Firat v Ocart Pty Ltd (Liquidated) - [2024] NSWPICMP 307

DETERMINATION OF APPEAL PANEL
CITATION:	Firat v Ocart Pty Ltd (Liquidated) [2024] NSWPICMP 307
APPELLANT:	Kemalettin Firat
RESPONDENT:	Ocart Pty Ltd (in liquidation)
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor’s (MA) ratings of appellant’s impairment in all psychiatric impairment rating scale (PIRS), other than employability, accorded with the evidence; whether the MA’s deduction under section 323(1) was based on correct criteria; whether the MA’s deduction under section 323(1) accorded with the evidence; whether the MA provided the appellant with medical advice and thereby took into account an irrelevant consideration; Appeal Panel found that the MA’s ratings of appellant’s impairment in the challenged PIRS and the MA’s deduction under section 323 accorded with the evidence; Appeal Panel found the MA applied correct criteria with respect to the section 323 deduction; Appeal Panel found the MA did not provide medical advice to the appellant; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 March 2024 Kemalettin Firat, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 February 2024.
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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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 as a delivery driver on 21 October 2021 with Ocart Pty Ltd (in liquidation). He obtained that employment through the assistance of Wise Employment, whom the appellant described in a statement he signed on 15 September 2023 as “a disability employment service”.
The appellant last worked for the respondent on 11 December 2021. On 18 December 2021 he received an email from the respondent terminating his employment.
The appellant suffered a psychological injury due to circumstances to which he was exposed in the period of…

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 307
Decision Date: 22 May 2024

CaseChat Overview and Summary

The appeal was brought by Firat against Ocart Pty Ltd in relation to a dispute concerning workers' compensation, specifically regarding the appellant's psychiatric impairment rating. The case was heard by the Court of Appeal, which was tasked with determining the validity of the Medical Assessor's (MA) ratings and deductions under the Workplace Injury Management and Workers Compensation Act 1998. The appellant contested the MA's assessment of his psychiatric impairment, arguing that the ratings assigned in all categories of the Psychiatric Impairment Rating Scale (PIRS) except for employability did not align with the evidence presented. Additionally, the appellant challenged the basis and correctness of the MA's deduction under section 323(1) of the Act, questioning whether the MA had applied the correct criteria and whether the deduction was supported by the evidence. The appellant also contended that the MA had provided medical advice, thereby considering irrelevant factors in the assessment.

The court was required to decide several legal issues, including whether the MA's ratings in the challenged PIRS categories were consistent with the evidence, whether the MA's deduction under section 323(1) was based on the correct criteria, and whether the MA had provided medical advice to the appellant. Furthermore, the court had to determine whether the MA's deduction under section 323(1) was supported by the evidence and whether the MA had considered irrelevant factors in making the assessment.

In its reasoning, the court found that the Appeal Panel's determination that the MA's ratings of the appellant's impairment in the challenged PIRS categories and the MA's deduction under section 323(1) were consistent with the evidence was supported by the material before the Panel. The court also found that the Appeal Panel correctly concluded that the MA had applied the correct criteria in making the section 323(1) deduction. Additionally, the court accepted the Appeal Panel's finding that the MA had not provided medical advice to the appellant, and thus, had not taken into account any irrelevant considerations. Based on these findings, the court upheld the Medical Assessment Certificate, affirming the Appeal Panel's decision.

Orders