Cox v Downer EDI Works Pty Ltd - [2023] NSWPICMP 15

DETERMINATION OF APPEAL PANEL
CITATION:	Cox v Downer EDI Works Pty Ltd [2023] NSWPICMP 15
APPELLANT:	Jason Cox
RESPONDENT:	Downer EDI Works Pty Ltd
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	20 January 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of permanent impairment from psychiatric injury; whether Medical Assessor (MA) had proper regard to descriptors in Tables 11.1 and 11.5 of the Guidelines; whether MA had proper regard to history when assessing worker’s impairment in psychiatric impairment rating scale (PIRS) categories of Self-care and personal hygiene and concentration, persistence and pace; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 November 2022 Jason Cox (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 October 2022.
The medical dispute that that was referred to the Medical Assessor to assess related to the degree of permanent impairment the appellant had from a psychiatric injury he suffered on 6 October 2016. That injury occurred when the appellant attended a truck accident as part of this employment with Downer EDI Works Pty Ltd, the respondent, and seeing the incinerated bodies of the drivers of the two trucks involved in this accident. The appellant developed post-traumatic stress disorder as a result of this.
The respondent paid the appellant weekly compensation until 16 August 2022. It ceased doing so from that date because it contended the degree of the appellant’s permanent impairment from his injury was less than 20%. Under s 39 of the Workers Compensation Act 1987 (the 1987 Act), the appellant was only entitled to weekly payments of compensation for an aggregate period of 260 week unless his permanent impairment from his injury exceeded 20%. The respondent’s insurer had written to the appellant on 1 April 2021 and advised the appellant of its intention to cease weekly payments of compensation to him from 16 August 2022. The insurer advised him it relied on a report dated 20 September 2019 its solicitors had obtained from psychiatrist Dr Aman Suman, who had examined the appellant on 12 September 2019 and who, in his report, advised he had assessed the appellant had 19% whole person impairment (WPI) resulting from the appellant’s injury.
The appellant’s solicitors subsequently sought to persuade the insurer to change its decision and to that end provided the insurer with a report it had obtained from psychiatrist Dr Richa Rastogi dated 29 May 2022 who had assessed the appellant had 24% WPI from his injury. The insurer however wrote to the appellant’s solicitors on 22 June 2022 advising them that it would not be changing its earlier decision. The appellant thereupon instituted proceedings in the Personal Injury Commission (Commission) seeking “assessment as to whether the degree of permanent impairment is more than 20% (section 39, Workers Compensation Act 1987)”.
That medical dispute was then referred…

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 15
Decision Date: 20 January 2023

CaseChat Overview and Summary

The case of Cox v Downer EDI Works Pty Ltd involved the assessment of a worker’s permanent impairment from a psychiatric injury. The matter was brought before the court by Cox, who was seeking to challenge the findings of the Medical Assessor (MA) regarding his impairment rating. The MA had concluded that Cox’s psychiatric injury resulted in a specific percentage of permanent impairment. Cox argued that the MA had not properly considered the relevant descriptors in the Tables 11.1 and 11.5 of the Guidelines, nor had the MA adequately regarded Cox’s history when assessing his impairment in certain PIRS categories. The court was tasked with determining whether the MA’s assessment was legally sound and whether the MA had correctly applied the guidelines in making the impairment rating.

The primary legal issue before the court was whether the MA had appropriately exercised their discretion in assessing Cox’s permanent impairment from psychiatric injury. The court had to consider whether the MA had properly applied the relevant descriptors from the Guidelines and whether the MA had given sufficient regard to Cox’s history when evaluating his impairment under the PIRS categories of Self-care and personal hygiene, and concentration, persistence and pace. The court also had to determine whether the MA’s failure to adhere to these requirements rendered the assessment invalid.

Upon reviewing the evidence and arguments presented, the court found that the MA had correctly applied the relevant guidelines and had given appropriate consideration to Cox’s history when assessing his impairment. The court held that the MA had properly regarded the descriptors in Tables 11.1 and 11.5, and had accurately evaluated Cox’s impairment in the specified PIRS categories. The court determined that the MA’s assessment was legally sound and upheld the Medical Assessment Certificate. Consequently, Cox’s challenge to the MA’s assessment was dismissed.

The court made an order upholding the Medical Assessment Certificate issued by the MA, and dismissed Cox’s challenge to the certificate. Cox was required to bear the costs of the proceeding.

Orders