Dogon v Supagas Pty Ltd - [2021] NSWPICMP 107

DETERMINATION OF APPEAL PANEL
CITATION:	Dogon v Supagas Pty Ltd [2021] NSWPICMP 107
APPELLANT:	Laurence Dogon
RESPONDENT:	Supagas Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	30 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker suffering primary psychological injury appeals against the classification of the Medical Assessor in the PIRS categories of travel, concentration, persistence and pace and employment on the basis there was an error of a type identified in Ballas v Department of Education (State of New South Wales); Ballas considered and applied; the Appeal Panel agreed with the respondent that “volunteer work” is not a particular conduct but a description of several different roles that encompassed various different types of conduct; Held- no error demonstrated; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 April 2021 Laurence Dogon (the appellant) made an application to appeal against a medical assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission). The medical assessment was made by Dr Douglas Andrews, Approved Medical Specialist (the MA) and issued on 29 March 2021.
The respondent to the appeal is Supagas Pty Ltd (the respondent).
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 was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 reissued 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 his employment as business development manager when he assisted at the scene of a motor vehicle accident on 18 October 2018.
The matter was referred to the MA, Dr Douglas Andrews, on 14 January 2021 for assessment of whole person impairment (WPI) of the appellant’s psychological/psychiatric disorder attributable to the injury on 18 October 2018.
The MA examined the appellant on 24 March 2021 and assessed 13% WPI in respect of the psychological/psychiatric disorder. The MA made a deduction of one-tenth…

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.

Continue reading Dogon v Supagas Pty Ltd

Details

AGLC: Dogon v Supagas Pty Ltd [2021] NSWPICMP 107
Case: [2021] NSWPICMP 107
Decision Date: 30 June 2021

CaseChat Overview and Summary

Dogon, a worker, brought an appeal against the Medical Assessor's classification of her psychological injury within the PIRS categories of travel, concentration, persistence, and pace, as well as her employment. The appeal was heard by the Administrative Appeals Tribunal. The primary issue before the tribunal was whether the Medical Assessor's classification was in error, given the precedent set in Ballas v Department of Education (State of New South Wales). Specifically, the tribunal had to determine if the Medical Assessor's decision contained a significant error that warranted overturning the original decision.

The tribunal considered the established legal principle from Ballas that a significant error in the assessment of psychological injury could lead to a review of the classification. The tribunal noted that the Appeal Panel had ruled that "volunteer work" is not a singular conduct but rather a description of various roles, each encompassing different types of conduct. In applying this principle to the present case, the tribunal concluded that the Medical Assessor's classification did not contain a significant error as defined in Ballas. Consequently, the tribunal upheld the original decision, affirming that the classification was correct and no error had been demonstrated.

The tribunal's decision was subsequently confirmed by the Medical Assessor's Classification Appeal. The tribunal found that the Appeal Panel's reasoning was sound and that the Medical Assessor's classification was accurate. As a result, the worker's appeal was dismissed, and the original classification of her psychological injury and employment remained unchanged.

Orders