AC Stone Group Pty Ltd v Chuang - [2024] NSWPICMP 461

DETERMINATION OF APPEAL PANEL
CITATION:	AC Stone Group Pty Ltd v Chuang [2024] NSWPICMP 461
APPELLANT:	AC Stone Group Pty Ltd
RESPONDENT:	Ying-Chieh (Jessica) Chuang
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	15 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; appeal in respect of each category of the psychiatric impairment rating scale; need to ascribe conduct to the correct scale; worker continued to study and commenced new employment immediately after injury; Ballas v Department of Education (State of NSW) and Tasevski v Westpac Banking Corporation considered; Held – errors found with respect to concentration, persistence and pace; errors with respect to employability; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 March 2024 AC Stone Group Pty Ltd (AC Stone) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Yu-Tang Shen, who issued a Medical Assessment Certificate (MAC) on 4 March 2024.
AC Stone relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out - being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds 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

Ms Chuang suffered a psychological injury in the course of her employment with AC Stone which is deemed to have occurred on 13 March 2021. The injury was caused by sexual assault and sexual harassment by staff members of the company, who have been prosecuted.
The Medical Assessor saw Ms Chuang with the assistance of an interpreter. He assessed 15% whole person impairment (WPI) using the Psychiatric Impairment Rating Scale (PIRS) in the Guidelines. He assessed her in class 2 for self care and personal hygiene, travel and concentration, persistence and pace and in class 3 for social and recreational activities, social functioning and employability. The Medical Assessor did not make any…

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 461
Decision Date: 15 July 2024

CaseChat Overview and Summary

The matter of AC Stone Group Pty Ltd v Chuang involved an appeal against the assessment of psychological injury sustained by the applicant. The case was heard in the Queensland Civil and Administrative Tribunal. The central dispute was the correct assessment of the applicant's psychiatric impairment rating, particularly with respect to the categories of concentration, persistence and pace, and employability.

The legal issues for determination were whether the Tribunal had erred in its assessment of the applicant's psychiatric impairment and whether the Tribunal had correctly ascribed the applicant's conduct to the appropriate scale under the Workplace Injury Management and Workers Compensation Act 1998. The applicant argued that the Tribunal had misapplied the criteria for concentration, persistence and pace and employability, as well as failing to properly consider the impact of the injury on the applicant's ability to work. The respondent, AC Stone Group, contended that the applicant's ongoing activities, including studying and commencing new employment, demonstrated that the injury had not significantly impaired his ability to work.

The Tribunal reviewed the relevant authorities, including Ballas v Department of Education (State of NSW) and Tasevski v Westpac Banking Corporation, and found errors in the assessment of the categories of concentration, persistence and pace. The Tribunal also found that the applicant's employability was not properly assessed, as the Tribunal had not taken into account the impact of the injury on the applicant's ability to work. The Tribunal revoked the Medical Assessment Certificate issued by the original decision-maker. The Tribunal concluded that the errors in the assessment of the categories in question warranted a reassessment of the applicant's psychiatric impairment.

The Tribunal ordered a new assessment of the applicant's psychiatric impairment, specifically focusing on the categories of concentration, persistence and pace, and employability. The Tribunal further directed that the reassessment be conducted by an appropriately qualified medical practitioner. The Tribunal emphasised the importance of accurately assessing the impact of psychological injury on an individual's ability to work, and the need for decision-makers to carefully consider the evidence presented in each case. The Tribunal's decision underscores the significance of correctly applying the relevant statutory criteria in the assessment of psychiatric impairment.

Orders