Defendant victorious in appeal by employer plaintiff over workers compensation

Date: Jan 26, 2020

An application was recently filed by an employer under Supreme Court Act 1970 (NSW), for judicial review of a decision of an Appeal Panel of the Workers Compensation Commission determining an appeal under Workplace Injury Management and Workers Compensation Act.

The case

The appeal stemmed from an assessment of an approved medical specialist (AMS), who evaluated the degree of permanent impairment of the first defendant worker. The evaluation took into account psychological injuries suffered as the result of a work incident, which involved a sexual assault.

The AMS assessed the level of permanent impairment using the psychiatric impairment rating scale (PIRS) mandated by the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. It found an impairment of 22%, and also determined that she suffered from preexisting psychiatric injuries. The whole person impairment was concluded to be “difficult or costly” to determine, and so the extent of the percentage deduction for those preexisting conditions was set at 10%.

This resulting in an overall assessment of whole person impairment of 20%, well over the range at which workers compensation would apply. However, the plaintiff employer appealed from that assessment, saying it had been made based on incorrect data and that the medical assessment certificate contained “demonstrable” error.

The appeal did not challenge the AMS’s assessment of the whole-person impairment, only the finding of the extent to which her pre-existing psychiatric conditions contributed to that impairment. The Appeal Panel allowed the appeal, and assessed the proportion of impairment due to preexisting conditions to be 20% of the total, lowering the work injury to 18% total impairment. However, this was still not acceptable to the plaintiff employer.

The judgment

The employer sought to set aside the Appeal Panel’s certificate, saying her preexisting condition was only controlled through treatment and medication, and positing that her current state of disarray might be due to cessation of treatment. However, the Panel was found in its analysis to have not disregarded the fact that the preexisting condition was under medication and asymptomatic at the time of the assault at work. The reasons were not inadequate in the respect contended, and the amended summons was dismissed, while the plaintiff was ordered to pay the first defendant’s costs of the proceedings.

If you are seeking compensation through a worker’s compensation claim or are facing an appeal of your worker’s compensation claim and require assistance, contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.