Unisys Technical Services v Walke - [2024] NSWPICMP 83

DETERMINATION OF APPEAL PANEL
CITATION:	Unisys Technical Services v Walke [2024] NSWPICMP 83
APPELLANT:	Unisys Technical Services
RESPONDENT:	Shane Walke
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	20 February 2024
DATE OF AMENDMENT:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment of pre-existing impairment; paragraph 11.10 of the Guidelines, Marks v Secretary, Department of Communities and Justice (No 2) considered; inapplicability of one-tenth deduction in light of history; re-examination; need for medical members of Panel to use judgement, knowledge and experience; Cole v Wenaline Pty Ltd considered; assessment under Psychiatric Impairment Rating Scale; Bojko v ICM Property Service Pty Ltd and Ferguson v State of New South Wales applied; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 October 2023 Unisys Technical Services (Unisys) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 September 2023.
Unisys 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 was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Walke suffered a psychological injury in the course of his employment with Unisys which is deemed to have been suffered on 1 January 2019. When he commenced that employment in 2016, Mr Walke was under treatment for a pre-existing psychological condition, including consulting a psychiatrist and taking medication. It was agreed that the injury was the aggravation, acceleration, exacerbation or deterioration of a disease and the referral to the Medical Assessor was made by consent.
The Medical Assessor assessed 22% whole person impairment (WPI) under the PIRS (Psychiatric Impairment Rating Scale), placing Mr Walke in class 2 for self care and personal hygiene and social functioning, class 3 for social and recreational activities, travel, and concentration,…

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

AGLC: Unisys Technical Services v Walke [2024] NSWPICMP 83
Case: [2024] NSWPICMP 83
Decision Date: 20 February 2024

CaseChat Overview and Summary

In the case of Unisys Technical Services v Walke, the dispute centred on the assessment of a psychological injury sustained by the plaintiff, Mr Walke, during his employment with Unisys. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The central issue before the tribunal was the appropriate assessment of Mr Walke's pre-existing psychological impairment in the context of his work-related injury and the implications of the one-tenth deduction under the relevant guidelines.

The tribunal had to determine whether the one-tenth deduction, as outlined in paragraph 11.10 of the Guidelines for the Assessment of Psychiatric Impairment, should be applied in light of Mr Walke's history of psychological issues. The tribunal examined the reasoning behind Marks v Secretary, Department of Communities and Justice (No 2) and found it inapplicable due to the specific circumstances of Mr Walke's case. The tribunal also considered the necessity for medical members of the Panel to exercise their judgement, knowledge, and experience in assessing such claims, drawing on the principles from Cole v Wenaline Pty Ltd. Furthermore, the tribunal evaluated the assessment conducted under the Psychiatric Impairment Rating Scale, referencing Bojko v ICM Property Service Pty Ltd and Ferguson v State of New South Wales.

The tribunal found that the initial Medical Assessment Certificate was flawed and revoked it. The tribunal concluded that the medical members of the Panel had not appropriately exercised their judgement, knowledge, and experience in assessing Mr Walke's pre-existing psychological impairment. Consequently, the tribunal ordered a re-examination of Mr Walke's case, ensuring that the assessment process adhered to the statutory requirements and properly considered all relevant factors.

Orders