Boral Montoro Pty Ltd v Ducat
[2021] NSWPICMP 150
•17 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Boral Montoro Pty Ltd v Ducat [2021] NSWPICMP 150 |
| APPELLANT: | Boral Montoro Pty Ltd |
| RESPONDENT: | Natalie Claire Ducat |
| APPEAL PANEL: | Member Paul Sweeney Dr Julian Parmegiani Dr Michael Hong |
| DATE OF DECISION: | 17 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Employer appeals against classification of PIRS categories of Travel and Social functioning and the application of section 323(2) to the assessed impairment; Held- the failure of the Medical Assessor (MA) to consider surveillance evidence or to explain the deterioration in the worker’s psychological functioning after she became aware of that evidence constituted error; no error in the application of section 323(2); Marks v Secretary, Department of Communities and Justice considered and distinguished; after re-examination MAC revoked and a new MAC issued reflecting the different view formed by the panel to the classification of Travel. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 February 2021, Boral Montoro Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor (MA, formerly an Approved Medical Specialist), who issued a Medical Assessment Certificate (MAC) on 1 February 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 grounds 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).
RELEVANT FACTUAL BACKGROUND
Natalie Claire Ducat (the respondent) has a long history of psychological illness primarily arising from the breakdown of her first marriage in 2011 and ongoing disputes with her ex-husband as to the custody and upbringing of their children. These difficulties continued despite her remarriage in 2015. It is recorded that as recently as 31 March 2018 her ex-husband breached an apprehended violence order causing a recurrence of her anxiety.
Nonetheless, throughout this period the respondent continued to work as an account’s administrator at Boral Montoro Pty Ltd (the appellant) performing reasonably demanding work. At the commencement of 2018, the respondent says that she experienced changes to her previously flexible working hours. There was a rapid shift in her relationship with management. She was told by her managers she had not worked sufficient hours under a previous manager. Her direct supervisors no longer engaged with her or, alternatively, presented with “adversarial body language and a harsh tone”. She perceived that she was deliberately intimidated and ostracised. These issues were magnified by the respondent’s belief that her managers were implicated in either incorrect or fraudulent reporting to head office.
The respondent told her treating psychologist that prior to the workplace incidents described above her employment was “a protective factor” in promoting and maintaining her psychological health. During 2018, her psychological condition deteriorated. She has not worked since September 2018.
By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The respondent’s claim is founded on the opinion of Professor Michael Robertson, a psychiatrist, who saw her on 25 June 2019 and 18 March 2019 at the request of her solicitors.
By a report dated 19 March 2020, Professor Robertson diagnosed the respondent as suffering from a chronic post-traumatic stress disorder which had evolved into a major depressive disorder. He thought there were “work-related exacerbations of the previous post-traumatic stress disorder”. Professor Robertson assessed the respondent in accordance with the psychiatric impairment rating scale (PIRS) prescribed by the Guidelines for the assessment of whole person impairment (WPI) resulting from psychological injury. He assessed 24% WPI. He made a deduction of one tenth pursuant to s 323 of the 1998 Act “for the effects of her previous PTSD” which resulted in a final WPI of 22%.
Dr Leonard Lee, a psychiatrist, saw the respondent on three occasions at the request of the appellant. He initially accepted that she had experienced an exacerbation of a pre-existing psychological condition at work. After reviewing the clinical notes of her general practitioner and her treating psychologist, he revised his opinion and asserted that the respondent suffered from a borderline and/or a dependent personality disorder and an adjustment disorder with anxious mood. In a report of 1 September 2020, he assessed WPI as 22%. He deducted 50% for her pre-existing condition pursuant to s 323 of the 1998 Act which resulted in an assessment of 11% WPI.
The difference of opinion between Professor Robertson and Dr Lee as to the quantum of WPI gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, the Registrar of the former Workers Compensation Commission referred the dispute regarding permanent impairment to Dr Douglas Andrews, a psychiatrist. It is from his assessment dated 1 February 2021 that the appellant employer appeals.
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 the preliminary review, the panel determined that it was necessary for the worker to undergo a further medical examination. For reasons that will be given below, the panel was of the view that the MA had failed to adequately explain the path of the reasoning by which he assessed the PIRS categories of Travel and Social functioning.
As the impugned aspects of the MAC involved a recent deterioration in the respondent’s psychological health, the panel also decided to grant leave to both parties to lodge additional evidence in respect of the categories of Social functioning and Travel. Only the respondent lodged further evidence in the form of a supplementary statement.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Michael Hong of the appeal panel conducted an examination of the worker on 23 July 2021 and reported to the appeal panel.
The report of Dr Hong, insofar as it is relevant, is as follows:
“Ms Ducat reported that her childhood was not great because of her abusive father. When her second son was born, she developed Post-Natal Depression and consulted a psychologist and utilised Employee Assistance Program. She was diagnosed with Post-traumatic stress disorder.
Ms Ducat's ex-husband was a police officer and had aggression problems. They were together for about ten years and the marriage ended about ten years ago. He assaulted her and the kids and she took out an Apprehended Violence Order and has not had contact with him for years.
The marriage ended and she said that was the best thing that ever happened to her. She explained that work was great, it was a place away from home that allowed her to feel productive. She took antidepressant medication for a few years and stopped it maybe six months to 12 months after she left the marriage.
Work history:
Ms Ducat had worked at Boral for 14 years and reported that she loved her work and it was only after the senior management brought in a friend to take over the company that she started feeling stressed. She said they did everything they could to get rid of her and her husband, who is a site manager. They even told her that once her husband has been removed, they will get rid of her.
Ms Ducat discovered the new management changed the operation figures and was paying weekly bonuses when they should not have been. She felt they were creating a false perception that the plant was running better financially. When she reported it they started targeting her. They made accusations against her. She said people stopped talking to her at work and they started assigning her work to other workers.
Ms Ducat developed chronic anxiety and depressive symptoms, and her symptoms have not substantially subsided since she stopped work on 18 September 2018.
New stressors:
No new life stressors since Dr Andrew’s MAC, such as being in a car accident or death in the family.
Treatment history:
At Dr Andrew’s assessment, Ms Ducat was taking:
·Desvenlafaxine 150 mg
·Lamotrigine 200 mg
·Prazosin 1 mg
She is now taking:
·Zyban (Bupropion) 300 mg, around 4-5 months
·Lamotrigine 200 mg
·Prazosin 1 mg
She consulted Lucy Baldwin, then Amir, in the past 4 months. They are psychologists.
She consults Dr Suraiya Moisey, psychiatrist, every 1-2 months.
She has not felt significantly differently with further changes in treatment.
Ms Ducat has never had a psychiatric admission.
Current Status:
Ms Ducat reported that psychologically, she has not changed since Dr Andrews’ assessment on 1 February 2021. She said she has no life, no purpose, she cannot do anything and she hates her body because she had gained weight.
Ms Ducat reported experiencing the following symptoms:
·Pervasive depressive symptoms.
·Nothing gives her pleasure.
·Having no confidence.
·Fleeting suicidal thoughts.
·Appetite problems. She said she was skinny and she is now fat and is not sure how much weight she has gained.
·Sleep problems and nightmares a few times a week.
·Having a low tolerance for frustration.
·Major concentration and memory problems.
Drug and Alcohol History:
Ms Ducat drank in small amounts on the weekend before the subject injury. In the past 12 months, she estimated drinking a few ciders to 1 bottle of wine on most days.
She denied having used illicit substances.
Lifestyle:
Ms Ducat is frustrated she cannot help her kids to do homework, she cannot prepare meals or cook for the family.
Ms Ducat is always fighting with her partner, the children and her mother. She said that people stopped contacting her because of how irritable and depressed she is. One of the mothers from the school sometimes takes the children out and she might talk to the mother, but aside from this she has no other friends.
In the morning, the children wake Ms Ducat up to say goodbye as they go to school. Sometimes she would see them out to the bus and walk to the front of her property to see them off. She spends a lot of time in bed. She watches a bit of TV and plays with her mobile phone. She also would stay in her pyjamas and sometimes would change into day clothes.
Ms Ducat has been out to the shops a few times with her partner, Jarrod, but mostly he would go by himself to do the shopping.
Ms Ducat’s son, Bailey, had a leg fracture and her partner could not get time off from work to attend to him, so she had to take him to school a few times and to see the doctor locally. She said it was a horrible experience and not long after that she presented to the hospital a number of times with jaw clenching problems and was told that it was either an infection or stress-related.Ms Ducat’s partner and son do the cooking. She does not eat or shower regularly. When she has to go out, her partner forces her to shower.
She met her partner, Jarrod, about ten years ago and around six months after her divorce from the police officer. There has been no separation in this marriage but she said he only stayed out of obligation for the children. They are not sexually intimate anymore and they do not go out as a family anymore.
Ms Ducat said that she was still going out on her own until she had a meeting with the lawyers and possibly the arbitrator. In that meeting she discovered that she was being followed and people were taking photos of her and they made claims that she was working because she attended Jarod’s workplace. After that meeting, she went out and she started thinking she was being followed and that people were going to make up lies about her, and so she stopped driving and stopped going out on her own. Since then, the only times she has been out was when she had to take her son, Bailey to medical treatment because he suffered a leg fracture. She has taken her daughter, Jasmine, to dances may be twice, which is five minutes away from home. She had dropped off her children at school care during the holidays, which is only a few minutes away a couple of times. She had been to Coles maybe twice with her son, Bailey.
When Ms Ducat has to see her doctor and psychologist, her partner takes her. She said she does not even take a walk or venture away from home on her own.
As a family they go and watch their youngest son play soccer on most weekends. She will not do it on her own as she is too anxious to be out on her own.
File review:
I have noted the files provided to the Medical Appeal Panel.
I noted the further document provided by Ms Ducat, dated 22 June 2021 and discussed it with her during my assessment.
Mental state examination:
Ms Ducat was assessed by videolink. She was at home, and her partner Jarrod was also in the room during the video assessment. I assessed Ms Ducat from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Ms Ducat was anxious and cried for a significant part of the assessment. She was restricted in her affect range and reactivity. She lacked spontaneity and spoke in a soft tone and had a disorganized narrative and was not thought disordered.
Towards the end of the assessment, I asked Ms Ducat for additional information that she thought may be relevant and she discussed she wished to have her job and life back.
Summary:
I confirmed the history in Dr Andrews’ MAC and obtained further history and clarification.
I have diagnosed Major depressive disorder and Alcohol use disorder.
| PIRS Category | Class | Reason for Decision |
| Travel | 2 | Ms Ducat is anxious when she leaves home. When she took her son to have medical care, she was more stressed and developed a jaw clenching problem and attended the hospital a few times. |
| Social functioning | 3 | Ms Ducat’s relationship with her partner has deteriorated as she is irritable and argues with everyone. |
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel.
In summary, the appellant submits that there were three errors in the MAC of Dr Andrews dated 1 February 2021. First, the appellant asserts that the MA erred in assigning Class III to the PIRS category of Social functioning “by failing to discharge his statutory task of considering all evidence and in ascribing a rating inconsistent with the evidence.”
The appellant argued that it can be readily inferred from the MAC that the MA “relied solely on the worker’s self-report”. The MA had not considered other relevant evidence. The appellant specifically highlights the surveillance evidence contained in its Reply which revealed that the respondent drove to premises of “Got It Express”, where her husband is employed, and remained there for lengthy periods on several occasions in 2020. It also highlighted her statement dated 6 October 2020 by which she recounted that she travelled to these premises as her husband was not always able to have time off work “to care for me” so that it was necessary for her to travel to his workplace “to be with him”.
The appellant submitted that the evidence that the respondent is cared for by her husband and that she travelled to his place of work to be with him was inconsistent with the history that they were “virtually separated” as the MA recorded. The MA erred in overlooking this evidence. The assignment of Class III should be revoked by the panel and it should assign Class II for the category of Social functioning.
Secondly, the appellant submitted that the same surveillance footage cast doubt on the respondent’s history to the MA that she “doesn’t leave home without a support person”. In uncritically accepting this evidence, the MA failed to refer to the surveillance evidence. The appellant continues:
“The objective evidence also supported the ability to travel independently. As of August and September 2020 when the surveillance was undertaken, the worker was seen to travel independently to attend her husband’s work premises and to attend to other tasks (on a number of occasions) “
The appellant then submitted that the evidence did not establish a valid reason for deterioration in the worker’s condition between the dates of surveillance and the date of the assessment by the MA. The appellant continues:
“The MA does not address, and the evidence does not support, a deterioration in her condition that would permit independent travel in 2020, but not in 2021.”
If the MA concluded that the respondent’s ability to travel was worse in 2021 than it had been earlier he should have provided reasons for that conclusion.
Thirdly, the appellant submitted that the MA fell into error in making a one tenth deduction pursuant to s 323 of the 1998 Act in respect of the respondent’s pre-existing psychological condition. It argued that a one tenth deduction was “at odds with the evidence, and a greater deduction was required.”
The appellant set out the numerous entries in the clinical notes of the respondent’s general practitioner (GP) and those of Ms Brown, her psychologist, between 11 August 2014 and February 2019 relating to family issues which appeared to engender psychological symptomatology. It argued that this evidence:
“does not suggest an individual with no or very little impairment of function before the claimed date of injury. The evidence confirms long-term (several years) of ongoing personal stresses and psychological diagnosis provided, including anxiety adjustment disorder and PTSD. These conditions were continuing throughout 2017 and into mid-2018 only months prior to the claimed date of injury.”
The appellant then referred to Guideline 11.10 which provides a specific methodology for ascertaining a deduction under s 323 WIM Act 1998 in respect of psychological injury. The employer asserts that there is no evidence that the MA complied with the methodology in Guideline 11.10. The appellant submitted that the MAC should be revoked and a deduction of 50%, or such other proportion as the MAP thinks fit, should be applied.
The respondent submitted that there was a great deal of evidence of difficulties in her relationship with her partner and other members of her family after her injury which would support a finding of Class III for Social functioning . She notes that Dr Robertson has ascribed Class III to the category on the basis of such a history.
The respondent asserts that her statement of 6 October 2020 was primarily directed towards negativing the fact that she was employed in the same business as her husband. The respondent continues:
“In the statement the worker did not provide any additional details about the level of support provided to her by her husband during these visits, or about the nature of the relationship with her husband.”
The respondent also refers to the descriptors for Social functioning Class II and submits that the evidence is not consistent with her social functioning falling within those descriptors. Rather, she has “consistently reported loss of all friendships”; her description of her relationship with her husband is “indicative of a virtual separation”; and “taken in context of the worker’s other loss of close relationships” supports a “best fit” of Class III.
In respect of Travel, the respondent submitted that her report of deterioration in her ability to travel between September 2020 and February 2021 “must hold significant weight”. She argued that the MA considered the opinions of Professor Robertson and Dr Lee. He also considered the credibility of the respondent’s reported deterioration in her symptoms. In those circumstances, ascribing a Class III rating for Travel did not demonstrate error.
In respect of the third alleged error, the failure to make a greater deduction pursuant to s 323, the respondent referred to the remission of the respondent’s psychological difficulties from time to time in the past and their persistence following the workplace episode. She also referred to the opinion of Ms Brown the psychologist that the workplace incidents had aggravated the appellant’s previous PTSD and led “to the onset of a major depressive disorder with anxious distress”. These factors were consistent with application of s 323(2).
After reviewing the evidence of Dr Lee, the respondent submitted that his approach to deduction pursuant to s 323 did not comply with the Guidelines in that he did not undertake the clinical assessment required by Guideline 11.10. If the opinion of the MA on the deductible proportion was flawed so too was that of Dr Lee.
The respondent concluded by submitting that:
“The MA is correct in his approach of applying a one tenth deduction and his analysis of the available evidence is sound.”
In short, the respondent submitted that there was no demonstrable error or the application of incorrect criteria.
FINDINGS AND REASONS
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.
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
In a careful and very detailed analysis in the MAC, the MA concluded that he agreed with the opinion of Professor Robertson that the respondent met the criteria for a major depressive disorder. He stated:
“Because her symptoms have been present for more than two years, I prefer a diagnosis of persistent depressive disorder with ongoing major depressive episodes and anxious distress.
I see no evidence that she has a borderline personality disorder and would not conclude that she has a dependent personality on the evidence available.
Ms Ducat has many symptoms consistent with that of an exacerbation of PTSD. However, her intrusion symptoms are not (now) exclusively about things that happened in the workplace. These things do not meet Criterion A for PTSD, that of exposure to actual or threatened violence, serious injury or sexual violence. Her experience of domestic violence would have met this criterion. I accept that reasonable assessors may differ in their opinions about whether Ms Ducat has ongoing PTSD or not, but I will not support that diagnosis in my assessment.”
In respect of the PIRS category of Social Functioning, the MA recorded that her relationship with her partner was “very strained”. She informed the MA that “he is only here because of the kids”. She also gave a history of having “damaged relationships with other close relatives” and “no friends”. She had a good relationship with her children, although that relationship was now “one of the children supporting her”.
In respect of Travel, the MA recorded in his reasons in the PIRS rating form that:
“She gave up driving about 4 months ago, because she felt unsafe. She was inattentive and making mistakes on the road. She still does not travel out of her local area.”
Section 325(2) of the 1998 Act requires the MA to set out the facts on which his assessment is based and the reasons for his assessment. While it is unnecessary for the MA to consider the competing hypotheses of other medical practitioners, he is obliged, in accordance with the reasoning in Kocak, to explain the “actual path or reasoning” by which he arrived at an opinion. The obligation extends to the opinions which an MA expresses in respect of a deduction pursuant to s 323 of the 1998 Act and also to the assignment of scales or classes to the various PIRS categories.
It is true that the assignment of scales or categories often involve matters of opinion and degree about which reasonable minds may differ: see Ferguson v. State of New South Wales [2017] NSWSC 887 and Piper v Select Civil Pty Ltd [2018] NSWSC 140. Nonetheless, the obligation to provide, at least, a rudimentary explanation of the reasons for assignment of classes or scales in the PIRS categories remains.
The MA accepted the respondent’s account that she had ceased driving a car four months before the assessment and no longer left home without a support person. He did not address the surveillance evidence, which demonstrated that she was able to drive alone in the preceding period, or the fact that cessation of driving took place only after she became aware of this evidence during the course of these proceedings. This sequence of events raises inter-related questions as to the reasons why the respondent ceased driving alone and the reliability of her account. It is, of course, for the MA to determine the worker’s reliability and It is unnecessary that he give extensive reasons for his opinion.
In this case, however, the MA’s failure to grapple with the circumstances in which the respondent ceased to drive alone or leave the house without a support person, or to provide brief reasons for her reported significant deterioration in functioning constitutes error. In the absence of reasons on this issue, it is difficult to ascertain the actual path by which the MA arrived at his findings in the PIRS category of Travel. The appellant has established demonstrable error in that the MA did not give reasons for the deterioration in the respondent’s driving and outdoor activities during the four months prior to his consultation, and, importantly, did not refer to critical evidence relevant to that issue.
The appellant also submitted that the respondent worker’s statement in response to the surveillance film undermined the MA’s assignment of Class III to Social Functioning. The thrust of the appellant’s case is that it would be odd for the respondent to seek out her husband to care for her during the course of the day if their relationship was one of “virtual separation”. The panel was not necessarily persuaded that these circumstances, standing alone, proved demonstrable error. But as they also involved a question of the reliability of the respondent’s account arising from the same surveillance evidence, the panel concluded that the PIRS categories challenged by the appellant should be the subject of reassessment.
Conversely, the panel concluded that the appellant had not established error in respect of the application of s 323 of the 1998 Act. It is the appellant’s case that the MA was obliged to determine pre-existing impairment in accordance with Guideline 11.10. This clause of the Guidelines had fallen into desuetude, possibly because of a widespread belief that it was ultra vires as it was in conflict with s 323 of the 1998 Act.
However, recently in Marks v Secretary, Department of Communities and Justice (No. 2) [2021] NSWSC 616 (4 June 2021) (Marks), Simpson AJ held that it was valid in its application to pre-existing symptomatic psychological conditions. The Judge stated:
“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.”
Guideline 11.10 states:
“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.”
Guideline 11.10 specially refers to s 323(2) and provides that if the pre-existing impairment cannot be assessed a deduction of 1/10th is to be made. It, therefore, remains open to a MA to apply the subsection in an appropriate case irrespective of whether the pre-existing injury or condition is symptomatic or asymptomatic. It follows that the MA did not err merely by applying the subsection. In the light of the appellant’s submissions, however, the panel concluded that it was appropriate to carry out an assessment of the respondent worker’s psychiatric impairment prior to the work injury in accordance with that methodology.
It is evident that immediately prior to her injury the respondent was working in a reasonably complex job. It is not evident that she experienced difficulties in the PIRS categories of Self-care and personal hygiene, Social and recreational activities, Travel, Concentration, persistence and pace, and Employability. Her history to the MA was she was able to balance work with her family commitments including the raising of children from both her and her partner’s first marriage. Obviously, an acceptance of these matters translates into a finding that the respondent was able to “cope with the normal demands of the job” and was able to travel without significant restriction. In this respect, the panel notes that the respondent travelled overseas after her re-marriage and, subsequently, went on a cruise with her husband.
The only PIRS category where the panel could reasonably assign a class or scale other than I is Social functioning where it is evident that the respondent worker probably fell into Class II by reason of difficulties arising from her previous marriage and the custody of their children as adverted to above. In those circumstances, it is probable that an assessment of respondent’s pre-existing psychiatric impairment by the MA in accordance with the methodology set out at 11.10 of the Guidelines would have resulted in WPI of 0 or 1%. That would not have advanced the appellant’s case.
But the panel is of the opinion that the MA did not err in applying s 323 (2). It accepts that it was open to the MA to apply the subsection in the circumstances of the case. There was a proper basis for his conclusion that the deductible proportion was difficult to assess. Plainly, it is difficult to assign appropriate classes to the PIRS categories prior to the onset of the subject injury at a time remote from the assessment. More so, when medical practitioners, who have treated the worker, have not addressed the PIRS categories and it is necessary to draw inferences from other evidence as to what class is applicable. While the respondent suffered a pre-existing psychological condition, the assignment of classes to the pre-existing condition in this case involves a large element of guesswork.
It must be borne in mind that s 323 is a disentitling provision. While the issue of onus is rarely of importance in a medical appeal, the principles enunciated a very long time ago in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden 114 CLR 164 have application to an evaluation under s 323. That these principles are relevant to the assessment of lump sum compensation under the Workers Compensation Act is also of ancient lineage: see Sadler v Commissioner for Railways (NSW) (1969) 123 CLR 216. It is necessary for a respondent to point to appropriate evidence to support a deduction. In this case the deduction of a greater percentage than one tenth would involve the MA and the panel in an exercise in speculation.
The MA certified that the respondent suffers from a major depressive disorder. While her previous PTSD may have contributed to the onset of this psychological condition, the precise contribution it has made to her current diagnosis is difficult to determine. Accordingly, the panel is not satisfied that there is a demonstrable error in the approach of the MA.
On receipt of the report of Dr Hong, the panel reconvened and considered his assessment of the PIRS categories of Travel and Social functioning in the light of his findings. Dr Hong was of the opinion that, with one exception, the respondent worker was a reliable witness and that her history and complaints should be accepted by the panel. Against that background, the panel concluded that a classification of moderate impairment as found by Dr Hong and the MA for the category of Social functioning was appropriate.
The panel does not accept that the evidence that respondent travelled alone from time to time to her husband’s workplace so that he could care for her negates a classification of moderate impairment. By her supplementary statement dated 14 July 2021, the respondent describes the circumstances in which she undertook that journey:
“Sometimes on these days I would eventually call Jarrod crying with despair. I know Jarrod was concerned that I might self-harm and so he would tell me to get in the car called him by hands-free and talk to him on the phone while I drove myself to his work.
I would drive to his workplace and I would then go sit near him in the warehouse but away from other staff crying while he kept an eye on me.”
The specialist psychiatrists on the panel concluded that this evidence from the respondent was plausible and that travelling to her husband’s workplace for solace did not necessarily indicate an intimate relationship. The respondent’s recent history as recorded by Dr Hong is that all of her relationships have ceased and her husband acts in the role of the carer. This history provides a compelling case for assigning Class III to the category of Social functioning.
The category of Travel is more difficult. The respondent worker says in her recent statement that she stopped driving in September 2020 as she became aware at a conference in the then Workers Compensation Commission that she was being observed by an investigator. She said that she started to “feel extremely anxious and stressed about being followed.” While this is plausible, it is apparent that the respondent travelled alone for a period of two years following her cessation of work. It is, therefore, equally plausible that her decision to desist from driving may relate to transient factors connected with this litigation.
Importantly, the respondent has recently recommenced to drive alone in limited circumstances. By the statement of 14 July 2001, the respondent says that from 24 May 2001, she recommenced driving her son to school, although she has been unable to do this on several days because of her psychological illness. She has also driven her daughter to ballet on some occasions.
In these circumstances, the panel concluded that, consonant with the opinion of Dr Hong, the most appropriate descriptors of Travel are those found in Class II. If the applicant suffered an exacerbation of her psychological condition when informed of the surveillance, it likely that she will recover from the exacerbation compatibly with her recent history. The panel noted that both Dr Robertson and Dr Lee had assigned Class II for Travel. A consideration of their medical examinations and Dr Hong’s recent examination also suggested that this class best reflected the respondent’s psychological illness and disability.
On the panel’s reassessment, the respondent has 24% WPI. After deducting 1/10 pursuant to s 323(2), the final outcome is 22%.
For these reasons, the appeal Panel has determined that the MAC issued on 21 February 2021 should be revoked and a new MAC issued.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Douglas Andrews 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) |
| Psychiatric | 13/09/2018 (deemed) | Chap 11, p 54-60 | N/A | 24% | 1/10th | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
Paul Sweeney
Member
Dr Julian Parmegiani
Medical Assessor
Dr Michael Hong
Medical Assessor
17 August 2021
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