Murray v Sydney Trains - [2024] NSWPICMP 353

DETERMINATION OF APPEAL PANEL
CITATION:	Murray v Sydney Trains [2024] NSWPICMP 353
APPELLANT:	Damien Murray
RESPONDENT:	Sydney Trains
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	3 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor’s (MA) ratings of the appellant’s impairment in self-care and personal hygiene and in concentration, persistence and pace were correct based on the evidence; Held –MA’s ratings incorrect based on the history she obtained; Medical Assessment Certificate (MAC) consequently contained a demonstrable error; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 February 2024 Damien Murray, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 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 (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) for 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 was employed by Sydney Trains, the respondent, between 21 January 1991 and 8 June 2023. From 1996 until the end of his employment, he worked as a train driver. Due to several incidents that occurred in his employment with the respondent, the appellant suffered a psychological injury. He claimed compensation for permanent impairment he said resulted from his injury, relying on a report of psychiatrist Dr Abhishek Nagesh dated 20 September 2022 who had assessed the appellant had 20% whole person impairment (WPI) from his injury.
After the respondent received the appellant’s claim for compensation, its solicitors organised for the appellant to be examined by psychiatrist Dr Judith Clarke on 21 April 2023. In a report dated 5 May 2023 Dr Clarke advised the respondent’s solicitors that the appellant had suffered a work injury in the form of an aggravation of a pre-existing post-traumatic stress disorder. She also advised that her opinion was that the appellant’s work-related aggravation of that illness had resolved. She advised that she also considered the appellant had an alcohol use…

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 353
Decision Date: 3 June 2024

CaseChat Overview and Summary

The appellant, Murray, contested the correctness of certain ratings given by a Medical Assessor in relation to his impairment in self-care, personal hygiene, concentration, persistence, and pace. The Medical Assessor's ratings were part of a Medical Assessment Certificate that was used to determine the appellant's entitlements under workers compensation. The dispute was heard in the New South Wales Civil and Administrative Tribunal, which has jurisdiction over workers compensation matters in the state.

The primary legal issue before the court was whether the Medical Assessor's ratings were accurate and supported by the evidence. The appellant argued that the Medical Assessor had obtained an incorrect history of his medical condition and, as a result, her ratings were flawed. The court was required to review the evidence presented by both parties to determine if the Medical Assessor's ratings were appropriate and whether the Medical Assessment Certificate contained any errors.

The tribunal found that the Medical Assessor had indeed obtained an incorrect history of the appellant's condition, which led to incorrect ratings in the Medical Assessment Certificate. The tribunal concluded that the Medical Assessment Certificate contained a demonstrable error as a result of the incorrect history. Given this finding, the tribunal revoked the Medical Assessment Certificate and ordered that a new assessment be conducted by a different assessor. The tribunal emphasised the importance of obtaining accurate information when assessing a claimant's condition to ensure that the ratings and entitlements are correctly determined.

The tribunal ordered that the Medical Assessment Certificate be revoked and that a new assessment be conducted by a different Medical Assessor. The tribunal also ordered that the appellant's entitlements be recalculated based on the new assessment. This decision highlights the importance of obtaining accurate information when assessing a claimant's condition to ensure that the ratings and entitlements are correctly determined.

Orders