Vision Pools Pty Limited v Riley - [2023] NSWPICMP 184

DETERMINATION OF APPEAL PANEL
CITATION:	Vision Pools Pty Limited v Riley [2023] NSWPICMP 184
APPELLANT:	Vision Pools Pty Limited
RESPONDENT:	Jasson Riley
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Mark Burns
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	4 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; injury to cervical and thoracic spines and right shoulder; section 323 deduction not made by Medical Assessor (MA) but was appropriate in both cervical and thoracic spines in light of pre-existing radiological findings; MA assessed right upper extremity impairment higher than other examiners; other medical evidence showed greater range of movement; inconsistency observed on re-examination; assessment of range of movement inappropriate; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 December 2022 Vision Pools Pty Limited (Vision) 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 8 November 2022.
Vision relies on the following grounds of appeal under s 327(3)(c) and (d) 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 was 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 grounds 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

Mr Riley was employed by Vision as a labourer. He suffered an injury on 26 February 2019 to his neck, right shoulder and thoracic spine when he was moving large concrete blocks which had been cut from a retaining wall without human or mechanical assistance. When he was manoeuvring a heavy block over a pile of rubble, it tipped awkwardly, causing him to take the full weight of the block and to suffer an jarring sensation in the right side of his neck, thoracic spine and right shoulder.
Mr Riley has not undergone surgery. He returned to work in August 2019 and ceased in April 2020. He was referred to Dr King, pain specialist, who performed medial branch blocks followed by radiofrequency neurotomy targeting…

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 Vision Pools Pty Limited v Riley

Details

AGLC: Vision Pools Pty Limited v Riley [2023] NSWPICMP 184
Case: [2023] NSWPICMP 184
Decision Date: 4 May 2023

CaseChat Overview and Summary

Vision Pools Pty Limited brought a case against Riley, who claimed workers' compensation for injuries sustained at work, including cervical and thoracic spine injuries and a right shoulder injury. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The primary issue for the tribunal was whether the Medical Assessor's certificate correctly assessed Riley's injuries and the extent of impairment. Specifically, the tribunal needed to determine whether the deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was correctly applied given the pre-existing radiological findings, and whether the assessments of impairment and range of motion were accurate.

The tribunal found that the deduction under section 323 was appropriate in both the cervical and thoracic spines considering the pre-existing radiological findings. However, the Medical Assessor had assessed Riley's right upper extremity impairment higher than other medical examiners, and other evidence indicated a greater range of movement. The tribunal also noted inconsistencies observed on re-examination and found the assessment of range of motion to be inappropriate. Consequently, the tribunal concluded that the Medical Assessment Certificate was flawed and revoked it. This decision highlighted the importance of consistency and accuracy in medical assessments for workers' compensation claims.

As a result of the tribunal's findings, the Medical Assessment Certificate was revoked, and the case was returned for reassessment by a new Medical Assessor. The tribunal's decision underscored the necessity for precise and consistent evaluations in workers' compensation claims to ensure fair and accurate outcomes for claimants.

Orders