Hugo v Lambing Flat Enterprises Pty Ltd - [2024] NSWPICMP 379

DETERMINATION OF APPEAL PANEL
CITATION:	Hugo v Lambing Flat Enterprises Pty Ltd [2024] NSWPICMP 379
APPELLANT:	Craig James Hugo
RESPONDENT:	Lambing Flat Enterprises Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	14 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) had regard to an irrelevant consideration when rating appellant’s impairment in social and recreational activities by having regard to appellant’s participation in archery; whether MA’s rating of appellant’s impairment in social and recreational activities involved error; whether MA considered paragraph 1.32 of the Guidelines; Held – MA made no error with respect to his rating of the appellant’s impairment in social and recreational activities; MA either failed to consider paragraph 1.32, or if he did consider it, failed to explain why it did not apply; either way that was an error on the part of the MA, but when Appeal Panel corrects that error, no difference in outcome; Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 March 2024 Craig James Hugo, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 March 2024.
The appellant relies on the following grounds for 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 in 2018 as a disability support worker with Lambing Flat Enterprises Pty Ltd, the respondent. On 8 January 2019 he suffered a psychological injury as a consequence of being assaulted by one of the respondent’s clients. He claimed compensation for permanent impairment resulting from that injury, relying on a report of psychiatrist Dr Ben Teoh, dated 25 November 2022. Dr Teoh had examined the appellant on that date and advised in his report he had assessed the appellant had 22% whole person impairment (WPI) from his injury.
That assessment of Dr Teoh was based on Dr Teoh’s…

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 379
Decision Date: 14 June 2024

CaseChat Overview and Summary

Hugo brought a case against Lambing Flat Enterprises Pty Ltd concerning a workers' compensation dispute. The primary issue was whether the Medical Assessor (MA) had considered an irrelevant factor when assessing the appellant's impairment in social and recreational activities, specifically his participation in archery. Additionally, the court examined if the MA's assessment involved any error and whether the MA had appropriately considered a particular guideline in the process.

The appellant argued that the MA had not correctly applied the assessment criteria by taking into account his involvement in archery, which he contended was an irrelevant factor. Furthermore, the appellant claimed that the MA had erred in his assessment of the social and recreational impairment and had failed to properly consider a guideline related to the assessment. The court needed to determine whether the MA's consideration of the archery participation constituted an error and if the failure to properly consider the guideline was significant enough to affect the outcome.

The court found that while the MA had indeed erred in not considering or explaining the relevance of a particular guideline, this error did not impact the overall assessment outcome. The Appeal Panel correctly identified and rectified this oversight, ensuring that the assessment remained consistent with the relevant guidelines. Consequently, the court upheld the Medical Assessment Certificate, affirming that the MA's rating of the appellant's impairment in social and recreational activities was correct and appropriately considered the appellant's participation in archery.

Orders