Carey v Disability Services Australia
[2022] NSWPIC 561
•11 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Carey v Disability Services Australia [2022] NSWPIC 561 |
| APPLICANT: | Christine Carey |
| RESPONDENT: | Disability Services Australia |
| Member: | Philip Young |
| DATE OF DECISION: | 11 October 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Reconsideration application; applicant previously assessed at 6% whole person impairment and submits that additional material since then confirms her condition has deteriorated such that the commission should rescind the earlier certificate of determination pursuant to section 327 of the Workplace Injury Management and Workers Compensation Act 1998; Held – applicant’s condition has deteriorated since earlier Certificate of Determination (COD); the Personal Injury Commission in exercising its discretion rescinds the COD; it is in the interest of justice that the applicant’s mental condition be reassessed. |
| determinations made: | 1. The Certificate of Determination dated 24 December 2020 is set aside pursuant to s 57 of the Personal Injury Commission Act 2020. |
STATEMENT OF REASONS
BACKGROUND
Ms Christine Carey (the applicant) was employed by Disability Services Australia (the respondent) and suffered psychological injury deemed to have occurred on 24 October 2019.
This is a Reconsideration Application pursuant to s 57 of the Personal Injury Commission Act 2020 (2020 Act) to rescind a Certificate of Determination of 24 December 2020 reflecting a Medical Assessment Certificate issued on 19 November 2020 (MAC) by Professor Glozier.
The MAC concluded that the applicant’s whole person impairment as at 12 November 2020 was 6%.
A Reconsideration Application was lodged with the Personal Injury Commission (the Commission) on 7 July 2022. That Application supported by the applicant’s submissions relies upon additional material which the applicant suggests[1] confirms that the applicant’s condition had deteriorated since her assessment with Professor Glozier.
[1] Reconsideration Application at page 1.
The respondent promptly provided a Reply and submissions.
The matter came for teleconference before me on 9 August 2022 and a Direction for submissions was issued. Those submissions have now been received and are referenced below.
ISSUES
The issue in this matter is whether the applicant’s Reconsideration Application succeeds because the applicant has sufficient evidence to justify a deterioration of her condition thereby warranting the prior Certificate of Determination being rescinded. There are associated issues concerning legislation and case law.
PROCEDURE BEFORE THE COMMISSION
This matter came for teleconference on 9 August 2022 on which occasion Mr Robison of counsel instructed by Mr Tohme appeared for and with the applicant. Ms Gair solicitor appeared for the respondent and Mr Lacsina represented the insurer.
The parties participated in an extensive conciliation process but regrettably despite the exercise of my best endeavours to attempt resolution, the matter was not capable of settlement. In those circumstances, the jurisdiction of this Commission to proceed to determine the matter was enlivened.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute lodged 17 August 2020 and attachments (Application);
(b) Reply lodged 8 September 2020 and attachments (Reply);
(c) Certificate of Determination – Consent Order issued 14 September 2020 (COD1);
(d) Application to Admit Late Documents (namely clinical records) lodged for the respondent on 28 September 2020 (AALD1);
(e) Medical Assessment Certificate of Professor Glozier issued 19 November 2020 (MAC);
(f) Certificate of Determination issued by the Commission dated 24 December 2020 (COD2);
(g) Reconsideration Application and submissions lodged by the applicant
7 July 2022;(h) Submissions and supporting documents lodged by the respondent on
8 July 2022;(i) Application to Admit Late Documents lodged by the applicant and attachments dated 15 August 2022 (AALD2);
(j) Submissions by the applicant’s counsel dated 5 September 2022;
(k) Submission on behalf of the respondent regarding Reconsideration Application dated 12 September 2022 prepared by Ms Roberts of counsel, and
(l) Application to Admit Late Documents and attachments lodged by the respondent’s solicitor on 13 September 2022 (AALD3).
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASON
The present application and the applicant’s statements
The applicant has provided several statements in the present matter and in the prior proceedings. The applicant had been the subject of an investigation following allegations made against her on 17 September 2019.[2] An investigation occurred and she was told that the allegations were substantiated but in view of her past good work record there would be no further action taken.[3]
[2] Reconsideration Application at page 3 at [18].
[3] Reconsideration Application at page 4 at [19].
The applicant in this first statement describes her condition as follows:
“20. That whole episode upset me greatly. I felt like I had been kicked in the guts. I couldn’t believe that management (Matthew) would believe the allegations. It affected my confidence. I didn’t sleep well. I cried a lot. I was lethargic and found it difficult to get out of bed.”[4]
[4] Reconsideration Application at page 4 at [20].
On Friday 25 October 2019 the applicant discovered that documents concerning the earlier allegations were available to all the respondent’s staff on a shared computer drive.[5] She states:
“23. …I felt violated. I was upset. I was depressed and anxious. I felt my whole world had shattered. I had suicidal thoughts over the weekend.”[6]
[5] Reconsideration Application at page 4 at [23].
[6] Reconsideration Application at pages 4 – 5 at [23].
The applicant thereafter consulted her general practitioner. By the time of her first statement (24 January 2020) she felt like her confidence had gone, her social life was impacted, she did not go out anywhere as much as she normally would, she was smoking more, sleeping was hard, eating erratic, she felt unmotivated, had less energy and gained weight.[7]
[7] Reconsideration Application at page 5 at [27].
By 24 January 2020 the applicant was taking 30mgs Cipramil tablets,[8] did not see herself returning to work and “management scares me”.[9]
[8] Reconsideration Application at page 5 at [30].
[9] Reconsideration Application at page 6 at [34].
The applicant’s second statement is dated 10 February 2022.[10] She used to see a psychologist weekly but evidently thought that her payments had been stopped so she was unable to see her. She felt that the medication she was taking around September or
October 2021 stopped working so she switched to alternative medication.[11][10] Reconsideration Application at pages 7 – 8.
[11] Reconsideration Application at page 7 at [2] and [4].
In terms of the “cessation” for payments of psychology, the insurer has clarified[12] that although the last session for psychology services paid by the insurer was on
22 December 2021,[13] a further eight psychology sessions were approved by a prior case manager but it has not been able to locate the approval letter.[14] Clearly there was at least some confusion surrounding the availability of further psychology services and so the applicant’s perception of this problem is understandable. Further, the question is not whether psychology services should be provided to the applicant, but whether this issue as the applicant asserts played a part in her deteriorating condition.[12] AALD3 – Statement of Sean McMillen 23 August 2022
[13] AALD3 at page 3 at [7].
[14] AALD3 at page 3 at [9].
The applicant in her second statement says as follows:
“5. My old case manager from iCare used to call me for weekly updates, and I liked them. However, my case manager changed in December 2021, and they have not contacted me at all. I email them often and get no response.
6. The lack of correspondence from my case manager and the decision to stop my sessions with (psychologist) has made me feel isolated and alone. I have no one to talk to anymore and my mental health is deteriorating as a result. I feel anxious, confused, and uncertain about the future all the time.
7. As a result of my anxiety, I have been sleeping poorly. I sleep around three to four hours per night, and I wake up in the middle of it. I have been sleeping throughout the day, which I did not use to do before.
8. Every day I feel unrested and easily irritable. I experience low moods, and I have lost confidence. I used to get along with my flat mate, but know we argue. I also argue with my sister and my daughter. I used to see my family weekly, but I only see them once a month these days.”[15]
[15] Reconsideration Application at pages 7 – 8.
The applicant in her second statement also points out that she is alone and isolated and feels “like everyone is against me”.[16] She said that she used to be a social person but is now a homebody.[17] She suffers from panic attacks and only showers three to four times per week and does not cook much.[18] She used to love the outdoors but is now inactive and has increased her weight from 78 kg to 98 kg.[19] She struggles to relax and can only drive short distances because of lack of confidence and inability to concentrate.[20]
[16] Reconsideration Application at page 8 at [9].
[17] Reconsideration Application at page 8 at [10].
[18] Reconciliation Application at page 8 at [11]-[13].
[19] Reconsideration Application at page 8 at [14].
[20] Reconsideration Application at page 8 at [16].
The applicant’s third statement is dated 12 August 2022.[21] She says that it was towards the end of 2021 when she felt that she was deteriorating badly and conferred with Dr Tran. She also indicates that immediately following her assessment with Professor Glozier in
November 2020 she was relatively stable which is the reason why no appeal was immediately lodged.[22][21] See AALD2 at pages 1 – 2.
[22] AALD2 at page 2 at [14].
Medical matters
The report of Suzan Stern, psychologist dated 15 March 2022[23] provides a useful summary of her consultations with the applicant between 4 February 2020 and 8 November 2021. Notably, there do not appear to be any consultations with Ms Stern between
30 September 2020 and 4 March 2021, thereby suggesting that the applicant had improved in her mental condition during that time. This is important I believe for two reasons. First, it is consistent with the applicant’s statement that she seemed to have improved immediately after Professor Glozier’s examination of her. Second, Professor Glozier’s examination was on 12 November 2020, during the time at which she was not seeking out consistent psychological treatment from Ms Stern.[23] Reconsideration Application at page 61.
It will be seen from Ms Stern’s notes of consultations between 4 March 2021 and
8 November 2021 that the applicant’s condition was generally worse. On 4 March 2021 she was “only able to function day-to-day”.[24] Between 12 April 2021 and 24 May 2021 whilst attending sessions with Ms Stern she was “very weepy and irritable” and “felt like things had gone downhill and backwards”.[25] Between 13 June 2021 and 18 August 2021 she reported “extreme feelings of loneliness”.[26] Between 24 August 2021 and 22 September 2021 whilst she discussed volunteer work she also indicated to Ms Stern that she was “not feeling physically well”.[27][24] Reconsideration Application at page 65.
[25] Reconsideration Application at page 65.
[26] Reconsideration Application at page 65.
[27] Reconsideration Application at pages 64 – 65.
Between 18 October 2021 and 8 November 2021 the applicant “expressed feeling extremely pressured into returning to work” but “ultimately felt that she was not ready to work in the near future and required more time to build her confidence”.[28]
[28] Reconsideration Application at page 64.
Professor Glozier in his report accompanying the MAC considers the report of Dr Hong dated 6 July 2020 and importantly disagrees with Dr Hong in respect of two classes within the psychiatric impairment rating scale (PIRS).[29] Professor Glozier says:
“In terms of social activities, she goes to the beach, has been ocean swimming through the winter, at times with her housemate and at other times on her own, continues to do her patio garden and has been out to social events e.g. to see her friends for a girls dinner. Although these require prompting at times, and she might at times feel uncomfortable, this is a mild impairment. In terms of concentration, persistence and pace, there is no impairment observable today. Her history was detailed, high context and she showed a very good focus and concentration throughout the assessment. She can binge watch Netflix shows and follow podcast and related their content without difficulty as well as being able to learn the basis of a new laptop.”[30]
[29] Reconsideration Application at page 29.
[30] Reconsideration Application at page 29.
Dr Khan assessed the applicant at the request of her solicitors on 15 March 2022 and provided a report of the same date.[31] Dr Khan’s observation of the applicant’s current functioning is, like the applicant’s statements, consistent with a gradual deterioration in her condition through 2021 and into 2022. Dr Khan observes:
“Ms Carey continues to experience pervasive symptoms of depression and anxiety, which impact on her functioning in the domains of selfcare and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability.”[32]
[31] Reconsideration Application at page 33.
[32] Reconsideration Application at page 35.
Dr Khan thought that “further mental health treatment is indicated” together with “comprehensive mental health treatment” including regular general practitioner follow up every two to four weeks, regular psychologic therapy every one to two weeks, regular psychiatric follow up every two to three months, ongoing medication and weekly group day psychotherapy for at least six months.
It is obvious that the presentation to Dr Khan in March 2022 is very much at odds with the presentation of Professor Glozier in November 2020. In those circumstances, I have no hesitation in accepting on the balance of probabilities that the applicant’s mental health has significantly deteriorated since 12 November 2020.
Legislation and Authorities
Section 322 A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) is in the following terms:
“322A (1) Only one assessment may be made of the degree of permanent impairment of any injured worker.”
However, s 322 A of the 1998 Act “does not affect the operation of section 327”.[33]
[33] Section 322 A (4) of the 1998 Act.
Section 327 of the 1998 Act allows a party to a medical dispute to appeal against a medical assessment on the grounds of, inter alia, deterioration of the worker’s condition resulting in an increase to the degree of permanent impairment.[34] However, s 327 (7) does not allow any appeal against a medical assessment “once the dispute concerned has been the subject of determination by a Court or the Commission…”.[35]
[34] Section 327 (3) (a) of the 1998 Act.
[35] Section 327 (7) of the 1998 Act.
The Court of Appeal decision in JC Equipment[36] considered the operation of s 281 of the 1998 Act. Arbitrator Harris (as he then was) in Galea[37] explained the decision of Tobias JA (with whom Campbell JA and Bell JA agreed) as follows:[38]
“42. In JC Equipment Tobias JA held:
(a) Section 281 of the 1998 Act contemplates two different claims by the injured worker: a claim for compensation pursuant to s 66 of the 1987 Act, and also a claim for work injury damages (at [50]);
(b) Section 281 (2) (b) of the 1998 Act mandates that the employer notify the claimant whether or not it accepts that the degree of permanent impairment of the claimant resulting from injury is ‘sufficient for an award of damages’. This is a reference to the minimum 15 per cent degree of permanent impairment in s 151 H (1) of 1987 Act (at [51]);
(c) …
(d) …
(e) The employers agreement … of the degree of permanent impairment, for the purposes of s 66 of the 1987 Act, did not constitute acceptance that the degree of permanent impairment was sufficient to satisfy the s 151 H threshold.”
[36] JC Equipment Pty Limited v Registrar of the Workers Compensation Commission of NSW [2008] NSWCA 43.
[37] Marie Galea v Colourwise Nursery (NSW) Pty Limited [2019] NSWWCC 362 (Galea).
[38] Galea at pages 7 – 8 at [42].
Arbitrator Harris in Galea correctly noted that the introduction of s 314 (3) into the 1998 Act by the 2012 Amendment Act “overcomes the effect of JC Equipment”,[39] supporting the distinction between a permanent impairment claim and a claim for work injury damages.
[39] Galea at page 8 at [46].
Arbitrator Harris went on to conclude as follows:[40]
“Accordingly, a claim for permanent impairment compensation is clearly distinct from a threshold claim. Despite the introduction of s 314 (3) there remains a distinction between a claim for permanent impairment compensation and a claim for the purposes of establishing the threshold pursuant to s 151 H of the 1987 Act. However, the medical assessment certificate can be used for all purposes. In one sense, the distinction articulated in JC Equipment has been overridden by legislative amendment.”
[40] Galea at page 9 at [53].
In the applicant’s matter, it is unclear as to why the original medical assessment certificate would be, if it was set aside, appealed. Why it would be appealed would be because of the applicant’s deterioration but it is not clear as to the purpose of the appeal. The applicant’s submissions in referring to Galea are essentially equivocal in that it is stated:
“19. Galea v Colourwise Nursery (NSW) Pty Limited [2019] NSWWCC 362 is also noted. The circumstances of the present case and Galea are relevantly indistinguishable. The ratio of Galea is that whilst there may not be any further s. 66 rights, a COD should be set aside in order to permit a proposed appeal relying on s. 327 (3) (a) or (b) (which as is seen in the later case of Sleiman are the remedial grounds for appeal).”
The reference to Sleiman is to the leading judgment of Leeming JA in Sleiman v Gadalla Pty Limited [2021] NSWCA 236. That decision concerned a potential reconsideration of a medical appeal panel decision (unlike the current matter where the reconsideration relates to a medical assessment). However, the point to be made is that consideration must be given by this Commission as to whether an Application for Reconsideration is appropriate, not as to whether an appeal is appropriate.
Unlike the situation in Galea, in the present matter there is no change sought in the body part referred for assessment the subject of any appeal. In Galea Arbitrator Harris discussed the decisions in Aircons[41] and O’Callaghan.[42] Those cases concerned whether or not fresh allegations of injury to a body part could be included in a fresh procedure because of the meaning of “matters referred for assessment” the subject of the medical assessment certificate issued pursuant to s 325 of the 1998 Act.
[41] AirCons Pty Limited v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 322.
[42] O’Callaghan v Energy Work Corporation Limited [2016] NSWWCCPD 1 at [90].
I agree entirely with Arbitrator Harris’ conclusion concerning the applicant having an entitlement to appeal the medical assessment certificate.[43] I also agree with the conclusion of Arbitrator Harris concerning the discretionary power in Reconsideration Applications, noting as I do that s 57 (1) of the 2020 Act. This Commission has broad discretion to reconsider, rescind, alter or amend any decision previously made.
[43] Galea at pages 11 – 12 at [71].
Should the discretion be exercised?
As the respondent submitted the Court of Appeal in Sleiman held that the applicant’s entitlement for reconsideration if at all is “not available as of right but is discretionary”.[44] The guiding principles are correctly noted as emerging from Samuel.[45] The relevant principles are set out in the respondent’s submissions.[46]
[44] Respondent’s submissions at page 2 at [11].
[45] Samuel v Sebel Furniture Pty Limited [2006] NSWWCCPD 141.
[46] Respondent’s submissions at page 3 at [12].
The respondent suggests that because Dr Khan’s report assessed the applicant as having 17% whole person impairment and this is the same percentage impairment arrived at by
Dr Hong, a view could be taken that the applicant was seeking to avoid the conclusive effect of a medical assessment. The fact remains, however (and this was mentioned by Arbitrator Harris in Galea)[47] the applicant has no further entitlement to claim permanent impairment compensation because of s 66 (1A) of the 1987 Act.[47] Galea at page 17 at [115].
I accept the applicant’s contention that Pirie[48] is authority for the proposition that because a medical assessment is not Commission proceedings, if COD2 is rescinded, the procedural rules including cl 44 do not apply. That being the case it cannot be said that rescinding COD2 would allow the applicant to circumvent cl 44.
[48] Pirie v State of New South Wales (NSW Police Force) [2022] NSWPICPD 4.
In this matter although I am mindful of the public interest that litigation should not proceed indefinitely, I believe that discretion should be exercised in favour of the applicant because it is in the interests of justice that she be given opportunity to have her deteriorating mental condition further considered.
ORDER
43. The Certificate of Determination dated 24 December 2020 is set aside pursuant to s 57 of the 2020 Act.
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