Skillen v Aldi Stores (A Limited Partnership) - [2024] NSWPICMP 630

DETERMINATION OF APPEAL PANEL
CITATION:	Skillen v Aldi Stores (A Limited Partnership) [2024] NSWPICMP 630
APPELLANT:	Brea Skillen
RESPONDENT:	Aldi Stores (A Limited Partnership)
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against psychological assessment of 14% whole person impairment (WPI) including one-quarter deduction pursuant to section 323; whether Medical Assessor (MA) failed to place sufficient weight on opinions of medical specialists; whether section 323(2) assumption should have been applied; whether MA’s reasons adequate; Held – MA to apply his own medical experience and expertise; path of reasoning clearly expressed; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 May 2024 Brea Skillen, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 April 2024.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 21 March 2024 this matter was referred for an assessment of permanent impairment regarding a psychiatric/psychological disorder that occurred on a deemed date of injury of
13 January 2022.
Ms Skillen had been employed as a Retail Assistant for the respondent and began working at its Albion Park store in May of 2018.
On 13 January 2022 she was injured whilst trying to apprehend a female shoplifter who rammed Ms Skillen with a trolley full of goods. She was then assaulted by the female and was threatened with further violence. Ms Skillen had been taking Sertraline, 150 mg a day and seeing a psychiatrist once a month prior to this incident.
After the incident her psychological state deteriorated, and she tried to commit suicide whilst driving.
In March 2022 she was admitted…

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.

Continue reading Skillen v Aldi Stores (A Limited Partnership)

Details

AGLC: Skillen v Aldi Stores (A Limited Partnership) [2024] NSWPICMP 630
Case: [2024] NSWPICMP 630
Decision Date: 5 September 2024

CaseChat Overview and Summary

Skillen, the claimant, brought an appeal against Aldi Stores, the respondent, regarding the assessment of his whole person impairment (WPI) following a workplace injury. The dispute centred around the psychological component of the impairment assessment, specifically the 14% WPI including a one-quarter deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998. Skillen argued that the Medical Assessor (MA) did not sufficiently consider the opinions of his medical specialists and questioned whether the deduction under section 323(2) should have been applied. Skillen further contended that the MA’s reasons for the assessment were inadequate.

The court was tasked with determining whether the MA failed to appropriately weigh the opinions of medical specialists, whether the assumption under section 323(2) should have been applied, and if the MA's reasoning was adequate. The court examined the MA’s approach, the weight given to various medical opinions, and the application of section 323(2). The court found that the MA had applied his own medical experience and expertise in assessing Skillen's condition, clearly expressing the path of reasoning that led to the conclusion of 14% WPI with a one-quarter deduction. The court held that the MA's reasoning was comprehensive and the Medical Assessment Certificate was confirmed.

The appeal was dismissed, and the original assessment was upheld. The court found that the MA had exercised his professional judgment appropriately and had provided a detailed rationale for the assessment, which was in line with the statutory requirements. The decision underscored the importance of the MA's role in conducting independent assessments and the necessity for thorough and reasoned explanations in such evaluations.

Orders