Wentworth Shire Council v Gray - [2023] NSWPICMP 303

DETERMINATION OF APPEAL PANEL
CITATION:	Wentworth Shire Council v Gray [2023] NSWPICMP 303
APPELLANT:	Wentworth Shire Council
RESPONDENT:	Colin Alexander Gray
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Dr Robert Payten
MEDICAL ASSESSOR:	Dr Brian Williams
DATE OF DECISION:	3 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) incorrectly made deduction under section 323(1) by deducting proportion of respondent’s worker permanent impairment that was due to pre-existing condition from respondent’s binaural hearing impairment (BHI) rather than respondent’s whole person impairment (WPI); whether MA erred by assuming pursuant to section 323(2) that the proportion to be deducted under section 323(1) was 10% because to make that assumption was at odds with the evidence; Held – Appeal Panel found that the MA was correct to assume under section 323(2) that the deductible proportion was 10%; Appeal Panel found that MA erred by making the deduction under section 323(1) to the respondent’s BHI rather than the respondent’s WPI; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 April 2023 Wentworth Shire Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Henley Harrison, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 March 2023.
The medical dispute that was referred to the Medical Assessor related to the degree of permanent impairment Colin Alexander Gray, the respondent, has from an injury of hearing loss, which is deemed to have occurred on 15 July 2022.
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 ground(s) 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 respondent commenced employment as a plant operator with the appellant on 12 September 2005. His employment with the respondent exposed him to hazardous noise. He said in a statement he signed on 21 November 2002 that “the level…

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 303
Decision Date: 3 July 2023

CaseChat Overview and Summary

Wentworth Shire Council sought to appeal a decision by a Medical Assessor (MA) who had assessed the respondent's entitlement to workers' compensation. The dispute centred on the interpretation and application of the Workplace Injury Management and Workers Compensation Act 1998, specifically sections 323(1) and 323(2). The primary issue was whether the MA had incorrectly made a deduction for a pre-existing condition from the respondent’s binaural hearing impairment rather than from the respondent’s whole person impairment. Additionally, the court had to determine if the MA erred by assuming that the proportion to be deducted was 10%, as this assumption appeared to contradict the evidence presented.

The Appeal Panel examined the statutory provisions and the evidence to ascertain whether the MA had correctly applied the law. The Panel found that the MA was correct in assuming that the deductible proportion was 10% under section 323(2). However, the Panel identified that the MA had erred in making the deduction from the respondent’s binaural hearing impairment rather than the whole person impairment as required by section 323(1). This misapplication of the statutory provisions led to an incorrect assessment of the respondent's entitlement to compensation. The Panel revoked the Medical Assessment Certificate issued by the MA due to this error.

The court’s decision was that the MA’s assumption regarding the deductible proportion was correct, but the application of this assumption to the wrong aspect of the respondent's impairment constituted an error. As a result, the Panel ordered the revocation of the Medical Assessment Certificate and directed that a new assessment be conducted, properly accounting for the whole person impairment.

Orders