Stellar Asia Pacific Pty Ltd v Micallef - [2024] NSWPICMP 303

DETERMINATION OF APPEAL PANEL
CITATION:	Stellar Asia Pacific Pty Ltd v Micallef [2024] NSWPICMP 303
APPELLANT:	Stellar Asia Pacific Pty Ltd
RESPONDENT:	Sarah Micallef
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	17 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for primary psychiatric injury; the Medical Assessor (MA) assessed 15% whole person impairment (WPI) and found no pre-existing psychological condition; failure by MA to refer to clinical note of GP made in 2013 about three years before employment with the respondent in which the GP referred to a low mood and prescribed anti-depressants; appeal panel found that the MA erred in failing to address these clinical notes and did not provide adequate reasons for concluding that there no pre-existing condition; the appeal panel satisfied that there was a pre-exiting condition but found that it did not contribute to the impairment assessed; the assessment of total WPI by the appeal panel is the same as that made by the MA and in those circumstances the appeal panel will confirm the Medical Assessment Certificate (MAC) as the review has not led to a different result and should not be interfered with; Robinson v Riley applied; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 March 2024 Stellar Asia Pacific 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
6 February 2024.
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):
· the assessment was made on the basis of incorrect criteria, 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

Sarah Micallef (Ms Micallef) sustained a primary psychological injury in the course of her employment with the appellant as a customer solutions specialist.
Ms Micallef commenced proceedings in the Personal Injury Commission (Commission) on
8 November 2023 claiming 16%…

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

AGLC: Stellar Asia Pacific Pty Ltd v Micallef [2024] NSWPICMP 303
Case: [2024] NSWPICMP 303
Decision Date: 17 May 2024

CaseChat Overview and Summary

Stellar Asia Pacific Pty Ltd appealed against a decision of a Medical Assessor (MA) who assessed 15% whole person impairment (WPI) in a claim for primary psychiatric injury made by an employee. The employer contended that the MA erred in not referring to clinical notes of the employee’s General Practitioner (GP) from 2013, three years before the employment, which indicated a low mood and prescribed anti-depressants. The appeal panel acknowledged the MA’s oversight but found that it did not affect the conclusion that there was no pre-existing psychological condition contributing to the impairment assessed. The panel's assessment of the total WPI remained at 15%, consistent with the MA’s initial assessment.

The court considered the appropriate legal standards for reviewing the Medical Assessor’s decision, focusing on whether the MA's failure to consider the GP’s clinical notes constituted an error that affected the assessment of impairment. The appeal panel's role was to determine whether the review process led to a different outcome. The decision in Robinson v Riley was applied, which held that the appeal panel should confirm the Medical Assessment Certificate (MAC) if the review did not result in a different conclusion about the impairment. The appeal panel determined that the review did not change the original assessment of 15% WPI, and thus the MAC should be confirmed.

The appeal panel concluded that despite the MA’s oversight in not referring to the GP’s notes, the pre-existing condition did not contribute to the assessed impairment. Therefore, the assessment of 15% WPI remained unchanged. The panel applied the principle from Robinson v Riley that the review process should not be interfered with if it does not lead to a different result. The final order was to confirm the MAC, maintaining the 15% WPI assessment.

Orders