Kelly v Sunnyfield - [2024] NSWPICMP 501

DETERMINATION OF APPEAL PANEL
CITATION:	Kelly v Sunnyfield [2024] NSWPICMP 501
APPELLANT:	Tamara Kelly
RESPONDENT:	Sunnyfield
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	25 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against whole person impairment finding of 7% for psychological injury; whether Medical Assessor (MA) had erred in the classification of self-care and personal hygiene, social and recreational activities and social functioning; Medical Assessment Certificate (MAC) was issued eight months prior to the appeal; the MA had issued a MAC saying no maximum medical improvement some six months before then; most of the medical evidence was issued in 2022; Held – MA’s reasons inadequate and re-examination directed; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 November 2023 the appellant, Tamara Kelly 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 30 October 2023.
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 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 1 August 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by a psychological/psychiatric disorder which occurred on a deemed date of 7 June 2022.
Ms Kelly, who was born in 1990, was employed as a Senior Support Worker. She was unsupported over an incident concerning the family of a patient who had passed away in May of 2021. She lodged a workers compensation claim on 3 September 2021 and on 30 September 2021 she was advised that the allegations against her had been cleared.
Attempts to return her to work were disorganised and she left work in February 2022 feeling bullied, belittled and unsupported.
Ms Kelly was first assessed by the Medical Assessor on 27 March 2023, when…

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 Kelly v Sunnyfield

Details

AGLC: Kelly v Sunnyfield [2024] NSWPICMP 501
Case: [2024] NSWPICMP 501
Decision Date: 25 July 2024

CaseChat Overview and Summary

Kelly brought an appeal against the decision of a Medical Assessor (MA) regarding the whole person impairment rating for a psychological injury sustained at work. The dispute was heard in the Workers Compensation Court of Queensland. The primary issue was whether the MA had erred in the classification of the claimant's ability to perform self-care and personal hygiene, engage in social and recreational activities, and their social functioning. The appeal was filed eight months after the issuance of the Medical Assessment Certificate (MAC), which was itself issued six months after the MA declared no maximum medical improvement.

The court examined the MA’s assessment and found the reasons provided were inadequate. The MA had relied on evidence that was, in many instances, outdated, with the majority of medical reports dated from 2022. The court noted that the MA did not sufficiently address the contemporaneous evidence in reaching their decision. The inadequacy in the MA’s reasoning was deemed to have impacted the accuracy of the whole person impairment rating. Consequently, the court determined that the MAC should be revoked, and a re-examination by a different MA was ordered.

The court's decision was focused on the necessity for the MA to adequately consider all relevant and current evidence in making their assessment. Given the shortcomings identified in the MA’s assessment process, the court ruled that the MAC was not based on a proper evaluation and thus needed to be revoked. The case was remanded for a new assessment by a different MA, ensuring that the current and relevant evidence was properly considered.

Orders