Ambrose v Westpac Banking Corporation
[2022] NSWPICMP 436
•28 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ambrose v Westpac Banking Corporation [2022] NSWPICMP 436 |
| APPELLANT: | Kayleen Elizabeth Ambrose |
| RESPONDENT: | Westpac Banking Corporation |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 28 October 2022 |
CATCHWORDS: | wORKERS cOMPENSATION - Worker alleged numerous errors by the Medical Assessor (MA) in assessing a psychological injury; these included the failure to calculate pre-existing impairment in accordance with Psychological Impairment Rating Scale (PIRS) tables; failure to identify and elaborate on “research” on which he relied; failure to find that the worker’s pre-existing condition was “situational” rather than “chronic”; lack of certainty in his finding that the applicant suffered from a pre-existing psychological condition; Racing Club Ltd v Burton and Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; Held – that as the MA found that the worker’s condition was asymptomatic prior to her injury it was open to him to make a 1/10th deduction for a pre-existing condition pursuant to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed 1 April 2016) Chapter 11.10; there was ample evidence of a pre-existing condition in the notes of the worker’s general practitioner; it was unnecessary for the MA to identify or elaborate on research to which he referred as a basis for his opinion; a fair reading of the Medical Assessment Certificate left no doubt that but for the pre-existing condition the worker’s whole person impairment would have been less than assessed by the MA. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 July 2022, Kayleen Elizabeth Ambrose (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Graham Blom, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 July 2022.
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 grounds of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes 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 PIC Rules.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant is a long-term employee of Westpac Banking Corporation (the respondent) having commenced employment as a proof assistant on 3 February 1986. She progressed to the role of regional team assistant for Newcastle, Central Coast, and ACT, a role which involved providing support for bank managers in these regions including coordinating meetings and conferences, undertaking administrative functions, organising travel, recruiting and people management, operations and compliance.
The appellant says that in 2015 there was a restructure of the respondent’s operations which “combined regions”. This substantially increased her workload in that she became responsible for 25 bank branches whereas she was previously responsible for 13. She received no additional support. She says that her hours of work increased to 50 to 60 hours per week as a result of the restructure.
In September 2016, there was another restructure which greatly increased her workload. The increased workload was exacerbated by the fact that there was no staff member who could support her while she was on leave. The appellant says
“I was working from 4.30am to about 8 or 9pm. I wasn’t home for my family to cook dinner and (her manager) said that I needed to send examples to the State Operations Manager and copied Adam in. I didn’t even get replied. I probably only sent a couple of examples but I heard nothing back. I think I copied Dan in as well. I started to get frustrated.”
The appellant says that she developed symptoms of anxiety including an inability to sleep and feeling “physically sick” on Sundays before the commencement of the working week. By 28 November 2016, she:
“couldn’t get out of bed. I just hit a wall. I was feeling sick on the Sunday but when I went to get up for work on the Monday something just snapped and I just couldn’t go.”
The appellant came under the care of her general practitioner Dr O’Grady. She was referred to a psychologist, Anne Sharkey. Subsequently, she was referred to Dr Pavan Bhandari, a psychiatrist, who she has continued to see. She has been treated with anti-depressant medication and as an in-patient at Warner’s Bay Private Hospital where she was admitted for four months following a suicide attempt in mid-2021. During her hospitalisation, she was treated with transcranial magnetic stimulation and electroconvulsive therapy without significant improvement in her symptomatology.
While the appellant returned to work in 2017, she was unable to increase her hours of work beyond 20 hours per week. She found herself progressively unable to function. She has not worked since March 2019 and was medically discharged by the respondent in October 2019.
On 17 August 2020, the appellant saw Dr Bertucen, a psychiatrist at the request of her solicitor. He diagnosed severe chronic adjustment disorder with features of anxiety which had evolved into a chronic major depressive disorder with anxiety. He assessed the appellant as suffering 22% whole person impairment (WPI) in accordance with the psychiatric injury rating scale (PIRS) in the Guidelines.
Dr Vickery, a psychiatrist, saw the appellant on 29 March 2017 at the request of the respondent and provided a report. Following a further consultation with the appellant, he provided a report of 8 December 2020 in which he expressed the opinion that the appellant experienced a major depressive disorder with anxious distress. He thought the prognosis was guarded for full recovery. He attributed her condition to the nature of her employment with the respondent.
Following a further consultation with the appellant on 27 April 2022, Dr Vickery provided a report of 6 May 2022. In this report he noted that:
“There was a history of pre-existing depression, anxiety, social withdrawal, insomnia and alcohol abuse for which she was managed on a SSRI anti-depressant Sertraline from 20007 to 2012.”
Dr Vickery expressed the opinion that the appellant was an unreliable historian and that her psychiatric condition “is no longer related to any work injury”. The doctor assessed the appellant as suffering from 19% WPI. He made a deduction of 100% on the basis that the appellant would have experienced this impairment irrespective of her employment.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). As the differing opinions of Dr Bertucen and Dr Vickery as to the degree of WPI gave rise to a medical dispute, as that term is defined in s 319 of the 1998 Act, a delegate of the President referred the matter to an MA for assessment of the dispute.
Dr Graham Blom initially examined the appellant on 31 May 2021. By an amended Medical Assessment Certificate of 20 July 2021, he certified that the appellant had not reached maximum medical improvement and that he was unable to ascertain the extent of WPI.
Dr Blom examined the appellant again on 21 June 2022 and issued a MAC of 4 July 2022 by which he certified that the appellant had reached maximum medical improvement. He assessed WPI as 22%. However, he made a deduction of 10% pursuant to s 323 of the 1998 Act. It is from this assessment that the appellant brings this appeal.
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. As the only issue on appeal was whether a deduction should be made pursuant to s 323(2) for a pre-existing condition or abnormality, the panel concluded that it would not be assisted by a further medical examination.
There is no criticism of the manner in which Dr Blom carried out his examination or calculated current impairment. The panel had before it the histories provided to the MA and the qualified doctors, and the clinical notes of the appellant’s treating general practitioner. It took the view that these notes were a more reliable basis for assessing the appellant’s previous health than her evidence or medical histories. The panel also noted that neither party sought a re-examination of the appellant by a member of the panel.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
The MAC
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the appeal panel. Under the heading of incorrect criteria, the appellant raised several grounds of appeal.
First, she submitted that Chapter 11.10 of the Guidelines required the MA to measure the proportion of WPI that is due to the pre-existing condition by the same method as is prescribed for calculating the current level of impairment. The submission continued:
“Dr Blom did not measure the proportion of WPI that is ‘allegedly’ due to the pre-existing impairment. Had he done so, on his assessment of the evidence and his finding that she was not suffering from any pre-existing condition, he would have found 0% WPI to be deducted.”
Secondly, the appellant submits that Dr Blom’s vague reference to “the research” in respect of the relationship between the appellant’s pre-existing condition and her psychiatric injury constitutes error. He did not identify the research and his reasons for relying on the research were “entirely unsatisfactory”.
Thirdly, the appellant argued that it was “factually incorrect” to assert that the appellant’s symptoms of depression in the period 2007 to 2014 were chronic. The appellant refers to presentations in 2009 and 2010 following specific events in her life and states that these were “situationally caused”.
Fourthly, the appellant argued that Dr Blom did not give appropriate reasons as to why he found that her pre-existing psychological condition contributed to her assessed impairment. The appellant says that:
“A likelihood of something occurring (if accepted, which in this case it is not) is not a guarantee of that thing occurring. We also note, an allegedly higher probability of something occurring doesn’t necessarily impact the assessment of WPI.”
Dr Blom’s statement that it was “impossible to determine the exact impact of this”, left open the possibility that there was no impact whatsoever. In these circumstances it was necessary for Dr Blom to provide “a properly understandable explanation” as to why he chose the conclusion he did.
The submission continues:
“As a pre-condition of using s 323(2), it must be found that some part of the current impairment is due to any pre-existing condition or abnormality – not that it is likely.”
As Dr Blom cannot positively state that is so “he doesn’t get past s 323(1) and into applying s 323(2).”
Under the heading of demonstrable error, the appellant states that the application of incorrect criteria and the failure to give proper reasons gave rise to an obvious error. She contended:
“That error can be corrected by the re-assessment such that there is no deduction pursuant to s 323 and a finding that she is suffering from 22% WPI as a consequence of the work-related injury.”
By its submissions the respondent submitted that there was no basis for the appellant’s argument that the MA had recorded an incorrect history. Rather, he had recorded a detailed history of her treatment for anxiety between 2007 and 2014. Similarly, the MA had an accurate history of the appellant’s “long-term treatment with moderate dose anti-depressants”.
The respondent submitted that on a consideration of the entirety of both MACs, the MA had provided adequate reasons for making a deduction pursuant to s 323. It continues:
“It is clear from the above that Dr Blom considers that there would have been a degree of pre-existing impairment, not that there is likely to have been a degree of pre-existing impairment (as contended by the appellant).”
The respondent referred to the reasoning of the Court of Appeal in Pitsonis v Registrar of the Workers Compensation Commission [2007] NSWSC 50 and submitted that she was merely seeking to “cavil at matters of clinical judgement”. The respondent also referred to the reasoning of Malpass AJ in Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22 in respect of demonstrable error and to that of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot) in respect of the standard of reasons required of a medical assessor.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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 role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
By her evidentiary statement the appellant’s account of the work that led to her psychological injury commenced with the restructure which “combined regions” in around August or September 2015. At paragraph 20 of that statement she says:
“I have never been diagnosed with depression, anxiety or stress before my current issues. I have never had any counselling for any mental health issues prior to my current issues.”
The appellant’s claim for permanent impairment compensation was based upon the report of Dr Bertucen of 3 August 2020 which was served on the respondent’s solicitor under a letter of claim dated 30 September 2020. The history recorded by Dr Bertucen in relation to the onset of the appellant’s condition differed slightly from her statement. The doctor recorded that “between 2013 approximately and 2016” there were a series of restructures in Westpac (which led to her having to perform some 78 hours per week to cope by mid-2016.
In respect of past psychiatric history, Dr Bertucen recorded:
“Ms Ambrose denied any history of mood/anxiety disorders or psychiatric conditions prior to the period under review.”
At his initial consultation, Dr Vickery also record that the appellant had no psychiatric history before the restructuring which led to a substantial increase in her workload
At the time of her initial examination by Dr Blom, the appellant had no recollection of treatment by her general practitioner for depression prior to the onset of her current symptoms. Dr Blom recorded that as the appellant’s memory may have been diminished by her psychological condition and recent treatment, he could not assess whether a pre-existing condition contributed to her present level of whole person impairment.
In his MAC of 4 July 2022, the MA addressed the issue of a pre-existing condition as follows:
“Yes. Ms Ambrose suffered chronic anxiety and at least some depressive symptoms between 2007 and 2014, requiring long-term treatment with moderate dose anti-depressants. It was likely that this was in response to stresses in her personal life possible exaggerated by some work stress. This pre-existing condition would have made her more vulnerable to anxiety and depressive disorder and to more severe symptomatology following her injury. This would have also impacted on the level of her impairment. It is impossible to determine how much of an impact this has had, however, the statutory deduction appears to be reasonable.”
The MA returned to this issue at paragraph 11 of the MAC:
“Ms Ambrose required treatment with an antidepressant agent for about seven years for ongoing stress and anxiety symptoms. Her symptoms had completely resolved by 2014 and at the time of her injury she was not suffering from the pre-existing condition. However, the research does show that the existence of a previous episode of depression/anxiety, especially when chronic as in Ms Ambrose’ case, is likely to lead to a higher probability of later depression and anxiety as well as more severe depression and anxiety. In this case it is impossible to determine the exact impact of this so the statutory deduction of 10% is appropriate and I believe is fair and reasonable.”
The appellant’s first criticism of the MAC is that the MA failed to calculate pre-existing impairment using the same method for calculating the current level of impairment in accordance with Ch 11.10 of the Guidelines. Chapter 11.10 is as follows
“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.”
The evidence of the appellant recorded above and the medical evidence on which this claim was based clearly establishes that the injury on which she relied, and the medical dispute referred for assessment, was her psychological decompensation caused by the respondent’s restructuring of her position, probably from 2015. This is not in dispute. The MA found that the appellant’s pre-existing condition was asymptomatic at the time of her injury. Again this does not appear to be in dispute.
In Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 (Marks) Simpson AJ, held that to the extent that Chapter 11.10 excluded the application of s 323 (1) of the 1998 Act to a asymptomatic pre-existing condition it was ultra vires. Consistently with this reasoning, it was clearly open to the MA to make a deduction of 1/10th pursuant to the last sentence of Chapter 11.10 and s 323 (2) of the 1987 Act, if he concluded that the pre-existing impairment was difficult to assess. Plainly, the MA reached that conclusion. A pre-existing impairment will often be difficult to assess and calculate in accordance with PIRS. Moreso where the history given by the worker is unreliable. In those circumstances, the MA did not err by failing to assess pre-existing impairment in accordance with the PIRS.
The second ground raised by the appellant is that the MA did not identify or give proper reasons for relying on research with respect to the causal relationship between the pre-existing condition and psychiatric injury. In the opinion of the panel, this ground is not made out. In accordance with Chapter 1. 6b of the Guidelines assessors are required to exercise their clinical judgement when making deductions for pre-existing impairment. There was no obligation to identify precisely the medical texts or articles on which the MA based his conclusions. Rather, as Wingfoot makes clear the function of the assessor is to form and give his own opinion on the dispute referred for assessment “by applying its own medical experience and its own medical expertise”. Medical experience and expertise is based on the accumulated study, research, and clinical experience of the MA throughout his professional life.
In addressing a similar issue in Racing Club Ltd v Burton [2021] NSWCA 304 (10 December 2021), Basten J, who delivered the decision of the Court of Appeal said this at [43]:
“A definition of a medical term is inherently something within the medical experience or expertise of the medical members of the Appeal Panel. They do not have to express those terms in language which is within the experience or expertise of the parties. Nor, if they wished to identify a distinction between evoked and spontaneous sensations, did they need to identify the authority which permitted either or both to be taken into account in assessing a particular condition. These were matters to be determined by the Panel in the exercise of their medical expertise. However, if in giving reasons both the distinction and the medical authority were identified, they did not become matters which fell within any obligation of advance disclosure to the parties.”
As canvassed above, Wingfoot instructs that in reaching conclusions it is only necessary for the in MA to demonstrate the actual part of his reasoning. The path by which the MA in this case reached a conclusion that there should be a deduction for a pre-existing condition is quite clear. Indeed, the MA has addressed it at length in various parts of his MAC.
Thirdly, the appellant alleged that it was factually incorrect to conclude that the symptoms of depression between 2007 and 2014 were chronic. Rather, they were “situational”. There is no medical opinion evidence to support this assertion. Both the MA and Dr Vickery concluded on a review of the clinical notes of the appellant’s general practitioner that the condition was chronic. Dr Bertucen concluded there was no evidence of the pre-existing condition. But he had an incorrect history and did not have access to the notes of the Appletree Family Practice.
Quite apart from the numerous references to anxiety and depression in the notes of this practice between 2007 and 2014, it is evident that the appellant was treated with Zoloft, an antidepressant, from 3 October 2007 until 6 November 2012. During much of this time, it is evident that she was continuously prescribed this medication. This regimen is entirely consistent with the conclusion of the MA that the appellant’s pre-existing psychological condition was chronic
As there is unequivocal evidence to support the determination of the MA on the issue of a pre-existing condition, the appellant has failed to prove the application of incorrect criteria or demonstrable error.
Fourthly, the appellant argued that MA’s opinion that her pre-existing depression was “likely” to contribute to a higher probability of later depression did not “guarantee” that it did in this case. Further, she argued that the allegedly higher probability of something occurring doesn’t necessarily “impact the assessment of WPI”.
The panel observes that while the onus of proof of a pre-existing condition contributing to WPI rests upon the respondent employer, it only requires proof on the balance of probabilities. It was not necessary for the MA to find that the causal nexus between the pre-existing condition and the impairment amounted to the certainty suggested by the word “guarantee”. A fair reading of the MA’s argument in respect of the deduction for pre-existing condition leaves little doubt that he was persuaded that the pre-existing condition contributed to her current level of impairment. To reiterate, the MA said:
“This pre-existing condition would have made her more vulnerable to anxiety and depressive disorder and to more severe symptomatology following her injury. This would have also impacted the level of her impairment.” (Our italics)
In the opinion of the panel that is a clear statement that the pre-existing condition more probably than not contributed to the level of impairment. It was only the extent of that contribution that the MA found impossible to determine. Thus, he dealt with the quantum of the pre-existing impairment by what he referred to as the statutory deduction. The reasons provided by the MA for doing so readily comply with the instruction in Wingfoot by clearly demonstrating the actual path of his reasons.
The specialist psychiatrists on the panel have no doubt that the only interpretation of the evidence of the Appletree Medical Centre was of a chronic pre-existing condition and that it was highly likely that it contributed to the development of her psychological injury and to her current level of WPI. Much of the criticism of the MA in this case does not rise above sophistry or an attempt to review the merits of the decision.
In Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] (1996) 185 CLR 259 (27 May 1996), the oft quoted judgment of plurality at [31] contains the following:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.”
Being satisfied that MA acted on proper principles, the Appeal Panel has determined that the MAC issued on 4 July 2022 should be confirmed.
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