Vesovski v Flat Glass Industries Ltd - [2021] NSWPICMP 33

DETERMINATION OF APPEAL PANEL
CITATION:	Vesovski v Flat Glass Industries Ltd [2021] NSWPICMP 33
APPELLANT:	Trajce Vesovski
RESPONDENT:	Flat Glass Industries Ltd
Appeal Panel:	Principal Member John Harris Dr David Crocker Dr James Bodel
DATE OF DECISION:	23 March 2021
catchwords:	WORKERS COMPENSATION- Appellant suffered a left shoulder injury which required surgery with resultant portal scars; AMS assessed 14% for two body parts (upper extremity and hypertension) and 0% for the scars; the appeal submissions were limited to the assessment made by the AMS of 0% for the scars; Held- the AMS made findings on the characteristics of the scars which fell within the criteria for 0% WPI; the issue of whether one of the scars was “quite visible”, as the appellant submitted, or “barely visible”, as the AMS found, was a matter of clinical judgement; the finding by the AMS was consistent with the photograph; no demonstrable error had been established; Vannini v Worldwide Demolitions Pty Ltd applied; the appellant’s submission that the AMS had misapplied paragraph 14.6 of the fourth edition guidelines was also rejected; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

Mr Trajce Vesovski (the appellant) suffered an accepted injury to the left shoulder in the course of employment with Flat Glass Industries Ltd (the respondent) on 18 April 2017.

A claim for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) was made by letter dated 2 June 2020.[1] The s 66 claim was based on the reports of Dr Gehr dated 12 May 2020[2] and Dr Herman, Cardiologist dated 30 March 2020.[3]
[1] Application to Resolve a Dispute (Application), p 9.
[2] Application, p 12.
[3] Application, p 24.
Dr Gehr assessed the appellant impairment of the left upper extremity at 11% whole person impairment (WPI) and the skin at 2% WPI. Dr Herman provided an assessment in relation to the hypertension.

Dr Breit, Orthopaedic Surgeon, was qualified by the respondent and provided a report dated 14 July 2020.[4] Dr Breit assessed the appellant at 7% WPI for the left shoulder and 0% for the scar.
[4] Reply p 1.

By letter dated 23 July 2020 the respondent denied that the hypertension was secondary or consequential to the work injury. It also disputed the level of permanent impairment.
The liability issue was listed before a Commission Arbitrator who determined that the hypertension was consequential to the accepted left shoulder injury.[5]
[5] Vesovski v Flat Glass Industries Ltd [2020] NSWWCC 408.
The Registrar then referred the medical dispute to Dr Mark Burns, an Approved Medical Specialist (AMS).

The AMS examined the appellant and provided the Medical Assessment Certificate dated 25 January 2021 (the MAC). The AMS assessed the appellant as suffering from 4% WPI for the left upper extremity, 10% WPI for hypertension and 0% WPI for the scar. The combined assessment was 14% WPI.

The assessment of WPI is undertaken in accordance with the…

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: [2021] NSWPICMP 33
Decision Date: 23 March 2021

CaseChat Overview and Summary

In Vesovski v Flat Glass Industries Ltd, the appellant, Vesovski, sought to appeal an assessment of workers' compensation injuries conducted by the Administrative Medical Services (AMS). Vesovski had suffered a left shoulder injury that required surgical intervention, leaving portal scars. The AMS assessed Vesovski’s injuries, attributing 14% whole person impairment (WPI) for two body parts: the upper extremity and hypertension, but assessed 0% WPI for the scars. The appeal focused primarily on the AMS's 0% WPI assessment for the scars. The appellant contended that one scar was "quite visible," while the AMS found it "barely visible," suggesting a misapplication of the guidelines.

The court examined the criteria for assessing WPI in relation to scars, as outlined in the AMA Guides to the Evaluation of Permanent Impairment. The appellant argued that the AMS had erred by not assigning a higher percentage for the visibility of the scar, and that there was a misapplication of paragraph 14.6 of the fourth edition guidelines. The court considered whether the AMS's findings were consistent with the photographic evidence and the criteria provided in the guidelines. It determined that the AMS's assessment of the scar's visibility was a matter of clinical judgement and was supported by the photograph. Consequently, the court found that the AMS had not made a demonstrable error in its assessment.

The court also considered the appellant's contention that the AMS had misapplied the guidelines. It held that the AMS's findings aligned with the criteria for determining WPI for scars. The court found no basis for the appellant's claim of misapplication and upheld the AMS's assessment. The court's decision was in line with the principles established in Vannini v Worldwide Demolitions Pty Ltd, which emphasised the importance of clinical judgement in the assessment of WPI. Ultimately, the appeal was dismissed, and the decision of the Administrative Appeals Tribunal (AAT) was confirmed.

Orders