Szymanski v AGS Plasterboard Supplies Pty Ltd - [2022] NSWPICMP 357

DETERMINATION OF APPEAL PANEL
CITATION:	Szymanski v AGS Plasterboard Supplies Pty Ltd [2022] NSWPICMP 357
APPELLANT:	Andrew Szymanski
RESPONDENT:	AGS Plasterboard Supplies Pty Limited
Appeal Panel
MEMBER:	William Dalley
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	14 September 2022
CATCHWORDS:	wORKERS cOMPENSATION- Appellant alleged error with respect to classification of neck impairment as cervical category Diagnosis Related Estimate (DRE) I; deduction of previous award in respect of earlier injury and assessment of the left heel; alleged failure to assess asymmetry of movement in the cervical spine and failure to observe and record wasting in the left calf; Held – the Medical Assessor (MA) had appropriately considered asymmetry of movement and measured the respective calves in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021; no error in this regard; MA technically fell into error in deducting the previous findings of Whole Person Impairment in respect of the shoulders rather than considering the extent to which the previous injury contributed to the impairment assessed on examination; upon consideration of the evidence the Panel concluded that the previous injury contributed one half in respect of the left shoulder and 2/5 in respect of the right shoulder which resulted in the same finding as assessed by the MA.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 May 2022 the appellant, Andrew Szymanski, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 April 2022.
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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
·        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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5)

RELEVANT FACTUAL BACKGROUND

Mr Szymanski commenced…

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: [2022] NSWPICMP 357
Decision Date: 14 September 2022

CaseChat Overview and Summary

In the case of Szymanski v AGS Plasterboard Supplies Pty Ltd, the appellant, Szymanski, challenged the classification of his neck impairment as cervical category Diagnosis Related Estimate (DRE) I, among other aspects of the assessment. The dispute was heard in the NSW Civil and Administrative Tribunal. Szymanski argued that the Medical Assessor had made several errors in the assessment of his impairment, including the deduction of a previous award, the assessment of his left heel, the failure to assess the asymmetry of movement in his cervical spine, and the failure to observe and record wasting in his left calf.

The legal issues before the tribunal involved the correctness of the Medical Assessor's findings and the interpretation of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. The tribunal had to determine whether the Medical Assessor had appropriately considered the relevant factors and whether the errors alleged by Szymanski warranted a different outcome. The tribunal considered the evidence presented by both parties and assessed the Medical Assessor's actions against the relevant guidelines.

The tribunal found that the Medical Assessor had appropriately considered the asymmetry of movement and measured the respective calves in accordance with the guidelines. However, the tribunal identified a technical error in the deduction of the previous findings of Whole Person Impairment in respect of the shoulders. The tribunal concluded that the previous injury contributed one half in respect of the left shoulder and 2/5 in respect of the right shoulder, which resulted in the same finding as assessed by the Medical Assessor. The tribunal ultimately determined that the Medical Assessor's assessment was correct, and the appeal was dismissed.

The final orders of the tribunal were that the appeal was dismissed, and the classification of Szymanski's neck impairment as cervical category DRE I was upheld. The tribunal also noted that the contribution of the previous injury to the impairment was correctly assessed, and no further adjustment was necessary.

Orders