Westpac Banking Corporation v Ralli - [2024] NSWPICMP 667

DETERMINATION OF APPEAL PANEL
CITATION:	Westpac Banking Corporation v Ralli [2024] NSWPICMP 667
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Shumita Gujral Ralli
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	19 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of permanent impairment in relation to psychiatric and psychological disorders; assessment failed to consider an alleged deterioration in the respondent’s symptoms due to events subsequent to her employment; Medical Assessor (MA) erred in failing to have regard to the respondent’s pre-existing psychological condition and therefore not making a deduction in accordance with section 323; McCarthy v Patrick Stevedores No 1 Pty Limited, Marks v Secretary, Department of Communities and Justice (No 2), Ryder v Sundance Bakehouse, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Campbelltown City Council v Vegan, Paric v John Holland (Constructions) Pty Limited, Hancock v East Coast Timber Products Pty Limited, and Cole v Wenaline Pty Limited considered; Held – the Medical Appeal Panel (the Panel) found no error in relation to the first ground of appeal and is satisfied that the MA solely assessed impairment in relation to the respondent’s accepted psychological injury without having regard to any psychological condition not related to the accepted injury; error found in relation to the second ground of appeal having regard to the contemporaneous medical evidence regarding the respondent’s pre-existing psychological condition; indicating a pre-existing recurrent major depressive disorder; the appellant’s current employment related persistent depressive disorder represents a further but more chronic and impairing episode of her pre-existing condition; the Panel finds sufficient evidence to conclude that her current degree of psychological impairment would not have been as great if it were not for the pre-existing condition; the Panel considers the appropriate deduction from the impairment assessed by the MA to be 1/10 in accordance with section 323(2); Medical Assessment Certificate revoked and a new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 May 2024, Westpac Banking Corporation (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Gerard Walsh (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 23 April 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 President’s delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, but limited to the grounds of appeal on which the Appeal is made.
Rule…

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 667
Decision Date: 19 September 2024

CaseChat Overview and Summary

Westpac Banking Corporation has appealed against the assessment of permanent impairment in relation to a psychiatric and psychological disorder of its former employee, Ms Ralli. The dispute was heard in the New South Wales Civil and Administrative Tribunal, Workers Compensation Division. The Tribunal was required to determine whether the Medical Assessor's assessment of Ms Ralli's permanent impairment correctly considered her pre-existing psychological condition and whether the assessment should have been adjusted in light of that condition.

The primary issue before the Tribunal was whether the Medical Assessor properly assessed Ms Ralli's impairment without considering her pre-existing psychological condition. The Tribunal considered relevant case law, including the requirement that a pre-existing condition be taken into account when assessing impairment arising from a workplace injury. The Tribunal was tasked with determining whether the Medical Assessor's failure to consider the pre-existing condition constituted an error that warranted adjustment of the impairment assessment.

The Tribunal found that the Medical Assessor did not err in assessing the impairment solely in relation to Ms Ralli's accepted psychological injury, without considering any psychological condition unrelated to the injury. However, the Tribunal found that the Medical Assessor did err in not taking into account the contemporaneous medical evidence regarding Ms Ralli's pre-existing recurrent major depressive disorder. The Tribunal concluded that Ms Ralli's current employment-related persistent depressive disorder represented a further but more chronic and impairing episode of her pre-existing condition, and that her current degree of psychological impairment would not have been as great if it were not for the pre-existing condition. The Tribunal found that the appropriate deduction from the impairment assessed by the Medical Assessor should be one-tenth in accordance with section 323(2) of the relevant legislation. The Tribunal revoked the Medical Assessment Certificate and issued a new certificate with the appropriate deduction.

The Tribunal's final orders included the revocation of the Medical Assessment Certificate and the issuance of a new certificate reflecting the appropriate deduction of one-tenth for Ms Ralli's pre-existing psychological condition.

Orders