Burnell v Response Security Services Pty Ltd - [2024] NSWPICMP 558

DETERMINATION OF APPEAL PANEL
CITATION:	Burnell v Response Security Services Pty Ltd [2024] NSWPICMP 558
APPELLANT:	Kieran Burnell
RESPONDENT:	Response Security Services Pty Ltd
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	9 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Psychiatric injury claim; whether additional evidence admissible from claimant seeking to clarify findings by Medical Assessor (MA); whether MA conflated psychiatric impairment rating scale (PIRS) categories in assessment of travel and employability; observations on purpose of Chapter 11.11 of SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 and that evidence explaining motivation for behaving in a manner inconsistent with claimant’s statement of no relevance; substantive submissions regarding employability no more than conclusive self-report, observations as to function of MA; Wingfoot Australia Pty Ltd v Kocak and Lukacevic v Coates Hire Operations Pty Limited considered and applied; multiple references to Ballas v Department of Education (State of NSW) by claimant unclear in purpose or particularity and relevance doubted; Diaz v Sydney International Container Terminals Pty Ltd referred to; Held – application to admit fresh evidence rejected as evidence relied on could reasonably have been obtained prior to the medical assessment; proposed fresh evidence not prima facie probative as it was inherently contradictory and contradictions not traversed; substantive appeal regarding travel rejected; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 March 2024 the appellant, Kieran Burnell, lodged an Application to Appeal Against a decision of a Medical Assessment Certificate (MAC) issued on 7 February 2024 which had been issued by Dr Surabhi Verma, a Medical Assessor. The Medical Assessor had issued an earlier MAC dated 28 August 2023 (M1-W2523/23) in which she found that maximum medical improvement had not been reached. An application seeking a reconsideration of that MAC resulted in the matter being referred back to the Medical Assessor pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and the present appeal concerns the aforementioned MAC of 7 February 2024 (M2-W2523/23).
On 25 March 2024 the respondent, Response Security Services Pty Ltd, lodged a Notice of Opposition to Appeal against the decision of the Medical Assessor.
As the Notice of Opposition raised additional grounds of appeal, a Direction was issued on 28 March 2024, directing the respondent to lodge and serve a separate Application to Appeal Against a Decision of Medical Assessor by 5:00pm on 4 April 2024.
The respondent did not lodge a separate appeal application by 4 April 2024.
On 5 April 2024, the solicitors for the respondent emailed the Personal Injury Commission (Commission), advising: “The respondent agrees for the appeal to progress without consideration of the additional grounds of appeal raised within the Notice of Opposition”.
The appellant relies on the following grounds of appeal under s 327(3) of the 1998 Act:
· availability of additional relevant information (being additional information that was not available to, and that could not…

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 Burnell v Response Security Services Pty Ltd

Details

AGLC: Burnell v Response Security Services Pty Ltd [2024] NSWPICMP 558
Case: [2024] NSWPICMP 558
Decision Date: 9 August 2024

CaseChat Overview and Summary

The applicant, Burnell, sought to have the decision of a Medical Assessor (MA) regarding psychiatric injury and impairment reviewed, challenging the MA's conclusions about her ability to travel and her employability. The dispute was heard in the New South Wales Civil and Administrative Tribunal. The central legal issues were whether the tribunal could admit additional evidence from the claimant to clarify findings by the MA and whether the MA had correctly assessed the claimant's ability to travel and employability by appropriately applying the psychiatric impairment rating scale.

The tribunal considered the purpose of Chapter 11.11 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment and observed that the claimant's evidence explaining motivation for behaving inconsistently with her statement was not relevant. The tribunal found that the evidence upon which the claimant sought to rely could reasonably have been obtained before the MA's assessment and that the proposed fresh evidence was inherently contradictory and not sufficiently traversed. The tribunal rejected the appeal concerning the claimant's ability to travel and confirmed the MA's assessment certificate.

The tribunal noted that the claimant's submissions regarding employability were based solely on self-report and did not provide a basis to overturn the MA's findings. The tribunal applied the decisions in Wingfoot Australia Pty Ltd v Kocak and Lukacevic v Coates Hire Operations Pty Limited, and considered that the claimant's multiple references to Ballas v Department of Education (State of NSW) lacked clarity, particularity, and relevance. The tribunal also referred to Diaz v Sydney International Container Terminals Pty Ltd in its reasoning. Ultimately, the tribunal dismissed the claimant's application to admit fresh evidence and to overturn the MA's assessment, confirming the MA's certificate as correct.

Orders