Zaccazan v Sunlight Products Pty Ltd - [2021] NSWPICMP 69

DETERMINATION OF APPEAL PANEL
CITATION:	Zaccazan v Sunlight Products Pty Ltd [2021] NSWPICMP 69
APPELLANT:	Leanne Zaccazan
RESPONDENT:	Sunlight Products Pty Ltd
APPEAL PANEL:	Member Brett Batchelor Dr Julian Parmegiani Dr Michael Hong
DATE OF DECISION:	7 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Appeal against MAC on the grounds of assessment made on the basis of incorrect criteria and/or that the MAC contains a demonstrable error; psychiatric injury, and only ground of appeal relied on was an incorrect PIRS classification in respect of concentration, persistence and pace; Held- finding by the Appeal Panel that the Medical Assessor had not provided sufficient reasons for his classification of the appellant in Class 2 rather than Class 3; appellant re-examined by a member of the Appeal Panel who classified her in Class 3 for concentration, persistence and pace; MAC of Medical Assessor revoked and new certificate issued.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 February 2020 Leanne Zaccazan lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Samson Frederick Roberts, an Approved Medical Specialist (since 1 March 2021 with the commencement of the Personal Injury Commission Act 2020, known as a Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 14 October 2020.
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,
· 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 WorkCover Medical Assessment Guidelines 2006 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 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Leanne Zaccazan (the appellant/Ms Zaccazan) suffered psychological injury arising out of or in the course of her employment with Sunlight Products Pty Ltd (respondent), deemed to have occurred on 15 October 2018. Her employment was in fact terminated on 3 December 2018 and she has not worked since that time. Ms Zaccazan was treated by her general practitioner who prescribed anti-depressant medication and referred her to a psychologist for treatment. She later saw a second psychologist for treatment. She was diagnosed with work related anxiety disorder.
The appellant was admitted to Cumberland Hospital in…

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: [2021] NSWPICMP 69
Decision Date: 7 May 2021

CaseChat Overview and Summary

Zaccazan appealed against a Medical Assessment Certificate (MAC) issued by Sunlight Products Pty Ltd, arguing that the assessment was made on incorrect criteria or contained a demonstrable error. The appellant claimed that she had sustained a psychiatric injury, and her only ground of appeal was the incorrect classification of her in Class 2 rather than Class 3 by the Medical Assessor. The appeal was heard by the Appeal Panel, which consisted of a medical specialist and two other members.

The legal issues before the Appeal Panel were whether the Medical Assessor's classification of the appellant was based on incorrect criteria and whether there was a demonstrable error in the MAC. The appellant argued that the Medical Assessor had not provided sufficient reasons for classifying her in Class 2 rather than Class 3 for concentration, persistence, and pace. The Appeal Panel found that the Medical Assessor had not provided sufficient reasons for his classification and re-examined the appellant, who was classified in Class 3 for concentration, persistence, and pace.

The Appeal Panel revoked the MAC issued by the Medical Assessor and issued a new certificate. The Appeal Panel found that the appellant's psychiatric injury was not attributable to the employment, and she was not entitled to weekly compensation. The Appeal Panel also found that the Medical Assessor's classification of the appellant in Class 2 rather than Class 3 for concentration, persistence, and pace was incorrect and that there was a demonstrable error in the MAC. The Appeal Panel's decision was based on the evidence presented and the medical specialist's opinion.

The final orders made by the Appeal Panel were that the MAC issued by the Medical Assessor be revoked, and a new certificate be issued. The appellant was not entitled to weekly compensation for her psychiatric injury, and the Appeal Panel's decision was final and binding. The appellant was advised to seek legal advice if she wished to challenge the decision further.

Orders