Etm Projects Pty Limited (In liquidation) v Gregorgiou - [2024] NSWPICMP 45

DETERMINATION OF APPEAL PANEL
CITATION:	ETM Projects Pty Limited (In liquidation) v Gregorgiou [2024] NSWPICMP 45
APPELLANT:	ETM Projects Pty Limited (In liquidation)
RESPONDENT:	Alexandros Gregorgiou
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	2 February 2024
CATCHWORDS:	WORKERS COMPENSATION – Claim for primary psychiatric injury; matter referred for assessment noting that no regard was to be had to any impairment of symptoms resulting from secondary psychiatric injury; Medical Assessor erred in failing to adequately address secondary psychiatric condition; worker re-examined; Mercy Connect Limited v Kiely considered; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 August 2023 ETM Projects Pty Limited (in liquidation) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 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.

RELEVANT FACTUAL BACKGROUND

The respondent, Alexandros Gregorgiou (Mr Gregorgiou) developed a primary psychological injury in the course of his employment with the appellant.
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. Pursuant to section 162 of the Workers Compensation Act 1987, the Commission declares that the second respondent had entered into a contract of insurance for liability with the first respondent (or its agent) in respect of any liability under that Act, and that the second respondent has ceased to exist.
2. The Applicant suffers from a primary psychological injury and a secondary psychological injury as a result of an incident on 26 February 2019.
3. Matter remitted to the President to refer the Applicant to a Medical Assessor to assess the applicant’s degree of whole person…

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 45
Decision Date: 2 February 2024

CaseChat Overview and Summary

Etm Projects Pty Limited, in liquidation, brought an action against Gregorgiou regarding a claim for primary psychiatric injury. The dispute reached the Court of Appeal, which had to determine the validity of a Medical Assessment Certificate. The primary issue before the court was whether the Medical Assessor erred in failing to adequately address the secondary psychiatric condition of the claimant in the assessment of the primary psychiatric injury. The court also had to consider the applicability of the decision in Mercy Connect Limited v Kiely to the current case.

The court examined the reasoning and methodology employed by the Medical Assessor in evaluating the claimant's psychiatric injury. The assessor had focused solely on the primary psychiatric injury, disregarding any impairment resulting from secondary psychiatric injury. The court found that the assessor's approach was flawed, as it did not comply with the legislative requirements and guidelines set out in relevant case law. By not considering the secondary psychiatric condition, the assessor had not provided a complete and accurate assessment of the claimant's overall psychiatric injury. The court held that the Medical Assessment Certificate should be revoked due to the assessor's failure to adequately address the secondary psychiatric condition.

Consequently, the claimant was re-examined, and the court ordered a new assessment that took into account both primary and secondary psychiatric injuries. The court's decision underscored the importance of a comprehensive evaluation of a claimant's psychiatric injury, including any secondary psychiatric conditions, to ensure a fair and accurate assessment of the overall injury. The final orders of the court mandated a re-examination of the claimant and the issuance of a new Medical Assessment Certificate that properly addressed both primary and secondary psychiatric injuries.

Orders