BMY v Mullungeen Pty Ltd - [2024] NSWPICMP 489

DETERMINATION OF APPEAL PANEL
CITATION:	BMY v Mullungeen Pty Ltd [2024] NSWPICMP 489
APPELLANT:	BMY
RESPONDENT:	Mullungeen Pty Ltd
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Doug Andrews
DATE OF DECISION:	24 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; primary and secondary psychological injury; application of section 65A; how impairment is to be calculated where there is a secondary psychological injury; Mercy Centre Lavington Ltd v Kiely & Ors and Mercy Connect Limited v Kiely considered; consideration of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines).; whether adequate reasons had been provided; Held – no requirement in the Guidelines or section 65A to conduct separate psychiatric impairment rating scale (PIRS) assessments; open to Medical Assessor to indicate a percentage contribution from primary and secondary injuries; adequate reasons provided; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 May 2024 BMY (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 April 2024.
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.
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

BMY was employed as a waiter with Mullungeen Pty Ltd (the respondent). At the time of his injury he was working at the Orchard Hotel in Chatswood. He fell on some stairs, injuring his back, on 4 April 2019. At the time of his injury he experienced, pain, anxiety and difficulty walking, and was advised to go to hospital via ambulance. He underwent treatment for his physical injuries including with a pain clinic. His physical health deteriorated significantly following the injury and he is in chronic pain because of it.
BMY brought a claim for lump sum compensation to the Personal Injury Commission (Commission). That claim proceeded through the dispute resolution pathway, ultimately resulting…

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: [2024] NSWPICMP 489
Decision Date: 24 July 2024

CaseChat Overview and Summary

The applicant in this case sought compensation for primary and secondary psychological injuries sustained during their employment. The case was heard in the Workers Compensation Magistrate Court of New South Wales. The primary issue before the court was whether the Medical Assessor had provided adequate reasons for the assessment of the applicant's psychological injuries, particularly in relation to the calculation of impairment where both primary and secondary injuries were present. The court also considered the relevant legislative and guideline provisions, specifically section 65A of the Workers Compensation Act 1987 and the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, dated 1 March 2021.

The court examined the legislative framework and the guidelines to determine whether they mandated separate psychiatric impairment rating scale (PIRS) assessments for primary and secondary injuries. It noted that the guidelines did not require separate assessments and that it was permissible for the Medical Assessor to indicate a percentage contribution from both primary and secondary injuries. The court found that the Medical Assessor had provided adequate reasons for their assessment, as they had considered the guidelines and had followed a reasonable approach in calculating the impairment.

In light of the above, the court held that the Medical Assessor had not erred in their assessment of the applicant's psychological injuries. The court confirmed the Medical Assessment Certificate, which outlined the percentage of impairment resulting from both primary and secondary injuries. This decision underscores the importance of following the relevant guidelines and legislative provisions when assessing workers' compensation claims for psychological injuries, and that separate assessments are not always required.

Orders