Zaiter v Lawrence and Hanson Group Pty Ltd - [2023] NSWPICMP 72

DETERMINATION OF REVIEW PANEL
CITATION:	Zaiter v Lawrence and Hanson Group Pty Ltd [2023] NSWPICMP 72
CLAIMANT:	Anthony Zaiter
INSURER:	Lawrence & Hanson Group Pty Ltd
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Chris Oates
MEDICAL ASSESSOR:	Les Barnsley
DATE OF DECISION:	3 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; the claimant suffered injury on 8 May 2017 when an unsecured cabinet fell from a forklift striking the claimant causing him to fall to the ground; the dispute related to the assessment of permanent impairment under of physical injuries; claimant re-examined; Panel required to form its own opinion on diagnosis and assessment; Insurance Australia Ltd v Marsh applied; Panel not satisfied that the motor accident caused any fractures in the thoracic spine because the initial complaints of tenderness were in the upper thoracic spine around T3; the scans show degenerative changes rather than acute fractures and the accident would result in compression fractures; claimant assessed at 5% in the cervical spine for dysmetria and 1% for haemorrhoids due to medication; Held – claimant assessed at 6% permanent impairment; original assessments revoked.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF permanent impairment OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS: The Panel revokes the certificate of Medical Assessor Cameron dated 17 July 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is NOT GREATER THAN 10%: · cervical spine; · thoracic spine; · lumbar spine; · head, and · lower digestive/anus.

REASONS

BACKGROUND

Mr Zaiter (the claimant) was injured on 8 May 2017 when an unsecured cabinet fell from a forklift striking the claimant causing him to fall to the ground (the motor accident). Mr Zaiter alleges that the motor accident caused several injuries.
Lawrence & Hanson Group Pty Ltd employed the driver of the forklift and is liable to pay Mr Zaiter any damages under the Motor Accidents Compensation Act 1999 (the MAC Act). Whilst not entirely accurate, it is convenient to refer to Lawrence & Hanson Group Pty Ltd as the insurer.
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
Mr Zaiter claims that he suffered impairment of his cervical, thoracic and lumbar spine and a small haemorrhage in the brain.
Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines…

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 72
Decision Date: 3 March 2023

CaseChat Overview and Summary

The parties involved in the case were Zaiter, the claimant, and Lawrence and Hanson Group Pty Ltd, the respondent. The dispute centered around the assessment of permanent impairment caused by an incident on 8 May 2017, where the claimant suffered injury when an unsecured cabinet fell from a forklift and struck him, causing him to fall to the ground. This matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues that the Panel had to decide included whether the motor accident caused any fractures in the thoracic spine and the assessment of permanent impairment resulting from the claimant's injuries. The Panel had to form its own opinion on the diagnosis and assessment of the claimant's condition, applying the principles set out in Insurance Australia Ltd v Marsh. The Panel needed to consider the evidence provided by the claimant, including his re-examination, and the medical reports and scans submitted in the case.

The Panel concluded that it was not satisfied that the motor accident caused any fractures in the thoracic spine. The claimant's initial complaints of tenderness were in the upper thoracic spine around T3, but the scans showed degenerative changes rather than acute fractures. The Panel found that the accident would result in compression fractures, but no such fractures were identified in the evidence. The claimant was assessed at 5% for dysmetria in the cervical spine and 1% for haemorrhoids due to medication. Consequently, the Panel assessed the claimant's permanent impairment at 6%, revoking the original assessments.

The final orders of the Panel were that the original assessments of permanent impairment were revoked, and the claimant was assessed at 6% permanent impairment. This decision was based on the evidence provided and the application of relevant legal principles.

Orders