Inner West Council v BFZ - [2024] NSWPICMP 613

DETERMINATION OF APPEAL PANEL
CITATION:	Inner West Council v BFZ [2024] NSWPICMP 613
APPELLANT:	Inner West Council
RESPONDENT:	BFZ
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	29 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Respondent worker sustained a psychiatric injury, namely, an aggravation of a pre-existing schizoaffective disorder; Medical Assessor (MA) assessed 24% whole person impairment and deducted one-fourth for pre-existing condition; appellant employer appealed the deduction of one-fourth on the basis that MA failed to consider the contextual and historical evidence, give adequate reasons for the deduction of only one quarter and did not apply Clause 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021); Held – grounds of appeal not made out; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 July 2024 Inner West Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 June 2024.
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).

RELEVANT FACTUAL BACKGROUND

[BFZ] suffered a psychological injury, being an aggravation of a pre-existing psychiatric disease, in the course of her employment with the appellant deemed to have occurred on 11 December 2019.
BFZ commenced proceedings in the Personal Injury Commission (Commission) claiming 20% 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 11 December 2019.
The matter was heard by Principal Member John Harris who issued a Certificate of Determination on 5 April 2024 in which he made the following findings and orders:
“Findings
1. The employment was the main contributing…

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.

Continue reading Inner West Council v BFZ

Details

AGLC: Inner West Council v BFZ [2024] NSWPICMP 613
Case: [2024] NSWPICMP 613
Decision Date: 29 August 2024

CaseChat Overview and Summary

Inner West Council sought review of a decision of the NSW Civil and Administrative Tribunal (NCAT) affirming a Medical Assessment Certificate that determined the worker had sustained a psychiatric injury, namely an aggravation of a pre-existing schizoaffective disorder, with 24% whole person impairment. The Council argued the NCAT erred in affirming the Medical Assessor's (MA) deduction of one-fourth of the impairment assessment for the worker's pre-existing condition, claiming the MA failed to consider contextual and historical evidence, gave inadequate reasons for the deduction, and did not apply Clause 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. The MA provided a report to the NCAT, stating the worker's condition was a schizoaffective disorder, with the impairment attributable to the aggravation of the pre-existing condition. The MA deducted one-fourth of the impairment assessment due to the worker's pre-existing condition.

The primary issue was whether the NCAT erred in affirming the MA's assessment of the worker's psychiatric injury and the resultant impairment percentage. The court considered whether the MA adequately considered the contextual and historical evidence, provided sufficient reasons for the one-fourth deduction, and correctly applied Clause 11.10 of the Guidelines. The Council submitted that the MA failed to consider relevant evidence and did not apply the Guidelines correctly, leading to an incorrect assessment. The worker argued that the MA's assessment was reasonable and that the NCAT was correct in affirming it.

The court held that the NCAT was correct in affirming the MA's assessment, finding the grounds of appeal not made out. The court found that the MA had considered the relevant evidence, provided adequate reasons for the one-fourth deduction, and correctly applied Clause 11.10 of the Guidelines. The court found that the MA's assessment was reasonable and that the NCAT was correct in affirming it. The appeal was dismissed, and the NCAT's decision was upheld.

Orders