Hutton v Auto & General Holdings Pty Ltd - [2024] NSWPICMP 354

DETERMINATION OF APPEAL PANEL
CITATION:	Hutton v Auto & General Holdings Pty Ltd [2024] NSWPICMP 354
APPELLANT:	Colin Hutton
RESPONDENT:	Auto & General Holdings Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	3 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor’s (MA) ratings of appellant’s impairment in self-care and personal hygiene and in social and recreational activities accorded with the evidence; whether MA took into account irrelevant consideration when rating the appellant’s impairment in social and recreational activities; Held – MA’s rating of appellant’s impairment in self-care and personal hygiene accorded with the evidence and was correct; MA took into account irrelevant considerations when rating appellant’s impairment in social and recreational activities; as a consequence the Medical Assessment Certificate (MAC) contained a demonstrable error, but after Appeal Panel corrected that error, same result achieved; MAC upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 March 2024 Colin Hutton, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 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 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 (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

Auto & General Holdings Pty Ltd, the respondent, employed the appellant as a vehicle assessor between 2016 and November 2019. The appellant suffered a psychological injury due to work he did for the respondent. He claimed compensation from the respondent for permanent impairment from his injury, relying on a report of psychiatrist Dr Christopher Canaris dated 9 March 2023 who had assessed the degree of the appellant’s permanent impairment from his injury was 22% whole person impairment (WPI).
The respondent’s insurer denied the respondent was liable to pay compensation the appellant claimed. In a notice issued to the appellant on 19 July 2023 under s 78 of the 1998 Act, it advised him its reason for denying liability was…

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 354
Decision Date: 3 June 2024

CaseChat Overview and Summary

The case before the court involved the appellant, Hutton, who was contesting a Medical Assessment Certificate (MAC) issued by the respondent, Auto & General Holdings Pty Ltd. The dispute centred around the accuracy of the MAC’s ratings concerning the appellant’s impairments in self-care and personal hygiene, as well as in social and recreational activities. The matter was heard in the Court of Appeal, with the Court required to determine whether the Medical Assessor’s ratings were consistent with the evidence and whether any irrelevant considerations were taken into account during the assessment.

The primary legal issues addressed by the Court were whether the Medical Assessor’s ratings were in accordance with the evidence provided and if any irrelevant factors influenced the rating of the appellant’s impairment in social and recreational activities. The Court also needed to ascertain whether the MAC contained any demonstrable errors that could affect its validity.

Upon reviewing the evidence and the MAC, the Court found that the Medical Assessor’s rating of the appellant’s impairment in self-care and personal hygiene was consistent with the evidence and therefore correct. However, the Court determined that the Medical Assessor had taken into account irrelevant considerations when rating the appellant’s impairment in social and recreational activities. As a result, the MAC contained a demonstrable error. Nonetheless, after the Appeal Panel corrected this error, the same outcome was reached, leading the Court to uphold the MAC.

Orders