Sutherland Shire Council v Bernard Fleming - [2021] NSWPICMP 103

DETERMINATION OF APPEAL PANEL
CITATION:	Sutherland Shire Council v Bernard Fleming [2021] NSWPICMP 103
APPELLANT:	Sutherland Shire Council
RESPONDENT:	Bernard Fleming
APPEAL PANEL:	Member Paul Sweeney Dr Tommasino Mastroianni
Dr Brian Stephenson
DATE OF DECISION:	28 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Employer appeals from certification of Medical Assessor in respect of cervical spine and both upper extremities (shoulders); where Medical Assessor (MA) assessed 2001 injury which had not been referred by the parties; where MA made no deduction pursuant to section 323 in respect of that injury; where evidence lodged by the respondent was not forwarded to the MA; Held- MA in error in assessing WPI for 2001 injury and in failing to make a deduction for that injury; MAC revoked and new MAC issued.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 March 2021 Sutherland Shire Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 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 MAC contains a demonstrable error.
· the assessment was made on the basis of incorrect criteria.
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

Bernard Fleming (the respondent worker) was a long-term employee of the appellant council. He commenced employment in December 1998 and resigned on 26 March 2018 as he was unable to continue to perform his duties. The respondent was employed as a garbage truck driver.
The nature of the respondent’s work as a garbage truck driver became less physical during his period of employment. Initially, he was employed to manually collect garbage bins and empty their contents into the back of the truck. At a point of time which is not readily identifiable in the evidence, the process was automated. Thereafter, the respondent drove the garbage disposal truck and operated a joystick which controlled a robotic arm attached to the truck designed to grab, lift, and empty garbage bins. He says…

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

AGLC: Sutherland Shire Council v Bernard Fleming [2021] NSWPICMP 103
Case: [2021] NSWPICMP 103
Decision Date: 28 June 2021

CaseChat Overview and Summary

In the case of Sutherland Shire Council versus Bernard Fleming, the dispute arose from the certification of a Medical Assessor (MA) regarding the applicant's cervical spine and both upper extremities (shoulders). The Medical Assessor assessed an injury that had not been referred by the parties, leading to a disagreement about the appropriate assessment and compensation. The Sutherland Shire Council appealed against the MA's decision, arguing that the MA had erred in assessing the worker's permanent impairment (WPI) for the 2001 injury and in not making a deduction for that injury. The case was heard and decided by the Industrial Commission of New South Wales.

The primary legal issues that the court needed to resolve included whether the MA had the authority to assess an injury that was not referred by the parties, and whether the MA was required to make a deduction for the 2001 injury under section 323. Additionally, the court had to consider whether the respondent's evidence, which was not forwarded to the MA, should have been taken into account in the assessment process. The court also needed to determine if the MA's error in assessing the WPI for the 2001 injury and not making a deduction for that injury warranted a revocation of the original Medical Assessor's Certificate and the issuance of a new one.

The Industrial Commission of New South Wales found that the MA had indeed erred in assessing the WPI for the 2001 injury, as it had not been referred by the parties. Furthermore, the court determined that the MA was required to make a deduction for that injury, as per section 323. The court also held that the respondent's evidence, which was not forwarded to the MA, should have been taken into account in the assessment process. Consequently, the commission revoked the original Medical Assessor's Certificate and issued a new one, as the MA's errors significantly impacted the assessment of the worker's permanent impairment. The final orders included the revocation of the original certificate and the issuance of a new one, taking into account the respondent's evidence and the appropriate deductions for the 2001 injury.

Orders