UGL Ltd v Wood - [2024] NSWPICMP 866

DETERMINATION OF APPEAL PANEL
CITATION:	UGL Ltd v Wood [2024] NSWPICMP 866
APPELLANT:	UGL Limited
RESPONDENT:	William Wood
APPELLANT:	William Wood
RESPONDENT:	UGL Limited
APPEAL PANEL
MEMBER:	Jacqueline Snell
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Gregory McGroder
DATE OF DECISION:	17 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; two related matters were dealt with together by the Medical Appeal Panel (Panel); in first matter, the appellant made application to admit fresh evidence, being two surveillance reports relevant to surveillance after the Medical Assessment Certificate (MAC) had issued, which was neither opposed or consented to by the respondent; the appellant’s application was refused; the appellant essentially submitted the Lead Medical Assessor (MA) had failed to follow reporting format directed by the President, failed to refer to opinion of one independent medical examiner in circumstances where he had referred to the opinion of the other independent medical examiner with consequential denial of procedural fairness, and failed to give reasons for not undertaking a deduction in accordance with section 323; Panel did not accept the Lead MA had failed to follow any reporting format directed by the President; Panel did not accept the appellant had been denied procedural fairness by failure the Lead MA to refer to opinion of only one of independent medical examiners; Panel did not accept the Lead MA had failed to give reasons for not undertaking deduction in accordance with section; Held – MAC does not contain demonstrable error; MAC confirmed. In second matter, the appellant also made application to admit fresh evidence, being photographs of bilateral wrist scarring, which was neither opposed nor consented to by the respondent; the fresh evidence was received on the appeal; the appellant essentially submitted the Lead MA failed to apply the TEMSKI/scarring criteria in assessing bilateral wrist scarring, failed to provide reasoning as to his assessment with reference to the TEMSKI/scarring criteria, with the evidence meeting the criteria for assessment of 1% whole person impairment (WPI); following review of the fresh evidence received on appeal, the Panel did not accept the Lead MA failed to apply the TEMSKI/scarring criteria when assessing bilateral wrist scarring nor that he failed to provide reasoning for his assessment; Panel accepted the Lead MA used his clinical judgement when he assessed 0% WPI and had applied the TEMSKI/scarring criteria and clause 16.6 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; Held – the assessment was not made on the basis of incorrect criteria and the MAC does not contain demonstrable error; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

M1-W6837/23

On 17 September 2024 UGL Limited (UGL) lodged an Application to Appeal Against the Decision of Medical Assessor, being a Lead Medical Assessor. The medical dispute was in part assessed by Dr Jonathan Negus, a Lead Medical Assessor, who issued a Lead Medical Assessment Certificate (MAC) on 28 August 2024.
UGL relies on the following ground of appeal under s 327(3) of the Workplace…

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 UGL Ltd v Wood

Details

AGLC: UGL Ltd v Wood [2024] NSWPICMP 866
Case: [2024] NSWPICMP 866
Decision Date: 17 December 2024

CaseChat Overview and Summary

UGL Ltd, the appellant, sought to challenge the Medical Assessment Certificate (MAC) issued in two related matters before the Medical Appeal Panel (Panel). The disputes involved the admissibility of fresh evidence post the issuance of the MAC and the correctness of the assessments made by the Lead Medical Assessor (MA). The respondent, Wood, did not oppose or consent to the admission of the fresh evidence in either matter. The first matter concerned two surveillance reports, while the second matter pertained to photographs of bilateral wrist scarring.

The legal issues before the Panel revolved around whether the Lead MA had adhered to the required reporting format, whether the appellant was denied procedural fairness by the Lead MA’s selective referencing of independent medical examiners’ opinions, and whether the Lead MA provided adequate reasons for not deducting impairment as per section 323 of the relevant Act. In the second matter, the Panel had to determine if the Lead MA correctly applied the TEMSKI/scarring criteria and provided sufficient reasoning for his assessment of bilateral wrist scarring.

The Panel found that the Lead MA had not deviated from any directed reporting format and had not denied procedural fairness by selectively referencing the opinions of independent medical examiners. Additionally, the Panel concluded that the Lead MA had provided adequate reasons for not deducting impairment. Regarding the second matter, the Panel determined that the Lead MA had correctly applied the TEMSKI/scarring criteria and used his clinical judgment appropriately when assessing 0% whole person impairment. The Panel confirmed that the MACs did not contain any demonstrable errors.

The final orders of the Panel confirmed the MACs as they stood, dismissing the appellant’s applications to admit fresh evidence and challenges to the assessments made by the Lead MA.

Orders