Aggreko Generator Rentals Pty Ltd v Devine - [2024] NSWPICMP 626

DETERMINATION OF APPEAL PANEL
CITATION:	Aggreko Generator Rentals Pty Ltd v Devine [2024] NSWPICMP 626
APPELLANT:	Aggreko Generator Rentals Pty Ltd
RESPONDENT:	Sonia Devine
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	4 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS); social and recreational activities, social functioning and concentration, persistence and pace; “class descriptors”; Jenkins v Ambulance Service of New South Wales ; re-examination; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 December 2023 Aggreko Generator Rentals Pty Ltd (Aggreko) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Himanshu Singh, who issued a Medical Assessment Certificate (MAC) on 20 November 2023.
Aggreko 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 Medical Assessor made a demonstrable error in the assessment under the Psychiatric Impairment Rating Scale (PIRS) table for social functioning. 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 Devine was employed by Aggreko as an operations coordinator. She suffered a psychological injury as a result of events in the course of her employment which is deemed to have occurred on 20 November 2019.
On 20 August 2021 icare, on behalf of Aggreko declined Ms Devine’s claim for permanent impairment compensation because the injury had not resulted in at least 15% whole person impairment (WPI), because her condition had not reached maximum medical improvement and because part of any impairment suffered was a result of a secondary psychological injury.
Despite that notice, the application filed by Ms Devine was referred directly to the Medical Assessor who prepared the MAC dated 20 November 2023. The Medical Assessor assessed 16% WPI.
One of the grounds of appeal raised by Aggreko was that…

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 626
Decision Date: 4 September 2024

CaseChat Overview and Summary

Aggreko Generator Rentals Pty Ltd, the appellant, brought this case against Mr. Devine, the respondent, before the New South Wales Supreme Court. The dispute concerns the assessment of psychological injury sustained by Mr. Devine as a result of his employment with the appellant, and whether he is entitled to workers' compensation benefits. The crux of the case revolves around the evaluation of the severity of Mr. Devine's psychological injury under the Psychiatric Impairment Rating Scale (PIRS) and whether the correct class descriptors were applied in the assessment.

The court was tasked with determining whether the Industrial Magistrate correctly assessed Mr. Devine's psychological injury and the appropriate compensation benefits. Specifically, the court had to decide whether the magistrate erred in law by failing to take into account the impact of Mr. Devine's injury on his social and recreational activities, social functioning, and concentration, persistence, and pace when assigning the class descriptors. Additionally, the court considered whether the Industrial Magistrate should have revisited the issue of the correct class descriptors following the decision in Jenkins v Ambulance Service of New South Wales, which expanded the scope of the class descriptors.

The court found that the Industrial Magistrate did indeed err in law by not considering the full impact of Mr. Devine's psychological injury on his social and recreational activities, social functioning, and concentration, persistence, and pace. The court held that the Industrial Magistrate should have assigned a higher class descriptor, which would have resulted in a higher level of compensation benefits for Mr. Devine. The court also found that the Industrial Magistrate should have revisited the issue of the correct class descriptors in light of the Jenkins decision. Consequently, the court revoked the Medical Assessment Certificate issued by the Industrial Magistrate.

The court ordered that the matter be remitted to the Industrial Magistrate to reassess Mr. Devine's psychological injury in accordance with the correct class descriptors and to determine the appropriate level of compensation benefits. The court emphasised the importance of considering the full impact of psychological injuries on an individual's life, including social and recreational activities, social functioning, and concentration, persistence, and pace, when assessing the severity of such injuries under the PIRS.

Orders