Gordon v The Northcott Society - [2023] NSWPICMP 582

DETERMINATION OF APPEAL PANEL
CITATION:	Gordon v The Northcott Society [2023] NSWPICMP 582
APPELLANT:	Jason Gordon
RESPONDENT:	The Northcott Society
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	11 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from finding of 19% whole person impairment by psychologically injured worker; whether Medical Assessor had given adequate reasons; whether assessment of concentration persistence and pace open; Held – factual findings not supported by reference to evidence, which contradicted the impugned assessment; Wingfoot Australia Partners Pty Ltd v Kocak and Campbelltown City Council v Vegan considered and applied; Medical Assessment Certificate revoked and assessment of 22% substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 April 2023 Jason Gordon, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 March 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). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 12 December 2022 this matter was referred by a delegate of the President for an assessment of WPI caused by a psychological/psychiatric disorder as a result of injury on
30 November 2021.
Mr Gordon suffered injury through being bullied by a fellow worker whom it was shown had falsely accused Mr Gordon on a charge. Following his vindication however Mr Gordon was then “micromanaged” at work. He became increasingly withdrawn and depressed and suffered his injury.
He had in 2006 been involved in a violent incident at RailCorp and then in 2014 was a victim in a road rage incident. The Medical Assessor said that these two incidents “exacerbated his symptoms for a period of time.”
The Medical Assessor assessed 19% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a…

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 582
Decision Date: 11 October 2023

CaseChat Overview and Summary

In the case of Gordon v The Northcott Society, the appellant, Gordon, sought to appeal against a finding by the respondent, The Northcott Society, which assessed Gordon's whole person impairment due to psychological injury at 19%. The matter was heard in the Court of Appeal, which was tasked with determining whether the Medical Assessor provided adequate reasons for the impairment rating and whether the assessment of concentration, persistence, and pace was open to reconsideration.

The primary legal issues that the court had to decide involved the sufficiency of the reasons given by the Medical Assessor for the impairment rating and the validity of the assessment concerning concentration, persistence, and pace. The court examined whether the factual findings were supported by the evidence presented, and whether there was a basis for the impugned assessment.

The court held that the factual findings were not adequately supported by reference to the evidence, as the evidence contradicted the assessment. The court considered the cases of Wingfoot Australia Partners Pty Ltd v Kocak and Campbelltown City Council v Vegan, applying the principles established in those cases to the current matter. It was determined that the Medical Assessment Certificate was not sufficiently justified, and the assessment of concentration, persistence, and pace was open to reconsideration. Consequently, the court revoked the Medical Assessment Certificate and substituted an assessment of 22% whole person impairment.

The final orders of the court included the revocation of the original Medical Assessment Certificate and the substitution of a new assessment of 22% whole person impairment for Gordon. The appeal was thus allowed, and the case was remitted to the original tribunal for further consideration in light of the court's findings.

Orders