Australia, April 14 -- New South Wales Land and Environment Court issued text of the following judgement on March 17:

1. STERN JA: Mr Stolzenberg, the plaintiff in this application for judicial review under s 69 of the Supreme Court Act 1970 (NSW), was employed on a casual basis as a bartender at Alpha Restaurant by the Hellenic Club (the sixth defendant) from September 2019 until 5 February 2020. In around early 2020 he suffered from psychological injury precipitated by his treatment by other members of staff at Alpha Restaurant from around 19 December 2019. He made a claim on the basis of permanent impairment seeking lump sum compensation for "psychiatric and psychological disorders" leading to whole person impairment resulting from the injury (WPI) of 15% (in the sum of $36,700). This was supported by a medical report dated 18 March 2022 that he had obtained from Dr Hooi-Beng (Ben) Teoh, Psychiatrist. It is that claim which is at the heart of these proceedings.

2. Given that the plaintiff's injury is psychological, by reason of ss 65A(3) and 151H of the Workers Compensation Act 1987 (NSW) (1987 Act), his entitlement to compensation for permanent impairment (and to "modified common law damages") depends upon his WPI being assessed as being at least 15%. That assessment must be carried out by an Approved Medical Specialist (a Medical Assessor) who is required to issue a medical assessment certificate (MAC): s 35 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act), in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines) issued by the State Insurance Regulatory Authority (SIRA): s 322(1) of the 1998 Act. The Guidelines include what is described as the "Psychiatric impairment rating scale" (PIRS), which guides an assessment of WPI. A Medical Assessment Certificate is conclusively presumed to be correct as to the degree of WPI: s 326(1) of the 1998 Act.

3. Whilst liability was initially disputed, on 7 July 2023 the Workers Compensation Nominal Insurer (the Nominal Insurer), the first defendant, withdrew the liability dispute. It should also be noted that the Nominal Insurer had commissioned a report from Dr Tanveer Ahmed, Consultant Psychiatrist, on 6 September 2022 who (like Dr Teoh) assessed the plaintiff's WPI at 15%.

4. By consent, the matter was referred to the President of the Personal Injury Commission (the President and the Commission, respectively) for referral to a Medical Assessor pursuant to s 321 of the 1998 Act. This was for assessment of the extent of the plaintiff's whole person impairment on account of psychiatric and psychological disorders with a deemed date of injury (under s 15(1) of the 1987 Act) of 15 June 2022.

5. By MAC of 12 October 2023, issued after an assessment by Microsoft Teams on 11 October 2023, the Medical Assessor, Professor Nicholas Glozier, assessed the plaintiff as having a WPI of 6%. This is the first decision that the plaintiff asks this Court to quash. I will refer to it as the Medical Assessment. The plaintiff says that Professor Glozier made a number of factual errors in the Medical Assessment, that these were deliberate falsifications, and that Professor Glozier's decision was flawed as he was both actually biased and that there was an appearance of bias and conflict of interest by reason of what the plaintiff alleges are financial connections between Professor Glozier and icare, who acts for the Nominal Insurer.

6. Consistent with the Medical Assessment, a Certificate of Determination dated 15 November 2023 certifying that the plaintiff did not reach the threshold for lump sum compensation under s 65A(3) of the 1987 Act, signed by Glenn Capel, Division Head of the Workers Compensation Division, was issued under s 294 of the 1998 Act.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19592d7906e2cbc2eecb12db)

Disclaimer: Curated by HT Syndication.