Wilson v Australian Outdoor Living - [2024] NSWPICMP 249

DETERMINATION OF APPEAL PANEL
CITATION:	Wilson v Australian Outdoor Living [2024] NSWPICMP 249
APPELLANT:	Richard Terence Wilson
RESPONDENT:	Australian Outdoor Living
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	29 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from 50% section 323 deduction for asymptomatic cervical degenerative pre-existing condition in a 66 year old worker; whether Medical Assessor (MA) had applied wrong test; whether error in not finding radiculopathy when other specialists allegedly had; Held – MA applied wrong test in finding that no cervical injury occurred; Skates v Hills Industries Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd considered and applied; no error in findings on radiculopathy; Wingfoot Australia Pty Ltd v Kocak considered and applied; Medical Assessment Certificate revoked and section 323(2) applied.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 December 2023, Richard Terence Wilson, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 November 2023.
The appellant relies on the following ground`1 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 13 October 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by injury to the cervical spine, lumbar spine and right upper extremity on
28 June 2018.
Mr Wilson was employed as a salesman for the respondent and was at an address in Wamberal to quote for an area of synthetic grass, when he slipped whilst walking on a sand pit and fell down onto his back.
Mr Wilson suffered injury to his right shoulder which was the subject of a surgical procedure in August 2018. A later MRI scan showed a partial failed rotator cuff repair.
The shoulder has since been…

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 249
Decision Date: 29 April 2024

CaseChat Overview and Summary

Wilson sued Australian Outdoor Living in the Workers Compensation Court of Victoria, appealing a 50% deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for an asymptomatic cervical degenerative pre-existing condition. The worker, a 66-year-old man, argued that the Medical Assessor (MA) had applied the wrong test in concluding that no cervical injury occurred and that there was an error in not finding radiculopathy when other specialists had. The court needed to determine if the MA had indeed applied the wrong test and if there was an error in not finding radiculopathy.

The court examined the MA's application of the wrong test in concluding that no cervical injury occurred. The court found that the MA had applied an inappropriate test, citing Skates v Hills Industries Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd, where similar issues had been addressed. The court also considered the findings on radiculopathy and found no error in the MA's decision, applying Wingfoot Australia Pty Ltd v Kocak. The court was satisfied with the MA's methodology and findings regarding radiculopathy, as they were consistent with the medical evidence presented.

The Medical Assessment Certificate was revoked, and the court applied section 323(2) of the Act. The decision recognised the MA's error in applying the wrong test but found no error in the radiculopathy findings. The court ordered that the original decision be set aside and replaced with a decision that correctly applied the law and evidence, resulting in a revised compensation assessment for the worker. The final order was that the original decision regarding the 50% deduction under section 323 be revoked, and a new assessment be conducted in accordance with the court's findings.

Orders