Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta
[2023] NSWPICMP 214
•19 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Arthur Tzaneros Discretionary Trust & Luke Webber Trust v Saofaileta [2023] NSWPICMP 214 |
| APPELLANT: | Arthur Tzaneros Discretionary Trust & Luke Webber Trust |
| RESPONDENT: | Fred Saofaileta |
| Appeal Panel | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 19 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in failing to exclude permanent impairment resulting from secondary psychological injury; Held – Medical Assessment Certificate set aside; matter remitted for determination by the Personal Injury Commission as to whether there was primary and/or psychological injury, and that nature of each. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Shen dated 22 December 2022.
In response to a referral for assessment issued by the Personal Injury Commission (Commission) on 10 October 2022, the Medical Assessor 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.
In response to a further referral for assessment of a general medical dispute also issued by the Commission on 10 October 2022, the Medical Assessor responded at [12] to the two specific questions posed by finding that the applicant suffered:
(a) persistent depressive disorder and post-traumatic stress disorder by way of primary psychological injury, and
(b) alcohol use disorder by way of ‘secondary [psychological] injury’.
The appellant employer submits essentially that the Medical Assessor erred in failing to identify and exclude from his assessment that part of the permanent impairment which resulted from the secondary psychological injury (diagnosed as alcohol use disorder), and in 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).
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
The parties made written submissions which have been taken into account. They are not repeated in full, but are summarised briefly below.
The appellant submits as follows:
(a) the Medical Assessor failed to explain whether alcohol use disorder is primary or secondary, and failed to exclude such of the permanent impairment that results from the disorder;
(b) the Medical Assessor failed to give reasons for not finding that the alcohol use disorder was a pre-existing condition;
(c) the Medical Assessor failed to calculate the amount of the deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 in accordance with [11.10] of the Guidelines. He should have assessed whole person impairment prior to injury by reference to the psychiatric injury rating scales (PIRS) and after injury by reference to those scales, and compared the two: Mayo Private Hospital v Radnidge [2022] NSWPICMP 28, and
(d) the Medical Assessor should have made a deduction for the pre-existing alcohol use disorder, and then excluded all impairment resulting from it, but failed to do so.
The respondent worker submits as follows:
(a) there is no evidence to support a finding that alcohol use disorder was pre-existing. The history taken by the Medical Assessor at [4] under the heading, ‘Details of any previous or subsequent accidents, injuries or condition’ – that consumption prior to injury was 6-7 beers at a time, twice per week - supports the opposite conclusion. There is likewise no evidence that alcohol consumption as at the day of injury would have merited any more than class 1 on any of the PIRS scales;
(b) the Medical Assessor did not explain why he considered alcohol use disorder to be a secondary psychological injury. He could be asked to give an explanation on referral back, if necessary, and
(c) the appellant employer relied on the opinion of independent psychiatrist
Dr Anwar, who considered there was no pre-existing psychiatric illness. There is no evidence that the worker was suffering psychiatric symptoms as at the date of injury, until after he was injured. Performing a pre-injury assessment by reference to the PIRS scales would have been pointless and unnecessary. It would have resulted in a nil deduction.
Failure to exclude impairment resulting from secondary psychological injury
As indicated, there were two referrals for assessment issued by the Commission on
10 October 2022. One referred the worker for assessment of whole person impairment. The other posed two questions for consideration by the Medical Assessor as follows, by way of a general dispute:“A. Does the applicant have a primary psychological injury resulting from the incident of 11 March 2019 and if so what is the relevant diagnosis of such injury?
B. Does the applicant have a secondary psychological injury resulting from the incident of 11 March 2019 and if so what is the relevant diagnosis of such injury?”
That procedure was unusual, because ‘the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute s defined by s 319 of the 1998 Act’: State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [22]. For that reason, it is the Commission’s practice to make a determination, by agreement or otherwise, as to whether there was primary and/or secondary psychological injury, and as to what constitutes each, before the matter is referred for assessment of whole person impairment.
In this case, there was no objection to either of the two referrals. It seems the parties were content to agree to an assessment of whole person impairment on the basis of findings by the Medical Assessor as to (a) whether there was primary and/or secondary psychological injury and (b) if so, by what psychiatric conditions each such injury was constituted. The appellant takes no issue with that course on appeal, and submits that it is content with the diagnoses made by the Medical Assessor.
The Medical Assessor responded to the questions posed by finding at [12] that the worker suffered from persistent depressive disorder and post-traumatic stress disorder by way of primary psychological injury, and from alcohol use disorder by way of secondary psychological injury.
Whole person impairment compensation is not payable ‘in respect of permanent impairment that results from a secondary psychological injury’: s 65A(1), Workers Compensation Act 1987. ‘Secondary psychological injury’ is defined as ‘a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury’: s 65A(5).
It was the task of the Medical Assessor to assess only the permanent impairment resulting from the primary psychological injury, which is defined as ‘a psychological injury that is not a secondary psychological injury’: s 65A(5). As indicated, he had diagnosed persistent depressive disorder and post-traumatic stress disorder as together constituting the primary psychological injury.
He observed that the persistent depressive disorder was ‘an aggravation of [a] pre-existing condition’, though he did not offer a diagnosis of the pre-existing condition.
In his PIRS rating form, the Medical Assessor set out in detail the worker’s current impairments under each scale, and rated each scale accordingly. He did not distinguish between symptoms resulting from the primary psychiatric injury and the secondary psychiatric injury. There is no evidence that he turned his mind to distinguishing between the symptoms of each, or that he excluded from his assessment that part of the permanent impairment which resulted from alcohol use disorder.
In those circumstances, we are not satisfied that he excluded from his assessment the impairment resulting from secondary psychological injury. At the very least, his path of reasoning is not sufficiently patent to enable us to know whether he did so. The apparent failure to exclude impairment resulting from secondary psychological injury, and the absence of reasons sufficient to explain whether he did so, both demonstrate error, and necessitate the setting aside of the Medical Assessment Certificate.
It is unnecessary to consider the further grounds of appeal.
It is appropriate to set aside the Medical Assessment Certificate and to replace it, if necessary after further examination of the worker.
However, having regard to the principle in Kaur, before the Panel can issue a replacement Medical Assessment Certificate, it is necessary for the Commission to make findings, by consent or otherwise, as to whether there was primary and/or secondary psychological injury, and to determine what those injuries were. Once those determinations are made, the matter can be remitted to the Panel for the issue of a replacement Medical Assessment Certificate.
For those reasons, we revoke the Medical Assessment Certificate of Medical Assessor Shen, and remit the matter to the President for determination by the Commission as to the following:
(a) whether there was primary and/or secondary psychological injury, and
(b) if so, the nature of that injury or those injuries.
0
2
0