Costa v JLM Marketing Pty Ltd t/as Marketing Mechanics
[2023] NSWPICMP 469
•22 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Costa v JLM Marketing Pty Ltd t/as Marketing Mechanics [2023] NSWPICMP 469 |
| APPELLANT: | Diane Costa |
| RESPONDENT: | JLM Marketing Pty Ltd t/as Marketing Mechanics |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 22 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor’s (MA) ratings of appellant’s impairment in social and recreational activities, concentration persistence and pace, and employability did not accord with the history MA obtained; whether MA made a finding he was not qualified to make by finding that appellant had a physical condition of fibromyalgia; whether MA erred by finding appellant had a pre-existing condition and, if not in error, whether MA erred by finding that a proportion of the appellant’s permanent impairment was due to that pre-existing condition; Appeal Panel held it was open to MA to make the ratings he did with respect to the challenged psychiatric impairment rating scale (PIRS) categories; Appeal Panel held that MA did not rely on his expertise or knowledge when finding that the appellant had fibromyalgia, but rather relied on the opinions of appropriately qualified medical specialists contained in forensic medical reports that were before the MA; Held – Appeal Panel held the Medical Assessor was correct on the evidence before him to find that the appellant had a pre-existing condition and that a proportion of the appellant’s permanent impairment was due to that. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 June 2023 Diane Costa, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Robinson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 June 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, 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 (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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury due to the work she performed in her employment with J L M Marketing Pty Ltd, the respondent, over the course of a period of 20 years until 11 May 2018.
The appellant came under the care of psychiatrist Dr Howard Napper. In a report dated
24 July 2021 addressed to the appellant’s solicitors, Dr Napper advised that the appellant suffered from major depressive disorder. Dr Napper advised that the appellant’s psychiatric disorder developed out of work related factors. Dr Napper noted that three years prior to 2018 the appellant developed chronic pain which was diagnosed as fibromyalgia and that the appellant’s pain from her fibromyalgia impacted the appellant’s ability to work and “served to exacerbate her psychological symptoms”.At the request of the appellant’s solicitors, the appellant was examined by consultant psychiatrist Dr Christopher Canaris on 27 August 2021. In a report of that date addressed to the appellant’s solicitors Dr Canaris advised that the appellant had persistent depressive disorder (dysthymia) with anxious distress as well as fibromyalgia. Dr Canaris advised that the appellant’s “mood disorder”, which was an obvious reference to the appellant’s persistent depressive disorder, arose in the setting of her stressful workplace with a high work load.
Dr Canaris advised in his report that he assessed the appellant had 24% whole person impairment (WPI). Dr Canaris detailed in his report that his assessment was made based on his rating the appellant’s impairment in the several categories of function and behaviour comprising the Psychiatric Impairment Rating Scale (PIRS) as follows:
Self care and personal hygiene
Class 3
Social and recreational activities
Class 3
Travel
Class 3
Social functioning
Class 2
Concentration, persistence and pace
Class 3
Employability/adaptability
Class 5
Dr Canaris reported that “there is no evidence of any pre-existing injury giving rise to any impairment”.
Relying on that report of Dr Canaris, the appellant claimed compensation from the respondent’s insurer pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 24% permanent impairment.
The respondent’s solicitors thereupon organised for the appellant to be examined by psychiatrist Dr Iftikhar Ahmad on 5 April 2022. In a report dated 20 April 2020 Dr Ahmad advised his “diagnosis/impression” of the appellant was that she suffered from “Major Depressive Disorder/severe, without psychotic symptoms”. He noted too that the appellant had been “diagnosed with fibromyalgia by her GP and medical specialists, following investigations”.
Dr Ahmad also advised his opinion was that the appellant suffered from a secondary psychological condition resulting from the effects of her physical injuries. He said that the appellant’s “pain issues started first, which have negatively affected her psychological health and resulted in deterioration of her well being”.
The appellant had earlier been examined by anaesthetist and pain management specialist Associate Professor Allan Molloy on 12 November 2021 at the request of the respondent’s insurer. In a report dated 31 January 2022 provided to the insurer A/Prof Molloy advised that the appellant has been diagnosed with fibromyalgia that “can be considered a chronic wide spread pain syndrome”.
On 3 June 2022 the respondent’s insurer wrote to the appellant, care of her solicitors, notifying her under s 78 of the 1998 Act that it disputed she was entitled “to permanent impairment lump sum compensation”. The insurer advised her that under s 65A(1) of the 1987 Act “no lump sum compensation is payable for a secondary psychological injury”. The insurer advised that “based on Dr Ahmad’s opinion and your medical records, we dispute that you are entitled to lump sum compensation because your claimed injury is a secondary injury resulting from your accepted physical injury”.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) by lodging with it an Application to Resolve a Dispute dated 16 February 2023. By those proceedings she seeks determination of her disputed claim for compensation for permanent impairment from her injury.
The matter was referred to a Commission Member, namely Mr Paul Sweeney, who on
20 April 2023 with the consent of the parties made the following determination and notations:“1. Matter remitted to the President for referral to a Medical Assessment to certify WPI with respect to a psychological injury with a deemed date of 27 January 2022 (being the date of claim)
2. Whether impairment is permanent and is fully assessable.
3. Medical Assessor to have access to the Application, the Reply, the AALD dated 8 March 2023 and the documents attached to each.
Notations
A. The Medical Assessor is to exclude or deduct (if appropriate) from the assessment made in respect of the injury any impairment or symptoms arising from or attributable to a secondary psychological condition (Section 65A of the Workers Compensation Act 1987) or as required by 323 of the Workplace Injury Management Act and Workers Compensation Act.
B. The parties request that the medical assessment of the applicant be expedited in view of her financial position.”
The matter was then duly referred to the Medical Assessor, who, as mentioned, issued the MAC on 1 June 2023.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is for two reasons. Firstly, the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment. Secondly, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor summarised the appellant’s injury and diagnosis at Part 7 of the MAC in the following terms:
“The worker is a 54-year-old woman who presents with a chronic major depressive disorder with anxious distress. The worker has been assessed as demonstrating features of fibromyalgia. The primary determinant of the worker’s psychosocial morbidity are her chronic depressive symptoms, however, there is a partial contribution from the effects of fibromyalgia, particularly in the domain of occupational functioning. The worker had previously demonstrated features of a substance use disorder through consumption of prescription drugs sourced illicitly. The worker had longstanding difficulties with anxiety dating from childhood as well as describing potential preconditions to long-term mood and anxiety symptoms attributable to some prejudicial aspects of her childhood related to perturbations in the parental marital relationship. The worker experienced a profound and permanent exacerbation of her longstanding anxiety and mood symptoms in the course of her employment with JLM Marketing Proprietary Limited due to workplace pressures.
The worker had first experienced psychiatric symptoms in 2007 when she consulted
Dr McGregor with panic and phobic anxiety, however, became debilitated, to the point of ceasing duties following the onset of physical symptoms attributable to fibromyalgia.
Fibromyalgia has a complex relationship with psychiatric disorder and a critical differential diagnosis in this matter would be a somatising presentation of major depression. Regardless, the expert opinion in this instance indicates a substantive diagnosis of fibromyalgia, which creates physical symptoms manifesting as chronic pain that have a partial causal influence on the worker‘s overall psychopathological burden and psychosocial morbidity.
Dr Ahmad is partially correct in stating that there is a component of secondary psychological injury, however, I consider his opinion to be unsophisticated in approaching a complex clinical presentation in that he fails to differentiate the morbidity arising from a substantive depressive illness emerging through the nature and conditions of the worker’s employment to that related to a medical condition
The instructions in this matter are to consider the effects of a secondary psychological injury in addition to pre-existing condition. There are robust grounds to apply an s.323 deduction, however, the only credible methodology in this instance is a one-tenth deduction. The effect of pain emerging from fibromyalgia contributes to the worker’s psychosocial impairment and this is most evident in impairment of occupational functioning where it makes a partial contribution. In the other categories of impairment on the PIRS, I have sought to interrogate the psychiatric rather than physical origins of the observed and reported impairment as indicated in my annotations in the table.
The worker has had extensive psychiatric, psychological, and inpatient treatment. The injuries are stable and unlikely to change over the next 12 months.”
The appellant in her appeal against the medical assessment challenges the Medical Assessor’s ratings of her impairment in the PIRS categories of social and recreational activities, concentration, persistence and pace (CPP), and employability. The Medical Assessor provided his ratings of the appellant’s impairment in those categories and his reasons for his ratings in the PIRS Rating Form within the MAC which were as follows:
Social and recreational activities
3
The worker reports that she is reluctant to socialize due to diminished interpersonal resilience and interpersonal sensitivity feeling judged, and often refuses to accompany her partner. Her physical pain also contributes to a minor degree.
Concentration, persistence and pace
3
The worker reports that she is forgetful, inattentive, she cannot read beyond a paragraph before losing focus and will often have to reread that material. She frequently misplaces belongings and is at times disorganised. She has posed a hazard by leaving doors
unlocked or possibly leaving electrical appliances on.
Employability
4
The worker has been unable to sustain employment since ceasing duties in 2018. Her cognitive impairment, persisting depressive state, and the physical debility arising from fibromyalgia are the main factors.
The Medical Assessor’s ratings of the appellant’s impairments in the other PIRS categories of self-care and personal hygiene, travel, and social functioning (which the Medical Assessor incorrectly termed social relationship functioning) were respectively 3, 3 and 2.
The Medical Assessor noted that the median class of his scores was 3 and that the aggregate score was 18 which converted to 22% WPI.
The Medical Assessor considered that the appellant had a pre-existing anxiety disorder that dated from her childhood and that a proportion of her permanent impairment was due to that such that a deduction was required under s 323(1) of the 1998 Act in the assessment of the appellant’s permanent impairment from her injury. The Medical Assessor said within Part 10a of the MAC that “I have assumed that the worker’s putative pre-existing anxiety disorder had made a partial contribution to the observed level WPI warranting a one-tenth deduction as there is no other credible methodology”. As noted within [22] above, the Medical Assessor, expressed that view in different words earlier in the MAC when summarising the appellant’s injury saying that there were “robust grounds to apply an s323 deduction, however, the only credible methodology in this instance is a one-tenth deduction”.
The Medical Assessor also explained within the body of the MAC that his ratings of the appellant’s impairment in the several PIRS categories were based on the appellant’s psychiatric symptoms and not her fibromyalgia. The Medical Assessor noted that the appellant’s fibromyalgia was most relevant with respect to his rating of the appellant’s impairment in employability. The Medical Assessor noted that the appellant had no current or foreseeable work capacity but that was partly attributable to the effects of her chronic pain from fibromyalgia.
The Medical Assessor observed that pain specialist Dr Needham in a report of
6 October 2020 noted that the appellant was suffering “widespread pain of fibromyalgia type complicated by severe emotional disorder”. The Medical Assessor also observed that
Dr Needham reported that the appellant is highly disabled due to the widespread pain she suffers.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor’s rating of her impairment in the category of “social/recreational functioning” ought to have been class 3 rather than class 2. The appellant submitted that based on the history the Medical Assessor recorded a class 3 rating was the appropriate rating.
The Appeal Panel notes that with respect to this matter the appellant repeated in her submissions the Medical Assessor’s reasoning for his rating of her impairment in the category of social and recreational activities and that the appellant extracted in her submissions the descriptors in Table 11.2 for a class 2 and class 3 rating. That table relates to social and recreational activities. Based on that, the Appeal Panel infers that the appellant’s reference to “social/recreational functioning” is a reference to the PIRS category of social and recreational activities.
The Appeal Panel observes that the Medical Assessor rated the appellant’s impairment in this category as class 3.
The appellant’s submitted that the Medical Assessor ought to have rated her impairment in PIRS category of CPP as class 4 rather than class 3, based on the history the Medical Assessor recorded. The appellant submitted that observations the Medical Assessor made fit “neatly with the class 4 descriptors”.
The appellant submitted that based on the history the Medical Assessor recorded and his acknowledgement that the appellant was totally incapacitated, the Medical Assessor ought to have rated her impairment in the category of employability as Class 5. The appellant further submitted that the Medical Assessor’s task was to assess her psychiatric impairment and that the Medical Assessor applied “his mind to matters he was not qualified (or asked) being to address physical issues and the consequences of the same”. The appellant submitted that the Medical Assessor by doing so fell into error.
The appellant submitted that there was no evidence that she had a prior symptomatic condition. The appellant submitted that the mere existence of “putative pre-existing anxiety disorder” is insufficient to warrant a deduction. The appellant submitted that the Medical Assessor approached the issue of whether a deduction should be made under s 323 of the 1998 Act based on an “assumption that a history of a pre-existing condition means, ipso facto, a deduction must be applied”. The appellant submitted that was an error.
In reply, the respondent submitted that with respect to the PIRS category of social and recreational activities the Medical Assessor rated the appellant’s impairment as class 3, which is what the appellant in her submissions submitted is the correct rating.
With respect to the Medical Assessor’s rating of the appellant’s impairment in CPP, the respondent submitted that the Medical Assessor exercised his clinical judgment on the day of assessment and had due regard to the evidence before him and that there is no demonstrable error with respect to the assessment he made of the appellant’s impairment in this category.
With respect to the category of employability the respondent submitted that in order to find error it must be established that the rating a Medical Assessor makes is such that “another reasonable mind could not have come to the conclusion reached”. The respondent submitted that the Medical Assessor explained his reasoning for applying a class 4 rating.
With respect to the deduction the Medical Assessor made under s 323 of the 1998 Act, the respondent submitted that the Medical Assessor provided detailed reasons for making a deduction and that there has been no error in the Medical Assessor’s application of s 323. The respondent submitted that “it is well accepted that it is open to a Medical Assessor to prefer their history taken on examination and to make a determination based on that history”.
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.
The Appeal Panel when viewing the original medical assessment is confined by s 328(2) of the 1998 Act to the grounds of appeal on which the appeal is made. That is, an Appeal Panel is limited to the matters the appellant has raised in his or her submissions in support of the appeal.[2]
[2] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [52]; Wilkinson v C and M Leussink Pty Ltd [2015] NSWSC 69 at [80]; InghamsEnterprises Pty Ltd v Valentina Lakovska [2013] NSWSC 1489 at [34]; Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26].
In this case the appellant in her submissions relating to the Medical Assessor’s rating of her impairment in the category of social and recreational activities has not identified any error with respect to how the Medical Assessor rated her impairment in this category, given that the Medical Assessor rated her impairment in accordance with how the appellant has submitted he ought to have rated it. That is to say, contrary to what the appellant submitted the Medical Assessor did not rate her impairment as class 2, but rather class 3. Further, the appellant has not revealed how the Medical Assessor applied incorrect criteria when rating her impairment in this category. The Medical Assessor used the criteria specified in chapter 11 of the Guidelines.
With respect to the Medical Assessor’s rating of the appellant’s impairment in CPP, the Appeal Panel notes in order to find error with respect to the rating, there must be more than a difference of opinion on the subject matter about which reasonable minds might differ.[3] The Appeal Panel must, in other words, be satisfied that it was not open to the Medical Assessor to make the rating that he did based on the material before the Medical Assessor.
[3] Parker v Select Civil Pty Ltd [2019] NSWSC 140 at [66]; Coenradi v The GEO Group Aust Pty Ltd [2022] NSWSC 864 at [136].
The Medical Assessor recorded that the appellant reported that she is forgetful, inattentive, cannot read beyond a paragraph before losing focus and will often have to re-read material. The Medical Assessor recorded that the appellant misplaces belongings and is disorganised at times. The Medical Assessor recorded that the appellant may leave doors unlocked and leave electrical appliances on.
The examples provided in Table 11.5 for a severe impairment are that a worker can only read a few lines before losing concentration, has difficulty following simple instructions, has concentration deficits obvious even during brief conversation, is unable to live alone or needs regular assistance from relatives or community services. The examples provided for a moderate impairment include being unable to read more than newspaper articles, and difficulty following complex instructions or making significant repairs or typing long documents or following patterns for making clothes. Given the history the Medical Assessor obtained, that is set out in the previous paragraph, it was open to the Medical Assessor, in the Appeal Panel’s view, to rate the appellant’s impairment as moderate. This is because although the appellant does have difficulty with concentration, in that she is forgetful and inattentive and can misplace objects and leave doors unlocked and electrical appliances on, she is nevertheless able to read beyond a paragraph before losing focus. Whilst other clinicians may form a different view regarding the degree of her impairment in this category, that is whether it is moderate or severe, that describes only a difference of opinion about which minds might differ. That does not demonstrate error. The Appeal Panel cannot find, based on the reasons that the Medical Assessor provided for his rating, that there has been an error in his evaluation of the relevant material when assessing the appellant’s impairment in this category.
Further, the Medical Assessor has applied the correct criteria when assessing the appellant’s impairment in this category, given that he has utilised the criteria as set out in Chapter 11 of the Guidelines.
With respect to the Medical Assessor’s rating of the appellant’s impairment in the category of employability, the Appeal Panel does not accept the appellant’s submission that the Medical Assessor applied his mind to matters for which he was not qualified by addressing “physical issues”. What the Medical Assessor did was to record within the MAC that the appellant has fibromyalgia and that as a consequence of that she has physical debility. The material before the Medical Assessor supported that. That material included the opinion of
A/Prof Molloy expressed in his report to the insurer of 31 January 2022 and the opinion of
Dr Needham expressed in his report of 6 October 2020 to the insurer. The Medical Assessor was entitled to have regard to that evidence and conclude that the appellant suffered from fibromyalgia and consequent debility. The Medical Assessor did not use his own clinical expertise to arrive at that conclusion, but rather had regard to the evidence in the form of opinions of medical practitioners who did have the expertise in terms of making a diagnosis with respect to the appellant’s physical pain.Clause 11.5 of the Guidelines reads as follows:
“If pain is present as the result of an organic impairment, it should be assessed as part of the organic condition under the relevant table. This does not constitute part of the assessment of impairment relating to the psychiatric condition. The impairment ratings in the body organ system chapters in AMA5 make allowance for any accompanying pain.”
A Medical Assessor consequently cannot, when assessing a worker’s impairment from a psychological injury, have regard to any pain a worker experiences if the pain is not associated with the psychiatric injury and relates to a physical condition. The Medical Assessor must have regard only to the psychiatric symptoms of a worker when rating a worker’s impairment in any of the PIRS categories.
Here, the appellant has fibromyalgia, the onset of which is not due to her psychiatric injury, but rather has an organic cause. The Medical Assessor consequently, when assessing the appellant’s impairment with respect to her function in employability, required to have regard only to the symptoms of the appellant consequent upon her psychological injury and the effect of those symptoms on her capacity with employability. The Appeal Panel considers that the Medical Assessor has done that, although he did not clearly express himself with respect to what he has done. In other words, the Appeal Panel considers that the Medical Assessor when evaluating what the appellant’s impairment is in the category of employability consequent upon the appellant’s psychological injury, has limited his evaluation to the symptoms the appellant has from her psychiatric injury and disregarded the pain the appellant experiences from her physical injury, that is from her fibromyalgia. Having isolated the appellant’s psychiatric symptoms from the appellant’s pain from her fibromyalgia, the Medical Assessor evaluated the appellant’s impairment in this category as severe. The Medical Assessor did not consider that the appellant’s impairment in this category was total as a consequence only of her psychiatric injury. It was open to the Medical Assessor to assess the appellant’s impairment in this category as he did and the Appeal Panel is not persuaded that there is any error with respect to his rating.
With respect to the issue of whether the Medical Assessor was correct to make a deduction under s 323(1) of the 1998 Act, the Appeal Panel accepts the appellant’s submissions to the effect that there is no evidence of a prior injury, but the Appeal Panel does not accept the appellant’s submission that there is no evidence of a prior symptomatic condition. The Medical Assessor found that there was, specifically “a pre-existing anxiety disorder dating from childhood”, and the Appeal Panel considers that that conclusion of the Medical Assessor was correct based on the evidence before him.
The Appeal Panel observes that a psychiatrist, namely Dr Robyn McGregor, whom the appellant consulted for treatment more than a decade ago, reported to the appellant’s then general practitioner (GP) on 6 September 2007 that the appellant “has a history of panic disorder with a first panic attack at age 18 years”. Based on that history, the appellant had an initial panic attack around 1986 to 1987.
The Appeal Panel also observes that Dr Samanthi Goonetilleke, a psychologist whom the appellant consulted under a mental health care plan, wrote to the appellant’s then GP on
23 September 2017 advising the GP that the appellant had “unresolved anxiety beginning from an early age”.Dr Andrew Pattison, a pain management physician, whom the appellant consulted on referral from her GP, wrote to the appellant’s GP on 20 October 2017 and within his correspondence provided the following history:
“The other significant co-contributor is a long standing history of depression with anxiety disorder and panic disorder. Dianne reports a long standing history of panic attacks from early childhood, described as convulsions, which saw her not infrequently being taken to Nepean Hospital. This anxiety and pain has been further exacerbated by a number of car accidents including one at age 13, 22 and 29.”
The appellant in a life history questionnaire she completed on 28 February 2020 described suffering “panic attacks from the age of 5 years old, with many trips to emergency”.
In the Appeal Panel’s view that evidence supports the Medical Assessor’s conclusion that the appellant has a previous anxiety disorder. The evidence does not reveal that this condition was symptomatic at the time the appellant commenced employment with the respondent, which is 20 years prior to the date upon which her injury is deemed to have occurred, but what is relevant is not whether it was symptomatic or asymptomatic at that time but whether a proportion of her permanent impairment currently from psychiatric injury is due to that pre-existing condition.
It is the case, as the appellant has submitted, that the existence of a pre-existing condition is not sufficient of itself for a deduction to be made. It is necessary that the pre-existing condition contributes to the appellant’s current impairment in the sense that it makes a difference to the outcome for the appellant in terms of her permanent impairment. If the degree of the appellant’s permanent impairment would not have been as great as it currently is, without her existing condition of an anxiety disorder, then a deduction must be made under s 323(1) of the 1998 Act.[4]
[4] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45].
The Appeal Panel again considers the Medical Assessor’s reasons for making a deduction under s 323(1) are not clearly expressed. He said, “I have assumed the worker’s putative pre-existing anxiety disorder had made a partial contribution to the observed level WPI warranting a one-tenth deduction as there was no other credible methodology”. The Appeal Panel considers that what the Medical Assessor is, in substance, expressing is that the pre-existing anxiety disorder he found the appellant had makes a difference to the appellant’s permanent impairment, and hence a deduction must be made under s 323(1), but it is too difficult to determine the exact extent to which the appellant’s pre-existing condition contributes to her current impairment, and hence he has assumed under s 323(2) that the deduction is to be 10%. The Appeal Panel considers that is correct. That is, the Appeal Panel considers that the appellant’s current permanent impairment is due in part to her pre-existing condition of an anxiety disorder, because without her lengthy history of suffering an anxiety disorder preceding her employment, her permanent impairment would not now be as great. It is also the case that it is impossible to determine the extent exactly that her pre-existing condition contributes to her current impairment and hence, it is correct therefore to assume in s 323(2) that the deduction is to be 10% because that deduction is not at odds with any of the evidence that was put before the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 June 2023 should be confirmed.
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