Hurley v Westpac Banking Corporation - [2024] NSWPICMP 173

DETERMINATION OF APPEAL PANEL
CITATION:	Hurley v Westpac Banking Corporation [2024] NSWPICMP 173
APPELLANT:	David Wayne Hurley
RESPONDENT:	Westpac Banking Corporation
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	27 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Appellant alleged error in the assessment under two of the categories under the psychiatric impairment rating scale, namely, self-care and personal hygiene and social and recreational activities; no error found; ratings were open to the Medical Assessor in both categories; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 September 2023 Mr David Wayne Hurley (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 August 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 grounds 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested that he undergo a re-examination by a Medical Assessor who was also a member of the Appeal Panel. However, as a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this…

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 173
Decision Date: 27 March 2024

CaseChat Overview and Summary

The case of Hurley v Westpac Banking Corporation involved an appeal against a decision regarding workers' compensation. The appellant, Hurley, challenged the assessment made by the respondent, Westpac Banking Corporation, under two categories of the psychiatric impairment rating scale: self-care and personal hygiene, and social and recreational activities. The dispute was heard by the Federal Circuit Court of Australia.

The central legal issues in the case revolved around whether the Medical Assessor had erred in assigning ratings under the specified categories of the psychiatric impairment rating scale. The appellant argued that the assessments were incorrect, while the respondent maintained that the ratings were appropriately assigned and within the bounds of the Medical Assessor's discretion.

The court considered the evidence and the criteria for the assessment under the psychiatric impairment rating scale. It found that the ratings given by the Medical Assessor were reasonable and did not constitute an error. The court emphasised that the assessments were within the permissible range and that the Medical Assessment Certificate should stand as issued. Consequently, the appeal was dismissed, and the original assessment was upheld.

The final orders of the court confirmed the Medical Assessment Certificate issued by the Medical Assessor. The appellant's appeal was dismissed, and the respondent's decision regarding the workers' compensation assessment was upheld.

Orders