Smith v Strathfield Council - [2022] NSWPICMP 505

DETERMINATION OF APPEAL PANEL
CITATION:	Smith v Strathfield Council [2022] NSWPICMP 505
APPELLANT:	Brett Ronald Smith
RESPONDENT:	Strathfield Council
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	8 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - Psychological injury; additional relevant material; application to rely on statements going to conduct of examination; Petrovic v BC Serve No 14 Pty Ltd, State of NSW v Ali and Lukacevic v Coates Hire Operations Pty Ltd discussed; application of Permanent Impairment Rating Scale (PIRS); Ferguson v State of NSW and Parker v Select Civil Pty Ltd applied; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 September 2022 Brett Smith lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 August 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):
·        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),
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate was 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 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

Mr Smith was employed by Strathfield Council (the Council) as a greenkeeper. He suffered a psychological injury as a result of interactions with his managers between 2014 and 2019 and a restructure in 2019. He did not return to work after 28 November 2019.
The Medical Assessor assessed 9% whole person impairment (WPI). The appeal relates only to the assessments made under two of the tables in the Psychiatric Impairment Rating Scale (PIRS) – Social and Recreational Activities and Social Functioning.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for Mr Smith to undergo a further medical examination because 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: [2022] NSWPICMP 505
Decision Date: 8 December 2022

CaseChat Overview and Summary

Smith v Strathfield Council is a case where the applicant sought a medical assessment certificate for a psychological injury sustained during employment. The dispute was adjudicated by the New South Wales Civil and Administrative Tribunal (NCAT). The primary issue the tribunal had to resolve was whether additional material could be considered in the application, and whether the statements regarding the conduct of a medical examination could be relied upon. This involved examining the relevance of these statements in light of previous cases such as Petrovic v BC Serve No 14 Pty Ltd, State of NSW v Ali, and Lukacevic v Coates Hire Operations Pty Ltd.

The tribunal began by considering the admissibility of the additional material and the statements related to the conduct of the examination. It noted that the application of the Permanent Impairment Rating Scale (PIRS) in assessing psychological injuries was not straightforward and required careful interpretation. The tribunal referenced previous cases, such as Ferguson v State of NSW and Parker v Select Civil Pty Ltd, to understand the application of PIRS and the appropriate weight to be given to various types of evidence. The tribunal concluded that the statements and additional material provided relevant context and were admissible to support the applicant's case. It found that these materials did not introduce new issues but rather supplemented the existing evidence.

Following the analysis, the tribunal confirmed the Medical Assessment Certificate. It determined that the applicant's psychological injury was adequately supported by the evidence presented, including the additional material and statements about the examination's conduct. The tribunal's decision was grounded in a thorough review of the relevant legal principles and the specifics of the case, ensuring that the applicant's claims were fairly assessed. The tribunal's ruling was decisive in confirming the certificate, providing clarity on the admissibility of the additional material and the relevance of the examination statements.

Orders