Tata v Dyldam Developments Pty Ltd - [2023] NSWPICMP 542

DETERMINATION OF APPEAL PANEL
CITATION:	Tata v Dyldam Developments Pty Ltd [2023] NSWPICMP 542
APPELLANT:	Malcolm Luke Homai Tata
RESPONDENT:	Dyldam Developments Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	David Crocker
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	31 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor (MA) assessed 7% whole person impairment (WPI) for the lumbar spine, 0% WPI for the left lower extremity and 3% WPI for scarring; Panel admitted MRI lumbar spine report and MRI lumbar spine images as fresh evidence; Panel found error as MA assessed worker as DRE II when he had undergone surgical decompression; Panel determined that the worker required re-examination; Panel assessed 15% WPI of lumbar spine; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 June 2023 Malcolm Luke Homai Tata (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
22 May 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):
·        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, and
·        the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel 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 was 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

On 19 June 2023 the appellant commenced proceedings in the Personal Injury Commission (he Commission) claiming 24% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of an injury to the lumbar spine, left lower extremity and scarring on 1 August 2016.
The Medical Assessor examined the appellant on 11 May 2023. The Medical Assessor assessed 7% WPI of the lumbar spine, 0% WPI of the left lower extremity and 3% WPI for scarring. Therefore, the total WPI assessed was 10% as a…

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: Tata v Dyldam Developments Pty Ltd [2023] NSWPICMP 542
Case: [2023] NSWPICMP 542
Decision Date: 31 October 2023

CaseChat Overview and Summary

The parties involved in the dispute were Tata and Dyldam Developments Pty Ltd. The nature of the dispute was related to workers' compensation, specifically regarding the assessment of the extent of impairment and the appropriate level of compensation. The case was heard in the relevant tribunal. The primary legal issues that the tribunal had to decide were whether the initial medical assessment was correct, and if not, what the appropriate level of impairment should be. Additionally, the tribunal needed to determine whether the new evidence presented warranted a revision of the initial assessment.

The tribunal carefully examined the evidence presented, including the MRI reports and images of the lumbar spine. It was found that the Medical Assessor (MA) had incorrectly assessed the worker as DRE II, when in fact the worker had undergone surgical decompression. The tribunal concluded that this was an error and that the worker required a re-examination to accurately determine the extent of impairment. The tribunal admitted the new MRI reports and images as fresh evidence and found that the worker's lumbar spine impairment should be assessed at 15% WPI. Consequently, the tribunal revoked the Medical Assessment Certificate and ordered a reassessment of the worker's condition.

The tribunal's decision highlights the importance of accurate medical assessments in workers' compensation cases. The tribunal emphasised the need for medical professionals to carefully consider all available evidence and to avoid making errors that could result in an incorrect assessment of impairment. The tribunal's decision also demonstrates the willingness of the tribunal to consider new evidence and to revise its decisions when necessary. The tribunal's final order was to revoke the Medical Assessment Certificate and to order a reassessment of the worker's condition.

Orders