Burwood Council v Viney - [2023] NSWPICMP 192

DETERMINATION OF APPEAL PANEL
CITATION:	Burwood Council v Viney [2023] NSWPICMP 192
APPELLANT:	Burwood Council
RESPONDENT:	Giuseppina (Pina) Viney
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	8 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; application to admit statement after medical examination declined; Lukacevic v Coates Hire Operations and Pitsonas v Registrar of the Workers Compensation Commission discussed; failure to refer to employer’s medical reports; section 352(2), State of NSW v Kaur; assessment under psychiatric impairment rating scale (PIRS); Ferguson v State of NSW, Parker v Select Civil and Ballas v Department of Education discussed; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 March 2023 Burwood Council (the Council) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 February 2023.
The Council relies 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 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.
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

Ms Viney was employed by the Council as the Manager – Governance. She suffered a psychological injury which is deemed to have occurred on 3 March 2022, being the date on which she made a claim for permanent impairment compensation. Ms Viney said that she suffered injury as a result of her interactions with an employee whom she managed.
On 8 July 2021, after a contested hearing, a member of the Personal Injury Commission (the Commission) determined that Ms Viney had suffered a psychological injury with a deemed date of 8 November 2019 and that the injury was not wholly or predominantly caused by the Council’s reasonable action with respect to performance appraisal or discipline. The Member found that Ms Viney’s capacity for employment at…

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 192
Decision Date: 8 May 2023

CaseChat Overview and Summary

Burwood Council took action against Ms Viney, seeking to have a Medical Assessment Certificate (MAC) confirmed. The dispute arose after Ms Viney suffered a psychological injury, leading to a claim for workers' compensation. The case was heard in the Industrial Court of New South Wales. The primary legal issue was whether the MAC, which assessed Ms Viney's psychological injury, should be confirmed. Specifically, the court had to determine whether the medical assessment accurately reflected Ms Viney's condition and whether the process adhered to statutory requirements.

The court examined the admissibility of the statement obtained from Ms Viney after the medical examination. It noted the principles from Lukacevic v Coates Hire Operations and Pitsonas v Registrar of the Workers Compensation Commission, considering whether the failure to refer to the employer's medical reports was a significant procedural error. The court also referenced section 352(2) from the case of State of NSW v Kaur to assess the procedural fairness of the process. Furthermore, the court looked at various assessments under the psychiatric impairment rating scale (PIRS) from Ferguson v State of NSW, Parker v Select Civil, and Ballas v Department of Education, to ensure the MAC was based on a comprehensive evaluation of Ms Viney's condition.

In its reasoning, the court found that the MAC was confirmed, as it was supported by a thorough assessment and adhered to statutory requirements. The court concluded that the process was procedurally fair, and the medical assessment accurately reflected Ms Viney's psychological injury. The evidence presented, including the assessment under the psychiatric impairment rating scale, was deemed sufficient to support the MAC. The court dismissed any procedural errors, finding they did not prejudice the outcome of the case.

The final orders confirmed the MAC, affirming Ms Viney's entitlement to workers' compensation for her psychological injury. The court's decision provided clarity on the procedural requirements for confirming a MAC in cases involving psychological injuries.

Orders