Barnett v Ingenia Communities Holdings Ltd - [2024] NSWPIC 72

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Barnett v Ingenia Communities Holdings Ltd [2024] NSWPIC 72
APPLICANT:	Tracy Barnett
RESPONDENT:	Ingenia Communities Holdings Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	20 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the applicant suffered psychological injury in 2015; assessed by Medical Assessor in 2016 as having 8% permanent impairment; appeal to an Appeal Panel was dismissed; application to Appeal Panel to reconsider its decision pursuant to section 378; section 378 repealed on 1 March 2021; discussion of unexercised rights in schedule 1 clause 14D of the Personal Injury Commission Act 2020; Dimos v Gordian Runoff Pty Ltd discussed and applied; applicant’s evidence prior to the establishment day (1 March 2021) analysed; findings made that applicant established prima facie deterioration of assessable impairment under Psychiatric Impairment Rating Scale categories of social and recreational activities and social functioning deterioration; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales applied; finding of class 3 for social functioning would significantly increase assessable impairment; applicant did not satisfy onus of proof as at the establishment day that impairment was permanent; both treating psychiatrist and psychologist recommended in February 2021 that the applicant be hospitalised and otherwise undergo further counselling; likely inference is that treatment would be somewhat successful; applicant did not satisfy onus of proof that impairment was permanent; Held – application to have Appeal Panel reconsider Medical Assessment Certificate refused.
DETERMINATIONS MADE:	The Commission orders: 1. The application to relist the matter to enable the Appeal Panel to reconsider its determination is refused. 2. The application to rescind the Certificate of Determination dated 25 January 2017 is refused.

STATEMENT OF REASONS

BACKGROUND

These proceedings have an extended history. In this application Ms Tracy Barnett (the applicant) seeks leave to rescind the Certificate of Determination dated 25 January 2017 (COD)[1] to enable the Medical Appeal Panel to reconsider its decision dated 22 December 2016 (MAP).[2]
[1] Application, p 11.
[2] Application, p 102.
The applicant alleged that she suffered psychological injury deemed to have occurred on 27 September 2015. Ingenia Communities Holdings Ltd (the respondent) did not dispute that the applicant sustained psychological injury.
The applicant was initially assessed by Dr Rees who issued a Medical Assessment Certificate dated 25 August 2016 (MAC). The applicant was then diagnosed with an aggravation of Major Depression.[3]
[3] Application, p 99.
The MAC assessed Ms Barnett as having an 8% permanent impairment after a one-tenth deduction pursuant to s 323 of the Workplace Injury Management & Workers Compensation Act, 1998 (the 1998 Act).[4] Ms Barnett was assessed under the psychiatric impairment rating scale (PIRS) categories as follows:
·        Self care and personal hygiene – 2;
·        Social and recreational activities – 3;
·        Travel – 2;
·        Social functioning – 2;
·        Concentration, persistence and pace – 2, and
·        Employability – 5.
[4] Application, p 65.
The appeal to the Medical Appeal Panel was dismissed…

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 Barnett v Ingenia Communities Holdings Ltd 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: [2024] NSWPIC 72
Decision Date: 20 February 2024

CaseChat Overview and Summary

The case of Barnett v Ingenia Communities Holdings Ltd involved the applicant, who suffered a psychological injury in 2015, seeking reconsideration of a Medical Assessment Certificate. The applicant's appeal to the Appeal Panel was dismissed, and the application to the Appeal Panel to reconsider its decision was made under section 378, which was repealed on 1 March 2021. The applicant argued that the Panel should have considered the deterioration of his assessable impairment, citing unexercised rights under schedule 1 clause 14D of the Personal Injury Commission Act 2020. The court had to decide whether the Panel's decision to not reconsider the Medical Assessment Certificate was appropriate given the repealed section 378 and the applicant's evidence of deterioration.

The central legal issues were whether the Appeal Panel was required to consider the applicant's evidence of deterioration in his condition under the repealed section 378, and if so, whether the applicant had demonstrated a prima facie case of deterioration that would warrant reconsideration. The court also needed to determine if the applicant had satisfied the onus of proof that his impairment was permanent as of the establishment day, 1 March 2021, given the recommendations for hospitalisation and further treatment made in February 2021.

The court found that the applicant's evidence of deterioration, which was provided prior to the establishment day, established a prima facie case of deterioration under the Psychiatric Impairment Rating Scale categories of social and recreational activities and social functioning. The court acknowledged that a finding of class 3 for social functioning would significantly increase the assessable impairment. However, the court determined that the applicant had not satisfied the onus of proof that the impairment was permanent as of the establishment day, given the recommendations for further treatment. The court held that the likelihood of successful treatment suggested the applicant's condition might improve, thus the onus of proof for permanent impairment was not met. Consequently, the application to have the Appeal Panel reconsider the Medical Assessment Certificate was refused.

In summary, the court held that the applicant did not establish that his psychological impairment was permanent as of 1 March 2021, and therefore the application to have the Appeal Panel reconsider the Medical Assessment Certificate was properly refused.

Orders