Austbrokers RIS Pty Ltd v Davy - [2021] NSWPICMP 197

DETERMINATION OF APPEAL PANEL
CITATION:	Austbrokers RIS Pty Ltd v Davy [2021] NSWPICMP 197
APPELLANT:	Austbrokers RIS Pty Ltd
RESPONDENT:	Rowan Davy
Appeal Panel:	Member John Wynyard Dr Douglas Andrews Dr Nicholas Glozier
DATE OF DECISION:	20 October 2021
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from assessment of 1/10th section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction: worker awarded 24% whole person impairment for psychiatric injury caused by bullying and harassment; suffered from prior psychiatric condition which included suicide attempt some 4 years prior to subject injury, and 1 year prior to worker’s commencement with employer: whether contemporaneous clinical notes and health plans demonstrated a higher contribution from the prior condition; Held - incorrect criteria ground established as Medical Assessor (MA) did not explain the methodology used to assess such contribution; comparison with Chapter 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guides) and section 323 of the 1998 Act considered; Marks v Secretary, Department of Communities and Justice (No 2) applied; Chapter 11.10 of the Guides inapplicable as application would yield no prior contribution; MA accordingly applied correct criteria; observations on probative value of clinical notes and health plans when unanimously contradicted by medical experts; Medical Assessment Certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 July 2021 Austbrokers RIS Pty Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 29 June 2021.
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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 7 April 2021 this matter was referred to the MA for an assessment of WPI caused by psychological/psychiatric disorder on a deemed date of 6 June…

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.

Keep reading for free

Create a free CaseChat account to read Austbrokers RIS Pty Ltd v Davy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWPICMP 197
Decision Date: 20 October 2021

CaseChat Overview and Summary

The case of Austbrokers RIS Pty Ltd v Davy involved a dispute over the assessment of a workers compensation claim by the worker, Davy, who was awarded a 24% whole person impairment for a psychiatric injury caused by bullying and harassment at work. Davy had a prior psychiatric condition that included a suicide attempt several years prior to the incident with the employer and one year prior to starting employment. The employer argued that Davy's prior condition contributed significantly to the impairment, and thus a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 should apply. The Medical Assessor had determined that there was no significant contribution from the prior condition, and the worker appealed this decision.

The legal issues before the court were whether the Medical Assessor used the correct criteria in assessing the contribution of the prior psychiatric condition to the current impairment and if the Assessor's decision was consistent with the provisions of the 1998 Act and the relevant guidelines. The court had to determine if the Assessor's failure to explain the methodology used to assess the contribution constituted an error of law warranting an appeal. The applicability of Chapter 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, to this case was also scrutinised.

The court found that the Medical Assessor did not adequately explain the methodology used to assess the contribution of the prior condition, which constituted an error of law. However, the court considered that Chapter 11.10 of the Guidelines was not applicable to the facts of this case as its application would not yield a significant contribution from the prior condition. The court found that the Assessor applied the correct criteria in arriving at the assessment, despite the lack of explanation. The court noted that the contemporaneous clinical notes and health plans, which the employer relied upon, were contradicted by the medical experts, and thus had limited probative value. Ultimately, the court upheld the Medical Assessment Certificate.

The court did not order any changes to the assessment, confirming the 24% whole person impairment award without any deduction for the prior condition. The decision highlighted the importance of clear explanation in the assessment methodology, while also underscoring the weight given to expert medical evidence in such disputes.

Orders