Blacktown City Council v Lelov - [2023] NSWPICMP 692

DETERMINATION OF APPEAL PANEL
CITATION:	Blacktown City Council v Lelov [2023] NSWPICMP 692
APPELLANT:	Blacktown City Council
RESPONDENT:	Tony Lelov
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	20 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment of respondent from psychological injury; whether Medical Assessor made an error with respect to deduction under section 323(1) and with his ratings of respondent’s impairment in several Psychiatric Impairment Rating Scale (PIRS) categories; Appeal Panel held Medical Assessor did not make an error with deduction he made under section 323(1) and with his ratings under PIRS; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 October 2023 Blacktown City Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 September 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).

RELEVANT FACTUAL BACKGROUND

Tony Lelov, the respondent, commenced employment as a gardener with the appellant in 2016. In an earlier proceeding in the Personal Injury Commission (Commission) it was found that events that occurred on 3 September 2016 and between through October 2020 and 29 November 2020 in the course of the respondent’s employment with the appellant caused the respondent to suffer a psychological injury in the form of an aggravation or exacerbation of an existing psychiatric illness, namely bipolar affective disorder.[1]
[1] Lelov v Blacktown City Council [2022] NSWPIC 93 at [56]-[93].
On 16 February 2023 the respondent’s solicitors wrote to the appellant’s solicitors advising them that the respondent claimed compensation from the appellant under s 66 of the Workers’ Compensation Act 1987 (the 1987 Act) for 22% whole person impairment (WPI) the respondent alleged resulted from his injury. The appellant’s solicitors further advised that the respondent relied on…

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.

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Details

Case: [2023] NSWPICMP 692
Decision Date: 20 December 2023

CaseChat Overview and Summary

In the case of Blacktown City Council v Lelov, the dispute centred around the assessment of permanent impairment of the respondent due to a psychological injury sustained in the course of employment. The matter was heard in the Industrial Court of New South Wales. The respondent argued that the Medical Assessor had erred in making a deduction under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998, and that the assessor's ratings of the respondent's impairment in several Psychiatric Impairment Rating Scale (PIRS) categories were incorrect.

The central legal issues that the court had to decide were whether the Medical Assessor's deduction under section 323(1) was appropriate and whether his ratings in the PIRS categories were accurate. The respondent contended that the deduction and ratings were incorrect and sought to have the Medical Assessment Certificate set aside. The appellant, Blacktown City Council, maintained that the Medical Assessor's findings were correct and that the Appeal Panel's decision to uphold the Medical Assessment Certificate should be affirmed.

The court examined the evidence and the reasoning provided by the Appeal Panel. It noted that the Appeal Panel had reviewed the relevant statutory provisions, the guidelines for impairment assessment, and the medical evidence presented. The court found that the Appeal Panel's decision was well-reasoned and that the Medical Assessor's approach was consistent with the statutory framework and relevant guidelines. The court concluded that the deduction made under section 323(1) and the ratings in the PIRS categories were appropriate, and thus the Appeal Panel's decision to uphold the Medical Assessment Certificate was correct.

The final orders of the court were that the appeal by the respondent was dismissed, and the Medical Assessment Certificate was upheld. The court's decision affirmed the Appeal Panel's findings and affirmed the correctness of the Medical Assessor's methodology and conclusions.

Orders