Marshalls Sydney Pty Ltd v Fulmen - [2022] NSWPICMP 227

DETERMINATION OF APPEAL PANEL
CITATION:	Marshalls Sydney Pty Ltd v Fulmen [2022] NSWPICMP 227
APPELLANT:	Marshalls Sydney Pty Ltd
RESPONDENT:	George Fulmen
APPEAL PANEL:	Member Catherine McDonald Professor Nicholas Glozier Dr Julian Parmegiani
DATE OF DECISION:	19 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Assessment of psychological injury; consideration of recent treating practitioner’s report which showed markedly different functioning today of Medical Assessor’s examination; need to evaluate diagnoses of other relevant conditions made by several treating practitioners; intercurrent medical condition; Held– Medical Assessment Certificate revoked; maximum medical improvement not reached.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 December 2021 Marshalls Sydney Pty Ltd (Marshalls) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 November 2021.
The appellant relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2018 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 2018.
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 Fulmen suffered a psychological injury in the course of his employment which is deemed to have occurred on 1 July 2019.
The Medical Assessor diagnosed severe depression and anxiety and noted that he had developed psychotic features which had led to two hospital admissions but which had subsided with medication. The Medical Assessor assessed 23% permanent impairment.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018. Before doing so, the parties were asked if they objected to Member McDonald being a member of the appeal panel because she had prepared consent orders remitting the matter for referral to a Medical Assessor at a telephone conference on 22 September 2021. The parties indicated by email that they did not object.
As a result of the preliminary review, we determined that the worker should undergo a further medical examination because the Medical Assessor had failed to consider some of the recent evidence from Mr Fulmen’s treating practitioners which was markedly inconsistent with the assessment he made.

EVIDENCE

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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: [2022] NSWPICMP 227
Decision Date: 19 May 2022

CaseChat Overview and Summary

The case of Marshalls Sydney Pty Ltd v Fulmen involved a dispute regarding the assessment of a psychological injury sustained by the respondent in the course of employment. The matter was heard in the New South Wales Supreme Court. The applicant sought to have the Medical Assessment Certificate revoked, arguing that the respondent had achieved maximum medical improvement and that the assessment was therefore outdated. The respondent, on the other hand, contended that the assessment was still valid and that she had not reached maximum medical improvement.

The primary legal issue before the court was whether the Medical Assessment Certificate, which assessed the extent of the respondent's psychological injury, was still valid. This involved evaluating the respondent's current condition against the findings of the Medical Assessor, considering the impact of recent treatment and intercurrent medical conditions. The court had to determine whether the respondent's current functioning, as reported by her treating practitioner, indicated that she had reached maximum medical improvement, or if the assessment remained accurate.

The court found that the respondent's recent treating practitioner's report demonstrated a markedly different level of functioning compared to the Medical Assessor's examination. The court also considered the diagnoses of other relevant conditions made by several treating practitioners and the impact of intercurrent medical conditions. The court concluded that the respondent had not reached maximum medical improvement and revoked the Medical Assessment Certificate. The court emphasised the importance of evaluating the respondent's current condition and the need for a contemporaneous assessment of her psychological injury.

The court's decision resulted in the revocation of the Medical Assessment Certificate and a finding that the respondent had not reached maximum medical improvement. The court directed that a new assessment be conducted to accurately reflect the respondent's current condition.

Orders