Vu v U-Rect-It Pty Ltd - [2024] NSWPICMP 287

DETERMINATION OF APPEAL PANEL
CITATION:	Vu v U-Rect-It Pty Ltd [2024] NSWPICMP 287
APPELLANT:	Kiet Anh Vu
RESPONDENT:	U-Rect-It Pty Limited
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	14 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; causation; whether Medical Assessor (MA) had made a finding as to injury by agreeing with respondent’s evidence; MA did not err; section 323; whether MA erred in making a deduction of one half; appellant suffered from pre-existing condition being congenital short pedicles; Matthew Hall Pty Ltd v Smart and Fire & Rescue NSW v Clinen distinguished; Held – MA erred; Medical Assessment Certificate revoked, new certificate issued with deduction of one tenth pursuant to section 323(2).

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 March 2024 Mr Vu, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 February 2024.
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

Mr Vu was employed by the respondent as a machine operator – dye setter. His work involved the manufacture of metal shop fittings and shelves. The job was physically demanding, involving bending, heavy lifting and twisting. Mr Vu was required to lift heavy dyes which ranged from 10 to 20kgs up to those that were so heavy they could not be lifted manually, but required a forklift. The work also involved lifting of heavy pieces of metal. The work was undoubtedly of a heavy nature and by any understanding physically demanding.
In around 2013, he noticed numbness in his hands, which led to investigations and surgery, performed on 8 November 2013, being a C3 to C7 laminectomy. Unfortunately…

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 Vu v U-Rect-It Pty Ltd

Details

AGLC: Vu v U-Rect-It Pty Ltd [2024] NSWPICMP 287
Case: [2024] NSWPICMP 287
Decision Date: 14 May 2024

CaseChat Overview and Summary

The appellant, Vu, sought a review of a decision made by a Medical Assessor (MA) in relation to a workers compensation claim against the respondent, U-Rect-It Pty Ltd. The dispute centred on whether the MA had correctly determined the causation of an injury and the appropriate level of compensation deduction due to a pre-existing condition. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before the Tribunal involved the interpretation of the Workplace Injury Management and Workers Compensation Act 1998, specifically section 323. Vu argued that the MA had erred by agreeing with the respondent’s evidence, thereby implying a finding of injury causation. Vu further contended that the MA incorrectly applied the statutory formula for calculating compensation deductions, given Vu’s pre-existing congenital short pedicles. The respondent maintained that the MA’s findings and calculations were correct and that there was no error in the assessment.

The Tribunal considered the statutory framework and relevant precedents, including Matthew Hall Pty Ltd v Smart and Fire & Rescue NSW v Clinen. It determined that while the MA had not explicitly erred in finding the injury, there was a miscalculation in the compensation deduction. The Tribunal noted that the MA should have applied a one-tenth deduction rather than a one-half deduction, as the pre-existing condition did not wholly contribute to the injury. Consequently, the Tribunal revoked the original Medical Assessment Certificate and ordered a new certificate to reflect the correct deduction of one tenth.

The Tribunal’s final order was that the Medical Assessment Certificate issued by the MA was revoked. A new certificate was to be issued, reflecting a deduction of one tenth pursuant to section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998. This decision ensured that the compensation awarded to Vu was adjusted to accurately reflect the impact of his pre-existing condition on the injury.

Orders