Bourke Aboriginal Health Service v Doolan
[2022] NSWPICMP 20
•15 February 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bourke Aboriginal Health Service v Doolan [2022] NSWPICMP 20 |
| APPELLANT: | Bourke Aboriginal Health Service |
| RESPONDENT: | Ellen Doolan |
| APPEAL PANEL: | Member John Wynyard Dr Julian Parmegiani Dr Doug Andrews |
| DATE OF DECISION: | 15 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Employer appeal against failure by Medical Assessor (MA) to make a section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction for pre-existing asymptomatic psychological injury; Held- error made by MA in that he found that only pre-existing work-related psychological injuries should be deducted: evidence confirmed the presence of pre-existing depression that contributed to the impairment caused by the subject injury; Medical Assessment Certificate revoked, and 1/10th deduction certified. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 October 2021 Bourke Aboriginal Health Service, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 29 September 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI" is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 9 July 2021 this matter was referred to the MA for an assessment of WPI caused by psychiatric/psychological disorder deemed to have occurred on 21 October 2021.
Ms Doolan sustained her injury by virtue of the conduct of her co-workers, who bullied, harassed and isolated her when she worked as an Aboriginal Health Worker for the Bourke Aboriginal Health Service between October/November 2018 and a date in October 2019.
The MA assessed 15% WPI.
The sole ground of appeal was that the MA should have made a deduction pursuant to s 323 of the 1998 Act.
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.
The appellant employer did not seek to have the respondent worker examined by a MA who is a member of the Appeal Panel. Although a demonstrable error was established, a re-examination was not required as the issue concerned an asymptomatic pre-existing condition, the evidence of which was before us.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC
The templated form used by the MA contained the following heading:
“Details of any previous or subsequent accidents, injuries or condition:”
The response by the MA was:[1]
“Ms Doolan reported that she had no previous WorkCover claim to this work-related injury. Ms Doolan reported that this was her first work-related psychological injury claim….”
[1] Appeal papers p 24.
The MA noted that Ms Doolan lost her first child, who drowned at about 2 ½ years of age in 1998. The MA noted that “Ms Doolan’s eldest brother and youngest brother as well as an aunt had died.” He also recorded that her husband had been domestically violent towards her and they separated.[2]
[2] Appeal papers p 25.
In discussing the injury itself, the MA described in some detail the circumstances of the bullying, isolation and harassment Ms Doolan had experienced at the hands of the respondent. As the bullying and harassment progressed, the MA recorded, Ms Doolan became
“..overwhelmed by her persistently depressed mood. She reported that she had not experienced psychiatric and psychological symptoms so severe that they had prevented her from being able to work or impaired her social interactions with the community”
The MA described the symptoms that Ms Doolan experienced as a result of her depressed mood. He said:[3]
“Ms Doolan reported that this experience of a persistently depressed mood with loss of self-esteem, self-confidence with loss of her daily functions of living was different to the normal grief she had experienced involving the loss of her first-born child, father, brothers and aunt. She had experienced grief in her life prior to this work-related injury and was not impaired in her capacity to work, care for her family or maintain her community work in either an employed or volunteer capacity.”
[3] Appeal papers p 23.
He then said:[4]
“Ms Doolan stated that the work-related, bullying and harassment came too severe, and she consulted her family doctor. She was referred to a clinical psychologist for psychological treatment. She was treated with Fluoxetine 20 mg daily. This increased to fluoxetine 20 mg twice daily…”
[4] Appeal papers p 23.
When considering Ms Doolan’s present treatment, the MA noted that she “continued to use Fluoxetine 20 mg, two capsules daily her antidepressant medication.”
In his summary, the MA said:[5]
“In my medical opinion Ms Doolan did not have any pre-existing assessable psychiatric condition. She spoke about the five very significant deaths in her life, these being the death of her first-born child, the death of her father, eldest and youngest brothers as well as her aunt. She stated that whilst each had been distressing, she had resolved the grief of each of these deaths prior to this assessment.”
[5] Appeal papers p 26 [7].
At [10] of the MAC the MA said:[6]
“Ms Doolan had not suffered from [any] pre-existing or subsequent psychological work-related injury.
……
Ms Doolan had no pre-existing psychiatric condition. No adjustment was made for pre-existing condition due to this reason.”
[6] Appeal papers p 28.
In considering other opinions before him, the MA referred in considerable detail to the evidence before him. He reproduced portions of the three statements made by Ms Doolan. In the statement dated 15 June 2021 the MA reproduced the following:[7]
“I am the mother of five children, my first-born son is deceased (25/4/1986-21/10/1988), I have four other children, their ages range from 24 to 30 years-old and I am grandmother to three beautiful grandchildren. During my relationship with their father, I experienced domestic violence resulting in me raising our children as a single parent.
In 1988 I lost my first-born child in an accident it was the love and support of my family and friends and the support of my Pastor and Church family that help me in the early stages of my grief. In order to help me cope further and be there for my other children I joined the Dubbo Chapter of the National Association of Loss and Grief and Compassionate Friends.”
[7] Appeal papers p 30C.
The MA also extensively reproduced portions of the medical evidence before him. Dr Frank Chow, psychiatrist, was the medico-legal expert retained by the worker. The MA reproduced amongst the material copied, Dr Chow’s comment that “there is a history of depression”.[8]
[8] Appeal papers p 32.
The MA also referred to the report of the appellant employer’s qualified expert, Dr Mukesh Kumar, psychiatrist, dated 26 February 2021. The MA noted:[9]
“From the medical report of Dr Bisht, [Dr Kumar] notes that in July 2019, her niece died at the age of 33. This death led to a coronial enquiry. This had a significant impact on her as she has only one sister.”
[9] Appeal papers p 177.
In the templated question regarding deduction for impairment that was due to previous injury, pre-existing condition or abnormality, the MA said, “there is no deductible proportion”.
SUBMISSIONS
The appellant employer
The appellant employer referred to the provisions of s 323 of the 1998 Act and to Chapters 1.6b and 1.27-28 of the Guides.
We were referred to the well-known decisions of Cole v Wenaline Pty Ltd[10] and to dicta of Campbell J in Ryder v Sundance Bakehouse[11].
[10] [2010] NSWSC 78.
[11] [2015] NSWSC 526.
The appellant employer submitted that the MA had failed to apply the provisions of s 323 in accordance with the principles set out in the cited cases.
We were referred to several extracts from the reports and statements of the different witnesses which were before the MA. These matters are considered in the discussion of the case below.
This evidence, it was submitted, contradicted the finding by the MA that there was no deductible proportion pursuant to s 323 of the 1998 Act. The MA appeared to have limited his consideration regarding any contribution from a pre-existing condition to the impairment assessed as being only applicable to previous work-related accidents, injuries or conditions. There were also matters of history that had been given to Dr Kumar that were recorded incorrectly as the MA had not considered that Ms Doolan had recently also suffered the loss of her niece at 33 years of age, nor had he commented on the domestic violence she had suffered at the hands of her ex-partner and its effect on her mental state.
The appellant employer also submitted that the MA had not addressed the fact that Ms Doolan had been taking Fluoxetine, an anti-depressant medication, on a regular basis at the time she was employed. The conclusion by the MA that Ms Doolan was not impaired by the grief she suffered with the deaths of her relatives was contrary to the evidence of counselling and medication that Ms Doolan underwent following these events, it was submitted. Moreover, the MA’s finding that Ms Doolan was psychologically fit for employment did not take into account the fact that Ms Doolan required antidepressant medication to support her capacity to work.
Ms Doolan
Ms Doolan’s submissions were by Mr James McEnaney of counsel.
Mr McEnaney referred to dicta by Garling J in Pereira v Siemens Ltd[12] as to the necessary steps to be taken when considering a s 323 deduction.
[12] [2015] NSWSC 1133.
He emphasised that the MA had specifically stated that in his “medical opinion” there is no pre-existing “assessable psychiatric condition”. The MA also noted that whilst Ms Doolan had suffered the death of significant people in her life, she had resolved the grief “prior to this assessment”.
Mr McEnaney also emphasised that the MA stated that grief was a normal part of the human experience and “not a psychiatric condition”. The MA found “Ms Doolan was not impaired in each period of grief she experienced during her life” which Ms Doolan relied on.
We were referred to the well known principle that it was not appropriate to examine reasons of an MA “with an eye attuned to error”.
Mr McEnaney also referred to the requirement that an assessor disclose the actual path of reasoning as described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[13]. The MA had complied with that requirement, it was submitted.
[13] [2013] HCA 43 (Wingfoot).
Mr McEnaney submitted that the MA took a complex and accurate history and carefully weighed up the potential issues before forming a view based on his own clinical judgment.
Mr McEnaney concluded that neither Dr Chow or Dr Kumar found that there should be a s 323 deduction, so that in any event there was no support for the appellant employer’s case within its own evidence.
DISCUSSION
Although not mentioned by either party, it is convenient to reproduce the provisions of Chapter 11.10 of the Guides as well as the relevant terms of s 323.
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Chapter 11.10 of the Guides provides[14]:
“11.10 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.”
[14] Guides page 55.
There is a tension between the two provisions, which was examined by Simpson AJ in Marks v Secretary, Department of Communities and Justice (No 2):[15] At [24] she said (with the authorities omitted):
“The proposition that a guideline inconsistent with statute could take precedence is contrary to authority ….”
[15] [2021] NSWSC 616 (Marks).
Her Honour said at [28]:
“The submission was maintained that s 322(1) ‘gives precedence’ to the Guidelines. There is nothing in either s 376 or s 323(4) that authorises the issue of guidelines that are inconsistent with any provision of the WIM Act. It is implicit, even if not expressly stated, in any conferral of power to make regulations, guidelines, or any other kind of delegated legislation (if that is what guidelines are) that the exercise of the power be consistent with the provisions of the legislation under which the power is conferred. So much is explicit in s 323(4)….. Subsection (4) authorises the State Insurance Regulatory Authority to make provision ‘for or with respect to the determination of the deduction required by this section’ (emphasis added). That leads inexorably back to subs (1), construed in accordance with established authority.”
Her Honour then concluded by saying at [29]:
“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.”
The appellant employer did not consider these provisions in its submissions, nor did it refer to Her Honour’s judgement. Had Ms Doolan’s pre-existing condition been symptomatic, error would have been established by the MA in his failure to apply the terms of Chapter 11.10. However, there is no evidence that Ms Doolan’s pre-existing condition was symptomatic at the time she commenced her employment, and for this reason the reliance on a failure by the MA to properly apply the provisions of s 323 by the appellant employer, rather than Chapter 11.10, is valid.
We note that Dr Frank Chow in his report of 9 February 2021 indeed completed an assessment pursuant to Chapter 11.10. This confirmed a median class I assessment pursuant to the Psychiatric Rating Scale, which meant that Mr Doolan was asymptomatic when she began work.[16]
[16] Appeal papers pp 72-73.
As indicated in our preliminary review, we are satisfied that a demonstrable error has been made.
Firstly, the MA misconstrued the test for applying these provisions. His qualification that Ms Doolan had not suffered any “work-related” pre-existing psychological injury demonstrated a misconception that only work-related pre-existing psychological injuries were subject to the deductions under the above provisions. Although he then said that Ms Doolan had no pre-existing psychiatric condition, his earlier comment regarding any previous injury was also qualified by his reference to “no previous WorkCover claim to this work-related injury.”
This misconception was clearly an error, as the terms of the s 323 and Chapter 11.10 do not limit their application to pre-existing conditions that were only work-related.
Secondly, we are satisfied that Ms Doolan was in fact suffering from a pre-existing psychiatric condition. Indeed, her own medico-legal expert, Dr Chow, confirmed that to be the case.
The history Dr Chow took was consistent with that taken by the MA, noting that the domestic violence Ms Doolan referred to related to her first long-term relationship of 12 years, which had ended some 23 years before. Dr Chow noted that Ms Doolan was now in a good eight-year relationship. He took a consistent history of the loss of Ms Doolan’s child in 1998 by drowning and noted that:[17]
“…[s]he started suffering from depression and she was on medication on and off over the years. She saw a psychologist for support and subsequently for grieving support as well as for domestic violence difficulties within her previous relationship.”
[17] Appeal papers p 69.
When asked whether Ms Doolan had suffered an aggravation of a pre-existing psychological condition, Dr Chow said:[18]
“Ms Doolan has a pre-existing psychiatric condition of depression and has been on antidepressants for many years prior to her workplace injury.
I do consider this an aggravation injury and I do consider your client's employment was the main contributing factor.”
[18] Appeal papers p 71.
Further, Ms Doolan herself acknowledged her pre-existing condition in her statement of 15 December 2020, when she said:[19]
“I have had depression since 1988 after losing one of my children.”
[19] Appeal papers p 47 at [5].
Thirdly, Dr Chow noted when describing Mr Doolan’s medication that she was taking fluoxetine 40 mg once a day, and that “she has been on fluoxetine for five years.” This portion of Dr Chow’s report was reproduced by the MA in the MAC, but we presume was not noted by him, as the history the MA took of Ms Doolan’s medication was that it began when she sought treatment as a result of the subject injury.[20]
[20] See Appeal papers p 69 (Dr Chow’s report of 9 February 2021) and p 32 (the MA’s reproduction).
We regard this error in the history taking as significant. Dr Chow’s report was dated 9 February 2021, and Ms Doolan commenced employment on 4 October 2018. It follows that at the time she obtained her employment, Ms Doolan was already prescribed anti-depressant medication in the form of fluoxetine, which she had been taking for at least two years. Dr Chow’s description of Ms Doolan suffering a pre-existing psychiatric condition, and that she had been taking antidepressants for “many years” raises the suggestion that she may have been taking such medication for longer than two years prior to commencement of employment. In any event this error demonstrates that the MA was unaware of, or misunderstood, a significant factual matter.
Although Ms Doolan submitted that neither Dr Chow nor Dr Kumar had made a deduction pursuant to s 323, it is relevant that Dr Chow turned his mind to the subject, but in applying Chapter 11.10 to an asymptomatic pre-existing condition, he failed to apply the correct test, which according to the dicta in Marks, was to consider the whether the provisions of s 323 were applicable.
Similarly, it was somewhat disingenuous to claim that Dr Kumar did not apply a deduction pursuant to s 323, when his opinion was that Ms Doolan was suffering from the aggravation of pre-existing psychiatric condition, and that the appellant employer was accordingly not liable in any event.
We are grateful for the authorities referred to us by counsel regarding the application of s 323, but find that there is no need to rehearse them in this circumstance. It is settled that a deduction can be made even if the pre-existing condition was asymptomatic at the time, provided it was a contributing factor to the impairment assessed as a result of the subject injury.
We are satisfied that there was a pre-existing condition of depression which required the prescription of anti-depressant medication. As much was conceded by Dr Chow. We refer in passing to the clinical notes from RaRMS Health Bourke that noted Ms Doolan was suffering from depression on 19 January 2017.[21]
[21] Appeal papers p 75.
We are satisfied that Ms Doolan’s depression was a contributing factor to the impairment caused by the subject injury. Depression is a chronic illness that may arise and persist without an apparent precipitant. However, in Ms Doolan’s case, she was subjected to domestic violence in her earlier relationship and experienced multiple bereavements, including that of her child, all of which may have contributed to or caused her pre-existing depression. The fact that it was necessary for her to take anti-depressant medication in order for her to perform her job is a clear indication of her pre-existing psychiatric state.
The appropriate deduction is that mandated by s 323 (2). There is an absence of precise medical evidence regarding Ms Doolan’s pre-existing depression, and 10% deduction is not at odds with the available evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 September 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
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 Baker 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/ psychological disorder | 21 October 2019 - deemed | Chapter 11, pages 60-68 | Chapter 14 | 15% | 1/10th | 14% (rounded). |
| Total % WPI (the Combined Table values of all sub-totals) | 14% (rounded) | |||||
John Wynyard
Member
Dr Julian Parmegiani
Medical Assessor
Dr Doug Andrews
Medical Assessor
15 February 2022
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