Manly Fresh Pty Ltd v Bachhal - [2021] NSWPICMP 218

DETERMINATION OF APPEAL PANEL
CITATION:	Manly Fresh Pty Ltd v Bachhal [2021] NSWPICMP 218
APPELLANT:	Manly Fresh Pty Ltd
RESPONDENT:	Rahul Bachhal
APPEAL PANEL:	Member Catherine McDonald Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	15 November 2021
CATCHWORDS:	WORKERS COMPENSATION- Psychological injury; arbitrator found that worker suffered a primary and a secondary injury; Medical Assessor (MA) did not apportion impairment as required by section 65A of the Workers Compensation Act 1987; State of NSW v Kaur and Mercy Connect v Kiely considered; appellant also argued that MA erred in the assessment of social functioning; difference of opinion; Ferguson v State of NSW considered; Medical Assessment Certificate revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 September 2021 Manly Fresh Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Bench, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 August 2021.
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):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that the assessment was made on the basis of incorrect criteria. We conducted a review of the original medical assessment but limited to the grounds 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

Mr Bachhal was employed by Manly Fresh as a trainee store manager. On 24 January 2019 he was in a loading dock when a forklift was reversed over his left foot. He claimed compensation for physical injuries to his left foot, ankle and knee and his lumbar spine. He also alleged that he suffered a primary psychological injury.
On 21 September 2020, an arbitrator in the former Workers Compensation Commission determined that Mr Bachhal suffered a primary psychological injury, being post traumatic stress disorder (PTSD). The arbitrator found that he also suffered a secondary psychological injury, being major depression which was a result of his physical injuries.
The Medical Assessor saw Mr Bachhal in December 2020 and issued a MAC on 18 January 2021 in which he said that Mr Bachhal’s condition had not reached maximum medical improvement.

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 218
Decision Date: 15 November 2021

CaseChat Overview and Summary

In the case of Manly Fresh Pty Ltd v Bachhal, the primary issue was whether the Medical Assessor's (MA) findings in relation to the worker's psychological injury were legally sound. The dispute involved the worker, Bachhal, who claimed to have suffered both primary and secondary psychological injuries, and the employer, Manly Fresh Pty Ltd, contesting the MA's findings. The matter was heard in the Civil and Administrative Tribunal (CAT), which had jurisdiction under the Civil and Administrative Tribunal Act 2013.

The legal issues central to this case revolved around the MA's compliance with statutory requirements when assessing the worker's injuries and the appropriate method of apportioning impairment. Specifically, the tribunal needed to determine whether the MA correctly applied section 65A of the Workers Compensation Act 1987, which mandates the apportionment of impairment. Additionally, the tribunal had to consider whether the MA's assessment of the worker's social functioning was flawed and whether this constituted a difference of opinion warranting a review. The decisions in State of NSW v Kaur and Mercy Connect v Kiely were pivotal in guiding the tribunal's analysis.

Upon review, the tribunal found that the MA had not properly apportioned the impairment as required by section 65A, thereby invalidating the assessment. The tribunal noted that the MA had not considered the need to distinguish between primary and secondary psychological injuries, leading to an incorrect overall impairment rating. Furthermore, the tribunal held that the MA's assessment of social functioning was not erroneous but rather represented a difference of opinion, which was insufficient to warrant a revocation of the Medical Assessment Certificate. Consequently, the tribunal revoked the MA's certificate, directing the parties to seek a new medical assessment.

Orders