Field-Whittaker v Thomas & Naaz Pty Ltd - [2023] NSWPICMP 59

DETERMINATION OF APPEAL PANEL
CITATION:	Field-Whittaker v Thomas & Naaz Pty Ltd [2023] NSWPICMP 59
APPELLANT:	Belinda Field-Whittaker
RESPONDENT:	Thomas & Naaz Pty Limited
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	24 February 2023
DATE OF AMENDMENT:	17 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker alleges that fresh evidence impugned the classification of the Approved Medical Specialist (AMS) in four psychiatric impairment rating scale (PIRS) categories and/or established deterioration; that AMS had given insufficient reasons for his finding of maximum medical improvement (MMI); and that the AMS erred in his classification of four PIRS categories; Held – the additional statements of the worker and further reports of a psychologist and psychiatrist did not constitute fresh evidence within section 327(1)(b) as they were either available prior to the assessment or merely reiterated opinions which were before the AMS on assessment; the evidence did not establish a deterioration which resulted in an increase in permanent impairment; the AMS gave adequate reasons for finding MMI; there were errors in the AMS’s classification of Social functioning and Employability warranting re-examination; as more than two years had elapsed since the original Medical Assessment Certificate (MAC) it was appropriate to reassess each of the PIRS categories; after re-examination MAC revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 December 2020, Belinda Field-Whittaker (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Application). The medical dispute was assessed by Dr Samson Roberts, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 26 November 2020.
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):
·        deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
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…

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 59
Decision Date: 24 February 2023

CaseChat Overview and Summary

In the matter of Field-Whittaker v Thomas & Naaz Pty Ltd, the dispute before the court involved a claim for workers' compensation in relation to a workplace injury. The plaintiff alleged that the classification of the Approved Medical Specialist (AMS) in four psychiatric impairment rating scale (PIRS) categories was flawed, and that there was deterioration in the plaintiff's condition that was not accounted for by the AMS. The plaintiff also contended that the AMS had provided insufficient reasons for his finding of maximum medical improvement (MMI) and that there were errors in the AMS's classification of four PIRS categories. The case was heard in the relevant Australian court, which was required to determine whether the plaintiff's evidence could be considered as fresh evidence, and if so, whether it warranted a reassessment of the plaintiff's condition.

The court needed to address several legal issues, including whether the additional statements from the plaintiff and further reports from a psychologist and psychiatrist constituted fresh evidence under section 327(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998. The court also had to determine if the evidence presented established a deterioration in the plaintiff's condition which resulted in an increase in permanent impairment. Furthermore, the court had to assess whether the AMS gave adequate reasons for finding MMI and if there were any errors in the AMS's classification of the four PIRS categories. Finally, the court needed to decide if it was appropriate to reassess each of the PIRS categories given that more than two years had elapsed since the original Medical Assessment Certificate (MAC).

After reviewing the evidence, the court found that the additional statements and further reports did not constitute fresh evidence as they were either available prior to the assessment or merely reiterated opinions which were before the AMS at the time of the assessment. The court determined that the evidence did not establish a deterioration that resulted in an increase in permanent impairment. The AMS was found to have given adequate reasons for finding MMI. However, the court identified errors in the AMS's classification of Social functioning and Employability, which warranted re-examination. Given that more than two years had elapsed since the original MAC, the court deemed it appropriate to reassess each of the PIRS categories. Consequently, the original MAC was revoked and a new MAC was issued.

Orders