Austbrokers RIS Pty Ltd v Davy
[2021] NSWPICMP 197
•20 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Austbrokers RIS Pty Ltd v Davy [2021] NSWPICMP 197 |
| APPELLANT: | Austbrokers RIS Pty Ltd |
| RESPONDENT: | Rowan Davy |
| Appeal Panel: | Member John Wynyard Dr Douglas Andrews Dr Nicholas Glozier |
| DATE OF DECISION: | 20 October 2021 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal from assessment of 1/10th section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction: worker awarded 24% whole person impairment for psychiatric injury caused by bullying and harassment; suffered from prior psychiatric condition which included suicide attempt some 4 years prior to subject injury, and 1 year prior to worker’s commencement with employer: whether contemporaneous clinical notes and health plans demonstrated a higher contribution from the prior condition; Held - incorrect criteria ground established as Medical Assessor (MA) did not explain the methodology used to assess such contribution; comparison with Chapter 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guides) and section 323 of the 1998 Act considered; Marks v Secretary, Department of Communities and Justice (No 2) applied; Chapter 11.10 of the Guides inapplicable as application would yield no prior contribution; MA accordingly applied correct criteria; observations on probative value of clinical notes and health plans when unanimously contradicted by medical experts; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 July 2021 Austbrokers RIS Pty Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 29 June 2021.
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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 7 April 2021 this matter was referred to the MA for an assessment of WPI caused by psychological/psychiatric disorder on a deemed date of 6 June 2016. This followed Consent Orders on 1 April 2021.
The worker was employed as the Dubbo Branch Manager of the appellant employer, Austbrokers RIS Pty Ltd. He was appointed to that position in May 2013, the employer being a general insurance company.
The circumstances of the injury are not germane to the issue before the Panel. The MA certified a WPI of 24%, from which he deducted 1/10th pursuant to the provisions of s 323 of the 1998 Act.
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 WorkCover Medical Assessment Guidelines 2006.
The appellant employer requested that the respondent worker be re-examined by a MA who was a member of the Panel. As the issue on appeal concerned the worker’s prior psychiatric condition, a re-examination would not have evinced any further relevant material.
EVIDENCE
Documentary 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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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. 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 sole ground of appeal related to the 1/10th deduction made by the MA to his overall finding of 24%.
In a most comprehensive survey of the evidence, the appellant employer referred to the evidence that was before the AMS regarding the worker’s prior psychological history.
There is no challenge to the facts relied upon, neither is there any suggestion that the MA was unaware of them.
The MAC
In considering the history taken by the MA we note that he recorded two significant events incorrectly. The overdose did not occur in 2011, but in late March 2012. Similarly, Mr Davy did not commence employment with the employer until 6 May 2013, not May 2012. The history of Mr Davy’s prior psychological condition was detailed as follows:[1]
“l Details of any previous or subsequent accidents, injuries or condition:
Mr Davy said in 2011 he suffered with severe depression in the context of marital conflict. He took an overdose of tablets and was admitted to Dubbo Base Hospital. He was in the mental health unit there for about a day and a half. He was seen by psychiatrist Dr Kealy Bateman at the Community Health Centre and was commenced on the antidepressant medication, Efexor-XR up to a dose of 300mg daily. He said he saw Dr Kealy-Bateman on about four or five occasions.
Mr Davy said he had been seeing his psychologist Mr Greg Tyrer prior to the overdose for his depressed mood and marital issues and he continued to see Mr Tyrer on-and-off from 2011 onwards. He remained on Efexor-XR 300mg daily from 2012 until he stopped work in 2016 and was referred to a psychiatrist Dr Sinha who added Seroquel and later Axit medications.
Mr Davy said he had a routine gastroscopy on 9 June 2016 which showed abnormalities in the lining of his stomach. He had a laparoscopic operation which removed all the abnormal cells and was given a very good prognosis by the gastroenterologist he saw.
In 2018 Mr Davy was feeling physically unwell and his wife arranged for him to have a body scan which showed abnormalities in the left kidney. He had a left nephrectomy and ureterectomy for a tumour in the kidney. He did not require chemotherapy or radiotherapy. …. Mr Davy reports having no problems or stress with regard to these two operations. He describes feeling "very lucky" because both cancers were picked up early and that there have been no recurrences of the cancers.”
[1] Appeal papers page 33
In detailing Mr Davy’s work history the MA said:[2]
“Mr Davy married at the age of 23. His wife works as a nurse at a private hospital in Dubbo. They have no children. He said there have been difficulties in their marriage over the years, especially after they returned to Dubbo, but he said that their relationship has improved in recent years.”
[2] Appeal papers page 34
In his Summary the MA said[3]
“In my opinion Mr Davy has the psychiatric condition of Persistent Depressive Disorder with anxious distress with persistent Major Depressive Episode according to DSM-5 diagnostic criteria. Mr Davy appeared to develop a Major Depressive Episode in 2011 when he took an overdose and was briefly admitted to hospital and had follow up from the community mental health services including psychiatric treatment. At that time, he was commenced on antidepressant medication Venlafaxine-XR at a large dose of 300mg daily and has remained on that dose since then. He has had adjuvant therapy of Quetiapine 100mg daily and Mirtazapine 30mg at night added to his medication regime in the last two to three years.
From the history it appears that Mr Davy had made a reasonably good recovery from his first episode of Major Depressive Disorder in 2011 until the time his work-related stressors began in 2012-2013. In my opinion his work stressors from 2012-2013 onwards were the cause of the current exacerbation of his Persistent Depressive Disorder.”
[3] Appeal papers page 35
The following appears at paragraphs 8e and 8f:
“e. Is any proportion of loss of efficient use of impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes. Mr Davy suffered with a severe episode of Major Depressive Disorder which included a suicide attempt in 2011. He was commenced on a high dose of an antidepressant medication and was seeing a psychologist for psychological therapy. Although he was functioning reasonably well by the time he started working for Austbrokers RIS Pty Ltd in 2012, I believe a one-tenth deduction to take this pre-existing condition into consideration is appropriate.
f. If so, please indicate which body part/system is affected by the previous injury, pre existing condition or abnormality.
Psychiatric and psychological disorder.”
Paragraph 10 of the MAC invites from the MA his brief comments regarding other medical opinions. The MA spent some time summarising the opinions of Dr John Albert Roberts, the medico-legal psychiatrist retained by the appellant employer. He did not comment directly on Dr Roberts’ opinion as to the appropriate deduction to be made under s 323. In his report of 22 April 2018, Dr Roberts assessed a deduction of “at the very least a 10% deduction.”[4]
Dr Robert’s total assessment was 5% WPI, and the MA’s comments were directed at the over-all PIRS assessment by Dr Roberts.[4] Appeal papers page 526
The MA also considered the opinion of Dr Glenn Smith. The MA said:
“Dr Smith did not make any deduction for pre-existing condition which I have done to take into consideration the fact that Mr Davy had a severe episode of Major Depressive Disorder in 2011 which required psychological therapy and a high dose of antidepressant medication and which he was still taking at the time of his work-related stressors began in 2012.”
The MA also noted the involvement of Dr Warren Kealy-Bateman concerning Mr Davy’s psychological illness experienced prior to his commencement with the employer.
Paragraph 11 of the MAC has three templated question in bold. It is convenient to reproduce the questions and the answers given by the MA.
“11 DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre existing conditions or abnormalities:
(i)Major Depressive Disorder.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Mr Davy had a serious Depressive Episode in 2011 in which he attempted suicide by overdose and was briefly admitted to hospital. He was having psychiatric treatment and was taking a large dose of antidepressant medication, Efexor-XR 300mg daily and was having psychological therapy. His symptoms had improved and in my opinion his work related stressors caused an exacerbation and recurrence of his Major Depressive Disorder which has persisted.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s 323(2) I assess he deductible proportion as one tenth. In my opinion this is not at odds with the available evidence.”
Mr Greg Tyrer
Mr Davy was referred to Mr Greg Tyrer, Psychologist, by his GP Dr Kirupal, who advised that Mr Davy was “suffering from depression which is not responding well…”.[5] In an undated report, Mr Tyrer took a history when he first saw Mr Davy on 6 September 2011 that Mr Davy had been diagnosed with depression in 1997, “and in retrospect believes that he has suffered symptoms of depression since childhood”.[6] The trigger for the onset of depression was that “as of Monday” he had been betrayed by his then employer who had said his job was secure but was advised he was “out.”
[5] Appeal papers page 1502
[6] Appeal papers page 298
Mr Tyrer’s report took the form of a series of entries regarding each session he had had with Mr Davy. On 29 September 2011 Mr Tyrer reported that the effects of the medication Efexor appeared to be having a positive effect. In that session Mr Davy explained that his relationship with his wife Bernadette was “at a pretty low point”. He said that they got together at aged 18 and 17 and were married at 22. They had their best times in the early years at Gold Coast.
Mr Tyrer continued to see Mr Davy in regard to this referral until 24 September 2012. In summary, the sessions concerned:
· 18 October 2011 - the dynamics of Mr Davy’s extended family;
· 1 November 2011 - discussed past and present positives in Mr Davy’s life;
· 29 November 2011 - working on anxiety reduction;
· 16 January 2012 - workplace issues; Mr Davy considering his options; positives and negatives described re relationship with Bernadette;
· 6 February 2012 - work stress triggering redundancy experiences from the past;
· 19 April 2012 - suicide attempt some weeks before. Epiphany – hospital 2 nights. Accumulation of stressors particularly recent redundancy, his third. Ceased alcohol intake; relationship with Bernadette much better;
· 23 April 2012 - suicide attempt isolated incident, reasons explained;
· 21 May 2012 - significant improvement;
· 12 June 2012 - Mr Davy happy and well. Tests indicate normal to mild range on depression index;
· 30 July 2012 - Mr Davy feeling happy, energetic, balanced and optimistic. Getting on better with Bernadette and extended family, and
· 24 September 2012 - still travelling well dealing with issue regarding his firearms license in a positive state of mind.
Mr Tyrer issued a further report dated 11 October 2018, which was concerned with the subject injury and Mr Tyrer’s subsequent involvement in Mr Davy’s treatment. Mr Tyrer was asked his opinion as to whether there were any non-work related events that had contributed to the subject injury. Mr Tyrer said:[7]
“… In my opinion, employment is the main contributing, causal factor with Mr Davy’s current condition. There is no previous history of similar or related events in any part of Mr Davy’s previous work history, and no evidence of similar reactions.
Mr Davy’s previous history of depression has been noted. It should also be noted that over all of that time and up to the date of injury, Mr Davy had been operating at a highly professional level in three separate and independent workplaces, undertaking similar roles and responsibilities…. Any previous depressive symptoms were evidently resolved and being actively managed and were, in my opinion, not causal factors in his current condition.
It is my belief that these events have provoked a major disruption to Mr Davy’s sense of self that is clinically different to any of the depression symptoms he had suffered in the past. This reaction includes Mr Davy’s sense of confidence, sense of professionalism, sense of identity, and sense of belonging.”
[7] Appeal papers page 461
Dr Kealey-Bateman
31. A series of reports were lodged from Dr Warren Kealey-Bateman, Visiting Psychiatrist for the Western NSW Local Health Network. Mr Davy had been referred by his GP Dr Ahmad when Dr Kealey-Bateman first reported on 25 October 2011. Nine reports were lodged, the final report being on 6 May 2013.
In his first report Dr Kealey-Bateman took the following history:[8]
“The main things from the patient’s perspective “Basically I have been in a downward spiral for years, antidepressants for 10 years, depressed from schooling, was manageable with medication”. It appears that there has been an exacerbation over the last three years since Rollins’s job as State Manager of Elders Insurance was made redundant during a workplace restructure….
There has been three years of distinctly low mood and whilst it has improved a little bit in the context of seeing Greg Tyrer… It’s still low.
…..
Rowan had never seen a Psychiatrist before but has been trialed on 2 to 3 antidepressants 10 years ago…. As the decision to potentially leave work began to take form about four weeks ago Rowan became further depressed and he was started on Effexor XR… ”
[8] Appeal papers page 529
33. Dr Kealey-Bateman noted that Mr Davy had worked in the Insurance Industry all his life and reached a very senior level. He diagnosed a Major Depressive Episode with an underlying Major Depressive Disorder. He said:[9]
“There has been an exacerbation in the context of a major role transition and he is currently at low risk. There is occasional alcohol abuse.”
[9] Appeal papers page 1874
34. On 2 April 2012, Dr Kealey-Bateman reported an overdose taken the week before, which was also noted by Mr Tyrer on 19 April 2012. Dr Kealey-Bateman said that it had occurred impossibly in the context of relationship and other personal stresses, as well as the consumption of alcohol. Dr Kealey-Bateman noted, as did Mr Tyrer, that the overdose was a “watershed moment” for Mr Davy. His mood was now good and he was enjoying his life. He had hopes in future plans.[10]
[10] Appeal papers page 1613
35. Dr Kealey-Bateman wrote a number of progress reports thereafter between 21 May 2012 and 6 May 2013. On 23 July 2012 he diagnosed a Major Depressive Episode now in remission as part of a Major Depressive Disorder.[11] Dr Kealey-Bateman confirmed that diagnosis when he wrote to the Commissioner of Police on 13 August 2012 and 3 December 2012 to support the reinstatement of Mr Davy’s firearms licence. On 6 May 2013 Dr Kealey-Bateman repeated the diagnosis of Major Depressive Disorder with a Major Depressive Episode in remission, in reporting to Mr Davy’s GP. Dr Kealey-Bateman said:[12]
“I am pleased to see Rowan well. He has had a very severe depression and was at high risk of suicide. He has worked hard to maintain his recovery and recently even got his gun licence back.”
[11] Appeal papers page 1869
[12] Appeal papers page 1635
Dr Sanjay Sinha
36. Dr Sanjay Sinha was a Consultant Psychiatrist to whom Mr Davy was referred to in 2016. On 18 June 2016 Dr Sinha noted:[13]
“…I assessed Rowan today who reports long-term issues with his mood. He was diagnosed with depression 8 years ago following marital issues and has seen Counsellor Greg Tyrer and Psychiatrist Dr Warren Kealey-Bateman. He has been symptom free for the past 6 years and stopped follow-up with both professionals 5 years ago. He continues to take ERfexor XR 300mg under supervision of his GP.”
[13] Appeal papers page 114
Dr Glenn Smith
37. Dr Smith, Consultant Psychiatrist issued a report dated 18 January 2018.[14] He said:
“Mr Davy reported a history of pre-existing depressive symptoms but they had responded to treatment and he described being in full remission, working full-time at a high level prior to commencing employment with Austbrokers. This lack of impairment was corroborated by his treating psychologist in his report. Therefore, I have not made a deduction for pre-existing impairment.
… The evidence is that he was not impaired by depressive symptoms when he commenced employment with Austbrokers.
… Whilst the history of the pre-existing depressive condition increases the risk for development of a further depressive episode in the context of stressors such as those experienced by Mr Davy in the workplace, there is no indication that he was impaired prior to those stressors and therefore there is no deduction for a pre-existing condition.”
Dr Roberts
[14] Appeal Papers page 94
38. Dr Roberts issued six reports dated 6 October 2016, 11 November 2016, 22 April 2018,
13 March 2021, 14 March 2021 and 18 March 2021.[15] In his report of 22 April 2018 he referred to Dr Smith’s assessment at page 526:
“I note that Dr Glen Smith did not assess pre-existing impairment commenting that there was no indication that Mr Davy was impaired prior to these i.e. work related stressors and therefore there is no deduction for a pre-existing condition.
COMMENT: I note that Mr Davy made the same statement to me, he commented that his previous depression had no influence on work which is on reasonable psychiatric grounds, inconceivable since there was a previous history of suicidal ideation, problems in regard to his marriage and long term ongoing psychological and psychiatric intervention, it would be inconceivable that such symptomatology could be circumscribed.
I would consider that at the very least a 10% deduction should be made on the basis of a pre-existing condition which would reduce the current level of Impairment to 5%, which is less than 10% and would be reduced by appropriate treatment.”
[15] Appeal papers pages 500, 512, 515, 1345, 1363 and 1366 respectively
On 13 March 2021 Dr Roberts confirmed that his opinion was that employment was not a substantial factor to the development of the injury. Dr Roberts said [16]:
“The medical records clearly indicate that such could not be the case since Mr Davy has developed identical symptomatology of a much more serious nature including a serious suicidal attempt in the absence of any employment with Austbrokers and preceding any contact with Aust Brokers by years.
It is not tenable on reasonable psychiatric grounds to assert that a person who has presented with certain symptomatology in relation to employment at Aust Brokers could have presented with identical symptomatology years before him being employed by Aust Brokers and of it being able to be rationally claimed that symptomatology of an identical nature to that arising at Austbrokers but which preceded Aust Brokers employment by years, could be the result of his employment with Aust Brokers.”
SUBMISSIONS
[16]Appeal papers pages 1360-1361
The appellant employer submitted that there was a contradiction between what the MA said in paragraph 11(b) and the documents that were before him.
It was alleged that Mr Davy had expressed a number of symptoms to Dr Kealy-Bateman on 2 April 2020. The appellant employer alleged that Dr Kealy-Bateman had recorded Mr Davy as saying that he felt:[17]
(a) tired out for no good reason;
(b) hopeless;
(c) that everything was an effort;
(d) sad so that nothing could cheer him up, and
(e) worthless.
[17] Appeal papers page 11
The appellant employer submitted that the evidence before the MA showed both the severity and the duration of the pre-existing condition when Mr Davy commenced with the employer. It was submitted that the MA fell into error when he found that it was difficult to determine the deduction to be made pursuant to s 323.
The appellant employer then referred to the evidence which it submitted demonstrated that severity and duration.
The documents referred to all related to Mr Davy’s prior condition before he commenced employment in May 2013. This included admission to hospital as an inpatient between
27 March 2012 and 29 March 2012 following his suicide attempt. The appellant employer submitted that “those symptoms” did not relent.We were then referred to a mental health assessment dated 27 August 2014 by Mr Davy’s GP, Dr Paing. The presenting problems were stated as: [18]
“Worsening depression, low mood, anxiety, secondray [sic] to marriage breakdown.”
[18] Appeal papers page 304
This was significant, it was suggested, as at that stage Mr Davy was working for the appellant employer, and was germane to the MA’s finding that the extent of the s 323 deduction was difficult to determine. The diagnosis in the mental health plan was of depression and anxiety, and the appellant employer noted that “the outcome score” was 41/50.
A further mental health assessment was referred to dated 8 October 2015 in which one of
Mr Davy’s GPs, Dr Rosul, had indicated:[19]“worsening depression, low mood, anxiety, secondray (sic) to marriage breakdown.”
[19] Appeal papers page 1552
The assessment indicated that Mr Davy was still taking Efexor, and the appellant employer submitted that the proposition that Mr Davy had been symptom free for six years prior to June 2016 when he first consulted Dr Sanjay Sinha, was thus demonstrated to be incorrect.
It was submitted that the MA had erred by considering the s 323 deduction at paragraph 11c of the MAC by using “a single sentence which was not only difficult to understand but demonstrably flawed”.
The appellant employer then submitted that the MA had erred in applying the s 323(2).
We were referred to Mercy Centre Lavington Ltd v Kiely and Ors[20] and Broadspectrum (Australia) Pty Limited v Wills[21] as examples of cases where the evidence was such that the assessment of the appropriate deduction was not costly or difficult.
[20] [2017] NSWSC 1234 (Kiely)
[21] [2019] NSWSC 1797 (Wills)
The appellant employer then submitted that the MA had made a further error by failing to demonstrate the basis for the application of s 323(2). The submission was:
“A reader of the certificate is left to wonder which of the two alternatives [difficult or costly] has formed the basis of the conclusion drawn by the MA.”
As the MA had expressed himself in the disjunctive, it was submitted that an obligation arose to identify which of the two alternatives he was referring to.
If it were the cost, then it was submitted that the MA was required to demonstrate the calculations that he made to come to that conclusion. If it was that the deduction was difficult to determine, then the appellant employer submitted that the MA was under an obligation to explain his reasoning as to the cause of the difficulty.
The appellant employer then addressed paragraph 11b of the MAC, noting that Mr Davy had continued to receive treatment. The appellant employer then said at [26] of its submissions:
“It has been pointed out above that, in the material before the MA, as late as October 2015, the need for all of this treatment was ascribed not to work but to the marital difficulties that appear to have precipitated the condition, including the suicide attempt in March 2012”.
The appellant employer submitted that either the MA had failed to recognise the continuation of the psychological treatment during his employment for a condition which Mr Davy had himself attributed solely to a non-work related cause, or that the MA had “failed to take account of that highly significant attribution”.
It was further argued that the MA described the earlier psychological condition as occurring in 2011. That was said to be at odds with the report of Dr Kealy-Bateman who provided the precise dates of the suicide attempts. The appellant employer said:[22]
“It might be argued that there is no significant difference between 2011 and March 2012 but the MA appears to be influenced and his conclusion that the contribution pre-existing condition is difficult to determine ‘(if difficulty is the issue) by what appears at para 11b”. [sic]
[22] Appeal papers page 14
A further submission was made that by agreeing with the diagnosis given by Dr John Albert Roberts, the Consultant Psychiatrist retained by the respondent, the MA had erred in not also agreeing with Dr Roberts’ conclusion that the injury substantially related to non-work factors. It was put that the MA, by disagreeing with Dr Roberts, “proceeded on the basis that, at the time the worker commenced with the applicant (May 2013) he had largely recovered from the effects of the pre-existing condition”. This was said to be “simply wrong”, as Mr Davy ascribed his need for a mental health assessment solely to his marital difficulties after more than two and a half years of working with the employer. This was “consistent with criteria adopted by Dr Roberts, and inconsistent with criteria adopted by the MA,” it was submitted.
Mr Davy
The respondent, Mr Davy, conveniently summarised the submissions of the appellant employer:[23]
“4. In essence the Appellant contends that:
a.The 1/10th deduction applied by the AMS represents a demonstrable error and/or resulted from the AMS applying incorrect criteria.
b.A demonstrable error is apparent because it wasn’t open to the AMS to apply a deduction under section 323(2) of the WIM Act, nor was it open to the AMS to make a 1/10th deduction on the evidence.
c.It was not difficult to determine the extent of the deduction to be applied.”
d.The reasons provided by the AMS for the deduction were unclear and/or insufficient.”
[23] Appeal papers page 19
Mr Davy referred to the submission that the MA had dealt with the deduction pursuant to
s 323 by way of a single sentence. We were referred to the many observations the MA made during his MAC as to Mr Davy’s prior condition, which we have reproduced above. It was submitted that the MA had given ample reason for his conclusion. The MA had considered
Dr Roberts’ report and rejected it, he had considered the report of Dr Glenn Smith, the applicant’s medico-legal specialist, and disagreed with Dr Smith who had not made any deduction at all pursuant to s 323.We were referred to Dr Kealy-Bateman’s opinion that Mr Davy was suffering from a major depressive episode which was in remission.
Mr Davy submitted that the MA took “great pains to review the evidence,” and that the 1/10th deduction was not made pursuant to the statutory assumption contained in s 323(2), but rather on the evidence, which the appellant employer had “completely ignore[d]”.
In that regard Mr Davy referred to his statement which, it was submitted, was detailed and reliable. Mr Davy had carried out his work demands, which demanded the highest level of competence, and had been able to secure that more demanding and responsible employment with the present employer after his pre-existing depression had been successfully treated.
Reference was made to a supporting statement by Bernadette Davy, and it was accordingly difficult to see how the previous marital problems could be said to be contributory in view of her evidence that the marriage was now solid.
It was noted that Mr Davy had been continuing his business in insurance whilst he was coping with the condition caused by his worries about the marriage.
Mr Davy relied on the opinion of Dr Glenn Smith and his treating psychologist Mr Greg Tyrer.
We were also referred to the clinical notes of the GP practice Mr Davy attended, and to,
Mr Tyrer’s reports - all of which, it was argued, acknowledged Mr Davy’s past depression, but also found that his present state was as a result of his experiences in the workplace.Mr Davy submitted that the appellant employer’s submission that Mr Davy had not recovered from his earlier psychological condition ignored the evidence to which it had just referred. It was an incorrect assertion of fact to claim that his need for mental health assessment was caused solely by his marital difficulties.
We were referred to the well-known case of Cole v Wenaline Pty Ltd.[24] It was submitted that the MA had a proper regard to the evidence and did not, as the appellant employer seemed to be submitting, base his opinion on hypothesis and assumption that simply because
Mr Davy had been undergoing treatment for an earlier psychological problem, therefore a contribution to the present impairment should be made in a greater proportion than was found by the MA. The MA’s opinion was not at odds with the evidence, Mr Davy submitted, which showed that a 1/10th deduction was appropriate.[24] [2010] NSWSC 78 (Cole)
DISCUSSION
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Chapter 11.10 of the Guides provide:
“Pre-existing impairment
11.10 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.”There is a tension between the two provisions, which was examined by Simpson AJ in Marks v Secretary, Department of Communities and Justice (No 2):[25] At [24] she said (with the authorities omitted):
“The proposition that a guideline inconsistent with statute could take precedence is contrary to authority ….”
[25] 2021] NSWSC 616
Her Honour said at [28]:
“The submission was maintained that s 322(1) “gives precedence” to the Guidelines. There is nothing in either s 376 or s 323(4) that authorises the issue of guidelines that are inconsistent with any provision of the WIM Act. It is implicit, even if not expressly stated, in any conferral of power to make regulations, guidelines, or any other kind of delegated legislation (if that is what guidelines are) that the exercise of the power be consistent with the provisions of the legislation under which the power is conferred. So much is explicit in s 323(4)….. Subsection (4) authorises the State Insurance Regulatory Authority to make provision “for or with respect to the determination of the deduction required by this section” (emphasis added). That leads inexorably back to subs (1), construed in accordance with established authority.”
Her Honour then concluded by saying at [29]:
“I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid.”
The appellant employer did not consider these provisions in its submissions, nor did it refer to Her Honour’s judgement. It did not allege in terms that the MA might not have applied the correct guidelines, and thus had applied incorrect criteria. However, the appellant employer has raised incorrect criteria as a ground of appeal and, on a long view, its submissions can be seen to have raised the issue. The MA did not explain why he had relied on s 323 of the 1998 Act, and not the provisions of Chapter 11.10 of the Guides. In view of Her Honour’s reasons, the Guides must be the first enquiry as to the appropriate deduction for a pre-existing psychiatric condition. It is only If a conclusion is reached that an injured person was asymptomatic that s 323 becomes applicable. In the present case it is clear that Mr Davy did suffer a pre-existing condition, and the MA thus needed to explain why the provisions of Chapter 11.10 had not been considered.
The error however may be corrected by the Panel, whose Specialists are able to apply the provisions of Chapter 11.10. It accordingly becomes necessary to determine the factual matters raised by the applicant employer in order to make the analysis required by Chapter 11.10.
There were 1,945 pages of documentation in this appeal, and the appellant employer has taken a novel approach to the interpretation of the evidence before the MA. It primarily limited its review to evidence that was concerned with the particularity of the clinical notes and treatment plans. By doing so, it constructed a scenario that has been discredited by contemporaneous reports from Mr Davy’s treating Psychiatrist and Psychologist prior to the commencement of his employment.
That a greater deduction than 10% was warranted, as the appellant employer sought to demonstrate, was not supported either by its own medical expert, Dr Roberts. Dr Roberts did turn his mind to the amount of the deduction, even though he said that injury was not established. He thought that a 1/10th minimum deduction should be made, without suggesting an upper limit.
The appellant employer has not relied on its medico-legal expert, insofar as it relates to the
s 323 deduction, nor has it attempted to come to grips with the opinions of
Dr Kealy-Bateman, Greg Tyrer, or Dr Glenn Smith.Reliance on clinical notes by health professionals needs to be approached with caution, bearing in mind the circumstances under which they are made.[26] The Medical Assessors on the Panel would also observe that some caution has to be exercised in considering the content of Mental Health Plans. They enable a GP to acquire government funding for treatment, and the form tends to be repeated without consideration for its content – much like the content of Workcover approved medical certificates.
[26] Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 per Keating P at [35] and [37]
This would appear to be the case in the present matter. The phrase on which the appellant employer places so much store was repeated identically on 27 August 2014 and 8 October 2015, with the same spelling mistake, “secondray,” and we are by no means satisfied that all the Mental Health Plans were before the MA. The earlier plans of 20 September 2011 and 2 April 2012 did not ascribe a cause for Mr Davy’s depression, but it may be that the phrasing adopted in the later plans were simply copied from earlier plans that pre-dated Mr Davy’s employment with the employer, at a time when the matrimonial discord had indeed been a cause of his earlier condition.
We decline to draw the necessary inference from the later Mental Health Plans or the clinical notes, that Mr Davy made any such statement contemporaneously. It is clear that the attributions in the mental health plans of both 1 November 2014 and 24 August 2015 are erroneous. There is no suggestion that after Mr Davy’s ‘epiphany’ following his suicide attempt in late March 2012 that there have been any matrimonial problems. Indeed, the reports of both Mr Tyrer and Dr Kealey-Bateman specifically note the improvement thereafter – to the point where in late 2012, Dr Kealey-Bateman was happy to support Mr Davy’s application to have his firearms licence restored to him.
The experts on the Panel would note that the self-report measuring of symptoms used by psychologists can be a useful tool in the treatment of a psychologically injured person. However, the utility of such reports is limited. They are not diagnostic, nor do they provide a reliable or valid guide as to the assessment of WPI caused to a person with such a condition. Chapter 11 of the Guides applies to clinician rated, not self-reported, assessments. The assessment is based on the behavioural consequences of six scales of psychiatric disorder, each of which evaluates an area of functional impairment by assigning classes between one and five in accordance with severity.
We note that Mr Davy commenced his employment with the respondent in May 2013. The date of May 2012 was recorded by the MA, but Mr Davy gave the 2013 date in his statement, and Dr Glenn Smith, Mr Davy’s qualified expert Psychiatrist, stated it was 2013. The s 78 Notice dated 24 May 2018 confirmed that Mr Davy was employed on 15 March 2013 to commence on 6 May 2013.[27] Moreover, the report of Dr Kealey-Bateman dated 2 April 2012 confirms that the attempted suicide occurred during the week before, and not in 2011, as recorded by the MA.
[27] Appeal papers page 479
The appellant employer made a submission as to the erroneous dates within the MAC, which we reproduced. We had some difficulty understanding the appellant employer’s meaning, with respect, but assuming that it was referred to as evidence that the MA had made an error, we note that the MA also assumed that Mr Davy commenced his employment in May 2012, when the actual date was 6 May 2013, so that the period between the suicide attempt in May 2012 and commencement on which the MA based his opinion in paragraph 11b remains about the same as between 2011 and May 2012. We do not see any error therefore in the basis of his reasoning.
We were referred to a report by Dr Kealey-Bateman dated 2 April “2020”. There was no such report, as there were no reports from Dr Kealey-Bateman after 6 May 2013. There was a report from him dated 2 April “2012”, but it did not contain the complaints alleged by the appellant employer.
We are accordingly satisfied that the MA has made no error in his appreciation of the relevant facts. Mr Davy was indeed in remission, as was found by Dr Kealey-Bateman, at the deemed date of the subject injury. He had been in remission since 2012, albeit that his medication appears to have continued, and he had returned to a cognitively demanding and public facing professional full-time occupation. The MAC was carefully and thoroughly drawn, with a full explanation as to the conclusions the MA reached.
As indicated, we are satisfied that it should be revoked, as the MA did not apply the correct criteria. That may be partly the way in which the template is drafted, which is perhaps more suited to the assessment of orthopaedic injuries.
As to the nature of Mr Davy’s pre-existing condition, the evidence of both Dr Kealey-Bateman and Mr Tyrer show that Mr Davy’s depression was of long standing, the diagnosis having been made in 1997, when he was 35 years of age, and indeed Mr Davy advised Mr Tyrer that in retrospect he had suffered depressive symptoms since childhood - although he emphatically denied saying so in his statement.[28]
[28] Appeal papers page 55
The cause of his seeking treatment in 2011 appeared to be Mr Davy’s forced redundancy from his then employment after he had been assured that he would not be affected by a restructure. Mr Davy was under the care of the late Mr Tyrer from 6 September 2011, and the bulleted list of appointments thereafter referred to in paragraph [29] above demonstrates that there was a mix of concerns, amongst them his relationship with his extended family, and his wife Bernadette. Mr Davy said in his statement that his sessions with Mr Tyrer were irregular, and concerned with the marital situation, but the contemporaneous evidence does suggest that there were other problems. Be that as it may, it is common ground that the suicide attempt in March 2012 caused what Mr Tyrer described as an ‘epiphany”, and
Mr Davy has been in remission since, as Dr Kealey-Bateman and Mr Tyrer explained, until the subject injury.Mr Davy’s prior history would suggest that he had a pre-existing condition, in remission, but was vulnerable to relapse. He was a high achiever, as his history demonstrated, and his condition did not affect his performance in a high-pressure job when he was State Manager for Elders Insurance for nine years up to 2009, responsible for 110 employees and an annual budget of over $200 million.
There is evidence that Mr Davy had long standing depression, commencing by at least 2011, perhaps much early, if we accept Mr Tyrer’s account that Mr Davy had spoken of depression being diagnosed in 1997 but starting in childhood. He remained on treatment through to 2016, when he became unwell in the workplace.
Treating psychiatrist Dr Kealy-Bateman assessed Mr Davy in 2012 and considered him to be in remission, although still on treatment.
Treating psychiatrist Dr Sanjay Sinha in a report dated 18 June 2016, noted the earlier depression, stating that Mr Davy had “been symptom free for the past 6 years”. Although the period may have been in the region of four years, nonetheless it is further expert evidence that Mr Davy had not been symptomatic when he commenced employment.
Depression is chronic relapsing/remitting condition, mediated by a mix of genetic and environmental factors.
The fact that Mr Davy was in remission does not mean that the underlying condition was not contributing to his current symptoms and impairment. But for the chronic depressive disorder, he may not have become as unwell, and his impairment would have been less.
It is impossible to apply Chapter 11.10 of the Guides to determine the contribution of
Mr Davy’s pre-existing condition to current impairment. He was functioning at high level, had few symptoms and says that he was well. Too many years have passed for us to be able to test any of this, and the contemporaneous expert evidence is supportive that Mr Davy was asymptomatic when he commenced his employment. Although by applying the Psychiatric Impairment Rating Scale to Mr Davy’s pre-injury impairment an assessment of 0% would have been made, this does not adequately account for the contribution of the pre-existing condition, in remission with medication.Accordingly we are satisfied that the MA’s reliance on s 323(2) to assess the contribution of
Mr Davy’s pre-exiting condition may be accepted. A one-tenth deduction is appropriate because it is impossible to determine the precise contribution, and it is not at odds with the available evidence. The assessment by the MA is within an acceptable range, and was open to him.For these reasons, the Appeal Panel has determined that the MAC issued on 29 June 2021 should be confirmed.
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