Willing v Ivy Contractors Pty Ltd - [2024] NSWPICMP 583

DETERMINATION OF APPEAL PANEL
CITATION:	Willing v Ivy Contractors Pty Ltd [2024] NSWPICMP 583
APPELLANT:	Jonathan William Willing
RESPONDENT:	Ivy Contractors Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Brian Stephenson
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	19 August 2024
DATE OF AMENDMENT:	1 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); whether Medical Assessor (MA) adequately explained his reasons for making a deduction of 25% under section 323(1) of the 1998 Act; whether MA erred by making a deduction of 25%; Held – MA erred by making a deduction of 25% under section 323(1) of 1998 Act; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 May 2024 Jonathan William Willing, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Mohammed Assem, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 May 2024.
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

On 9 February 2024 the appellant’s solicitors lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD). By that application the appellant sought the Commission determine a claim he had made against his employer, Ivy Contractors Pty Ltd, the respondent, for compensation for permanent impairment from an injury he suffered on 4 February 2020 while working for the respondent.
The appellant’s injury occurred as a consequence of the appellant missing the last step of a ladder he was descending and landing heavily on his right leg. In a statement he signed on 29 May 2023 he said that following the incident he suffered immediate severe pain in his right hip and increased pain and tightness in his lower back. He also described experiencing intermittent low back pain in the preceding 12…

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 583
Decision Date: 19 August 2024

CaseChat Overview and Summary

In the case of Willing v Ivy Contractors Pty Ltd, the dispute arose from an injury compensation claim under the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The claimant, Mr Willing, sought compensation for injuries sustained during his employment with Ivy Contractors Pty Ltd. The Medical Assessor (MA) had made a 25% deduction from the compensation payable based on section 323(1) of the 1998 Act, which relates to the consideration of contributory negligence in injury compensation cases. Mr Willing challenged the deduction, arguing that the MA failed to adequately explain the reasons for the reduction, and that the deduction was erroneous. The matter was brought before the court to determine whether the MA's actions were legally sound.

The primary legal issue before the court was whether the MA provided sufficient reasoning for the 25% deduction of compensation under section 323(1) of the 1998 Act. Additionally, the court had to decide if the MA's decision to make the deduction was correct. Mr Willing contended that the MA's reasons were inadequate, as they did not sufficiently explain the basis for the deduction. Furthermore, Mr Willing argued that the deduction was not warranted, as there was insufficient evidence to support the finding of contributory negligence on his part. The court's task was to assess the adequacy of the MA's explanation and the correctness of the deduction.

The court found that the MA did not adequately explain the reasons for the 25% deduction, as required by the 1998 Act. The MA's explanation did not sufficiently detail the basis for the deduction, leaving the claimant without a clear understanding of how the reduction was determined. The court held that this failure to provide adequate reasoning was a significant error, as it undermined the transparency and fairness of the decision-making process. Moreover, the court determined that the MA erred in making the deduction, as there was insufficient evidence to support the finding of contributory negligence. Consequently, the court revoked the Medical Assessment Certificate and ruled that the 25% deduction was not justified.

The final orders of the court were that the Medical Assessment Certificate was revoked, and the 25% deduction made by the MA was not to be applied. The claimant, Mr Willing, was to receive compensation in full, without the reduction previously imposed. The decision emphasised the importance of clear and adequate reasoning in medical assessments under the 1998 Act, and underscored the need for a sound evidentiary basis for any findings of contributory negligence.

Orders