Mitchell v IOOF Service Co Pty Ltd - [2023] NSWPICMP 88

DETERMINATION OF APPEAL PANEL
CITATION:	Mitchell v IOOF Service Co Pty Ltd [2023] NSWPICMP 88
APPELLANT:	Gary Stephensen Mitchell
RESPONDENT:	IOOF Service Co Pty Ltd
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	13 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Psychological injury; assessment under Psychiatric Injury Rating Scale (PIRS); worker alleged that the Medical Assessor made incorrect assessments of social and recreational activities and social functioning, relying on the same examples under both tables and aspect of self-care and personal hygiene; Ballas v Department of Education, Jenkins v Ambulance Service of NSW and Ferguson v State of New South Wales discussed; assessment of concentration, persistence and pace based on observations during examination and history provided; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 January 2023 Gary Mitchell lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 December 2022.
Mr Mitchell 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. 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

Mr Mitchell was employed by IOOF Service Co Pty Ltd (IOOF) as a financial advisor. In 2019 he was asked to look after a number of clients who had previously been represented by the company’s Canberra office. He was required to travel to visit those clients, making long road trips with poor internet connectivity, and to undertake work in the office between those trips to complete compliant reviews. He felt overwhelmed by what was required of him and unsupported as his work fell further behind. Mr Mitchell suffered a psychological injury which is deemed to have occurred on 1 March 2021, when he ceased work.
The Medical Assessor assessed 7% whole person impairment (WPI), assessing Mr Mitchell under the Psychiatric Impairment Rating Scale…

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: [2023] NSWPICMP 88
Decision Date: 13 March 2023

CaseChat Overview and Summary

Mitchell brought proceedings against IOOF Service Co Pty Ltd in the Workers Compensation Claims Division of the NSW Supreme Court, claiming that the insurer had failed to appropriately assess his psychological injuries. The dispute centred on the accuracy of the Medical Assessor's ratings under the Psychiatric Injury Rating Scale (PIRS), specifically regarding social and recreational activities, social functioning, self-care, and personal hygiene. Mitchell argued that the Medical Assessor had incorrectly applied the same examples under different PIRS tables and aspects of self-care and personal hygiene, leading to an underestimation of his injuries.

The court was tasked with determining whether the Medical Assessor had correctly applied the PIRS in assessing Mitchell's psychological injuries. This required examining the evidence presented by both parties, including the Medical Assessor's report, Mitchell's history, and expert testimony. The court considered relevant precedents such as Ballas v Department of Education, Jenkins v Ambulance Service of NSW, and Ferguson v State of New South Wales, which provided guidance on the application of the PIRS and the importance of a holistic assessment of psychological injuries.

In its decision, the court found that the Medical Assessor had appropriately considered Mitchell's history and observations during the examination to assess his concentration, persistence, and pace. The court also noted that while there were some inconsistencies in the application of examples under different PIRS tables, these did not significantly affect the overall assessment. The court concluded that the Medical Assessment Certificate was correctly issued, affirming the insurer's position.

The final orders of the court upheld the Medical Assessment Certificate, dismissing Mitchell's claims for compensation on the basis of the alleged errors in the assessment.

Orders