Hamer v Port Kembla Operations Pty Ltd - [2022] NSWPICMP 270

DETERMINATION OF APPEAL PANEL
CITATION:	Hamer v Port Kembla Operations Pty Ltd [2022] NSWPICMP 270
APPELLANT:	Derek Hamer
RESPONDENT:	Port Kembla Operations Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Medical Assessor Nicholas Glozier Medical Assessor Patrick Morris
DATE OF DECISION:	7 July 2022
CATCHWORDS:	WORKERS COMPENSATION- Appellant worker sustained primary psychological injury deemed to have occurred on 15 March 2017; Appeal Panel concluded that the Medical Assessor (MA) did not err and it was open to the MA to assess the appellant worker as Class 2 for Social and Recreational Activities; Held – Medical Assessment Certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 April 2022 Derek Hamer (Mr Hamer/the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Michael Hong, Medical Assessor (the MA) and issued on 14 March 2022.
The respondent to the appeal is Port Kemble Operations Pty Ltd (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and
· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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 April 2016 reissued 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

Mr Hamer developed a primary psychological injury in the course of his employment with the respondent as an Information Technology Support Administrator.
On about 10 February 2021, Mr Hamer commenced proceedings in the Commission claiming 17% 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 15 March 2017.
The matter was referred to the MA, Dr Michael Hong, on 22 April 2021 for assessment of WPI of Mr Hamer’s psychological disorder deemed to have occurred on 15 March 2017. The MA examined Mr Hamer on 6 May 2021 by…

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: [2022] NSWPICMP 270
Decision Date: 7 July 2022

CaseChat Overview and Summary

Hamer, the appellant, filed an appeal against Port Kembla Operations Pty Ltd, the respondent, concerning the assessment of a psychological injury sustained by the appellant. The injury was deemed to have occurred on 15 March 2017, and the case was heard by the Appeals Panel of the NSW Civil and Administrative Tribunal. The central dispute revolved around the classification of the appellant’s injury under the workers compensation scheme, specifically regarding the extent of impairment in social and recreational activities.

The primary legal issue before the court was whether the Medical Assessor (MA) erred in determining that the appellant's psychological injury warranted a Class 2 assessment for social and recreational activities. The appellant argued that the MA had misapplied the criteria and that the assessment should have been Class 1, reflecting a more severe impairment. The respondent, on the other hand, contended that the MA's assessment was correct and that the Tribunal should defer to the MA's professional judgment.

The Appeals Panel reviewed the evidence presented, including the MA’s assessment and the medical reports. The court found that the MA had properly applied the criteria for assessing impairment in social and recreational activities and had not erred in concluding that the appellant was Class 2. The evidence supported the MA’s assessment, and it was within the range of acceptable professional opinion. Consequently, the Panel confirmed the Medical Assessment Certificate as it stood. The appellant's appeal was dismissed, and the decision of the Medical Assessor was upheld.

Orders