ZWF NSW Pty Ltd v Deguara - [2022] NSWPICMP 254

DETERMINATION OF APPEAL PANEL
CITATION:	ZWF NSW Pty Ltd v Deguara [2022] NSWPICMP 254
APPELLANT:	ZWF NSW Pty Ltd
RESPONDENT:	David Deguara
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Dr Mark Burns
MEDICAL ASSESSOR:	Dr Drew Dixon
DATE OF DECISION	17 June 2022
CATCHWORDS:	WORKERS COMPENSATION – Respondent referred for assessment of Whole Person Impairment (WPI) from injury to lumbar spine and scarring; respondent had suffered an earlier injury to lumbar and a subsequent injury to lumbar spine than the injury referred for assessment; respondent had surgery to his lumbar spine after each of the three injuries; Medical Assessor (MA) made a deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 for prior injury to lumbar spine but made no deduction with respect to WPI for scarring; appellant contended that MA erred by not making a deduction greater than 10% for earlier injury and by not apportioning any WPI to subsequent injury and by not making any deduction at all with respect to assessment of WPI from scarring; Appeal Panel considered MA was correct to make deduction of 10% only for prior injury and not to apportion any WPI to subsequent injury but erred by not making any deduction with respect to WPI from scarring for earlier injury; when deduction for scarring made, no difference in outcome; Held– Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 April 2022 ZWF NSW Pty Ltd (the appellant) lodged with the Personal Injury Commission (the Commission) an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Brian Stephenson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 16 March 2022. The appellant served a sealed copy of its application on David Deguara (the respondent) on 13 April 2022. The respondent has not lodged with the Commission a Notice of Opposition to the appellant’s appeal. On 9 May 2022, the Commission wrote to the respondent’s lawyers seeking advice as to whether the respondent intended to lodge a Notice of Opposition. No response has been received by the Commission.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for…

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: [2022] NSWPICMP 254
Decision Date: 17 June 2022

CaseChat Overview and Summary

The parties in the case of ZWF NSW Pty Ltd v Deguara were ZWF NSW Pty Ltd, the appellant, and Deguara, the respondent. The dispute involved the assessment of the respondent's Whole Person Impairment (WPI) stemming from injuries to his lumbar spine and resulting scarring. The case was heard in the New South Wales Civil and Administrative Tribunal (NCAT). The appellant challenged the decision of the Medical Assessor (MA) regarding the respondent's WPI, arguing that the MA erred in several aspects of the assessment. The appellant contended that the MA should have made a greater deduction for the earlier injury to the lumbar spine, should have apportioned some WPI to a subsequent injury, and should have made a deduction with respect to the scarring from the earlier injury. The Appeal Panel found that while the MA correctly made a 10% deduction for the prior injury and did not apportion any WPI to the subsequent injury, the MA erred by not making any deduction for the scarring from the earlier injury. Despite this error, when a deduction for the scarring was made, it did not change the outcome of the WPI assessment.

The legal issues the court had to address included whether the MA appropriately applied the provisions of the Workplace Injury Management and Workers Compensation Act 1998 in assessing the WPI. Specifically, the court examined whether the MA correctly made deductions for prior injuries and whether the MA appropriately apportioned WPI between multiple injuries. The appellant argued that the MA should have made a more significant deduction for the prior injury and should have apportioned some WPI to the subsequent injury. Furthermore, the appellant claimed that the MA should have made a deduction for the scarring resulting from the earlier injury. The court had to determine whether these contentions were valid and whether the MA's assessment of WPI was accurate.

The Appeal Panel held that the MA correctly made a 10% deduction for the prior injury to the lumbar spine and appropriately did not apportion any WPI to the subsequent injury. However, the Panel found that the MA erred by not making any deduction with respect to the scarring from the earlier injury. Despite this error, the Panel concluded that when a deduction for the scarring was made, it did not alter the outcome of the WPI assessment. Therefore, the Panel upheld the Medical Assessment Certificate as it stood. The appellant's appeal was dismissed, and the original assessment of the respondent's WPI was affirmed.

Orders