Joe v Sydney Trains - [2022] NSWPICMP 237

DETERMINATION OF APPEAL PANEL
CITATION:	Joe v Sydney Trains [2022] NSWPICMP 237
APPELLANT:	Michael Joe
RESPONDENT:	Sydney Trains
APPEAL PANEL:	Member William Dalley Dr Nicholas Glozier Dr Michael Hong
DATE OF DECISION:	26 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Allegation of incorrect criteria and demonstrable error in respect of assessment of three PIRS categories based upon the availability of fresh evidence, failure to properly consider Independent Medical Examiner (IME) report and incorrect recording of history; reliance on further statement contradicting history recorded by the Medical Assessor (MA) and additional IME report post-dating the Medical Assessment Certificate (MAC); admission opposed by the respondent; Held- the Panel declined to receive the fresh evidence on the basis of probable delay and possible unfairness to the respondent; the evidence could not be placed higher than to cavil with the matters recorded by the MA; Ross v Zurich Workers Compensation Insurance, Petrovic v B C Serv No 14 and Others, Lukacevic v Coates Hire Operations and Marina Pitsonis v Registrar of the Workers Compensation Commission applied; the respective assessments were open to the MA on the evidence; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 November 2021 Michael Joe lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 November 2021.
The appellant relies on the following grounds of appeal under section 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 grounds 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 for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant, Mr Joe, commenced employment with the respondent, Sydney Trains, (formerly State Rail Authority) in 1990, rising to the position of Rail Maintainer (Level 2).
Mr Joe suffered a psychological injury resulting from his employment, deemed to have occurred on 7 August 2018. He consulted his general practitioner and received counselling from a clinical psychologist.
On 28 April 2020 Mr Joe was assessed by a psychiatrist, Dr Richa Rastogi, at the request of Mr Joe’s solicitors. Dr Rastogi diagnosed Mr Joe as suffering an adjustment disorder with depressed…

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 Joe v Sydney Trains

Details

AGLC: Joe v Sydney Trains [2022] NSWPICMP 237
Case: [2022] NSWPICMP 237
Decision Date: 26 May 2022

CaseChat Overview and Summary

In Joe v Sydney Trains, the applicant brought proceedings seeking review of a decision of the respondent, which was the insurer, in relation to the assessment of the applicant’s entitlement to workers compensation. The dispute centred around the assessment of three permanent impairment rating scales based on several issues including the availability of fresh evidence, the consideration of an Independent Medical Examiner (IME) report, and discrepancies in the historical record. The matter was heard and determined by the Workers Compensation Commission of New South Wales.

The legal issues that the Commission was required to decide involved whether the fresh evidence should be considered, whether the IME report was properly considered, and if there were any errors in the recording of the applicant’s history. Furthermore, the Court had to assess whether the reliance on a further statement, which contradicted the history recorded by the Medical Assessor (MA), and an additional IME report that post-dated the Medical Assessment Certificate (MAC) was appropriate.

In reaching its decision, the Panel noted that the fresh evidence was likely to result in delay and potential unfairness to the respondent, and therefore declined to receive it. The evidence could not outweigh the matters recorded by the MA. The Panel applied precedents from Ross v Zurich Workers Compensation Insurance, Petrovic v B C Serv No 14 and Others, Lukacevic v Coates Hire Operations, and Marina Pitsonis v Registrar of the Workers Compensation Commission in their analysis. The Panel concluded that the assessments were within the range of the MA's authority based on the evidence before them. Consequently, the MAC was confirmed.

No further orders were made by the Panel, and the decision was upheld as the respective assessments were found to be reasonable and appropriate.

Orders