Serco Australia Pty Ltd v Sryta - [2023] NSWPICMP 362

DETERMINATION OF APPEAL PANEL
CITATION:	Serco Australia Pty Ltd v Sryta [2023] NSWPICMP 362
APPELLANT:	Serco Australia Pty Ltd
RESPONDENT:	Ayman Sryta
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	31 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Medical Assessor assessed 22% WPI in respect of a psychological injury deemed to have occurred on 12 May 2022; appellant employer sought leave to admit fresh evidence concerning the work capacity; fresh evidence from both parties admitted; Appeal Panel satisfied that the change in certification from total incapacity to two hours a day, two days a week in worker’s capacity to work was only made in order to allow him to participate in a social therapy program and such a program is a form of treatment and was not evidence of a capacity to work; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 March 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 Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 February 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, Ayman Sryta (Mr Sryta) developed a primary psychological injury in the course of his employment with the appellant as a detainee services officer.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 22% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 12 May 2022.
The Medical Assessor examined the appellant on 21 Febuary 2023…

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 362
Decision Date: 31 July 2023

CaseChat Overview and Summary

Serco Australia Pty Ltd has appealed against a decision of the Appeals Panel of the Workers' Compensation Regulator in relation to the assessment of the appellant's employee, Mr Sryta, for workers' compensation benefits. Mr Sryta had suffered a psychological injury on 12 May 2022, and a Medical Assessor assessed his whole person impairment at 22%. The employer sought leave to introduce new evidence regarding the employee's work capacity, which was granted. Both parties presented fresh evidence, and the Appeals Panel was required to determine whether the change in the employee's certification from total incapacity to limited work capacity was genuine or made to facilitate participation in a social therapy program.

The central legal issue was whether the change in the employee's certification was a genuine reflection of his work capacity or merely a stratagem to enable him to participate in a social therapy program. The Appeals Panel concluded that the change was not a true indication of the employee's capacity to work but rather a means to permit his involvement in a social therapy program, which the Panel determined was a form of treatment rather than evidence of his ability to work. The appellant employer argued that the fresh evidence demonstrated that Mr Sryta's capacity to work had improved, but the Appeals Panel was not convinced.

The Appeals Panel found that the fresh evidence did not alter the original assessment of Mr Sryta's whole person impairment. The Panel was satisfied that the change in certification was not reflective of the employee's actual work capacity, and the original Medical Assessment Certificate remained valid. The appellant employer's appeal was dismissed, and the original assessment was upheld.

The Appeals Panel confirmed the Medical Assessment Certificate, and no further orders were made. The employer's appeal was dismissed, and the original assessment of Mr Sryta's whole person impairment was upheld.

Orders