Borg v Patrick Stevedores Holdings Pty Ltd
[2024] NSWPICMP 20
•15 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Borg v Patrick Stevedores Holdings Pty Ltd [2024] NSWPICMP 20 |
| APPELLANT: | Jason Adam Borg |
| RESPONDENT: | Patrick Stevedores Holdings Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 15 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the psychiatric impairment rating scale for travel; Ferguson v State of New South Wales; assessment of employability; ability to perform “work like activities”; section 323 deduction in respect of previous secondary psychological injury; Mercy Centre Lavington Ltd v Kiely, Mercy Connect Limited v Kiely, and Ausgrid Management v Fisk discussed; no deduction appropriate for time limited condition from which worker had recovered; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 October 2023 Jason Borg lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Andrew McClure, a Medical Assessor, and a Medical Assessment Certificate (MAC) was issued on 11 September 2023.
Mr Borg relied on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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
Mr Borg was employed by Patrick Stevedores Holdings Pty Ltd (Patrick) as a wharf labourer. He suffered a psychological injury as a result of interactions in the workplace, which is deemed to have been suffered on 29 March 2022.
The claim for weekly compensation, medical expenses and permanent impairment compensation was listed before a Member of the Personal Injury Commission who made consent orders on 22 March 2023. The claim for permanent impairment compensation was remitted to the President for referral to a Medical Assessor. The Medical Assessor was asked in the referral to consider if any proportion of permanent impairment was due to any previous injury or pre-existing condition or abnormality and the extent of that proportion. The referral noted s 319(f) of the 1998 Act, being part of the definition of medical dispute.
The Medical Assessor diagnosed a major depressive episode with associated anxious distress and assessed 15% whole person impairment (WPI). The Medical Assessor assessed Mr Borg under the Psychiatric Impairment Rating Scale (PIRS), placing him in class 1 for travel and class 4 for employability. He made a deduction of one-tenth under s 323 of the 1998 Act in respect of a psychological condition characterised by anxiety and resulting from a right hand injury. The s 323 deduction reduced the assessment to 14% WPI.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Mr Borg to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary and in submissions prepared by Mr Moffet of counsel, Mr Borg submitted that the Medical Assessor made an error of law in making a deduction for an anxiety condition which was secondary to an earlier physical injury. Mr Borg said that the Medical Assessor used incorrect criteria in deducting a proportion of the assessment to reflect the previous secondary injury rather than using the PIRS to assess the amount of the deduction. Because any impairment from the previous condition was completely intermingled with the injury, no deduction was appropriate. In the alternative, Mr Borg submitted that the Medical Assessor did not correctly apply s 323 because there was no evidence of an actual pre-existing condition and any previous condition was temporary. The cases cited in support of the submissions are discussed below.
Mr Borg said that the Medical Assessor erred in assessing him on the basis that the tasks involved in selling his house were work-like activities because he had no obligation to perform those tasks so that he should be assessed in class 5. He submitted that the Medical Assessor’s assessment in class 1 for travel was not supported by adequate reasons and was incongruous when compared to the Medical Assessor’s diagnosis. Mr Borg said that an explanation was required because the Medical Assessor did not find a mild impairment – as Dr Saboor did.
Mr Borg said that the appropriate assessment was 19% WPI.
In reply, Patrick submitted that it was open to the Medical Assessor to make a deduction of one-tenth under s 323 and that he provided reasons so that it could not be said that he applied incorrect criteria. Patrick did not engage with the authority on which Mr Borg relied.
With respect to the assessment of employability, Patrick noted that Mr Borg told Dr Roberts in September and November 2022 that he would be happy to return to work under a different supervisor. Patrick said that the Medical Assessor gave adequate reasons for assessing Mr Borg in class 1 for travel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
Application of the PIRS
It is appropriate to consider the grounds raised about the application of the PIRS before considering the extent of any deduction to be made from the total assessment.
With respect to diagnosis, the Medical Assessor said:
“His current symptoms reflect a Major Depressive Episode in an embittered, isolated, lonely man, who says that he faces ‘losing everything’ and has no support networks to call upon.
Based on DSM-5 criteria, the current diagnosis is a Major Depressive Episode, moderate, with associated anxious distress.”
When considering Dr Saboor’s report, the Medical Assessor said:
“I note the report of Dr Assad Saboor, psychiatrist, dated 7 October 2022. My colleague has made a diagnosis of a ‘Major Depressive Illness with psychotic features.’ By contrast, I did not find the applicant to have any features of a psychotic disorder when I saw him today… Dr Saboor found Mr Borg totally incapacitated for any type of gainful employment at the present moment. I disagree with this assessment. The applicant has been capable of organising the sale of his house and purchase of a truck into which to load his furniture and other possessions. He is therefore capable of some limited work-like activity, albeit he is very severely impaired.
My colleague estimates that Mr Borg has a non-permanent whole person impairment (WPI) of 26% (3,3,2,4,3,5); however I disagree with Dr Saboor’s impairment class ratings in the domains of self-care and personal hygiene, social functioning, concentration, persistence and pace, and employability. The applicant is living alone and is essentially caring for himself and his dog. He prepares his own meals, does his housework and laundry and is showering second-daily rather than daily, only because of the cooler weather and his lack of physical activity. He is able to travel from point to point as required, though prefers to minimise this because of the cost of petrol. The relationship of his separation from his partner to his symptoms of a psychiatric disorder is unclear. He remains in contact with a small number of family members. He is able to maintain his attention and focus, including his focus during today’s 70-minute interview, and to provide a detailed history. He is performing some work-like activities.”
Travel
Mr Borg’s complaint with respect to the Medical Assessor’s assessment for travel was that he failed to give adequate reasons for his assessment, because it was incongruous with his diagnosis and it differed from Dr Saboor’s assessment of a mild impairment. That is a submission that the MAC contains a demonstrable error, being an error on the face of the MAC.
The Medical Assessor placed Mr Borg in class 1 because:
“Mr Borg is able to travel (usually driving) wherever he needs to go, though he minimises this because of the cost of petrol as he is receiving no income.”
Though the Medical Assessor did not list travel as one of the areas in which he disagreed with Dr Saboor, it is clear that was one of the categories in which the Medical Assessor’s assessment differed and he provided the reason in the paragraph quoted in [23] above.
The Guidelines require that an assessor provide a diagnosis according to a recognised diagnostic system. It is expected that the assessor will provide a rationale for the impairment rating based on the worker’s psychiatric symptoms and that the diagnosis is “among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used.”[2] One of the relevant factors is “information from the injured worker’s own description of his or her functioning or limitations.”
[2] Guidelines paragraph 11.6.
A significant condition does not of itself mean that a worker will be assessed as having an impairment under each of the PIRS tables. It is important to remember an assessment in class 1 is relevant where there is “no deficit, or minor deficit attributable to a normal variation in the general population.” Class 1 contemplates that the general population encompasses a wide range of capacity and behaviour.
The Medical Assessor’s use of “isolated” when read in the context of his diagnosis refers to social isolation. It does not necessarily mean that he is unable to travel.
The Medical Assessor explained where he differed from Dr Saboor’s assessment. In Ferguson v State of New South Wales[3] Campbell J said:[4]
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[3] [2017] NSWSC 887, [25].
[4] At [24] – [25].
Based on the history that Mr Borg is able to travel where he needs to go, it was open to the Medical Assessor to assess him in class 1 for travel. He explained that he differed from Dr Saboor in his assessment. The fact that another practitioner assessed Mr Borg differently does not mean that the assessment was not one that the Medical Assessor could make in the exercise of his clinical judgement.
Employability
The Medical Assessor assessed Mr Borg in class 4, saying:
“Mr Borg is unlikely to be able to work on a regular fulltime or part-time basis. His motivation is poor. He no longer trusts supervisors. He is deeply cynical about authority figures in general. He is, however, engaged in some work-like activities, e.g. arranging the sale of his house and purchasing a truck to move his furniture and other possessions. I would consider him fit for infrequent menial work on a casual basis (e.g. voluntary work), provided he had a sympathetic supervisor.”
The examples in the PIRS for class 4 and 5 are:
“Class 4 – Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5 – Totally impaired: Cannot work at all.”
Mr Borg said that the Medical Assessor’s assessment was a demonstrable error based on a decision of another Medical Appeal Panel in Dogon v Supagas Pty Ltd[5] (Dogon). He said:
“At paragraph [19], the MAP said at its tenth point that a feature of these activities, which falls within the overall description of ‘volunteer’ work, is that that the worker ‘has obligations to perform the work and he performs the work as required on time’ ".
[5] [2021] NSWPICMP 107.
Mr Borg said that the activities he performed carried no obligation to perform work and said that the sale of his home and the purchase of a truck were isolated events not characterised as work.
Reading Dogon shows that the Panel was, at [19], summarising the submissions of one of the parties and the paragraph quoted does not represent the Panel’s findings. That appeal concerned a worker who was performing four different volunteer roles – including driving elderly or disabled people to appointments and inspecting a commercial kitchen for kosher compliance – which imposed obligations to perform activities on time. The Medical Assessor said that the activities the worker performed are work-like activities which he engaged in for about 20 hours per week and assessed the worker in class 3. The Panel found that the Medical Assessor’s assessment was open to him.
It does not follow from Dogon that all voluntary work imposes an obligation to perform work or to perform it on time.
The Medical Assessor’s assessment was open to him. Assessment in class 4 is appropriate for a worker who has a severe impairment, working for one or two days at a time, with reduced pace and erratic attendance. The Medical Assessor said that Mr Borg was fit for menial casual work on a casual basis with a sympathetic supervisor.
The Medical Assessor was required to make an assessment on the day of the examination.[6] While accepting that Mr Borg’s condition may have waxed and waned, we note two documents in the file which are relevant to the way Mr Borg perceived his employability about six months after he ceased work. Mr Borg sent an email to a representative of Patrick on 22 September 2022[7] in which he said:
“I haven't received any correspondence from yourself or Patricks in regards to me returning to work or any steps Patricks has made to provide a safe environment in the workplace.
I had informed Patricks that I was being victimised by David [redacted] on more than one occasion, yet I was still forced to work with him. If Patricks is able to tell me I am not going to work with David [redacted] I wouldn't have a problem with returning to work.
The fact I was told I was stuck with David was too much to take mentally. I'm more than happy to be allocated to tele-ops. Unfortunately I'm unable to work under David’s leadership due to the toll it takes on me physically, mentally and financially.”
[6] Guidelines paragraph 1.6.
[7] Application to Admit Late Documents dated 16 March 2023 page 3.
In his report dated 25 September 2022 Dr Roberts, who saw Mr Borg at the request of Patrick, recorded:
“Mr Borg stated that of course he would return to work if another supervisor was available; that he said to his employer that he was happy to return to work even working on the grids - I note that in documentation an interaction described at the Grids where it is alleged that Mr Borg had been assaulted.
Mr Borg again repeated that he would be happy to return to work if a different team leader was available; that he is fearful of returning to work however since he believed that someone might ‘swing a steering wheel towards a pole:’ which I interpreted as him perceiving that there was a risk of him being injured.”
The conclusion that Mr Borg was able to perform extremely limited work was open to the Medical Assessor.
The appropriate assessment before the consideration of any deduction is therefore 15% WPI.
Section 323 deduction
The Medical Assessor said:
“The applicant denies any previous history of psychiatric disorder. At least he has ‘never been diagnosed.’ He says that he ‘felt normal, until they took what made me a man’ (his job).
…
Mr Borg has had a number of physical injuries. In the most recent of these, his dominant right hand was crushed between crushed between a ‘steel pin’ and a ‘60 – tonne container on a spreader. He was off work for a protracted period('three months, three weeks, and three days exactly') but 'couldn't wait to get back to work ... (at that stage he) loved work.' He enjoyed being a provider. Now he can see that this was 'stupid.'
The hand injury did require surgical intervention.
The applicant denies that any of his physical injuries had any psychological effect.”
…
Mr Borg denies ever developing symptoms of psychological disorder following physical injury. This is contradicted, however, in the GP clinical file.”
The Medical Assessor referred to Mr Borg’s statement:
“Mr Borg’s statement… traverses the topics, which we discussed in the interview today. He lists numerous physical injuries over his time working for Patrick Stevedores. There was a right hand injury on 6 February 2020, which was ‘a more significant injury’ and Mr Borg took ‘three months, three weeks, and three days’ off work and required surgical treatment. The injury was associated with ‘stress and worry’ and Mr Borg was referred to a psychologist, but in the finish did not see one as his symptoms improved. He is emphatic that this was a ‘temporary stressor.’”
The reasons that the Medical Assessor gave for making a deduction were:
“There is a history of a right hand injury in 2020 which was associated with a psychological disorder, mostly characterised by anxiety. Unfortunately the general practitioner records do not extend back to this epoch.
…
Mr Borg dates the onset of his psychological disorder to approximately May 2021 and there may well have been persistent symptoms of this previous (secondary) psychiatric condition at that time. In any case, it is likely that his pre-existing condition made him more susceptible to a Major Depressive Episode.”
Evidence
In his statement dated 22 November 2022 Mr Borg said:
“On 6 February 2020, I sustained an injury to my right hand whilst working for Patrick Stevedores Holdings Pty Ltd. The insurer was icare and the claim number was 2818177701. It was a more significant injury compared to the other injuries as I needed more time off work (3 months, 3 weeks and 3 days) and had surgical treatment. The insurer paid for my medical expense and my time off work. As a result of the injury, I was diagnosed by GP Dr Eric Lim as having an Acute Stress Disorder. I was referred to a psychologist but I didn't end up seeing one as I didn't need to. The stress and worry I had because of the injury resolved after it was treated and getting better and soon after I was able to return to work and not being able to work was adding to the stress. At the time of the injury, I loved worked and I wanted to get back as soon as I could. This injury was a temporary stressor as I was initially in pain and didn't have feeling in the hand, but as the situation was improving with medical treatment and I was able to get back to work under 4 months after, the stress of the situation resolved.”
With respect to the causation of the injury which is the subject of the proceedings, Mr Borg said that he had worked under two people who had been victimising him “for quite a while now.” He said that he began to experience symptoms “in the last year and a half”, thus dating back to mid 2021. He said that the injury “started brewing” from May 2021.
There are no notes from general practitioners which pre-date the injury to his right hand in February 2020. On 14 February 2020 Mr Borg saw Dr Lim about the injury to his right hand suffered on 6 February 2020. Dr Lim recorded that in addition to the symptoms in his right hand, Mr Borg had “trouble sleeping, anxious, worried.” Dr Lim diagnosed an acute stress disorder and recommended referral to a psychologist. The diagnosis of acute stress disorder was repeated in the notes made by other doctors in the same practice on 26 March 2020, 17 April 2020 and 15 May 2020.
On 25 May 2020 Dr Calvache-Rubio said that on 25 May 2020 he had a telehealth consultation in which Mr Borg used a “rather abusive tone” and was “very upset”. He said:
“Noted has Psycholgoical distress on medical certificate from WC
may be the reason
asking for Pre injury duties.
although no MRI or letter from specialist
I was nable to perform a consultation
unable to give clearence at this stage.
patient adviced will go to local GP for a clearance.” [sic]Mr Borg subsequently consulted two other practices. The notes from each of those practices in the Application to Resolve a Dispute are incomplete.
Mr Borg saw Dr Acorda on 11 November 2021 complaining of six months of feeling stressed at work and being verbally abused by a co-worker. He did not provide a history of a previous psychological condition resulting from the injury to his right hand.
Dr Saboor assessed Mr Borg at the request of his solicitors and reported on 7 October 2022. Dr Saboor set out a history of conflict which dated back to the first days of his employment. He did not record a history of the injury to Mr Borg’s hand in 2020. Dr Saboor assessed 26% WPI and did not make any deductions.
Dr Roberts saw Mr Borg for Patrick and reported on 25 September 2022 and 28 July 2022. He did not consider that Mr Borg suffered an injury but instead that he had an underlying personality disorder.
Patrick’s insurer declined the claim on the basis that Mr Borg did not suffer an injury or, if he did, it had not resulted in more than 15% WPI.
There was no medical opinion in the file which dealt with a deduction, either under s 323 or on any other basis. As noted above, the referral merely asked the Medical Assessor to consider if a deduction for a pre-existing condition was appropriate. His attention was not drawn to the fact of the pre-existing secondary psychological condition not was he given any guidance about the law which may apply.
Authorities and other Appeal Panel decisions
Mr Borg submitted that making a s 323 deduction was an error of law because his previous psychological condition was secondary to a physical condition. He submitted that Mercy Centre Lavington Ltd v Kiely[8] (Kiely No 1) was authority for the proposition that it is an error of law to make a s 323 deduction for a previous or pre-existing secondary psychological injury.
[8] [2017] NSWSC 1234.
Ms Kiely suffered a physical injury and secondary psychological injury as a result of an assault in April 2011 and a subsequent primary psychological injury some time in 2012[9] in the same employment. Ms Kiely and her employer agreed that the referral to the Approved Medical Specialist (AMS) should highlight that impairment arising from the secondary psychological condition should be excluded from the assessment as required by s 65A of the Workers Compensation Act 1987 (the 1987 Act) and Ms Kiely made a formal admission that she suffered a secondary psychological condition as a result of the assault in addition to the later primary psychological injury.
[9] The deemed date of injury is not set out in the decision.
The AMS assessed 17% WPI and apportioned the impairment as to 12% to the primary psychological injury and 5% to the secondary psychological condition. An Appeal Panel set aside the apportionment and said that there was overlap between the two conditions. The panel sought to “borrow” the method in s 323 to assess the contribution from the previous secondary psychological injury.
Wilson J said in Kiely No 1 that while the methodology adopted by the Panel was arguably convenient, it was not open to it to use s 323 to assess the contribution from the secondary psychological component of the first injury. Her Honour said that s 65A of the 1987 Act and s 323 of the 1998 Act served different purposes – s 65A dealing with compensation and s 323 with the assessment of impairment. Her Honour also noted that there was a great deal of evidence to which the Panel could have had regard in assessing the effect of the secondary psychological injury and there was no evidentiary basis on which to conclude that it was difficult or costly to do so.
Her Honour remitted the matter to the Workers Compensation Commission. A decision was issued by a different Medical Appeal Panel and a further application for judicial review was made and considered by Harrison AsJ in Mercy Connect Limited v Kiely[10] (Kiely No 2). The decision is commonly cited as authority for the proposition that a Panel must find error before undertaking a medical assessment and the decision of the Appeal Panel was set aside because no error had been identified before the examination was undertaken.
[10] [2018] NSWSC 1421.
Because that ground of appeal was made out, Harrison AsJ said that it was not necessary to decide the other grounds of review but made observations about them because she considered they were important. Her Honour said:
“For convenience, s 65A of the Workers Compensation Act (which I have set out earlier in this judgment) requires a distinction to be drawn between primary psychological injury and secondary psychological injury. Under s 65A(1), no compensation is payable for permanent impairment that results from a secondary psychological injury. When an AMS (or Appeal Panel) assesses the degree of permanent impairment resulting from a primary psychological injury, no regard can be had to any impairment or symptoms resulting from a secondary psychological injury in accordance s 65A(2).
The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.
This two-step process accords with the referral of the Workers Compensation Commission on 24 October 2016. This referral provided for the AMS to assess the degree of WPI arising out of the primary psychological injury sustained by Ms Kiely as a result of the incident, excluding “any impairment or symptoms arising from or attributable to, the secondary psychological condition.”
Mr Borg relied on the Medical Appeal Panel decision in Ausgrid Management Pty Ltd v Fisk[11] to argue that there should be no deduction, saying that the condition for which the Medical Assessor made a deduction under s 323 was a secondary psychological injury. His submissions cited the following passage from the decision:
“The requirement of s 65A(2) is that a Medical Assessor have no regard to the impairment or symptoms resulting from a secondary psychological injury when assessing the degree of permanent impairment from a primary psychological injury. Her Honour Harrison AsJ in obiter dicta propounded in Keily no 2 a two-step process by which a Medical Assessor could abide the mandate of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step is to assess the overall degree of permanent impairment of a worker in accordance with clauses 11.11 and 11.12 of the Guidelines. The second step is to assess separately the worker’s permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The Appeal Panel considers that such a process is apt for the circumstance where there can be a disentanglement of the impairment and symptoms a worker suffers due to a secondary psychological injury from the impairment and symptoms a worker suffers due to the primary psychological injury.
In this case however, that cannot be done. In this case, …, the impairments of function and symptoms the respondent has from both his primary psychological injury and secondary psychological injury are completely intermingled. His impairment and symptoms from one injury are indivisible from the impairment and symptoms from the other injury and cannot be disentangled. ...
The Appeal Panel considers that the requirement of s 65A(2) to have no regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. If it were otherwise, then in a case such as this, where the impairment and symptoms from the primary psychological injury and the secondary psychological injury are indivisible and cannot be disentangled, to disregard the impairment and symptoms from the secondary psychological injury would mean to disregard the impairment and symptoms from the primary psychological injury. It would mean that a worker could be assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact a worker did have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the express objectives of the legislation that injured works receive payment for permanent impairment.”
[11] [2023] NSWPICMP 237.
The decision in Fisk was followed by a Medical Appeal Panel in Mates Workforce Pty Ltd v Hassan.[12]
[12] [2023] NSWPICMP 495.
Mr Borg said that there was no evidence of any impairment resulting from the earlier secondary injury that could be disentangled from the primary injury deemed to have been suffered on 29 March 2022. He noted that the Medical Assessor recorded that he denied any previous psychiatric disorder and that the physical injury in 2020 was a temporary stressor.
Consideration
Though the statements made by Harrison AsJ in Kiely No 2 were obiter dicta and decisions of other Medical Appeal Panels are not binding on us, we consider in the circumstances of this case that we should have regard to them – particularly when the submissions made on behalf of Patrick do not engage with those made for Mr Borg. The Medical Assessor made a deduction under s 323 of the 1998 Act but the effect of the Kiely decisions is that a s 323 deduction in respect of a previous psychological injury was not open to him. If Mr Borg continued to suffer the effects of a previous secondary condition, Keily No 2 would require us to assess the resulting impairment and make a deduction from our assessment. If the effects of the condition were intermingled, no deduction would be required.
The Medical Assessor’s statement that the general practitioners’ records do not extend back to the period following the injury to his hand is not correct. There are contemporaneous notes during his treatment which, when considered with his statement, enable us to determine the appeal. On the basis of that evidence and Mr Borg’s statement, we consider that the effects of the secondary psychological condition had ceased.
Dr Lim diagnosed an acute stress disorder at his first consultation, as did the other doctors in his practice who later saw Mr Borg. Based on the history in the file and the fact that the condition was secondary to a serious hand injury, we consider that this was an appropriate psychiatric diagnosis . It is, by definition, a time limited condition, related to a particular stressor.
Mr Borg’s evidence is that he did not undergo the treatment proposed by his general practitioner. He was keen to return to work and did so and he said that “the stress of the situation resolved” on his recovery and returned to work. This history is consistent with an acute stress disorder and the condition was likely to have resolved before the events which caused the injury deemed to have been suffered on 29 March 2022. No deduction should be made from the impairment assessed.
For these reasons, we have determined that the MAC issued on 11 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: | W8001/22 |
Applicant: | Jason Adam Borg |
Respondent: | Patrick Stevedores Holdings Pty Ltd |
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 Andrew McClure 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) |
| Psychological injury | Chapter 11 | N/A | 15% | 0% | 15% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
7
0