Tibbey v Central Coast Council - [2023] NSWPICMP 510

DETERMINATION OF APPEAL PANEL
CITATION:	Tibbey v Central Coast Council [2023] NSWPICMP 510
APPELLANT:	Mark Tibbey
RESPONDENT:	Central Coast Council
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	13 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal against 7% WPI in psychological injury case: whether Medical Assessor had exposed his path of reasoning; Held – path of reasoning conspicuous by its absence, presumption of regularity rebutted by lack of reasoning, appellant re-examined; Wingfoot Australia Partners Pty Ltd v Kocak, El Masri v Woolworths Ltd, and Western Sydney Local Health District v Chan applied; Bojko v ICM Property Service Pty Ltd & Ors, Ferguson v State of New South Wales, and Glenn William Parker v Select Civil Pty Ltd referred to; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 25 May 2023 Mark Tibbey (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 May 2023.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria.
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 Guide) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 10 February 2023, the delegate of the President referred this matter for a WPI assessment caused by a psychiatric/psychological disorder, which occurred on a deemed date of 12 October 2022.
Mr Tibbey was exposed to significant episodes of extreme violence from a co-worker along with threats made against him and his family. He obtained an apprehended violence order against the fellow worker but felt unsupported by management who in fact enabled the conduct of his assailant.
The Medical Assessor assessed 7%…

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: [2023] NSWPICMP 510
Decision Date: 13 October 2023

CaseChat Overview and Summary

The case of Tibbey v Central Coast Council concerns an appeal against the determination of a Medical Assessor, who had assessed the worker's psychological injury and calculated the appropriate Workers Compensation entitlement. The appellant, Tibbey, sought to challenge the 7% Workers Compensation Index applied in the assessment. The case was heard in the New South Wales Supreme Court.

The legal issues before the court included whether the Medical Assessor had adequately disclosed his path of reasoning in arriving at his conclusion and whether the presumption of regularity had been rebutted by the absence of such reasoning. The court considered relevant precedents such as Wingfoot Australia Partners Pty Ltd v Kocak, El Masri v Woolworths Ltd, and Western Sydney Local Health District v Chan, which highlighted the importance of transparency in the reasoning process. Bojko v ICM Property Service Pty Ltd & Ors, Ferguson v State of New South Wales, and Glenn William Parker v Select Civil Pty Ltd were also referenced to support the principles of judicial review in workers compensation cases.

The court found that the path of reasoning was conspicuously absent in the Medical Assessor's determination, leading to the rebuttal of the presumption of regularity. The lack of reasoning meant that the Medical Assessor's conclusion could not be upheld, and the appellant was allowed to re-examine the issue. Consequently, the court revoked the Medical Assessment Certificate and ordered a new assessment to be conducted with proper reasoning provided.

Orders