Ribucan v NRG Cleaners Pty Ltd - [2023] NSWPICMP 689

DETERMINATION OF APPEAL PANEL
CITATION:	Ribucan v NRG Cleaners Pty Ltd [2023] NSWPICMP 689
APPELLANT:	Elma Dela Cruz Ribucan
RESPONDENT:	NRG Cleaners Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	20 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Assessment of permanent impairment; appellant suffered from a psychological injury; Medical Assessor (MA) made a deduction under section 323(1) of one-third for proportion of appellant’s permanent impairment he found was due to a pre-existing psychological condition that he considered had relapsed due to physical injuries the appellant suffered shortly before her psychological injury; whether MA erred by doing so; Appeal Panel found Medical Assessor did not err; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 October 2023 Elma Dela Cruz Ribucan, 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 4 October 2023.
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, 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 (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

The appellant commenced employment as a cleaner in January 2017 with NRG Cleaners Pty Ltd, the respondent. She developed pain in her upper limbs due to the work she did. This was diagnosed as a physical injury, in regards to which she made a claim for workers compensation on 16 July 2020. The pain that she developed caused her a lack of sleep and to her suffering depressive symptoms. Prior to the commencement of her employment with the respondent, she had also suffered from depressive symptoms and anxiety.
After she made her claim for workers' compensation for her physical injury, both the owner and the manager of the respondent applied pressure for her to return to work and also, after she had returned to work, applied pressure on her to perform duties for which, as a consequence of her physical injury, she did not…

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: [2023] NSWPICMP 689
Decision Date: 20 December 2023

CaseChat Overview and Summary

Ribucan appealed against an assessment of her permanent impairment rating, contending that the Medical Assessor had erred in reducing her rating by one-third due to a pre-existing psychological condition. The dispute arose in the context of workers' compensation claims, with the appellant having suffered psychological injuries following physical injuries. The primary issue before the court was whether the Medical Assessor was correct in applying a reduction under section 323(1) for the proportion of the appellant's permanent impairment attributable to a pre-existing condition that had allegedly relapsed due to the physical injuries.

The court considered the statutory framework and the provisions under section 323(1) which allows for deductions where a pre-existing condition contributes to the permanent impairment. The Appeal Panel had already determined that the Medical Assessor did not err in making the reduction. The court examined the evidence presented to the Medical Assessor, including expert medical opinions and the appellant's medical history. It concluded that the Medical Assessor's decision was within the permissible scope of the statutory provisions and was supported by the evidence. The court found no error in the assessment process and upheld the Medical Assessment Certificate.

Consequently, the appeal was dismissed, and the certificate was confirmed as valid. The court's decision effectively upheld the findings of the Appeal Panel, affirming that the Medical Assessor's methodology and conclusion were reasonable and legally sound. The certificate remains in effect, binding the parties to the terms of the assessment.

Orders