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Ypermachou v PMK Pty Ltd

Ypermachou v PMK Pty Ltd

Case [2025] NSWPICMP 199 25 March 2025

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DETERMINATION OF APPEAL PANEL
CITATION:	Ypermachou v PMK Pty Ltd [2025] NSWPICMP 199
APPELLANT:	Agamemnon Ypermachou
RESPONDENT:	PMK Pty Ltd
APPEAL PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	25 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker suffered injury in August 1995; determination by Member of nature of injuries and consequential conditions; medical dispute assessable under Table of Disabilities and whole person impairment (WPI); medical assessments by two Medical Assessors (MA) assessing different body systems including respiratory system for sleep apnoea; alleged error in both assessments; no claim or orders made for assessment of obstructive sleep apnoea under the Table of Disabilities; obstructive sleep apnoea or similar condition not assessable under the Table Disabilities; minor or incomplete misdescriptions in the Medical Assessment Certificate’s (MAC) not demonstrable errors; alleged errors of failure to provide adequate reasons not made out; reasons must be adequate and disclose the reasons sufficient to show the “actual path of reasoning” by which the opinion was formed and in sufficient detail such that an Appeal Panel could determine whether either the MAC contained a demonstrable error or the assessment was made based on incorrect criteria; reasons by MA’s were sufficient; Wingfoot Australia Partners Pty Ltd v Kocak; conclusion that sleep apnoea was well controlled; discussion of other evidence; reasons disclosed for this finding; Held – Medical Assessment Certificate confirmed.

BACKGROUND

Mr Agamemnon Ypermachou (the appellant) sustained injury on 8 August 1995 in the course of his employment with PMK Pty Ltd (the appellant).
The appellant served a claim based on a series of reports seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) and an assessment of the degree of permanent impairment pursuant to s 39 of the 1987 Act.
The appellant commenced proceedings in the Personal Injury Commission (the Commission) as a medical dispute had arisen following the exchange of relevant correspondence.
In detailed reasons delivered on 19 August 2024 Member Burge made the following orders:[1]
[1] Ypermachou v PMK Pty Ltd [2024] NSWPIC 450.
(i)The applicant suffered injury to his back, neck and left leg at or above the knee in the course of his employment with the respondent on 8 August 1995.
(ii)As a result of the injury referred to in [1], the applicant suffered consequential conditions to his left arm at or above the elbow and right leg at or above the knee and a consequential respiratory condition by way of obstructive sleep apnoea.
(iii)Both matters are remitted to the President for a referral to a Medical Assessor in relation to the following:
Date of injury:                 8 August 1995
Method of assessment:   table of disabilities
Body systems referred:   neck, back, left leg at or above the knee including below the knee, left arm at or above the elbow (consequential condition) and right leg at or below the knee (consequential condition)
Date…

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.

Continue reading Ypermachou v PMK Pty Ltd

Details

AGLC: Ypermachou v PMK Pty Ltd [2025] NSWPICMP 199
Case: [2025] NSWPICMP 199
Decision Date: 25 March 2025

CaseChat Overview and Summary

Ypermachou filed a claim against PMK Pty Ltd, seeking a review of the determination made by a Member of the Workers Compensation scheme regarding the nature of injuries and consequential conditions stemming from an injury sustained in August 1995. The determination under review involved the assessment of the applicant's condition, particularly the assessment of sleep apnoea under the Table of Disabilities and the whole person impairment (WPI). The applicant argued that there were errors in the medical assessments conducted by two Medical Assessors, who assessed different body systems including the respiratory system for sleep apnoea. The applicant contended that the Medical Assessment Certificates (MAC) contained minor or incomplete misdescriptions and failed to provide adequate reasons, which amounted to demonstrable errors.

The primary legal issues before the court were whether the Medical Assessors had made errors in their assessments of the applicant's condition and whether these errors were demonstrable. The applicant also argued that the Medical Assessors failed to provide adequate reasons for their opinions, which was a requirement under the relevant statutory framework. The court needed to determine if the reasons provided were sufficient and whether they disclosed the actual path of reasoning by which the opinions were formed. Furthermore, the court had to assess whether the sleep apnoea or similar conditions were assessable under the Table of Disabilities, as no claim or orders were made for such an assessment.

The court found that the reasons provided by the Medical Assessors were adequate and sufficient to disclose the actual path of reasoning. The court noted that the reasons provided were in sufficient detail for an Appeal Panel to determine whether the MAC contained a demonstrable error or whether the assessment was made based on incorrect criteria. The court referred to the decision in Wingfoot Australia Partners Pty Ltd v Kocak, which established the standard for sufficiency of reasons. The court concluded that the Medical Assessors' findings regarding the control of sleep apnoea were supported by the evidence and that the reasons disclosed were adequate. The court further found that sleep apnoea or similar conditions were not assessable under the Table of Disabilities as no such claim had been made. The court dismissed the application and confirmed the Medical Assessment Certificate.

The court ordered that the determination by the Member be upheld and that Ypermachou's application for review be dismissed with costs.

Orders