Kennard's Hire Pty Ltd v Elliott - [2024] NSWPICMP 288

DETERMINATION OF APPEAL PANEL
CITATION:	Kennard's Hire Pty Ltd v Elliott [2024] NSWPICMP 288
APPELLANT:	Kennard’s Hire Pty Ltd
RESPONDENT:	Julian Elliot
APPELLANT:	Julian Elliot
RESPONDENT:	Kennard’s Hire Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	14 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; both parties appealed the Medical Assessment Certificate (MAC) regarding the deduction Medical Assessor (MA) made under section 323(1); whether MA gave proper consideration to the evidence; whether MA erred by assuming in accordance with section 323(2) that the deduction was 10%; whether MA erred by not applying paragraph 11.10 of the Guidelines; whether worker had pre-existing condition; Appeal Panel held that MA erred by not finding worker had pre-existing condition of recurrent depression but that error made no difference to the outcome; Held – MAC upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

Julian Elliot commenced employment with Kennard’s Hire Pty Ltd (Kennards) in 2010 as a customer service centre manager. He last worked for Kennards in April 2022. At that time two employees of Kennards who were on probation made false allegations to Kennards about Mr Elliot's behaviour towards them. Kennards conducted an inquiry, but despite being unable to substantiate the allegations made against him, Kennards sought his resignation. These events caused Mr Elliot to suffer a psychiatric injury.
Mr Elliot claimed compensation from Kennards for permanent impairment resulting from his injury. Kennards denied his claim, prompting Mr Elliot to initiate proceedings in the Personal Injury Commission (Commission) seeking determination by the Commission of his claim.
A delegate of the President of the Commission referred several medical disputes to Medical Assessor Aman Suman to assess. These were described in the referral issued to the Medical Assessor in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the degree of permanent impairment of the worker as a result of an injury
(s319(c))
 whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 14 April 2022
Body part/s referred: Psychiatric and psychological disorders
Method of assessment: Whole Person Impairment”
The Medical Assessor examined Mr Elliot on 18 January 2024 to conduct the assessment.
On 5 February 2024 the Medical Assessor issued a Medical Assessment Certificate (MAC) in response to the referral. In that he certified that Mr Elliot's impairment is permanent and that the degree of his permanent impairment is fully ascertainable. The Medical Assessor also indicated he assessed the overall permanent impairment of Mr Elliot from his injury is 22% whole person impairment (WPI). The Medical Assessor certified that a proportion of that is due to a pre-existing condition and further certified that the proportion is 1/10th. It is apparent to the Appeal Panel from the MAC,…

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 Kennard's Hire Pty Ltd v Elliott

Details

AGLC: Kennard's Hire Pty Ltd v Elliott [2024] NSWPICMP 288
Case: [2024] NSWPICMP 288
Decision Date: 14 May 2024

CaseChat Overview and Summary

The case of Kennard's Hire Pty Ltd v Elliott involved a dispute between the employer and the employee over a Medical Assessment Certificate (MAC) issued under the Workplace Injury Management and Workers Compensation Act 1998. Both parties appealed the MAC, which concerned a deduction made by the Medical Assessor (MA) under section 323(1). The primary issue was whether the MA had properly considered the evidence provided and whether there were errors in the deduction process.

The court examined several legal issues, including whether the MA had correctly applied the statutory provisions and the Guidelines. Specifically, the court looked at whether the MA had erred by assuming a 10% deduction in accordance with section 323(2) without considering paragraph 11.10 of the Guidelines. Another key issue was whether the MA had overlooked the worker's pre-existing condition of recurrent depression, which could have affected the assessment.

The Appeal Panel determined that while the MA had indeed erred by not finding the worker had a pre-existing condition of recurrent depression, this error did not affect the outcome of the case. The Panel upheld the MAC, concluding that the MA's errors did not alter the final decision. The Appeal Panel's findings led to the affirmation of the original MAC, thereby resolving the dispute in favour of the employer.

In light of the Appeal Panel's decision, the court ordered that the MAC be upheld. The worker's appeal was dismissed, and the employer's position was reinforced. The court's ruling clarified the application of the statutory provisions and the Guidelines, providing guidance for future assessments involving similar circumstances.

Orders