Prince v Seven Network (Operations) Ltd [2020] NSWWCCMA 128

The Appellant suffered a psychological injury whilst a contestant on a reality TV show owned by the Respondent.

Material Facts

The Arbitrator determined that the Appellant was a ‘worker’ within the meaning of the Workers Compensation Act 1987 (the 1987 Act) and that she suffered a psychological/psychiatric injury in the course of her employment with the date of injury being 17 May 2017. The Appellant’s claim for permanent impairment compensation pursuant to Section 66 of the 1987 Act was assessed by an Approved Medical Specialist (AMS) who examined the Appellant and assessed 7% whole person impairment (WPI). The AMS issued a Medical Assessment Certificate (MAC) in accordance with the WPI assessment.

The Appellant filed an appeal against the MAC in respect of the conduct of the examination process by the AMS and the subsequent application of incorrect criteria.

Grounds of Appeal

The Appellant asserted that the medical assessment should be reviewed on the ground that the MAC contained a demonstrable error and/or 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 1998 Act).

The ground of appeal of most concern was the conduct of the examination process with respect to technology. The Appellant submitted that the “the abortive and technically flawed conduct of the examination…was, in itself, a denial of procedural fairness and of the Appellant’s right to a proper examination…[and] a Certificate issued pursuant to a fundamentally flawed examination process is manifestly unreliable and erroneous”

Appeal Panel Decision

The Appeal Panel was concerned that a full elucidation of the facts of the matter did not occur and that a break in the video transmission of the assessment impacted the effectiveness of the process.

The Appeal Panel observed that AMS’s are directed to include any problems with technology in the MAC as a way of checking the ongoing use of the technology as an appropriate tool. In this matter the Panel noted that the AMS did not record the obvious deficiencies that occurred in the original assessment. The Panel considered that the use of video conferencing had been an effective tool for the Commission, particularly during the COVID-19 pandemic, but said that the process must be effective. The substantial delay in commencing the assessment and the interruptions in this matter meant that the assessment process was far from satisfactory.

Whilst the Panel expressed concern over the examination process they still accepted that video conferencing technology such as Skype is an appropriate tool for the examination process. The Panel considered that the interruptions were unfortunate and may have led to inaccuracies in what was recorded by the AMS and led to the application of incorrect criteria.

The Appeal Panel found that Claimant was entitled to be re-examined. The Claimant was re-examined and a new Medical Assessment Certificate was issued which assessed 22% WPI.

Implications

The Commission endorses the use of video examination but notes that the process must be effective. Substantial delays and interruptions are not deemed satisfactory as they impact the effectiveness of the process.

Should you have any questions about a particular workers compensation mater, please telephone our workers compensation team on either (02) 4949 9333 or (02) 8297 5900.