Bunnings Group Ltd v Davis
[2023] NSWPICMP 525
•20 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bunnings Group Ltd v Davis [2023] NSWPICMP 525 |
| APPELLANT: | Bunnings Group Limited |
| RESPONDENT: | Donna Davis |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 20 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of 17% whole person impairment regarding a psychological injury: whether Medical Assessor (MA) had made a factual error; whether MA ought to have considered matters of jurisdiction and novus actus interveniens; whether MA ought to have made a deduction pursuant to section 323; Held – the allegation of a factual error misconstrued the evidence; no submissions made in any event as to how the alleged error impugned the Medical Assessment Certificate (MAC); Chapter 12 of the Guides considered; submissions regarding jurisdiction and novus actus rejected, referral was by consent; Bayside Council v Ware, Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, and Jaffarie v Quality Castings Pty Ltd considered and applied; although MA did not refer to the earlier history of antidepressant medication or counselling, presumption of regularity applies; Jones v Registrar Workers Compensation Commission and Bojko v ICM Property Service Pty Ltd considered and applied; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 May 2023 Bunnings Group Limited, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) 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 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.
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 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 15 February 2023 an amended referral was made by the President’s delegate to the Medical Assessor seeking a WPI impairment in respect of psychological injury that occurred on a deemed date of 6 May 2016. This followed consent orders being made before Member Homan on 2 November 2022.
Ms Davis was employed in Customer Support at West Wallsend. She commenced in 2014 and on 6 May 2016, after a customer had become abusive, management supported the customer and blamed Ms Davis regarding the customer’s complaint about sprinklers.
Ms Davis felt stressed and took two days off but on returning continued to feel unsupported and targeted.
She eventually moved to Bundaberg Queensland. Ms Davis said in her statement of 3 February 2022 that she was scheduled to transfer to the Bundaberg store in July 2017, but was not given any shifts until about February 2018 “after I phoned.”[1] She said that she ceased work with Bunnings at Bundaberg in May 2018. However, she told Dr Graham Vickery, the medico-legal expert retained by the respondent, that she worked weekends whilst working during the week for her clothing store, and ceased in “January 2019.”[2]
[1] Appeal papers page 48.
[2] Appeal papers page 182.
In any event, Ms Davis and her husband opened a café entitled Café Delicious in about August 2017. It was not a success and it closed in February 2020.
Ms Davis and her husband also opened a small clothing store called Aura Connections in January 2018, but that too did not succeed and was closed in February 2020. Ms Davis has not worked since.
Her first attendance with her general practitioner (GP) in Bundaberg was at the Burnett Medical Centre on 28 May 2018.
The Medical Assessor assessed that she had suffered a 17% WPI as a result of her psychological injury.
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 Procedural Direction PIC7.
The appellant employer requested that a Medical Assessor on the Appeal Panel re-examine Ms Davis but, no demonstrable error was established.
EVIDENCE
Documentary 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 parts of the medical certificate given by the Medical Assessor 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 Medical Assessor stated Ms Davis’ work history as follows:[3]
“On 6 May, a customer in the nursey complained that she couldn’t shop because the sprinklers were on. Ms Davis contacted the nurseryman to ask that the sprinklers be turned off, but the customer became abusive. Management became involved, siding with the customer and blaming Ms Davis. ……. After this incident, Ms David felt stressed and took two days off with support from her general practitioner. On returning, she continued to feel unsupported and targeted and eventually sought a transfer to Bundaberg, Queensland. She had purchased a home in Burnett Heads and hoped for a fresh start. Unfortunately problems followed her to the new location.
Ms Davis started a café and clothing store in Burnett Heads wanting to create an alternative to working at Bunnings. She could not cope saying, ‘I couldn’t think clearly; I couldn’t do the paperwork’. She was disappointed because she had earlier business experience and felt that she should have been capable.”
[3] Appeal papers page 24.
After noting Ms Davis’s work history the Medical Assessor reported:[4]
“She married Philip seven years ago but this relationship has failed with domestic violence since Ms Davis left work. They continue to live in the same house but have separate lives. Ms Davis has her room, which she keeps locked, and she doesn’t use the kitchen when Philip is at home. She has an ensuite bathroom and private balcony. She secures the windows and sliding doors, fearing for her safety from her husband, against whom she has a protection order. She hopes to have fully independent accommodation eventually.”
[4] Appeal papers page 25.
In discussing Ms Davis’s social activities/ADL the Medical Assessor noted:[5]
“Her relationship with her husband is damaged and is unlikely to repair. Despite the previous domestic violence and lack of trust, they are now civil to each other, even going to attend the raffle. Otherwise, they live entirely separate lives.”
[5] Appeal papers page 26.
The Medical Assessor noted the reports of psychologist Carol Gazzard of 2 May 2020 and the reports of Dr Graham Vickery of 17 August 2016 and 15 November 2021, amongst other reports that were before him.
The Permanent Impairment Rating Scale (PIRS)Table was as follows:
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
Name
Donna Davis
Claim reference number
(if known)
W6321/22
DOB
Age at time of injury
51 years
Date of Injury
6 May 2016 (deemed)
Occupation at time of injury
Customer Support
Date of Assessment
20 April 2023
Marital Status before injury
Married
Psychiatric diagnoses
Persistent depressive disorder with an ongoing major depressive episode and anxious distress
Psychiatric treatment
Medication
Psychotherapy
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Ms Davis lives independently in a separate section of her house. Although she maintains a lower standard than before her injury, she does housework, shopping and prepares simple meals. She neglects hygiene, showering about once a week and occasionally having a spa bath. She takes regular exercise by walking her dog.
Social and recreational activities
2
She is less socially active than before but occasionally sees friends at a café or when she attends a raffle night at a local club. She does so without support.
Travel
1
She is independent with local travel and has driven to Bowen (an eight hour drive) to see her son and journeyed to Canada to see another. She is functioning with the normal variation in the general population.
Social functioning
3
Her relationship with her husband has been marred by domestic violence due to her workplace injury. She has taken out protection order and lives in a separate part of the house, which she keeps locked from him because of fears for her safety. She intends to separate fully when she has the financial means. She has maintained good relationships with her children, grandchildren, siblings and two friends.
Concentration, persistence and pace
3
She has subjective problems with concentration, attention and memory. She could not manage her business affairs and closed both businesses in 2020. She no longer reads. She may occasionally do a simple sewing project but has no other hobbies. During my interview, she showed signs of inattention and memory challenges, sometimes needing redirection.
Employability
5
Ms Davis has not worked for three years. She has continued moderately severe symptoms, lost trust in others, struggles with task completion and lost confidence. For these reasons I consider her unfit for work.
Score
Median Class
1
2
2
3
3
5
= 3
Aggregate Score Impairment
16
Total
17%
SUBMISSIONS
Appellant employer
Ground 1 of the submissions was entitled “The MA erred in concluding the worker’s domestic issues with her husband were caused by the work injury.”
The appellant employer “considered” that the conclusion reached by the Medical Assessor that Ms Davis’s husband had engaged in “criminal activity” towards her because of her work injury was baseless. It stated:
“We do not believe the MA or any other doctor can determine [that issue]”.
The appellant employer also said “We would also place no weight on any explanation proffered by her husband...”
The appellant employer submitted that the Medical Assessor’s explanation of the domestic violence by “prescribing” causation to the worker’s actions as a victim of domestic violence was an unacceptable view on causation. We assume the appellant employer intended to say “ascribing.”
The appellant employer submitted that the domestic violence in Ms Davis’s relationship pre-dated the workplace incident and was part of a wider pattern of behaviour that was unrelated to her employment.
We were referred to the clinical records of “Costal Life Therapies” of 14 July 2021 and some entries in the clinical notes lodged with the Application to Resolve a Dispute (ARD).
The appellant employer also referred to some evidence that Ms Davis’s husband had lead poisoning and had become somewhat irrational, where she could not trust him anymore.
It was accordingly implausible for a Medical Assessor to “pinpoint” the husband’s violence on the effects of the work injury, it was argued.
The appellant employer submitted that the domestic violence was a contributing factor to Ms Davis’s psychological impairment which was distinct from the work injury and had not been caused by it.
It was submitted that the Medical Assessor’s opinion on causation had been influenced in a manner that had caused a demonstrable error.
Ground 2 of the submissions alleged that the Medical Assessor had erred in failing to address whether the worker’s current mental state resulted from the subject incident.
The Medical Assessor had not adequately addressed relevant matters in his assessment of impairment the appellant employer submitted, which had resulted from the injury.
We were referred to Ms Davis’s employment for the four years subsequent to her leaving the workplace after the subject incident in 2016. As we understood the submission, Ms Davis had been removed from the stressor and there was no evidence to connect her current mental health with the incident in 2016.
We were referred to psychologist Dr Carol Gazzard’s record where Ms Davis said that she was not supported in her new workplace in Bundaberg. She had closed her café business and experienced financial hardship and issues in her marriage following this.
We were also referred to Dr Rahman who took a similar history.
We were also referred to a note from GP Dr Adeniji who recorded on 1 September 2018 that Ms Davis was stressed because she was unable to open her café due to the council working on the road. Further stress about her business was also recorded.
The appellant employer also noted a record of left sided chest pain on 3 September 2018. Ms Davis also allegedly in a note dated 31 May 2021 told Dr Rahman that she was concerned that her partner was poisoning her.
The appellant employer submitted that whilst the Medical Assessor noted that Ms Davis was unable to get over the subject incident, he did not address the fact that she did not seek medical treatment for several years.
The comments made by the Medical Assessor that the problems Ms Davis had running her businesses had brought back the past stresses related to the subject employment incident suggested, it was submitted, that Ms Davis’s psychological condition had been aggravated in her new employment. It was submitted that that would constitute a new injury, which the Personal Injury Commission (Commission) had no jurisdiction to consider.
Any impairment the appellant employer submitted accordingly needed to be apportioned between the subject injury and any subsequent injury, including an aggravation.
The Medical Assessor had failed to consider this aspect of the case and “had instead proceeded on the basis of all worker’s impairment is related to the subject injury….”
Ground 3 raised was that the Medical Assessor erred in failing to make a deduction for a pre-existing psychological condition alleged to have been established by the evidence.
The appellant employer kindly reproduced s 323(2) of the 1998 Act, and it cited the uncontroversial case of Vitaz v Westform (NSW) Pty Ltd.[6]
[6] [2011] NSWCA 254.
We were referred to the report of Dr Glen Smith, who had recorded that when Ms Davis’s mother had passed away 20 years before, she had taken an antidepressant medication for four days. She had also seen a psychologist for about six sessions in 2010 after the breakdown of her first marriage.
Dr Smith also took a history that around 2015 Ms Davis was coming out of a bad relationship and took Hypericum for a short time.
At paragraph 14 the appellant employer spoke of an assessment impairment of “the lumbar spine” and of a previous microdiscectomy.
We can only assume that through some inadvertence this paragraph had been included in the submissions. We further assume that the appellant employer intended to submit that the provisions of s 323(1) were applicable, as it was not difficult or costly to determine the amount of the deduction. The appellant employer referred to a “surgical procedure” which we again assume was inadvertent, and was related to the facts Dr Smith had referred to.
Respondent’s submissions
Ms Davis kindly referred us to relevant authority, again of an uncontroversial nature.
As to the first ground raised by the appellant employer, Ms Davis submitted that the Medical Assessor had not in fact found that the domestic violence described by Ms Davis had occurred due to her injury. He was merely repeating what the worker had told him and what was obviously her honest belief.
Ms Davis noted that the actual value of the impairment rating for social functioning had not specifically been challenged. Ms Davis assumed that the appellant employer’s submissions were addressed to that category, as it was in that category in his PIRS form that the Medical Assessor referred to the comments about domestic violence.
As to ground 2, Ms Davis submitted that a Medical Assessor’s task was not ‘to trawl through historic documents so as to identify whether there is some intervening event.” The Medical Assessor was rather asked to assess WPI on the day of examination.
Ms Davis submitted that in any event these considerations were futile firstly because the injury was referred as a disease injury and recent authority demonstrated both that an injury can have multiple causes,[7] and that the worker only had to establish that the subject injury was a material cause of the subsequent aggravations.[8]
[7] Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35.
[8] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49; Ozcan v Macarthur Disability Services Limited [2021] NSWWCCPD 21.
The allegation that Ms Davis did not seek medical attention for some years was, she submitted, unpersuasive. There was no requirement on the Medical Assessor to address that alleged evidentiary lacuna.
The appellant employer’s submissions that the subsequent events in Queensland regarding Ms Davis’s problems in making a success of her business ventures, she submitted should be rejected on five bases:
(a) Firstly, the employer did not give notice of such a submission in its s 78 Notices (i.e effectively a novus).
(b) Secondly, it is a legal argument, not a medical one.
(c) Thirdly, it is erroneous to the extent it suggests a new employer. Section 16 does not have extra-territorial operation: A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41.
(d) Fourthly, the MA’s consideration of same was permissible because he was assessing it for the purposes of the PIRS Tables.
(e) Fifthly, it ignored the principles in State Government Insurance Commission v Oakley (1990) 10 MVR 570.
With regard to ground 3, we were referred by Ms Davis to relevant authority regarding the application of s 323 of the 1998 Act.[9]
[9] Cole v Wenaline Pty Ltd [2010] NSWSC 78; Elcheikh v Diamond Formwork (NSW) PtyLtd [2013] NSWSC 365; Fire & Rescue NSW v Clinen [2013] NSWSC 609.
Ms Davis submitted that the Medical Assessor had in effect completed a thorough and adequate Statement of Reasons. This included a consideration of whether there should be a deduction at [11] of the MAC and no error had been made in that regard.
DISCUSSION
We have reproduced the Medical Assessor’s PIRS Table. It was not referred to by the appellant employer, but it may be that the appellant employer was intending that we consider each assessment. For the sake of clarity, we make the following comments about the PIRS.
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[10] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[10] Guides 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[11]
[11] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
It can thus be seen that the criteria by which an entitlement to lump sum compensation is assessed, is by the calculation of the class values. We have reproduced the PIRS Certificate above, and it can be seen that those calculations are used to find a median class, from which the aggregate score is added up. The numbers are then calculated by use of a conversion table and thus the actual percentage entitlement is assessed.[12]
[12] See Chapter 11.20, Table 11.7 of the Guides.
It can also be seen that the class values ascribed to each category are therefore significant, and need to be addressed in submissions if they are to be challenged. None of the ratings made by the Medical Assessor were specifically challenged.
With regard to the first ground of appeal, we seem, with respect, to have been invited to firstly find a factual error regarding the domestic violence issue, and then do with it what we will – perhaps to apply the error that it had alleged to the PIRS categories as we saw fit.
We decline to do so. The error alleged was that the Medical Assessor should not have concluded that the domestic issues with Ms Davis’s husband were caused by the work injury. This was because Ms Davis and her husband had allegedly experienced domestic issues prior to the subject injury.
We are by no means persuaded that this allegation has been made out, as the clinical note primarily relied on in the records of Arius Psychological Services of 25 May 2019 (not “Costal Life Therapies” as averred by the appellant employer) appear to be a reference to Ms Davis’s previous husband, Dave.[13] A further entry in the same records of 14 July 2021 confirms that appearance, as the psychologist there recorded “2014-2015. In relationship was in DV relationship had seen psychologist then. He was very abusive and threaten.” [14]
[13] Appeal papers page 90.
[14] Appeal papers page 129.
A prior entry on the same page noted that Ms Davis’s husband was “not supportive. DV, pushed across room. He may have lead poisoning.” This entry prima facie related to current concerns as of 2021, and was consistent both with Ms Davis’s statement[15] and the finding by the Medical Assessor. It was also consistent with the histories taken by Dr Vickery[16] and Dr Smith.[17] The Medical Assessor’s history is particularly consistent with Ms Davis’s statement of 3 February 2022 from [38]:
“38. Phillip and I have always had a good and supportive relationship, however things went downhill after I suffered my psychological injury. This has caused a lot of tension between my husband and I, as he does not understand the extent of my injury.
40. When I was forced to close the businesses in about February 2020, tensions became high with my husband. He was frustrated that I was unable to work, as a consequence of my injury.
43. This has significantly improved our relationship, and the violence has ceased.
44. I do not consider that my current psychological state is caused by the issues with my husband. I consider the issues with my husband to be a consequence of my psychological injury.”
[15] Appeal papers page 49 [35]-[45].
[16] Appeal papers page 184.
[17] Appeal papers page 94.
Accordingly we reject the submission. The Medical Assessor did not err when he found that the domestic issues between Mr and Mrs Davis had been caused by her work injury.
The second ground alleged that the Medical Assessor erred because he did not give any consideration to whether Mr Davis’s current psychological condition had been caused by the subject injury. We concur that there are a number of aspects of this case that would have given rise to some thought when the respondent first considered it.
We note, for instance, that it does not appear that Ms Davis sought any medical treatment after she left Bunnings Wallsend in 2016 until 28 May 2018, when she first attended her GP at the Burnett Medical Centre.[18] She complained on that day of working “seven days per week, working evening, working every weekend for last three months, burning candle at both ends.” Moreover, she did not mention her injury with Bunnings to her GP until 1 September 2018, the entry for which read:
“Owns a café been running it for 12 months, Council fixing the road and not been able to open up for one week feel stressed, mood down….
Previous Traumatic experience while working for Bunning
Irate customer got in her face and has noticed gets stressed easily.”
[18] Appeal papers page 222.
Further, the evidence shows that Ms Davis only worked at Bunnings Bundaberg between February 2018 and either May 2018 or January 2019, depending on which account is accepted, her statement or Dr Vickery’s report. In the meantime, Mr Davis struggled to open two businesses and was clearly stressed in doing so, and it could be argued that a part of the deterioration of her relationship with her husband was caused by these stressors, rather than those caused by the subject injury.
Indeed, the respondent had obtained expert advice regarding these facts from Dr Vickery. In his first report of 17 August 2016, Dr Vickery advised that Ms Davis had recovered from her psychological disorder, and was fit for preinjury duties, to which he said she had returned.[19]
[19] Appeal papers page 180.
In his second report of 15 November 2021, Dr Vickery advised, after taking a consistent history of Ms Davis’s subsequent employment, firstly that there had been the failure of the café and clothing shop which had depleted the Davis’s finances and given rise to her husband harassing her in 2020, which developed into verbal and physical abuse. We note that although the police were called on one occasion about this deteriorating relationship, no AVO was issued. In that regard reject the description of Mr Davis’s behaviour as being “criminal activity,” which we found to be somewhat histrionic.
Secondly, Dr Vickery advised that Ms Davis was suffering an extreme incapacity which was due to “chronic fatigue syndrome or psychogenic asthenia” the cause of which had been the seven days a week employment from 2018 to February 2020. It was after these events that her psycho-somatic condition developed. Dr Vickery said that Ms Davis’s incapacity was “not due to a work-related injury.”
When the respondent entered into the consent awards before Member Rachel Homan on 2 November 2022, it had no doubt examined this advice, considered the evidence and decided, notwithstanding the facts now relied on by the appellant employer, to consent to the matter being referred for assessment to the Medical Assessor.
We think it a reasonable assumption that Medical Assessor would proceed on the basis that all the worker’s impairment was related to the subject injury as referred to him, except whether any deduction should be made pursuant to s 323 of the 1998 Act (about which, see below).
The matter now raised by the appellant employer concerns the jurisdiction of the Commission, and whether there has been, on the facts, a novus actus interveniens. These are not matters within the purview of a Medical Assessor to decide. A medical dispute is defined by s 319 of the 1998 Act. It provides:
“‘medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim-
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker's fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
We note the submissions regarding the application of State Government Insurance Commission v Oakley[20] but we have some reservations whether the definition of a medical dispute extends to encompass its terms. Section 319(c) restricts the dispute to the degree of permanent impairment as the result of “an injury.” The terms of Oatley, as considered in Secretary, New South Wales Department of Education v Johnson[21] are concerned with “further injury,” or “subsequent injury” and consequently appear to be outside the s 319 definition.[22] Although the Court in Johnson accepted that the Medical Appeal Panel had jurisdiction to consider the Oakley questions, the point was not raised in argument.
[20] (1990) 10 MVR 570.
[21] [2019] NSWCA 321.
[22] See e.g. per Simpson JA, Emmett AJA and McFarlan JA agreeing, at [126], [130]-[134].
In Bayside Council v Ware[23] a Medical Appeal Panel considered the implications that arose from the Court of Appeal decision in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd,[24] and the limits that decision placed on a Medical Assessor to make findings of causation. Deputy President Roche considered those implications in Jaffarie v Quality Castings Pty Ltd[25] and his conclusions were cited with approval in the Court of Appeal.[26] Deputy President Roche said:
“(a) questions of causation are not foreign to medical disputes within the meaning of that term when used in the 1998 Act. Assessing the degree of permanent impairment ‘as a result of an injury’, and whether any proportion of permanent impairment is ‘due’ to any previous injury or pre-existing condition or abnormality, both call for a determination of a causal connection (Bindah at [110]);
(b) it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury (Bindah at [111] and s 105 of the 1998 Act).”
[23] [2023] NSWPICMP matter M1-W1020/21 (10 October 2023).
[24] [2014] NSWCA 264.
[25] [2014] NSWWCCPD 79.
[26] Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 at [80].
It can be noted that questions regarding jurisdiction are foreign to medical disputes within the meaning of that term in s 319 of the 1998 Act and indeed could well be a disentitling provision such that compensation was not payable. The question of whether Ms Davis’s activities in Bundaberg constituted an injury within the meaning of s 4 of the Workers Compensation Act 1987 (1987 Act) which was distinct from the subject injury was also a matter within the jurisdiction of the Commission. A Medical Assessor has no training or expertise in these legal fields.
The employer had the opportunity to raise these issues before the Commission, but chose rather to enter into the consent orders we have mentioned. The employer cannot raise them now, and this ground is also rejected.
As to the question of whether the Medical Assessor should have made a deduction pursuant to s 323 the 1998 Act, that section 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.”
The appellant employer’s submissions that the Medical Assessor ought to have made a deduction prior injury, pre-existing condition or abnormality were somewhat opaque, as we have mentioned. The reference to the lumbar spine regrettably also indicated a lack of attention to detail. The appellant employer referred to evidence that 20 years ago Ms Davis was prescribed some antidepressant medication by her GP following the death of her mother, and to a later six sessions with a psychologist in about 2010 when Mr Davis’s first marriage broke up. It also referred to a prescription of Hypericum in 2015 when Ms Davis was coming out of her second marriage.
It is settled law that in applying the provisions of s 323, a Medical Assessor must be satisfied that there was a pre-existing condition, and that it actually contributed to the impairment caused by the subject injury. That decision is not to be based on assumption or hypothesis.[27]
[27] Cole v Wenaline Pty Ltd [2010] NSWSC 78; Elcheikh v Diamond Formwork (NSW) PtyLtd [2013] NSWSC 365; Fire & Rescue NSW v Clinen [2013] NSWSC 609.
The Medical Assessor did not refer to Ms Davis’s earlier psychological treatment. He found that no proportion of the assessed impairment was due to any pre-existing injury condition or abnormality. The fact that a Medical Assessor does not refer to evidence before him does not give rise to an inference that he/she has not considered that evidence. There is a presumption of regularity which attends administrative action, including that of a Medical Assessor: Jones v Registrar Workers Compensation Commission[28] citing Bojko v ICM Property Service Pty Ltd[2009] NSWCA 175.
[28] [2010] NSWSC 481.
In any event, the three periods in Ms Davis’s life prior to this injury, in which she was prescribed antidepressant medication or underwent a short period of counselling, do not appear to the Panel to have caused any impairment which contributed to the impairment caused by the subject injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 April 2023 should be confirmed.
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14
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