Woolworths Group Limited v Newman - [2022] NSWPICMP 77

DETERMINATION OF APPEAL PANEL
CITATION:	Woolworths Group Limited v Newman [2022] NSWPICMP 77
APPELLANT:	Woolworths Group Limited
RESPONDENT:	Joseph John Newman
APPEAL PANEL:	Member William Dalley Dr Douglas Andrews Professor Nicholas Glozier
DATE OF DECISION:	31 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Appeal by insurer asserting availability of additional relevant information, incorrect criteria and demonstrable error in respect of psychological injury acquired by gradual process; additional material relating to capacity to earn, relevant to error with respect to the Psychiatric Impairment Rating Scale area of function, “employability”; all material predated Medical Assessment Certificate (MAC) examination and appeared to have been in the possession of the insurer; that material, apart from one post MAC certificate of capacity, not admitted; application of Petrovic v BC Serv No 14 Pty Ltd and Ors; further application by appellant to admit other late documents including certificates of capacity, reports of treating psychiatrist and psychologist; not objected to by respondent worker; admitted pursuant to section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998; Held- the additional material admitted required re-examination of the respondent worker; error established with respect to failure to provide reasons for assessment of Class 5 with respect to “employability”; following re-examination Panel was satisfied that respondent worker is appropriately assessed within Class 5 “employability”; the additional evidence and the opinion of the Medical Assessor member of the Panel established that the respondent worker appeared to have suffered an increased level of impairment with respect to “social and recreational activities” and was now appropriately assessed as falling within class 3 rather than Class 2 assessed in the MAC; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 October 2021, Woolworths Group Limited lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Graham Blom, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 September 2021.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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.
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 the PIC Rules.
The assessment of permanent impairment…

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 77
Decision Date: 31 March 2022

CaseChat Overview and Summary

Woolworths Group Limited sought to appeal a decision concerning workers' compensation awarded to Mr. Newman, who claimed a psychological injury acquired by a gradual process. The dispute was heard in the New South Wales Court of Appeal. The insurer argued that additional relevant information was available, criteria were incorrectly applied, and there was a demonstrable error regarding the Psychiatric Impairment Rating Scale's "employability" assessment. The insurer claimed this material, mostly predating the Medical Assessment Certificate (MAC) examination, was in their possession and should have been considered. The insurer's application to admit this late material was granted, as per section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998.

The court had to determine if the insurer's late-submitted evidence could be considered and if this would lead to a re-evaluation of Mr. Newman's psychological injury assessment. It was necessary to establish whether the additional material would result in a different classification of Mr. Newman's "employability" and "social and recreational activities" impairment levels. The court had to apply the principles established in Petrovic v BC Serv No 14 Pty Ltd and Ors to decide whether the late submission of evidence constituted an error that could be rectified. The insurer's argument centred on whether the error was significant enough to warrant a revision of the original MAC findings.

The Court of Appeal found that the additional material required a re-examination of Mr. Newman. The court identified an error in the original assessment concerning the reasons provided for the Class 5 rating on "employability." After re-examining Mr. Newman, the Panel concluded that he should still be classified under Class 5 "employability." However, the new evidence and the opinion of the Medical Assessor member of the Panel indicated that Mr. Newman's impairment in "social and recreational activities" had increased, warranting a reclassification from Class 2 to Class 3. Consequently, the MAC was revoked, and the assessment was adjusted accordingly.

Orders