Walter Carter Funerals Pty Ltd v Cameron - [2023] NSWPICMP 185

DETERMINATION OF APPEAL PANEL
CITATION:	Walter Carter Funerals Pty Ltd v Cameron [2023] NSWPICMP 185
APPELLANT:	Walter Carter Funerals Pty Ltd
RESPONDENT:	Jasmine Cameron
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; worker who had suffered a slow improvement since a previous examination had reached maximum medical improvement; section 323 deduction; Medical Assessor was not required to calculate degree of permanent impairment before the injury; Marks v Secretary of Communities and Justice (No 2), Secretary and Department of Communities and Justice v Lewandowski discussed; one-tenth deduction was appropriate; psychiatric impairment rating scale (PIRS) table for employability; Jenkins v Ambulance Service of NSW and Ferguson v State of NSW discussed; Held – MA not required to agree with certificates of capacity; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 March 2023 Walter Carter Funerals Pty Ltd (WCF) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Prof Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 February 2023.
WCF 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 delegate was 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 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 Cameron was employed by WCF as a funeral consultant. She suffered a psychological injury in the course of her employment, which is deemed to have occurred on 22 January 2020.
The Medical Assessor prepared a MAC on 14 March 2022. He considered that Ms Cameron had not reached maximum medical improvement and that she would be unlikely to do so for another nine months.
The Medical Assessor assessed Ms Cameron again on 21 February 2023. He assessed 17% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS) and deducted…

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 185
Decision Date: 5 May 2023

CaseChat Overview and Summary

The case of Walter Carter Funerals Pty Ltd v Cameron involved a dispute concerning workers' compensation and the assessment of a psychological injury. The worker, Cameron, had previously been found to have suffered a psychological injury and was undergoing treatment. The dispute centred on the determination of the worker's maximum medical improvement and the subsequent calculation of the section 323 deduction. The matter was heard and determined in the Queensland Civil and Administrative Tribunal.

The primary legal issue the tribunal needed to resolve was whether the Medical Assessor (MA) was required to calculate the degree of permanent impairment before assessing the worker's condition. Additionally, the tribunal had to determine the appropriate deduction for the worker's psychological injury under section 323 of the Workplace Injury Management and Workers Compensation Act 1998, as well as the applicability of the psychiatric impairment rating scale (PIRS) table for employability. These issues were explored in light of relevant case law, including Marks v Secretary of Communities and Justice (No 2) and Secretary and Department of Communities and Justice v Lewandowski.

In its decision, the tribunal noted that the MA was not obligated to agree with the certificates of capacity provided by the worker's treating psychiatrists. Instead, the tribunal emphasised the importance of the MA's independent assessment of the worker's condition. The tribunal found that the worker had experienced a slow but steady improvement since the previous examination, reaching maximum medical improvement. It concluded that a one-tenth deduction was appropriate, aligning with the tribunal's interpretation of Jenkins v Ambulance Service of NSW and Ferguson v State of NSW. The tribunal confirmed the Medical Assessment Certificate, which detailed the worker's condition and the calculated deduction.

The tribunal's final orders confirmed the Medical Assessment Certificate and the calculated deduction of one-tenth for the worker's psychological injury. The tribunal's decision underscored the need for an independent assessment by the MA and the importance of considering the worker's ongoing improvement when determining the appropriate deduction.

Orders