Bullers v State of New South Wales (NSWSC 2025)

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Key Takeaways

• Care should be taken to ensure fairness in circumstances where assessments are undertaken via AVL;
• A failure to provide a party with an opportunity to clarify their answers can be grounds for an appeal.

Brief Facts

The worker was employed as a registered nurse with the defendant. He sustained a psychological injury on 1 March 2017, following an assault by a patient with dementia. The worker lodged a claim for workers compensation benefits, which was accepted.

On 1 November 2022, the worker made a claim for lump sum compensation under section 66 of the Workers Compensation Act 1987 (WCA 1987). He claimed 22% WPI. The defendant’s assessment in response was 11% WPI, below the threshold for the worker to recover lump sum compensation.

The matter proceeded to a Medical Assessor (MA). On 27 November 2023, the MA conducted his assessment by Audio-Visual Link (AVL). The connection was disconnected abruptly, then restored.

The MA noted in his Certificate that the quality of the connection was satisfactory. He noted that “at the very end of the assessment, the connection failed. By then the interview had essentially completed”. The MA assessed the worker’s WPI to be 7% and issued a Certificate to that effect.

This assessment was appealed, and proceeded to the Medical Appeal Panel (MAP). The worker also submitted that the MA misapplied the rating criteria for assessing his injury. The worker submitted that at the time the connection failed, the MA was still asking him about his condition. When the connection was re-established, the MA came back online to advise the appointment was ended. The worker contended he had not been given an opportunity to clarify any answers or add information he thought was relevant. As a result, he served an additional statement which, among other things, detailed his views in respect of how he should have been assessed with respect to certain categories.

The MAP determined that the MA made errors with respect to assessing the worker in two categories, and in failing to make a deduction under section 323. The MAP considered the history taken by the MA to have been thorough, and noted he had been able to observe and make findings regarding the worker’s demeanour and affect during the examination. The MAP therefore elected not to re-assess the worker, conducting their assessment “on the papers”. The MAP disagreed with the MA in his application of some of the PIRS ratings, and applied a section 323 deduction to arrive at 8% WPI. This falls below the threshold to recover lump sum compensation pursuant to section 65A(3) of the WCA 1987.

The worker sought judicial review of this decision, seeking certiorari, or that the assessment be set aside and a new MAP be constituted. The worker submitted that he had been denied procedural fairness in the MA, as the AVL was disconnected, and he was not afforded the opportunity to clarify or provide additional material he considered relevant. The worker argued that there was a difference between the assessment being “essentially completed”, and “complete.”

The defendant referred to the decision in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 and submitted that the decision maker’s process does not need to be perfect, but only needs to be fair. Furthermore, it was submitted that the merits of a discretionary decision by the appeal panel were not grounds for a challenge.

Judgment

Price AJ found that the MAP was obliged to consider whether the worker had been afforded the opportunity to clarify any of his answers after the connection was restored, and the failure to do so did not accord with procedural fairness. The question then turned to whether the error was material.

His Honour determined that the distinctions in possible PIRS assessments were apparent in the worker’s case noting the varying assessments applied by the parties’ medical experts, the MA, and the MAP. He found that it was a realistic possibility that if the worker had been given the opportunity to clarify his answers after the connection was restored, and he had an opportunity to collect his thoughts, this could have had an impact on the MA’s assessment. The MAP had erred in applying the incorrect test, and there was a realistic possibility that they would have decided to undergo a further medical examination.

It was therefore determined that the MAP’s assessment should be set aside, and directed the President of the PIC to refer the matter to a differently constituted MAP.

Implications

When reviewing medico-legal reports, particularly in respect of psychological injuries, insurers and employers need to give consideration to whether a worker has been provided the opportunity throughout the assessment to clarify any answers or responses. If they have not, there is the risk that the resulting report and/or WPI assessment may be challenged.