Paea v JB Hi-Fi Group Pty Ltd - [2024] NSWPICMP 777

DETERMINATION OF APPEAL PANEL
CITATION:	Paea v JB Hi-Fi Group Pty Ltd [2024] NSWPICMP 777
APPELLANT:	Lydia Maxwell Paea
RESPONDENT:	JB Hi-Fi Group Pty Ltd
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	John Lam-Po-Tang
DATE OF DECISION:	20 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; medical appeal; assessment of psychiatric injury; allegation of breach of procedural fairness; no deduction made by either independent medical examiner; whether Medical Assessor (MA) provided adequate reasons; whether MA adequately engaged with the evidence provided; Held: Medical Appeal Panel not satisfied any ground of appeal made out; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 September 2024, Lydia Maxwell Paea (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Steven Yeates, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 August 2024.
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. It is noted that the delegate’s decision refers to a MAC dated 6 August 2024 and an amended MAC dated 9 September 2024. This was not, in fact, issued.
It is noted a separate application was made to correct a calculation error (the Medical Assessor has rounded the impairment following a deduction up instead of down). The calculation error appears at 10(b) of the MAC on page 6, as well as in the certificate. As of the date of this decision, that application remains extant and has not been determined. It is not a matter that is before the Appeal Panel, however.
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).

RELEVANT FACTUAL BACKGROUND

Ms Maxwell Paea was employed at the Macarthur Square store of JB Hi-Fi Group Pty Ltd (the respondent). Here she suffered a psychological injury due to exposure to sexual innuendo and inappropriate behaviour that made her feel uncomfortable at work. She was groped while bending over at her work. She reported issues to Human Resources…

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 777
Decision Date: 20 November 2024

CaseChat Overview and Summary

Paea filed an appeal against a medical assessment conducted by the JB Hi-Fi Group Pty Ltd, seeking a review of a decision regarding a claim for compensation related to a psychiatric injury sustained during employment. The dispute was heard by the Medical Appeal Panel under the provisions of the Workplace Injury Management and Workers Compensation Act 1998. The primary issue for the Panel was to determine whether the Medical Assessor (MA) had provided adequate reasons for their assessment, and whether they had adequately engaged with the evidence presented, particularly in light of an allegation that the MA had breached procedural fairness. Additionally, the Panel had to consider whether the MA's decision should be upheld or if there was any merit in the claim that a deduction should have been made in the assessment.

The Panel reviewed the MA's assessment and the evidence provided, focusing on the quality of the reasons given and the extent to which the MA engaged with the material presented. Both the MA and the independent medical examiners had not made any deductions in their assessments, which was a point of contention for Paea. The Panel found that the MA's assessment was thorough and that the reasons provided were sufficient. They determined that the MA had adequately engaged with the evidence and that there was no breach of procedural fairness. Consequently, the Panel concluded that none of the grounds for appeal were substantiated.

Given that the appeal was dismissed, the Panel confirmed the Medical Assessment Certificate, upholding the original assessment conducted by the MA. The decision reaffirmed the findings that no psychiatric injury compensable under the Act had occurred. Therefore, the Panel's decision effectively upheld the certificate, with no changes to the compensation assessment.

Orders