Welsh v Hanlon Windows (Australia) Pty Ltd - [2023] NSWPICMP 444

DETERMINATION OF APPEAL PANEL
CITATION:	Welsh v Hanlon Windows (Australia) Pty Ltd [2023] NSWPICMP 444
APPELLANT:	Anthony Welsh
RESPONDENT:	Hanlon Windows (Australia) Pty Limited
APPEAL PANEL
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	7 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Worker alleged error in assessment of cervical spine by reason of Medical Assessor’s failure to explicitly address the presence of non-verifiable radiculopathy or guarding; Table 15-5 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); in the discrete circumstances of this case where there were complaints of shoulder pain error established; Held – after reassessment Medical Assessment Certificate (MAC) revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 May 2023, Anthony Welsh (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 April 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 grounds 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

The appellant was formerly employed by Hanlon Windows (Australia) Pty Limited (the respondent) as a truck driver. In the course of his employment on 23 January 2020, the appellant suffered injury to his right shoulder and neck while attempting to unload a set of glazed windows from the tray of a truck.
When the appellant’s right shoulder pain did not settle with physiotherapy and rest, he was referred to an orthopaedic surgeon, Dr David Cossetto.
On 3 June 2020, Dr Cossetto performed arthroscopic decompression and rotator cuff repair of the appellant’s right shoulder at Nowra Private Hospital.
After the appellant returned to work on light duties in July 2020, he experienced an increase in the pain in his shoulder and neck. He was referred to Dr Cherukuri, a neurosurgeon, for advice 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.

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Details

Case: [2023] NSWPICMP 444
Decision Date: 7 September 2023

CaseChat Overview and Summary

In the matter of Welsh v Hanlon Windows (Australia) Pty Ltd, the primary issue before the court was the correctness of a workers' compensation assessment made by a medical assessor. The worker, Mr Welsh, contested the assessment of his cervical spine injury, arguing that the Medical Assessor had erred by not explicitly addressing the presence of non-verifiable radiculopathy or guarding, as per Table 15-5 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5). The case required the court to determine whether the Medical Assessor's oversight constituted a material error that warranted a revision of the assessment.

The court examined the circumstances under which the assessment was conducted, focusing on the specific medical conditions highlighted by Mr Welsh. It was established that there were complaints of shoulder pain that were not adequately considered in the initial assessment. The court had to decide whether these complaints, in the discrete circumstances of this case, were sufficient to establish an error in the original assessment. The court noted that the presence of non-verifiable radiculopathy and guarding should have been explicitly addressed to ensure a fair and accurate evaluation of Mr Welsh's condition.

Upon reassessment, the court found that the initial Medical Assessment Certificate (MAC) contained errors that warranted revocation. A new MAC was issued, reflecting a corrected assessment of Mr Welsh's condition. The court's decision was based on the need to ensure that all relevant medical conditions were properly considered in the assessment process. The court revoked the original MAC and issued a new one, ensuring that the worker's condition was accurately evaluated and compensated accordingly.

Orders