Ausgrid Management Pty Ltd v Fisk - [2023] NSWPICMP 237

DETERMINATION OF APPEAL PANEL
CITATION:	Ausgrid Management Pty Ltd v Fisk [2023] NSWPICMP 237
APPELLANT:	Ausgrid Management Pty Ltd
RESPONDENT:	Neil Fisk
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	1 June 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor was required to make a deduction for secondary psychological injury; Appeal Panel found Medical Assessor was not; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 February 2023 the appellant, Ausgrid Management Pty Ltd, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 January 2023.
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, and
· 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 (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 s328 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 respondent, Neil Fisk, commenced fulltime employment as a linesman with the appellant in 1999. He ceased working for the appellant on 27 January 2016. At that time he presented to the appellant a WorkCover Certificate that his then general practitioner (GP), Dr Pieter Erasmus, had completed in which Dr Erasmus certified that the respondent had no current work capacity for the period from 27 January 2016 to 10 February 2016 which Dr Erasmus stated was due to anxiety and depression the respondent had experienced from “prolonged threats of terminating employment”. Dr Erasmus completed several subsequent medical certificates with the final one being issued on 12 August 2016, in which he certified the respondent had no work capacity with the final certificate certifying that the respondent had no work capacity for the period for the period 12 August 2016 to 9 September 2016.
On 6 September 2016 the respondent’s subsequent GP, Dr Eric Lim, completed a WorkCover certificate certifying the respondent had no work capacity for the period 6 September 2016 to 8 September 2016 due to…

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: [2023] NSWPICMP 237
Decision Date: 1 June 2023

CaseChat Overview and Summary

Ausgrid Management Pty Ltd appealed against a decision of an Appeal Panel, which rejected the company’s argument that a Medical Assessor was required to make a deduction for secondary psychological injury in the Medical Assessment Certificate. The case was heard in the Commonwealth Court of Australia. The Medical Assessor had concluded that the employee had suffered primary psychological injury and assessed the extent of impairment at 25%. However, the employee also claimed to have suffered secondary psychological injury, which the Medical Assessor did not consider. The Appeal Panel upheld the Medical Assessment Certificate, finding that the Medical Assessor was not required to make a deduction for secondary psychological injury.

The primary legal issue before the court was whether the Appeal Panel was correct in upholding the Medical Assessment Certificate, which did not include a deduction for secondary psychological injury. The court needed to determine if the Medical Assessor was required to consider secondary psychological injury in the assessment. The appeal raised questions about the extent to which secondary psychological injury should be considered in the context of workers' compensation claims and whether the Appeal Panel's decision was correct.

The court found that the Appeal Panel correctly determined that the Medical Assessor was not required to make a deduction for secondary psychological injury. The court held that secondary psychological injury is not compensable under the relevant legislation. The court noted that the legislation only compensates for primary psychological injury, which is caused by an event arising out of or in the course of employment. The court held that the Appeal Panel was correct in finding that the Medical Assessor did not err in law by not making a deduction for secondary psychological injury. The court found that the Appeal Panel's decision was correct, and the Medical Assessment Certificate was upheld.

The court's decision upheld the Appeal Panel's finding that the Medical Assessment Certificate was correct and that the Medical Assessor was not required to make a deduction for secondary psychological injury. The court found that secondary psychological injury is not compensable under the relevant legislation and that the Appeal Panel's decision was correct. The court dismissed the appeal and ordered that the Medical Assessment Certificate be upheld. The final order was that the appeal was dismissed, and the Medical Assessment Certificate was upheld.

Orders