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Ung v Brambles Industries Limited

Ung v Brambles Industries Limited

Case [2023] NSWPICMP 503 9 October 2023

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DETERMINATION OF APPEAL PANEL
CITATION:	Ung v Brambles Industries Limited [2023] NSWPICMP 503
APPELLANT:	Seyhaun Ung
RESPONDENT:	Brambles Industries Limited
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Alan Home
MEDICAL ASSESSOR:	John Brian Stephenson
DATE OF DECISION:	9 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment of the lumbar spine in respect of an injury on 23 February 2017; MA deducted one tenth pursuant to section 323 in respect of an injury with the respondent in 2011; Panel did not accept that the injury was an injury caused by the nature and conditions of employment from 2009 to 23 February 2017; MA was correct to find the worker had a pre-existing condition and make a deduction in respect of that injury; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 July 2023 Seyhaun Ung (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 June 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):
· 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 RELEVANT FACTUAL BACKGROUND

The appellant sustained an injury to lumbar spine in the course of his employment on
23 February 2017.
The matter was referred to the Medical Assessor, Dr Tim Anderson, on 29 March 2023 for assessment of whole person impairment (WPI) of the lumbar spine with the date of injury being 23 February 2017.
The Medical Assessor examined the appellant on 25 May 2023 and assessed 15% WPI of the lumbar spine. The Medical Assessor made a one-tenth deduction pursuant to s 323 of the 1998 Act in respect of the assessment of the lumbar which resulted in a combined total assessment of 14% WPI in…

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 Ung v Brambles Industries Limited

Details

AGLC: Ung v Brambles Industries Limited [2023] NSWPICMP 503
Case: [2023] NSWPICMP 503
Decision Date: 9 October 2023

CaseChat Overview and Summary

The case of Ung versus Brambles Industries Limited was brought before the court, where the primary issue was the claimant's entitlement to workers' compensation for permanent impairment of the lumbar spine stemming from an injury sustained on 23 February 2017. The respondent, Brambles Industries Limited, argued that the injury was not related to the employment conditions and nature of work from 2009 to the date of injury. The dispute was adjudicated by the relevant court under the provisions of the Workplace Injury Management and Workers Compensation Act 1998.

The legal issues that the court was required to determine included whether the injury claimed by the claimant was caused by the nature and conditions of employment, and if the respondent's actions in deducting one-tenth of the medical assessment pursuant to section 323 of the Act were justified. Specifically, the court needed to establish if the injury from 2011 should have been taken into account in the assessment of the 2017 injury, and whether the pre-existing condition warranted a deduction in the compensation awarded.

In its decision, the court concluded that the respondent was correct in making a deduction in respect of the 2011 injury, as the Medical Assessment Certificate confirmed that the claimant had a pre-existing condition. The court further held that the Panel was correct in not accepting that the injury in question was caused by the nature and conditions of employment from 2009 to 23 February 2017. Thus, the deduction made by the respondent was upheld and the claimant's appeal against the Panel's decision was dismissed.

The final orders of the court confirmed the correctness of the deduction made by the respondent and upheld the Panel's decision, thereby affirming the Medical Assessment Certificate and rejecting the claimant's appeal. The claimant's entitlement to workers' compensation was thus limited to the extent of the confirmed pre-existing condition, as determined by the court.

Orders