TAFE NSW v Patricia Pires - [2022] NSWPICMP 38

DETERMINATION OF APPEAL PANEL
CITATION:	TAFE NSW v Patricia Pires [2022] NSWPICMP 38
APPELLANT:	TAFE NSW
RESPONDENT:	Patricia Pires
APPEAL PANEL:	Member Carolyn Rimmer Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	8 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Claim in respect of primary psychological injury caused by work events in the period 1 September 2016 and 28 September 2017; Held- Medical Assessor (MA) acted beyond the scope of his powers in that he did not limit his assessment of impairment to work events between 1 September 2016 and 28 September 2017; further error in the Medical Assessment Certificate (MAC) as the MA failed to consider whether Ms Pires had sustained a pre-existing psychiatric injury and if so, whether any impairment resulted from that pre-existing injury; further ground of appeal relating to assessment in the Psychiatric Impairment Rating Scale categories of social and recreational activities and travel; worker re-examined and MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 November 2021 TAFE NSW (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Ash Takyar, Medical Assessor (the MA) and issued on 5 October 2021.
The respondent to the appeal is Patricia Pires (Ms Pires).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· availability of additional relevant information pursuant to s 327(3)(b) of the 1998 Act;
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and
· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 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

Ms Pires developed a primary psychological injury in the course of his employment with the appellant as a customer service officer.
On 18 August 2021, Ms Pires commenced proceedings in the Commission claiming 17% whole person impairment (WPI) pursuant to section 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed…

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 38
Decision Date: 8 March 2022

CaseChat Overview and Summary

The appellant, TAFE NSW, sought review of a decision by a Medical Assessor (MA) and the Workers' Compensation Commission of New South Wales (the Commission) in relation to a claim made by Patricia Pires for workers' compensation for a primary psychological injury. Pires alleged she sustained the injury during her employment period between 1 September 2016 and 28 September 2017. The appeal to the NSW Civil and Administrative Tribunal (NCAT) focused on the scope and correctness of the MA's assessment and the resulting Medical Assessment Certificate (MAC). TAFE NSW contested the validity of the MAC on several grounds, including that the MA exceeded his authority by assessing Pires' impairment beyond the specified time frame, failed to consider any pre-existing psychiatric conditions, and erred in his assessment of impairment under the Psychiatric Impairment Rating Scale.

The key legal issues before the Tribunal were whether the MA's assessment was confined to the relevant work period and whether he correctly identified and evaluated any pre-existing psychiatric conditions. Additionally, the Tribunal considered the accuracy of the impairment assessment in the categories of social and recreational activities and travel. The appellant argued that the MA's failure to limit the assessment to the specified work events and to consider pre-existing conditions resulted in a flawed MAC. TAFE NSW further contended that the MA incorrectly applied the Psychiatric Impairment Rating Scale, particularly in relation to social and recreational activities and travel.

In its decision, the Tribunal found that the MA had indeed acted beyond his powers by not restricting his assessment to the period between 1 September 2016 and 28 September 2017. Furthermore, the Tribunal concluded that the MA did not adequately consider whether Pires had a pre-existing psychiatric injury and if such an injury contributed to any impairment. Additionally, the Tribunal identified errors in the MAC regarding the assessment of impairment in the categories of social and recreational activities and travel. Consequently, the Tribunal revoked the MAC and ordered that Pires be re-examined by another MA.

Orders