Inverell Shire Council v BLP - [2023] NSWPICMP 346

DETERMINATION OF APPEAL PANEL
CITATION:	Inverell Shire Council v BLP [2023] NSWPICMP 346
APPELLANT:	Inverell Shire Council
RESPONDENT:	BLP
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	21 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act1998; employer alleges error in calculation of whole person impairment (WPI); in the classification of psychiatric impairment rating scale (PIRS) categories of social functioning and the social and recreational activities; in the application of section 323; it also sought to rely on fresh evidence (327(b)) including surveillance of the worker taken several weeks after issue of Medical Assessment Certificate (MAC); Held – error in calculation established; no error in application of section 323; fresh evidence obtained after the assessment admitted as not previously obtainable in the circumstances and strongly suggested error; otherwise, further evidence rejected; after re-examination MAC revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 November 2022, the Inverell Shire Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 October 2022.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act, and
· the MAC contains a demonstrable error pursuant to s 327(3)(d) of the 1998 Act.
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 (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

BLP (the respondent) was employed by the appellant in the maintenance of parks and gardens from 2 February 2016. From early 2017, he experienced interpersonal conflict with other employees. The appellant alleged that he had damaged a ride-on lawnmower and issued him with a warning letter. He…

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: [2023] NSWPICMP 346
Decision Date: 21 July 2023

CaseChat Overview and Summary

The case of Inverell Shire Council versus BLP came before the court, with the employer contesting the calculation of the worker's whole person impairment (WPI) and the classification of certain psychiatric impairment rating scale (PIRS) categories. The employer sought to challenge the assessment in the classification of the worker's social functioning and the social and recreational activities. Additionally, the employer argued that the court should reconsider the application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998. The employer also sought to introduce fresh evidence, including surveillance footage, obtained several weeks after the Medical Assessment Certificate (MAC) was issued.

The court was tasked with determining whether there was an error in the calculation of the worker's WPI, whether the classification of the PIRS categories was correct, and if section 323 was applied appropriately. Furthermore, the court needed to assess the admissibility of the fresh evidence provided by the employer. The court examined the evidence presented, including the surveillance footage, to determine if it constituted previously unobtainable evidence and if it suggested an error in the original assessment.

Upon review, the court found that there was indeed an error in the calculation of the worker's WPI. The classification of the PIRS categories was deemed accurate, and the application of section 323 was found to be correct. The court held that the fresh evidence provided by the employer, specifically the surveillance footage, was admissible as it was not previously obtainable and strongly suggested an error in the original assessment. The court revoked the initial MAC and issued a new one following a re-examination of the worker. The court's decision ensured that the worker's impairment assessment was fair and accurate, reflecting their true condition and needs.

Orders