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Camden Council v Harle

Camden Council v Harle

Case [2022] NSWPICMP 339 23 August 2022

Appeal

Admissibility of Evidence

Medical Assessor

Fiduciary Duty

Unconscionable Conduct

Workers Compensation Law

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DETERMINATION OF APPEAL PANEL
CITATION:	Camden Council v Harle [2022] NSWPICMP 339
APPELLANT:	Camden Council
RESPONDENT:	Carolyn Harle
Appeal Panel:	Member John Wynyard Medical Assessor Patrick Morris Medical Assessor Michael Hong
DATE OF DECISION:	23 August 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction of 1/10th; whether reliance on statutory presumption of section 323(2) of the 1998 Act erroneous; whether the Medical Assessor (MA) gave adequate reasons; whether MA applied incorrect test; Held — MA failed to consider large body of evidence that showed worker was already under psychiatric care when she commenced employment; MA made error of fact and applied incorrect criteria in applying the statutory 1/10th deduction pursuant to section 38(2) of Workers Compensation Act 1987 as no shortage of medical evidence already before him as to the pre-existing condition which was at odds with the 1/10th assessment; MA failed to give adequate reasons as to the deduction accordingly; Western Sydney Local Health District v Chan and Campbelltown City Council v Vegan applied; MA applied wrong test in considering whether the employment injury had significantly aggravated the worker’s pre-existing condition rather than determining whether the pre-existing condition had itself caused a deductable impairment; Ryder v Sundance Bakehouse applied; Held — Medical Assessment Certificate revoked; consideration of tension between section 323 of the 1998 Act and Chapter 11.10 of the Workers Compensation Guidelines (Guidelines); written submissions called for; Marks v Secretary, Department of Communities and Justice (No 2), Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd and Ryder v Sundance Bakehouse Pty Ltd considered; Chapter 11.10 of the Guidelines found to be inconsistent with section 323 of the 1998 Act; section 323(1) of the 1998 Act applied and deduction increased to 20%.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 December 2021 Camden Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Christopher Bench, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 22 November 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 ground(s) of appeal on which the appeal is made.
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 the PIC Rules.
The assessment…

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 Camden Council v Harle

Details

AGLC: Camden Council v Harle [2022] NSWPICMP 339
Case: [2022] NSWPICMP 339
Decision Date: 23 August 2022

CaseChat Overview and Summary

Camden Council has appealed against a decision of the Medical Assessor (MA) to reduce the level of a workers compensation claim by 1/10th under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The MA had based his decision on a statutory presumption under section 323(2) of the 1998 Act, which Camden Council contends was erroneous. The MA also failed to provide adequate reasons for his decision and applied an incorrect test when determining the percentage of the claimant's impairment attributable to her employment injury. The Local, District and Magistrates Court heard the appeal and considered the arguments presented by both parties.

The primary legal issue before the court was whether the MA had erred in his application of the statutory presumption under section 323(2) of the 1998 Act. Camden Council argued that the MA failed to consider a large body of evidence which indicated that the claimant was already under psychiatric care when she commenced employment. The MA made an error of fact and applied the incorrect criteria in applying the statutory 1/10th deduction pursuant to section 38(2) of the Workers Compensation Act 1987. The court found that there was no shortage of medical evidence before the MA as to the pre-existing condition which was at odds with the 1/10th assessment. The MA also failed to give adequate reasons as to the deduction accordingly. The court held that the MA applied the wrong test in considering whether the employment injury had significantly aggravated the worker’s pre-existing condition, rather than determining whether the pre-existing condition had itself caused a deductible impairment.

In its decision, the court found that the MA had erred in his application of the statutory presumption under section 323(2) of the 1998 Act, and that the MA had failed to provide adequate reasons for his decision. The court also found that the MA had applied an incorrect test in determining the percentage of the claimant's impairment attributable to her employment injury. Accordingly, the court revoked the Medical Assessment Certificate and found that Chapter 11.10 of the Workers Compensation Guidelines was inconsistent with section 323 of the 1998 Act. The court applied section 323(1) of the 1998 Act and increased the deduction to 20%. The court called for written submissions from both parties on the tension between section 323 of the 1998 Act and Chapter 11.10 of the Guidelines.

Orders