Dolan v Health Services Union NSW - [2023] NSWPICMP 637

DETERMINATION OF APPEAL PANEL
CITATION:	Dolan v Health Services Union NSW [2023] NSWPICMP 637
APPELLANT:	Lisa Dolan
RESPONDENT:	Health Services Union NSW
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	4 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the deduction of 50% Medical Assessor (MA) made under section 323(1) for the proportion of the appellant’s permanent impairment that was due to a pre-existing condition was correct; Appeal Panel held that based on the evidence and for the reasons MA explained making an assumption under section 323(2) that the deductible proportion is 10% would be at odds with the evidence; Appeal Panel held that based on the evidence and for the reasons MA explained it was open to the MA to make a deduction of 50% under section 323(1); Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 August 2023 Lisa Dolan, 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 31 July 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 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).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with Health Services Union NSW, the respondent, on 27 January 2015. Due to stressors to which she was subjected in her employment thereafter she suffered a psychological injury.
Consultant psychiatrist Dr Ben Teoh examined the appellant via an audio-visual link on
7 August 2020 at the request of her solicitors. He provided a report to her solicitors on that day in which he advised he diagnosed the appellant’s injury was chronic adjustment disorder which mixed anxious and depressed mood. His diagnosis was based on the DSM5 Diagnostic Criteria. He said the appellant’s injury was a result of her employment with the respondent. He said that the appellant had a pre-existing psychiatric…

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 637
Decision Date: 4 December 2023

CaseChat Overview and Summary

The case of Dolan v Health Services Union NSW involved the appellant, Mr. Dolan, appealing a decision made by the Medical Assessor (MA) who deducted 50% of his permanent impairment assessment due to a pre-existing condition. The Health Services Union NSW was the respondent in this case, which was heard by the Industrial Commission of New South Wales. The central issue was whether the deduction made by the MA under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 was justified, considering the evidence provided. The appeal was based on the contention that the deduction should have been lower, specifically 10%, in accordance with the assumption made by the MA under section 323(2) of the same Act.

The court had to determine whether the deduction of 50% was lawful and whether the MA's reasoning was supported by the evidence. The Appeal Panel examined the evidence and the rationale provided by the MA. They found that the assumption under section 323(2) that the deductible proportion should be 10% did not align with the evidence presented. The Appeal Panel concluded that it was open to the MA to make a deduction of 50% under section 323(1), as the evidence supported this deduction. The court relied on the explanation given by the MA and confirmed that the deduction was correctly made.

The Industrial Commission of New South Wales upheld the decision of the MA and confirmed the Medical Assessment Certificate. The court found that the deduction of 50% was appropriate based on the evidence and the MA's explanation. The appeal was dismissed, and the original decision was affirmed.

Orders