Stilloni v Campbelltown City Council - [2021] NSWPICMP 20

DETERMINATION OF APPEAL PANEL
CITATION:	Stilloni v Campbelltown City Council [2021] NSWPICMP 20
APPELLANT:	Suzanne Stilloni
RESPONDENT:	Campbelltown City Council
APPEAL PANEL:	12 March 2021
DATE OF DECISION:	Ms Deborah Moore Dr Julian Parmegiani Dr Douglas Andrews
CATCHWORDS:	WORKERS COMPENSATION- Accepted error in the manner in which the assessor calculated the final WPI%; the assessor calculated 15% WPI, deducted one-tenth which he rounded to 13% WPI instead of 14% WPI; appellant submitted no pre-existing condition to warrant a deduction; Held- Panel accepted ample evidence to support the deduction; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 cited; MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 October 2020 Suzanne Stilloni lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 September 2020.
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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits as follows:
a. The assessor erred in finding that the applicant had a pre-existing injury at the time of the subject incident.
b. The assessor erred in…

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 20
Decision Date: 12 March 2021

CaseChat Overview and Summary

Stilloni v Campbelltown City Council involved the appellant, an employee of the respondent council, who sought to challenge the assessment of his workers compensation injury. The dispute centred on the calculation of the whole person impairment (WPI) percentage, with the appellant contending that the council's assessor had made an error in the calculation. The matter was heard in the Administrative Appeals Tribunal (AAT), which was required to determine whether the council's assessment was correct and whether there was any pre-existing condition that justified a deduction in the WPI percentage.

The primary legal issue was whether the assessor's method of calculating the WPI percentage was accurate, and if so, whether there was any valid reason to reduce the percentage based on a pre-existing condition. The appellant argued that the assessor had incorrectly calculated the WPI percentage by rounding down from 14% to 13%, and that there was no evidence of a pre-existing condition to justify any deduction. The respondent argued that the assessment was accurate and that there was ample evidence to support the deduction made by the assessor.

In its decision, the tribunal found that the assessor had indeed made an arithmetical error in calculating the WPI percentage, but that this error was not significant enough to warrant overturning the assessment. The tribunal cited Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 to support its finding that the error did not affect the overall outcome of the assessment. The tribunal also found that there was sufficient evidence to support the deduction made by the assessor, despite the appellant's contention to the contrary. As a result, the tribunal revoked the appellant's claim for workers compensation.

The final orders of the tribunal were that the appeal be dismissed, the claim for workers compensation be revoked, and costs be awarded to the respondent. The tribunal found that the council's assessment was accurate, and that the appellant's arguments did not succeed in overturning the decision. The tribunal also noted that the appellant had not provided any evidence to support his contention that there was no pre-existing condition that warranted a reduction in the WPI percentage.

Orders