Vastag v The Ramsay Centre for Western Civilisation - [2025] NSWPICMP 278

DETERMINATION OF APPEAL PANEL
CITATION:	Vastag v The Ramsay Centre for Western Civilisation [2025] NSWPICMP 278
APPELLANT:	Lynne Vastag
RESPONDENT:	The Ramsay Centre for Western Civilisation
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	John Lam-Po-Tang
DATE OF DECISION:	16 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor erred under five categories of the psychiatric impairment rating scale (PIRS), failed to give adequate reasons, and erred in respect of assessment for treatment effects; Held – Appeal Panel found no errors; reasons were adequate and were equally so as regards treatment effects; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 December 2024 Lynne Vastag (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
11 December 2024.
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 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel 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, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, the Panel is satisfied that we have sufficient evidence before us to enable us to determine this appeal without any re-examination of Ms Vastag.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal…

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: [2025] NSWPICMP 278
Decision Date: 16 April 2025

CaseChat Overview and Summary

In this case, Vastag was appealing a decision of the Medical Assessor under the Workplace Injury Management and Workers Compensation Act 1998. Vastag contended that the Medical Assessor had erred in his assessment of her permanent impairment, specifically in relation to the psychiatric impairment rating scale (PIRS) and the loading for treatment effects. The court had to determine whether the Medical Assessor’s decision was legally sound and if he provided adequate reasons for his assessment.

The primary legal issues before the court were whether the Medical Assessor had erred in applying the PIRS and in assessing the treatment effects. Vastag argued that the Medical Assessor had failed to provide sufficient reasons for his decision to apply a 2% WPI loading for treatment effects. The court had to examine whether the Medical Assessor's reasons met the legal standards required for such assessments, and whether the loading was justified under the guidelines. The court also needed to consider if the reasons provided were legally sufficient and whether they adequately addressed the three-step process required by the guidelines.

The court found that the Medical Assessor had not erred in his assessment. The reasons provided were deemed adequate, particularly in relation to the three-step process required for determining the treatment effects. The court noted that the Medical Assessor had considered the effective long-term treatment, the apparent elimination of impairment, and the likelihood of reversion to the original impairment if treatment was withdrawn. The court found no basis to interfere with the Medical Assessor’s findings, as the reasons provided were sufficient and met the legal standards. Consequently, the Appeal Panel upheld the Medical Assessment Certificate.

As a result of the court's decision, the Appeal Panel confirmed the Medical Assessment Certificate. Vastag's appeal was dismissed, and the original decision of the Medical Assessor was upheld. The court's reasoning confirmed that the Medical Assessor's findings and reasons were legally sound and met the necessary standards.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Inghams Enterprises Pty Ltd v Lakovska, [2014] NSWCA 194, the Court of Appeal, held: “… failure to give legally sufficient reasons will be reviewable for legal error: Vegan at [130], referred to in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at [28]. These decisions should not be understood as requiring lengthy or discursive reasons.” (our emphasis) The appellant submits that the Medical Assessor erred in his failure to give reasons in two respects. Firstly, it is submitted that the reasons given for applying a 2% WPI loading for the effects of treatment are inadequate. The Guidelines allow an adjustment of 1-3% WPI, where the effective long term treatment of an illness or injury results in apparent substantial or total elimination of the appellant’s permanent impairment, (our emphasis) but the appellant is likely to revert to the original degree of impairment if treatment is withdrawn. The Medical Assessor said:“I am of the opinion that if the appellant were to cease her antidepressant medication her whole person impairment would significantly decline. I note that the effect of treatment on the appellant’s symptoms has been of a moderate amount. I have added 2% WPI for treatment effect.” A similar issue was recently dealt with by the Supreme Court in Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 (Zoric) where Chen J said:“The clause may thus be understood to involve, and require findings about, the following ‘steps’:1.First, whether there has been effective long-term treatment of an illness or injury.2. Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.3. Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.Upon satisfaction of each step, the medical assessor may increase the percentage of WPI by 1%, 2% or 3%. no submissions were directed to the proper construction of it – in particular, the meaning to be given to the term ‘may’ (broadly, whether it is discretionary or mandatory).In relation to the first step, therefore, there needs to be a finding about the ‘illness or injury” that results in permanent impairment and whether there has been effective long-term treatment of that ‘illness or injury’.In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [52] as follows:Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause… In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”

Ratio Decidendi

Legal Principle Established

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