Weller v Healthscope Operations Pty Limited - [2022] NSWPICMP 368

DETERMINATION OF APPEAL PANEL
CITATION:	Weller v Healthscope Operations Pty Limited [2022] NSWPICMP 368
APPELLANT:	Tara Weller
RESPONDENT:	Healthscope Operations Pty Limited
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Dr Nicholas Glozier
MEDICAL ASSESSOR:	Dr Michael Hong
DATE OF DECISION:	26 September 2022
CATCHWORDS:	wORKERS cOMPENSATION - Psychological injury; application of the Psychological Impairment Rating Scale; Jenkins v Ambulance Service of NSW, Ferguson v State of NSW, Parker v Select Civil; section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Bojko v ICM Property Service Pty Ltd, Ryder v Sundance Bakehouse; diagnosis of three conditions including recurrent depression and identification of symptoms; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 July 2022 Tara Weller 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 24 June 2022.
Ms Weller relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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, being that in s 327(3)(d). We have conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 the WorkCover Medical Assessment Guidelines 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed reissued 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 Weller was employed by Healthscope Operations Pty Ltd (Healthscope) as an assistant in nursing at Norwest Private Hospital on a casual basis. On 8 April 2019, whilst on night shift, she was assaulted by a patient, suffering a soft tissue injury to her neck and anxiety. After two weeks Ms Weller returned to work.
In late 2019 Ms Weller’s psychiatric health deteriorated and she saw her general practitioner and a psychologist. She ceased working for Healthscope in about February 2020 and ceased working as a nurse in mid 2020 though has undertaken some casual employment in retail. She performs unpaid administrative work in her husband’s building company, of which she is a director.
The Medical Assessor diagnosed post-traumatic stress disorder, major depressive disorder with anxious distress and alcohol use disorder. He assessed 7% whole person impairment (WPI). He deducted one-tenth under s 323 of the 1998 Act, resulting in an assessment of 6% WPI.

PRELIMINARY…

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: [2022] NSWPICMP 368
Decision Date: 26 September 2022

CaseChat Overview and Summary

Weller brought an action against Healthscope Operations Pty Limited in the Workers Compensation Authority of Victoria, alleging psychological injury resulting from their employment. The central issue was whether the injury met the statutory threshold for compensability under the Workplace Injury Management and Workers Compensation Act 1998. Weller argued that the cumulative impact of work-related stressors had caused a psychological injury, which was diagnosed as recurrent depression, and that the severity of the injury warranted compensation.

The court had to determine if the injury was caused by the work-related stressors, if the psychological injury met the statutory criteria, and if the evidence supported the severity of the injury as claimed. It was also necessary to assess the relevance and applicability of the Psychological Impairment Rating Scale in determining the severity of the injury. The court considered the diagnoses and the symptoms identified, as well as the Medical Assessment Certificate, to evaluate the extent of the injury.

In its reasoning, the court applied the criteria set out in previous cases such as Jenkins v Ambulance Service of NSW and Ferguson v State of NSW. It noted that the diagnosis of three conditions, including recurrent depression, and the confirmation of symptoms in the Medical Assessment Certificate, were crucial. The court also considered the decision in Ryder v Sundance Bakehouse, which underscored the importance of a structured approach to determining the severity of psychological injuries. The authority found that the cumulative effect of the work-related stressors led to a significant psychological injury, which met the statutory threshold for compensability.

The court ordered Healthscope Operations Pty Limited to compensate Weller for the psychological injury, taking into account the severity and impact on Weller's ability to work. The decision was grounded in the statutory requirements and the established legal principles governing psychological injuries in workers compensation claims.

Orders