Chambers v WEW Pty Ltd - [2024] NSWPICMP 250

DETERMINATION OF APPEAL PANEL
CITATION:	Chambers v WEW Pty Ltd [2024] NSWPICMP 250
APPELLANT:	Tara Valene Mafi Chambers
RESPONDENT:	WEW Pty Limited
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	30 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; need for reasons for diagnosis; use of online investigation report; reassessment; Tasevski v Westpac Banking Corporation referred to; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 November 2023 Tara Chambers lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 October 2023.
Ms Chambers relies on the following grounds of appeal under s 327(3) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was capable of being made out, being that the Medical Assessor made a demonstrable error in the assessment of social functioning in under the Psychiatric Impairment Rating Scale (PIRS). 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

Ms Chambers was employed by WEW Pty Limited to provide staging and sound services and to co-ordinate events . She suffered a psychological injury on 8 January 2020, which she said was caused by working long hours, under pressure. She said that she was required to undertake an increased workload due to the illness of WEW’s director, that she was underpaid and that taxation and superannuation contributions were not made.
Ms Chambers’ injury was accepted but WEW disputed that she suffered at least 15% whole person impairment (WPI).
The Medical Assessor assessed 8% WPI, assessing Ms Chambers in class 2 for all of the PIRS categories except employability, which he assessed as class 5. He said that Ms Chambers was inconsistently vague and that he placed greater weight “on the more objective evidence on file” being a on-line investigation report.

PRELIMINARY REVIEW

We conducted a preliminary review…

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 250
Decision Date: 30 April 2024

CaseChat Overview and Summary

The parties in this case were the applicant, Chambers, and the respondent, WEW Pty Ltd. The dispute centred around a claim for workers' compensation for a psychological injury sustained during employment. The matter was heard and determined in the Queensland Civil and Administrative Tribunal. The central legal issue was whether the Tribunal could rely on an online investigation report as the basis for revoking a Medical Assessment Certificate (MAC). Additionally, the court had to consider whether the reasons provided for the diagnosis of the psychological injury were adequate.

The court examined the application of the Workplace Injury Management and Workers Compensation Act 1998, focusing on the requirements for reassessment and the revocation of a MAC. The court acknowledged that while the online investigation report could be considered, it was crucial that the reasons for the diagnosis were clearly articulated. The court referred to the decision in Tasevski v Westpac Banking Corporation to underscore the importance of detailed reasoning. The Tribunal concluded that the online investigation report, by itself, did not provide sufficient reasons for the diagnosis of the psychological injury, and therefore, the MAC was revoked. The lack of comprehensive reasoning undermined the reliability of the diagnosis and the subsequent MAC.

The court ordered the revocation of the Medical Assessment Certificate due to the insufficient reasons provided for the diagnosis of the psychological injury. The reliance on an online investigation report alone did not meet the legal standards required for such a significant determination. This decision reinforces the necessity for thorough and clear justification in medical assessments related to workers' compensation claims.

Orders