BAE v State of New South Wales (Western NSW Local Health District)
[2022] NSWPICMP 312
•21 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BAE v State of New South Wales (Western NSW Local Health District) [2022] NSWPICMP 312 |
| APPELLANT: | BAE |
| RESPONDENT: | State of New South Wales (Western New South Wales Local Area Health District) |
| APPEAL PANEL: | Member Deborah Moore Medical Assessor Nicholas Glozier Medical Assessor Patrick Morris |
| DATE OF DECISION: | 21 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- The appellant appealed on the basis of deterioration of the worker’s condition and the availability of additional relevant information; On receipt of the Medical Assessment Certificate (MAC) the worker attempted suicide and was hospitalised; Panel accepted the fresh evidence and determined that the worker had not reached maximum medical improvement; Held — MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 April 2022 BAE (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Hong, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 21 March 2022.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 availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
· there has been a deterioration of the worker’s condition that results in an increase in the degree of permanent impairment.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. The real issue as we see it is whether or not the worker’s condition has reached maximum medical improvement (MMI) for reasons that will become clear in the body of this decision
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appeal was filed on 14 April 2022.
The MA assessed whole person impairment (WPI) of 9% from which he deducted one-tenth for a pre-existing condition (8% WPI) then added 2% for the effects of treatment, a total of 10% WPI.
The appellant submits as follows:
“After receiving the MAC of Assessor Hong, the appellant’s solicitors discussed the outcome with the appellant. After this, his condition rapidly deteriorated and he appears to have become suicidal. He left a suicide note and disappeared for three days without medication or any form of communication such as a phone…After disappearing for three days, the appellant then returned to Orange and was admitted to Bloomfield Psychiatric Hospital for approximately two weeks in the Adult Acute Psychiatric Ward. He was discharged on 8 April 2022.
The above events indicate that the appellant’s condition has deteriorated such that his whole person impairment has increased. In addition or in the alternative, and in accordance with the views of Glenda Hodge, it is strongly indicated that the appellant’s condition is not stable and in light of this new evidence, it is strongly arguable that he is not at MMI.”
The appellant relied on a report from Ms Glenda Hodge, psychologist dated 8 April 2022.
Ms Hodge said:
“BAE phoned me on 21 March – directly after his interview with Dr Michael Hong. BAE was very upset and angry, he told me that Dr Hong had many facts wrong – and wouldn’t listen when BAE tried to correct him. For example, Dr Hong apparently said to BAE that he (BAE) had been diagnosed with Depression a number of times by his GP between 2013 and 2019 and medicated with anti-depressants. This was based apparently on the GPs medical records… BAE said he had stopped taking antidepressants when he resolved his divorce (around 2009), and did not take any antidepressants again until April 2021 five months into his dispute with his employer…
the . After this phone call he left sms messages with his friends and a letter to his partner. In these communications BAE intimated that he could no longer cope with the stress he had experienced over the past three years…He left his mobile phone, house keys and his diabetic medication (insulin) in the house (together with the letter), took some cash and left on his bike. This was Tuesday 22nd March. The solicitor was so worried about BAE’s state of mind after her phone-call with him that she had immediately phoned the Orange police. The police attended his house to find it empty and unlocked (his partner was at work). They accessed his mobile to contact his partner.
BAE was admitted to Bloomfield Psychiatric Hospital – Adult Acute Ward because of his suicidal state. I spoke to BAE when I visited him there. I also spoke to BAE’s treating psychiatrist. Both the psychiatrist and myself believe that BAE’s psychological state has been declining over the years due to the ongoing stressors of his protracted conflict against his employer. More recently the night-terrors and depression have increased significantly and indicate a deterioration of Post Traumatic Stress. After the interview with Dr Hong, it appears that its conclusions ‘pushed him over the edge’.
The summary of BAE’s psychological condition by Dr Hong as having stabilised and not expected to worsen over the following year was incorrect. BAE subsequently became suicidal, left a suicide note and his insulin and other medications behind and disappeared. On his return (after three days) BAE was placed in Bloomfield Psychiatric Hospital. This indicates to me that contrary to Dr Hong’s assertion, BAE has experienced a significant deterioration in his condition and can no longer be considered ‘stable’ nor having reached ‘maximum medical improvement’. He will require significant psychiatric/psychological intervention for the foreseeable future.”
Clinical notes from the Orange Health Service generally confirmed Ms Hodge’s comments.
The respondent makes some valid submissions regarding this fresh evidence, noting that “any deterioration caused by a worker's perception of a MAC is clearly not compensable and cannot form a ground of appeal under the 1998 Act. If it were, there would simply be no finality to any MAC issued by the Commission.”
The respondent added:
“The issue of ‘deterioration’ in section 327(3)(a) was considered in Riverina WinesPty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 147 (Riverina), where Campbell JA stated at [94] (Hodgson JA and Handley AJA agreeing at [1] and [5]):
‘In my view, “deterioration” that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that he appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.
In the matter of O'Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 at [90] (O'Callaghan), Roche DP relied on the decision of the Court of Appeal in Riverina per Campbell JA at [94], where the following was held: s 327(3)(a) does not allow an appeal in respect of all of the consequences of a work injury. It is confined to its terms and has been subject of binding judicial scrutiny in Aircons and Riverina Wines.’
The appellant concedes that this appeal is brought on the basis that the appellant's injury has been aggravated, or has deteriorated, as a result of psychological stressors related to the contents of the MAC itself.
The Respondent submits that appeal falls into the category of litigation or neurosis.
On the issue of litigation neurosis, it was held in Karathanos v IndustrialWelding Co. Ltd (1973) WCR 79 (Karathanos), applied in Bottle vWieland Consumables Pty Ltd [1999] NSWCC 32 (Bottle): ‘In the field of mental reaction, it seems to me that not all consequences of the injury situation are compensable, in particular, what one might call “straight litigation neurosis”… It is my view that a reaction to the process of pursuing a claim under the Act, which aggravates the incapacity, is not a consequence of the employment injury which is compensable.’
The circumstances in the matter of Bottle is analogous to the present matter. In that proceeding, the appellant's doctor had submitted an opinion that the appellant's relapse of symptoms were due to the distress of litigation. It was held by the Court in response that ‘litigation neurosis is not compensable.’"
Moreover, we note that on 1 November 2021 Ms Hodge wrote: “I support the conclusion of psychiatrist Dr Khan, who wrote that BAE has reached maximum mental improvement.”
The Panel has had regard to the comments of Hoeben J in Petrovic v BC Serv No 14Pty Limited and Ors [2007] NSWSC 1156 where he said:
“‘additional relevant information’ contemplated by section 327(3)(b) means: information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment…
It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b)…
There is another consideration which I have taken into account. If the function of the Registrar under s327 is to be in reality that of a gatekeeper, then statutory declarations such as were sworn in this case should not be regarded as ‘additional relevant information’ for the purposes of s327(3)(b). If they are, it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal."
However, in relation to this decision, the appellant submits:
“(a) The report of Glenda Hodge, the clinical notes from Orange Health Service and the information contained in those two documents, in relation to the hospitalisation of the appellant and his suicidal intent post 21 March 2022, were clearly not available prior to the assessment as those events occurred afterwards.
(b) The above is additional information because, notwithstanding the events of 2009, there is no suggestion in the MAC of any similar type occurrences of diagnosis in the twelve (12) years prior to the MAC.
(c) The additional information is relevant because it goes to whether the Appellant's condition is stable, whether his permanent impairment is fully ascertainable and if it is, the proper assessment of impairment.”
In our view, notwithstanding the respondent’s submissions, we are of the view that the ‘fresh evidence’ sought to be admitted by the appellant falls within the terms of s 328(3) and ought to be admitted.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions which are adequately covered above.
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.
In our view it is not necessary to set out in detail the findings of the MA, given the issues in dispute.
He concluded that, at the time of his assessment, Mr BAE had reached MMI, consistent with the reports of Dr Khan and Ms Hodge relied upon by the appellant. Dr Vickery, for the respondent, it was noted had concluded that Mr BAE had not reached MMI, “as he has not undertaken psychiatric treatment” but as the MA observed: “I think Dr Vickery meant psychiatrist treatment, as he was taking antidepressant medication and having psychological treatment.”
In our view, it is clear that the appellant has not reached MMI.
Although he appears to have responded well to treatment at the Orange Health Service, it seems to us that further evidence will be required in due course to address the issue of MMI.
For these reasons, the MAC issued on 21 March 2022 should be revoked on the basis that MMI has not been reached, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W6041/21 |
Applicant: | BAE |
Respondent: | State of New South Wales (Western New South Wales Local Area Health District) |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Michael Hong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric | 5/12/2019 | Chap 11, p 54-60 | N/A | |||
| Total % WPI (the Combined Table values of all sub-totals) | No MMI Reached | |||||
0
4
0