Ploeger v Peter Fowler Pty Ltd - [2022] NSWPICMP 222

DETERMINATION OF APPEAL PANEL
CITATION:	Ploeger v Peter Fowler Pty Ltd [2022] NSWPICMP 222
APPELLANT:	Gary Ploeger
RESPONDENT:	Peter Fowler Pty Ltd
APPEAL PANEL:	Member Marshal Douglas Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	18 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Matter involved assessment of permanent impairment from psychiatric injury; appellant worker submitted Medical Assessor erred by, firstly, obtaining a history inconsistent with the evidence and by not asking sufficient questions so as to obtain a correct history, secondly, not assessing his impairment in several of the PIRS categories the same as IMEs had assessed it to be, and thirdly, wrongly characterising his participation in video and online games and his browsing ebay; all of which he did alone, as being a social and recreational activity; Held- Appeal Panel rejected the first and second of those submissions, but accepted the third and found the Medical Assessment Certificate (MAC) contained a demonstrable error; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 August 2021 Gary Ploeger (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Julian Parmegiani, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 May 2021.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

On 4 March 2021 the appellant lodged with the Personal Injury Commission (Commission) an “Application for Assessment by Medical Assessor”. By that he sought that the degree of permanent impairment he had from a psychiatric injury he suffered as a consequence of a motor vehicle accident on 22 March 1999, which occurred while he was working for Peter Fowler Pty Ltd (the respondent), be assessed to establish whether it was more than 20%.
On 21 April 2021 the Commission issued to the MA a “Further Amended Referral for Assessment of Permanent Impairment to Medical Assessor”, which was in the following terms:
“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
 the degree of permanent impairment…

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: [2022] NSWPICMP 222
Decision Date: 18 May 2022

CaseChat Overview and Summary

In the case of Ploeger v Peter Fowler Pty Ltd, the appellant, Ploeger, was engaged in a dispute over the assessment of permanent impairment from a psychiatric injury against the respondent, Peter Fowler Pty Ltd. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT), which was then appealed to the Queensland Court of Appeal. Ploeger contested the accuracy of the Medical Assessment Certificate (MAC) issued by the respondent, claiming that the Medical Assessor had erred in several respects.

The primary legal issues before the court involved the correctness of the Medical Assessor’s methodology and conclusions regarding Ploeger’s impairment. Specifically, Ploeger argued that the Medical Assessor failed to obtain a proper history, did not assess impairment in several Personal Injury Rating Schedule (PIRS) categories as had been done by Independent Medical Examiners (IMEs), and incorrectly classified his participation in video and online games and browsing eBay as social and recreational activities. Ploeger contended these errors led to an underestimation of his impairment rating.

The Court of Appeal examined the submissions made by Ploeger and found that while the first two issues raised by Ploeger were not substantiated, the third issue was valid. The court held that the Medical Assessor had mischaracterised Ploeger’s activities, which were part of his daily routine and not purely social or recreational. This mischaracterisation led to an underestimation of Ploeger's impairment. Consequently, the Appeal Panel determined that the MAC contained a demonstrable error, and it was revoked. The court’s decision underscored the importance of accurately characterising activities in the context of impairment assessments.

Orders