| 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, 4th ed 1 April 2016 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
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…
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- Case
- [2022] NSWPICMP 38
- Decision Date
CaseChat Overview and Summary
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.
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Background
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Ratio Decidendi
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