Bayside Council v Ware

Case [2023] NSWPICMP 576
DETERMINATION OF APPEAL PANEL
CITATION: Bayside Council v Ware [2023] NSWPICMP 576
APPELLANT: Bayside Council
RESPONDENT: Philip Craig Ware
APPEAL PANEL
MEMBER: John Wynyard
MEDICAL ASSESSOR: Michael Hong
MEDICAL ASSESSOR: Nicholas Glozier
DATE OF DECISION: 10 October 2023
CATCHWORDS: 

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim by appellant employer against 17% whole person impairment psychiatric injury, including 10% section 323 deduction; claimant obtained another 17% for similar psychiatric case 2 years earlier; whether credit findings by Commission Member may be ignored; whether section 323 properly applied; whether 3 categories of psychiatric impairment ratings scale (PIRS) properly classified; Held – Medical Assessor (MA) bound to accept findings of credit where such findings not concerned with medical dispute as defined in section 319; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Jaffaire v Quality Casting Pty Ltd considered; danger of conflicting judgments considered; Member found claimant unreliable and without credit; MA ignored Member findings & failed to give adequate reasons; Medical Assessment Certificate revoked; section 323 increased to 50% and Panel declined to rule on PIRS categories, as being of no utility.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 22 May 2023 Bayside Council 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, who issued a second Medical Assessment Certificate (MAC) on 24 April 2023, which is the subject of this appeal.

  2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

    ·        the assessment was made on the basis of incorrect criteria, and

    ·        the MAC contains a demonstrable error.

  3. 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.

  4. Rule 128 of 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 r 128(1) of the PIC Rules.

  5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
    1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

  1. On 11 April 2023 a Further Amended Referral was made by the President’s delegate for an assessment of WPI caused by psychiatrist/psychological disorder as a result of injury on a deemed date of 19 March 2020. The referral contained the following:[1]

    [1] Appeal…

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Bayside Council v Ware [2023] NSWPICMP 576
Case
[2023] NSWPICMP 576
Decision Date

CaseChat Overview and Summary

In the case of Bayside Council v Ware, the appellant employer contested a claim for workers compensation made by the respondent, Phillip Craig Ware, for a psychiatric injury sustained in the course of his employment. Ware, who had been employed by the Bayside Council as a trades assistant, alleged that he suffered a psychological injury following his termination of employment. The dispute centred around the quantum of the compensation claim, specifically the whole person impairment rating and the application of a 10% deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The Council argued that Ware's claim was inflated due to a previous similar claim, and that the Medical Assessor (MA) had erred in ignoring the findings of the Commission Member regarding Ware's credibility.

The central legal issues before the court were whether the findings of credit by the Commission Member could be disregarded by the MA, whether section 323 was correctly applied in this case, and whether the three categories of the psychiatric impairment ratings scale (PIRS) were appropriately classified. The Council contended that the MA should not have disregarded the Commission Member's findings of unreliability and lack of credibility in Ware, and that the MA's failure to give adequate reasons for the assessment was an error of law. The Council also argued that the application of section 323 was incorrect, as it should have resulted in a higher deduction due to Ware's previous similar claim, and questioned the classification of the PIRS categories. Ware, on the other hand, maintained that the MA's assessment was valid and that the application of section 323 and the classification of the PIRS categories were correctly made.

The court held that the MA was bound to accept findings of credit unless they pertained to a medical dispute as defined in section 319. The court referenced Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Jaffaire v Quality Casting Pty Ltd, which established that findings of credit not related to medical disputes are to be accepted by the MA. The court determined that the MA erred in disregarding the Commission Member's findings of unreliability and lack of credibility in Ware, and that the MA failed to provide adequate reasons for the assessment. Consequently, the court revoked the Medical Assessment Certificate and increased the deduction under section 323 to 50%. The Panel declined to rule on the PIRS categories, finding them to be of no utility in this case.

The final orders of the court were that the appeal was allowed, the Medical Assessment Certificate was revoked, the deduction under section 323 was increased to 50%, and no ruling was made on the PIRS categories.

Orders

Orders of the court

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Background

Background to the litigation

The learned Member set out the background to the case as follows:[9][9] Appeal papers page 88.“BACKGROUND1. Phillip Craig Ware (the applicant) commenced employment with the Bayside Council (the respondent) as a trades assistant (operations technician) on 29 July 2019.2. By letter dated 26 February 2020, received by the applicant on 28 February 2020, he was required to attend a meeting to investigate his conduct in the workplace. The letter specifically identified his conduct on 20 February 2020. It stated:‘On Thursday 20 February 2020 you are alleged to have behaved antagonistically toward a colleague by raising voice in an aggressive manner and throwing papers’.3. The letter, which was signed by Bryce Spelta, the respondent’s Manager City Works, stated that the meeting formed part of an investigation to determine if there had been a breach of the respondent’s policies, procedures, or code of conduct.4. Having attended this meeting, the applicant received a further letter signed by Mr Spelta on 16 March 2020. It required him to attend a meeting on Wednesday 18 March 2020 at the respondent’s Botany depot. The purpose of the meeting was to discuss the findings of a recent investigation into the applicant’s conduct as an employee of the respondent.5. On the same date, he received further correspondence from the respondent which stated that he had:‘Deliberately and repeatedly acted dishonestly by stating false information, that you intended to fraudulently obtain payment by completing a falsified timesheet entry, and that you acted in an intimidating and harassing manner towards a colleague.’The applicant was advised that he was suspended on full pay pending his response to the allegations.6. By a further letter of 24 March 2020, the respondent extended the time for the applicant to show cause as to why his employment should not be terminated to close of business on 2 April 2020.7. On 15 April 2020, the applicant received a termination of employment letter.8. On 19 March 2020, the applicant saw his general practitioner, Dr Abdul Rahman, who certified him unfit for work from 19 March to 2 April 2020 due to depression and anxiety. Then, on 30 March 2020, at a further consultation, Dr Rahman issued a SIRA Certificate of Capacity certifying the applicant unfit to work from 30 March 2020.9. The applicant has not returned to employment since the termination of his position with the respondent council. It is common ground that he suffers from a psychological injury arising out of and in the course of his employment.” In view of the issues that Member Sweeney had to determine, he permitted cross-examination to occur of Mr Ware, a Mr Pickens (who failed to attend) and a number of respondent witnesses. Member Sweeney determined a number of factual issues that are not presently relevant, finding that the employer had failed to establish its statutory defence pursuant to s 11A of the 1987 Act, and remitting the matter for referral to the Medical Assessor.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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