Ratewave Pty Ltd t/as Manly Pacific Hotel Sydney v Radek [2021] NSWWCCMA 6

The Respondent suffered a psychological injury, namely Major Depressive Disorder and Anxiety Disorder, as a result of his employment with the Appellant.

The Respondent made a claim for permanent impairment compensation pursuant to Section 66 of the Workers Compensation Act 1987. He was assessed by Approved Medical Specialist (AMS), Dr Takyar, who issued a Medical Assessment Certificate (MAC) dated 11 May 2020 assessing 19% WPI.

The Appellant filed an Application to Appeal Against the Decision of Approved Medical Specialist on 5 June 2020 on the basis of the application of incorrect criteria and a demonstratable error.

Grounds of Appeal

Appellant submitted that the medical assessment should be reviewed on the grounds that the MAC contained a demonstratable error and that the assessment was made on the basis of incorrect criteria within the meaning of Section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appellant made their submissions based on the following reasons:

a)  the Respondent’s evidence provided to the AMS was inconsistent with the evidence on file, particularly in regard to his reported functioning; and

b)  the AMS has failed to appropriately consider the entirety of the evidence before him.

Appeal Panel Decision

The Appeal Panel held concerns that the AMS did not consider all evidence before him when making his assessment under the PIRS categories including the capability of his employment.

The Panel considered that the requirement of an AMS to not rely upon self-report alone but rather to consider all the evidence before him and to take a proper history, was not followed by Dr Takyar.

The Panel considered that re-examination by an AMS member of the Panel was necessary and Professor Nicholas Glozier (“AMS”) was appointed to conduct the re-examination.

The AMS considered the previous assessment of Class 3 impairment for self-care and personal hygiene was erroneous. He noted that the worker continues to contribute to household chores, partakes in activities to improve himself and appears highly motivated to look after himself.  Therefore, he assessed Class 2 impairment relating to self-care and personal hygiene.

Based on the AMS’s observations of the Respondent’s ability to maintain over an hour long assessment without significant impairment he maintained the previous assessment of Class 3 impairment in respect to concentration, persistence and pace.

Regarding adaption (employability), the Respondent was assessed as having a Class 4 impairment. The AMS considered this to be correct on the basis that the Respondent was still able to continue to operate an air-bnb business on a regular basis, which accounted for at least a few hours of work per week. The worker also reported carrying out volunteer work for several hours a week.

Overall, the AMS assessed there to be an 8% WPI in respect of the Respondent’s psychological injury.

The Appeal Panel adopted the AMS’s findings and issued a MAC dated 8 January 2021 assessing there to be a non-compensable 8% WPI. The previous MAC issued on 11 May 2020 was revoked. Based upon the MAC the Respondent was not entitled to permanent impairment compensation as his impairment resulting from his psychological injury did not result in more than 15% WPI as required by Section 65A of the Workers Compensation Act 1987.

Implications

When making an assessment under the PIRS categories, an AMS must consider all of the evidence before him/ her and not simply rely upon a self-reported history and evidence provided by the injured worker.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either 02 4929 9333 or 02 8297 5900.