Sydney Trains v O'Sullivan - [2024] NSWPICMP 204

DETERMINATION OF APPEAL PANEL
CITATION:	Sydney Trains v O'Sullivan [2024] NSWPICMP 204
APPELLANT:	Sydney Trains
RESPONDENT:	Wayne O’Sullivan
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Tommasino Mastroianni
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) assessed 8% whole person impairment (WPI) of the right upper extremity, 8% WPI of the left upper extremity and 2% WPI for scarring and made no deduction pursuant to section 323; Panel satisfied MA erred in incorrectly assuming that a prior injury to the right shoulder was included in the referral and in not making a deduction under section 323; Panel made a deduction of one fifth in respect of the right shoulder for prior injury pursuant to section 323; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 February 2024 Sydney Trains (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
19 January 2024.
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 Wayne O’Sullivan (Mr O’Sullivan) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 27 November 2023 in which he claimed 18% whole person impairment (WPI) of the right upper extremity, and left upper extremity.
The matter was referred to the Medical Assessor, Dr Greg McGroder, on 19 January 2024 for assessment of WPI of the right upper extremity and the left upper extremity with the date of injury being 16 September 2013.
The Medical Assessor examined Mr O’Sullivan on 16 January 2024 and assessed 8% WPI of the the right upper extremity, 8% WPI of the left upper extremity…

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.

Continue reading Sydney Trains v O'Sullivan

Details

AGLC: Sydney Trains v O'Sullivan [2024] NSWPICMP 204
Case: [2024] NSWPICMP 204
Decision Date: 9 April 2024

CaseChat Overview and Summary

In the matter of Sydney Trains and O'Sullivan, the dispute centred around the determination of a worker's compensation claim following an injury sustained by the plaintiff during their employment with the defendant. The case was heard in the Industrial Commission of New South Wales. The plaintiff, O'Sullivan, sought compensation for impairments resulting from a work-related injury. Sydney Trains contested the compensation amount, arguing that the assessment of the plaintiff's impairment was flawed and that a deduction should have been made for a prior injury.

The primary legal issue before the court was whether the Medical Assessor (MA) correctly assessed the plaintiff's impairment and whether there should have been a deduction made for the prior injury to the right shoulder under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The court had to determine if the MA erred in assuming that the prior injury was included in the referral and if a deduction was warranted. Furthermore, the court needed to decide the appropriate level of deduction, if any, for the prior injury.

The Panel found that the MA erred in assuming that the prior injury to the right shoulder was part of the current referral. The Panel held that the MA should not have included the prior injury in the assessment. Additionally, the Panel determined that a deduction should have been made for the prior injury to the right shoulder. The Panel made a deduction of one fifth in respect of the right shoulder for the prior injury under section 323 of the Act. Consequently, the Panel revoked the Medical Assessment Certificate and ordered a re-assessment of the plaintiff's impairment, which would result in a revised compensation amount.

Orders