Serco Australia Pty Ltd v Cadman - [2023] NSWPICMP 697

DETERMINATION OF APPEAL PANEL
CITATION:	Serco Australia Pty Ltd v Cadman [2023] NSWPICMP 697
APPELLANT:	Serco Australia Pty Ltd
RESPONDENT:	Kieran Cadman
APPEAL PANEL
MEMBER:	Rachel Homan
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	21 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; availability of additional relevant information; Medical Assessor made an assessment of severe impairment for employability under the Psychiatric Impairment Rating Scale; SIRA Certificate of Capacity issued 11 days after assessment and before Medical Assessment Certificate (MAC) certified the worker as having capacity to engage in pre-injury duties; Appeal Panel satisfied that the ground of appeal in section 327(3)(b) made out; re-examination conducted; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 August 2023, Serco Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 July 2023 following an examination of Kieran Cadman (the respondent) on 27 June 2023.
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), 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

The respondent was employed by the appellant as an Asset Manager and claimed to have suffered a psychological injury due to a hostile work environment.
On 30 September 2022, the respondent made a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 in reliance upon an assessment of 15% whole person impairment (WPI) made by Dr Abdal Khan.
The claim was disputed in a notice issued pursuant to s 78 of the 1998 Act by the appellant’s insurer on 30 November 2022 on the basis that the…

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 697
Decision Date: 21 December 2023

CaseChat Overview and Summary

Serco Australia Pty Ltd, the appellant, sought review of a decision made by the Workers Compensation Appeal Panel. The respondent, Cadman, claimed compensation for a psychiatric injury sustained during employment. The dispute centred on the assessment of the respondent's capacity to return to work following his injury. The matter was heard in the New South Wales Civil and Administrative Tribunal.

The central legal issue was whether the tribunal should have revoked the Medical Assessment Certificate (MAC) issued by the medical assessor, which certified that the respondent had capacity to engage in his pre-injury duties. The appeal hinged on whether the tribunal had correctly interpreted the statutory grounds for revoking the MAC under section 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998. Specifically, the tribunal had to determine if the Medical Assessor had additional relevant information available at the time of assessment that was not considered, and whether this omission affected the assessment of the respondent’s capacity.

The tribunal found that the Medical Assessor had access to additional relevant information at the time of the initial assessment, which was not taken into account. This information included a Psychiatric Impairment Rating Scale assessment conducted by another assessor and a SIRA Certificate of Capacity issued 11 days after the initial assessment. The tribunal concluded that this constituted a material error affecting the assessment, and thus, the ground of appeal under section 327(3)(b) was made out. Consequently, the tribunal ordered a re-examination of the respondent's capacity. Upon the re-examination, the tribunal revoked the MAC.

The tribunal's final order was the revocation of the MAC, directing that the respondent's capacity to engage in his pre-injury duties be re-assessed. This decision meant that the original finding of the Medical Assessor was no longer valid, and the respondent's entitlements would be reconsidered based on the outcome of the new assessment.

Orders