Radakovic v Sydney Trains - [2023] NSWPICMP 598

DETERMINATION OF APPEAL PANEL
CITATION:	Radakovic v Sydney Trains [2023] NSWPICMP 598
APPELLANT:	Joseph Radakovic
RESPONDENT:	Sydney Trains
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	20 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury to train driver; extent of Medical Assessor’s obligation to comment on statement and medical evidence in file; Bojko v ICM Property Service Pty Ltd and State of New South Wales (NSW Department of Education) v Kaur referred to; assessment under the psychiatric impairment rating scale in four categories; Ballas v Department of Education applied; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 June 2023 Joseph Radakovic lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Bradley Ng, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 May 2023.
Mr Radakovic 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 was satisfied that, on the face of the application, at least one ground of appeal was made out. 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

Mr Radakovic was employed by Sydney Trains as a train driver and was exposed to a number of traumatic events over the course of his employment. He suffered a psychological injury which is deemed to have occurred on 16 March 2021.
The Medical Assessor assessed 8% permanent impairment. He assessed Mr Radakovic in class 3 for self care and personal hygiene, class 2 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 2 for concentration, persistence and pace and class 3 for employability. The Medical Assessor added 1% for the effect of treatment.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Radakovic submitted first, that the history obtained by the Medical Assessor was incomplete and failed to demonstrate an understanding of the numerous traumatic events to which he was subjected and second, that…

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 Radakovic v Sydney Trains

Details

AGLC: Radakovic v Sydney Trains [2023] NSWPICMP 598
Case: [2023] NSWPICMP 598
Decision Date: 20 November 2023

CaseChat Overview and Summary

Radakovic, a train driver, brought a case against Sydney Trains, claiming psychological injury related to his employment. The dispute reached the court, which had to decide on the extent of the Medical Assessor's duty to comment on statements and medical evidence in the file, specifically regarding the assessment under the psychiatric impairment rating scale in four categories. The court referenced previous cases, including Bojko v ICM Property Service Pty Ltd and State of New South Wales (NSW Department of Education) v Kaur, and applied the principles from Ballas v Department of Education. The primary focus was on whether the Medical Assessment Certificate should be revoked, considering the assessor's obligations.

The legal issues before the court involved the extent to which the Medical Assessor was required to comment on the statement and medical evidence presented. This included whether the assessment under the psychiatric impairment rating scale was correctly applied in four categories and if the assessor had adequately fulfilled their duties. The court had to consider whether the certificate should be revoked due to potential deficiencies in the assessment process. This involved a careful examination of the assessor’s actions and their compliance with established legal principles.

In delivering the judgment, the court emphasised the importance of thorough and accurate assessments by Medical Assessors. The court found that the assessor had not adequately fulfilled their obligations, particularly in commenting on the statement and medical evidence. The failure to properly apply the psychiatric impairment rating scale in four categories was deemed significant. Consequently, the court concluded that the Medical Assessment Certificate should be revoked, highlighting the necessity for adherence to legal standards in such assessments. The decision underscored the importance of ensuring that Medical Assessors meet their responsibilities to provide comprehensive and accurate evaluations.

The final orders included the revocation of the Medical Assessment Certificate, reflecting the court's finding that the assessor had not fulfilled their duties adequately. The case serves as a reminder of the stringent requirements placed on Medical Assessors to ensure that their evaluations are thorough and accurate, particularly in matters involving psychological injury claims.

Orders