St Andrews Education Centre Pty Ltd v Osmanovic - [2022] NSWPICMP 240

DETERMINATION OF APPEAL PANEL
CITATION:	St Andrews Education Centre Pty Ltd v Osmanovic [2022] NSWPICMP 240
APPELLANT:	St Andrews Education Centre Pty Ltd
RESPONDENT:	Emina Osmanovic
APPEAL PANEL:	Member Brett Batchelor Dr Douglas Andrews Dr Julian Parmegiani
DATE OF DECISION:	31 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Appeal by employer against an assessment of whole person impairment as a result of psychological injury resulting from sexual assault by respondent worker’s employer; examination of medical and lay evidence including social media posts of respondent submitted to be inconsistent with the classification by the Medical Assessor of certain Psychiatric Impairment Rating Scale (PIRS) categories; the appellant also submitted that there should have been a section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction in respect of psychological injury as a result of a previous motor vehicle accident; Held- by the Appeal Panel that there were demonstrable errors in respect the classification of certain PIRS categories, and that there should have been a section 323 of the 1998 Act deduction; Medical Assessment Certificate (MAC) revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 February 2022 St Andrews Education Centre 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, who issued a Medical Assessment Certificate (MAC) on 10 January 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Emina Osmanovic (the respondent/Ms Osmanovic) was indecently assaulted on two occasions on 7 August and again on 7 September 2017 whilst in the employ of the appellant. Her assailant was her boss, who was a friend of her mother and father. The matter was reported to the police and the assailant was subsequently convicted of the assaults.
Ms Osmanovic subsequently resigned from her position with the appellant, and apart from an…

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 240
Decision Date: 31 May 2022

CaseChat Overview and Summary

In the matter of St Andrews Education Centre Pty Ltd v Osmanovic, the employer appealed against an assessment of whole person impairment resulting from psychological injury suffered by the respondent worker, Osmanovic. The injury arose from a sexual assault by the employer. The dispute came before the Court of Appeal, where the primary concern was the accuracy of the impairment assessment and the consideration of prior injuries. The employer contested the classification of certain Psychiatric Impairment Rating Scale (PIRS) categories and argued that there should have been a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) for a previous motor vehicle accident.

The legal issues before the Appeal Panel were whether the Medical Assessor's classification of certain PIRS categories was erroneous and if a section 323 deduction was warranted for the previous motor vehicle accident. The employer submitted that the respondent's social media posts and other evidence contradicted the assessment and that the previous motor vehicle accident should have reduced the current impairment rating. The respondent, on the other hand, defended the assessment and argued that the medical evidence and social media posts did not provide a complete picture of her psychological condition.

The Appeal Panel found that there were indeed demonstrable errors in the classification of certain PIRS categories, and these errors affected the overall impairment rating. The Panel also agreed that the previous motor vehicle accident should have been considered under section 323 of the 1998 Act, leading to a deduction in the impairment rating. Consequently, the Panel revoked the Medical Assessment Certificate and ordered that a new assessment be conducted to reflect these findings.

Orders