Workers Compensation Nominal Insurer (icare) v Peacock - [2023] NSWPICMP 663

DETERMINATION OF APPEAL PANEL
CITATION:	Workers Compensation Nominal Insurer (icare) & Ors v Peacock [2023] NSWPICMP 663
APPELLANT:	K A Hutchins & B R Youssef t/as Bazil’s Café
RESPONDENT:	Lisa Anne Peacock
APPEAL PANEL
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	13 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; nominal insurer alleges error in the psychiatric impairment rating scale categories of Travel and Employability and in the deduction of one-tenth to reflect the proportion of the worker’s impairment due to a prior injury/pre-existing condition; Panel determines that there were significant factual errors in the Medical Assessment Certificate (MAC); Marks v Secretary, Department of Communities and Justice (No 2), Camden Council v Harle, and Adler v State of New South Wales (Royal North Shore Hospital - HealthShare NSW) considered; Held – Panel should not apply Chapter 11.10 of the Guidelines in this case as it is inconsistent with section 323; after re-examination Panel determined that the deductible proportion was one-third; MAC revoked and new MAC issued to reflect this finding.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 April 2019, K A Hutchins & B R Youssef t/as Bazil’s Café (the appellant) were not insured against their liability to Lisa Anne Peacock (the respondent) under the Workers Compensation Act 1987 (the 1987 Act).
The Workers Compensation Nominal Insurer brings this appeal in the name of the appellants.
On 15 May 2023, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by John J Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 April 2023.
The appellant 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 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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

The respondent worker has a long psychiatric history which is addressed in the…

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 Workers Compensation Nominal Insurer (icare) v Peacock

Details

AGLC: Workers Compensation Nominal Insurer (icare) v Peacock [2023] NSWPICMP 663
Case: [2023] NSWPICMP 663
Decision Date: 13 December 2023

CaseChat Overview and Summary

Workers Compensation Nominal Insurer (icare) brought a case against Peacock concerning the assessment of a workers' compensation claim for psychiatric impairment. The dispute arose from the Medical Assessment Certificate (MAC) issued by a medical practitioner, which was challenged by icare for alleged inaccuracies in the rating scale categories and the deduction applied to account for a pre-existing condition. The matter was heard in the Workers Compensation Magistrate Court of New South Wales.

The legal issues before the court involved the interpretation and application of the Workplace Injury Management and Workers Compensation Act 1998, specifically Chapter 11.10 of the Guidelines for the assessment of psychiatric impairment. Icare argued that the Panel had erred in applying the Guidelines and in determining the proportion of impairment attributable to the pre-existing condition. The central issue was whether the Panel should have applied Chapter 11.10 of the Guidelines, given its inconsistency with section 323 of the Act, and whether the deduction made for the pre-existing condition was correctly calculated.

The court examined the arguments presented by both parties, considering relevant case law such as Marks v Secretary, Department of Communities and Justice (No 2), Camden Council v Harle, and Adler v State of New South Wales (Royal North Shore Hospital - HealthShare NSW). The court found that the Panel had indeed made significant factual errors in the MAC and that the application of Chapter 11.10 of the Guidelines was inconsistent with section 323 of the Act. After re-examining the evidence, the Panel determined that the deductible proportion should be one-third, not one-tenth, to accurately reflect the proportion of the worker’s impairment due to the pre-existing condition.

Following the re-examination, the Panel revoked the original MAC and issued a new one, reflecting the corrected proportion. This decision underscores the importance of precise application of statutory provisions and the necessity for accurate assessments in workers' compensation claims. The final orders included the revocation of the original MAC and the issuance of a new MAC, as well as a determination on the appropriate deductible proportion.

Orders