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The case of Sleiman v Gadalla Pty Ltd has opened up the possibility that a claim for permanent impairment compensation can be reconsidered, should there be evidence of deterioration, which could potentially give rise to an opportunity for a further permanent impairment assessment, subsequent to an initial determination of the claim. 

Background

To provide a brief background, the plaintiff in this case, Mr Sleiman, initially lodged a claim for whole person impairment of 46%. His claim was rejected by his employer’s workers compensation insurer. Mr Sleiman accordingly lodged an application in the former Workers Compensation Commission and following a conciliation/arbitration hearing, the parties agreed for Mr Sleiman to be referred to an Approved Medical Specialist (AMS). The Commission appointed AMS Dr Phil Truskett, who found 2% whole person impairment with respect to Mr Sleiman’s work related injuries and a Medical Assessment Certificate (MAC) was issued.

Mr Sleiman then appealed the MAC on the basis that the decision from Dr Truskett had been made on the basis of incorrect criteria or contained a demonstrable error. His matter was a referred to a Medical Appeal Panel (MAP). He was subsequently examined by the Medical Appeal Panel and the Panel issued a new Certificate certifying that the workers injuries had resulted in 14% whole person impairment. 

A couple of years later, in 2019, Mr Sleiman claimed there had been a deterioration of his injuries and lodged an application to appeal against the decision of an Approved Medical Specialist. The application was rejected by the Commission as they stated that under the relevant legislation, an appeal could only be sought out against the decision of an Approved Medical Specialist, and not a Medical Appeal Panel. 

Mr Sleiman then appealed to the Supreme Court of NSW, which also failed as the Court agreed with the Commission however also interestingly noted that if the appeal were to be upheld, then it could result in an unlimited number of appeals being lodged against the decision of a Medical Appeal Panel which is not the intention of the provisions. 

Court of Appeal Judgement

An important point raised by Mr Sleiman’s legal representation was that the legislation should be construed in a way so as to not prevent an injured worker from having the opportunity for a further assessment of permanent impairment if new information regarding his deterioration arises.

The unanimous decision held by the Court of Appeal needs to be explained carefully.

Whilst the Court allowed the appeal, they concluded that the Workers Compensation Commission and the Supreme Court correctly ruled that a “… further appeal from the Appeal Panel was not available to Mr Sleiman”. 

With that said, the Court allowed the appeal based on what is referred to in the decision as Mr Sleiman’s ‘fallback submission’. This submission formulated that Mr Sleiman had the right to apply to the Appeal Panel to ‘reconsider’ its earlier decision, rather than ‘appealing’ the earlier decision. This is an important point arising from the decision as currently in the jurisdiction of the Personal Injury Commission, there are appropriate avenues to seek a reconsideration of a Medical Assessment. 

Consequently, the Court set aside the initial decision from the Commission and referred Mr Sleiman’s application to the Commission for determination on the basis of a "reconsideration". 

The Impact of the Decision on Workers Compensation Claims 

This decision could have a fundamental impact on injured workers claims for permanent impairment. 

Accordingly it is possible that workers may possibly have more than “one shot” at an assessment for permanent impairment if there is clear evidence of deterioration. 

If you are an injured worker who has had a prior workers compensation claim for permanent impairment and your injuries have deteriorated, it is crucial that you seek further legal advice as you may have the opportunity for a further assessment for your permanent impairment which could fundamentally change your rights and entitlements for the betterment of your claim.

Andrew Tohme Andrew Tohme
Associate

06 Oct 2021