Lazarus v Connor Clothing Pty Ltd - [2024] NSWPICMP 537

DETERMINATION OF APPEAL PANEL
CITATION:	Lazarus v Connor Clothing Pty Ltd [2024] NSWPICMP 537
APPELLANT:	Michelle Lazarus
RESPONDENT:	Connor Clothing Pty Ltd
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	2 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (WPI); psychological injury; whether Medical Assessor (MA) erred when assessing WPI under the psychiatric impairment rating scale (PIRS) in terms of social functioning and employability; whether MA erred by failing to give reasons for deduction; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant worker, Ms Lazarus, appeals from the Medical Assessment Certificate of Medical Assessor Verma dated 22 February 2024. Medical Assessor Verma examined her on 12 February 2024 by video, and diagnosed post-traumatic stress disorder as a result of injury on 9 June 2023 (deemed date).
She assessed a 19% whole person impairment (psychological). From this, she deducted 7% for a pre-existing psychiatric condition, to arrive at a final whole person impairment of 12%.
In doing so, the Medical Assessor assessed two of the psychiatric impairment rating scales (PIRS) as follows:
(a) Employability: Class 4 impairment.
(b) Social functioning: Class 2 impairment.
The appellant submits that the assessment of these two rating scales, and the deduction of 7% for a pre-existing condition, demonstrate error. No other error is alleged.
The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.

Submissions

The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:
(a) In respect of Employability:
(i)the assessment of a class 4 impairment was inconsistent with the conclusions expressed by the Medical Assessor at pages 5 and 15 that the worker did not have any capacity to engage in any form of employment. Those conclusions justified a class 5 impairment, and
(ii)the views expressed at pages 10-12 of the Medical Assessment Certificate to the effect that the worker had capacity to work less than 20 hours per fortnight, in answer to the class 5 impairment assessed by independent psychiatrists Dr Doris (relied on by the insurer) and Dr Rastogi (relied on by the worker) were also inconsistent with the conclusions referred to in the preceding paragraph, demonstrating error.
(b) In respect of Social functioning:
(i)the Medical Assessor assessed a class 2 impairment, as had Dr Doris and Dr Rastogi;
(ii)the Medical Assessor took a history that the worker had separated from her husband, though the two continued to live together. That history was not taken by Dr Doris or Dr Rastogi, indicating that separation had probably occurred after their assessments, and represents a deterioration in social functioning since those assessments, and
(iii)the recent separation was consistent with a class 3 impairment. The Medical Assessor failed to give reasons as to why a class 3 impairment was not…

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 537
Decision Date: 2 August 2024

CaseChat Overview and Summary

The matter before the Court of Appeal was an appeal by the respondent, Connor Clothing Pty Ltd, against an assessment of whole person impairment (WPI) made in favour of the appellant, Lazarus. The dispute involved a psychological injury suffered by Lazarus as a result of his employment, and the dispute centred on the correctness of the WPI assessment, specifically in relation to social functioning and employability, as well as the reasons provided by the Medical Assessor (MA). The appeal was heard in the Court of Appeal of the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the MA had erred in assessing the WPI under the psychiatric impairment rating scale (PIRS) with respect to social functioning and employability, and whether the MA had failed to provide adequate reasons for the deductions made in the assessment. The appellant argued that the MA had misapplied the PIRS, leading to an underestimation of the WPI, and that the lack of detailed reasons for the deductions was a significant flaw in the assessment process.

The Court of Appeal found that the MA had indeed erred in the assessment of the WPI. The court determined that the MA had not correctly applied the PIRS in relation to social functioning and employability, resulting in an understatement of the WPI. Furthermore, the court held that the MA had not provided sufficient reasons for the deductions made, which was a critical deficiency in the assessment process. Consequently, the Court of Appeal revoked the Medical Assessment Certificate and remanded the matter for a new assessment, ensuring that the MA correctly applies the PIRS and provides detailed reasons for any deductions.

The final orders of the court were that the Medical Assessment Certificate issued by the MA was revoked, and the matter was to be remitted to the Authority for a new assessment. The new assessment was to be conducted in accordance with the correct application of the PIRS and with adequate reasons provided for any deductions made. The Court of Appeal emphasised the importance of thorough and accurate assessments to ensure fair outcomes for claimants in workers compensation matters.

Orders