Abdolkarimi v Ruby Painting Services Pty Ltd - [2024] NSWPICMP 760

DETERMINATION OF APPEAL PANEL
CITATION:	Abdolkarimi v Ruby Painting Services Pty Ltd [2024] NSWPICMP 760
APPELLANT:	Ali Abdolkarimi
RESPONDENT:	Ruby Painting Services Pty Limited
APPEAL PANEL
MEMBER:	John Isaksen
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	6 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; worker claims demonstrable error in Medical Assessor failing to provide adequate reasons for a one half deduction in whole person impairment for secondary psychological injury; consideration of Ausgrid Management Pty Ltd v Fisk and difficulty in the disentanglement of impairment for a secondary psychological injury from impairment for a primary psychological injury; Held – demonstrable error in failing to give adequate reasons; re-assessment of the psychiatric impairment rating scale categories; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 August 2024 the appellant, Ali Abdolkarimi, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 July 2024.
The appellant relies on the following ground 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant sustained fractures of the lumbar spine at L1, L2 and L3 levels on 20 November 2017 while employed with the respondent, Ruby Painting Services Pty Ltd, when he tripped on a plank of wood and fell about 10 metres to the ground.
The appellant has provided a statement dated 29 May 2024 wherein he states that he admitted to St George Hospital for about two weeks following the injury and was then in a back brace for about a year. He states that he was bedridden during this time and felt helpless.
The appellant states that he is extremely scared of heights. He states that he is scared to get on a plane, and that he has…

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 760
Decision Date: 6 November 2024

CaseChat Overview and Summary

Abdolkarimi, a former employee, brought an appeal against Ruby Painting Services Pty Ltd regarding the assessment of his whole person impairment due to a psychological injury. The dispute originated from the application of the Workplace Injury Management and Workers Compensation Act 1998. The primary contention was whether the Medical Assessor had made a demonstrable error in reducing the worker's whole person impairment by one half for a secondary psychological injury without providing adequate reasons for such a deduction. This appeal required the court to address the legal standards for the assessment of psychological injuries under the Workers Compensation Act, specifically focusing on the separability and quantification of primary and secondary psychological injuries.

The court had to consider whether the Medical Assessor's decision was flawed and if the reasons provided were sufficient under the statutory framework. The primary legal issue revolved around the correct interpretation and application of the psychiatric impairment rating scale categories, as well as the extent to which the Medical Assessor should have delineated between primary and secondary psychological injuries. The court had to reference previous cases such as Ausgrid Management Pty Ltd v Fisk to understand the complexities of assessing secondary psychological injuries and the necessity of clear and adequate reasoning.

In its reasoning, the court found that there was indeed a demonstrable error in the Medical Assessor's failure to provide adequate reasons for the one-half deduction. The court determined that the reasons provided were insufficient to justify such a significant reduction in the impairment rating. Consequently, the court revoked the Medical Assessment Certificate, directing a re-assessment of the worker's psychological impairment. This re-assessment was to ensure that the worker's whole person impairment was accurately determined, taking into account both primary and secondary psychological injuries. The court's decision emphasised the importance of clear and adequate reasoning in medical assessments under the Workers Compensation Act.

Orders