Wang v Star Timber Pty Ltd - [2023] NSWPICMP 515

DETERMINATION OF APPEAL PANEL
CITATION:	Wang v Star Timber Pty Ltd [2023] NSWPICMP 515
APPELLANT:	Yanan Wang
RESPONDENT:	Star Timber Pty Limited
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	16 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Significant physical injury and psychological injury; referred to Medical Assessor (MA) without determination of primary/secondary psychological injury; ma diagnosed post-traumatic stress disorder (primary) and major depressive disorder (secondary) and apportioned 50% to each; appeal lodged then referred to Commission member who determined there was a primary and a secondary injury; MA did not set out symptoms relied on or diagnosis of major depressive disorder; re-examination; worker suffered both conditions; on the evidence, apportionment was open to the MA in the exercise of his clinical judgement; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 December 2022 Yanan Wang lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 November 2022.
The dispute as to permanent impairment was referred to the Medical Assessor without determination of any issue by a member of the Personal Injury Commission (the Commission).
The Medical Assessor determined that Mr Wang suffered a primary and a secondary psychological injury.
Mr Wang appealed and relied 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.
Mr Wang was employed by Star Timber Pty Limited (Star Timber) as a floor layer. On 4 August 2020 he was cutting timber with a jigsaw when he suffered lacerations to his left index and middle fingers. On the following day he underwent surgery to his left middle finger extensor tendon, nail bed and digital nerve as well as stabilisation of the fracture by K-wire. Mr Wang underwent extensor tenolysis of his left middle finger in December 2020.
Mr Wang’s treating doctors diagnosed post-traumatic stress disorder, as did Dr Hong, qualified by his solicitors. Dr Verma, qualified for Star Timber, also diagnosed post-traumatic stress disorder but said that Mr Wang also suffered a secondary psychological injury.
Star Timber said in its dispute notices under s 78 of the 1998 Act that Mr Wang suffered a primary and a secondary psychological condition. That issue was also referred to in the Reply form but Star Timber did not ask the Commission to list the matter before a member and it was referred directly to the Medical Assessor.
The Medical Assessor assessed Mr Wang’s permanent impairment at 17% and attributed half to each of the primary and secondary injuries.
On 20 February 2023, a delegate of the President issued a written decision in which he determined that there was an outstanding liability decision and said that the question of whether Mr Wang…

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 Wang v Star Timber Pty Ltd

Details

AGLC: Wang v Star Timber Pty Ltd [2023] NSWPICMP 515
Case: [2023] NSWPICMP 515
Decision Date: 16 October 2023

CaseChat Overview and Summary

The case of Wang v Star Timber Pty Ltd involved the worker, Wang, who suffered significant physical and psychological injuries in the course of his employment. The dispute centred on the classification and apportionment of the psychological injuries, which were referred to a Medical Assessor (MA) without a determination of whether the psychological injuries were primary or secondary. The MA diagnosed Wang with post-traumatic stress disorder (primary) and major depressive disorder (secondary), apportioning 50% to each condition. Wang appealed the decision, which led to a referral to a Commission member who affirmed the presence of both a primary and a secondary injury. However, the MA had not detailed the symptoms relied upon or the diagnosis of the major depressive disorder. A re-examination was conducted, and it was determined that Wang indeed suffered from both conditions. The court held that the apportionment was within the MA's clinical judgement, and the Medical Assessment Certificate was confirmed.

The primary legal issue was whether the MA had correctly classified and apportioned Wang's psychological injuries. Specifically, the court had to determine if the MA had exercised reasonable clinical judgement in diagnosing and apportioning the conditions. Another critical issue was whether the MA's failure to detail the symptoms and diagnosis of the major depressive disorder was a valid reason to overturn the initial determination. The court needed to assess if the Commission member's decision was consistent with the evidence and if the re-examination provided sufficient grounds to affirm the original apportionment.

The court reasoned that the MA's diagnosis and apportionment were within the bounds of clinical judgement and that the lack of detailed symptoms and diagnosis did not invalidate the overall determination. The Commission member's decision was consistent with the evidence, which showed that Wang suffered from both post-traumatic stress disorder and major depressive disorder. The court held that the apportionment was reasonable and that the MA's clinical judgement was appropriately exercised. Therefore, the appeal was dismissed, and the Medical Assessment Certificate was confirmed, upholding the original determination by the MA.

Orders