Dib v Sydney Tools Pty Ltd - [2024] NSWPICMP 542

DETERMINATION OF APPEAL PANEL
CITATION:	Dib v Sydney Tools Pty Ltd [2024] NSWPICMP 542
APPELLANT:	Mounir Dib
RESPONDENT:	Sydney Tools Pty Ltd
APPEAL PANEL
MEMBER:	John Isaksen
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	6 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; worker challenges assessments of the psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, social and recreational activities, and social functioning; Held – demonstrable error in assessment of self-care and personal hygiene only; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 March 2024 the appellant, Mounir Dib, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 February 2024.
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):
· 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

Mr Dib sustained a psychological injury in the course of his employment with the respondent, Sydney Tools Pty Limited, as a result of having to work with an increased workload, with undue expectations, micromanagement, and constant belittlement from his work colleagues.
Mr Dib states that he ceased work in September 2021 due to his psychological injury and has not worked since.
Mr Dib has not had any treatment from a psychiatrist, but has attended Lynette de Salis, psychologist, for counselling and strategies to control some of his psychological symptoms.
Mr Dib made a claim for a lump sum payment for 15% whole person impairment (WPI) based upon an assessment made by Dr Rastogi, consultant psychiatrist, in a report dated 20 January 2023.
The allocation of classes in the PIRS categories made by Dr Rastogi was as follows:
Self care and personal hygiene Mild impairment Class…

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 542
Decision Date: 6 August 2024

CaseChat Overview and Summary

In this case, Dib, a worker, filed an appeal against Sydney Tools Pty Ltd regarding the assessment of whole person impairment for a psychological injury sustained at work. The matter was heard in the court which was vested with jurisdiction under the Workplace Injury Management and Workers Compensation Act 1998. The primary focus of the dispute was the validity of certain assessments made using the psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, social and recreational activities, and social functioning. The worker contested the findings, claiming that there were errors in the evaluation of these aspects of his psychological impairment.

The legal issues at hand involved determining whether the assessments made by the medical professionals were accurate and whether any errors were substantial enough to warrant a revocation of the Medical Assessment Certificate. The court was tasked with reviewing the assessments and identifying any discrepancies or flaws in the evaluation process. The primary contention was whether the errors were significant enough to invalidate the assessments and whether the revocation of the certificate was warranted. The court had to balance the worker’s right to a fair assessment with the employer’s responsibility to ensure accurate evaluations.

The court found that there was a demonstrable error in the assessment of self-care and personal hygiene. This error was significant enough to warrant the revocation of the Medical Assessment Certificate. However, the court did not find any substantial errors in the assessments for social and recreational activities or social functioning. Therefore, these parts of the certificate were upheld. The court concluded that the errors identified were critical and affected the overall assessment of the worker's impairment, justifying the revocation of the certificate for the flawed component. The decision highlighted the importance of accuracy in psychological injury assessments and the consequences of errors in such evaluations.

Orders