Scott v Ivy Contractors Pty Ltd - [2022] NSWPICMP 525

DETERMINATION OF APPEAL PANEL
CITATION:	Scott v Ivy Contractors Pty Ltd [2022] NSWPICMP 525
APPELLANT:	Gary Scott
RESPONDENT:	Ivy Contractors Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	20 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in three respects; firstly, by failing to accept the nature of the injury, that is a primary psychological condition; secondly, erred when attempting to make a deduction for the effects of the pain; and thirdly by failing to provide adequate reasons; The Panel agreed in part with the appellant’s submissions and a re-examination was conducted; Held – the Panel found no errors by the MA in all Psychiatric Impairment Rating Scale (PIRS) categories except for employability; appellant found to be unfit for work and a Class 5 PIRS rating was ascribed; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 June 2022 Gary Scott (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Young, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 May 2022.
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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the MA erred in the manner of his assessment of whole person impairment (WPI).

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Professor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 7 December 2022 and reported to the Appeal Panel.

SUBMISSIONS

Both…

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 525
Decision Date: 20 December 2022

CaseChat Overview and Summary

In Scott v Ivy Contractors Pty Ltd, the appellant challenged a decision by the Medical Assessor (MA) regarding a workers' compensation claim. The central issue was the nature and extent of the appellant's psychological injury, and whether the MA had correctly assessed and rated the injury under the relevant guidelines. The dispute was heard by a panel within the Commission.

The appellant argued that the MA had erred in three key respects. Firstly, the appellant contended that the MA failed to recognise the primary psychological nature of the injury. Secondly, the appellant claimed that the MA incorrectly attempted to make a deduction for the effects of pain. Lastly, the appellant asserted that the MA did not provide adequate reasons for the assessment. The Panel examined these submissions and conducted a re-examination of the case.

The Panel found that the MA had made no errors in the Psychiatric Impairment Rating Scale (PIRS) categories except for employability. The appellant was found to be unfit for work, and a Class 5 PIRS rating was ascribed. The Panel concluded that the MA's assessment was generally sound, and the Medical Assessment Certificate was revoked based on the new findings.

The final orders were that the appellant's claim for workers' compensation was upheld with a Class 5 PIRS rating, and the original Medical Assessment Certificate was revoked. The Panel's decision was based on a detailed review of the medical evidence and the guidelines for assessing psychological injuries.

Orders