Sanity Music Stores Pty Ltd v BFL - [2023] NSWPICMP 109

DETERMINATION OF APPEAL PANEL
CITATION:	Sanity Music Stores Pty Ltd v BFL [2023] NSWPICMP 109
APPELLANT:	Sanity Music Stores Pty Ltd
RESPONDENT:	BFL
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	27 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychiatric injury; whether Medical Assessor’s (MA) ratings of respondent’s impairment in several of the psychiatric impairment rating scale (PIRS) categories were open to be made based on the evidence, including the history the MA obtained and his findings from examination; whether MA properly considered whether pre-existing condition contributed to respondent's permanent impairment; Held – Appeal Panel found error in Medical Assessment Certificate (MAC) with respect to three PIRS categories and section 323 deduction; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 December 2022 Sanity Music Stores Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 December 2022. The medical dispute that the Medical Assessor assessed related to the degree of permanent impairment of BFL, the respondent, resulting from a psychological injury she suffered due to incidents to which she was exposed in her employment as a retail assistant with the appellant between 23 October 2008 and
25 May 2011.
The appellant relies on the following grounds for 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 (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

During the period of her employment with the appellant, the respondent was subjected to sexually abusive behaviour by her store manager, which resulted in her suffering a psychological injury. Prior to commencing her employment with the appellant, the respondent had been subjected to sexual abuse by her biological father when she was aged between 8 and 12. The respondent suffered a depressive disorder due…

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 109
Decision Date: 27 March 2023

CaseChat Overview and Summary

Sanity Music Stores Pty Ltd, an appellant, sought review of a decision made by a Medical Assessor (MA) regarding the psychiatric impairment of an employee, the respondent. The dispute arose under the provisions of the Workplace Injury Management and Workers Compensation Act 1998. The employee had claimed psychiatric injury following a workplace incident, and the MA assessed the extent of the impairment using the psychiatric impairment rating scale (PIRS). The appellant contested the MA's findings, particularly the ratings in several PIRS categories and a section 323 deduction, arguing that they were not supported by the evidence. This challenge was brought before the court for determination.

The primary legal issue before the court was whether the MA's ratings of the respondent's impairment in several PIRS categories were justified based on the evidence, including the history obtained by the MA and his findings from the examination. Additionally, the court needed to decide if the MA properly considered whether a pre-existing condition contributed to the respondent's permanent impairment. These questions necessitated a thorough review of the evidence presented to the MA and an assessment of the MA's methodology and decision-making process.

The court found that the Appeal Panel's decision to revoke the Medical Assessment Certificate (MAC) regarding three PIRS categories and the section 323 deduction was justified. The Panel identified errors in the MA's assessment and concluded that the MA's ratings were not supported by the evidence. The Panel's review of the history obtained and the MA's examination findings revealed that the MA had failed to adequately consider the impact of the pre-existing condition on the respondent's impairment. As a result, the Appeal Panel revoked the MAC, correcting the errors identified in the MA's assessment.

The final orders of the court included the revocation of the MAC with respect to the three PIRS categories and the section 323 deduction, reflecting the findings of the Appeal Panel. The appellant's challenge to the MA's assessment was thus upheld, and the respondent's psychiatric impairment was re-evaluated in light of the Panel's determination. This decision underscores the importance of accurate and evidence-based assessments in workers' compensation claims involving psychiatric injury.

Orders