Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta

[2024] NSWPICMP 65

DETERMINATION OF APPEAL PANEL
CITATION:	Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta [2024] NSWPICMP 65
APPELLANT:	Arthur Tzaneros Discretionary Trust & Luke Webber Trust
RESPONDENT:	Fred Saofaileta
APPEAL PANEL
MEMBER:	R J Perrignon
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	12 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (WPI); assessment of WPI as a result of primary psychological injury, following consent determination that there was no secondary psychological injury; WPI assessed by Appeal Panel without the need for further examination; Held – Medical Assessment Certificate revoked and replaced.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Shen dated 22 December 2022.

2. The Medical Assessor found that there was a primary psychological injury, which he diagnosed as persistent depressive disorder and post-traumatic stress disorder, and a secondary psychological injury which he diagnosed as alcohol use disorder.

3. He assessed a 24% whole person impairment as a result of psychological injury on
   11 March 2019, when the respondent worker was knocked to the ground by a forklift truck at work and suffered both physical and psychological injuries. From the 24% whole person impairment, the Medical Assessor deducted one tenth for a pre-existing psychological condition, to arrive at 22% whole person impairment.

4. The appellant employer submitted essentially that the Medical Assessor erred in:

   (a)    failing to identify and exclude from his assessment that part of the permanent impairment which resulted from the secondary psychological injury (diagnosed by the Medical Assessor as alcohol use disorder), and

   (b)    failing to follow the method for determining the amount of deduction for a pre-existing condition set out at [11.10] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).

5. No error was alleged in respect of:

   (a)    the finding that three psychological conditions had resulted from injury on
   11 March 2019 – namely, persistent depressive disorder, post-traumatic stress disorder, and alcohol use disorder; or

   (b)    the assessment of 24% whole person impairment having regard to the behavioural effects of psychological injury.

6. On 18 May 2023, this Appeal Panel set aside the Medical Assessment Certificate, because the Panel was not satisfied that the Medical Assessor had excluded from his assessment the impairment resulting from secondary psychological injury, which had been diagnosed by him as alcohol use disorder. It was unnecessary to consider the further ground of appeal.

7. The Panel remitted the matter to the Personal Injury Commission (Commission) to determine whether there was secondary psychological injury, as it lacked power to assess the worker in the absence of such finding.

8. By a Certificate of Determination dated 20 November 2023, the Commission determined as follows by consent of the parties:

   “1. The applicant sustained a primary psychological injury arising out of or in the course of his employment on 11 March 2019.

   2. The applicant did not sustain a secondary psychological condition arising out of or in the course of his employment on 11 March 2019.”

9. It remains for the Panel to assess whole person impairment, on the basis that the only psychological injury was a primary psychological injury.

10. The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the Guidelines.

Submissions

1. The parties made written submissions on appeal. They were summarised in the Panel’s original decision and have been taken into account.

2. After the Commission’s determination of 20 November 2023, the matter was remitted to the Panel to complete its assessment. The Panel directed the appellant employer to make submissions on whether it should:

   (a)    accept the Medical Assessor’s assessment of 24% whole person impairment as a result of primary psychological injury causing persistent depressive disorder, post-traumatic stress disorder and alcohol use disorder, and

   (b)    deduct one-tenth for pre-existing conditions of major depressive disorder and alcohol use disorder, having regard to the notes of the worker’s general practitioner from 2014 to 2018.

3. The appellant employer submitted that the Panel should do both. The respondent worker agreed.

Assessment

1. By consent, the Commission has found that there was no secondary psychological injury. There is no dispute that any of the three conditions diagnosed by the Medical Assessor - persistent depressive disorder, post-traumatic stress disorder and alcohol use disorder - results from psychological injury. No error is alleged in respect of the Medical Assessor’s assessment of 24% whole person impairment resulting from the combination of those conditions.

2. We are comfortably satisfied that the evidence justifies all three diagnoses, and that they result from primary psychological injury.

3. In accordance with the parties’ agreement, we accept the Medical Assessor’s assessment of 24% whole person impairment resulting from the combination of the three diagnosed conditions, and assess 24% whole person impairment as a result of primary psychological injury.

4. As indicated, the parties also agree that a deduction of one-tenth is appropriate.

5. When read together, the following consultation notes recorded by Dr Aslam Hameed or
   Dr Shamsuddin provide evidence that there was a pre-existing condition of alcohol use disorder.

   (a)    3 October 2012: “Alcoholic with haematemesis occasionally”;

   (b)    29 October 2013: “depressed and anxious. Has alcohol issues. Drinks 4/days ba [sic] week, exceeds safe limits. Caught drunk drive”;

   (c)    29 August 2014: “Heavy alcohol. Discussed safe limits since he has Hep B too”;

   (d)    3 February 2015: “Addicted to alcohol.… Heavy alcohol”;

   (e)    1 February 2017 (Dr Shamsuddin): “Smoking and alcohol discussed”;

   (f)    28 January 2018: “Alcohol counselling”;

   (g)    30 June 2018: “Smoker and Alcohol d[a]ily”, and

   (h)    27 November 2018: “Smoking and alcohol discussed.”

6. We are satisfied that the respondent had a severe and long-standing alcohol use disorder, likely pre-dating 2012, when he already had haematemesis secondary to alcohol abuse. We accept that the condition was exacerbated by the workplace injury, with alcohol intake increasing thereafter as recorded by the Medical Assessor. His condition and associated impairment would now be less severe had he not already had an alcohol use disorder.

7. Before a deduction can be made, it is necessary to find that the pre-existing condition contributes to permanent impairment. That depends on whether, but for the pre-existing condition, permanent impairment would be less than it is: Ryder v Sundance Bake House [2015] NSWSC 526.

8. In our view, in the absence of a pre-existing alcohol use disorder, it is unlikely that the extent of the alcohol use disorder would be as great as it now is, because psychological injury has made the effects of the pre-existing condition worse. The test in Ryder is satisfied. We find that the pre-existing alcohol use disorder now contributes to permanent impairment.

9. The amount of the deduction is difficult to determine, because of the length of time that has elapsed between the onset of alcohol use disorder and the date of our assessment, and because the two other diagnosed psychiatric conditions which have resulted from injury also contribute to permanent impairment. In our view, the agreed deduction of one tenth is not at odds with the evidence.

10. We make a deduction of one tenth for pre-existing alcohol use disorder. Deducting one-tenth from 24% whole person impairment yields 21.6%, which is rounded up to 22%.

11. As the parties agree on the availability and amount of the deduction, it is strictly unnecessary to consider the respondent’s original submission that the Medical Assessor failed to determine the amount of the deduction in accordance with [11.10] of the Guidelines. For the assistance of the parties, we note that in Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616, Simpson J found at [29] that [11.10] is ‘inconsistent with s 323(1) and invalid’.

12. The Medical Assessment Certificate of Medical Assessor Shen is now replaced by the attached Medical Assessment Certificate.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W3207/22
Applicant:	Fred Saofaileta
Respondent:	Arthur Tzaneros Discretionary Trust & Luke Webber Trust

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 Medical Assessor Shen 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 disorder	11 March 2019	Chapter 11, page 54	Chapter 14, pages 361-365	24	1/10	22
Total 22% WPI (the Combined Table values of all sub-totals)

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	Fred Saofaileta	Claim reference number (if known)	W3207/22
DOB	omitted	Age at time of injury	49 years old
Date of Injury	11 March 2019	Occupation at time of injury	Forklift driver
Date of Assessment	19 December 2022	Marital Status before injury	De facto

Psychiatric diagnoses	1.Persistent Depressive Disorder		2. PSTD
3. Alcohol Use Disorder		4.
Psychiatric treatment	Psychology, risperidone 2mg
Is impairment permanent?	Yes
PIRS Category			Class		Reason for Decision
Self Care and personal hygiene			2		His appetite has been poor as well and he hardly eats and misses meals, and his weight has been increasing. His family and friends bring food over, and he never cooks now, though he previously cooked before He likely now is mild to moderately impaired, with a component of his reduced self-care due to his physical injury and limitations. Hence, factoring that in, he has mild impairment from a psychiatric perspective.
Social and recreational activities			3		He has two brothers and two sisters, and they visit him 2-3 days a week. He has some friends who visit him about once a week, and they sometimes take him out to the shopping centre, even though he doesn’t feel like it. He doesn’t attend Church and he doesn’t attend social events anymore, since the subject injury. He had previously enjoyed coaching rugby and playing touch rugby, playing tennis, attending social events. He now doesn’t enjoy much. During the day, he remains at home, and apart from attending his appointments, he just sleeps, though he watches TV, and remains online. Hence his social and recreational activities is in the moderately impaired range.
Travel			2		He catches a taxi or is dropped to his appointments and he is no longer driving due to his sleep apnoea, but before that he was driving to his appointments only. From a psychiatric perspective, his impairment is within the mild range.
Social functioning			4		He has been with his current partner for the past 9 years. Prior to the subject injury, the relationship with her was loving, and he denied any conflict or tension. Since the subject injury, the relationship has deteriorated, with frequent some periods of separation and the relationship is still on the rocks, as she perceived that he is a changed man since the subject injury. That is also the case with the two children who have recently moved to Brisbane. His partner sometimes lives with him. He has two brothers and two sisters, and they visit him 2-3 days a week. He has some friends who visit him about once a week, and they sometimes take him out to the shopping centre, even though he doesn’t feel like it. He doesn’t attend Church and he doesn’t attend social events anymore, since the subject injury. Hence, his impairment is in the severe range.
Concentration, persistence and pace			3		His concentration is poor now, and he feels he is easily forgetful over simple things. He previously enjoyed reading, and watching documentary, but he now gets distracted after reading a couple of lines. He was able to sustain his attention for the duration of the assessment, without any obvious difficulties. Hence his impairment is in the moderate range.
Employability			5		He is not fit to return to work.
Score										Median Class
2	2	3		3		4	5		= 3
Aggregate Score Impairment								Total			%
+2	+2	+3		+3		+4	5	19			24