BGW v Constel Pty Ltd - [2023] NSWPICMP 355

DETERMINATION OF APPEAL PANEL
CITATION:	BGW v Constel Pty Ltd [2023] NSWPICMP 355
APPELLANT:	BGW
RESPONDENT:	Constel Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	26 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Whether Medical Assessor (MA) erred by making a deduction of 50% under section 323(1) for the proportion of appellant’s permanent impairment due to pre-existing conditions; whether the MA erred by not assuming, under section 323(2), that the deductible proportion was 10%; Appeal Panel found that MA had concluded that making an assumption under section 323(2) that deductible proportion was 10% would be at odds with the evidence and Appeal Panel considered MA was correct to so conclude; Held – Appeal Panel found MA did not err by assessing deductible proportion was 50%; Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 May 2023 BGW, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 April 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 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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with Constel Pty Ltd, the respondent, as a medical assistant on 12 November 2018. Due to conflict that occurred between her and her manager in the course of her employment she suffered a psychological injury on 20 October 2021.
On 4 October 2022 her solicitors wrote to the respondent’s insurer notifying it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 (1987 Act) in the amount of $60,450 for 22% whole person impairment (WPI) from her injury. The appellant’s solicitors attached a copy of a report of consultant psychiatrist Dr Assad Saboor dated 21 September 2022 in support of the appellant’s claim. Dr…

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 BGW v Constel Pty Ltd

Details

AGLC: BGW v Constel Pty Ltd [2023] NSWPICMP 355
Case: [2023] NSWPICMP 355
Decision Date: 26 July 2023

CaseChat Overview and Summary

The case of BGW v Constel Pty Ltd involved the appellant, BGW, appealing a decision by a Medical Assessor (MA) concerning workers compensation. The dispute centred on the proportion of BGW’s permanent impairment attributable to pre-existing conditions and the resultant deduction made under section 323(1). The appeal was heard by the Appeal Panel who were tasked with determining whether the MA had erred in making the deduction and whether they had erred in not assuming, under section 323(2), that the deductible proportion was 10%. The Appeal Panel concluded that the MA had not erred in their assessment and that their conclusion that a 10% assumption would be inconsistent with the evidence was correct.

The legal issues the court needed to address were twofold. First, whether the MA had correctly determined that the proportion of permanent impairment attributable to pre-existing conditions was 50% and, second, whether the MA was justified in not making an assumption under section 323(2) that the deductible proportion was 10%. The court examined the evidence provided to the MA and the rationale behind the MA’s conclusions. It was crucial for the court to understand the statutory framework governing these deductions and the extent to which the MA had discretion in interpreting the evidence.

The Appeal Panel found that the MA had appropriately assessed the proportion of permanent impairment attributable to pre-existing conditions as 50%. They held that the MA’s decision not to assume that the deductible proportion was 10% was consistent with the evidence and did not constitute an error. The Appeal Panel determined that the MA’s conclusion that making such an assumption would be at odds with the evidence was correct and, therefore, the MA did not err in their assessment. As a result, the Medical Assessment Certificate was upheld, and the appeal was dismissed. The reasoning and outcome of the Appeal Panel reflect a careful consideration of the statutory provisions and the evidence before the MA.

Orders