Ly v Sika Australia Pty Ltd - [2024] NSWPICMP 744

DETERMINATION OF APPEAL PANEL
CITATION:	Ly v Sika Australia Pty Ltd [2024] NSWPICMP 744
APPELLANT:	Katia Ly
RESPONDENT:	Sika Australia Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	29 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the psychiatric impairment rating scale (PIRS) tables for self-care and personal hygiene, travel and concentration, persistence and pace; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 September 2024 Katia Ly lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Michael Hong, who issued a Medical Assessment Certificate (MAC) on 5 August 2024.
Ms Ly relies on the following grounds 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, 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 the Medical Assessor applied incorrect criteria when assessing Ms Ly using the Psychiatric Impairment Rating Scale (PIRS). 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

Ms Ly was employed by Sika Australia Pty Ltd (Sika) as a payroll manager. She claims compensation for a psychological injury which is deemed to have been suffered on 3 December 2021 as a result of interactions in the workplace.
The Medical Assessor assessed Ms Ly and prepared a MAC dated 5 December 2022. At that time the Medical Assessor considered that Ms Ly’s condition had not reached maximum medical improvement. On 19 March 2024, Ms Ly requested that they may reconsider his MAC. On 13 May 2024, having considered the parties’ submissions, the President’s delegate referred the matter back to the Medical Assessor.
The Medical Assessor assessed 9% whole person impairment (WPI), placing Ms Ly in class 2 for self-care and personal hygiene, travel, social functioning and concentration, persistence and pace. He assessed her in class 3 for social and recreational activities and class 5 for employability.

PRELIMINARY REVIEW

We conducted a…

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 744
Decision Date: 29 October 2024

CaseChat Overview and Summary

The case of Ly v Sika Australia Pty Ltd involved the claimant, Ly, who sought compensation for psychological injuries sustained during his employment with Sika Australia Pty Ltd. The dispute centred on the assessment of Ly's psychological injury under the provisions of the Workplace Injury Management and Workers Compensation Act 1998. Specifically, Ly argued that his psychological impairment was inadequately assessed, particularly regarding the tables for self-care and personal hygiene, travel and concentration, persistence and pace as per the psychiatric impairment rating scale (PIRS).

The central legal issues before the court were whether the psychological injury was correctly assessed according to the statutory framework and whether the insurer's assessment of the injury was legally sound. The court had to determine if the insurer's Medical Assessment Certificate was justified in the context of Ly's psychiatric impairment and whether the certificate should be revoked or upheld.

In its reasoning, the court found that the insurer's assessment did not adequately account for the severity of Ly's psychological impairment. The court examined the evidence provided by Ly and concluded that the assessment of the injury, particularly concerning the areas of self-care and personal hygiene, travel, and concentration, was insufficient. The court held that the certificate did not align with the statutory requirements and thus revoked the Medical Assessment Certificate. The court ordered that a new assessment be conducted to accurately reflect Ly's psychological impairment and the appropriate compensation be determined accordingly.

Orders