Packham v Retail Adventures Pty Ltd - [2024] NSWPICMP 237

DETERMINATION OF APPEAL PANEL
CITATION:	Packham v Retail Adventures Pty Ltd [2024] NSWPICMP 237
APPELLANT:	Ricky Jon Packham
RESPONDENT:	Retail Adventures Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	23 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) wrongly considered if appellant’s permanent impairment was partly caused by subsequent events; whether MA applied correct test to determine if appellant’s permanent impairment was due to injury or subsequent event; whether MA was correct to make a deduction under section 323 for proportion of appellant’s permanent impairment due to a pre-existing condition; Appeal Panel held MA was correct to consider all matters including subsequent events that caused appellant’s permanent impairment, but MA applied incorrect test when assessing the degree of appellant’s permanent impairment due to appellant’s injury; Appeal Panel held MA was correct to make a deduction under section 323; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 November 2023 Ricky Jon Packham, 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 10 October 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) 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 Retail Adventures Pty Ltd, the respondent, as a retail assistant for approximately 10 years until 18 April 2012. Due to events that occurred in his workplace, including an assault on him on 18 April 2012 by several persons who had entered into the premises of the respondent, he suffered a psychological injury in the form of post-traumatic stress disorder. Relevant to the issues that have been raised in this appeal, the Panel notes that prior to the appellant commencing his employment with the respondent he had been diagnosed with attention deficit hyperactivity disorder.
Subsequent 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 Packham v Retail Adventures Pty Ltd

Details

AGLC: Packham v Retail Adventures Pty Ltd [2024] NSWPICMP 237
Case: [2024] NSWPICMP 237
Decision Date: 23 April 2024

CaseChat Overview and Summary

In the case of Packham v Retail Adventures Pty Ltd, the appellant, Packham, was involved in an incident at work that resulted in injuries. He subsequently lodged a claim for workers' compensation, which led to a dispute over the assessment of his permanent impairment. The matter was heard by the Appeal Panel of the Workers Compensation Regulatory Authority in Queensland. The primary issue before the Appeal Panel was whether the Medical Assessor (MA) had correctly assessed the degree of Packham's permanent impairment, specifically whether the MA had considered the appropriate factors and applied the correct legal tests in making the assessment. Additionally, the Panel needed to determine if the MA had erred in deducting a proportion of Packham's permanent impairment attributable to a pre-existing condition under section 323 of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel found that the MA had indeed taken into account all relevant matters, including subsequent events that contributed to Packham's permanent impairment. However, the Panel concluded that the MA had applied an incorrect test when assessing the degree of Packham's permanent impairment attributable to his workplace injury. The Panel held that while the MA was correct to consider subsequent events, the application of the wrong test meant that the assessment of Packham's permanent impairment due to the injury was flawed. Moreover, the Panel determined that the MA was correct to make a deduction under section 323 for the proportion of Packham's permanent impairment due to a pre-existing condition. Based on these findings, the Appeal Panel revoked the Medical Assessment Certificate issued by the MA.

The Appeal Panel's decision highlighted the importance of applying the correct legal tests in workers' compensation assessments. By revoking the Medical Assessment Certificate, the Panel underscored the necessity for accurate and legally sound assessments to ensure fair outcomes for claimants. The final orders of the Appeal Panel included the revocation of the Medical Assessment Certificate and the direction for a new assessment to be conducted in accordance with the correct legal principles.

Orders