Ausgrid Management Pty Ltd v Fisk
[2023] NSWPICMP 237
•1 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ausgrid Management Pty Ltd v Fisk [2023] NSWPICMP 237 |
| APPELLANT: | Ausgrid Management Pty Ltd |
| RESPONDENT: | Neil Fisk |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 1 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor was required to make a deduction for secondary psychological injury; Appeal Panel found Medical Assessor was not; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 February 2023 the appellant, Ausgrid Management Pty Ltd, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 January 2023.
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, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 s328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent, Neil Fisk, commenced fulltime employment as a linesman with the appellant in 1999. He ceased working for the appellant on 27 January 2016. At that time he presented to the appellant a WorkCover Certificate that his then general practitioner (GP), Dr Pieter Erasmus, had completed in which Dr Erasmus certified that the respondent had no current work capacity for the period from 27 January 2016 to 10 February 2016 which Dr Erasmus stated was due to anxiety and depression the respondent had experienced from “prolonged threats of terminating employment”. Dr Erasmus completed several subsequent medical certificates with the final one being issued on 12 August 2016, in which he certified the respondent had no work capacity with the final certificate certifying that the respondent had no work capacity for the period for the period 12 August 2016 to 9 September 2016.
On 6 September 2016 the respondent’s subsequent GP, Dr Eric Lim, completed a WorkCover certificate certifying the respondent had no work capacity for the period 6 September 2016 to 8 September 2016 due to a work related injury described as “cervical spine strain; cervical spine radiculopathy; vertebrobasilar injury; chronic pain disorder; adjustment disorder and depression”. Dr Lim issued subsequently several certificates to the same effect.
The appellant denied liability to pay the respondent compensation.
On 25 June 2020 the respondent registered in the Workers Compensation Commission, being the predecessor to the Personal Injury Commission (the Commission), an Application to Resolve a Dispute ( the first ARD), in which he particularised he had suffered both an injury to his cervical spine arising out or in the course of his employment on 23 September 2015 (deemed) and had suffered a psychological injury arising out of or in the course of his employment on 27 January 2016 (deemed). He sought, by the first ARD, a determination of claims he had made for the appellant to pay him weekly compensation for an incapacity resulting from the injuries he particularised and compensation for the cost of medical treatment for his cervical spine injury.
The matter came before Senior Arbitrator Glenn Capel for a telephone conference on 7 August 2020 at which time the respondent withdrew the claims he had made in the first ARD relating to a primary psychological injury. The senior arbitrator directed the respondent file an Amended Application, which was done on 21 August 2020 and which was further amended at an arbitration hearing that the senior arbitrator held on 15 September 2020. By that Amended Application the respondent claimed from the appellant weekly payments of compensation and compensation for medical expenses, including the cost of proposed surgery, relating to an injury he claimed to have sustained to his cervical spine on 27 January 2016 (deemed) and a secondary psychological condition. The appellant continued to contest the respondent’s claims necessitating the senior arbitrator to determine them.
On 13 October 2020, the senior arbitrator made several findings and orders and, insofar as they are relevant to the appellant’s appeal against the MAC, his findings included the respondent had sustained an injury to his cervical spine arising out of or in the course of his employment on 27 January 2016 (deemed) and to which his employment was a main contributing factor and that the respondent had developed a secondary psychological condition as a result of that spinal injury. The senior arbitrator noted at [245] of the reasons he published for his findings and orders that, with respect to the respondent’s secondary psychological condition, the respondent needed only to establish that he had psychological symptoms from his neck injury in order that a finding could be made that he suffered a consequential psychological condition as a result of his neck injury. The senior arbitrator said at [246] that the evidence confirmed the respondent had experienced chronic neck pain for many years and that it was conceivable that that had psychological consequences for the respondent. The senior arbitrator said at [247] that applying the “commonsense causal chain” and in the absence of any persuasive evidence to the contrary he was satisfied on the balance of probability that the respondent had discharged the onus of establishing that he developed a consequential psychological condition as a result of the injury to his cervical spine. The senior arbitrator did not specify what that secondary psychological condition was.
On 11 May 2021 the respondent’s solicitors wrote to the appellant’s solicitors advising them that the respondent was claiming compensation of $46,000 from the appellant under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% whole person impairment (WPI) from a primary psychiatric condition. The appellant, by a notice issued in accordance with s 78 of the 1998 Act and dated 30 August 2021, declined the respondent’s claim.
By letter dated 22 November 2021 the respondent’s solicitors provided the appellant’s solicitors with further medical evidence to support the respondent’s claim, specifically reports from Dr Lim, Dr Goriparti (who is a psychiatrist whom the respondent consulted for treatment), and psychiatrist Dr Rastogi dated 30 September 2021 whom the respondent consulted at the request of solicitors for the purpose of providing a forensic medical report. The respondent’s solicitors requested the appellant review its decision denying the respondent’s claim for compensation under s 66.
By letter dated 6 December 2021 the appellant confirmed its earlier decision. That decision precipitated the respondent to file with the Commission an Application to Resolve a Dispute (the second ARD) seeking determination of his claim for compensation under s 66 of the 1987 Act for 19% WPI. The matter was referred to Member Michael Wright who conducted an arbitration of the respondent’s disputed claim on 16 June 2022. In a Statement of Reasons that accompanied a Certificate of Determination that was issued on 17 August 2022, Member Wright identified that the issue he was required to determine was whether the respondent had sustained a primary psychological injury. Member Wright found that the respondent did suffer a primary psychological injury arising out of or in the course of his employment with the appellant, and that that injury was deemed to have happened on 27 January 2016.
Member Wright directed that the matter be remitted to the President of the Commission for referral to a medical assessor for assessment of the degree of permanent impairment from that primary psychological injury. A delegate of the President duly did so on 5 October 2022. The referral was subsequently amended on 20 October 2022. Only the amended referral is before the Appeal Panel, so the amendment that was made that was to the initial referral is not apparent to the Appeal Panel.
In response to that referral the Medical Assessor examined the respondent on 25 January 2023 and, as noted above, issued a MAC on 30 January 2023 in which he certified the respondent had 22% WPI from the injury that was referred to him for assessment.
MEDICAL ASSESSMENT CERTIFICATE
The Appeal Panel outlines below the appellant’s submissions in support of its appeal against the MAC, but for the purposes of detailing the parts of the MAC that are relevant to the appellant’s appeal the Appeal Panel notes that, in substance, the appellant’s appeal relates to whether the respondent has any permanent impairment from a secondary psychological injury and if so whether the Medical Assessor erred by not deducting from the permanent impairment he assessed the respondent had, the respondent’s permanent impairment from a secondary psychological injury.
The Medical Assessor provided the following summary and opinion in the MAC:
“Mr Fisk is a gentleman living independently at his place in Hamlyn Terrace (with support from his kids and a few friends).
Mr Fisk had been employed as a linesman with AusGrid since 1999. As per the information available, it is evident that he started experiencing physical health stressors and later psychological stressors due to workplace issues (as early as 2008). The psychological symptoms appear to be independent of his physical injuries. Mr Fisk experienced worsening in his mental health since around 2015 as he was placed in a linesman role. He decompensated in his mental health in January 2016 after he was assaulted by a colleague at the workplace.
Mr Fisk has received extensive assertive input from Dr Goriparti (psychiatrist) and
psychologist since 2016. He has had limited benefit from the assertive psychotherapeutic input, with gradual deterioration in his mental health and general functioning. Mr Fisk’s psychological injury has led to a significant adverse effect on his social, occupational and general functioning. Mr Fisk’s recent presentation (over the last six months) indicates him struggling with activities of daily living and household chores.
I was not able to elicit past psychiatric history, family history, or Mr Fisk’s presenting with specific personality traits or deficits contributing to his presentations.
Overall, as per the review today, I am of the opinion that Mr Fisk’s presentation/symptoms satisfy the criteria of chronic adjustment disorder with mixed anxiety and depressed mood as per DSM-V diagnostic criteria.”
The Medical Assessor noted the diagnoses that the respondent’s treating psychiatrist, Dr Goriparti, had made and detailed in a report he wrote on 17 November 2021. The Medical Assessor also noted the diagnoses made by other psychiatrists who had examined the respondent for the purposes of providing medical-legal reports, namely Dr Richa Rastogi, Dr Christopher Bench and Dr Graham Vickery.
The Medical Assessor extracted the following passage from the Statement of Reasons Senior Arbitrator Glen Capel published on 13 October 2020 for the findings and orders he made in the proceedings instituted following the registration of the first ARD:
“Therefore, applying the common sense casual chain in accordance with Kooragang, and in the absence of any persuasive evidence to the contrary, I am satisfied on the balance of probabilities that the applicant has discharged the onus of establishing that he developed a consequential psychologic condition as a result of the injury to his cervical spine, as distinct from any primary psychological injury arising from applicant’s concern about his job security.”
The Medical Assessor also noted that the respondent suffered physical ailments due to the workplace stressors that included migraine, neck pain and pain and decreased sensation in his arms and hands from 2005.
In accordance with paragraphs 11.11 and 11.2 of the Guidelines, the Medical Assessor assessed the respondent’s permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS), and no challenge has been made regarding the Medical Assessor’s ratings of the respondent’s impairment in the several PIRS categories. The Medical Assessor observed that the median class of the scores of his ratings of the respondent’s impairment in the several PIRS categories was 3 and that the aggregate of the scores was 18, which convert to 22% WPI. He assessed that to be the degree of the respondent’s permanent impairment from the injury that had been referred to him to assess.
The Medical Assessor noted in the MAC that he did not make any deduction for pre-existing psychological injury. The Medical Assessor did not discuss in the MAC whether or not any of the respondent’s impairment or symptoms were due to a secondary psychiatric injury.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal. The Appeal Panel considered that no additional relevant or useful data would be obtained by examining the respondent.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor failed to have regard to the evidence relating to the secondary psychological condition that Senior Arbitrator Capel determined on 13 October 2020 the respondent had. The appellant submitted that the Medical Assessor “has not applied the specific test required by s323 of the 1998 Act” with respect to the secondary psychological condition. The appellant further submitted that the Medical Assessor did not take a proper history with respect to the respondent’s secondary psychological injury.
The appellant referred to [96] of Mercy Connect Ltd v Kiely[1] and the decision of a differently constituted Appeal Panel in the matter of Shrestha v RSL Care RDNS Ltd[2] in which the Appeal Panel applied Kiely no 2. The appellant submitted that the Medical Assessor did not undertake the test propounded in Kiely no 2, which required the Medical Assessor to calculate firstly the entire degree of impairment from a psychological injury in accordance with the PIRS categories and then to assess the impairment form a secondary psychological injury and deduct the latter from the former. The appellant submitted that the Medical Assessor did not provide adequate reasons for why the symptoms of the primary psychological injury have subsumed the second psychological injury or vice versa. The appellant submitted that the Medical Assessor “should have made a deduction as provided pursuant to s323 of the 1998 Act for the secondary psychological injury”.
[1] [2018] NSWSC 1421 (Kiely no 2).
[2] [2020] NSWWCCMA 158.
In reply, and in summary, the respondent submitted that the Medical Assessor was required to deal with a discrete primary psychological injury that arose out of his employment and which was independent of the physical injury deemed to have happened on 27 January 2016. The respondent submitted that he did not have a condition or abnormality prior to 2012, when relevant psychiatric symptoms commenced. He submitted there was consequently no basis to make a deduction under s 323.
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.
It is clear from the reasons Senior Arbitrator Capel published for his finding that the respondent sustained an injury to his cervical spine arising out of or in the course of his employment, which injury was deemed to have occurred on 27 January 2016, that this injury occurred due to the duties the respondent performed for the appellant over several years.[3] Senior Arbitrator Capel found that the respondent developed a secondary psychological condition as a result of that injury to his cervical spine. Senior Arbitrator Capel did not specify what that psychiatric condition was. (And he did not need to, given the disputed claims that had been referred to him for determination.)
[3] [229]-[230] of the Statement of Reasons.
Necessarily therefore the respondent’s secondary psychological condition that Senior Arbitrator Capel found was consequent upon the respondent’s cervical spine injury did not pre-exist the respondent’s primary psychological injury that Member Wright found the respondent had suffered arising out of or in the course of his employment with the appellant and that was also deemed to have happened on 27 January 2016. The primary psychological injury that Member Wright found the respondent had suffered occurred over the same time frame as the secondary psychological condition that Senior Arbitrator Capel found was consequent to the respondent’s cervical spine injury.[4]
[4] Mercy Centre Lavington Ltd v Keily [2017] NSWSC 1234 (Keily no 2); Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [46].
Consequently s 323(1) of the 1998 Act is not engaged in this matter. The Medical Assessor therefore did not base his assessment on incorrect criteria by not applying s 323(1) nor did the Medical Assessor make an error by not applying s 323.
Section 65A(2) of the 1987 Act reads as follows:
“In an assessment of degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.”
The term “primary psychological injury” is defined in s 65A(5) to mean a psychological injury that is not a secondary psychological injury. The term “secondary psychological injury” is defined in that same sub-section to mean a psychological injury to the extent that it arises as a consequence of or secondary to a physical injury.
The Appeal Panel accepts the appellant’s submissions that the Medical Assessor did not engage with the evidence relating to the respondent’s physical injury to his cervical spine and the consequences that injury had for the respondent in terms of how it affected the respondent’s psychological functioning. The evidence reveals that:
(a) the respondent suffered chronic pain from that physical injury;
(b) the physical injury affected the respondent’s ability to grasp things and caused him to feel weakness in both arms and muscle wasting, and
(c) the physical injury resulted in the respondent having surgery following which the respondent reported a worsening of symptoms and had concerns regarding incontinence and balance.
Consistent with the finding Senior Arbitrator Capel made, the Appeal Panel considers that the physical injury the respondent suffered contributed to the respondent suffering psychological symptoms, and hence suffered a secondary psychological injury in accordance with the meaning of that term within s 65A(5). The Appeal Panel considers from the evidence of the respondent’s treating practitioners that this secondary psychological injury the respondent suffered is best described as Chronic Pain Syndrome and Major Depressive Disorder.
The Appeal Panel observes that the Medical Assessor diagnosed the respondent’s primary psychological injury to be Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. The Appeal Panel considers that an alternative diagnosis would be a chronic Major Depressive Disorder as the respondent has both cardinal features of major depressive disorder and sufficient other symptoms to warrant this diagnosis which precludes the diagnosis of adjustment disorder in the hierarchical diagnostic systems. This however is just a matter of opinion and what is relevant is the symptoms and the impairment of function the respondent has consequent upon his injury however that injury be diagnosed.
The requirement of s 65A(2) is that a Medical Assessor have no regard to the impairment or symptoms resulting from a secondary psychological injury when assessing the degree of permanent impairment from a primary psychological injury. Her Honour Harrison AsJ in obiter dicta propounded in Keily no 2 a two-step process by which a Medical Assessor could abide the mandate of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step is to assess the overall degree of permanent impairment of a worker in accordance with clauses 11.11 and 11.12 of the Guidelines. The second step is to assess separately the worker’s permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The Appeal Panel considers that such a process is apt for the circumstance where there can be a disentanglement of the impairment and symptoms a worker suffers due to a secondary psychological injury from the impairment and symptoms a worker suffers due to the primary psychological injury.
In this case however, that cannot be done. In this case, with the possible exception of one element of the respondent’s function, the impairments of function and symptoms the respondent has from both his primary psychological injury and secondary psychological injury are completely intermingled. His impairment and symptoms from one injury are indivisible from the impairment and symptoms from the other injury and cannot be disentangled. There is one element of his functioning that possibly relates only to his physical injury and that is he is no longer riding a push bike.
The Appeal Panel considers that the requirement of s 65A(2) to have no regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. If it were otherwise, then in a case such as this, where the impairment and symptoms from the primary psychological injury and the secondary psychological injury are indivisible and cannot be disentangled, to disregard the impairment and symptoms from the secondary psychological injury would mean to disregard the impairment and symptoms from the primary psychological injury. It would mean that a worker could be assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact a worker did have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the express objectives of the legislation that injured works receive payment for permanent impairment.
All of the matters the Medical Assessor detailed in the PIRS table that formed part of the MAC to rate the respondent’s impairment in the several PIRS categories can result entirely from his primary psychological injury, with the possible exception of not riding a push bike. The Medical Assessor explained that the respondent not being able to ride a push bike was a factor relevant to how he rated the respondent’s impairment in the category of Social or Recreational Activities. Were that factor to be disregarded, the rating would still be the same for this category and hence it makes no difference to the assessment of the respondent’s permanent impairment from his primary psychological injury.
As said the requirement of s 65A(2) is to disregard the symptoms and impairment from the respondent’s secondary psychological injury. As the Appeal Panel has also said, that does not require the Appeal Panel or a Medical Assessor to disregard those impairments and symptoms if they also result from the primary psychological injury. The section does not require a Medical Assessor or an Appeal Panel to make a deduction for the extent to which a separate injury contributes to a worker’s permanent impairment, but rather and to repeat, it requires a Medical Assessor or an Appeal Panel to disregard impairment and symptoms. The two are different things. The sub-section cannot be interpreted to disregard whatever impairment and symptoms a worker has that result from a primary psychological injury even though they may also result from a secondary psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 January 2023 should be confirmed.
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