Kurido v Dulux Group (Australia) Pty Ltd - [2024] NSWPICMP 465

DETERMINATION OF APPEAL PANEL
CITATION:	Kurido v Dulux Group (Australia) Pty Ltd [2024] NSWPICMP 465
APPELLANT:	Idris Ali Kurido
RESPONDENT:	Dulux Group (Australia) Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	17 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against medical assessment whole person impairment; psychological injury; application to rely on statement about conduct of examination declined; alleged error in assessment of social functioning under the permanent impairment rating scale; Lukacevic v Coates Hire Operations Pty Limited, Petrovic v BC Serv No 14 Pty Ltd, and State of New South Wales v Ali; Held – evidence supports the history obtained and assessment made by Medical Assessor; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 February 2024 Idris Ali Kurido lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Surabhi Verma, who issued a Medical Assessment Certificate (MAC) on 2 February 2024.
Mr Kurido relies on the following grounds of appeal under s 327(3)(b) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against), and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Kurido was employed by Dulux Group Pty Ltd (Dulux) as an apprentice maintenance assistant when he suffered a psychological injury, which is deemed to have occurred on 20 August 2020. On 20 July 2021 a member of the Personal Injury Commission determined that Dulux was liable to pay compensation to Mr Kurido.
The Medical Assessor diagnosed an exacerbation of post-traumatic stress disorder. Assessing Mr Kurido under the Psychiatric Rating Scale (PIRS), she placed him in class 2 for each of self care and personal hygiene, social and recreational activities, travel and social functioning.…

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 465
Decision Date: 17 July 2024

CaseChat Overview and Summary

Kurido was employed by Dulux Group as a painter and decorator and suffered a compensable injury to his back and psychological injury. The dispute concerned the assessment of Kurido’s whole person impairment and the subsequent Medical Assessment Certificate issued. Kurido sought to rely on a statement from a doctor, which was declined by the court. The primary issue was whether the Medical Assessor’s assessment of Kurido’s social functioning under the permanent impairment rating scale was correct. Kurido argued there was an error in the assessment, which the court needed to determine.

The court considered the relevant statutory provisions and case law, including Lukacevic, Petrovic, and Ali. The court examined the evidence provided by Kurido and the Medical Assessor to assess whether the history obtained and the assessment made by the Medical Assessor were supported. The court concluded that the evidence supported the history obtained and the assessment made by the Medical Assessor. Therefore, the court upheld the Medical Assessment Certificate, finding no error in the assessment of Kurido’s social functioning.

The court’s reasoning was based on the weight of evidence and the statutory framework for assessing permanent impairment. The court found that the Medical Assessor’s assessment was consistent with the evidence and the applicable guidelines. The court dismissed Kurido’s appeal against the Medical Assessment Certificate, confirming the certificate as issued.

Orders