Dugdale v Presbyterian Aged Care - [2021] NSWPICMP 118

DETERMINATION OF APPEAL PANEL
CITATION:	Dugdale v Presbyterian Aged Care [2021] NSWPICMP 118
APPELLANT:	Lawrence John Dugdale
RESPONDENT:	Presbyterian Aged Care
APPEAL PANEL:	Member Carolyn Rimmer Dr Douglas Andrews Dr Patrick Morris
DATE OF DECISION:	8 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker suffering primary psychological injury appealed against the classification of the Medical Assessor (MA) in the PIRS categories of concentration, persistence and pace and employability on the basis the appellant was wrongly placed into those classes; Panel considered the evidence including history recorded by the MA and concluded that it was open to the MA to make the assessment he did in those classes; appellant submitted that the MA made a demonstrable error in making a substantial deduction for a pre-existing condition without establishing a proper and objective basis for concluding that one quarter of the current degree of WPI was due to the appellant’s pre-existing condition and the evidence demonstrated that the appellant did not have any pre-injury deficit in five of the six PIRS categories, and only a marginal increase in the category of social and recreational activities; Cole v Wenaline and Ballas v Department of Education (State of New South Wales) considered; the Panel agreed that the MA did not calculate the pre-existing impairment using the same method for calculating current impairment level and did not comply with the provisions of Paragraph 11.10 of the Guidelines that required the percentage impairment for the pre-existing impairment to be calculated using the aggregate score and median class score using the conversion table in Chapter 11; Panel considered that there is no residual power or discretion in Part 11.10 of the Guidelines to make a deduction of more than 1/10^th of the assessed WPI if the assessor cannot make an assessment of the percentage of pre-existing impairment as set out in paragraph 11.10 and the only method that can be used to make a deduction of more than 1/10^th of the assessed WPI is for the assessor to calculate pre-existing impairment in the PIRS categories and then calculate the impairment using the aggregate score and median class score; Panel considered that if this method is not used the only deduction that can be made for pre-existing impairment is 1/10^th of the assessed WPI; Held- Panel concluded that the MA, in making a deduction of more than 1/10^th of the assessed WPI for pre-existing impairment as set out in paragraph 11.10, made the assessment on the basis of incorrect criteria and this was a demonstrable error; MAC revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 April 2021 Lawrence John Dugdale (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Professor Nicholas Glozier, Medical Assessor (the MA) and issued on 22 March 2021.
The respondent to the appeal is the Presbyterian…

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: [2021] NSWPICMP 118
Decision Date: 8 July 2021

CaseChat Overview and Summary

The case of Dugdale v Presbyterian Aged Care involved a worker who was appealing against the classification of their primary psychological injury by the Medical Assessor. The worker argued that the Medical Assessor had wrongly placed them into certain categories concerning concentration, persistence, pace, and employability. This matter was heard in the workers compensation court. The legal issues at the heart of this case revolved around the correctness of the Medical Assessor’s assessment and the method used to calculate the pre-existing impairment. The worker contended that the Medical Assessor made a significant error in deducting a quarter of the current degree of whole person impairment (WPI) for a pre-existing condition without a proper and objective basis.

The court examined the evidence, including the history documented by the Medical Assessor, and concluded that it was within the bounds of reason for the assessor to make the assessment they did. The worker argued that the Medical Assessor had erred by making a substantial deduction for a pre-existing condition without establishing a proper and objective basis for concluding that a quarter of the current WPI was attributable to the worker’s pre-existing condition. The evidence showed that the worker did not have any pre-injury deficits in five out of the six Personal Impairment Rating Scale (PIRS) categories, and only had a marginal increase in the category of social and recreational activities. The court considered the cases of Cole v Wenaline and Ballas v Department of Education (State of New South Wales) in its reasoning.

The Panel agreed that the Medical Assessor did not calculate the pre-existing impairment using the same method used for calculating the current impairment level and did not adhere to the provisions of Paragraph 11.10 of the Guidelines. These provisions required the percentage impairment for the pre-existing impairment to be calculated using the aggregate score and median class score using the conversion table in Chapter 11. The Panel found that there is no residual power or discretion in Part 11.10 of the Guidelines to make a deduction of more than 1/10th of the assessed WPI if the assessor cannot make an assessment of the percentage of pre-existing impairment as set out in paragraph 11.10. The only method that can be used to make a deduction of more than 1/10th of the assessed WPI is for the assessor to calculate pre-existing impairment in the PIRS categories and then calculate the impairment using the aggregate score and median class score. If this method is not used, the only deduction that can be made for pre-existing impairment is 1/10th of the assessed WPI.

The Panel concluded that the Medical Assessor made the assessment on the basis of incorrect criteria, which was a demonstrable error. Consequently, the Medical Assessor’s classification was revoked.

Orders