Attard v Secretary, Department of Communities and Justice

DETERMINATION OF APPEAL PANEL
CITATION:	Attard v Secretary, Department of Communities and Justice [2024] NSWPICMP 573
APPELLANT:	Semone Attard
RESPONDENT:	Secretary, Department of Communities and Justice
APPEAL PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	John Lam-Po-Tang
DATE OF DECISION:	15 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker suffered an accepted psychological injury; Medical Assessor (MA) assessed the impairment at 15% and made a one-tenth deduction pursuant to section 323(2) of 1998 Act; appellant contended that MA erred by failing to assess the pre-injury psychiatric impairment rating scale (PIRS) categories in accordance with clause 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Guidelines); effect of findings made by MA was that appellant was asymptomatic at time of injury; findings consistent with histories of various doctors; clause 11.10 of the Guidelines inconsistent with section 323 of 1998 Act for asymptomatic conditions; Marks v Secretary, Department of Communities and Justice (No 2) and Vitaz v Westform (NSW) Pty Ltd applied; Held – no error by MA in failing to apply clause 11.10 given factual findings; reasons of MA disclose prior psychological condition and reliance on section 323(2) of 1998 Act; deduction consistent with opinions of respective qualified doctors; demonstrable error not established; no contest between opinions; no failure to give adequate reasons; Medical Assessment Certificate confirmed.

BACKGROUND

Ms Attard (the appellant) sustained psychological injury deemed to have occurred on 21 May 2021 in the course of her employment with the Secretary, Department of Communities and Justice (the respondent).
On 26 May 2023 Ms Attard served a claim based on a report from Dr Rastogi seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).[1] The respondent admitted that the appellant suffered psychological injury but disputed the extent of impairment based on the opinion of Dr Anand.[2]
[1] MAP brief, p 61.
[2] MAP brief, p 69.
Ms Attard commenced proceedings in the Personal Injury Commission (the Commission) as a medical dispute had arisen following the exchange of relevant correspondence. As there were no liability issues, the assessment of whole person impairment (WPI) was referred by the President to a Medical Assessor. The medical dispute was assessed by Medical Assessor Baker who issued a Medical Assessment Certificate dated 13 February 2024 (MAC).
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[3] The fourth edition guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[4]
[3] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[4] Clause 1.1 of the fourth edition guidelines.

MEDICAL ASSESSMENT

The grounds of appeal were limited to the deduction made by the Medical Assessor pursuant to s 323 of the WorkInjury Management & Workers Compensation Act 1998 (the 1998 Act). To understand the grounds of appeal it is necessary to refer to aspects of the medical assessment certificate, most of which are not the subject of dispute as articulated in the grounds of appeal.
The Medical Assessor set out a clear history of a prior psychiatric condition which we note but do not repeat. It was noted by the Medical Assessor that the appellant was treated with antidepressants, formed a successful union with a partner and found employment as a child case protection worker prior to the accepted work injury. The Medical Assessor stated:[5]
“The union was enjoyable and successful prior to the date of this injury. She was in a relationship with her partner for about 8 years prior to the injury. She remained in the relationship with her partner prior to her transfer on secondment in Broken Hill, NSW.”
[5] MAP brief, p 25.
In respect of the prior psychological condition, the Medical Assessor concluded:[6]
“The clamant first suffered from a depressive disorder with suicidal intent when aged about 26 years of age. She was treated in intensive care and recovered from this episode of depressive illness. She was treated with Quetiapine 200mg and Mirtazapine 30mg for many years without recurrence of her depressive disorder until the onset of this injury.”
[6] MAP brief, p 30.
Later in the MAC the Medical Assessor stated:[7]
“The pre-existing psychiatric diagnosis and ongoing treatment prior to the onset of this primary psychological injury supports the finding of a pre-existing condition. The claimant had suffered from a complex posttraumatic stress disorder and severe depressive disorder with potentially fatal suicide attempt at 26 years of age.”
[7] MAP brief, p 34.
The Medical Assessor set out in detail the work events that caused the accepted work injury. Again, we do not describe, for privacy reasons, these events in these Reasons. In respect of the diagnosis of work-related psychiatric injury, the Medical Assessor concluded that the appellant suffered with symptoms from complex posttraumatic stress disorder and recurrent depressive disorder.
The Medical Assessor provided detailed reasons of his findings of mental state examination and the level of whole person impairment. The degree of whole person impairment was assessed at 15% with a one-tenth deduction made pursuant to s 323(2) of the 1998 Act. The overall impairment was assessed at 13% after the deduction. This is obviously a calculation error and should have been 14%.

APPLICATION TO APPEAL MEDICAL ASSESSMENT

On 20 February 2024 Ms Attard lodged an Application to Appeal Against the Decision of a Medical Assessor.
The appellant relied on the grounds of appeal under s 327(3) of the 1998 Act that the assessment was made on the basis of incorrect criteria, and the MAC contained a demonstrable error.
On 5 March 2024 the respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
The delegate of the President was satisfied that a ground of appeal has been made out and the appeal was referred to the Appeal Panel.
We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[8] Basten JA stated:[9]
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.”
[8] [2021] NSWCA 304 (Burton).
[9] At [35], Leeming and McCallum JJA agreeing.
However, in Coca Cola Europacific Partners API Pty Ltd v Pombinho[10] the Court of Appeal held that an error identified by the Appeal Panel under s 323 required a redetermination of all PIRS categories because:[11]
“[I]n order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (i.e., the 24% whole person impairment assessment made but he Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment … without considering the starting point itself.”
[10] [2024] NSWCA 191 (Pombinho)
[11] Pombinho at [86].

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment.

SUBMISSIONS

Appellant’s submissions

The appellant asserted that the Medical Assessor erred in failing to comply with cl 11.10, specifically that he failed to undertake a pre-injury PIRS assessment as the basis of the deduction under s 323 of the 1998 Act and otherwise asserted, without any particularisation, that the MAC contained “demonstrable errors”.[12] The grounds of appeal were described as:[13]
“(a) A misapplication of the Workcover Guides to assess permanent impairment.
(b) Failing to apply 11.10 of the Guidelines when approaching the Section 323 task; The Guidelines direct the assessment of pre-existing impairment at 11.10 and require the assessor to attempt to calculate the degree of pre-existing impairment by application of a “before and after” PIRS analysis. The MA has described the section 323 calculation as “difficult or costly to determine”, but has not explained why.”
[12] Appellant’s submission, paragraph 5.
[13] Appellant’s submission, paragraph 21.
The appellant noted the decision of the Supreme Court in Marks v Secretary, Department of Communities and Justice (No 2) (Marks).[14] The appellant then submitted:
“26. In the present circumstances, the MA has simply said that it was too costly or difficult to undertake a section 323 deduction precisely, and opted for the “statutory one-tenth” in the alternative.
27. It is not apparent why the MA could not have attempted a PIRS assessment pre-injury, which would of necessity pick up the anxiety and depression symptoms (and their effects on the PIRS)
28. While conceding that this process is difficult, it remains necessary under the Guidelines.
29. As the MA has not attempted the task, or failed to explain why he could not complete the task if it was attempted at all, the MA has erred.
30. The Panel must re-examine in order to properly apply the Guidelines.”
[14] [2021] NSWSC 615

Respondent’s submissions

The respondent noted that the grounds of appeal were based on the failure to apply cl 11.10 of the Guidelines and the suggestion that the reasons “were inadequate, although this is far from clear.”[15]
[15] Respondent’s submissions, para 3.
The respondent referred to the opinions of both Dr Rastogi and Dr Anand who both made a deduction of 2% and submitted that there was no medical dispute as the extent of the deduction for pre-existing impairment.
The respondent submitted that the issue of the extent of any pre-existing condition or abnormality was a distinct issue under s 319 and referred to the observations of Leeming JA in Skates v Hills Industries Ltd[16] that there was no medical dispute on that issue.
[16] [2021] NSWCA 142 (Skates) at [46].
The respondent submitted that the findings of the Medical Assessor and the medical evidence was that the appellant’s condition was asymptomatic and the cl 11.10 of the Guidelines did not apply. It otherwise referred to the opinions of Dr Anand, Dr Rastogi and the treating psychologist, Ms Galloway which was consistent with the opinion of the Medical Assessor.
The respondent otherwise submitted that the Medical Assessor provided his path of reasons in making the statutory deduction under s 323(2) of the 1998 Act having regard to reading the reasons as a whole.

REASONS

We reject the respondent’s submission that there was no medical dispute between the parties on the issue of the s 323 deduction. Whilst the deduction made by Dr Anand and Dr Rastogi was similar, the respondent did not limit the scope of the medical dispute in its denial. The medical dispute arose because the respondent placed the assessment, including the extent of any s 323 deduction, in issue. So much is clear from the letter issued by the respondent denying liability.
Whilst the opinions of the qualified doctors are relevant, they are not determinative of any medical dispute which remained within the province of the Medical Assessor to determine.[17] A Medical Assessor is required to form his or her own opinion and is not required to “decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions”.[18]
[17] Wingfoot Australia Partners Pty Lt v Kocak [2013] HCA 43 (Wingfoot) at [47].
[18] Wingfoot at [47]; State of New South Wales v Kaur [2016] NSWSC 346 at [25]-[26].
We agree with the respondent’s submission that the Medical Assessor found that the claimant’s psychological condition was asymptomatic at the time of injury. The relevant findings, set out at paragraphs 7 and 8 above, show that the appellant was functioning without restriction prior to injury. This is clear from the Medical Assessor’s conclusion that the appellant was treated for her prior depressive disorder for many years “without recurrence of her depressive disorder until the onset of this injury”. Other factors establishing that the appellant was asymptomatic include the fact that she was in full-time employment and in a relationship for eight years prior to injury.
The appellant’s submissions ignored those findings and simply asserted that had the Medical Assessor conducted a PIRS assessment pre-injury, certain anxiety and depressive symptoms would have been elucidated. However, in a careful decision, the Medical Assessor obtained a history that is consistent with his conclusion that there was no recurrence of the depressive disorder for some time prior to injury.
That conclusion is, as the respondent submitted, consistent with the histories recorded by various medical practitioners.
Dr Rastogi was qualified by the appellant and provided a report dated 24 May 2022.[19] The doctor obtained a history of the prior psychological condition and ongoing treatment and noted that the appellant “functioned well in full capacity during this period till her recent psychological breakdown in 2021”.[20] Dr Rastogi made a one-tenth deduction for the pre-existing condition. The subsequent report dated 5 May 2023 was consistent with the history contained in the earlier report.[21]
[19] MAP brief, p 75.
[20] MAP brief, p 79.
[21] MAP brief, p 88.
Nicole Galloway, psychologist, treated the appellant since 1 May 2023.[22] Following treatment extending over six months, Ms Galloway provided a report dated 6 November 2023. In that report the psychologist recorded a history that the appellant was “functioning well until March 2021 when the workplace injury occurred”.[23]
[22] MAP brief, p 610.
[23] MAP brief, p 612.
The respondent qualified Dr Anand who provided a report dated 14 August 2023.[24] Dr Anand recorded the following history pertaining to the appellant’s psychological condition prior to the work injury.[25]
“She stated that she had been well for a very long time up until March 2021. At the time, she was in a long-term relationship of almost 10 years. She stated that she was leading a very comfortable life and was quite social and outgoing.”
[24] MAP brief, p 649.
[25] MAP brief, p 651.
Dr Anand assessed permanent impairment at 13% and deducted 2% for the “pre-existing impairment”. There was no explanation as to how the doctor arrived at this figure save that he expressed agreement with Dr Rastogi as to this deduction.[26]
[26] MAP brief, p 658.
Accordingly, the medical evidence was consistent with the conclusion reached by the Medical Assessor. There was no error in the finding made by the Medical Assessor.
In Marks the Court stated:[27]
“Guideline 11.10, with its focus on “pre-injury level of functioning”, does not allow for deduction from the assessment of impairment in cases where an asymptomatic pre-existing condition contributes to the degree of permanent impairment assessed. To the extent that Guideline 11.10 excludes consideration of any contribution to the permanent impairment that might be made by an asymptomatic pre-existing condition, it is inconsistent with s 323(1).”
[27] Marks at [18].
The Court concluded that cl 11.10 of the Guidelines was inconsistent with s 323 in respect of a pre-existing but asymptomatic condition and was invalid.
The appellant did not contest the principles in Marks but submitted that the Medical Assessor failed to assess the pre-injury PIRS categories. Given the factual findings, there was no error in the course adopted by the Medical Assessor.
The submissions, largely if not exclusively, address the failure by the Medical Assessor to undertake a pre-injury PIRS assessment. For the reasons outlined, the Medical Assessor could not undertake a pre-injury PIRS assessment as that position was inconsistent with s 323.
There is no application of incorrect criteria in accordance with the discussion by the Court of Appeal in Campbelltown City Council v Vegan[28] described as “such matters as the tests set out in the Guidelines, where they are applicable”. That submission is rejected.
[28] [2006] NSWCA 284 at [95], McColl JA agreeing. These comments were approved in Marina Pitsonis v Registrar of the Workers Compensation Commission of New South Wales [2008] NSWCA 88 at [41].
The respondent assumed that the appellant had argued that the Medical Assessor erred in failing to provide adequate reasons for the extent of the deduction. The Panel does not agree that the appellant made a properly articulated argument to that effect.
The appellant’s relevant submission, set out at paragraph 19 herein, when properly considered, is that the Medical Assessor erred because he did not attempt a PIRS assessment of the pre-injury condition. We have addressed why that submission is incorrect.
The Medical Assessor has a statutory obligation to provide reasons (s 325 of the 1998 Act). Those reasons must be adequate and disclose the reasons sufficient to show the “actual path of reasoning”[29] by which the opinion was formed and in sufficient detail such that an Appeal Panel could determine whether, in the context of the medical appeal provisions under the 1998 Act, either the MAC contained a demonstrable error, or the assessment was made based on incorrect criteria.
[29] Wingfoot at [48].
The appellant’s submissions are unclear as to how the reasons are inadequate, save that it was submitted that clause 11.10 of the Guidelines was not applied.
The Medical Assessor set out the pre-existing condition in extensive detail and clearly applied the statutory deduction under s 323(2) of the 1998 Act. That deduction was consistent with the opinions of the respective qualified psychiatrists and is not at odds with the evidence.
In Vitaz v Westform (NSW) Pty Ltd[30] the Court of Appeal held that reasons were not required where there was “an absence of medical evidence establishing a contest”. Basten JA stated:[31]
“In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
[30] [2011] NSWCA 254 (Vitaz).
[31] Vitaz at [43], McColl JA (as her Honour then was) and Handley AJA agreeing.
We accept that a failure to provide proper reasons could constitute a demonstrable error. However, we do not accept that there was demonstrable error in the reasons provided by the Medical Assessor.
We have not addressed grounds of appeal not made including that there is a calculation error with respect to the one-tenth deduction. However, that error would not have affected the ultimate outcome that the appellant had not established at least a 15% permanent impairment necessary to overcome the relevant threshold.

CONCLUSION

For these reasons, we have determined that the MAC is confirmed.

[2024] NSWPICMP 573

15 August 2024