Poulis v Deicorp Pty Ltd - [2024] NSWPICMP 830

DETERMINATION OF APPEAL PANEL
CITATION:	Poulis v Deicorp Pty Ltd [2024] NSWPICMP 830
APPELLANT:	Janice Poulis
RESPONDENT:	Deicorp Pty Limited
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	5 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by a claimant from assessment of 6% for psychiatric injury; whether the fresh evidence from the claimant should be admitted; whether error established in four categories of the psychiatric impairment rating scale; Held – the claimant did perhaps not appreciate that a fresh statement subsequent to the Medical Assessment Certificate (MAC) was not automatically admissible and no submissions were made in that regard; respondent objected and the fresh statement was rejected; section 328(3) considered, Lukacevic v Coates Hire Operations Pty Limited considered and applied; fresh statement argumentative and proposed degree of incompetence by the MA that was not plausible; Jones v The Registrar WCC and Bojko v ICM Property Service Pty Ltd & Ors considered and presumption of regularity applied; fresh statement also conceded that the claimant did perform some of the functions, but argument as to motives dismissed as being irrelevant; claimant's reliance on her qualified expert rejected; Western Sydney Health District v Chan and Wingfoot Australia Pty Ltd v Kocak considered and applied; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 August 2024 Janice Poulis (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 July 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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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…

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: Poulis v Deicorp Pty Ltd [2024] NSWPICMP 830
Case: [2024] NSWPICMP 830
Decision Date: 5 December 2024

CaseChat Overview and Summary

In the matter of Poulis v Deicorp Pty Ltd, the claimant, Poulis, appealed against the assessment of her psychiatric injury compensation at 6%. The dispute arose under the provisions of the Workplace Injury Management and Workers Compensation Act 1998. The central issue was whether fresh evidence presented by Poulis should be admitted and whether there were errors in the assessment categories of the psychiatric impairment rating scale. The case was heard in the relevant appellate court.

The court examined whether the claimant's fresh evidence, presented after the Medical Assessment Certificate (MAC), should be admitted. The claimant did not argue that this fresh evidence was admissible, and the respondent objected to its inclusion. The court found that the claimant had not appreciated that such evidence is not automatically admissible. The court also considered whether there were errors in the assessment of four categories of the psychiatric impairment rating scale. It was noted that the fresh statement was argumentative and proposed a degree of incompetence by the medical assessor that was not plausible. The court applied the presumption of regularity from relevant precedents.

The court concluded that the fresh statement was rejected due to its argumentative nature and the implausibility of the proposed incompetence by the medical assessor. The claimant's reliance on her qualified expert was also dismissed, as the court found the expert's opinion was not persuasive. The assessment outlined in the MAC was confirmed, and the appeal was dismissed. No further orders were made beyond the confirmation of the MAC.

Orders