De Angelis v Solaris Paper Pty Ltd - [2023] NSWPICMP 124

DETERMINATION OF APPEAL PANEL
CITATION:	De Angelis v Solaris Paper Pty Ltd [2023] NSWPICMP 124
APPELLANT:	Sophy De Angelis
RESPONDENT:	Solaris Paper Pty Ltd
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	3 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; impairment resulting from primary psychological injury; worker appealed five of the six psychiatric impairment rating scale (PIRS) categories and deduction made pursuant to section 323; Panel satisfied that there was no error or application of incorrect criteria in four of the five PIRS categories but an error in the assessment of employability; Panel found error in deduction made pursuant to section 323 as made on the basis of an assumption; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 February 2023 Sophy De Angelis (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
30 January 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 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.
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

The appellant developed a primary psychological injury in the course of her employment with Solaris Paper Pty Ltd (the respondent) as a Human Resources manager.
The appellant commenced proceedings in the Personal Injury Commission (the Commission) claiming 22% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 26 February 2021
The Medical Assessor examined the appellant on 23 January 2023 through video link.…

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 124
Decision Date: 3 April 2023

CaseChat Overview and Summary

The applicant, De Angelis, appealed the findings of the respondent, Solaris Paper Pty Ltd, concerning the assessment of his psychiatric impairment and the resulting deduction from his workers' compensation benefits. The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues in this case were whether there was an error or incorrect application of criteria in the assessment of the applicant's psychiatric impairment, as well as whether the deduction made under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was justified.

The Panel found that while there was no error or incorrect application of criteria in four out of the five psychiatric impairment rating scale (PIRS) categories, an error was present in the assessment of employability. The Panel noted that the error in the employability assessment did not impact the overall conclusion that the applicant had a 40% psychiatric impairment. Regarding the deduction made under section 323, the Panel determined that the error was due to an assumption made by the respondent, which led to an unjustified deduction from the applicant's benefits. Consequently, the Panel revoked the Medical Assessment Certificate and found that the deduction was not warranted.

Given the findings, the Panel ordered that the Medical Assessment Certificate be revoked, and the deduction made under section 323 be reversed. The Panel also directed the parties to negotiate a revised Medical Assessment Certificate that accurately reflected the applicant's psychiatric impairment and any resulting adjustments to his benefits.

Orders