Borg v Patrick Stevedores Holdings Pty Ltd - [2024] NSWPICMP 20

DETERMINATION OF APPEAL PANEL
CITATION:	Borg v Patrick Stevedores Holdings Pty Ltd [2024] NSWPICMP 20
APPELLANT:	Jason Adam Borg
RESPONDENT:	Patrick Stevedores Holdings Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	15 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the psychiatric impairment rating scale for travel; Ferguson v State of New South Wales; assessment of employability; ability to perform “work like activities”; section 323 deduction in respect of previous secondary psychological injury; Mercy Centre Lavington Ltd v Kiely, Mercy Connect Limited v Kiely, and Ausgrid Management v Fisk discussed; no deduction appropriate for time limited condition from which worker had recovered; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 October 2023 Jason Borg lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Andrew McClure, a Medical Assessor, and a Medical Assessment Certificate (MAC) was issued on 11 September 2023.
Mr Borg relied on the grounds of appeal under s 327(3)(c) and (d) 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 was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Borg was employed by Patrick Stevedores Holdings Pty Ltd (Patrick) as a wharf labourer. He suffered a psychological injury as a result of interactions in the workplace, which is deemed to have been suffered on 29 March 2022.
The claim for weekly compensation, medical expenses and permanent impairment compensation was listed before a Member of the Personal Injury Commission who made consent orders on 22 March 2023. The claim for permanent impairment compensation was remitted to the President for referral to a Medical Assessor. The Medical Assessor was asked in the referral to consider if any proportion of permanent impairment was due to any previous injury or pre-existing condition or abnormality and the extent of that proportion. The referral…

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 20
Decision Date: 15 January 2024

CaseChat Overview and Summary

Borg brought an action against Patrick Stevedores Holdings Pty Ltd in the Court of Appeal of the Supreme Court of New South Wales, challenging the revocation of a Medical Assessment Certificate. The dispute centred on the assessment of Borg's psychological injury under the Workplace Injury Management and Workers Compensation Act 1998. The primary issue for the court was whether the primary judge was correct in revoking the Medical Assessment Certificate, particularly in relation to the psychiatric impairment rating scale and the assessment of Borg's employability.

The court examined the relevant legal principles, particularly the need for a precise assessment of psychiatric impairment according to the psychiatric impairment rating scale for travel. The court considered the case of Ferguson v State of New South Wales, which provided guidance on how to assess the extent of psychiatric impairment. Additionally, the court considered how employability should be assessed, specifically the ability to perform "work like activities," and the appropriateness of a section 323 deduction for a previous secondary psychological injury. The court also reviewed the cases of Mercy Centre Lavington Ltd v Kiely, Mercy Connect Limited v Kiely, and Ausgrid Management v Fisk to understand the circumstances under which a deduction for a time-limited condition may be appropriate.

The court found that the primary judge had erred in revoking the Medical Assessment Certificate. The court held that the assessment of Borg's psychiatric impairment and employability was not conducted in accordance with the required legal standards. Specifically, the court determined that the primary judge had not appropriately considered the psychiatric impairment rating scale and had misapplied the principles regarding the deduction for a time-limited condition. Consequently, the court quashed the decision of the primary judge and remitted the matter for reassessment.

The final orders of the court included the quashing of the decision to revoke the Medical Assessment Certificate and the direction that the matter be remitted for reassessment in accordance with the legal principles outlined in the judgment.

Orders