Lancaster v Foxtel Management Pty Ltd - [2021] NSWPICMP 176

DETERMINATION OF APPEAL PANEL
CITATION:	Lancaster v Foxtel Management Pty Ltd [2021] NSWPICMP 176
APPELLANT:	Mark Lancaster
RESPONDENT:	Foxtel Management Pty Ltd
APPEAL PANEL:	Member Elizabeth Beilby Dr Julian Parmegiani Professor Nicholas Glozier
DATE OF DECISION:	21 September 2021
CATCHWORDS:	WORKERS COMPENSATION- Consideration of psychiatric impairment rating scale categories; additional evidence application permitted to remedy factual matters; Held – Medical Assessment Certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 July 2020 Mark Lancaster lodged an Application to Appeal Against the Decision of an Approved Medical Specialist (AMS). The medical dispute was assessed by Dr Michael Hong, an (AMS) who issued a Medical Assessment Certificate (MAC) on 22 June 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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);
·        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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant claims that he has suffered a psychological injury by reason of bullying and harassment in the workplace. There is no dispute that the appellant suffered an injury.
The appellant made a claim for 19% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The matter was referred to an AMS Dr Michael Hong, who issued a Medical Assessment Certificate dated 22 June 2020. Dr Hong assessed the appellant’s whole person impairment as a result of the work-related injury as 9%.
The matter was then referred to a Medical Appeal Panel who issued a decision on 13 October 2020 confirming the appellant’s whole person impairment as assessed by Dr Hong.
The determination of the Appeal Panel was considered by the Supreme Court in Lancaster v Foxtel Management Pty Ltd [2021] NSWSC 745 on 24 June 2021.
The Supreme Court considered that the determination by the Appeal Panel not to re-examine the plaintiff in circumstances where…

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: [2021] NSWPICMP 176
Decision Date: 21 September 2021

CaseChat Overview and Summary

The case of Lancaster v Foxtel Management Pty Ltd involved the applicant, Mr Lancaster, seeking a psychiatric impairment rating for the purpose of workers compensation. The respondent, Foxtel Management Pty Ltd, was the employer in the dispute. The matter was heard in the New South Wales Civil and Administrative Tribunal (NCAT). The primary legal issue before the tribunal was whether the applicant was entitled to a psychiatric impairment rating based on the evidence provided and whether the tribunal should permit additional evidence to be presented to address factual matters.

The tribunal examined the statutory framework governing the assessment of psychiatric impairment under the Workers Compensation scheme. It considered whether the applicant had demonstrated a psychiatric injury that warranted a rating and if the existing evidence was sufficient to make an informed decision. The tribunal also addressed the respondent's objection to the applicant's application for additional evidence, weighing the importance of the new information against the principles of procedural fairness and the need for a comprehensive assessment.

The tribunal found that the applicant had provided sufficient evidence to support a finding of psychiatric injury. However, the tribunal acknowledged the need for further clarification on certain factual matters to ensure a fair and accurate assessment. It permitted the application for additional evidence, reasoning that it was necessary to remedy the identified factual issues. The tribunal ultimately confirmed the Medical Assessment Certificate, which had previously assigned a psychiatric impairment rating to the applicant. This decision recognised the applicant's entitlement to compensation for his psychiatric injury.

The tribunal's final orders included the confirmation of the psychiatric impairment rating as outlined in the Medical Assessment Certificate. Additionally, the tribunal directed the parties to address the procedural matter of the additional evidence application, ensuring that the applicant's claim was fully and fairly considered. This outcome provided clarity for both parties and ensured that the applicant's workers compensation claim was assessed with due regard to all relevant evidence.

Orders