VIP Drum Reconditioners Pty Ltd v Muthugala - [2023] NSWPICMP 299

DETERMINATION OF APPEAL PANEL
CITATION:	VIP Drum Reconditioners Pty Ltd v Muthugala [2023] NSWPICMP 299
APPELLANT:	VIP Drum Reconditioners Pty Ltd
RESPONDENT:	Milton Muthugala
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Dr John Brian Stephenson
MEDICAL ASSESSOR:	Dr Mark Burns
DATE OF DECISION:	29 June 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding that no proportion of respondent’s permanent impairment was due to a previous injury or pre-existing abnormality or condition; Held – appeal Panel found MA did not err; Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 April 2023 VIP Drum Reconditioners Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Giblin, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 March 2023.
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):
· 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 (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

Milton Muthugala, the respondent, commenced employment with the appellant in 2002. On 9 July 2019 he stepped backwards on an uneven surface whilst working and fell. He dislocated his right shoulder. His manager took him to the Alpha Medical Centre at Seven Hills and then to the Norwest Private Hospital where, under full anaesthetic, his shoulder was put back into place.
He attempted a return to work on 10 July 2019 but due to pain was unable to work for more than two days.
An MRI scan of his right shoulder was done on 19 July 2019. Dr Mathew Lee who reported on the scan concluded it revealed the following:
“1. Features consistent with Hills Sach deformity and also reactive bony oedema/microtrabecular fractures throughout the posterolateral humeral head.
2. Complete full thickness supraspinatus and infraspinatus tears with retraction. No muscle belly atrophy. Marked superior subluxation of humeral head and…

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.

Keep reading for free

Create a free CaseChat account to read VIP Drum Reconditioners Pty Ltd v Muthugala and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPICMP 299
Decision Date: 29 June 2023

CaseChat Overview and Summary

In the case of VIP Drum Reconditioners Pty Ltd v Muthugala, the primary dispute revolves around the determination of workers' compensation entitlements following an injury sustained by the respondent, Muthugala, during his employment with VIP Drum Reconditioners. The matter was brought before the Court of Appeal, which reviewed a decision made by a Medical Assessor (MA) regarding the proportion of the respondent's permanent impairment attributable to a previous injury or pre-existing condition. The Court of Appeal was tasked with determining whether the MA erred in concluding that no proportion of the respondent's impairment was due to factors other than the current injury.

The central legal issue before the Court of Appeal was whether the MA's determination that none of the respondent's permanent impairment was attributable to a previous injury or pre-existing condition was correct. This required a detailed examination of the medical evidence and the application of relevant statutory provisions, particularly those under the Workplace Injury Management and Workers Compensation Act 1998. The Court needed to ascertain whether the MA's findings were supported by substantial evidence and whether any errors were made in the interpretation or application of the relevant legislative framework.

The Court of Appeal meticulously reviewed the evidence and arguments presented by both parties, ultimately concluding that the MA's decision was not in error. The Court found that the MA's conclusions were consistent with the medical evidence and that there was no basis to overturn the findings. Consequently, the Medical Assessment Certificate, which upheld the MA's conclusions, was affirmed. The Court of Appeal determined that the MA's decision was well-founded and that no procedural or substantive errors warranted a reversal of the certificate.

Orders