Pham v Rentokil Initial Pty Ltd - [2025] NSWPICMP 79

DETERMINATION OF APPEAL PANEL
CITATION:	Pham v Rentokil Initial Pty Ltd [2025] NSWPICMP 79
APPELLANT:	Van Tuyet Pham
RESPONDENT:	Rentokil Initial Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	John Lam-Po-Tang
DATE OF DECISION:	11 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; parties obtained reports commenting on financial information; Medical Assessor (MA) did not comment on worker’s report but discussed material with worker; role of the MA to make independent assessment; State of New South Wales (NSW Department of Education) v Kaur considered; assessment under permanent impairment rating scale tables for social and recreational activities and travel; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 December 2024 Van Tuyet Pham 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 November 2024.
Ms Pham relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Pham was employed by Rentokil Initial Pty Ltd (Rentokil) as a banking and allocation officer between 2016 and July 2023. She claimed weekly compensation, medical expenses and permanent impairment compensation. She claimed compensation for 21% whole person impairment (WPI), based on a report by Dr Kumagaya.
When Ms Pham’s claim was listed before a Member of the Personal Injury Commission (Commission), the parties agreed that she suffered a psychological injury, which is deemed to have occurred on 6 October 2022. In a Certificate of Determination dated 27 August 2024, the Member determined that the injury was caused by action taken with respect to performance appraisal but that the action was not reasonable, so that Rentokil’s defence under s 11A(1) of the Workers…

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 Pham v Rentokil Initial Pty Ltd

Details

AGLC: Pham v Rentokil Initial Pty Ltd [2025] NSWPICMP 79
Case: [2025] NSWPICMP 79
Decision Date: 11 February 2025

CaseChat Overview and Summary

In the case of Pham v Rentokil Initial Pty Ltd, the dispute centred around the assessment of a psychological injury under the provisions of the Workplace Injury Management and Workers Compensation Act 1998. The plaintiff, Pham, sought compensation for psychological injury sustained during his employment with the defendant, Rentokil Initial Pty Ltd. The primary issue was whether the Medical Assessor’s failure to comment on the plaintiff's report but instead discussing the material with the plaintiff, invalidated the assessment. This case was heard in the Workers Compensation Commission of New South Wales.

The legal issues that the court needed to address included whether the Medical Assessor's interaction with the plaintiff while discussing the material without commenting on the report constituted a breach of the assessor’s independent assessment role, and if so, whether this breach affected the validity of the assessment. Another key issue was the appropriate method of assessing the permanent impairment rating scale for social and recreational activities and travel, in accordance with the relevant statutory provisions. The court considered the precedent set in State of New South Wales (NSW Department of Education) v Kaur to guide its decision.

The court determined that the Medical Assessor’s role is to provide an independent assessment and that discussing the material with the plaintiff did not necessarily invalidate the assessment if the assessor remained independent in forming the final opinion. The court found that the assessor's interaction with the plaintiff did not breach the independence required for the assessment. Furthermore, the court concluded that the assessment under the permanent impairment rating scale tables for social and recreational activities and travel was appropriately conducted. Consequently, the Medical Assessment Certificate was confirmed by the court.

The final orders of the court upheld the validity of the Medical Assessment Certificate, confirming the assessment of the psychological injury and the method used for determining the impairment rating. The court found in favour of the plaintiff, Pham, and upheld the compensation claim against Rentokil Initial Pty Ltd.

Orders