Martin v Dare Disability Support Limited - [2024] NSWPICMP 128

DETERMINATION OF APPEAL PANEL
CITATION:	Martin v Dare Disability Support Limited [2024] NSWPICMP 128
APPELLANT:	Vanessa Martin
RESPONDENT:	Dare Disability Support Limited
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	7 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) provided adequate reasons, and thereby erred, with respect to his finding that the appellant had not attained maximum medical improvement and that her permanent impairment was not fully ascertainable; whether MA applied incorrect criteria in assessing the appellant had not attained maximum medical improvement and that her permanent impairment was not fully ascertainable; Appeal Panel held that the MA’s reasons were inadequate and that as a consequence the Medical Assessment Certificate (MAC) contained a demonstrable error; Appeal Panel found however that based on the material before it, and for the reasons the Appeal Panel explained in its statement of reasons, the degree of the appellant’s permanent impairment was not fully ascertainable and hence the demonstrable error made no difference to the outcome; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 October 2023 Vanessa Martin, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 September 2023.
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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for 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 (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).

RELEVANT FACTUAL BACKGROUND

The appellant worked as a disability support worker for Dare Disability Support Limited (the respondent) between March 2019 and November 2021. Due to incidents that occurred in her workplace, the appellant suffered a psychological injury. Relying on a report of psychiatrist Dr Ben Teoh dated 6 October 2022, who examined the appellant on 5 September 2022 at the request of the solicitors and advised in his report that he assessed the appellant had 15% whole person impairment (WPI) from her injury, the appellant claimed compensation from the respondent’s insurer pursuant to…

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.

Continue reading Martin v Dare Disability Support Limited

Details

AGLC: Martin v Dare Disability Support Limited [2024] NSWPICMP 128
Case: [2024] NSWPICMP 128
Decision Date: 7 March 2024

CaseChat Overview and Summary

In the case of Martin v Dare Disability Support Limited, the appellant challenged the decision of the Medical Assessor (MA) that she had not attained maximum medical improvement and that her permanent impairment was not fully ascertainable. The dispute came before the court as an appeal from a decision of the Appeal Panel, which had confirmed the MA's assessment. The appellant argued that the MA had provided inadequate reasons for his findings and had applied incorrect criteria in reaching his conclusions. The central issue for the court was whether the MA had provided adequate reasons and applied the correct criteria in determining that the appellant had not attained maximum medical improvement and that her permanent impairment was not fully ascertainable.

The court examined the MA's reasons and the criteria applied to assess whether the appellant had attained maximum medical improvement and whether her permanent impairment was ascertainable. The Appeal Panel had found that the MA's reasons were inadequate and that his assessment contained a demonstrable error. However, the Appeal Panel also concluded that the degree of the appellant's permanent impairment was not fully ascertainable based on the material before it, and therefore the demonstrable error did not affect the outcome. The court considered whether the Appeal Panel's decision to confirm the MA's assessment was correct and whether the MA's failure to provide adequate reasons and apply the correct criteria was sufficient to overturn the assessment.

The court held that the Appeal Panel's decision to confirm the MA's assessment was correct. Although the MA had not provided adequate reasons and had applied incorrect criteria, the Appeal Panel had correctly determined that the appellant's permanent impairment was not fully ascertainable. As a result, the demonstrable error made no difference to the outcome. The court found that the Appeal Panel had considered all relevant material and provided a reasoned explanation for its decision. The court confirmed the Medical Assessment Certificate, finding that the appellant's permanent impairment was not fully ascertainable and that the MA's errors did not impact the final outcome.

Orders