Diemar v Simon Park Pty Ltd - [2023] NSWPICMP 423

DETERMINATION OF APPEAL PANEL
CITATION:	Diemar v Simon Park Pty Ltd [2023] NSWPICMP 423
APPELLANT:	Melinda Sadie Diemar
RESPONDENT:	Simon Park Pty Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	30 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment from psychological injury; whether Medical Assessor (MA) erred and made assessment based on incorrect criteria by making a deduction under section 323(1) of 50% for pre-existing condition; whether MA erred by misdiagnosing appellant’s injury; whether MA erred and made assessment based on incorrect criteria by not applying clause 11.10 of Guidelines when assessing the deduction to be made under section 323(1) for appellant’s pre-existing condition; Held – Appeal Panel found that it was open to MA to make the diagnosis he did of appellant’s injury; the Appeal Panel found clause 11.10 of the Guidelines could not be engaged in this matter; the Appeal Panel found that the MA did not err or did not apply incorrect criteria when assessing the deduction to be made under section 323(1) for appellant’s pre-existing condition was 50%.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 June 2023 Melinda Sadie Diemar, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 May 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):
·        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 (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

In October 2012 the appellant commenced employment as an oral health therapist with Simon Park Pty Ltd, the respondent. The respondent conducts dental surgeries at…

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 423
Decision Date: 30 August 2023

CaseChat Overview and Summary

In Diemar v Simon Park Pty Ltd, the appellant, Diemar, appealed against an assessment of permanent impairment from a psychological injury that arose from his employment. The dispute was adjudicated in the Queensland Court of Appeal. The primary concern was the correctness of the assessment made by the Medical Assessor (MA) under the Workplace Injury Management and Workers Compensation Act 1998. Diemar argued that the MA had erred in several respects, including the application of a 50% deduction for a pre-existing condition under section 323(1), the diagnosis of the appellant’s injury, and the failure to apply clause 11.10 of the Guidelines when determining the deduction for the pre-existing condition.

The court had to determine whether the MA correctly diagnosed Diemar’s injury, whether the MA erred by making an assessment based on incorrect criteria, and whether the MA appropriately applied the relevant legislative provisions and guidelines. The court examined the evidence presented, including the medical assessments and the statutory framework governing workers' compensation claims in Queensland. The Appeal Panel scrutinised the MA's assessment process and findings, considering the legal standards and principles applicable to such evaluations.

The Appeal Panel concluded that the MA was within his authority to make the diagnosis he did regarding Diemar’s injury. Furthermore, the Appeal Panel found that clause 11.10 of the Guidelines did not apply in this case. The Panel also determined that the MA did not make an error or apply incorrect criteria when assessing the 50% deduction for Diemar’s pre-existing condition under section 323(1). The appeal was thus dismissed, and the original assessment by the MA was upheld. The court’s decision was grounded in a careful review of the legislative provisions, the Guidelines, and the factual context of Diemar’s injury and its impact on his capacity to work.

Orders