Barnett v Ingenia Communities Holdings Ltd

[2024] NSWPIC 72

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Barnett v Ingenia Communities Holdings Ltd [2024] NSWPIC 72

APPLICANT:

Tracy Barnett

RESPONDENT:

Ingenia Communities Holdings Ltd

PRINCIPAL MEMBER:

John Harris

DATE OF DECISION:

20 February 2024

CATCHWORDS:

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the applicant suffered psychological injury in 2015; assessed by Medical Assessor in 2016 as having 8% permanent impairment; appeal to an Appeal Panel was dismissed; application to Appeal Panel to reconsider its decision pursuant to section 378; section 378 repealed on 1 March 2021; discussion of unexercised rights in schedule 1 clause 14D of the Personal Injury Commission Act 2020; Dimos v Gordian Runoff Pty Ltd discussed and applied; applicant’s evidence prior to the establishment day (1 March 2021) analysed; findings made that applicant established prima facie deterioration of assessable impairment under Psychiatric Impairment Rating Scale categories of social and recreational activities and social functioning deterioration; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales applied; finding of class 3 for social functioning would significantly increase assessable impairment; applicant did not satisfy onus of proof as at the establishment day that impairment was permanent; both treating psychiatrist and psychologist recommended in February 2021 that the applicant be hospitalised and otherwise undergo further counselling; likely inference is that treatment would be somewhat successful; applicant did not satisfy onus of proof that impairment was permanent; Held – application to have Appeal Panel reconsider Medical Assessment Certificate refused.

DETERMINATIONS MADE:

The Commission orders:

1.   The application to relist the matter to enable the Appeal Panel to reconsider its determination is refused.

2.   The application to rescind the Certificate of Determination dated 25 January 2017 is refused.

STATEMENT OF REASONS

BACKGROUND

1. These proceedings have an extended history. In this application Ms Tracy Barnett (the applicant) seeks leave to rescind the Certificate of Determination dated 25 January 2017 (COD)[1] to enable the Medical Appeal Panel to reconsider its decision dated 22 December 2016 (MAP).[2]

   [1] Application, p 11.

   [2] Application, p 102.

2. The applicant alleged that she suffered psychological injury deemed to have occurred on 27 September 2015. Ingenia Communities Holdings Ltd (the respondent) did not dispute that the applicant sustained psychological injury.

3. The applicant was initially assessed by Dr Rees who issued a Medical Assessment Certificate dated 25 August 2016 (MAC). The applicant was then diagnosed with an aggravation of Major Depression.[3]

   [3] Application, p 99.

4. The MAC assessed Ms Barnett as having an 8% permanent impairment after a one-tenth deduction pursuant to s 323 of the Workplace Injury Management & Workers Compensation Act, 1998 (the 1998 Act).[4] Ms Barnett was assessed under the psychiatric impairment rating scale (PIRS) categories as follows:

   ·        Self care and personal hygiene – 2;

   ·        Social and recreational activities – 3;

   ·        Travel – 2;

   ·        Social functioning – 2;

   ·        Concentration, persistence and pace – 2, and

   ·        Employability – 5.

   [4] Application, p 65.

5. The appeal to the Medical Appeal Panel was dismissed (MAP).[5] The COD was then issued giving effect to the MAC and the MAP.

   [5] Application, p 102.

THE BASIS OF THE APPLICATION

1. On 2 November 2023 the applicant filed an application to reconsider the COD to pursue an appeal against the MAC based on deterioration pursuant to s 327(3)(a) of the 1998 Act.

2. The matter was listed for telephone conference on 23 November 2023 when the parties were referred to the decision of the Court of Appeal in Sleiman v Gadalla Pty Ltd.[6] Leave was then granted to file an amended application.

   [6] [2021] NSWCA 236 (Sleiman).

3. The amended application sought alternative relief pursuant to s 57 of the Personal Injury Commission Act, 2020 (the PIC Act) that the COD be rescinded to enable the Appeal Panel to reconsider its decision.

Hearing

1. At the arbitration hearing on 14 February 2024 Mr Perry of counsel appeared for the applicant and Ms Warren of counsel appeared for the respondent. The following documents were admitted by consent:

   (a)Application for reconsideration and attachments (Application);

   (b)Amended Application; and

   (c)Response to reconsideration and attachments.

2. There was no application to call oral evidence. The parties made oral submissions which have been recorded and referenced later in these Reasons.

REASONS

1. Section 378 of the1998 Act previously provided that an Appeal Panel may “reconsider any matter that has been dealt with” by the Appeal Panel. That section was repealed on 1 March 2021.[7]

   [7] Sch 6, cl 6.11 of the Personal Injury Commission Act 2020 (PIC Act).

2. Various rights that were repealed by the PIC Act were saved by the transitional provisions. Specifically, the applicant relies on cl 14D of Sch 1 of the PIC Act which refers to an unexercised right to commence non-court proceedings. By virtue of that provision, the applicant requests the Appeal Panel reconsider its decision under s 378 of the 1998 Act.

3. An unexercised right is defined in cl 14A to mean a right, including a right exercisable only with leave or other permission, that:

   (a)    was available to be exercised immediately before the establishment day, and

   (b)    had not yet been exercised before that day.

4. The establishment day is 1 March 2021.[8]

   [8] Section 6 of the PIC Act.

5. Clause 14D relevantly provides:

“14D UNEXERCISED RIGHTS TO COMMENCE NON-COURT PROCEEDINGS

(1)    This clause applies in relation to an unexercised right to commence pre-establishment proceedings before an original decision-maker other than a court.

(2)    A person who has the unexercised right to commence proceedings may commence the proceedings with the new decision-maker for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates.”

1. A right to have the Appeal Panel reconsider its decision falls within the meaning of “Pre-establishment proceedings”.[9]

   [9] Sch1, cl 14 of the PIC Act.

2. The parties accepted that Dimos v Gordian Runoff Ltd[10] (Is footnote required here to provide full citation below of [2023] NSWSC 1151?) was correctly decided and applies to the meaning of “unexercised right” to commence non-court proceedings within the meaning of cl 14D of Sch 1 of the PIC Act.

   [10] [2023] NSWSC 1151 (Dimos).

3. The parties also accepted that the effect of Dimos was accurately stated in Baker v Southern Metropolitan Cemeteries Trust[11] when I stated (citations omitted):

   [11] [2023] NSWPIC 593 (Baker).

   “21.   At the hearing the parties agreed that I would apply the principles discussed in Dimos to the meaning of ‘unexercised right’ in cl 14D, specifically that the only documentation relevant to the determination of whether the applicant had an unexercised right was that material available to the parties prior to 1 March 2021.

   22.   The applicant’s subsequent submissions varied from that presented at the hearing. Accordingly, prior to addressing the applicant’s subsequent submissions, it is necessary to articulate what was decided in Dimos.

   23.   In Dimos the unexercised right was the making of a further application by the insurer under s 62 of the Motor Accidents Injuries Act 1999 (1999 Act) based on ‘additional relevant information’. The insurer asserted the right (not the claimant) because it alleged that the additional information meant that the impairment should be reassessed in light of the additional material and assessed below the threshold.

   24.   Prior to the commencement of the PIC Act, the delegate was obliged to give reasons for accepting an application to allow a further application pursuant to s 62 of the 1999 Act. The issue of whether there was an ‘unexercised right’ concerned the obligation of the delegate to provide reasons in circumstances were that obligation did not arise after 1 March 2021.

   25.   The Court articulated three constructions advanced by the parties as to when an unexercised right was available. Those constructions were:

   ‘(a) First, the right in s 62 is an ‘unexercised right’ to refer a matter for further medical review that is ‘available to be exercised’ once a medical certificate has been issued under s 61...

   (b) Second, the word ‘may’ in cl 14D is to be construed permissively such that cl 14D only applies if the moving party chooses to make an application for an exercise of a function as an ‘unexercised right’...

   (c) Third, the right in s 62 is only ‘available to be exercised’ in circumstances where the facts underlying an application for referral existed prior to 1 March 2021 and those facts were ‘available’ to the party.’

   26.   Construction (b) was subsequently withdrawn by the insurer and the Court noted that this construction did ‘not reflect the operation of the statutory scheme’.

   27.   The Court then noted that an unexercised right was defined as being ‘exercised immediately before the establishment day’ and, in the context of s 62 of the 1999 Act fell within the definition of unexercised right if:

   ‘That will be the case when before the establishment date of the 2020 Act:

   (1) there had been a medical assessment under the 1999 Act;

   (2) the injury had either later deteriorated or additional relevant information about it existed and thus a s 62 application was available to be made; but

   (3) no such application had been made.’

   28.   The Court stated:

   ‘It is only when all three requirements are met that a s 62 right will be an ‘unexercised right’ to which cl 14D applies. It will fall to the applicant to establish this, as well as on the s 62 application, that what is relied on is ‘capable of having a material effect on the outcome of the previous assessment.’.

   29.   Later her Honour stated:

   ‘In the case of a s 62 application, for example, there may in some cases be a dispute about whether cl 14D applies. That depends on the existence of either a deterioration in the injury or additional relevant information before the establishment date. In the event of dispute, that will be a matter for the President to determine, that affecting as it does the regime under which the application must be decided.

   The resolution of such a dispute is necessarily separate from the determination of the s 62 application itself. It also requiring the applicant to establish that the deterioration or additional information is ‘capable of having a material effect on the outcome of the previous assessment.’.

   30.   Further the Court concluded:

   ‘I am satisfied that as was also Ms Dimos’ case, it must be accepted that the insurer’s s 62 application fell within the definition of unexercised rights. That is because:

   (1) it was agreed at the hearing that the disputed 2014 clinical records had been in the insurer’s hands since 2018, even before the 2020 assessment of the parties’ medical dispute;

   (2) its s 62 application had thus been available to be made before the establishment day, despite the insurer not having put the information which those records contained before the assessor, as it could have; and

   (3) its application was only made in 2022, after the 2020 Act came into operation.’

   31.   I interpret from these paragraphs that the Court accepted the third construction set out at [25], that is that the right is only available to be exercised ‘when the facts underlying an application for referral existed prior to 1 March 2021 and those facts were available to the party’. Clearly the Court did not accept the first construction as it did not state in the various paragraphs that the unexercised right solely arose following the issuing of the previous medical assessment certificate.”

4. The applicant accepted that she bore the onus of proof for the purposes of establishing that she had an unexercised right and establishing that the discretion should be exercised to rescind the COD.

5. The applicant submitted that the evidence prior to 1 March 2021 established that she had an unexercised right to request the Appeal Panel to reconsider its decision based on the deterioration of permanent impairment.

Evidence relied upon by the applicant

1. On 14 June 2019 the applicant attended the outpatient clinic at St John of God Hospital. Ms Misra, psychologist reported:[12]

   “Ms. Barnett reported symptoms of depression and anxiety. She stated that she had felt hopeless and teary. She reported withdrawing from social interactions and withdrawing into herself. She stated that she constantly felt exhausted and tired. She reported having poor concentration and memory and stated that her head hurts and she couldn’t think.”

   [12] Application, p 185.

2. The applicant was administered the Beck depression inventory test and the scores indicated severe levels of depression. Ms Misra concluded:[13]

   “It would appear from Ms Barnett’s verbal report and presentation that she is experiencing symptoms of depression and anxiety due to work-related experiences that have recently resurfaced.”

   [13] Application, p 186.

3. On 22 August 2019 Dr Selwyn Smith, psychiatrist noted the applicant was prescribed Efexor (450mg per day), Ativan (1mg per day) and Seroquel (50mg per day) for her major depression caused by the work injury. The doctor opined:[14]

   “The medication does assist her and I am unable to advise you when it should be ceased. It is my opinion that if it is currently ceased she will regress.”

   [14] Application, p 189.

4. On 18 January 2021 Dr Smith certified the applicant with no current work capacity.[15]

   [15] Application, p 206.

5. On 15 February 2021 Dr Smith noted that the applicant’s depressive disorder was not responding to the medication regime.[16] The doctor stated:

   “In the light of her deteriorated Major Depressive Disorder with marked impairments in her activities of daily living and an inability to undertake any work it would be my recommendation that Tracey undergo a program of TMS (transcranial magnetic stimulation) at St John of God Hospital Burwood.”

   [16] Application, p 209.

6. On 17 February 2021 Ms Helen Austen, psychologist completed an Allied Health Recovery Request. It is necessary to set out substantial portions of this report given the detail of submissions on this document.

7. Ms Austen diagnosed the applicant with “PTSD – Mixed Mood Anxiety and Depression.” The report included a number of signs and symptoms which included:

   -      severe depression;

   -      severe anxiety and panic;

   -      hypervigilance;

   -      fearful;

   -      teary;

   -      hopelessness/helplessness;

   -      loss of confidence;

   -      loss of self-esteem;

   -      loss of joy of any activity;

   -      relationship issues;

   -      withdrawal of all social activities;

   -      nil social or friend support, and

   -      nil social activity.

8. In respect of the current capacity at home, Ms Austen reported:

   “Tracy is independent with self-care tasks. When she is not required to leave the house, Tracey does not shower of (sic) self-groom/care. Tracy drops her youngest child to child-care 3 days per week. Her eldest children are now independent but living with Tracy and her husband.”

9. The current capacity for travel was described as:

   “Tracy drives locally ie: to drop her child to daycare and to the chemist and shops when required. Nil public transport and reliant on husband where she can.”

10. In respect of treatment recommendations, Ms Austen noted:

    “Tracy has had a very poor/negative response to medication with significant side-effects. Dr Smith has recently recommended transcranial magnetic stimulation (TMS) which is a non-invasive procedure that uses magnetic fields to stimulate nerve cells in the brain to improve symptoms of depression. This has been used typically when other treatments have not been effective.

    Attempts have been made to start to plan future vocational activities via volunteer work however Tracy’s symptoms have recently exacerbated to the point where she is only leaving the home for appointments and drop her daughter to daycare and to attend the chemist and shops. Tracy needs to be involved in a group type program, and a day program may be beneficial for Tracy’s recovery via St John of God.”

11. The report then contained a “recovery plan” with a request for funding of eight consultations. The psychologist provided a rationale for the requested services.

12. On 16 April 2021 Dr Smith noted the applicant’s tearful, agitated and depressed state and “unfortunately the 20 TMS treatments Tracy underwent at St John of God Hospital did not ameliorate her Major Depressive Disorder.”[17] On 21 April 2021 Dr Smith recommended the applicant be readmitted to hospital with a view to undergoing a program of electroconvulsive therapy in light of her major depressive disorder.[18]

    [17] Application, p 219.

    [18] Application, p 220.

13. The applicant was admitted to hospital on 22 April 2021 and discharged on 30 April 2021. The discharge record noted depressive symptoms worsening over the past 12 months and a failed response to a recent course of TMS.[19]

    [19] Application, p 221.

14. In a report dated 2 June 2022, Dr Robert Gertler, psychiatrist opined that the applicant suffered from a chronic major depressive disorder.[20] In a supplementary report dated 1 December 2022 Dr Gertler assessed the applicant at 42% permanent impairment after making a one-tenth deduction.[21]

    [20] Application, p 134.

    [21] Application, p 151.

15. The respondent faintly pressed the opinion expressed by Dr Graham Vickery in early 2022 that the deterioration was based on subsequent causes.[22]

    [22] Application, p 110.

16. I note two matters concerning this evidence. First, Dr Vickery’s opinion has no bearing on whether the applicant has established an unexercised right as at 1 March 2021. Secondly, the opinion fails to consider common law principles of causation as discussed in Secretary, New South Wales Department of Education v Johnson,[23] Ozcan v Macarthur Disability Services Ltd[24] and State Government Insurance Office v Oakley.[25] Particularly, Dr Vickery failed to consider whether the work injury materially contributed to the applicant’s psychological condition in 2021 and 2022.

    [23] [2019] NSWCA 321.

    [24] [2021] NSWCA 56.

    [25] (1990) 10 MVR 570.

Application of principles

1. There was clear evidence from both Dr Smith and Ms Austen in February 2021 that the applicant’s condition as at February 2021, was caused by her work injury.

2. I also accept that the reports in February 2021, particularly when contrasted with previous reports, show a deterioration in symptoms. This deterioration is clear from the concerns expressed by Dr Smith and Ms Austen at the time who both noted significant symptoms[26]   and recommended further treatment.

   [26] See Application, p 209 (Dr Smith) and p 211 (Ms Austen).

3. I otherwise note that there was a tendency by the applicant to equate psychological symptoms with the behavioural consequences of those symptoms. The distinction is discussed later in these Reasons.

4. The essential issue is whether, consistent with the principles discussed in Dimos, the applicant has established that she had an unexercised right to request the Appal Panel to reconsider its assessment as at 1 March 2021 due to the deterioration in the applicant’s permanent impairment.

5. The question of what amounts to “deterioration”  in the context of the degree of impairment was discussed by Campbell JA in Riverina WinesPty Ltd v Workers Compensation Commission of New South Wales[27] when his Honour stated:[28]

   “‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘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 the 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.”

   [27] [2007] NSWCA 149 (Riverina Wines).

   [28] At [94], Hodgson JA agreeing at [1].

1. The assessment of permanent impairment of psychiatric and psychological disorders is contained in Chapter 11 of the NSW workers compensation guidelines for the evaluation of permanent impairment (fourth edition guidelines).

2. The assessment of impairment is based on the behavioural consequences of psychiatric disorder under six scales known as the PIRS. These PIRS are set out earlier in these Reasons. Each PIRS contains classes ranging from 1 to 5 in accordance with the severity of the behavioural consequences.

3. The impairment assessment is based on the determination of the median class score and the calculation of the aggregate score of the PIRS. The median score is the score between the third and fourth of the six scores. If that score falls between two classes, then it is rounded up.[29]

   [29] Clause 11.14 of the fourth edition guidelines.

4. For example, the classes of the PIRS categories following the assessment by Dr Rees, ranking lowest to highest were:

   2, 2, 2, 2, 3 and 5.

5. These scores produced a median score of 2.

6. The relevance is that if the applicant scored a class 3 in respect of any of the PIRS which were previously assessed at class 2, then the median score is between 2 and 3 and rounded up to 3. Using the conversion table[30] the permanent impairment assessment would be 19% less any deduction for pre-existing impairment.

   [30] Clause 11.20 of the fourth edition guidelines.

7. During submissions the parties requested that I consider the classes under the PIRS categories in chapter 11 of the fourth edition guidelines when analysing the evidence and determining the appropriate class at least on a prima facie level. 

8. The applicant emphasised the opinion expressed by Dr Gertler because it submitted, if the nature of symptoms and signs were in existence in February 2021, then Dr Gertler’s subsequent opinion shows that the applicant could be assessed as a higher class under a particular PIRS category.

9. The difficultly with this submission is that portions of the history taken by Dr Gertler did not accord with the brief comments contained in the reports pre-dating the establishment date.

10. I note one other matter evident from the various classes of the PIRS categories. The PIRS examines the behavioural consequences of psychiatric disorder.[31] There was a tendency in the applicant’s submission to use the symptoms recorded by health practitioners as establishing a particular class under a PIRS category. The discussion below shows that in many instances, general symptoms such as those described by Ms Austen do not provide the detail for assessing a particular class.

    [31] Cl 11.11 of the fourth edition guidelines.

11. The applicant initially submitted that there was a prima facie deterioration of self care and personal hygiene. Dr Rees had previously assessed the applicant as class 2 for this PIRS category. That submission was withdrawn noting that Ms Austen reported the applicant as “independent with self-care tasks”.

12. The applicant was assessed as class 3 in the MAC for social and recreational activities.

13. The class 3 rating for this PIRS category provides:

    “Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”

14. Class 4 provides:

    “Severe impairment: Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.”

15. Ms Austen noted several symptoms which supported a deterioration of this category. They included “loss of joy of any activity”, “withdrawal of all social activities” and “nil social activity”.

16. The applicant relied on Dr Gertler’s subsequent report as evidencing the position as at 1 March 2021. Dr Gertler provided a rating of class 4 for this PIRS.

17. I agree that the comments by Ms Austen suggest that the applicant could be assessed as class 4. However, such a finding by itself would not change the median class which would remain at class 2[32] and the aggregate score at 17 with the impairment remaining at 9%.[33]

    [32] See 4^th edition guidelines, p 59.

    [33] See 4^th edition guidelines, p 58.

18. The applicant was assessed in the MAC as class 2 for social functioning with no reported loss of friendships.

19. In February 2021 Ms Austen noted “relationship issues” without further clarification.

20. A rating of class 2 under this PIRS refers to “loss of some friendships”.

21. A rating of class 3 for social functioning applies when:

    “Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”

22. Dr Gertler assessed social functioning at class 3. The information set out by Dr Gertler of severe strain in the marriage with comments which are unnecessary to repeat[34] were not described by Ms Austen.

    [34] Application, p 151.

23. Ms Austin also noted no friend or social support. Whilst not specific, that indicates a loss of friendships.

24. An assessment of class 3 under social functioning based on the material as at 1 March 2021 is far from clear because Ms Austen has not provided particular information pertaining to the PIRS category, That is not meant as a criticism because the report was provided for other purposes such as a request for treatment and was not an assessment of the various PIRS categories.

25. The applicant’s position that Dr Gertler’s report in November 2022 represented the position in February 2021 is rejected because of the absence of detail in February 2021 when contrasted with the specific detail in Dr Gertler’s report.

26. However, both class 2 and class 4 of this PIRS refer to loss of friendships. Accordingly, the PIRS is also related to friendships outside the immediate family. With some reservations, I accept that the brief detail recorded by Ms Austen indicates, on a prima facie level that the claimant had lost all friends and a class 3 rating is open on the material in existence in February 2021.

27. For the reasons expressed earlier I agree with the applicant’s submission that a change from a class 2 to class 3 means that the median class is changed to a class 3[35] and the impairment would be assessed at 19%.[36]

    [35] See 4^th edition guidelines, p 59.

    [36] See 4^th edition guidelines, p 58.

28. The claimant was initially assessed as class 2 for travel. The applicant’s submission was that this deterioration was evidenced by the observations of Ms Austen in her report dated 17 February 2021. An assessment of class 3 for travel applies when the person “Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”

29. In February 2021 Ms Austen noted that the applicant “drives locally” such as taking her child to day care and attending the chemist and shops.

30. The applicant emphasised the opinion of Dr Gertler which was provided some twenty months later. Dr Gertler then opined that the applicant was class 3 because she could only leave home if accompanied, usually by her husband. This was not the history obtained by Ms Austen in February 2021.

31. I agree with Ms Warren’s submission that the history recorded by Ms Austen supports a class 2 rating and does not provide a basis for concluding a class 3 assessment for the PIRS category of travel.

32. This is otherwise a clear example of why the applicant’s submission that Dr Gertler’s opinion represented the position recorded in the material prior to 1 March 2021 is not accepted.

33. The applicant also relied on a deterioration in concentration, persistence and pace. The applicant was assessed by Dr Rees as class 2 and relied on the observations of Ms Misra in 2019 and the general observations of Ms Austen in February 2021.

34. Class 3 of the PIRS category of concentration, persistence and pace provides:

    “Moderate impairment: Unable to read more than newspaper’s articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”

35. The reference by Ms Misra at St John of God Hospital in 2019 that the applicant had “poor concentration and memory” does not describe the behavioural effect(s) of the poor concentration and memory. The comments of Ms Austen in February 2017 do not assist as to the behavioural effects of poor memory and concentration which is required under a proper analysis of that PIRS.

36. I agree with the respondent’s submission that the material prior to the establishment date does not show a prima facie case under this PIRS category.

37. I accept that as at the pre-establishment date, the applicant had established a prima facie case showing deterioration for social and recreational activities which did not affect the overall impairment, and deterioration for social functioning which significantly increased the impairment. The later conclusion was expressed earlier in these Reasons “with some reservations” and noting that the applicant bears the onus of proof.

Permanent

1. I do not accept that the applicant has shown an arguable basis that the assessable impairment of the psychiatric condition immediately prior to 1 March 2021 was “permanent”.

2. In February 2021 the treating psychiatrist recommended that the applicant undergo transcranial magnetic stimulation and the treating psychologist recommended further counselling.

3. There is no opinion as at 1 March 2021 that the impairment was “permanent”.

4. The applicant submitted that it had established a prima facie case for permanency because:

   -      it was retrospectively established by the failure of the treatment;

   -      in 2019 it was opined by Dr Smith that the applicant was dependent on medication for functionality and in 2021 stated that the level of medication did not maintain stability, and

   -      references were made to the level of the applicant’s symptoms such as those reported by Ms Misra in June 2019 which reported “poor concentration and memory”.

5. Clause 1.15 of the fourth edition guidelines provides:

   “Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained  maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and unlikely to change substantially in the next year with or without medical treatment.”

6. Permanent impairment is also described in clause 11.7 of the fourth edition guidelines and regard is had to:

   -      the duration of impairment

   -      the likelihood of improvement in the injured worker’s condition

   -      whether the injured worker has undertaken reasonable rehabilitative treatment

   -      any other relevant matters.

7. The respondent submitted that in February 2021 the treating psychiatrist and psychologist recommended that the applicant undertake transcranial magnetic simulation and further psychological counselling. It submitted that in light of that evidence it could not be concluded that any impairment based on an assessment of the PIRS categories was permanent at that time.

8. The applicant did not refer to any specific evidence that the impairment was “permanent” as defined in the fourth edition guidelines as at 1 March 2021. That the treatment was subsequently unsuccessful cannot logically show that, when it was recommended, it would likely fail. The applicant’s submission relied on the very evidence that the principle in Dimos stated cannot be considered, that is evidence in existence after the relevant date.

9. It is more likely that the Dr Smith would not recommend the treatment unless he thought that it may be successful. That conclusion is consistent with the observation of Ms Austen that:[37]

   “This has been used typically when other treatments have not been effective.”

   [37] Application, p 212.

10. As a matter of logic and commonsense, the recommendation by a treating specialist that a patient be hospitalised for treatment would only be made because there was an intention that there would be an overall improvement in symptomatology and the applicant’s behaviour.  

11. The applicant otherwise relied on the deterioration of symptoms and that the medication at the relevant date was not successful. I accept that the evidence shows that the level of medication was no longer effective in circumstances where there was a clear report of a deterioration of symptoms. Indeed, that would appear to be the reason why Dr Smith recommended that the applicant be hospitalised for treatment.

12. However, the evidence is that that the treating psychiatrist wanted the applicant to undergo treatment and the treating psychiatrist was recommending counselling. The applicant’s submission that the medication was no longer effective is not a response to the treatment proposed by Dr Smith and is not a response that the applicant’s condition at that time was permanent.

13. The respondent otherwise referred to the request by Ms Austen that the applicant undergo counselling over eight sessions.[38] The explanation for the proposed treatment is described as assisting the applicant to “increase social functioning and engagement with the community” and to assist “Tracy plan work goals commencing with volunteer work”.[39] The stated intention by the treating psychologist for the psychological treatment was to improve social functioning and to engage with volunteer work. These goals, if successful, would result in an increased level of functioning impacting a number of the PIRS categories.

    [38] Application, p 214.

    [39] Application, p 213.

14. The more likely inference is that the treatment would be somewhat successful because the treating health practitioners were recommending it. As the applicant acknowledged, she bears the onus of proof. Accordingly, I am not persuaded, on a prima facie level, that as at 1 March 2021 the applicant’s then impairment assessed under the PIRS categories was permanent.

15. The applicant further submitted that it was unnecessary to have a medical report quantifying the claim for the deterioration of permanent impairment as at 1 March 2021. It submitted that a passage in Baker did not arise from an application of the principles in Dimos.

16. In Baker I stated:

    “In my view that right requires an opinion from an appropriate medical practitioner that there has been a deterioration in the degree of impairment as a result of the injury. Absent that evidence, I do not accept that there is a basis to assert that there has been deterioration, as it is understood, and discussed in Riverina Wines.”

17. The respondent submitted that the application to reconsider based on deterioration required evidence that could only be established by a medical report supporting a further valid claim for assessment of permanent impairment. It otherwise referenced Dimos at [81] where Schmidt AJ stated:[40]

    “Had the information contained in the 2014 records only come into existence after the establishment date, as the insurer’s s 62 application incorrectly conveyed when it described them to be 2022 documents, its right to make the s 62 application would not have been an ‘unexercised right’. That is because no basis for making that application in respect of such additional information could then have existed before the establishment date.”

    [40] Dimos at [81].

18. The applicant has not established that she has an unexercised right, because I am not satisfied on a prima facie level that the impairment was permanent as at the establishment date.

19. The absence of such evidence, as the present case illustrates, shows that an applicant will have difficulty establishing a prima facie case on deterioration of permanent impairment.

20. However, given my conclusion on the issue of permanency, it is unnecessary to decide this issue.

21. For these Reasons I am not satisfied that that the applicant has an unexercised right within the meaning of cl 14D.

22. The parties accepted that it was necessary to rescind the COD for the purposes of requesting the Appeal Panel to reconsider its decision. In light of my finding that the applicant does not have an unexercised right to seek a reconsideration, there is no utility in rescinding the COD.

CONCLUSION

1. The orders are set out in the Certificate of Determination.