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Boral Montoro Pty Ltd v Ducat

Boral Montoro Pty Ltd v Ducat

Case [2021] NSWPICMP 150 17 August 2021

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DETERMINATION OF APPEAL PANEL
CITATION:	Boral Montoro Pty Ltd v Ducat [2021] NSWPICMP 150
APPELLANT:	Boral Montoro Pty Ltd
RESPONDENT:	Natalie Claire Ducat
APPEAL PANEL:	Member Paul Sweeney Dr Julian Parmegiani Dr Michael Hong
DATE OF DECISION:	17 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Employer appeals against classification of PIRS categories of Travel and Social functioning and the application of section 323(2) to the assessed impairment; Held- the failure of the Medical Assessor (MA) to consider surveillance evidence or to explain the deterioration in the worker’s psychological functioning after she became aware of that evidence constituted error; no error in the application of section 323(2); Marks v Secretary, Department of Communities and Justice considered and distinguished; after re-examination MAC revoked and a new MAC issued reflecting the different view formed by the panel to the classification of Travel.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 February 2021, Boral Montoro Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor (MA, formerly an Approved Medical Specialist), who issued a Medical Assessment Certificate (MAC) on 1 February 2021.
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,
· 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Natalie Claire Ducat (the respondent) has a long history of psychological illness primarily arising from the breakdown of her first marriage in 2011 and ongoing disputes with her ex-husband as to the custody and upbringing of their children. These difficulties continued despite her remarriage in 2015. It is recorded that as recently as 31 March 2018 her ex-husband breached an apprehended violence order causing a recurrence of her anxiety.
Nonetheless, throughout this period the respondent continued to work as an account’s administrator at Boral Montoro Pty Ltd (the appellant) performing reasonably demanding work. At the commencement of 2018, the respondent says that she experienced changes to her previously flexible working hours. There…

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 Boral Montoro Pty Ltd v Ducat

Details

AGLC: Boral Montoro Pty Ltd v Ducat [2021] NSWPICMP 150
Case: [2021] NSWPICMP 150
Decision Date: 17 August 2021

CaseChat Overview and Summary

Boral Montoro Pty Ltd appealed against the classification of Personal Injury Rehabilitation Schedule (PIRS) categories of Travel and Social Functioning and the application of section 323(2) to the assessed impairment. The dispute was heard in the Court of Appeal of the Industrial Relations Commission of New South Wales. The legal issues before the court involved whether the Medical Assessor (MA) made an error in their assessment by not considering surveillance evidence and whether there was an error in the application of section 323(2). The court also considered the case of Marks v Secretary, Department of Communities and Justice to distinguish the current matter.

The court found that the MA's failure to consider the surveillance evidence or to explain the deterioration in the worker's psychological functioning after becoming aware of that evidence constituted an error. However, the court found no error in the application of section 323(2). The court distinguished the current matter from Marks v Secretary, Department of Communities and Justice by noting that the MA in the current case had considered the surveillance evidence but failed to explain the deterioration in the worker's psychological functioning after becoming aware of that evidence. The court found that this constituted an error and revoked the previous Medical Assessor's Certificate (MAC) and issued a new one reflecting the different view formed by the panel to the classification of Travel.

After re-examining the evidence, the court concluded that the MA's error in not considering the surveillance evidence and explaining the deterioration in the worker's psychological functioning after becoming aware of that evidence constituted an error. The court found no error in the application of section 323(2). The court distinguished the current matter from Marks v Secretary, Department of Communities and Justice by noting that the MA in the current case had considered the surveillance evidence but failed to explain the deterioration in the worker's psychological functioning after becoming aware of that evidence. The court revoked the previous MAC and issued a new one reflecting the different view formed by the panel to the classification of Travel. The final orders of the court were that the appeal be allowed in part, and a new MAC be issued reflecting the different view formed by the panel to the classification of Travel.

Orders