Nicola v Sturdy Components Pty Ltd - [2023] NSWPICMP 574

DETERMINATION OF APPEAL PANEL
CITATION:	Nicola v Sturdy Components Pty Ltd [2023] NSWPICMP 574
APPELLANT:	Loucas Nicola
RESPONDENT:	Sturdy Components Pty Ltd
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	15 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against a psychological injury assessment of 7%; whether Medical Assessor (MA) had erred in his assessment of the psychiatric impairment rating scale (PIRS) category of social functioning; whether statement that divorce contemplated justified a moderate class 3 assessment; whether the MA had failed to properly apply the provisions of Chapter 11.10 of the Guides; Held – MA assessment a practical demonstration of the pre-eminence of a clinician; ambiguity of evidence clarified in the history taken; Ferguson v State of New South Wales applied, no error in the mild class 2 assessment made: chapter 11.10 now ultra vires; Camden Council v Harle applied; 1/10th deduction pursuant to section 323 appropriate; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 July 2023, Loucas Nicola, the appellant 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 19 June 2023.
The appellant 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 18 April 2023 the President’s delegate referred this matter to a Medical Assessor for an assessment of WPI caused by a psychiatric and psychological disorders deemed to have occurred on 14 June 2022.
The history was accurately recounted by the Medical Assessor.
Mr Nicola refused to cooperate in some allegedly fraudulent conduct by the director of the company. He also had a negative experience regarding a sexual harassment claim brought…

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

AGLC: Nicola v Sturdy Components Pty Ltd [2023] NSWPICMP 574
Case: [2023] NSWPICMP 574
Decision Date: 15 November 2023

CaseChat Overview and Summary

Nicola brought a case against Sturdy Components Pty Ltd in relation to a workers' compensation claim arising from a workplace injury. The dispute centred on the assessment of psychological injury by the Medical Assessor (MA), which determined a 7% psychiatric impairment rating. The case was heard in the relevant Australian court. The core legal issues revolved around whether the MA had erred in his assessment of the psychiatric impairment rating scale (PIRS) category of social functioning and if the statement regarding contemplated divorce justified a higher moderate class 3 assessment. Additionally, it was questioned whether the MA failed to correctly apply the provisions of Chapter 11.10 of the Guides.

The court examined the MA's assessment process, focusing on the ambiguity in the evidence provided. It was noted that the MA's approach demonstrated the importance of a clinician's judgement. The court referenced Ferguson v State of New South Wales to support the MA's decision and held that there was no error in the mild class 2 assessment made, considering Chapter 11.10 now beyond the scope of authority. The principles in Camden Council v Harle were applied to determine the appropriateness of a 1/10th deduction under section 323. Consequently, the Medical Assessment Certificate was confirmed.

In summary, the court upheld the MA's assessment, finding no grounds for error. The mild class 2 rating was affirmed, and a 1/10th deduction under section 323 was deemed appropriate, with the Medical Assessment Certificate remaining valid.

Orders