Khano v Akropolis Food Services Pty Ltd - [2024] NSWPICMP 706

DETERMINATION OF APPEAL PANEL
CITATION:	Khano v Akropolis Food Services Pty Ltd [2024] NSWPICMP 706
APPELLANT:	Ashour Khano
RESPONDENT:	Akropolis Food Services Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	9 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Appellant submits that the Medical Assessor (MA) erred in failing to have regard to all of the evidence and provide adequate reasons, in particular, failure to follow the determination of the Personal Injury Commission’s (Commission) Member as to causation, failure to have regard to the Member’s determination, and failure to provide any or any adequate reasons; Medical Appeal Panel (Panel) agreed that the MA’s reasons were inadequate but as there was no challenge to the impairment assessment this failure in our view does not render the Medical Assessment Certificate (MAC) null and void; without an identified error in the psychiatric impairment rating scale (PIRS), the Panel cannot disturb the ratings and has no power to reassess the appellant in relation to the PIRS; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 July 2024 the appellant, Ashour Khano lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 June 2024.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria (section 327(3)(c)), 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 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 14 February 2024 Member Wynyard issued a Certificate of Determination wherein he determined that the appellant sustained an injury to his lumbar spine and that “the onset of Mr Khano’s post-traumatic stress disorder was a primary psychological injury pursuant to s 65A of the 1987 Act”.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence…

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: [2024] NSWPICMP 706
Decision Date: 9 October 2024

CaseChat Overview and Summary

The appeal before the court involves Khano, the appellant, and Akropolis Food Services Pty Ltd, the respondent. The appellant is challenging the decision of the Medical Assessor (MA) regarding his psychiatric impairment, which was assessed as part of a workers' compensation claim. The dispute primarily revolves around the adequacy of the reasons provided by the MA and whether they aligned with the determination of the Personal Injury Commission’s Member concerning causation. The case was heard and determined by the Medical Appeal Panel (Panel).

The legal issues before the Panel were whether the MA had failed to consider all the relevant evidence and provide sufficient reasons for their assessment, particularly in light of the Commission Member's determination on causation. The appellant argued that the MA did not adequately follow the Commission Member's determination and failed to provide any or adequate reasons for the assessment. The Panel needed to determine whether the MA's failure to provide adequate reasons invalidated the Medical Assessment Certificate (MAC) and if the Panel had the authority to reassess the appellant's psychiatric impairment rating scale (PIRS) in the absence of an identified error.

The Panel found that while the MA’s reasons were indeed inadequate, this did not invalidate the MAC as there was no challenge to the impairment assessment itself. The Panel emphasised that without an identified error in the PIRS, they did not have the power to reassess the appellant's psychiatric impairment. Consequently, the Panel upheld the MAC, confirming the ratings provided by the MA. The appellant's appeal was dismissed, and the MAC was confirmed as valid.

The court's final order confirmed the Medical Assessment Certificate, upholding the findings of the Medical Assessor despite the identified shortcomings in the reasons provided.

Orders