Transport for NSW v Ryder - [2021] NSWPICMP 169

DETERMINATION OF APPEAL PANEL
CITATION:	Transport for NSW v Ryder [2021] NSWPICMP 169
APPELLANT:	Transport for NSW
RESPONDENT:	Michelle Ryder
APPEAL PANEL:	Member Marshal Douglas Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	15 September 2021
CATCHWORDS:	WORKERS COMPENSATION- The medical dispute involved the assessment of the respondent’s permanent impairment from psychiatric injury; appellant submitted Medical Assessor (MA) erred with respect to his assessment because he did not give proper consideration to the evidence relating to, firstly, the respondent’s impairment in self-care and personal hygiene and in social functioning, secondly the extent to which a prior illness contributed to the respondent’s present impairment, and lastly, whether the respondent had achieved maximum medical improvement; Held - the Appeal Panel held that it was obvious from the Medical Assessment Certificate (MAC) that the MA had regard to all the evidence and that in his explanation for his assessment he referred to all parts of the evidence that were germane to his assessment; MAC upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 June 2021 Transport for NSW (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 June 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
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 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant employed Michelle Ryder (the respondent) as a customer service team leader. The respondent suffered a psychiatric injury as a consequence of various matters to which she was exposed between 2016 and 7 August 2018 in her employment.
On 28 February 2020 the respondent’s solicitors wrote to the appellant advising it that the respondent claimed lump sum compensation from the appellant in the amount of $42,450 for a permanent impairment of 17% the respondent said had resulted from her injury. The respondent’s solicitors advised the appellant that the respondent relied on a report of psychiatrist Dr Michael Hong dated 24 January 2020 to support her claim, a…

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.

Continue reading Transport for NSW v Ryder

Details

AGLC: Transport for NSW v Ryder [2021] NSWPICMP 169
Case: [2021] NSWPICMP 169
Decision Date: 15 September 2021

CaseChat Overview and Summary

In the matter of Transport for NSW v Ryder, the dispute revolved around the assessment of the respondent's permanent impairment due to psychiatric injury. The appellant, Transport for NSW, challenged the decision of the Medical Assessor (MA) regarding the respondent's impairment, arguing that the MA had not properly considered certain evidence. The case was heard and determined by the Appeal Panel.

The legal issues that the Appeal Panel had to address were whether the MA had erred in his assessment by not adequately considering specific aspects of the evidence. These included the respondent's impairment in self-care, personal hygiene, and social functioning, the extent to which a prior illness contributed to the present impairment, and whether the respondent had achieved maximum medical improvement. The appellant contended that these oversights led to an incorrect assessment of the respondent's impairment.

The Appeal Panel carefully reviewed the Medical Assessment Certificate (MAC) and the MA's explanation for his assessment. They found that the MA had indeed considered all relevant evidence, as evidenced by his comprehensive explanation which referred to all pertinent parts of the evidence. The Panel concluded that the MA's assessment was well-founded and upheld the MAC. The appellant's appeal was thus dismissed, and the original assessment of the respondent's impairment was maintained.

The final orders of the court confirmed the maintenance of the Medical Assessment Certificate as issued by the Medical Assessor, dismissing the appeal by Transport for NSW and affirming the respondent's permanent impairment assessment.

Orders