ISS Property Services Pty Ltd v O'Brien - [2022] NSWPICMP 514

DETERMINATION OF APPEAL PANEL
CITATION:	ISS Property Services Pty Ltd v O'Brien [2022] NSWPICMP 514
APPELLANT:	ISS Property Services Pty Ltd
RESPONDENT:	Nathan Wayne O’Brien
Appeal Panel
MEMBER:	Brett Batchelor
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	14 December 2022
CATCHWORDS:	wORKERS cOMPENSATION- Appeal by employer against Medical Assessment Certificate (MAC) on the grounds of  the assessment having been made on the basis of incorrect criteria and that the MAC contains a demonstrable error; section 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the respondent worker had previously been assessed as having sustained 24% whole person impairment (WPI) as a result of psychological injury arising out of or in the course of his employment with the NSW Police Force for which he had been compensated, and also settled a damages claim against the NSW Police Force in respect of such injury; the Medical Assessor (MA) in the current proceedings assessed 17% WPI as a result of psychological injury arising out of or in the course of employment with the appellant, and deducted one tenth therefrom pursuant to section 323 of the 1998 Act, for a final WPI of 15%; the appellant submitted that the MA had not complied with section 323(2) of the 1998 Act in making such deduction, and that, having regard to the evidence before him, the deduction should have been higher than the one tenth provided for in that subsection; Held – the Appeal Panel accepted that submission, and that the section 323 of the 1998 Act deduction should be 25% of the 17% WPI assessed by the MA; MAC dated 29 July 2022 revoked and new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 September 2022 ISS Property Services Pty Ltd (the appellant/ISS) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Douglas Andrews (the MA/MA Andrews), a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 July 2022.
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,
· 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 (the Panel) has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines…

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: [2022] NSWPICMP 514
Decision Date: 14 December 2022

CaseChat Overview and Summary

The matter of ISS Property Services Pty Ltd v O'Brien was before the Appeal Panel, with the employer appealing a Medical Assessment Certificate (MAC) issued by a Medical Assessor (MA). The employer contested the assessment, asserting that it was based on incorrect criteria and contained a demonstrable error. The case was heard under the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The employer argued that the MA had not complied with section 323(2) of the 1998 Act when deducting a portion of the assessed whole person impairment (WPI) due to the employee’s pre-existing injury from a previous employment.

The legal issues before the Appeal Panel were whether the MA had correctly applied the statutory criteria in assessing the WPI and whether the deduction made was in accordance with the 1998 Act. Specifically, the employer contended that the deduction made by the MA was incorrect and should have been higher than the statutory one tenth provided for in section 323 of the 1998 Act. The Panel had to determine if the employer's submissions were valid and whether the MAC should be revoked and a new certificate issued.

The Appeal Panel found merit in the employer's submission that the statutory deduction was not correctly applied. The Panel accepted that the deduction should be 25% of the 17% WPI, rather than the one tenth deducted by the MA. As a result, the Appeal Panel revoked the MAC dated 29 July 2022 and directed that a new certificate be issued reflecting the correct deduction.

No further orders were made by the Appeal Panel beyond the revocation of the MAC and the issuance of a new certificate.

Orders