Waverley Council v Mahony - [2024] NSWPICMP 764

DETERMINATION OF APPEAL PANEL
CITATION:	Waverley Council v Mahony [2024] NSWPICMP 764
APPELLANT:	Waverley Council
RESPONDENT:	Leonard Charles Mahony
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Todd Gothelf
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	7 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim that Medical Assessor (MA) had found a brachial plexus injury that had not been referred to him; whether finding consistent with terms of referral; whether accurate diagnosis of that injury on the evidence justified MA’s action; whether reasons sufficient; Held – brachial plexus injury separate and distinct injury and had not been agreed as part of the medical dispute; Skates Skates v Hill Industries Ltd applied; applicant re-examined to confirm measurement of range of motion; whether diagnosis accurate irrelevant as no referral made; MA reasoning incorrect, as he assessed an injury not referred to him; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 May 2024 Waverley Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 April 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 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 18 January 2024, this matter was referred to the Medical Assessor in respect of assessments pertaining to two injuries.
The first injury occurred on 15 March 2018 and the Medical Assessor was asked to assess the WPI caused by injury to the left lower extremity (knee) and the right lower extremity (knee).
The second injury occurred on 19 December 2019. The Medical Assessor was asked to assess the WPI caused by injury to the left upper extremity (shoulder and elbow).
The referral followed consent orders being made by Member Jacqueline Snell on
16 January 2024.

15 March 2018

Mr Mahony was…

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: [2024] NSWPICMP 764
Decision Date: 7 November 2024

CaseChat Overview and Summary

Waverley Council contested a medical assessment certificate issued by a Medical Assessor in relation to a worker's injury claim under the Workplace Injury Management and Workers Compensation Act 1998. The worker, Mr Mahony, sought compensation for an alleged brachial plexus injury. The Council argued that the Medical Assessor had diagnosed a brachial plexus injury, which had not been referred to him, and that the assessment was not consistent with the referral terms. The dispute centred on whether the Medical Assessor's findings were justified and if his reasons were sufficient.

The court was required to determine whether the Medical Assessor's findings of a brachial plexus injury were consistent with the referral terms, and whether the diagnosis was accurate based on the evidence presented. Additionally, the court needed to assess if the reasons provided by the Medical Assessor were adequate, and whether the injury was a separate and distinct injury not agreed upon in the medical dispute. The case hinged on the interpretation of the referral terms and the accuracy of the Medical Assessor's assessment in relation to those terms.

The court found that the Medical Assessor had assessed an injury that had not been referred to him, and thus his reasoning was incorrect. The court noted that the brachial plexus injury was separate and distinct from the injuries agreed upon in the medical dispute. The court applied the principles from Skates v Hill Industries Ltd, concluding that the Medical Assessor's findings were not consistent with the referral terms. The applicant was re-examined to confirm the measurement of the range of motion, but the accuracy of the diagnosis was irrelevant since the injury was not referred to the Medical Assessor. Consequently, the court revoked the Medical Assessment Certificate.

The final orders of the court were that the Medical Assessment Certificate issued by the Medical Assessor was revoked, and the court ruled in favour of Waverley Council.

Orders