Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta - [2023] NSWPICMP 214

DETERMINATION OF APPEAL PANEL
CITATION:	Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta [2023] NSWPICMP 214
APPELLANT:	Arthur Tzaneros Discretionary Trust & Luke Webber Trust
RESPONDENT:	Fred Saofaileta
Appeal Panel
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	19 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in failing to exclude permanent impairment resulting from secondary psychological injury; Held – Medical Assessment Certificate set aside; matter remitted for determination by the Personal Injury Commission as to whether there was primary and/or psychological injury, and that nature of each.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Shen dated 22 December 2022.
In response to a referral for assessment issued by the Personal Injury Commission (Commission) on 10 October 2022, the Medical Assessor assessed a 24% whole person impairment as a result of psychological injury on 11 March 2019, when the respondent worker was knocked to the ground by a forklift truck at work and suffered both physical and psychological injuries. From the 24% whole person impairment, the Medical Assessor deducted one tenth for a pre-existing psychological condition, to arrive at 22% whole person impairment.
In response to a further referral for assessment of a general medical dispute also issued by the Commission on 10 October 2022, the Medical Assessor responded at [12] to the two specific questions posed by finding that the applicant suffered:
(a) persistent depressive disorder and post-traumatic stress disorder by way of primary psychological injury, and
(b) alcohol use disorder by way of ‘secondary [psychological] injury’.
The appellant employer submits essentially that the Medical Assessor erred in failing to identify and exclude from his assessment that part of the permanent impairment which resulted from the secondary psychological injury (diagnosed as alcohol use disorder), and in failing to follow the method for determining the amount of deduction for a pre-existing condition set out at [11.10] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the Guidelines.

Submissions

The parties made written submissions which have been taken into account. They are not repeated in full, but are summarised briefly below.
The appellant submits as follows:
(a) the Medical Assessor failed to explain whether alcohol use disorder is primary or secondary, and failed to exclude such of the permanent impairment that results from the disorder;
(b) the Medical Assessor failed to give reasons for not finding that the alcohol use disorder was a pre-existing condition;
(c) the Medical Assessor failed to calculate the amount of the deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 in accordance with [11.10] of the Guidelines. He should have assessed whole person impairment prior to injury by reference to the psychiatric…

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.

Continue reading Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Sa...

Details

AGLC: Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta [2023] NSWPICMP 214
Case: [2023] NSWPICMP 214
Decision Date: 19 May 2023

CaseChat Overview and Summary

In the case of Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta, the dispute arose from the assessment of whole person impairment, specifically psychological, following an injury. The parties were before the Court of Appeal in Australia, which was tasked with determining the legal issues surrounding the assessment of the psychological impairment. The appellants, Arthur Tzaneros Discretionary Trust and Luke Webber Trust, sought to challenge the assessment made by the Medical Assessor, who had determined the extent of the psychological impairment resulting from the injury. The key legal issue before the court was whether the Medical Assessor had erred in failing to exclude the permanent impairment resulting from secondary psychological injury. The appellants argued that the Medical Assessor had overlooked certain evidence and had not properly considered the impact of secondary psychological injury on the assessment of whole person impairment. The court was required to examine the reasoning and methodology employed by the Medical Assessor in reaching the conclusion on the extent of psychological impairment and whether there was a failure to exclude the impairment resulting from secondary psychological injury. The court found that the Medical Assessor had indeed erred in not excluding the permanent impairment resulting from secondary psychological injury. The reasoning of the court involved a detailed analysis of the evidence presented and the application of relevant legal principles concerning the assessment of psychological impairment. The court concluded that the Medical Assessment Certificate was set aside and the matter was remitted for determination by the Personal Injury Commission. The Commission was tasked with determining whether there was primary and/or psychological injury, and the nature of each, taking into account the impact of secondary psychological injury. The final orders of the court directed the Personal Injury Commission to reassess the whole person impairment, ensuring that any secondary psychological injury was properly considered and excluded from the assessment, if appropriate.

Orders