Electrical Home Aids Pty Ltd v Kumar - [2024] NSWPICMP 38

DETERMINATION OF APPEAL PANEL
CITATION:	Electrical Home Aids Pty Ltd v Kumar [2024] NSWPICMP 38
APPELLANT:	Electrical Home-Aids Pty Ltd
RESPONDENT:	Kamal Kumar
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	29 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for loss of impairment resulting from a primary psychological injury; employer appealed the Psychiatric Impairment Rating Scale categories of social and recreational activities, concentration, persistence and pace and employability; Medical Assessor erred in assessment of concentration, persistence and pace; no error in assessment of social and recreational activities and employability; worker re-examined and assessed as class 2 for concentration, persistence and pace; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 July 2023 Electrical Home-Aids Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr John Lam-Po-Tang, a Medical Assessor, who issued an Amended Medical Assessment Certificate (MAC) on 4 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 (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

The respondent, Kamal Kumar (Mr Kumar) developed a primary psychological injury in the course of his employment with the appellant as a sales team member.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 24% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 18 August 2020.
The matter was listed for hearing in the Commission before Member Burge who issued a Certificate of Determination on 28 March 2023. Member Burge made the following orders:
“1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 18 August 2022.
2. The injury referred to in…

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 38
Decision Date: 29 January 2024

CaseChat Overview and Summary

Electrical Home Aids Pty Ltd appealed against a decision of the Workers’ Compensation Regulator regarding the rating of Kumar’s psychological impairment. Kumar had suffered a primary psychological injury as a result of his employment, leading to a claim for loss of impairment. The Regulator had assessed Kumar's impairment using the Psychiatric Impairment Rating Scale and found him to be class 3 for concentration, persistence and pace, and class 1 for social and recreational activities and employability. Electrical Home Aids Pty Ltd sought to appeal the assessment of Kumar’s concentration, persistence and pace, as well as his social and recreational activities and employability.

The primary legal issue before the court was whether the Medical Assessor had erred in categorising Kumar's impairment in relation to concentration, persistence and pace, social and recreational activities, and employability. The appeal hinged on the accuracy of the Medical Assessor's assessment, which was challenged on the basis that it was not supported by substantial evidence. The court needed to determine whether the assessments were reasonable and justified based on the evidence presented.

The court found that the Medical Assessor had erred in assessing Kumar’s concentration, persistence and pace, but found no error in the assessment of social and recreational activities and employability. Upon re-examination, Kumar was assessed as class 2 for concentration, persistence and pace. The court concluded that the Medical Assessment Certificate was revoked, and the assessments for concentration, persistence and pace were adjusted accordingly. The final orders of the court reflected the revised classification and the revocation of the original certificate.

Orders