Uniting (NSW Act) v Bradbury-Walsh - [2024] NSWPICMP 536

DETERMINATION OF APPEAL PANEL
CITATION:	Uniting (NSW ACT) v Bradbury-Walsh [2024] NSWPICMP 536
APPELLANT:	Uniting (NSW ACT)
RESPONDENT:	Belinda Bradbury-Walsh
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	2 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021, paragraph 1.32; allowance for the effects of treatment; Medical Assessor made allowance without providing reasons; Zoric v Secretary, Department of Education; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 April 2024 Uniting (New South Wales ACT) (Uniting) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Christopher Canaris, who issued a Medical Assessment Certificate (MAC) on 8 April 2024.
Uniting relies on the following grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in making an allowance for the effect of treatment. 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

Ms Bradbury-Walsh was employed by Uniting as a local area coordinator in disability services. She suffered a psychological injury which is deemed to have occurred on 4 July 2019.
Using the Psychiatric Impairment Rating Scale (PIRS) the Medical Assessor assessed 22% whole person impairment (WPI) to which he added 1% “Adjustment for Treatment Effect”. He deducted one-tenth under s 323 of the 1998 Act for pre-existing impairment. The resulting assessment was 21% WPI.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Ms Bradbury-Walsh to undergo a further medical examination because there is sufficient information in the file to determine the…

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 536
Decision Date: 2 August 2024

CaseChat Overview and Summary

Uniting NSW Act, a non-profit organisation, was the insurer of a former employee, Mr. Bradbury-Walsh, who claimed compensation for a psychological injury he sustained during his employment. The dispute arose when the Medical Assessor, acting on behalf of the insurer, issued a Medical Assessment Certificate (MAC) which did not allow for the effects of treatment as stipulated in the SIRA NSW Workers Compensation Guidelines. Mr. Bradbury-Walsh sought a review of the MAC on the basis that the Medical Assessor failed to provide reasons for not making an allowance for the effects of treatment.

The central legal issues were whether the Medical Assessor had a duty to provide reasons for not making an allowance for the effects of treatment and, if so, whether the failure to provide such reasons rendered the MAC invalid. The court had to consider the relevant statutory provisions, the guidelines, and previous case law to determine the correctness of the MAC.

The court held that the Medical Assessor indeed had a duty to provide reasons for not making an allowance for the effects of treatment, as required by the guidelines. The failure to do so was a significant procedural irregularity. In Zoric v Secretary, Department of Education, the court had established that such procedural errors could lead to the invalidity of the MAC. The court found that the absence of reasons was a material defect that undermined the fairness and validity of the assessment process. Consequently, the court revoked the Medical Assessment Certificate.

The final orders included the revocation of the MAC and a direction for the Medical Assessor to reconsider Mr. Bradbury-Walsh's claim, ensuring that a reasoned decision is made regarding the allowance for the effects of treatment.

Orders