Davis v Pizza Pan Equity Group Pty Ltd - [2024] NSWPICMP 188

DETERMINATION OF APPEAL PANEL
CITATION:	Davis v Pizza Pan Equity Group Pty Ltd [2024] NSWPICMP 188
APPELLANT:	Paul Davis
RESPONDENT:	Pizza Pan Equity Group Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	3 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by attributing proportion of the appellant’s permanent impairment to secondary psychiatric condition and not including that in the degree of the appellant’s permanent impairment from the injury referred to the MA for assessment; no agreement between the parties nor determination by the Commission that the appellant had a secondary psychological injury; referral to MA described body part/system being referred as “psychological/psychiatric disorder”; Appeal Panel found that absent agreement from the parties or determination by the Commission that appellant had a secondary psychological injury, the medical dispute referred to the MA did not require the MA to assess the appellant’s impairment from a secondary psychological injury; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 December 2023 Paul Davis, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 December 2023.
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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with Pizza Pan Equity Group Pty Ltd, the respondent. On the morning of 5 July 2018 he was working as a manager at the respondent’s Pizza Hut store on Mulgoa Road. Whilst working he touched exposed electrical wires and suffered electrocution in his left hand. As a consequence of that he suffered both physical injuries and a psychological injury.
The appellant claimed compensation from the respondent’s insurer for permanent impairment from his physical injuries and also for permanent impairment from his psychological injury. With respect to his physical injury he relied on a report of pain and…

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 188
Decision Date: 3 April 2024

CaseChat Overview and Summary

The case of Davis v Pizza Pan Equity Group Pty Ltd involved an appeal against a decision regarding workers' compensation, specifically the assessment of the appellant's permanent impairment. The appellant contested the attribution of a portion of his permanent impairment to a secondary psychiatric condition by the Medical Assessor (MA), arguing it should not have been included in the degree of his permanent impairment from the injury referred to the MA for assessment. The dispute arose from the absence of agreement between the parties or a determination by the Commission that the appellant had a secondary psychological injury. The referral to the MA specified that the body part or system being referred was a "psychological/psychiatric disorder."

The central legal issue before the court was whether the MA had erred in attributing a proportion of the appellant's permanent impairment to a secondary psychiatric condition, given there was no agreement from the parties or a determination by the Commission that the appellant had such a secondary psychological injury. The appeal panel examined whether the MA's inclusion of the secondary psychiatric condition in the assessment was appropriate, considering the lack of consensus or determination regarding the existence of this secondary condition. The panel found that without such agreement or determination, the MA was not required to assess the appellant’s impairment from a secondary psychological injury.

The court upheld the Appeal Panel's reasoning, concluding that the MA had indeed erred by including the secondary psychiatric condition in the assessment. The Appeal Panel's decision was affirmed, leading to the revocation of the Medical Assessment Certificate. The court held that the MA should not have attributed a portion of the appellant's permanent impairment to the secondary psychiatric condition, as there was no basis in agreement or determination for doing so.

Orders