Ambrose v Westpac Banking Corporation - [2022] NSWPICMP 436

DETERMINATION OF APPEAL PANEL
CITATION:	Ambrose v Westpac Banking Corporation [2022] NSWPICMP 436
APPELLANT:	Kayleen Elizabeth Ambrose
RESPONDENT:	Westpac Banking Corporation
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	28 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Worker alleged numerous errors by the Medical Assessor (MA) in assessing a psychological injury; these included the failure to calculate pre-existing impairment in accordance with Psychological Impairment Rating Scale (PIRS) tables; failure to identify and elaborate on “research” on which he relied; failure to find that the worker’s pre-existing condition was “situational” rather than “chronic”; lack of certainty in his finding that the applicant suffered from a pre-existing psychological condition; Racing Club Ltd v Burton and Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; Held – that as the MA found that the worker’s condition was asymptomatic prior to her injury it was open to him to make a 1/10^th deduction for a pre-existing condition pursuant to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4^th ed 1 April 2016) Chapter 11.10; there was ample evidence of a pre-existing condition in the notes of the worker’s general practitioner; it was unnecessary for the MA to identify or elaborate on research to which he referred as a basis for his opinion; a fair reading of the Medical Assessment Certificate left no doubt that but for the pre-existing condition the worker’s whole person impairment would have been less than assessed by the MA.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 July 2022, Kayleen Elizabeth Ambrose (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Graham Blom, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 July 2022.
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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant…

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 436
Decision Date: 28 October 2022

CaseChat Overview and Summary

The case of Ambrose v Westpac Banking Corporation involved a dispute over the assessment of a psychological injury claim by a worker against the Medical Assessor appointed by Westpac Banking Corporation. The worker argued that the Medical Assessor had made several errors in assessing her condition, including miscalculations of pre-existing impairment, failure to identify the research basis for his opinions, and misunderstanding the nature of her pre-existing condition as situational rather than chronic. The court had to determine whether the Medical Assessor's findings were legally sound and whether they adhered to the required guidelines.

The primary legal issue before the court was whether the Medical Assessor had correctly assessed the worker's psychological injury, including the determination of any pre-existing condition and its impact on the overall impairment rating. The court had to consider whether the Medical Assessor properly applied the Psychological Impairment Rating Scale (PIRS) tables, identified and elaborated on the research he relied upon, and accurately characterised the worker's pre-existing condition. Furthermore, it needed to be established whether the Medical Assessor's findings were supported by the evidence, particularly the notes from the worker's general practitioner.

The court examined the evidence and concluded that the Medical Assessor was entitled to make a 1/10th deduction for a pre-existing condition because he had found that the worker's condition was asymptomatic before her injury. The court noted that the guidelines allowed for such deductions when the condition was asymptomatic. Additionally, the court found that there was sufficient evidence from the worker's general practitioner to support the existence of a pre-existing condition. The court also held that it was not necessary for the Medical Assessor to specifically identify or elaborate on the research he referenced, as long as his conclusions were reasonably based on the available evidence. Finally, the court determined that the Medical Assessment Certificate clearly indicated that, without the pre-existing condition, the worker's whole person impairment would have been less than what the Medical Assessor had assessed.

The court upheld the Medical Assessor's findings, determining that the worker's claims of error were unfounded. As a result, the court dismissed the worker's appeal and affirmed the original assessment of her psychological injury.

Orders