Bos v East Coast Security Dogs Pty Ltd
[2021] NSWPICMP 153
•25 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bos v East Coast Security Dogs Pty Ltd [2021] NSWPICMP 153 |
| APPELLANT: | Simon Bos |
| RESPONDENT: | East Coast Security Dogs Pty Ltd |
| APPEAL PANEL: | Member Marshal Douglas Dr Patrick Morris Dr Douglas Andrews |
| DATE OF DECISION: | 25 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The medical dispute related to the degree of permanent impairment of the appellant worker from a psychiatric injury of PTSD; Medical Assessor (MA) found that a proportion of the appellant’s permanent impairment was due to a pre-existing Major Depressive Disorder that was in remission at the time of injury but which recurred due to physical injuries that the appellant also suffered in the incident from which his PTSD occurred; the MA made a deduction under section 323(1) of 50% for that pre-existing condition; appellant submitted that MA did not correctly apply section 323 because no evidence that his pre-existing condition made a difference to the outcome and further submitted that MA had not sufficiently explained why 10% deduction was at odds with evidence; Held- Appeal Panel found that MA explained sufficiently why pre-existing condition contributed to appellant’s permanent impairment and why the proportion of that contribution was 50%; Appeal Panel considered that the explanation the MA provided exposed why he had made the assessment; the Appeal Panel considered it was open to the MA, based on the evidence and for the reasons the MA explained, to make the assessment he did; MAC upheld. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 June 2021 Simon Bos (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 May 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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was employed by East Coast Security Dogs Pty Ltd (the respondent) as a security guard. He was working as such on the evening of 1 March 2013 at the Oasis Hotel in Bankstown. The manager of the hotel required him to assist two of the hotel’s security guards to escort a patron from the hotel premises. That patron became aggressive towards the appellant. The appellant restrained him and put him on the ground. The appellant was then attacked from behind by a friend of the patron, who jumped and stepped on the appellant’s left ankle several times. This resulted in the appellant suffering a fracture of the lower ends of his tibia and fibula and disruption of the distal tibio fibular joint, which required open reduction and internal fixation. The injury to his left ankle resulted in the appellant having an altered gait that in turn resulted in the appellant suffering lumbar discopathy.
The incident also resulted in the appellant suffering a psychiatric injury. Psychiatrist Dr Thomas Oldtree Clark, in a report dated 3 September 2019 addressed to the appellant’s solicitors, advised that he had diagnosed the appellant’s psychiatric injury was Post Traumatic Stress Disorder (PTSD) and that he had assessed the appellant has 23% whole person impairment (WPI) from this psychiatric injury.
The appellant had previously been examined by surgeon Dr Sheik Habib with respect to the injury the appellant suffered to his left ankle and consequent lumbar discopathy. In a report dated 2 March 2017 addressed to the appellant’s then solicitors, Dr Habib advised he had assessed the appellant had 17% WPI from the injury the appellant suffered to his ankle.
On 10 November 2019, the appellant’s solicitors wrote to the respondent’s insurer notifying it that the appellant claimed the respondent was liable to pay him weekly compensation, compensation for the costs of medical treatment and also compensation for 23% WPI. The appellant’s solicitors provided the insurer with the reports of Dr Clark and Dr Habib. The appellant’s solicitors advised the insurer that the appellant had 17% WPI from his physical injuries. They further advised that the appellant “seeks the physical injuries impairment compensation only in circumstances where the psychological impairments are lesser (sic) than 15% whole person impairment if the matter is referred to an Approved Medical Specialist”.
The insurer’s solicitors then arranged for appellant to be examined by psychiatrist Dr Roger Wenden. In a report dated 24 December 2019, Dr Wenden advised the insurer’s solicitors that he could not provide an assessment of the appellant’s WPI because in his view the appellant had not received adequate treatment and maximum medical improvement had not been achieved.
The insurer’s solicitors wrote to the appellant’s solicitor on 13 February 2020 providing them a copy of Dr Wenden’s report and advising them that “no offer will be made in respect of the lump sum claim on the basis that your client has not reached maximum medical improvement in respect to his alleged psychological condition”. The insurer’s solicitors under cover of that letter also provided the appellant’s solicitors with a letter the insurer had written to the appellant, also dated 13 February 2020, in which the insurer disputed, for various reasons, that it had any liability to pay the appellant compensation for the appellant’s physical injuries.
The appellant’s solicitors then registered with the Commission an Application to Resolve a Dispute seeking determination of the appellant’s claims for compensation. The Commission referred the matter to Member Mr Anthony Scarcella, who on 1 April 2021 made several directions, with the consent of the parties that, relevantly, included this:
“The matter is remitted to the President for referral to a Medical Assessor for assessment pursuant to the Workplace Injury Management and Workers Compensation Act 1998 as follows:
Date of injury: 1 March 2013.
Body System: Primary psychiatric/psychological disorder.Method of Assessment: Whole Person Impairment.”
That medical dispute was duly referred to the Medical Assessor on 6 April 2021. He examined the appellant on 28 April 2021 and, as mentioned earlier, issued the MAC on 14 May 2021. The Medical Assessor certified in the MAC that he assessed the appellant’s permanent impairment from “psychological injury/mind” is 24% WPI but that half of that is due to a pre-existing condition. The Medical Assessor applied s 323(1) of the 1998 Act and certified the appellant’s permanent impairment from his psychological injury is 12% WPI. The appellant in his appeal against the MAC challenges the correctness of the deduction that the Medical Assessor made under s 323(1).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel came to the view that the Medical Assessor’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error. The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need to nor have the power to require the appellant to be re-examined.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor set out extensively within Part 4 of the MAC the history he obtained from the appellant, and it is apparent this was done with the Medical Assessor having had regard to the histories that other clinicians who had treated the appellant had recorded in their respective records regarding their treatment. The history the Medical Assessor obtained detailed the onset of the appellant’s primary psychiatric injury of PTSD that arose from the incident on 1 March 2013 and also detailed treatment the appellant had receive for a psychiatric illness he previously had but which was asymptomatic as at 1 March 2013.
The Medical Assessor provided the following summary in Part 7 of the MAC of the appellant’s psychiatric injury:
“Mr Bos is a complex case, hampered by both the internal inconsistencies within his
own report, his focus on all difficulties being attributable ‘to my PTSD’ and apparent
lack of full information either provided to the IMEs or explored by them. On reviewing
the contemporaneous documentation, it is clear that Mr Bos had a recurrent Major
Depressive Disorder with two prior admissions and long-term treatment for nearly a
decade prior to the assault in 2013. For several years after the incident the notes from
numerous clinicians in two hospitals and community settings including several
consultant psychiatrists, psychiatric nurses and other treating clinicians do not
describe any of the characteristics of Posttraumatic Stress Disorder, and Mr Bos
reports not having Criterion B symptom in 2015. What they do clearly and
consistently describe is a relapse of his recurrent Major Depressive Disorder caused
by chronic pain, sequelae, and dysfunction arising from his physical injury i.e. a
secondary psychiatric injury.It is only in the past two years that there have been any reports of criterion B and C
symptoms of Posttraumatic Stress Disorder. This either reflects a very late onset
disorder, a new focus on different symptoms by different clinicians that was missed
for years by many others, or a potential legal iatrogenic manifestation. Nevertheless
he now meets the full criteria for that disorder and certainly had a criteria A event and
has symptoms in all four domains. This, late onset Posttraumatic Stress Disorder is
the primary psychiatric injury caused by the incident. He appears chronically unwell
with increasing physical and psychological symptoms over time.His physical symptoms as described today may well be the manifestation of a
somatoform pain disorder, given how different they are to 2017 and inexplicable onthe basis of his injury.”
In the PIRS rating form appended to the MAC the Medical Assessor confirmed that he had diagnosed that the appellant had a “primary injury” of “late onset Post Traumatic Stress Disorder”. He also noted he had diagnosed the appellant had a “secondary injury” of “exacerbation of a pre-existing recurrent Major Depressive Disorder”. The Medical Assessor assessed the appellant had a WPI from these psychiatric illnesses of 24%. There is no challenge to that in his appeal. As mentioned, the appeal relates to the deduction the Medical Assessor made under s 323(1) of the 1998 Act for the proportion of the appellant’s overall WPI that is due to his pre-existing condition of Major Depressive Disorder, which the Medical Assessor assessed was half of the appellant’s overall WPI from his psychiatric illnesses. The Medical Assessor provided the following explanation for that at Part 8f of the MAC.
“He had a recurrent Major Depressive Disorder and this was exacerbated as a secondary psychiatric injury consequent to his psychical (sic) injury as identified by the contemporaneous notes and discharge summaries. It is quite clearly apparent that his low mood and irritability as well as significant dysfunction arising from his pain in this relapse episode contributed to the breakup of his relationship as well as further withdrawal from function, indicating that this secondary psychiatric injury contributes a significant portion to his current whole person impairment, if not the majority of it. There are however a number of features now including intrusive
memories hyperarousal, avoidance and withdrawal that reflects the primary
Posttraumatic Stress Disorder psychiatric injury which contribute significantly to his
current impairment. It is impossible to calculate a pre-existing impairment because
his secondary psychiatric injury, the exacerbation of his pre-existing recurrent Major
Depressive Disorder actually post-dated the incident itself and his primary injury only
became manifest many years after the injury. As such, a 1/10th deduction under
section 323 is inappropriate and is at odds with the evidence which would indicate
that approximately half of his current whole person impairment is a result of thesecondary psychiatric injury exacerbating his pre-existing psychiatric disorder.”
He repeated that explanation in almost identical terms at Part 11 of the MAC.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor did not correctly apply s 323 of the 1998 Act. The appellant submitted that he was in good health as at 1 March 2013 and that there was no evidence to “suggest” that his impairment is due to a pre-existing condition. The appellant submitted that “it cannot be said that but for the pre-existing condition, the degree of impairment resulting from [his] work injury would not have been as great”.
The appellant further submitted that the Medical Assessor did not sufficiently explain his reasoning regarding why he considered a 1/10th deduction with respect to the proportion his pre-existing condition contributed to his impairment was at odds with the evidence. The appellant submitted that if a deduction is warranted, then noting the Medical Assessor found that “it is impossible to calculate a pre-existing impairment” the deduction should have been 1/10th.
In reply, the respondent submitted, in substance, that the Medical Assessor’s assessment of the appellant’s permanent impairment from the appellant’s primary psychiatric injury of PTSD is, in the end result, correct. This is because, according to the respondent, the assessment accords with the requirements of ss 65A(1) and (2) of the Workers Compensation Act 1987 (the 1987 Act) in that the Medical Assessor disregarded the appellant’s symptoms and impairment due to a secondary psychological injury in the form of an exacerbation of appellant’s pre-existing Major Depressive Disorder. The respondent submitted the exacerbation of appellant’s pre-existing Major Depressive Disorder from the work incident on 1 March 2013 was “secondary in nature”.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
With respect to the deduction a Medical Assessor is to make under s 323(1), the authorities are consistent and clear regarding the approach a Medical Assessor must take. That is, the level of a worker’s post-injury impairment, as at the time of assessment, must firstly be determined. Secondly, a worker’s prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of a worker’s post-injury impairment is due to that prior injury or pre-existing condition. Lastly, the extent to which a worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined.[2]
[2] See Cole v Wenaline Pty Ltd [2010] NSWSC78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz) and Ryder v Sundance Bakehouse [2015] NSWSC526 (Ryder).
The Court of Appeal held in Ryder that the pre-existing condition that a worker has or the prior injury the worker has suffered must make a difference to the outcome in order that a worker’s impairment can be found to be due to it.[3] The extent to which it does make a difference, there must be a deduction.
[3] Ibid.
The third stage of this process cannot be done based on assumption or hypothesis, but must be done by reference to the evidence. The evidence must be able to demonstrate that a proportion of a worker’s impairment is due to the pre-existing condition or previous injury.[4] Further, the fourth stage can also not be done by reference to assumption unless the extent to which a deduction is to be made under s 323(1) would be too difficult or costly to determine, because of the absence of medical evidence or some other reason, in which case, in accordance with s 323(2) of the 1987 Act, the deduction is be assumed to be 10% so long as that assumption is not at odds with the evidence.
[4] See Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86].
Section 325(2)(c) of the 1998 Act requires a Medical Assessor to set out within the MAC his or her reasons for the assessment of the matters that were referred for assessment. The reasons must be sufficient to reveal the actual path by which a Medical Assessor arrives at his or her assessment.[5] The reasons do not need to be comprehensible to a person with no medical expertise, such that if a conclusion of a Medical Assessor is self-evident in a medical sense, then the reasons need not be extensive. If, however, a conclusion may be medically contestable, based on the evidence, then a Medical Assessor will need to address the evidence so as to expose the path of his or her reasoning in order to explain the conclusion to which he or she came.[6]
[5] See Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA43 at [55] and Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC1320 at [73] – [79].
[6] See Vitaz at [34]; see also Campbelltown City Council V Vegan & Ors [2006] NSWCA 284 at [121]-[122].
As said, there is no challenge to the Medical Assessor’s assessment of the appellant’s permanent impairment from psychiatric illness. There is also no challenge to the Medical Assessor’s finding that the appellant had a pre-existing condition, being a Major Depressive Disorder. This was in remission and not impairing the appellant as at 1 March 2013.
The appellant’s appeal relates to the third and fourth steps of the process mandated by s 323.
The Medical Assessor’s explanation for why he found that a proportion the appellant’s permanent impairment was due to the appellant’s pre-existing Major Depressive Disorder was, essentially, that the illness had recurred as a consequence of chronic pain, sequelae, and dysfunction from the physical injury the appellant suffered on 1 March 2013. The Medical Assessor explained that the recurrence of the Major Depressive Disorder manifested by the appellant having low mood and irritability and significant dysfunction. The Medical Assessor addressed the evidence when providing his explanation, including the extensive history he had obtained.
The Appeal Panel considers that this explanation the Medical Assessor provided sufficiently explains his reasons for the third step required by the process mandated by s 323. That is to say, his explanation sufficiently revealed why he considered a proportion of the appellant’s permanent impairment was due to a pre-existing condition. Based on the reasons the Medical Assessor provided, the Appeal Panel considers it was open to the Medical Assessor to form the opinion he did on this issue.
With respect to the fourth step, the Medical Assessor explained that the appellant’s low mood and dysfunction manifesting from the recurrence of the appellant’s Major Depressive Disorder contributes a significant portion to the appellant’s present impairment “if not the majority of it”. The Medical Assessor explained that the appellant’s low mood and irritability from his Major Depressive Disorder causes the appellant a significant withdrawal from function. The Medical Assessor further explained that features manifesting from the appellant’s PTSD also affected the appellant’s function and made a significant contribution to the appellant’s present impairment.
The Medical Assessor, by using the term “impossible”, clearly acknowledged there was difficulty in determining the exact extent to which the appellant’s pre-existing condition contributed to the appellant’s present impairment. This is partly because the exacerbation of the pre-existing condition was secondary to the physical injury and partly due to the assessor finding the appellant an unreliable reporter of his history. The Medical Assessor explained that to assume the extent of the contribution the pre-existing condition makes to the appellant’s permanent impairment is 1/10, would be at odds with the evidence. In the Appeal Panel’s view, when the passage from the MAC extracted at [19] above is read in whole, the Medical Assessor’s reason for this conclusion was that he considered the features manifesting from the appellant’s Major Depressive Disorder accounted for at least half of the overall impaired function of the appellant and that the features manifesting from the appellant’s PTSD contributed almost half. The Medical Assessor formulated his opinion on this issue having regard to the extensive history he had obtained, which, as mentioned, he did having regard to the clinical records before him relating to the appellant.
In such circumstance, the Medical Assessor was precluded, by s 323(2), from assuming the deduction to be made under s 323(1) was 10%. The Appeal Panel considers that the Medical Assessor sufficiently explained his reasons for not being able to assume the deduction to be made under s 323(1) was 10%. It is known from the MAC why he could not do so.
In the Appeal Panel’s view, it is also apparent from the MAC that the Medical Assessor considered, and sufficiently explained, that the appellant’s Major Depressive Disorder made a difference to the appellant’s present impairment. This is again because the Medical Assessor found that the features of the appellant’s Major Depressive Disorder caused the appellant a significant withdrawal from function and contributed to at least half of the appellant’s present impairment.
Consequently, the Appeal Panel considers that the Medical Assessor has provided a sufficient explanation for the deduction he made under s 323(1). Based on the history the Medical Assessor obtained, it was open to the Medical Assessor to come to this opinion.
The Appeal Panel also considers that the Medical Assessor was correct to apply s 323, and that is because the appellant had a pre-existing condition and that a proportion of the appellant’s impairment was due to that pre-existing condition. Insofar as the Medical Assessor made a deduction under s 323 for the extent to which that pre-existing condition contributes to the appellant’s permanent impairment, then the requirements of ss 65A(1) and (2) have also been met in this case. This is because the symptoms manifesting from the appellant’s pre-existing condition recurred as a consequence of the appellant’s physical injury. Hence, by making a deduction under s 323 of the 1987 Act for the extent to which that pre-existing condition contributes to the appellant’s overall impairment from his psychiatric injury, the Medical Assessor has, in effect, disregarded the appellant’s symptoms and impairment from a secondary psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 May 2021 should be confirmed.
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