Wangarang Industries Limited v Dreyer - [2022] NSWPICMP 271

DETERMINATION OF APPEAL PANEL
CITATION:	Wangarang Industries Limited v Dreyer [2022] NSWPICMP 271
APPELLANT:	Wangarang Industries Limited
RESPONDENT:	Craig Dreyer
APPEAL PANEL:	Member Catherine McDonald Medical Assessor Dr James Bodel Medical Assessor Dr David Crocker
DATE OF DECISION:	11 July 2022
CATCHWORDS:	WORKERS COMPENSATION- Upper extremity impairment; Medical Assessor recorded decreased range of movement in contralateral shoulder but did not make deduction; NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, reissued 1 March 2021 paragraph 2.20; statement re-examination not admitted; Petrovic v BC Serv No 14 Pty Limited and Lukacevic v Coates Hire Operations Pty Ltd considered; Held – Medical Assessment Certificate revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 April 2022 Wangarang Industries Limited (Wangarang) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 March 2022.
Wangarang relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, the ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 the WorkCover Medical Assessment Guidelines 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016, reissued 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 Dreyer was employed by Wangarang as a weighbridge operator. He suffered an injury to his cervical spine and right shoulder on 9 July 2018 while closing a set of cast iron gates.
The Medical Assessor assessed 17% whole person impairment (WPI) being 6% in respect of Mr Dreyer’s cervical spine and 12% in respect of his right upper extremity. He did not assess any permanent impairment as a result of scarring.
The sole ground of appeal is the failure by the Medical Assessor to deduct impairment measured in Mr Dreyer’s uninjured left shoulder.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

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: [2022] NSWPICMP 271
Decision Date: 11 July 2022

CaseChat Overview and Summary

Wangarang Industries Limited was the employer of the respondent, Dreyer, who claimed for workers’ compensation for an upper extremity impairment. Dreyer’s claim was assessed by a medical assessor who recorded a decreased range of movement in the contralateral shoulder. However, the medical assessor did not make any deductions in the assessment. Dreyer challenged the decision of the insurer to refuse the claim, which was upheld by the NSW Workers Compensation Commission.

The legal issue before the court was whether the medical assessor’s failure to make any deductions for the decreased range of movement in the contralateral shoulder was an error in law or a significant procedural irregularity. The court had to consider the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, reissued 1 March 2021, paragraph 2.20. The court also had to consider the decision in Petrovic v BC Serv No 14 Pty Limited and Lukacevic v Coates Hire Operations Pty Ltd.

The court held that the medical assessor’s failure to make any deductions for the decreased range of movement in the contralateral shoulder was an error in law. The court noted that the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016, reissued 1 March 2021, paragraph 2.20, provided that a decreased range of movement in the contralateral shoulder should be taken into account in the assessment of upper extremity impairment. The court also noted that the decisions in Petrovic v BC Serv No 14 Pty Limited and Lukacevic v Coates Hire Operations Pty Ltd supported this interpretation of the Guidelines. The court found that the error was significant and revoked the Medical Assessment Certificate.

The court ordered that the insurer pay Dreyer’s claim for workers’ compensation for an upper extremity impairment. The court also ordered that the insurer pay Dreyer’s costs of the proceedings.

Orders