Marinos v Macquarie University - [2024] NSWPICMP 222

DETERMINATION OF APPEAL PANEL
CITATION:	Marinos v Macquarie University [2024] NSWPICMP 222
APPELLANT:	Danny Marinos
RESPONDENT:	Macquarie University
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	15 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for primary psychiatric injury; worker appealed assessments in the psychiatric impairment rating scale categories of self-care and personal hygiene, social functioning, social and recreational activities, employability and concentration, persistence and pace; Medical Assessor erred in assessment of social and recreational activities, employability and concentration, persistence and pace; no error in assessment of self-care and personal hygiene and social functioning; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 February 2024 Danny Marinos (the applicant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 January 2024.
The appellant 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 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.
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

The applicant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 20 July 2023 in which he claimed 22% whole person impairment (WPI) in respect of psychiatric and psychological disorders.
In consent orders dated 21 September 2023, Member Wright remitted the matter to the President for referral to a Medical Assessor for assessment of psychological/psychiatric disorder deemed to have occurred on 25 May 2020.
The matter was referred to the Medical Assessor, Dr Himanshu Singh, on 19 January 2024 for assessment of WPI of a psychological/psychiatric disorder with the date of injury being 25 May 2020 (deemed).
The Medical Assessor examined Mr O’Sullivan on 22 November 2023 and assessed 7% WPI for the psychological injury on 25 May 2020.

PRELIMINARY REVIEW

The Appeal…

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 222
Decision Date: 15 April 2024

CaseChat Overview and Summary

In the case of Marinos v Macquarie University, the appellant, a former employee, sought compensation for a primary psychiatric injury sustained during employment. The dispute centred on the assessments made in the psychiatric impairment rating scale categories, including self-care and personal hygiene, social functioning, social and recreational activities, employability, and concentration, persistence, and pace. The respondent, Macquarie University, contested the appellant's claims, arguing that the assessments were accurate. The case was heard in the NSW Civil and Administrative Tribunal (NCAT), where the appellant sought to overturn the initial assessments.

The central legal issues the court had to address were whether the Medical Assessor had erred in the assessment of specific categories within the psychiatric impairment rating scale and whether the appellant's claims warranted a revocation of the Medical Assessment Certificate. The appellant argued that the assessments in the categories of social and recreational activities, employability, and concentration, persistence, and pace were incorrect. Conversely, the respondent maintained that the assessments were fair and accurately reflected the appellant's condition.

The tribunal found that the Medical Assessor had indeed erred in the assessment of social and recreational activities, employability, and concentration, persistence, and pace. The tribunal noted that the evidence did not support the low ratings assigned in these categories. However, the tribunal upheld the assessments for self-care and personal hygiene, as well as social functioning, finding them to be accurate. Consequently, the tribunal revoked the Medical Assessment Certificate and directed the respondent to reassess the appellant's condition in the contested categories. This decision recognised the appellant's entitlement to a fair assessment of their psychiatric injury and its impact on their life.

Orders