be resolved in relation to the right shoulder and cervical spine impairments only.

The court's decision resulted in the revocation of the MAC and clarified that the dispute was confined to the degree of permanent impairment in the right shoulder and cervical spine. The carpal tunnel condition was excluded from the assessment, and the parties were directed to proceed with the dispute concerning the right shoulder and cervical spine impairments.

Orders