Tasevski v Westpac Banking Corporation - [2024] NSWPICMP 521

DETERMINATION OF APPEAL PANEL
CITATION:	Tasevski v Westpac Banking Corporation [2024] NSWPICMP 521
APPELLANT:	Mirjana Tasevski
RESPONDENT:	Westpac Banking Corporation
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	30 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; matter remitted from the Supreme Court of NSW; application of the psychiatric impairment rating scale (PIRS); whether Medical Assessor (MA) had considered worker’s age, sex and cultural norms in accordance with clause 11.12 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021; Ferguson v State of New South Wales & Ors, Johnson v Suncorp Staff Pty Ltd, Lancaster v Foxtel Management Pty Ltd, Henderson v Canterbury Hurlstone Park RSL Club Ltd considered; Held – MA’s conclusion inconsistent with history and evidence available; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 March 2023, Mirjana Tasevski (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 February 2024.
This matter has previously proceeded through the appeal process resulting in an Appeal Panel issuing a decision dated 23 May 2023. That decision was the subject of judicial review proceedings in the Supreme Court, with judgement being handed down on 18 April 2024, in the matter of Tasevski v Westpac Banking Corporation [2024] NSWSC 401 (Tasevski). The relevant orders made by her Honour Schmidt AJ (putting aside a costs order) were:
“(1) The Appeal Panel’s decision is set aside;
(2) The matter is remitted to a differently constituted appeal panel to be considered according to law.”
Accordingly, the Appeal Panel are determining the matter according to law, based on the Application to Appeal and Notice of Opposition filed by the parties in the proceedings. The Appeal Panel have had no regard to the decision of the original Appeal Panel which was set aside by the Court, but are obviously bound by the orders made in the Supreme Court in Tasevski and have considered in detail the reasons provided in that judgment.
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 has remitted the matter to be determined according to law. Incumbent in that remitter is a decision that 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,…

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: [2024] NSWPICMP 521
Decision Date: 30 July 2024

CaseChat Overview and Summary

The case of Tasevski v Westpac Banking Corporation involved the applicant, Tasevski, contesting the validity of a Medical Assessment Certificate (MAC) issued by the respondent, Westpac Banking Corporation. The dispute centred on whether the Medical Assessor (MA) had properly considered the applicant's age, sex, and cultural norms in accordance with clause 11.12 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021, when assessing the applicant's psychiatric impairment rating scale (PIRS). This matter was remitted from the Supreme Court of New South Wales for further consideration.

The legal issues before the court involved interpreting and applying the relevant statutory provisions and guidelines. Specifically, the court had to determine if the MA's assessment was consistent with the legislative requirements and if the MA had considered all relevant factors, including the applicant's personal attributes, as mandated by clause 11.12. The applicant argued that the MA had failed to appropriately consider these factors, resulting in an inaccurate assessment.

The court found that the MA's conclusion was inconsistent with the history and evidence available, and thus, the assessment did not meet the statutory requirements. The court emphasised the importance of considering individual characteristics such as age, sex, and cultural norms in the assessment process. The decision in Ferguson v State of New South Wales & Ors, Johnson v Suncorp Staff Pty Ltd, Lancaster v Foxtel Management Pty Ltd, and Henderson v Canterbury Hurlstone Park RSL Club Ltd was referenced to support the requirement for a comprehensive consideration of personal attributes in the assessment process. Consequently, the court revoked the MAC issued by the MA.

As a result of the court's findings, the Medical Assessment Certificate issued by the respondent was revoked. The applicant was thereby entitled to a reassessment that properly considered the relevant factors as required by the legislation and guidelines.

Orders