Chidgey v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle
[2024] NSWPICMP 435
•8 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Chidgey v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWPICMP 435 |
| APPELLANT: | Jennifer Chidgey |
| RESPONDENT: | Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Professor Nick Glozier |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 8 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of 6% whole person impairment for psychological injury; whether errors made in social and recreational activities and social functioning categories of the Psychiatric Impairment Rating Scales; whether section 323 deduction applicable; whether a modification for the effects of treatment should be made; Lancaster v Foxtel Management and Zoric v Secretary, Department of Education considered and applied; Cullen v Woodbrae Holdings Pty Ltd and Craigie v Faircloth & Reynolds Pty Ltd applied; Woolstar Pty Ltd v Lando referred to; the fact that injury pleaded as frank injury ignored; case was treated by parties, experts and MA as disease injury; reasons inadequately explained; matters of fact not fully appreciated as to their recreational nature; reasons for social functioning inadequately explained; Held – Medical Assessor failed to adequately explain her disagreement with unanimous rating from both sides of the record; section 323 deduction not applicable as claimant employed for around 30 years; no treatment effect modification available pursuant to chapter 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 February 2024 the appellant, Jennifer Chidgey, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 January 2024.
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 16 October 2023 the matter was referred to the Medical Assessor for an assessment of WPI caused by a psychiatrist/psychological disorder resulting from injury on 18 October 2017. We note that the Application to Resolve a Dispute (ARD) pleaded Ms Chidgey’s case as being a “personal” injury which occurred on 18 October 2017,[1] but it is apparent that the parties, the medical experts and the Medical Assessor have accepted that in fact Ms Chidgey’s condition is the result of a disease process. As no point has been raised as to this apparent inconsistency, the Panel also proposes to take the same approach and treat Ms Chidgey’s case as one that occurred on a deemed date of 18 October 2017, which was at the time of her incapacity. As will be seen, that assumption does have some legal consequence.
[1] Appeal papers page 42.
Ms Chidgey was employed by the respondent as a Secondary Learning Support Teacher. She commenced working with the Maitland Catholic Diocese in 1987 and ceased work in 2021. She was injured by bullying and harassment by colleagues.
The Medical Assessor assessed 6% WPI.
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 did not seek to be re-examined by a Medical Assessor who is a member of the Appeal Panel. Although error was found in the MAC, a determination could be made on the evidence before the Panel, and no re-examination was required.
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 took a detailed history of the onset of Ms Chidgey’s disorder. For about five years prior to the date of injury, Ms Chidgey had been experiencing bullying. Although she could initially cope with this bullying, she noticed a gradual deterioration in her mental health. In 2015 she was admitted to Royal Prince Alfred (RPA) Hospital where a minor stroke had been detected. She reduced her working hours from full-time to part-time and ceased after further bullying and humiliation. She worked two days per week as a Secondary Teacher at Alesco Senior College, but at the date of the assessment she had stopped working because of her current symptomatology.
As to Ms Chidgey’s past health problems, the Medical Assessor said:[2]
“Ms Chidgey reported feeling sad when her father passed away in 2008. She saw the counsellor four times. She said that the death of her dad in 2008 further exacerbated her mental health, and she took two weeks off to cope with the situation.
She said that when she was 15 weeks pregnant with her daughter in 1996, she was a bit distressed and saw a counsellor at that time after the birth of her daughter. She did not have to take any medications at that time.”
[2] Appeal papers page 26.
The Medical Assessor noted that Ms Chidgey had a history of “multiple cerebral vascular events and migraines.”
The present treatment Ms Chidgey was undertaking was described by the Medical Assessor as monthly consultations with “Sharon, a Psychologist,” and that Ms Chidgey’s medication consisted of Duloxetine 120mg, Melatonin 10mg, medications for hypercholesterolaemia and preventative injections for migraine. In her summary at [6] of the MAC, the Medical Assessor said:
“Ms Chidgey has received evidence-based treatment in the form of both pharmacological and psychological therapy. She seemed to have made a reasonable recovery and started working but her mental health deteriorated and exacerbated due to her father’s death and other physical health issues.”
At [9c] of the MAC, the Medical Assessor noted and commented on the evidence before her. She surveyed some of the clinical notes from 2014 detailing Ms Chidgey’s cognitive decline and the medical investigation into its cause.[3]
[3] Appeal papers from page 28.
The Medical Assessor also noted Dr Clark’s report of 19 April 2021. Relevantly, she said:[4]
“1. Social and recreational activities: I have noted that Dr Clark has marked social and recreational activities as class 3 as she has withdrawn socially and has lost friends, however, Ms Chidgey reported that even though she has stopped seeing her friends face-to-face, they are still in touch via phone. She continues to see her daughter and grandchildren on a regular basis and has been socialising with them which warrants a mild impairment.
….
3. Social functioning: Dr Clark has marked social relationship as. category 4, no relationship, null prospect of such. I believe that since her previously established relationships have severely strained with a period of separation, this warrants class 3 impairment rather than class 4.
I have also noted that he did not make any deductions for other contributory factors. I have made a deduction of one-tenth given the exacerbation of her mental health due to her father’s death and other physical health issues.”
[4] Appeal papers page 30.
The Medical Assessor took a comprehensive history of Ms Chidgey’s social activities, and she repeated some of the relevant paragraphs in her Table 11.8 PIRS (Psychiatric Impairment Rating Scale) Rating Form regarding the categories of social and recreational activities and social functioning, which will be considered below.[5] The Medical Assessor also noted:
“[Ms Chidgey] was in a relationship with her partner lived in Sydney from Monday to Thursday and he spent Friday to Sunday with her. Her relationship ended as she felt that she was not too good enough. She reported that he probably did not understand her plight. She, however, has a good relationship with her daughter and her husband….”
[5] Cf Appeal papers pages 26 with 35.
The Medical Assessor made a deduction of 1/10 pursuant to the provisions of s 323(2) of the 1998 Act. At [10] of the MAC, the Medical Assessor said:
“There is clear evidence of deterioration in Ms Chidgey’s mental health after her father’s death. I have noted that Ms Chidgey started working again in a reduced capacity after stopping to work with her employers (sic). She, however, is not working currently which is because of the fact that there has been a deterioration in her mental health and hence, I believe that there are other non-work-related factors that should be taken into account.”
SUBMISSIONS
The appellant
Ms Chidgey firstly submitted that the finding by the Medical Assessor of a class 2 rating for the PIRS categories of social and recreational activities and social functioning were incorrect.
Social and recreational activities
Ms Chidgey reproduced the reasons given for the assessment of a class 2 rating. The respondent kindly reproduced the descriptors listed under Table 11.2 of the Guides for a class 2 and a class 3 rating.
Ms Chidgey noted that Dr Oldtree Clark, her medico-legal expert, assessed a class 3 rating in this category.
She submitted that reference by the Medical Assessor to Ms Chidgey having seen her friend last on her birthday related to some five months prior to the assessment.
Ms Chidgey rarely socialised, she submitted, and when she did it was only with a close friend.
Ms Chidgey referred to the reference by the Medical Assessor to her relationship with her daughter and grandchildren and submitted that a class 3 rating was more appropriate.
The Medical Assessor’s reference to Ms Chidgey’s enjoyment with gardening, sewing and theatre, when seen in the light of the note by the Medical Assessor that she had stopped engaging in these activities, was more appropriate again to a class 3 rating Ms Chidgey submitted.
Social functioning
As to this category, Ms Chidgey again reproduced the reasons given in the PIRS form for the assessment of a class 3 impairment and the descriptors for those classes.
Ms Chidgey referred to the Medical Assessor’s history of that her relationship ended but that she had a good relationship with her daughter and husband, which history was repeated later in the MAC.
Ms Chidgey submitted that this assumed history was at odds with the evidence, and that the Medical Assessor had failed to take the full and correct history, including from her statement of 12 July 2023:
“5. I am divorced and have no dependent children.
…..
65. I struggle to form or sustain long term relationships and many pre-existing relationships have ended.
….
69. My relationship with my partner ended due to my psychiatric symptoms.”
Ms Chidgey referred to the report of the respondent’s medico-legal expert Dr Bratten who took a history of domestic violence in the marriage and separation in 1994.
Ms Chidgey also noted that Dr Bratten had recorded that she had lost her partner as well as close friends and was unable to form or sustain a long-term romantic relationship.
This was also confirmed by Dr Oldtree Clark, Ms Chidgey submitted.
Ms Chidgey noted that both medico-legal assessors found a class 4 rating for this category. The assessment by the Medical Assessor was said to be at odds with the evidence relied on.
Treatment effects
Ms Chidgey submitted that the Medical Assessor fell into error when he failed to make an adjustment for the effects of treatment in accordance with the provisions of Chapter 1.31-1.33 of the Guides.
We were advised that Dr Oldtree Clark made an adjustment of 1% and it was noted that Ms Chidgey was seeing a psychologist every month. (In fact, in a supplementary report of 19 August 2021, Dr Clark increased the adjustment to 2%).[6]
[6] Appeal papers page 92.
Section 323 deduction
Ms Chidgey noted firstly that neither medico legal specialist had made such a deduction.
Ms Chidgey observed that the Medical Assessor made a deduction for the impact of her father’s death and the impact of her physical health issues on mental health.
It was submitted that a grief reaction was a normal reaction and not a prior injury or pre-existing condition or abnormality. Neither, Ms Chidgey submitted, were the multiple cerebral vascular events and migraines that the Medical Assessor had mentioned, pre-existing conditions or abnormalities.
Respondent
As to the appellant’s challenge to the class 2 rating for the social and recreational activities category, the respondent submitted that no error had been made, and that indeed the appellant was simply disagreeing with the Medical Assessor’s weighing of the evidence. Ms Chidgey was simply cavilling with the assessment, the respondent observing “the mere fact that some of the evidence considered by the MA would justify a finding of a higher class of impairment is not determinative.”
The respondent also referred to the Medical Assessor’s comment at [9c] of the MAC that “even though [Ms Chidgey] has stopped seeing her friends face to face, they are still in touch via phone.”
Similarly, the respondent submitted that Ms Chidgey’s submissions regarding the class 3 rating for the social functioning category also failed to demonstrate error. The respondent again submitted that whilst some of the evidence would justify a finding of a different class, such was not determinative. The descriptors were examples only and not to be “slavishly applied.”
The respondent conceded that Ms Chidgey’s relationship did break down, but noted that she maintained a good relationship with her daughter and her husband. The class 4 rating given by Dr Clark would have meant that Ms Chidgey “had no relationship and null [sic] prospects of such.” The finding by the Medical Assessor that previous relationship were severely strained properly warranted the class 3 rating that she applied.
The respondent then referred to Chapter 1.32 of the Guides, and submitted that the evidence before the Medical Assessor indicated that there had been limited psychosocial/psychiatric treatment. This was insufficient to define an “effective” long-term treatment, neither was it treatment that, if it were withdrawn, would result in Ms Chidgey reverting to her prior level of impairment.
The 1/10 deduction made pursuant to s 323 was appropriate, the respondent submitted. It was not necessary for a pre-existing condition to be symptomatic at the time of the injury and the finding by the Medical Assessor that a deduction was warranted for “exacerbation in [Ms Chidgey’s] mental health due to her father’s death and other physical injuries” was appropriate.
CONSIDERATION
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[7] 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.”
[7] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[8].
[8] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[9] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Appeal Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[10]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[9] [2017] NSWSC 887.
[10] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[11] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[11] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
a. if the categorisation was glaringly improbable;
b. if it could be demonstrated that the AMS was unaware of significant factual matters;
c. if a clear misunderstanding could be demonstrated, or
d. if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[12] Basten AJ noted at [88][-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[12] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw in the many different possible scenarios within the six categories of the PIRS, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples. They give a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allow a wider discretion to be applied than if the descriptors were intended to be strict criteria.
Social and recreational activities
Table 11.2 provides the descriptors for the five different classes in this category. The dispute concerns whether a class 2 or class 3 rating applied:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The Medical Assessor gave a class 2 rating on this area of functional impairment. Her reasons for doing so were as follows:
“Ms Chidgey reported that she used to enjoy gardening, sewing, theatre and catching up with friends. She said that her friends text her, but she does not see them frequently. She last saw them for her birthday. She has stopped engaging in other activities. She sees her daughter and grandchildren as they come to visit her.”
Whilst the descriptors are not strict criteria, and examples only, they nonetheless give a general guide as to the level of severity that could be applied to a person in given circumstances.
The activities which Ms Chidgey no longer engages with involve activities which are culturally appropriate to a person of Ms Chidgey’s age and sex. Gardening and sewing are recreational activities which would normally be enjoyed by such a person and it is relevant that her injury now prevent her from participating in them at all. Ms Chidgey said in her statement of 12 July 2023 she used to enjoy gardening as a hobby, that she used a play team sports, but that she struggled to engage with others socially now, and relied heavily on her daughters for their support.[13] There is no reason to doubt the veracity of her statement, and these matters were perhaps not fully appreciated by the Medical Assessor.
[13] Appeal papers page 53.
We do not regard visits by Ms Chidgey’s daughter and grandchildren as being of any particular weight, as these reflect family relationship support included within Social Functioning. Within the MAC the Medical Assessor records that ‘most of the time, she sits in the dark. and listens to music…..She no longer walks every day and swims like before….she used to go to the church every week earlier but has not been to the church since 2017.”
The certificate consistently records the loss of almost all solo recreational activities, ceasing the social component of religious observance and only rare social interactions with friends, as opposed to them “checking” on her.
In saying that, we would observe that whether a person “goes out” or not, does not define the category, just as whether a person performs a recreational activity in company or alone is not definitive. In Lancaster v Foxtel Management[14] Basten AJ said at [72]:
“….The proposition that gambling (or running) may fall within the descriptor ‘social and recreational activities’ if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term ‘recreational’ by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.”
[14] [2022] NSWSC 929.
We note further the comments of a Medical Appeal Panel in Hennessy v Northcott Supported Living Ltd:[15]
“The Appeal Panel does [not][16] consider that the examples listed within Table 11.2, which is the relevant table for social and recreational activities, are to be read such that a Medical Assessor when rating a worker’s impairment in social and recreational activity is limited to considering only activity in which a worker engages with others. Recreational activities such as surfing, running, playing a computer game, walking along a bush track, star gazing even, are some of numerous recreational activities in which someone may engage without the interaction of others. Such activity is rightfully considered under table 11.2.”[17]
[15] [2023] NSWPICMP 581.
[16] We assume that there was a typographical error and have inserted the “[not]” to enable the passage to be properly understood.
[17] The Appeal Panel cited Lancaster as authority for this statement.
Similarly, it is nothing to the point whether Ms Chidgey receives phone calls or not, as was submitted by the respondent. Although the Medical Assessor included that Ms Chidgey saw friends on her birthday, we note that it occurred in early June, and the assessment was done on 16 November 2023 – again an indication that Ms Chidgey tended to remain quiet and withdrawn and did not socialise.
We are accordingly of the view that the Medical Assessor has erred, and that a class 3 rating should have been assessed.
Social functioning
The dispute about this category is whether a class 3 or a class 4 should have been assessed. Table 11.4 of the Guides provides relevantly:
“Class 3 Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4 Severe impairment: Unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).”
The Medical Assessor rated that category at class 3. She said:
“[Ms Chidgey] was in a relationship and her partner lived in Sydney from Monday to Thursday and he spent Friday to Sunday with her. The relationship ended as she felt that she was not too good enough. She reported that he probably did not understand her plight. She, however, has a good relationship with her daughter and her husband. She has recently moved in with her mum and lives in her garage. She finds her mum as quite supportive”
It is not without significance that both medico-legal experts. Dr Oldtree Clark and Dr Bratten certified a class 4 rating in this category. The Medical Assessor gave reasons for disagreeing with Dr Clark’s assessment, which we have reproduced above, but with regard to Dr Bratten’s opinion of June 2022, she said:
“I have also noted the whole person impairment which was calculated as 2%. It should be noted that Ms Chidgey had started working at that time, but during my assessment, there has been a significant deterioration since that interview which has impacted her overall functioning and hence, there is a difference in
the whole person impairment. I have noted that at that time, there was no deficit in self-care, in travel, in concentration, persistence and pace and employability. however, since that assessment, there has been significant changes in her functioning which has led to impairment in those areas and hence, a higher WPI.”
It can be seen that she made no comment as to Dr Bratten’s class 4 rating in this category. Dr Bratten said:[18]
“Severe impairment. She has lost her partner as well as lost close friends. She reported being unable to form or sustain long-term romantic relationships.”
[18] Appeal papers page 68.
Dr Clark’s reasons for assessing a class 4 impairment were:
“No relationship or prospect of such. From a psychiatric perspective, this is a severe impairment.”
It is now settled law that, to cite the dicta of the High Court in Wingfoot Australia Pty Ltd v Kocak:[19]
“The function of a [Medical Assessor] is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions…. The function is in every case to form and give [his/her] own opinion on the medical question referred to [him/her] by applying [his/her] own medical experience and.. own medical expertise.”
[19] [2013] HCA 43 at [47].
However, a Medical Assessor is obliged to give adequate reasons for his/her determination, as we have observed in referring to Vegan at the outset of these reasons. In a situation such as this, where the medicolegal experts on both sides of the record concur, some explanation is called for.
We note the history taken by Dr Bratten that:[20]
“[Ms Chidgey] reported that her social life was reasonable and she has three close friends that she sees regularly. She reported last having attended a social event about three weeks ago. She stated that she had lost some friends due to her psychiatric condition. [Ms Chidgey] reported being single since 2017. She stated that she had broken up with her partner due to her psychiatric symptoms…”
[20] Appeal papers page 63.
We note a report from Dr Agatha Conrad dated 13 June 2013 that recorded:[21]
“Jennifer has two [grown] up daughter[s] from previous marriage and lives with her current partner Mark of four years and her younger daughter Teagan (20 years old).”
[21] Appeal papers page 214.
We assume that it was this relationship that Ms Chidgey referred to in her statement at [69] when she said:
“The relationship with my partner ended due to my psychiatric symptoms.”
This breakup with Mark was referred to by the Medical Assessor, as we have noted. Bearing in mind that the descriptors are not strict criteria, nonetheless there is a marked distinction between a class 3 and class 4 in this category. Class 3 speaks of “previously established relationships severely strained,” whereas class 4 mentions “Pre-existing relationships ended (e.g. lost partner, close friends).” Class 4 also speaks of an inability to form or sustain long term relationships.
Whilst the Medical Assessor acknowledged that a relationship (which we assume had lasted for about seven years) had ended, she did not explain why the “good” relationship with Ms Chidgey’s daughter and husband was more significant and thus warranted a class 3 rating. As we have mentioned, she failed to explain why she rejected Dr Bratten’s classification, which we found to be significant. Although Dr Bratten assessed a class 4 rating in this category, overall he found the other categories to warrant only a class 1 rating (except social and recreational activities which he rated at class 2), thus assessing an overall entitlement of 2% WPI. Such a significant contrast in this category went unremarked by the Medical Assessor, and required some explanation.
Accordingly, we are satisfied that the Medical Assessor did not adequately explain her reasons with regard to this category. We note that Ms Chidgey’s relationship with Mark ended in 2017, and that she has not been able to form or sustain a long-term relationship since. Whilst noting that her family relationships are strong and supportive, on balance we consider that a class 4 rating is appropriate to correct this demonstrable error.
Treatment adjustment
We note the somewhat peremptory submissions by Ms Chidgey regarding the contention that the Medical Assessor erred in not making an award for the effects of treatment as provided by Chapter 1.31- 1.33 of the Guides. These provide:
“Adjustment for the effects of treatment
1.31 In circumstances where the treatment of a condition leads to a further, secondary impairment, other than a secondary psychological impairment, the assessor should use the appropriate parts of the Guidelines to evaluate the effects of treatment, and use the Combined Values Chart (AMA5, pp 604–06) to arrive at a final percentage of WPI.
1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent list impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.
1.33 Where a claimant has declined treatment which the assessor believes would be beneficial, the impairment rating should be neither increased nor decreased – see paragraph 1.35 for further details.”
In Zoric v Secretary, Department of Education[22] Chen J said from [59]:
“59. The clause may thus be understood to involve, and require findings about, the following ‘steps’:
(1) First, whether there has been effective long-term treatment of an illness or injury.
(2) Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
(3) Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.
60. These steps largely align with the analysis of Adamson J (as her Honour then was) in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel)[2020] NSWSC 781 at [57] (‘Peachey’), and both parties accepted that a proper application of cl 1.32 of the Guidelines requires these steps to be addressed.”
[22] [2024] NSWSC 131.
Ms Chidgey was first diagnosed by her general practitioner (GP) with depression in August 2012. The Mayfield Medical Connection practice recorded a visit by Ms Chidgey to Dr Wong on 8 August 2012:[23]
“stressed / teary / low mood / insomnia / apetite fluctuating.
Not coping. ‘Work is piling up, with no support’. Suicidal ideation. Partner supportive. Hiding behaviour/ feelings from children.
Taking antidepressant – Zoloft 100mg mane
Advised by GP to cease Lipitor as could be causing memory/ recall problems…
Reason for visit
Depression
…
To replace Zoloft with Avanza.”
[23] Appeal papers page 102.
Ms Chidgey has been prescribed antidepressant medication since that time.
As to the second step outlined by Chen J, he said from [63]:
“63. In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey at [52] as follows:
Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause...
64. Further, in relation to the comparative exercise required by cl 1.32, the clause neither requires, nor authorises, a comparison between respective WPI scores at those times, nor does there need ‘to be a post-injury pre-treatment WPI score for the purposes of undertaking the necessary comparison’: Peachey at [53] and [56]. The explanation for this lies, at least in part, in the language of the clause: the focus of cl 1.32 is upon ‘permanent impairment’, not on its degree expressed as a percentage: Peachey at [54] citing Hunter Quarries Pty Ltd v Mexon(2018) 98 NSWLR 526; [2018] NSWCA 178 at [67].”
The evidence shows that Ms Chidgey was able to continue with her employment whilst taking her prescribed medication until the bullying got to the stage that she felt she had to cease work on 18 October 2017. She said in her statement that the bullying and harassment occurred over a period of about five years and it is evident that the medication was effective in enabling her to teach the children in her care. However with the complications brought on by her cerebrovascular problems in 2014/2015, the impairment caused by her psychological condition worsened, and the effects of the medication dissipated in the increased bullying that her physical condition engendered from her colleagues, along with her continuing to be unsupported and overworked.
Dr Clark reported on 28 July 2020 that:[24]
“Ms Chidgey suffered many strokes whilst at school and lost some vision; the last stroke was in 2015. She had a right sided difficulties and slurred speech. She said that she was mocked about this, teased by the staff, who accused her of fraud.”
[24] Appeal papers page 75.
Reference was made in the material to psychologist Sharon McDermott, but no report was before us. However, on 7 December 2015 Ms Chidgey’s GP, Dr Rianne Smith, wrote to Ms McDermott referring Ms Chidgey to her for management.[25] Dr Smith also referred Ms Chidgey for treatment to Dr Pek Ang, consultant psychiatrist in June 2016.[26] We note that Dr Clark in his report of 28 July 2020 noted “She is back to some good health. She swims, she walks and she plays netball.”[27] Dr Clarke also noted that at that stage Ms Chidgey had been on compensation two years and was certified medically unfit for work.
[25] Appeal papers page 288.
[26] Report of Dr Ang 21 June 2016 at appeal page 249.
[27] Appeal papers page 76.
However, by the time Ms Chidgey wrote her statement on 12 July 2023 she had indeed found employment at Alesco Senior College where she was teaching between 14 and 21 hours per week, but stated:[28]
“… I am really struggling to work this many hours and do not know how long I can manage…”
[28] Appeal papers page 55.
By the time Ms Chidgey was assessed on 18 November 2023 the Medical Assessor noted at [6]:
“… I have noted that Ms Chidgey was able to return to work after she stopped working with the Catholic Diocese, however, she has stopped working because of the current symptomatology.”
Thus, the comparative exercise required is somewhat blurred because at the time the injury occurred, 18 October 2017, Ms Chidgey had been under long-term treatment by way of antidepressant medication for her depression, which had been effective in enabling her to continue to function. She is no longer able to work and in her statement described the further impairments in various aspects of her life, and she described a range of disabilities that continue to plague her.[29]
[29] Appeal papers pages 54-55.
Accordingly, there is no apparent substantial or total elimination of Ms Chidgey’s permanent impairment that has resulted from her treatment. As to the third step mentioned by Chen J, the answer to the question whether Ms Chidgey’s impairment is likely to revert to her original degree of impairment if treatment were withdrawn is somewhat hypothetical in this factual scenario. We accordingly reject the submission that such a modification should have been made by the Medical Assessor.
Section 323 of the 1998 Act
Section 323 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.”
We had some difficulty with the reasons given at [10] of the MAC for the deduction of 1/10th pursuant to s 323(2) of the 1998 Act. As noted, the Medical Assessor said:
“There is clear evidence of deterioration in Ms Chidgey s mental health after her Father’s death. I have noted that Ms Chidgey started working again in a reduced capacity after stopping to work with her employers. She, however, is not working currently which is because of the fact that there has been a deterioration in her mental health and hence, I believe that there are other non-work-related factors which should be taken into account.”
The meaning of this statement is somewhat opaque, with respect. The “clear evidence” was identified by the Medical Assessor herself as being four visits to a counsellor by Ms Chidgey, and that she took two weeks off to cope. The death occurred in 2008 and we assume that Ms Chidgey sought counselling and took time off at that time. The Medical Assessor referred to this event again when discussing Ms Chidgey’s medical treatment:
“She seemed to have made a reasonable recovery and started working but her mental health deteriorated and exacerbated due to her father’s death and other physical health issues.”
However, there is no support within the material before us for the finding of fact that Ms Chidgey’s father’s death had caused Ms Chidgey’s mental health to deteriorate, or that it was exacerbated thereby, with respect. It is both factually incorrect, and glaringly improbable. Ms Chidgey continued to work until the bullying and lack of support from the respondent commenced in 2012, as she stated at [15] of her statement.[30]
[30] Appeal papers page 45.
The second part of the Medical Assessor’s statement is equally problematic. The evidence supports her finding that Ms Chidgey has ceased work because her mental state had deteriorated, but the conclusion by the Medical Assessor that therefore (“hence”) there were other non-work-related factors that should be taken into account raises more questions than answers, and in any event has no relevance to the application of s 323.
As we have indicated, the parties, the experts and the Medical Assessor all approached this matter on the basis that the injury concerned a disease of such a nature as to be contracted by a gradual process, as defined by s 15 of the 1987 Act, which provides relevantly:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process-
(a) the injury shall, for the purposes of this Act, be deemed to have happened-
(i) at the time of the worker's death or incapacity…”
Thus, whilst Ms Chidgey’s date of injury was referred as 18 October 2017, the evidence established that date as the time of her incapacity, and also established that her psychological injury was contracted gradually since 2012 as a result of the bullying by her colleagues from 2012. Thus the date of injury was treated as if it were a “deemed” injury.[31]
[31] For another example of a disease injury being found where the date of injury was referred without being described as a “deemed” date, see Woolstar Pty Ltd v Lando [2022] NSWSC 241.
Where the disease provisions of the 1987 Act apply, of which s 15 is one, deductions pursuant to s 323 of the 1998 Act can only be made where the pre-existing conditions or abnormalities are shown to have existed prior to the ‘relevant date’.[32] The ‘relevant date’ in determining whether Ms Chidgey had a pre-existing condition was the date of the commencement of employment in 1987. Ms Chidgey was not suffering from any pre-existing condition that caused an impairment which contributed to the impairment caused by the subject injury in 1987.
[32] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1415: Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1211.
As indicated, there is no connection in the evidence between Ms Chidgey’s short grief reaction 2008 and her going off work on 18 October 2017, and in any event it occurred after the relevant date, and could not be defined as a pre-existing condition, even if it had been based on fact.
The fact that Ms Chidgey is now off work because of the deterioration in her mental health does not of itself indicate that there are non-work-related factors involved, or that the non-work-related factors - or the deterioration itself – had anything to do with any pre-existing condition as defined, as there was none. The MAC will accordingly be revoked to remove the s 323 deduction.
SUMMARY
Thus, for the above reasons:
(a) the rating for the category of social and recreational activities will be increased from class 2 to class 3.
(b) The rating for the category of social functioning will be increased to class 4.
(c) The 1/10th deduction pursuant to s 323 will be revoked.
Pursuant to Chapter 11.13 of the Guides, Ms Chidgey’s median class score is thus:
2,2,2,3,3,4, giving a median class of 3.
The aggregate score is 16, and when converted pursuant to Table 11.17 of the Guides, Ms Chidgey’s entitlement thus becomes 17% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 January 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7021/23 |
Applicant: | Jennifer Chidgey |
Respondent: | Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Surabhi Verma 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, | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological Injury | 18 October 2017 | Chapter 11 | N/A | 17 | Nil | 17 |
| Total % WPI (the Combined Table values of all sub-totals) | 17 | |||||
0
14
0