New Horizons Enterprises Ltd v Lindsay - [2024] NSWPICMP 483

DETERMINATION OF APPEAL PANEL
CITATION:	New Horizons Enterprises Ltd v Lindsay [2024] NSWPICMP 483
APPELLANT:	New Horizons Enterprises Limited
RESPONDENT:	Amanda Lindsay
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Professor Nick Glozier
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	18 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against finding of 15% whole person impairment for psychological injury; Medical Assessor (MA) applied the provisions of section 323(2) in assessing that a 1/10th deduction was appropriate in circumstances of significant prior psychological treatment; whether MA considered Application to Admit Late Documents containing clinical notes; whether MA erred in finding a class 3 rating pursuant to the psychiatric impairment rating scale (PIRS) for social and recreational activities, class 2 for social functioning and class 3 for concentration persistence and pace; Wingfoot Australia Partners Pty Ltd v Kocak, Cottom v Scone Race Club Ltd, Cole v Wenaline Pty Ltd and Ryder v Sundance Bakehouse Pty Ltd considered; Held – documentation in the Application to Admit Late Documents did no more than confirm the MA’s history regarding the worker's past psychological history; no error established regarding challenge to PIRS categories; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 January 2024 the appellant employer, New Horizons Enterprises Limited, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 December 2023.
The appellant employer 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 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 4 December 2023 an amended referral was made to the Medical Assessor seeking a WPI assessment of psychological and psychiatric disorders that were caused by injury on 30 October 2019 following consent orders…

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 483
Decision Date: 18 July 2024

CaseChat Overview and Summary

In the matter of New Horizons Enterprises Ltd versus Lindsay, the dispute centred on the assessment of a worker's psychological injury under the Workplace Injury Management and Workers Compensation Act 1998. The employer, New Horizons Enterprises Ltd, appealed the decision of the Medical Assessor (MA), who had determined a 15% whole person impairment due to psychological injury. The MA had applied the relevant provisions of the Act and had assessed that a deduction of 1/10th was appropriate, considering the worker's significant prior psychological treatment. The employer contested the appropriateness of the deduction, the consideration of late documents, and the classification of the worker's impairments according to the psychiatric impairment rating scale (PIRS).

The court was required to examine whether the MA had correctly considered the late documents, which contained clinical notes, in reaching the impairment rating. The employer argued that the MA had not properly assessed these documents. Additionally, the employer challenged the MA's determination of the worker's impairment levels for social and recreational activities, social functioning, and concentration, persistence, and pace, as outlined in the PIRS. The court had to determine if the MA had erred in applying the correct categories and if the assessment was consistent with the statutory framework and relevant case law.

The court found that the late documents did not alter the MA's established history of the worker's psychological condition. It was confirmed that the MA had appropriately considered the worker's past treatment and that the impairment rating was consistent with the evidence presented. The court also held that there was no error in the MA's application of the PIRS categories. The assessment was consistent with the precedent set in cases such as Wingfoot Australia Partners Pty Ltd v Kocak, Cottom v Scone Race Club Ltd, Cole v Wenaline Pty Ltd, and Ryder v Sundance Bakehouse Pty Ltd. The Medical Assessment Certificate was upheld, and the employer's appeal was dismissed.

The court's decision was that the MA's assessment of the worker's psychological impairment was correct and consistent with the statutory requirements and case law. The employer's appeal was dismissed, and the Medical Assessment Certificate was confirmed.

Orders