Allambi Care Limited v Alderson
[2022] NSWPICMP 9
•17 January 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Allambi Care Limited v Alderson [2022] NSWPICMP 9 |
| APPELLANT: | Allambi Care Limited |
| RESPONDENT: | Robert Alderson |
| APPEAL PANEL: | John Wynyard Dr Nicholas Glozier Dr Douglas Andrews |
| DATE OF DECISION: | 17 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against section 323 deduction of 1/10th in a finding of 15% whole person impairment for psychiatric injury; chapter 11.10 methodology not used by Medical Assessor; applicant had significant pre-existing PTSD from work with Police Force; Held- re-examination required to apply Chapter 11.10; Marks v Secretary, Department of Communities and Justice applied; MAC revoked; deduction of 29% substituted. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 March 2021 Allambi Care Limited, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Bench, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 1 February 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). WPI is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 13 January 2021 an amended referral was made to the MA for assessment of WPI caused by a psychiatric/psychological disorder on a deemed date of 5 January 2017.
Mr Alderson was employed as a Residential Officer with the appellant employer on a permanent part-time basis. He had been subject to repeated assaults in the workplace from when he commenced in January 2016.
Prior to that Mr Alderson had been employed as a Constable by the NSW Police Force from June 1987 to his medical discharge in March 2010.
Whilst employed by the appellant employer, he was subjected to repeated assaults but in particular on the deemed date of injury when he was so badly assaulted by a particular client that he was knocked unconscious briefly and took two or three weeks off work. He was diagnosed with concussion and came back to work on restricted hours and duties.
In July 2017 he was advised that no further restricted duties were available and his employment was terminated.
He worked as a courtesy bus driver at the Belmont Hotel for six hours a week for a period of three or four months and then has not worked since.
He was referred by his general practitioner (GP) to a psychiatrist, Dr Murray, for a period of two years and then was managed by Dr Erin Simpson, psychiatrist.
As to his past history Mr Alderson ceased work for the Police Force in 2007 although he was not medically discharged until 2010. During his time with the Police Force he was exposed to many of the traumatic events that are experienced by first responders. He attended the Newcastle Workers Club following the Newcastle earthquake. He attended the Gretley Mine Disaster and the Central Coast train disaster in the 1980s. He witnessed numerous traumatic incidents such as fatal motor vehicle accidents, suicides, homicides and child abuse.
In 2007 he was diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder. He said he was receiving psychiatric or psychological treatment from Dr Roger Peters and Dr Doug Wade until by 2011 his post traumatic stress disorder PTSD symptoms had settled dramatically and he felt he was capable “of handling myself again”.
The MA took a history that following his discharge, he continued to have violent outbursts such as punching holes in walls or doors and was affected by alcohol at that time. His marriage broke up, he said in his statement, in 2015. He said he still had nightmares about the experiences in the Police particularly the suicide of a 10 year old boy who hung himself in Medowie.
Since his discharge in 2010 the MA noted that he had worked as a handyman for three years, a speed camera car operator for six months and working in maintenance and doing electrical work at a hotel for 12 months. His relationship with a new partner had also ceased eight months before the assessment with the MA.
The MA assessed 17% WPI from which he deducted 1/10th pursuant to s 323 of the 1998 Act, leaving a combined table value of 15%.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant employer did not seek to have the worker re-examined by a member of the Appeal Panel. However, as a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because a demonstrable error has occurred in the failure by the MA to apply the correct methodology in his calculation of the WPI caused by the worker’s pre-existing condition.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Doug Andrews of the Appeal Panel conducted an examination of the worker on 29 July 2021 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant employer relied on two principal grounds in its appeal. Firstly, it submitted that the MA had erred in the application of the provisions of s 323 of the 1998 Act. Secondly it challenged the assessment made by the MA regarding the different categories of the Psychiatric Impairment Rating Scale (PIRS).
The MAC
The MA gave a detailed and thorough explanation for his assessment.
His explanation regarding the application of s 323 was contained in part in the templated section of the MAC relating to that deduction, [11]. He noted that Mr Alderson suffered from the pre-existing condition of a Posttraumatic Stress Disorder, and a chronic Persistent Depressive Disorder. He said:[1]
“The previous injury has caused the aforementioned Posttraumatic Stress Disorder and Major Depressive Disorder that has caused him to have difficulties with re-experiencing phenomena, hypervigilance and avoidance. It has contributed to difficulties with irritability and interpersonal relationship dysfunction. It has contributed to his incapacity to work.”
[1] MAC page 15.
The MA then simply repeated the templated [11c]:
“The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one-tenth. (can only be used when not at odds with available evidence)”
The MA considered Mr Alderson’s injury with the Police Force in more detail in the body of his reasons. When discussing Mr Alderson’s present symptoms, the MA said:[2]
“The applicant noted, ‘I dream every night’. He noted he only ever dreams of the workplace injury at Allambi. When asked as to when he last had a dream about NSW Police Force, he stated,’’nothing at all in the last eighteen months’. (Such was not consistent with the report of Dr Bisht. Such will be addressed in the subsequent paragraphs)…”
[2] MAC page 3.
The MA also said, when discussing Mr Alderson’s present symptoms:
“…He remains highly hypervigilant. He will position himself so he is facing people in public. He checks the road occasionally outside his driveway. He will watch for people with Autism Spectrum Disorder. He avoids news, current affairs, RBT or Bondi Rescue. He avoids anything to do with NSW Police Force, various geographical locations, talking about the trauma and individuals with autism.”
The MA took a consistent history regarding the trauma Mr Alderson experienced whilst working with the police. He noted that Mr Alderson “reported having difficulties with regard to nightmares, awakening distressed with heart racing, shortness of breath and ‘similar to what I’ve got now.’”
The MA said:[3]
“[Mr Alderson] was specifically questioned with regard to his mental health after his medical discharge he stated, ‘honestly the moment that uniform came off me and I didn’t have to go back, everything numbed up and were not as drastic’. On the other hand, he acknowledged he continued to have ‘violent outbursts’ such as punching holes in walls or doors. He noted having ’hit the alcohol pretty hard’ in 2007. On the other hand, ’I was relatively okay up until 2017 … I had no issues with the police’. He was specifically questioned with regard to the report of Dr Bisht from January 2020 indicating he was having a lot of symptomatology directly related to the NSW Police Force at that stage. He stated ‘I still have the nightmares … things will come in and around … there was one in particular where I had a ten-year-old boy hang himself in Medowie … there was a little boy up the road (in his current neighbourhood) who is always by himself. Those thoughts come into my head’.”
[3] MAC page 4.
The MA made an extensive survey of the documentary evidence referred to him. Amongst that material that was a report from Dr Chris Walls dated 14 January 2020. The MA referred to a comment made by Dr Walls that Mr Alderson had been “a bit more tetchy” at the time of the anniversary of the Newcastle earthquake. The MA commented:[4]
“(Comment: Such again supports the current injury has aggravated his pre-existing PTSD.)”
[4] MAC page 13.
With regard to the report of Dr Walls, the MA said further:[5]
“[Mr Alderson’s] motivation for work was affected by Posttraumatic Stress Disorder. It was noted ‘in my opinion, no, Mr Alderson does not currently have a medical condition other than the HOD [hurt on duty with the Police Force] condition that would interfere with his ability to find and sustain work … Mr Alderson believes he has recovered sufficiently from the assault he suffered as a residential care officer and this is not a factor’. (Comment: When specifically questioned with regard to this statement, the applicant stated, ‘that assault affects me every day … that assault plays more on my mind than anything I did in policing’. In this context, I could not resolve this inconsistency.)”
[5] MAC page 14.
In his summary, the MA said:[6]
“It is noted the applicant has a past history of Posttraumatic Stress Disorder and Major Depressive Disorder (potentially more consistent with Persistent Depressive Disorder in the DSM-5 nosology) as a result of his previous employment with the NSW Police Force. Whereas, the applicant had at times stated he had been free of any symptoms or impairments provoked by the previous employment with the NSW Police Force, he in fact noted during the evaluation having continued to be triggered by various geographical locations around the Newcastle community that reminded him of the NSW Police Force. He noted there was a particular incident with the hanging of a ten-year-old boy at Medowie that he linked to his own suicidal ideation utilising hanging as it’s method. He further acknowledged having informed Dr Bisht that he would have occasional nightmares of the ten-year-old hanging himself or that it provoked concerns with regard to his ten-year-old neighbour. Similarly, he continues to avoid things that remind him of the trauma in the NSW Police Force such as television shows such as RBT, anything to do with the NSW Police Force and a number of geographical locations. In this context, It is the evaluator's opinion there is clear evidence the applicant’s pre-existing Posttraumatic Stress Disorder and Major Depressive Disorder has been exacerbated by the work injury. In this context, It is the evaluator's opinion the work injury has caused an aggravation of his pre-existing Posttraumatic Stress Disorder and Persistent Depressive Disorder.”
SUBMISSIONS
[6] MAC page 8.
The appellant employer
The appellant employer firstly submitted that the MA had not adequately considered the evidence concerning the effect of Mr Alderson’s prior employment with the NSW Police Force. We were referred to the assessment by Dr WD Wade, consultant physician in psychiatry of 21 October 2008, who certified that Mr Alderson had suffered a WPI of 37% (in fact, as will be seen from the re-examination by Dr Andrews of the Panel, Dr Wade made an error in his calculation which should have resulted in a 44% WPI on current tables). Several of the issues described by Dr Wade were similar to those addressed by the MA, who did not appropriately consider the “several significant inconsistencies” in Mr Alderson’s various accounts to various medical practitioners.
By way of particulars, the appellant employer submitted that the nature of the injury was clearly the aggravation of Mr Alderson’s pre-existing psychological condition. The assessment of the contribution by that pre-existing condition to the impairment caused by the subject injury of 10% was, it was submitted, inadequate bearing in mind the extent of that pre-existing condition.
The appellant employer referred us to the relevant provisions of s 323, and to various authorities. It stressed that a deduction would be required for the contribution of the pre-existing condition, even if it were asymptomatic.
In finding that the provisions of s 323(2) were applicable, it was alleged that the MA had fallen into error, as the available evidence was at odds with his conclusion.
The appellant employer referred to the MA’s own finding that the history taken as to Mr Alderson’s present symptoms, which denied that he had been dreaming about the subject injury, contradicted the history taken by Dr Bisht.
The MA should also, it was submitted, have considered the admission by Mr Alderson that the nightmares he was currently suffering were similar to those he experienced when he was first diagnosed with his psychiatric condition when working for the Police Force in 2007.
The appellant employer submitted that a further relevant matter was that Mr Alderson, when questioned by the MA about his remark to Dr Bisht in January 2020 that Mr Alderson was having a lot of symptomatology directly related to the NSW Police Force, referred to a little boy up the road in his current neighbourhood who caused “those thoughts to come into my head.”
It was further submitted that Mr Alderson’s admitted hypervigilance concerning geographical locations connected with the NSW Police Force was further evidence that was at odds with the statutory presumption of a 10% WPI deduction.
The appellant employer referred to a report by Dr Chris Walls, occupational physician, which was attached to an Application to Admit Late Documents lodged by the appellant employer dated 4 January 2020. This report had been addressed to Mercer Administration Services (Australia) Pty Ltd, which we assume was concerned with the administration of the NSW Police Force compensation system. We were referred to a number of statements within that report that was said to contradict the history given by Mr Alderson to the MA.
It was alleged that the anniversary of the Newcastle earthquake, in which Mr Alderson was involved as a police officer, caused Mr Alderson to become “a bit more tetchy.” Mr Alderson was also recorded by Dr Walls as representing that he had recovered sufficiently from the subject injury, and it was not a factor in his condition. When asked about these comments, the MA himself said that he could not resolve those inconsistencies.
As we understood the submission of the appellant employer, the MA fell into error by describing such inconsistencies as “minor” and accepting Mr Alderson as he represented himself during the face to face consultation. The evidence showed that Mr Alderson emphasised his symptoms according to which employer he was seeking compensation from.
We were then referred again to the 2008 report of Dr WD Wade, whose prognosis, it was submitted, had proven to be accurate. Dr Wade’s opinion that Mr Alderson, after a period of therapy, would have a very restricted possibility of work (which would probably only be self-employment avoiding the general public) was mirrored in the report of the MA, as was Mr Alderson’s limited social and recreational life. The MA erred, it was submitted, in failing to give any more than a “cursory and insufficient” reference to Dr Wade’s report, confining his comments only to diagnosis and assessment. Particularly, it was argued, the similarity in the PIRS assessment called for comment.
The appellant employer conceded that the PIRS assessment by the MA indicated that there had been some improvement since 2008, nonetheless in the face of that evidence, it could not be said that Mr Alderson’s pre-existing condition had remitted. The balance of the evidence demonstrated that a significant part of Mr Alderson’s current condition was related to his pre-existing psychiatric condition caused by the NSW Police Force.
Accordingly, it was alleged that the MA had made an error in relying on the provisions of s 323(2). There was no absence of medical evidence that made the assessment either difficult or costly to determine, and the evidence before the MA was at odds with his determination in that regard. An objective assessment would show that Mr Alderson presented with similar symptoms as those from which he suffered with the NSW Police Force, and his symptoms had not been shown to have worsened as a result of the subject injury.
The appellant employer also submitted that the MA had applied incorrect criteria, as he had failed to refer to, or apply the provisions of Chapter 11.10 of the Guides. The MA was required thereby to use the same methodology to assess preinjury functioning in each category and subtract it from the WPI assessed as a result of the subject injury. This required the construction of a pre-injury PIRS assessment, and this had not been done.
The PIRS assessment
The appellant employer submitted that the MA had fallen into error with regard to three of the six categories required by the Guides to be assessed. The three categories alleged were:
· Social and recreational activities,
· Social functioning, and
· Employability.
The appellant employer referred to those parts of the evidence that suggested error on behalf of the MA, but did not submit that the MA was unaware of the factual matters referred to, nor that the assessments were glaringly improbable. Further, it was not suggested that the MA had clearly misunderstood the evidence to which he referred, nor did the appellant employer assert that the MA had used an unsupportable reasoning process.
We were referred to reports of Dr Graham Vickery, psychiatrist, the appellant employer’s medico-legal expert, Dr Walls, Dr Bisht, and to matters of history obtained by the MA himself in order to emphasise that the MA should have made a less generous assessment in each category.
As we have found the MA to have made a demonstrable error, and a re-examination has consequently taken place, the PIRS assessment has also been the subject of the re-examination report by Dr Andrews of the Panel.
Submissions on behalf of Mr Alderson
Mr Alderson’s submissions were prepared by Mr Eamonn O’Neill of counsel. He conceded that the injury sustained by Mr Alderson had indeed been the aggravation of the pre-existing Post-traumatic Stress Disorder and Persistent Depressive Disorder. He did not however concede that the assessment of the statutory 10% deduction pursuant to s323 (2) contained any error.
We were referred to Vannini v WorldWide Demolitions Pty Ltd[7] for the well-known principle that a demonstrable error must be shown to be more than simply a difference of opinion. The matters relied upon by the appellant employer did not amount to such an error, Mr O’Neill submitted.
[7] [2018] NSWCA 324 at [74-92] (Vannini).
We were referred to Mason v Demasi[8] as authority for the proposition that an entry in the clinical notes of health professionals should be approached with caution. As we understood Mr O’Neil’s submission, this proposition was not applicable in the circumstances of an assessment by an MA, who had ample opportunity to question an applicant, and who had before him/her all the relevant evidence. Indeed, Mr O’Neill argued, the MA in the present case took full opportunity to draw inconsistencies to Mr Alderson’s attention to the extent that the MA reported those exchanges within the body of his report. Moreover, Mr O’Neill said, the MA undertook an extensive review of the relevant medical evidence. Accordingly no demonstrable error had been shown.
[8] [2009] NSWCA 227.
Mr O’Neill referred to the inconsistencies relied on by the appellant employer, submitting that the MA’s treatment of them showed that he was “acutely aware” that there were such discrepancies within the various medical reports. The MA reconciled such discrepancies by discussing them with Mr Alderson.
The emphasis given to the report of Dr Walls, an occupational physician, by the appellant employer needed to be regarded in the light of his specialty, which was not concerned with Mr Alderson’s psychiatric condition. Accordingly, it could not be said that there was any inconsistency in the comment relied on by the appellant employer, that Mr Alderson represented to Dr Walls that he had recovered from the subject incident. That comment, Mr O’Neill submitted, was in the context of a physical traumatic brain injury.
Mr O’Neill contended that the submissions by the appellant employer amounted to an attack on Mr Alderson’s credit, for which there was no evidentiary basis. Mr O’Neill submitted that if such an attack was to be made, the allegation should have specifically and formally been made by the appellant employer, and no such allegation had been made. The attack on Mr Alderson’s credit was without foundation, and, Mr O’Neill submitted, breached the rules of procedural fairness.
With regard to the appellant employer’s submission that the s 323 deduction of 10% was inadequate, Mr O’Neill referred to a number of authorities, including Vannini to again emphasise that in order for error to be established there has to be shown something more than a difference of opinion on a subject about which reasonable minds might differ. The submissions of the appellant employer that there had been a demonstrable error made by the MA in only assessing a deduction of 1/10th was no more than such a difference of opinion.
Mr O’Neill submitted that the MA had given adequate reasons for making the 10% deduction pursuant to s 323. He referred to the survey by the MA of the other medical opinions before him and submitted that it “must be seen as underpinning the conclusion reached regarding the operation of s 323(2)…”
We were referred to the well-known authority of Vitaz v Westform (NSW) Pty Ltd[9], (also relied on by the appellant employer) that an MA was entitled to reach conclusions no doubt partly on an intuitive basis, and that no reasons were necessary where an alternative conclusion was not presented by the evidence and was not necessarily otherwise available. Mr O’Neill submitted that the evidence showed there was no alternative conclusion necessarily available and that therefore the allegation that the MA had failed to give adequate reasons could not succeed.
[9] [2011] NSWCA 254 (Vitaz).
To the submission by the appellant employer that the MA had fallen into error by failing to apply the provisions of Chapter 10.11 of the Guides, Mr O’Neill submitted, as we understood him, that there was no obligation for such compliance by virtue of the final sentence, which stated, “if the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The PIRS assessment
Mr O’Neill submitted that the submissions of the appellant employer did no more than indicate that reasonable minds might have applied a different value to the impugned categories, and that according to the authorities we will shortly refer to, no error had been established.
DISCUSSION
PIRS
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[10] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[10] Guides 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[11].
[11] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[12] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[13]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[12] [2017] NSWSC 887 (Ferguson).
[13] [2015] NSWSC 633 (Jenkins).
In Glenn William Parker v Select Civil Pty Ltd,[14] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…”
[14] [2018] NSWSC 140 (Parker).
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Chapter 11.10 of the Guides provide:
“Pre-existing impairment
11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
There is a tension between the two provisions, which was examined by Simpson AJ in Marks v Secretary, Department of Communities and Justice (No 2) (Marks):[15] At [24] she said (with the authorities omitted):
“The proposition that a guideline inconsistent with statute could take precedence is contrary to authority …”
[15] [2021] NSWSC 616.
Her Honour said at [28]:
“The submission was maintained that s 322(1) ‘gives precedence’ to the Guidelines. There is nothing in either s 376 or s 323(4) that authorises the issue of guidelines that are inconsistent with any provision of the WIM Act. It is implicit, even if not expressly stated, in any conferral of power to make regulations, guidelines, or any other kind of delegated legislation (if that is what guidelines are) that the exercise of the power be consistent with the provisions of the legislation under which the power is conferred. So much is explicit in s 323(4) … Subsection (4) authorises the State Insurance Regulatory Authority to make provision ‘for or with respect to the determination of the deduction required by this section’ (emphasis added). That leads inexorably back to subs (1), construed in accordance with established authority.”
Her Honour then concluded by saying at [29]:
“I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid.”
Although we were referred to authority such as Vitaz as to the power of an MA to make deductions pursuant to s 323 where the pre-existing condition had been asymptomatic, it was not argued that Mr Alderson fell into that category. The finding by the MA that Mr Alderson suffered from a pre-existing Post-traumatic Stress Disorder and Persistent Depressive Disorder as a result of his experiences with the Police Force was an accurate reflection of the evidence, and we concur with the diagnosis by the MA that the subject injury had exacerbated Mr Alderson’s pre-existing condition, the effects of which Mr Alderson continued to experience. The MA considered with some care the relevant facts, and gave a thorough and well-reasoned explanation for coming to that conclusion.
However, the methodology he employed to calculate the contribution of the impairment caused by the pre-existing condition to the impairment assessed as a result of the subject injury was incorrect. A perusal of Chapter 10.11 of the Guides in the context of her Honour’s decision in Marks makes it clear that, unless the relevant pre-existing condition had been asymptomatic, the guideline must be applied. Although Mr O’Neill submitted that its last sentence could be severed, he was unable to refer to any authority in support for that proposition. The direction in the guideline that a 1/10th deduction was to be made has to be read in the context of the rest of the provision: that is to say, if, after applying the methodology set out in Chapter 10.11, the percentage of the pre-existing impairment could not be assessed, then a 1/10th deduction should be made.
Accordingly, the MA has applied incorrect criteria, and in doing so made a demonstrable error. In order to properly apply the correct criteria it was necessary to arrange a re-examination with Mr Alderson, which was conducted by Dr Andrews on 29 July 2021.
As to the rating awarded by the MA pursuant to PIRS, as we indicated in discussing the appellant employer’s submissions, it is necessary to demonstrate that the evaluation in each impugned category was more than a mere disagreement about the appropriate level. The authorities referred to above make it plain that the assessor must be shown to have made an assessment that was glaringly improbable, or that the assessment was made in ignorance of significant factual matters, or that there had been a clear misunderstanding, or an unsupportable reasoning process employed. In his re-examination Dr Andrews revisited all the PIRS assessments, but as will be seen, confirmed the findings of the MA.
Dr Andrews’ report follows:
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
| Matter Number: | M1-3215/20 |
| Appellant: | Robert Alderson |
| Respondent: | Allambi Care Limited |
| Date of Determination: | 4 August 2021 |
| Examination Conducted By: | Dr Douglas Andrews |
| Date of Examination: | 4 August 2021 |
1. The worker’s medical history, where it differs from previous records
The employer appealed the MAC of MA Dr Christopher Bench (1 February 2021) on the grounds of errors in these categories:
· Social and recreational activities
· Social functioning
· Employability
They also argued that the one-tenth deduction for a pre-existing condition was at odds with the available evidence.
The MA had determined a 17% WPI and deducted one-tenth (1.7% WPI) for pre-existing PTSD, resulting in a 15% WPI after rounding.
Mr Alderson was an officer in the NSW Police Force (NSWPF) from mid-1987 until he was medically discharged in 2010. He has not worked as a police officer since going off sick in 2007. He is on a police pension, having been medically retired with PTSD and depression.
After leaving work, he attended psychiatrist Dr Doug Wade. On 21 October 2008, Dr Wade wrote to Harris Wheeler Lawyers and offered an impairment assessment determining the following class ratings:
· Self-care and personal hygiene – 2
· Social and recreational – 4
· Travel – 3
· Social Functioning – 3
· Concentration, persistence and pace – 4
· Employability – 5
Dr Wade states that this is a 37% WPI, a figure quoted by others. With a total score of 21, the median rounded to 4; the impairment was 44% WPI on the current table.
Despite this high figure, Mr Alderson was able to return to work shortly after leaving the NSWPF. He did various part-time jobs, including operating a coffee van, working casually as an electrician, and doing maintenance work. In 2014 he worked full-time for six months operating a speed camera. He didn’t cope with the aggression toward him by some members of the public and quit.
Pre-existing condition:
In the assessment today, he related that he ‘recovered a fair bit’ but had ongoing symptoms. He said, ‘I was depressed… my mood was up and down.’ He continued to be anxious. He was irritable and easily roused to anger. He was hypervigilant, stating, ‘I was always on the lookout, always worried that something would happen.’ He was avoidant of circumstances and places that reminded him of his police work because they triggered emotional distress. His symptoms worsened at anniversaries of significant events, such as the 1989 Newcastle earthquake, because he was heavily involved in the rescue operation.
Mr Alderson acknowledged that these things continued, and were present in the months before he joined Allambi as a house manager.
From this, it is clear that Mr Alderson did not fully recover from this PTSD and had ongoing symptoms when he started working at Allambi.
Pre-existing function:
Mr Alderson was married to Louise, an ambulance paramedic, with three sons, now aged 24, 23 and 21. They separated in October 2015, a few months before he started work with Allambi. He believes that she resented that she had a demanding career and he didn’t and felt that he ‘should be maintaining the family.’
They became increasingly estranged, losing intimacy in their relationship. Eventually, Mr Alderson moved out, first to a room in a pub, then to a rented shed at Belmont and finally to a home in Wallsend. He increased his alcohol intake for a time.
His sons sided with their mother, as did Mr Alderson’s parents. Their mutual friends were closer to Louise, so he lost his friendships as well.
His relationship failure can be attributed to his PTSD and possible depression.
He was not participating in social and recreational activities. For example, he no longer went fishing or camping. He had imagined that he might travel, citing a desire to go to Bali, but didn’t want to do so on his own.
He travelled in the local area and occasionally further afield. He was comfortable doing so but was prone to road rages; ‘swearing, yelling, screaming about other drivers’ behaviours.’
He took a job part-time doing maintenance and electrical work before taking his full-time job at Allambi.
Pre-existing impairment:
PIRS Category Class Reason for Decision Self-Care and personal hygiene 1 Mr Alderson was living independently and was able to improve his accommodation progressively over a matter of weeks or months. He was looking after himself adequately. He had temporarily increased his alcohol intake but not so much that it put him at risk. Social and recreational activities 3 He was not engaging in any social or recreational activities. He stopped previously enjoyed pastimes such as fishing and camping. Travel 1 He travelled freely in the local area and could go further afield as needed. Social functioning 3 His relationship with Louise failed in acrimonious circumstances. He became estranged from his children, friends and his parents. Concentration, persistence and pace 1 There is no evidence of impairment in this domain. Employability 2 He could work full time in a field different to that of policing. Working as a speed camera attendant proved to be too similar to a police role, and he didn’t cope well. Score Median Class 1 1 1 2 3 3 = 2 Aggregate Score Impairment 11 Total 5 %
Current symptoms:
Mr Alderson has a pervasive low mood with a reduced ability to experience positive emotions. He has reduced motivation to be active.
He is irritable, often angry and copes poorly with dealing with other people.
He is easily distracted and has problems with concentration, attention and short-term memory. He often loses things such as his phone and keys.
He is anxious and is hypervigilant away from home. He becomes very nervous if he sees an autistic person, as they remind him of the Allambi clients.
He is bothered by intrusive thoughts. These are mainly about the assaults at Allambi, less so about police incidents. He believes that he was more in control of situations as a police officer, so these things bother him less.
He denied thoughts of suicide but acknowledged that he has occasional daydreams about how a person might kill themselves.
He has restless sleep for five or six hours a night. This is partly due to using CPAP for obstructive sleep apnea.
Starting work at Allambi, his weight was about 78 Kg. It has increased to about 120 kg. At 170 cm, his BMI is 41.5. He attributes this weight gain to a poor quality diet.
Current function:
Mr Alderson lives in his own home with a housemate, Nikki, and her son.
He spends much of his day watching television, although he may mow the lawn or shop if needed. Sometimes he will do some home maintenance.
He has successfully built two decks, working for up two or three hours at a time. He maintains a model train set but usually can persist for less than half an hour before giving up.
He showers once every three to four days without prompting.
Nikki does most of the housework, but she occupies the greater part of the house.
He eats a poor quality diet. He stopped drinking alcohol.
He no longer goes to any outings. He used to have coffee or lunch with Nikki when they went shopping, but they have stopped doing so. His son, Liam, invited him to a Knights and Jets football match, but Mr Alderson declined because he felt unable to cope with a crowd.
He continues to travel locally and to have road rages. The furthest he has been from his home in the last six months has been to Rutherford, about 30 km away. Before that, he went to Umina, about 80 km, to look at a caravan.
He remains estranged from his parents and two of his three sons. He has a good but not close relationship with Nikki, his housemate.
He has done volunteer work with meals on wheels and briefly worked part-time driving a courtesy bus. He would like to volunteer with the SES or similar or find some part-time job. He has not worked since 2018.
Current impairment:
The MA had determined these class ratings:
· Self-care and personal hygiene – 2
· Social and recreational activities –3
· Travel – 1
· Social functioning – 3
· Concentration, persistence and pace – 2
· Employability – 5
The PIRS table is based on the assessment today.
PIRS Category Class Reason for Decision Self-Care and personal hygiene 2 Mr Alderson lives independently with a housemate and her son. He showers about twice a week and eats a poor quality diet, gaining weight as a consequence. He cleans his own living space and does some housework in common areas. He would be able to live alone successfully. My rating accords with that of the MA. Social and recreational activities 3 Mr Alderson has no social or recreational activities. He refused a recent invitation from his son to attend a football game. My rating accords with that of the MA. Travel 1 He travels locally and has taken trips of up to 80 km from his home, but infrequently. His travel function is consistent with normal variation in the general population. My rating accords with that of the MA. Social functioning 3 He has a polite living relationship with his housemate. His relationship with one son has improved. He remains estranged from his other sons and his parents. He formed a new relationship in 2017, but this failed in 2020 because of his behaviour and demeanour. My rating accords with that of the MA. Concentration, persistence and pace 2 He has subjective difficulties in this category. He has built two decks and maintains a model rail track. He is able to persist for up to a few hours when building the deck, less when doing his rail hobby. My rating accords with that of the MA. Employability 5 He has done no work since 2018. His symptoms remain severe. He is irritable, prone to anger and tolerates others poorly. He has reduced motivation. Although he hopes to find some volunteer or part-time work, it is unlikely that he would succeed. He is unfit for work. My assessment accords with that of the MA. Score
Median Class
1 2 2 3 3 5 = 3 Aggregate Score Impairment 16 Total 17 %
In determining the final WPI, I subtract the pre-existing WPI from the current WPI.
17% WPI – 5% WPI equals 12% WPI.
2. Additional history since the original Medical Assessment Certificate was performed
There is no additional history. Mr Alderson’s circumstances have not changed in the six months since his assessment with the MA.
3. Findings on clinical examination
I assessed Mr Alderson by video link with him at his solicitor’s office. The quality of the connection was excellent, and I felt able to do a comprehensive assessment.
He presented as an overweight man, casually attired and looking his stated age.
He was open and forthcoming during the interview.
He said that he was depressed and that the assessment process was stressful for him. His affect was restricted, consistent with his stated mood.
There was no evidence of disorder of thought-form or perception.
He gave a coherent account over the hour of the interview.
He is not actively suicidal.
His presentation is consistent with the diagnoses of the MA: chronic PTSD and persistent depressive disorder.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations were done.
Signed: Dr Douglas Andrews
Date: 4 August 2021”
The Panel adopts the report of Dr Andrews.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 February 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Bench and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric and psychological disorders | 5 January 2017- deemed | Chapter 11, pages 54-60 | N/A | 17% | 5% of 17% = 29% (rounded) | 12% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
John Wynyard
Member
Dr Nicholas Glozier
Medical Assessor
Dr Douglas Andrews
Medical Assessor
17 January 2022
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