Baptistcare NSW & Act v Matheson
[2024] NSWPICMP 301
•17 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Baptistcare NSW & ACT v Matheson [2024] NSWPICMP 301 |
| APPELLANT: | Baptistcare NSW & ACT |
| RESPONDENT: | Michele Matheson |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 17 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor (MA) erred in that he failed to take an adequate history regarding the worker’s secondary and other psychological condition and the effects of treatment; that the worker should be examined by a member of the Appeal Panel; a re-examination is required to address the extent of the deduction that should be applied pursuant to section 323 and whether there should be any allowance for the effects of treatment; the Panel agreed; re-examination occurred; the MA’s findings were inconsistent with the evidence; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 October 2023 Baptistcare NSW & ACT (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 18 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 (the 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 s 328 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 MA has assessed the worker as suffering 18% whole person impairment (WPI) as a result of a work injury deemed to have occurred on 13 July 2013, related to a primary injury sustained as a result of bullying and harassment.
As per the Certificate of Determination issued in this matter on 8 June 2023, the parties also agreed the worker suffered a secondary psychological condition resulting from physical injury sustained on 5 June 2012. This Certificate of Determination was provided to the MA as part of the Brief provided by the Personal Injury Commission (Commission).
In addition, the MA took a history of prior psychological symptomology suffered by the worker.
Despite the above, the MA failed to make a deduction for any pre-existing condition pursuant to s 323 of the 1998 Act, or make any reference to the secondary psychological condition in the MAC.
Further to that ground of appeal, the MA has assessed 1% WPI for the effects of treatment, however has provided no comment, rationale or reason for that assessment.
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 the worker should undergo a further medical examination because the Appeal Panel determined that the MA erred in a number of respects, firstly, in failing to make a deduction for any pre-existing condition pursuant to s 323 of the 1998 Act, secondly, in failing to make any reference to the secondary psychological condition, and thirdly, in assessing 1% WPI for the effects of treatment, without providing any comment, rationale or reason for that assessment.
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.
Further medical examination
Dr John Baker of the Appeal Panel conducted an examination of the worker on 19 April 2024 and reported to the Appeal Panel.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that given the MA failed to take an adequate history regarding the worker’s secondary and other psychological condition and the effects of treatment, that the worker should be examined by a member of the Appeal Panel. A re-examination is required to address the extent of the deduction that should be applied pursuant to s 323 of the 1998 Act and whether there should be any allowance for the effects of treatment.
In reply, Michele Matheson (the respondent) concedes that the MA made an error in respect of the Median Class which should be 2.5 rounded up to 3. In addition, the respondent submits that the matter ought to be referred back to the MA to address the issue of the secondary psychological injury and to provide reasons for assessment of 1% WPI in respect of the effects of treatment.
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 appellant was referred to the MA for assessment of WPI in respect of a primary psychological injury on a date of injury of 13 July 2013.
The MA obtained the following history:
“She lives in South Lismore by herself and is in receipt of Centrelink benefits. She reported that after a back injury in June 2012 she was subject to bullying and harassment at work. She reported that she was attacked by a client while cleaning him after he had lost control of his bowels. She engaged in treatment by her GP and the also engaged a psychologist and psychiatrist.”
The MA then noted present treatment and symptoms as follows:
“She sees her psychiatrist every 3-4 months and her psychologist monthly. She takes desvelafaxine (antidepressant) and alprazolam as required generally using 0.5mg 2-3 times a week.
Ongoing low mood, rumination, feelings of anxiety, feelings of hopelessness, poor concentration, occasional suicidality but not for a month with no active plan.”
When asked to provide details of any previous or subsequent accidents, injuries or conditions, the MA said:
“She suffered from anxiety as a child which improved in her teenage years. She had a MVA in 1990 and had some psychological symptoms for a number of months after. She felt depressed after the death of her father in 1988 from pancreatic cancer. Around 12 years ago in the context of marriage breakdown she had anxiety and depressive symptoms and was treated with antidepressants and made a recovery.”
The MA added: “Back injury in 2012 on palexia., asthma on inhalers, hypertension, thyroid issues.”
As regards the appellant’s social activities and activities of daily living, (ADL’s) the MA said:
“Reduction in self care. Sees son in East Lismore 2-3 times a week and helps with the grandchildren including transport. Sees her eldest daughter monthly. Sees her other daughter in the Gold Coast every few months. Decrease in friends. Is able to travel in the local area. Does the shopping approximately once a week. Watches TV, reads and does puzzles.”
Findings on mental state examination were reported as follows:
“Appeared his [sic] stated age. Flat affect. Nil abnormal psychomotor activity. Depressed and anxious mood. Oriented to time, place and person. Speech of normal rate, rhythm, volume and prosody. Nil formal thought disorder. Nil delusions or hallucinations. No thoughts of harm to others. No suicidal ideation today or immediate plan.”
The MA diagnosed “persistent depressive disorder.”
He assessed 18% WPI.
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied “no.”
In reviewing the documentation, the MA said:
“Dr Rowe 10/10/18 WPI 15% + 1% treatment effect = 16%.
Dr Chow 9/3/22 WPI 22% 1% treatment effect = 23%.
Areas of disagreement:
Self-care – there is mild impairment. She is able to live independently but has reduced self care.
Social functioning – I agree with Dr Chow. There is mild impairment. She maintains good relationship with children and grandchildren but has lost friends.
Concentration – I agree with Dr Chow. She has a moderate impairment of concentration and finds it difficult to follow complex instructions.
Adaptation. – I agree with Dr Rowe. While she has a severe impairment she is able to help care for her grandchildren demonstrating some capacity for some reduced work.”
Discussion
As stated earlier, the Appeal Panel agreed with the thrust of the appellant’s submissions, noting particularly that the respondent conceded that the MA failed to address the issue of the secondary psychological injury and to provide reasons for assessment of 1% WPI in respect of the effects of treatment.
We should add here that both parties agreed that the MA erred in respect of the Median Class which should be 3.
For these reasons, the Appeal Panel agreed that a re-examination was required in light of the brevity of the MA’s findings and reasons and the errors referred to above.
Dr Baker of the Appeal Panel examined the respondent on 19 April 2024 and reported to us as follows:
“The applicant attended the assessment alone by MS Teams videoconference. She was assessed while sitting in her lawyer’s video conference room in Lismore, NSW. She travelled a short distance from her home to the lawyer’s office. She was able to travel this distance alone and without support.
Medical Review
The applicant identified as a First Nations person. Her father was indigenous and worked as a sawmill labourer for the local council. He died at age 68, about 30 years ago. The applicant’s mother died about two years ago aged 92 years. She had resolved her grief in relation to her parents passing. The applicant was the fifth child of a 6-sibling family. She reported that she was in regular contact with all her brothers and sisters. She had two brothers aged 71 and 64 years and two elder sisters aged 70 and 65 years with one younger sister aged 61 years. At the time of this assessment the applicant was 62 years of age. The family would gather for Christmas, Easter and birthdays most years. She reported that one of her brother’s suffered from bipolar disorder.
The applicant lived alone in her own home. She said that she had been separated from her husband for many years. She said they remained married but were better living apart. She said that he would assist her regularly and attend her house about two to three times per week to support her with her activities of daily living since the onset of her work-related injuries. The couple married in 1980 and separated in the 1990’s after the first motor accident. They had been married 44 years and had never divorced. In about 2000 the applicant decided to return to the workforce.
The applicant was educated to Year 10 at her local high school in Bonalbo, NSW. This small country town was about 95 km from Tenterfield, NSW in the Northern Rivers region of New South Wales. She said she was a country person who was shy as a child. She said she was supported by her mother to teach her and help her during her childhood, and early motherhood.
The applicant was interested in fashion and design. Her mother taught the applicant seamstress and sewing skills. On leaving school the applicant attended TAFE NSW in Lismore. She completed about 1½ years of a three-year certificate in fashion and design. The applicant later in life completed a TAFE NSW Certificate III in Lismore to work as an assistant in nursing. Prior to the applicant commencing employment with the employer in 2002 this was the applicant’s only employment. The applicant had spent many years as a mother raising her children.
Pre-existing medical history.
The applicant said that she was never exposed to any childhood trauma, abuse or neglect.
The applicant learnt to drive at the age of 17 years.
The applicant did not suffer from any post-natal or pregnancy related psychiatric conditions. She said that her births were normal. The applicant became a mother at 19 years. She had three children currently aged 44, 42, and 40 years. They were all reported as well. She said that she had an extended family with many grandchildren. Her daughter now lives on the Gold Coast, Qld.
The applicant reported that her father died from pancreatic cancer in 1988. She said that she missed her father, as she was close to him. She reported that she had resolved her grief from his death. She said she had a depressed mood that resolved with her normal grief. A depressed mood is part of a normal grief reaction. The applicant said her mother lived to 92 years of age. She said that her mother died about two years ago. She said that she had resolved her mother's death and was accepting that her mother had a long life.
In about 1990, the applicant was a passenger of a motor vehicle driven by her husband with her three children then aged 9, 7 and 5 years in the rear seat. The car was travelling on Tuntable Falls near Nimbin. The car was travelling downhill. The father of her children tried to avoid a collision. The other car hit the driver’s side of the applicant's vehicle. Her knees hit the glove box of the car. The ambulance was called. She was transferred to Lismore base hospital and assessed. She said that she did not receive any psychological or physical treatment. She said that she thought her children would die as the children screamed. She stated she did have symptoms of post-traumatic stress disorder however she did not receive treatment. She continued caring for her children. She considered the motor accident was a contributing factor in the need for separation from her husband. Whilst living a single lifestyle, she would allow her husband to sleep over two nights per week so that he could attend work and help support the children. She said the accident was a long time ago at this review.
The applicant had a second accident in about 2002. She said that she was attending her NSW TAFE course in Lismore to become an assistant in nursing. She said the impact of the collision was minor and that no one was injured. She did not attend medical services in relation to this motor accident. Her car was replaced. Neither motor accidents prevented the applicant from commencing employment with this employer.
The applicant said that she had separated from her husband after the first motor accident in in about 2000. She reported suffering from a depressed mood when thinking about the marriage. She sought psychological help from her medical practitioner. She was prescribed an antidepressant medication. The applicant said that the sadness she suffered due to the nature of her relationship with the father of her children had not prevented her from pursuing a career working for this employer.
The relationship remained separated without prospect of complete reconciliation. The applicant had adapted to her new circumstances and allowed reasonable and mutually agreed access to a spare bedroom and his children when the children were not independent adults.
In 2002 the applicant commenced employment with this employer.
In 2005 the applicant injured her right arm for which she submitted a workers compensation claim. She was treated conservatively and fully recovered.
In 2007 the applicant injured her neck. She was conservatively treated and continued to work in her role as a night assistant in nursing for the employer.
The applicant reported that whilst her daughter was living with her with her grandson, her daughter had applied for an Apprehended Violence Order (AVO). The AVO was to protect the applicant’s daughter and son from the daughter’s partner who was accused of abusing the child. The applicant sought medical assistance as she was distressed by the circumstances her daughter was living in. She said she spoke with her general practitioner in about 2011 when she first knew about the problem and her daughter had sought refuge in her home. The applicant continued to work during this period and whilst she might have had symptoms of ‘anxiety and depression’ she was not impaired by these symptoms in attending her employment.
The applicant reported that she was at work on 4 June 2012, about 12:30 am. She was attending a demented man who had lost control of his bowels. She was with two other AIN’s that shift. They were tasked with care for 70 residents. Whilst the team was attending, the applicant was securing the man’s position by holding his back in place. The man unexpectedly grabbed the applicant’s right arm with both of his hands. When the man rolled away from the applicant, she was pulled on top of the man.
The applicant experienced a sharp pain in her back and right shoulder. She suffered from pain and was frightened by the attack. Whilst the claimant was fearful she was not fearful for her life at the time of the incident.
The description of the attack was not sufficient to meet eligibility for criterion A DSM5TR code F43.10 posttraumatic stress disorder caused by this incident. The applicant told her senior co-worker, a registered nurse, and continued to work the shift. The applicant reported that she had initial pain that has failed to resolve. She found her right arm caused more pain. She was treated conservatively for right side Latissimus Dorsi muscle strain. She shifted most of her heavy lifting to her left arm. She returned to work on restricted duties however she reported she was required to move through the return-to-work plan quickly. The applicant reported that she was required to perform the same duty of stabilising patients whilst they received attendant care and she was initially injured whilst performing this role. She developed ongoing back pain from the physical duties of her role. She subsequently developed a left shoulder bursitis due to overuse of this limb and avoidance of using her right side that was injured initially.
The applicant reported she would be bullied and harassed as she did not recover quickly. She said she would be publicly shamed and taunted by the other staff whilst in restricted duties. She said that she became isolated and depressed in her mood. She noted that she was not improving and she became increasingly fearful and avoidant of not wanting to exacerbate her pain experience.
The applicant reported that her role became redundant as the facility where she was injured was closed. She was aware of the employer owning another facility. She said she applied for transfer to this new facility however her employer did not accept her application. The applicant had not worked since 2013.
Psychological symptoms caused by the primary psychological injury.
The applicant developed a depressed mood, with loss of hope for her future. She was initially able to complete a Certificate IV in assistant in nursing, one level above Certificate III. She suffered from poor sleep and had frequent waking from sleep. She said that this was initially due to pain on rolling over in bed to change position. She developed low energy, fatigue and increased pain. The applicant developed suicidal thoughts without intent. She reported that she felt that life was not worth living and had thought about killing herself.
The applicant was referred to the pain clinic in July 2012. Her condition failed to improve. She was treated by a multidisciplinary team. She was commenced on a low dose of mirtazapine 15mg to assist with depressed mood associated with pain. The dose was titrated with a maximum dose of mirtazapine 45mg at night without the condition entering remission.
The applicant was referred to a psychiatrist in 2016, and she attended in March 2016. The psychiatrist diagnosed the applicant with Bipolar II disorder – mixed episode. Her psychiatrist documented in his report dated 16 March 2016 the following: ‘Hypomania: 2 days ago. [irritable/ insomnia/ racing thoughts/ anger/ few days per year]. I note the list of descriptors recorded are insufficient to meet DSM5TR code F31.81 Bipolar II Disorder criteria for Hypomanic episode. For this reason, I do not concur with the diagnosis.
The applicant was treated for a treatment resistant major depressive disorder with both antipsychotic medication of lurasidone, Rexulti, aripiprazole, quetiapine and antidepressant medication desvenlafaxine 300mg as well as a trial of lithium without resolution of the applicant’s depressive mood disorder. The applicant’s current dose of desvenlafaxine was 4 x 100mg daily.
The applicant’s current symptoms of her depressive mood disorder at the review were:
·Depressed mood for most of the day for more days than not for the last 2 years
·Overeating with excessive weight gain
·Low energy with constant fatigue
·Loss of self-esteem due to intrusive depressive ruminations of being bullied, harassed and abandoned by her employer.
·Poor concentration with difficulty making decisions daily
·Persistent feelings of hopelessness
·Recurrent suicidal thoughts without intent to self-harm
Defining of the secondary psychological injury
The applicant reported that she had constant pain and increased difficulties with her arms, hands and back. The psychological symptoms associated with her secondary psychological injury include:
Increased irritability and frustration due to persistent pain for many years
Fear of exacerbating her pain that had resulted in marked reduction in movement of affected areas.
High levels of anxiety and worry about her pain, health and failure to recover from her injuries.
Excessive preoccupation with her pain experience that had failed to recover despite extensive and prolonged multimodal treatment.
Mental state examination
The applicant presented as an anxious, depressed woman who lacked motivation and interest in the review. She focused on her reports of pain in the affected areas of her body. She spoke in an angry manner. She reported ongoing daily depressed mood, loss of hope, worthlessness and feeling as if her life was pointless.
The applicant was dishevelled and looked older than her stated age. The applicant struggled to answer to specific questions. She required prompting to stay on topic. Her concentration was poor. Her concentration would fatigue rapidly. She did not report ever suffering from a hypomanic or manic episode. She did not report suffering from a psychotic episode. She reported having witnessed these states in her brother when he was ill. She felt low in her energy. The applicant was insightful into her condition. Her judgment was normal. She reported no suicidal thoughts at the assessment.
The applicant did not demonstrate overt pain behaviours during the review. The applicant reported experiencing pain in her hands, arms and back during the review.
The applicant became tearful and reported depressed mood whilst recalling her co-workers taunting her with angry verbal threats, ‘Why is she here? She should be sacked.’ She said she had no hope for her future career.
Consistency of presentation
The applicant’s consistency of presentation was similar to the applicant’s presentation with Assessor Chew. The applicant did not demonstrate any overt pain behaviours. The applicant did speak about pain affecting her arms, hands and back. The applicant’s presentation was similar with other medical assessors.
Assessment of Impairment
The following assessment of function have been divided into pre-existing functioning followed by functioning due to the primary psychological injury. The assessment of secondary injury will follow after the completion of the assessment for pre-existing condition and treatment effects.
Pre-existing condition of posttraumatic stress disorder caused by first motor accident
Self-care and personal hygiene
The applicant was independent in her self-care and personal hygiene prior to the onset of this primary psychological injury. She was able to maintain and care for her children successfully during their development and adult independence. The applicant was able to maintain her personal hygiene. She was able to purchase groceries, cook meals and launder her clothes as well as clean and maintain her house as a single mother.
Social and recreational activities
The applicant was able to participate in her son’s production car racing. She would work as her son’s spotter. She would keep focus on the position he held on each lap completion. She would report this data back to him so that he could improve his performance and develop strategies to beat identified racing opponents. The applicant enjoyed celebrating birthdays, Christmas and Easter with her family and extended family members. She was interested in socialising with her friendship circle and she enjoyed attending her workplace for many years prior to the onset of this primary psychological injury.
Travel
The applicant was able to travel between her home and her daughter’s home on the Gold Coast prior to the onset of this primary psychological injury. The applicant was able to continue driving after having one serious, and a second minor, motor accident. She was cautious driving but not avoidant of travelling after the first motor accident. She did not stop travelling after the second motor accident, as she utilised public transport to complete her studies prior to commencing her employment with the employer.
Social functioning
The applicant reported that her relationship with the father of her children was impaired after the first motor accident. She said the relationship grew apart. They separated but were never ‘officially divorced’. The applicant reported that she did have difficulties with the marital relationship after the onset of her ‘single lifestyle’. She said she had encouraged her children to have contact with their father. He would sleep over and go to his employment about two days per week.
Concentration, persistence and pace
The applicant was able to continue her education and return to the work force after having two motor accidents. She was able to study and continue to study, with her completing the necessary education to commence her career.
Employability
The applicant was not impaired in her employability. The applicant was able to find employment and continue her role for many years after having experienced two motor accidents.
Primary psychological injury of Persistent depressive disorder
Self-care and personal hygiene.
The applicant was capable of living independently since the onset of this primary psychological injury. The applicant did not have community services attending to maintain her self-care or personal hygiene. The applicant’s husband did provide care for the outside of the house. The applicant’s husband did provide assistance with cleaning bathrooms and attending the garden.
Social and Recreational activities.
The applicant could no longer attend her son’s race meetings. She could not participate in the racing as she had prior to the onset of the primary psychological injury. The applicant was fearful of people asking her questions about her life since the onset of this primary psychological injury. The applicant did not participate in social events such as her adult children or grandchildren’s birthdays if they were not cohabiting with her at the time. She had stopped participating in Christmas and Easter events with extended family.
Travel
The applicant was more restricted in travel. She was able to travel from her home to the lawyer’s office for this assessment. She was able to travel in her local and familiar areas. The applicant was able to leave her house to purchase groceries as the location of the shops were close and she could attend when she expected less people being present in the centre during her attendance. She would not travel to unfamiliar places alone.
Social functioning.
The applicant’s relationship with her husband was unaffected by the primary psychological injury. The applicant’s husband attended the house and the primary psychological injury had not affected the loss of intimacy in the relationship many years ago. The applicant had tension in her relationship with her adult children and extended family members who were frustrated and distressed that the applicant had not recovered from her primary psychological injury.
Concentration, persistence and pace
The applicant’s concentration, persistence and pace had been variable during the last 11 years since the onset of the injury. She had initially been able to upgrade her Certificate III into a Certificate IV. The applicant at the time of this assessment would not be able to concentrate and persist for periods required for her to retrain of reskill. She had a short duration of concentration. She was slow in her thoughts. She required prompting to remain on topic. She had intrusive depressive ruminations that interfered with her capacity to sustain more than a few minutes of concentration prior to needing a break. Progress through the review was slow.
Employability
The applicant was on Jobseeker Allowance. She was required to apply for one job per month. She would use the app her jobseeker provider gave her to use on her mobile phone. She had no offers of employment since the employer made her redundant in 2013. The applicant had depressive themes of hopelessness, worthlessness and loss of motivation to comply with Australian Government Centrelink requirements. She often required the assistance of her jobseeker case worker to prompt her to apply and assist with the app.
Whilst the applicant has assisted with care of her grandchildren at times of need, she would not be reliable enough to be trusted by an employer to perform the demanding role of pre-school childcare.
Assessment of pre-existing impairment
The original whole person impairment is 17%.
The deduction for pre-existing impairment is no more than one tenth of the whole person impairment score of 17%. After apportionment of one tenth of 17% the whole person impairment is 17 minus 1.5 equals 15.5%.
The treatment effects for the primary psychological injury have not altered the capacity for the applicant to live independently in the community. The treatment effects have not resulted in the applicant returning to the workforce in any lesser role. The long-term treatment of the applicant has not resulted in apparent substantial or total elimination of the applicant’s permanent impairment. The withdrawal of treatment would unlikely cause any change to the original degree of impairment. For this reason, the applicant’s effect for treatment is nil.
Assessment of Secondary psychological injury.
Both parties agree that the applicant does suffer from a secondary psychological injury. The secondary psychological injury is caused by her physical injury sustained in 2012.
The secondary psychological injury is definable by the persistent experience of pain as well as the psychological symptoms of fear of exacerbation of pain. The applicant reported that ‘all of her job applications fail’ as she is not allowed to lift more than 7 – 10 kg in weight. She said she becomes anxious, agitated and distressed every time she applies as ‘no-one ever responds’ to her application. She said, ‘it’s like I don’t exist’, ‘I’m worthless’.
The applicant continues to experience irritability and frustration due to many years of persistent pain. She experienced her pain with high levels of anxiety and worry about her pain, health and failure to recover from her injuries. She remained excessively preoccupied with her pain experience that had failed to recover despite extensive and prolonged multimodal treatment.
The apportionment of the applicant’s secondary psychological injury is related to the physical injury sustained by the applicant in 2012. The psychological contribution of the applicant’s secondary psychological injury is less than 1/6 of 15.5% WPI. The reason for this is that the contribution to whole person impairment is markedly attributable to the loss of employability. Should the applicant gain employment then most of her psychological symptoms of high anxiety, agitation and distress regardless of pain would be markedly reduced. She was able to continue to work in restricted employment prior to the onset of the primary psychological injury, whilst her secondary psychological injury had commenced with the onset of pain in an unaccommodating work environment.
A further 2.5% WPI impairment for secondary injury would result in a final whole person impairment of 13% WPI.
i.e. 17% - 1.5% for pre-existing condition= 15% current WPI.
15% - 2.5% (1/6 of WPI) = 12.5% WPI (rounded up = 13%).
The final whole person impairment is 13% WPI.
The Panel note that reversing the order of the deductions for pre-existing condition and secondary injury does not change the final WPI.
An explanation of my calculations and reasons for assessment
The contribution to whole person impairment caused by the deaths of the applicant’s father prior to the onset of this primary psychological injury was less than negligible. The reason for this finding is that the applicant was able to continue in her role as mother of three children, successfully raise her children without outside community services and study to work as an assistant in nursing.
The contribution to whole person impairment caused by the death of her mother two years prior to the review was less than negligible. The reason for this finding is that the applicant’s functioning had not significantly changed with the death of her mother. The applicant was aware of her mother’s declining health due to cancer. She had resolved her normal grief prior to the review.
The contribution to whole person impairment caused by the motor accidents prior to the onset of this primary psychological injury was small. Neither motor accident prevented the applicant from continuing to drive, to study and continuing her career for many years ahead.
The separation after the first motor accident had more than a negligible contribution to the separation in the marriage
The contribution of the pre-existing condition posttraumatic stress disorder caused by the first motor accident is difficult to fully assess. The contribution of this condition to the claimant’s primary psychological injury would be less than one tenth of the assessed whole person impairment.”
The appellant did not challenge the impairment assessments made by the MA.
The Appeal Panel agrees with the comprehensive examination report and the findings and reasons stated by Dr Baker.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2360/23 |
Applicant: | Michele Matheson |
Respondent: | Baptistcare NSW & ACT |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Gerald Chew 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.Psychological | 13 July 2013 | Chapter 11 p 54-60 | Chapter 14 | 17% | 4% | 13% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
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