Benson v Veritas House - [2024] NSWPICMP 456

DETERMINATION OF APPEAL PANEL
CITATION:	Benson v Veritas House [2024] NSWPICMP 456
APPELLANT:	Bradlee Benson
RESPONDENT:	Veritas House
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Doug Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	11 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of psychological injury; all four grounds of appeal under s 327(3) relied upon by appellant; no evidence of deterioration amount to a change in the degree of permanent impairment; application to admit fresh evidence rejected; consideration of psychiatric impairment rating scale (PIRS) of social functioning; concentration, persistence and pace; and employability; Held – demonstrable error made by Medical Assessor in relation to findings of inconsistency; worker had marriage and another relationship break down since injury; PIRS of social functioning revoked; other two PIRS confirmed; Medical Assessment Certificate revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 April 2024, Bradlee Benson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 March 2024.
The appellant relies on all four grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), being:
·        deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 (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.
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)

RELEVANT FACTUAL BACKGROUND

Mr Benson was employed by Veritas House (the respondent) as a residential support worker. He was injured on 22 February 2019, when he was assaulted by a resident he was caring for. He was struck by an iPad and attacked with a butter knife, which did not break the skin. A few weeks after the incident Mr Benson noticed psychological symptoms associated with the incident. He has tried various treatment types including…

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 Benson v Veritas House

Details

AGLC: Benson v Veritas House [2024] NSWPICMP 456
Case: [2024] NSWPICMP 456
Decision Date: 11 July 2024

CaseChat Overview and Summary

Benson appealed against an assessment of his psychological injury under the Workplace Injury Management and Workers Compensation Act 1998. The dispute arose from the assessment of his injury by a Medical Assessor, which Benson contended contained errors. The appeal was heard in the Supreme Court of Victoria. Benson argued that the assessment contained errors in relation to the findings of inconsistency, the degree of permanent impairment, and the psychiatric impairment rating scale (PIRS). Specifically, he contended that the Medical Assessor had erred in not considering evidence of his social functioning, concentration, persistence and pace, and employability, and in not revoking the Medical Assessment Certificate due to the errors found.

The court was required to determine whether the Medical Assessor had made a demonstrable error in assessing the psychological injury and whether the certificate should be revoked. The court considered the evidence of the breakdown of Benson's marriage and another relationship since the injury, and whether this constituted a change in the degree of permanent impairment. The court also examined the psychiatric impairment rating scale (PIRS) of social functioning, concentration, persistence and pace, and employability, and whether the Medical Assessor had erred in not revoking the Medical Assessment Certificate.

The court found that the Medical Assessor had made a demonstrable error in relation to the findings of inconsistency, and that the Medical Assessment Certificate should be revoked. The court considered that there was no evidence of deterioration that amounted to a change in the degree of permanent impairment. The court also considered the evidence of the breakdown of Benson's marriage and another relationship since the injury, and found that this did not constitute a change in the degree of permanent impairment. The court confirmed the PIRS of social functioning was revoked, and confirmed the other two PIRS. The court revoked the Medical Assessment Certificate and issued a new certificate.

The court ordered that the Medical Assessment Certificate be revoked and a new certificate be issued, with the PIRS of social functioning revoked and the other two PIRS confirmed. The court rejected Benson's application to admit fresh evidence.

Orders