Cumberland City Council v Davis
[2023] NSWPICPD 83
•21 December 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Cumberland City Council v Davis [2023] NSWPICPD 83 |
APPELLANT: | Cumberland City Council |
RESPONDENT: | Karen Davis |
INSURER: | StateCover Mutual Limited |
FILE NUMBER: | A1-W1940/23 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 21 December 2023 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal the interlocutory decision dated 21 September 2023 pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. Order 1 of the Senior Member’s Direction dated 21 September 2023 is confirmed. 3. Order 2 of the Direction dated 21 September 2023 is revoked. 4. The matter is remitted to the President for referral to a Medical Assessor in accordance with Orders 1, 2 and 3 of the Senior Member’s determination dated 28 August 2023. 5. The documents to be forwarded to the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply to Application to Resolve a Dispute and attached documents; (c) Applications to Admit Late Documents and attachments dated 7 June 2023 and 17 August 2023; (d) The supplementary report of Dr Abhishek Nagesh, as redacted in accordance with the Senior Member’s determination. |
CATCHWORDS: | WORKERS COMPENSATION – Leave to appeal an interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 – Mohareb v State of New South Wales [2023] NSWCA 289 applied – whether error in the exercise of discretion – House v King [1936] HCA 40 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Ms K Ralph, solicitor | |
| Bartier Perry Lawyers | |
| Respondent: | |
| Mr A McDonnell, solicitor | |
| McDonnell Schroder | |
| DECISION UNDER APPEAL | |
SENIOR MEMBER: | Ms E Beilby |
DATE OF MEMBER’S DECISION: | 21 September 2023 |
INTRODUCTION AND BACKGROUND
This appeal concerns a claim made by Ms Karen Davis (the respondent) in respect of an incident that occurred on 30 December 2020 in the course of her employment as a parking patrol officer with Cumberland City Council (the appellant). The incident involved an aggressive member of the public who believed (incorrectly) that the respondent had booked him for illegally parking his car. When the respondent retreated to her car, the man slammed the door of her car, catching her left ankle, which had previously been injured in an earlier work-related incident. The respondent suffered further injury to her left ankle and a psychological injury diagnosed as post-traumatic stress disorder.
The respondent made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 19% whole person impairment resulting from the psychological injury. The claim was disputed by the appellant.
The respondent relied upon an assessment from Dr David Kumagaya, her treating psychiatrist, who assessed her whole person impairment as 19%. He made no deduction for any secondary psychological injury, pre-existing condition, or non-work related causes. The appellant qualified Dr Abhishek Nagesh, consultant psychiatrist, to provide an opinion in respect of liability for the injury and to assess the respondent’s whole person impairment. He assessed the respondent as suffering 17% whole person impairment, after making a deduction of 2% because of the effects of a secondary psychological condition arising from the ankle injury, which was not compensable pursuant to s 65A(1) of the 1987 Act.
In the course of the proceedings, Directions for Production were issued to two of the respondent’s treatment providers, Stanhope Medical Centre and a medical practice referred to as the “Workers Doctors.” The documents produced by both organisations were lodged with the Commission under cover of Applications to Admit Late Documents (AALD) dated 5 June 2023 and 17 August 2023.
Ultimately, the matter was listed for conciliation and arbitration on 22 August 2023 before a Senior Member of the Commission, and the parties agreed to Consent Orders. The Senior Member issued the Consent Orders bearing the date 28 August 2023, in the following terms:
“By and with the consent of the parties, the Commission determines:
1. The claim is amended to plead;
“on 30/12/20 in the course of her duties as a parking control officer, [the respondent] was verbally abused by a [m]ember of the public, who then assaulted her by slamming the car door on the [respondent’s] previously injured left ankle. This incident caused a primary psychological injury in the form of Post Traumatic Stress Disorder. This was a personal or frank injury pursuant to s 4(a) of the 1987 Act.”
2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act1998 for assessment as follows:
(a) Date of injury: 30.12.20 (see amended claim as per Order 1).
(b) Body systems/parts: Psychological/psychiatric disorder
(c) Method of Assessment: Whole person impairment
3. The Medical Assessor is to assess the [respondent] for primary psychological injury as pleaded above in order 1. The Medical Assessor is to assess whole person impairment for primary psychological injury, with no regard to be had to any impairment or symptoms resulting from a secondary psychological injury (if one exists) pursuant to section 65(A)2 of the 1987 Act.
4. The [appellant] is granted leave to file a supplementary report from Doctor Nagesh in response to the additional clinical and treating notes filed as late documents on the 7th of June 2023 and the 17th of August 2023 within 21 days.
5. The [respondent] is granted leave to file a further supplementary report from doctor Kumagaya within a further 21 days.
6. The parties are to exchange letters of instruction informally.
7. The documents to be reviewed by the Medical Assessor are:
(a) Application and attached documents, and
(b) Reply and attached documents;
(c) Late documents dated 7th of June 2023 and the 17th of August 2023;
(d) Further late documents pursuant to orders 5 and 6 above.
8. Any medical assessment is to be deferred for 8 weeks”.
The appellant lodged and served a supplementary report from Dr Nagesh dated 1 September 2023 under cover of an AALD dated 5 September 2023. By letter to the Commission dated 8 September 2023, the respondent objected to the supplementary report being admitted on the basis that the report went beyond a response to the additional clinical notes referred to by the Senior Member in the Consent Orders.
The matter was therefore listed for a telephone conference before the Senior Member on 15 September 2023 in order to determine the issue raised by the respondent. In the process of making its submissions as to why the report should be included in the proceedings, the appellant sought an amendment to the fourth order of the Consent Orders dated 28 August 2023 to allow the appellant an unfettered opportunity to rely on Dr Nagesh’s supplementary report. The respondent objected to the amendment to the Consent Orders.
The Senior Member declined to amend the order and determined that the substance of the report exceeded the purview of a response to the additional material and would cause prejudice and/or procedural unfairness to the respondent if the report in its entirety was admitted. She ordered that substantial parts of the report were to be redacted before the report was admitted and included in the remitter to the Medical Assessor.
The Senior Member issued a Direction on 21 September 2023 directing that the supplementary report of Dr Nagesh dated 1 September 2023 be redacted by deleting two of the three questions posed by the appellant, as well as Dr Nagesh’s responses to those questions. She determined that the second question and answer should remain.
The appellant appeals the Senior Member’s decision. Because the appeal was lodged, the medical assessment with Dr Singh, which had been arranged in accordance with Order 2 of the Consent Orders, was cancelled.
The parties agree the decision is an interlocutory decision and leave is required to bring the appeal (s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)).
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that the appeal can be determined on the basis of the written submissions and the documentary evidence.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Leave to appeal an interlocutory decision
Section 352(3A) of the 1998 Act provides as follows:
“(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant’s submissions
The appellant acknowledges that, in accordance with the decision of Roche DP in Collingridge v IAMA Agribusiness Pty Ltd,[1] the granting of leave to appeal in relation to an interlocutory decision requires a consideration of whether a determination of the appeal is necessary or desirable for the proper and effective determination of the dispute, which involves a consideration of the nature of the dispute and the orders sought on appeal.
[1] [2011] NSWWCCPD 31.
The appellant asserts that if parts of the evidence provided by Dr Nagesh in his supplementary report are redacted in accordance with the Senior Member’s Direction, there is a real risk that the Medical Assessor will fail to take into account the relevant matters disclosed in the clinical histories of “multiple non-compensable psychological stressors and conditions.”[2] The appellant refers to the potential effect that the absence of Dr Nagesh’s full report might have on an appeal to a Medical Appeal Panel.
[2] Appellant’s appeal submissions, [17].
The appellant submits that for those reasons, granting leave to appeal would be in the interests of providing procedural fairness to the appellant and consistent with the requirements of r 73 of the Personal Injury Commission Rules 2021. The appellant asserts that, in accordance with r 73, the report of Dr Nagesh is probative, relevant to the facts in issue and based on a correct assumption of the facts. The appellant contends that, on the other hand, Dr Kumagaya’s report was based on an inaccurate history and on unsubstantiated assumptions, yet the Senior Member dismissed the appellant’s application to have the report ruled inadmissible. The appellant submits that it has been deprived of the opportunity to put all of its evidence before the Medical Assessor, which has created the real possibility of an appealable error occurring and, in those circumstances, it is desirable and in the interests of justice that leave to appeal be granted.
The respondent’s submissions
The respondent recites the rather complicated procedural pathway leading to the Senior Member directing that the report of Dr Nagesh should be in part redacted. The respondent refers to the Senior Member’s reasoning and conclusions that the report was unfairly prejudicial to the respondent and ought to be in part redacted. The respondent submits that, in light of the context surrounding the admission of the report, leave should not be granted to appeal the interlocutory decision.
The respondent refers to the principles in House v The King,[3] and submits that what is required in order to interfere with a discretionary decision is that it must be shown that there some error was made in the exercise of that discretion. The respondent asserts that there was no demonstrated error in the Senior Member’s decision. The respondent submits that leave is required to appeal the decision and that in an appeal from a discretionary decision, it must be established that the decision was plainly wrong.[4]
[3] [1936] HCA 40 (House v The King).
[4] Gronow v Gronow (1979) 144 CLR 513.
The respondent further submits that, in order to grant leave to appeal an interlocutory decision, it must be shown that a sufficiency of doubt about the decision exists, and a substantial injustice would arise if leave were refused. The respondent asserts that there is no sufficient doubt that arises from the Senior Member’s decision, and no substantial injustice would arise because the clinical notes relied upon were to be forwarded to the Medical Assessor. The respondent adds that the granting of leave would offend the provisions in the workers compensation legislation requiring a timely resolution of disputes which, in this case, is limited to a determination as to the level of the respondent’s permanent impairment, and there has already been a six-month delay occasioned by the appellant’s conduct in exceeding the Senior Member’s orders.
Consideration
Ordinarily leave to appeal an interlocutory decision will only be granted if the proposed appeal raises an issue of principle, a question of general importance or an injustice which is reasonably clear, that is going beyond what is merely arguable.[5] The appellant asserts that an injustice would occur if the report from Dr Nagesh was not referred in its entirety to the Medical Assessor and the respondent contends that she would suffer an injustice if the unredacted report was admitted.
[5] Mohareb v State of New South Wales [2023] NSWCA 289, [11].
At this stage of the proceedings, the only issue for determination is the degree of the respondent’s whole person impairment, which, in the absence of agreement between the parties must be assessed by a Medical Assessor. It is important to determine what evidence should be forwarded to the Medical Assessor prior to the assessment being undertaken. I consider that leave to appeal the decision should be granted at this interlocutory stage because it would assist in the proper, effective and expeditious finalisation of the issues in dispute.
I therefore grant leave to the appellant to bring the appeal at this interlocutory stage.
LEAVE TO ADDUCE ADDITIONAL EVIDENCE
Both parties indicated in the appeal documents that they do not seek to rely upon additional evidence. The respondent, however, raises in her submissions that it is necessary to have the letter of instructions from the appellant to Dr Nagesh dated 25 August 2023 included in the appeal documents. The appellant was provided with the opportunity to reply to the respondent’s submissions on appeal and did not do so, thus not challenging the respondent’s application.
Section 352(6) of the 1998 Act provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The document is clearly not “fresh evidence” and was readily available to both parties and to the Senior Member in the proceedings before her. Section 352(6) therefore requires me to be satisfied that a failure to admit the document would cause a substantial injustice in the case.[6]
[6] Chep Australia Limited v Strickland [2013] NSWCA 351.
The appellant does not contradict the respondent’s submissions that it is necessary for the document to be admitted on the appeal. It is readily apparent that the copy of the letter is fundamental to a determination of the issues in the appeal. I therefore admit the document for the purpose of determining the appeal.
THE EVIDENCE
Report of Dr Nagesh dated 20 September 2022
Dr Nagesh examined the respondent by way of Telehealth consultation on 7 September 2022 and provided a report dated 20 September 2022.[7] He took a history of the respondent’s left ankle injury in June 2019, a recurrence of left ankle injury in October 2019 and of the respondent undergoing surgery to her left ankle on 4 November 2019. He noted that the respondent subsequently returned to pre-injury duties. He described the event on 31 (sic, 30) December 2020, in which an irate and agitated member of the public had abused the respondent and slammed her car door, further injuring the left ankle. Dr Nagesh also took a history of the numerous incidents when the respondent was exposed to verbal abuse and subjected to having things such as bottles thrown at her by members of the public in the course of her duties.
[7] Reply to Application to Resolve a Dispute (reply), pp 71–86.
Dr Nagesh recorded that the respondent developed a range of psychological difficulties following the incident on 30 December 2020 for which she consulted her general practitioner and a psychologist. He provided details of her symptoms and formed the view that, as a result of the multiple occasions when the respondent was verbally abused and subjected to missiles being thrown at her, as well as the incident on 30 December 2020, she suffered from post-traumatic stress disorder and major depressive disorder.
Dr Nagesh noted that the respondent had no history of past psychological injury. He further noted that the respondent’s co-workers had said that she had requested to work from home as she was anxious about contracting COVID-19, her request was denied, and she left the workplace. He opined that the respondent’s post-traumatic stress disorder was a primary psychological disorder resulting from the confrontation with the member of the public and her chronic major depressive disorder was a secondary psychological injury due to chronic pain from the ankle injury. He considered the respondent’s capacity for work and need for treatment.
Dr Nagesh assessed the respondent’s whole person impairment as 19%, which he reduced by 10% to 17% because the respondent’s chronic major depressive disorder was a secondary psychological condition and thus not compensable.
The appellant’s letter to Dr Nagesh dated 25 August 2023
It is necessary to reproduce the entire contents of the letter, as follows:
“Dear Dr Nagesh
…
We ask you to please provide a supplementary report where you indicate whether the recent consent finding of injury and/or the further clinical records cause you to change or adjust your previous opinions and assessments in relation to the deductible proportion and the level of WPI (psychiatric impairment) which has resulted from the agreed workplace injury on 30 December 2020.
There have now been consent findings made by the Commission in attached consent orders dated 22 August 2023 to the effect that the worker sustained an injury as a result of an incident on 30 December 2020 only, described as follows:
On 30 December 2020 in the course of her duties as a Parking Patrol Officer, the [respondent] was verbally abused by a member of the public who then assaulted her by slamming the car door on the [respondent’s] previously injured left ankle. This incident caused a primary psychological injury in the form of PTSD.
We have also received further clinical records from treating doctors and health professionals. Copies of relevant records are attached. We provide the following summary of the clinical records to assist you:
Stanhope Medical Centre
[summary of four entries in 2017 in which the respondent reported psychological symptoms and entries on 31 January and 2 February 2022, when the respondent reported symptoms of post-traumatic stress disorder]
Workers’ Doctors
[extracts from 15 entries between 3 August 2021 and 23 June 2022, in which the respondent complained of psychological stressors, four of which included complaints in relation to matters such as loss of employment and fear of catching COVID-19 and one entry relating to the other assaults in the workplace not claimed in these proceedings.]
Alfred de Robillard
[summary of five entries made between 3 February 2022 and 24 March 2022, in which the respondent complained of symptoms of post-traumatic stress disorder and financial ramifications of being unable to work]
By way of reminder, and so you do not simply review the further attached clinical records in isolation, we again provide the following summary of the clinical records previously obtained from Schofields Medical Centre – which were summarised in our previous letter of instructions from September 2022:
[summary of seven entries in the clinical notes referrable to complaints relating to the respondent’s left and right ankles and low mood between 23 April 2021 and 29 June 2021]
These clinical records were attached to our previous letter from September 2022. If you require further copies, please let us know.
Documents
We enclose copies of the following further documents:
(a)Report of Dr Nagesh dated 20 September 2022
(b)Clinical records of Stanhope Medical Centre
(c)Clinical record of Workers’ Doctors
(d)Clinical records of Alfred de Robillard
(e)Consent Orders of the Personal Injury Commission dated 22 August 2023
Supplementary report required
After reviewing the above, we request a supplementary report from you, please, which addresses the following matters:
Nature of the pleaded and determined injury
1. When you previously assessed the worker you provided an assessment of 19% WPI due to a general exposure to traumatic events in the course of her employment including having items thrown at her and being shouted at. From there you made a 1/10th deduction due to the effects of the secondary psychological condition.
As the injury is now definitely limited to the specific incident on 30 December 2020 (by consent order of the Personal Injury Commission on 22 August 2023), we ask you to please provide us with an updated assessment of impairment resulting from this frank injury only. [In your previous report dated 20 September 2022, you diagnosed the worker with PTSD and you described more of a ‘nature and conditions’ type of injury, pointing to numerous causative events, including being verbally abused, missiles being thrown at her on multiple occasions, water bottles being thrown at her on multiple occasions and being chased by an agitated member of the public and her ankle being slammed in the door of her car on 30 December 2022. Please exclude from your current WPI assessment any proportion of WPI which you previously ascribed to any of these other described workplace events that fall outside of the incident on 30 December 2022 when she was verbally abused and chased by an agitated member of the public who slammed a car door on her ankle.]
Pre-existing conditions
2. We draw your attention to the notes from Stanhope Medical Centre from 2017 which pre-date the subject injury of 30 December 2020. These indicate the worker had depression and anxiety at that time between at least July and September 2017.
In assessing permanent impairment please ensure an appropriate deduction is made, based on the evidence, for any proportion of the permanent impairment that is due to any previous injury or pre-existing condition or abnormality. If you decide to make a deduction in this regard please explain it with objective support.
The Court of Appeal has determined in the case of Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. Deductions are to be made for pre-existing conditions or abnormalities even though there may not have been any prior non-work specific injury. Also, a deductible proportion of one-tenth is only to be applied if a deduction of one-tenth would not be at odds with the available evidence. If a deduction of a mere one-tenth would be ‘at odds with the available evidence’, then a different deductible proportion should be applied by the doctor. All of these are pronouncements on the correct law in relation to section 323 of the 1998 Act and we ask you to please apply them when considering the deductible proportion.
Secondary psychological injury and other stressors not connected with the primary psychological injury of PTSD sustained on 30 December 2020
3. We also ask you consider the apportionment between any impairment that has resulted from the primary psychological injury sustained on 30 December 2020 and the secondary psychological injury or condition which related to the effects of the worker’s left ankle injuries.
In this regard, please discuss relevant history and entries in the attached clinical records.
Please discuss the relevance and significance of the following clinical history in this context:
In the contemporaneous records about the incident on 30 December 2020 (in the clinical records from Schofields Medical Centre and the incident report form dated 30 December 2020), there was no mention that the worker was psychologically distressed at the time the events happened, or in the immediate aftermath. Both the worker’s old GP at Schofields Medical Centre and the worker’s subsequent GP, Dr Lim of Workers’ Doctors, at various times attributed the worker’s low mood to her ankle injury and/or her chronic ankle pain. Dr Lim’s first examination of the worker was in August 2021, some 8 months after the incident on 30 December 2020.
In a report dated 3 August 2021 (provided with our previous letter of instructions of September 2022), the worker's then new GP, Dr Lim, diagnosed the worker as suffering an adjustment disorder. He noted that on 30 December 2020, the worker suffered a left ankle injury after a member of the public slammed the car door on her foot. He noted that she returned to work on light duties and was doing data entry. He recorded that she had had disturbed sleep due to pain and was stressed about losing her job and felt unsupported by her employer. In this report, Dr Lim said the worker had become psychologically depressed due to feeling worthless and not being able to do any useful work. He said her longstanding pain had contributed to her depression. At no point in this report did Dr Lim suggest the worker was experiencing ongoing trauma or a primary psychological injury or PTSD from the incident on 30 December 2020.
As you noted in your September 2022 report, the worker ceased work in July 2021 because of her concerns about contracting COVID. This was at the time that Sydney was in lockdown and the worker lived and worked in an ‘LGA area of concern’ and she remained unvaccinated. The worker asked the Council for permission to undertake her duties at home (she was on light duties following ankle surgery) and when the Council could not accommodate her request, she left its employ. This history of ceasing work was consistently presented by her (to her treating doctors and at IME examinations) and was recounted by her colleagues (in their statements which were previously provided to you in 2022).
Please ensure you exclude from your assessment of compensable WPI (psychiatric impairment) that resulted from the worker’s PTSD due to the specific incident on 30 December 2020, any proportion of WPI (psychiatric impairment) that, on the balance of probabilities, has resulted from a secondary psychological condition which flowed from her ankle injuries and associated pain and disability and any proportion of WPI (psychiatric impairment) that has resulted from any psychological condition or aggravation connected with her concerns about contracting COVID whilst unvaccinated and Council’s decision not to allow her to perform light duties at home which caused her stress about losing her job and not being able to do any useful work and to shortly thereafter cease work and leave the employ of Council. None of these issues are connected with the sole relevant workplace injury arising from the incident on 30 December 2020 (which is the only pleaded injury/injurious incident in the current permanent impairment proceedings and the only injury/injurious incident that is the subject of a finding by the Commission).
Please provide the clinical reasoning for your apportionment, your deductible proportion and your ultimate assessment of WPI (psychiatric impairment), (after any applicable deductions or exclusions are applied), which has resulted from the specific incident on 30 December 2020.
…”.
Dr Nagesh’s complete supplementary report dated 1 September 2023
Dr Nagesh’s supplementary report dated 1 September 2023 was annexed to an AALD dated 5 September 2023.
In response to the first question posed by the appellant, Dr Nagesh noted that his prior assessment was made in respect of the injuries related to the multiple causes listed in that report. He advised that the assessment attributable solely to the injury on 30 December 2020 should be reduced by 30% to account for those other causes thus leaving 70% attributable to the injury on 30 December 2020. He confirmed that he had already made a deduction of 10% for the secondary psychological condition in his earlier report.
In respect of the second question posed by the appellant, Dr Nagesh expressed the view that:
“Based on the document provided to me, the claimant was suffering from depression and anxiety in 2017 as per Stanhope Medical record. Hence, I have deducted 10% of the whole person impairment due to her pre-existing condition of depression and anxiety.”[8]
[8] AALD dated 5 September 2023, p 4.
In response to the third question put by the appellant, Dr Nagesh referred to his previous deduction of 10% impairment in relation to the secondary psychological condition. He added that, from the documents provided to him, the respondent suffered other stressors causing anxiety and depressive symptoms, including her fear of contracting COVID-19, the appellant refusing to allow her to work from home, and the respondent having ceased work with the appellant. Dr Nagesh applied a further deduction of 10% in respect of the respondent’s fear of contracting COVID-19.
Dr Nagesh explained his deductions from the assessment of 19% whole person impairment as follows:
(a) 10% due to the respondent’s pre-existing psychological condition;
(b) 10% attributable to the respondent’s fear of contracting COVID-19;
(c) 10% in respect of the secondary psychological condition, and
(d) 30% due to work related causes other than the incident on 30 December 2020 (the pleaded injury).
Dr Nagesh noted that the combined deductions amounted to 60%, so that the percentage whole person impairment resulting from the incident on 30 December 2020 was 40% of the total 19%, which equated to a “rounded up” assessment of 8% whole person impairment solely attributable to the injury on 30 December 2020.
THE SENIOR MEMBER’S REASONS
The Senior Member expressed her preliminary view that the supplementary report from Dr Nagesh should not be admitted. She said that, firstly, the report went beyond the terms of the Consent Order and for her to go “above them and unilaterally to change them goes against the very nature of consent orders.”[9] The Senior Member noted that the appellant’s approach had shifted from an application for the report to be admitted to an application to amend the Consent Order. The Senior Member said that the order was intended to give the appellant the opportunity to provide Dr Nagesh with the additional clinical material and to enquire whether Dr Nagesh wished to change his opinion on the basis of that clinical material.
[9] Transcript of proceedings (T) dated 15 September 2023, Davis v Cumberland City Council, T 20.17–21.
The Senior Member noted that the appellant submitted that the respondent had failed to disclose a pre-existing psychological condition, which the appellant said was a serious matter. The Senior Member identified the contents of the clinical entries made in 2017 that supported the appellant’s submission. The Senior Member acknowledged that the entries did disclose that the respondent had received treatment for a psychological condition at that time. She pointed out that the respondent had not had the opportunity to explain to Dr Nagesh the context of that treatment.
The Senior Member said that Dr Nagesh had already made a deduction of 10% in respect of a pre-existing condition so that the history of a pre-existing condition was not a matter of substance. The Senior Member observed that there were limited entries in the clinical notes and the complaints were made approximately three years prior to the pleaded injury. The Senior Member referred to the objectives of the Commission to achieve a “quick, just, expedient disposal of cases,”[10] and noted that two arbitrations had been held and three telephone conferences. She expressed the view that the parties had entered into Consent Orders and ought to comply with those orders.
[10] T 22.7–8.
The Senior Member was of the view that Dr Nagesh was not only asked to consider the clinical records but was asked to reconsider his assessment of the whole person impairment and the deductions for other events that occurred before and after the injury, which was beyond the scope of the Consent Order. She considered that the respondent was prejudiced by not being given an opportunity to explain the chronology of events, and the events were taken in isolation without consideration of their context. She was of the view that the report should be afforded little weight in any event. The Senior Member concluded that the report could only be admitted insofar as it complied with the grant of leave provided by the Consent Orders, which was for Dr Nagesh to provide an opinion in response to the clinical material filed as late documents in the proceedings. The Senior Member considered that the only part of Dr Nagesh’s report that complied with the grant of leave was Dr Nagesh’s response to the second question posed by the appellant in relation to the pre-existing psychological condition. The Senior Member said that the remainder of the report should be removed from the document.
The Senior Member proceeded to consider further submissions made by the parties in relation to an issue raised by the appellant that the report of Dr Kumagaya was inadmissible because the opinion was not provided in a “fair climate.” The Senior Member rejected the appellant’s submission. The appellant does not challenge the Senior Member’s conclusion relevant to that issue in this appeal.
The Senior Member issued a Direction dated 23 September 2023 as follows:
“The Commission directs:
1. The report of Dr Nagesh dated 1 September 2023 (see [appellant’s] late documents dated 6/9/23 [sic, 5/9/23]) is to be provided to the Medical Assessor. The report is to be redacted (questions and answers 1 and 3 are to be excluded). Question 2 and its answer are to be included.
2. The medical assessment with Dr Singh on 10 November 2023 is confirmed.”
GROUNDS OF APPEAL
The appellant does not properly express any ground of appeal, which is unsatisfactory. However, it can be gleaned from the appellant’s submissions that its complaint is that the Senior Member:
(a) improperly excluded the evidence in response to the third question posed to Dr Nagesh;[11]
(b) erroneously determined that the reliance on Dr Nagesh’s supplementary report would cause the respondent a denial of procedural fairness, and[12]
(c) provided inadequate reasons for her decision.[13]
SUBMISSIONS ON THE APPEAL
[11] Appellant’s appeal submissions, [13].
[12] Appellant’s appeal submissions, [16].
[13] Appellant’s appeal submissions, [16].
The appellant’s submissions
The appellant refers to the definition of “decision” provided by s 352(8) of the 1998 Act and submits that the Senior Member’s decision as properly defined was a discretionary decision to exclude evidence and as such the principles applicable to the appeal are those established in House v The King. The appellant says that those principles require that, before an appeal court can exercise its own discretion in place of that of the primary decision maker, it must be established that:
(a) the primary decision-maker acted on a wrong principle or allowed extraneous or irrelevant matters to guide or affect the exercise of the discretion;
(b) the decision maker mistook the facts;
(c) the decision maker did not take into account some material consideration, or
(d) the outcome was unreasonable or plainly unjust.
The appellant says that the initial order dated 28 August 2023 was expressed broadly. The appellant quotes the third question put by it to Dr Nagesh and Dr Nagesh’s response and submits that, in asking Dr Nagesh to provide his further opinion, the question directed Dr Nagesh to the clinical notes and the material from the respondent’s treatment providers. The appellant asserts that Dr Nagesh provided his further opinion on the basis of the contemporaneous records. The appellant further asserts that, on its face, the question posed and the answer provided by Dr Nagesh fell within the scope of the Senior Member’s Direction made on 28 August 2023. That is, it was in response to the additional clinical and treating notes.
The appellant submits that the Senior Member excluded the question and answer on the basis that it would result in a denial of procedural fairness to the respondent. This was despite the fifth order of the Senior Member’s determination dated 28 August 2023 that gave the respondent the unfettered opportunity to commission a further report from Dr Kumagaya which was not limited in any way. The appellant contends that the evidence in response to its third question was wrongly excluded. The appellant asserts that, in those circumstances, there can be no denial of procedural fairness because the respondent was given the opportunity to adduce further evidence from Dr Kumagaya addressing Dr Nagesh’s findings, opinions and deductions.
The appellant points out that the respondent did not object to the admission of any of the clinical records or contemporaneous material annexed to the AALDs dated 5 June 2023 or 17 August 2023. The appellant further points out that the respondent had the opportunity in the time leading up to the telephone hearing on 15 September 2023 to lodge a statement challenging the accuracy of any of the facts recorded in the material and did not avail herself of that opportunity. The appellant says that this fact should have led the Senior Member to assume that there was no challenge to the accuracy of the material and therefore, Dr Nagesh’s reliance on the clinical histories could not cause prejudice to the respondent or constitute a denial of procedural fairness. The appellant submits that the Senior Member’s conclusion was erroneous, her reasons were inadequate, and as such constituted error in the exercise of her discretion in accordance with the principles set down in House v The King.
The appellant says that it should be noted that at the hearing on 15 September 2023, the appellant suggested to the Senior Member that the respondent ought to have the opportunity to file a supplementary statement, in addition to a report from Dr Kumagaya, prior to the assessment by the Medical Assessor. The appellant submits that the Senior Member declined the proposition, even though such a step would not have prejudiced either party and would have provided the appellant with the reasonable opportunity to have admitted medico-legal evidence which the appellant says was highly relevant and probative. The appellant asserts that the full report of Dr Nagesh should be provided to the Medical Assessor.
The respondent’s submissions
The respondent asserts that the appellant has failed to identify what in fact are its grounds of appeal and submits that she is not required to infer what constituted the grounds of appeal. The respondent complains that the appellant asserts that the Senior Member:
(a) acted upon a wrong principle;
(b) allowed extraneous irrelevant matters or irrelevant material to guide or affect her decision;
(c) failed to take into account some material consideration, and
(d) arrived at an unjust or unreasonable outcome.
The respondent submits, however, that in relation to the above, the appellant does not identify:
(a) the wrong principle relied upon;
(b) what those extraneous matters were or the particular irrelevant material;
(c) any material consideration that the Senior Member failed to take into account;
(d) the outcome, or
(e) what was unreasonable or unjust about that outcome.
The respondent indicates that, in order to respond to the appellant’s submissions about the third question posed to Dr Nagesh, it is necessary to examine the letter of instruction. The respondent says that Dr Nagesh was referred to his report dated 20 September 2022 and asked to review “the below summary of the consent findings and the further evidence, which have emerged since your previous report, together with the attached further clinical records and attached consent order of the Commission.”
The respondent submits that the instruction went beyond the order of the Senior Member, which was that “the [appellant] is granted leave to file a supplementary report from Dr Nagesh in response to the additional clinical and treating notes filed as late documents on 7 June 2023 and 17 August 2023 within 21 days.” The respondent explains that the order did not permit Dr Nagesh to provide further evidence about the Consent Orders, the order was limited to the provision of those documents, without interpretation of matters such as “consent findings” or “further evidence that has emerged”. The respondent asserts that the clinical and treatment notes should have been provided “without any bias or adornment.”[14]
[14] Respondent’s submissions, [55].
The respondent refers to the letter to Dr Nagesh in which the appellant provided its own summary of the evidence it considered relevant. The respondent concedes that it would have been permissible to point out to Dr Nagesh the entries which were relevant to the injury or impairment, but not to provide a summary of that evidence in its letter of instruction.
The respondent further refers to the appellant having listed six entries in the documents produced by the Stanhope Medical Centre in its summary. The respondent asserts that the first four entries relate to complaints of a psychological nature in the period from 27 July 2017 to 6 September 2017, and the consultations took place more than three years prior to the respondent’s injury on 30 December 2020. The respondent adds that the other two entries relate to psychological symptoms arising from the injury on 30 December 2020. The respondent contends that the appellant effectively invited Dr Nagesh to draw an inference that the 2017 consultations suggested an impairment at that time, without pointing out in its summary that there were no further consultations in respect of psychological symptoms from then until the assault on 30 December 2020.
The respondent points out that the appellant proceeded to summarise 15 further entries from the “Workers Doctors” in respect of consultations with unidentified providers between 3 August 2021 and 23 June 2022. The respondent submits that the entries are not reproduced in full but are part extracts accompanied by commentary. The respondent says that each of these entries occurred between seven months and eighteen months after the pleaded injury. The respondent submits that the appellant’s summary appears to have the intention of leading Dr Nagesh to the view that those complaints were due to events that occurred more than three years prior to the assault.
The respondent asserts that, because of the appellant’s approach, she has had no opportunity to contest the matters referred to above. The respondent says that it was on that basis the Senior Member reached the conclusion that the appellant’s letter went beyond the scope of her order and that the unredacted supplementary report from Dr Nagesh was unfairly prejudicial to the respondent and thus procedurally unfair.
The respondent submits that the appellant proceeded to summarise five further entries in relation to the documents from Mr Alfred de Robillard, psychologist. The respondent contends that it is unclear what records the appellant was referring to and to what extent the summaries relate to clinical records within the scope of the Senior Member’s order. The respondent explains that all of the entries referred to relate to events that occurred between 2 February 2022 and 24 March 2022 and confirm that the respondent’s psychological symptoms were present through that time and all concerned the injury on 30 December 2020, except for one entry which referred to the earlier ankle injury in 2019. The respondent points out that Dr Nagesh was already aware of the earlier ankle injury. The respondent says that it is difficult to understand why the appellant raised those matters.
The respondent refers to the appellant’s letter to Dr Nagesh in which the appellant listed seven items, which the respondent says were already raised by the appellant with Dr Nagesh in the previous letter of instruction and related to documents already available. The respondent indicates that this constituted a re-visit to Dr Nagesh’s first report which was outside of the scope of the Senior Member’s order. The respondent refers to what she describes as an “extensive list of requests” that were well outside the parameters of the Senior Member’s order, which was to provide the clinical notes and records not previously provided to Dr Nagesh and ask Dr Nagesh for his comments, if any, about those notes.
The respondent asserts that, in the appellant’s letter to Dr Nagesh, the appellant provided a section bearing the heading “Nature of the pleaded and determined injury.” The respondent submits that the appellant’s reference to the amendments to the pleadings was an attempt to escalate the significance of events prior to the pleaded injury and to suggest that they were a proper basis for making a deduction to the respondent’s whole person impairment resulting from the primary injury. The respondent maintains that the events involved occurred three years prior to the pleaded injury and there were no further consultations between those events and the pleaded injury three years later. The respondent refers to a further section in the letter headed “Pre-existing conditions.” The respondent says that this was a further transgression against the Senior Member’s order because it was an attempt to re-visit an issue already dealt with by Dr Nagesh, who, in any event, was himself capable of considering the relevance of the additional material and whether it altered his opinion. The respondent asserts that it was an attempt to “lead Dr Nagesh to [a] particular conclusion”.[15]
[15] Respondent’s submissions, [71].
The respondent asserts that the appellant adopted an advocacy approach by providing a dissertation of legal authority relating to the application of s 323 of the 1998 Act, in an attempt to raise the significance of the consultations in 2017.
The respondent further asserts that the appellant went beyond the ambit of the Senior Member’s order when referring to “Secondary psychological injury and other stressors not connected with the primary psychological injury of PTSD sustained on 30 December 2020.”[16] The respondent points to the appellant’s reference to clinical entries on 30 December 2020 and in 2021 and submits that the appellant’s purpose was to minimise the link between the physical injury and the primary psychological injury and to encourage Dr Nagesh to reach that view. The respondent particularly points to the appellant having informed Dr Nagesh that, in Dr Lim’s report dated 3 August 2021, “At no point in this report did Dr Lim suggest the [respondent] was experiencing ongoing trauma or a primary psychological injury or PTSD from the incident on 30 December 2020”. The respondent submits that that statement completely ignores the fact that on that date, Dr Lim referred the respondent for treatment for psychological distress with PTSD symptoms.[17]
[16] Respondent’s submissions, [73].
[17] Respondent’s submissions, [75].
The respondent refers to the appellant’s request for Dr Nagesh to turn his mind to his earlier report and the significance of the respondent’s concerns in 2021 about COVID-19. The respondent asserts that, in the light of the acceptance of the psychological injury on 30 December 2020, it was not appropriate or relevant for the appellant to request Dr Nagesh to re-visit his earlier report and it was outside of the ambit of the Senior Member’s order.
The respondent asserts that the request made to Dr Nagesh by the appellant to exclude from the assessment any permanent impairment that resulted from a secondary psychological condition and the appellant’s reference in the letter to other concerns about the provision of alternate work or job loss was again outside of the ambit of the Senior Member’s order. The respondent points out that Dr Nagesh is a qualified psychiatrist and is well aware of the difference between a primary and a secondary psychological injury. The respondent asserts that the appellant’s approach was one of advocacy, was self-serving and an attempt to align Dr Nagesh’s views with its own.
The respondent contends that the appellant accepted that the respondent suffered a primary psychological injury and did not seek to challenge that issue when it had the opportunity to do so and the appellant’s approach in the appeal is not relevant to the issue raised in this appeal. The respondent submits that any submissions about the Senior Member’s order that the respondent was to have the opportunity to obtain a report from Dr Kumagaya were irrelevant because that order is not the subject of this appeal and is not an answer to the fact that the respondent went outside of the Senior Member’s order. The respondent adds that any opportunity for her to make a further statement is also not relevant.
The respondent concludes that the appellant’s submissions are without foundation and have failed to identify error of the kind referred to in House v The King.
THE RELIEF SOUGHT
The appellant seeks the following orders:
(a) that the appeal be allowed;
(b) that the Direction dated 21 September 2023 be revoked, and
(c) in lieu thereof, there be a determination that the questions and responses to questions 1 and 3 of Dr Nagesh in his report dated 1 September 2023 are to be provided to the Medical Assessor such that the full report of Dr Nagesh dated 1 September 2023 is provided to the Medical Assessor.
The respondent says that if leave to appeal is granted, she seeks to have the appeal dismissed.
CONSIDERATION
The first complaint raised by the appellant is that the Senior Member improperly excluded the third question posed by the appellant to Dr Nagesh. The appellant submits that the third question directed Dr Nagesh to the material produced by the respondent’s treatment providers and Dr Nagesh provided his responses on the basis of those documents, which was within the scope of the Senior Member’s Direction.
The third question asked Dr Nagesh to consider the apportionment between any impairment that resulted from the primary psychological injury on 30 December 2020 and the secondary psychological condition resulting from the effects of the respondent’s left ankle injuries. The appellant referred to:
(a) entries in the records of the Schofields Medical Centre, which the respondent said made no record of any distress at the time the injury occurred or immediately thereafter;
(b) entries where the respondent complained of low mood as a consequence of her ankle pain to her prior general practitioner at the Schofields Medical Centre and subsequently to Dr Eric Lim, general practitioner, and
(c) a report dated 3 August 2021, in which Dr Lim diagnosed an adjustment disorder in the context of pain in the respondent’s ankle, disturbed sleep, stress and feelings of worthlessness from losing her employment.
The appellant recited matters in relation to the respondent’s concerns about being unvaccinated and contracting COVID-19, as well as being unable to work from home. The appellant sought an additional assessment of the respondent’s impairment in respect of those matters and noted that Dr Nagesh had referred to all of those matters in his previous report. The appellant also pointed out that the report from Dr Lim dated 3 August 2021 had been previously provided to Dr Nagesh in September 2022 for the purpose of preparation of the first report.
From a perusal of Dr Nagesh’s report dated 20 September 2022, Dr Nagesh did in fact have at that time the report of Dr Lim dated 3 August 2021 and the clinical records of the Schofields Medical Centre. The Schofield Medical Centre records for the period from 7 September 2019 to 29 June 2021[18] and the report of Dr Lim dated 3 August 2021[19] were also annexed to the appellant’s reply.
[18] Reply, pp 87–111.
[19] Reply, pp 53–55.
It is patently clear that Dr Nagesh formed his view in relation to his initial assessment of impairment in the context of the history of the respondent’s concerns in relation to COVID-19, her vaccination status, as well as her loss of employment. He expressed the view that the respondent’s whole person impairment was 19%, which he reduced by 10% to 17% because the respondent’s chronic major depressive disorder was a secondary psychological condition and thus not compensable.
The appellant’s request to Dr Nagesh was to review the further evidence which had emerged since his previous report. The only “new” evidence that was identified in relation to this question were the clinical notes from Stanhope Medical Centre disclosing psychological symptoms in 2017 (relevant to the second question posed by the appellant and allowed by the Senior Member), the entries from the “Workers Doctors” practice and those from Mr De Robillard. The clinical entries in the documents other than the Stanhope Medical Centre records do not make any real reference to fresh psychological issues that Dr Nagesh had not taken into account in his earlier report.
The Consent Order recorded by the Senior Member permitted the appellant to seek a response from Dr Nagesh in relation to the “additional clinical and treating notes”. It was not an invitation for Dr Nagesh to re-visit the evidence already provided to him and revise his earlier opinion of the respondent’s compensable whole person impairment.
The appellant further asserts that the Senior Member erroneously determined that the reliance on Dr Nagesh’s supplementary report would cause the respondent a denial of procedural fairness. The respondent asserts that, because the appellant stepped outside of the scope of the Consent Order and requested Dr Nagesh to review his earlier assessment, she has had no opportunity to respond to Dr Nagesh’s revised assessments.
The dispute notice issued by the appellant pursuant to s 78 of the 1998 Act disputed, among other things, that the respondent suffered an injury pursuant to s 4(a) of the 1987 Act. The notice referred to the report of Dr Lim dated 3 August 2021 and the clinical records of the Schofields Medical Practice. The author of the notice noted that Dr Kumagaya assessed the respondent’s whole person impairment as 19%, diagnosed a post-traumatic stress disorder and attributed the entire loss to the incident on 30 December 2020. The author of the notice also noted that Dr Nagesh had attributed the whole of the impairment to multiple causes.
The respondent’s case, as originally pleaded, provided a description of the injury as follows:
“On 30 December, 2020 in the course of her duties as a Parking Patrol Officer, the worker was verbally abused by a member of the public. The worker was then followed to her car and the unknown member of the public assaulted the worker by slamming the car door on the worker’s previously injured left ankle. This incident caused a primary psychological injury in the form of PTSD.”[20]
[20] Application to Resolve a Dispute, p 7, “Injury Details”.
It was patently apparent from the outset that the respondent’s case was that she suffered a primary psychological injury on 30 December 2020 which was a personal injury pursuant to s 4(a) of the 1987 Act and resulted in permanent impairment. It is not readily apparent why the original pleadings required amendment, and the amendment did not depart from the case originally claimed by the respondent. From the outset, Dr Nagesh’s opinion was that the impairment was attributable to multiple causes. The appellant made no attempt from the commencement of the claim to seek a further assessment of the loss solely resulting from the personal injury alleged to have occurred on 30 December 2020, despite the matter having such a protracted history. Even at the time the Consent Orders were entered into, it does not appear that the appellant made an application for leave to obtain an assessment in response to the respondent’s claim as pleaded. The first question posed by the appellant was as follows:
“When you previously assessed the worker you provided an assessment of 19% WPI due to a general exposure to traumatic events in the course of her employment including having items thrown at her and being shouted at. From there you made a 1/10th deduction due to the effects of the secondary psychological condition.
As the injury is now definitely limited to the specific incident on 30 December 2020 (by consent order of the Personal Injury Commission on 22 August 2023), we ask you to please provide us with an updated assessment of impairment resulting from this frank injury only.”
The pleaded injury was always “limited to the specific incident on 30 December 2020.” In my view, to allow the course adopted by the appellant in the eleventh hour, which was a course that ought to have been taken at the commencement of the claim, undoubtedly would result in procedural unfairness to the respondent, which had already involved three telephone conferences and two conciliation/arbitration hearings. In any event, that was not the only reason the Senior Member excluded questions one and three and the responses to those questions. The Senior Member considered that that evidence was beyond the scope of the leave granted and it was not open to her to unilaterally amend an order made by the consent of the parties. The Senior Member was correct on both counts. The first and third questions posed by the appellant fell well outside of the scope of the Consent Order, which was acknowledged by the appellant when it made submissions seeking that the Consent Order be amended by the Senior Member so that Dr Nagesh’s whole opinion could be admitted.
The appellant asserts that the Senior Member provided inadequate reasons for her decision. The appellant makes no submissions pointing to the Senior Member’s reasons and does not identify why those reasons were inadequate. The Senior Member’s reasons were clear and logical and were sufficient to discharge the duty imposed upon her by statute.
It follows that the appellant has not identified error on the part of the Senior Member of the kind required by House v The King principles. The appeal fails and Order 1 of the Senior Member’s Direction dated 21 September 2023 is confirmed. Order 2 of the Direction, which confirmed a medical assessment with Dr Singh on 10 November 2023, is obsolete and is therefore revoked.
DECISION
Leave to appeal the interlocutory decision dated 21 September 2023 pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted.
Order 1 of the Senior Member’s Direction dated 21 September 2023 is confirmed.
Order 2 of the Direction dated 21 September 2023 is revoked.
The matter is remitted to the President for referral to a Medical Assessor in accordance with Orders 1, 2 and 3 of the Senior Member’s determination dated 28 August 2023.
The documents to be forwarded to the Medical Assessor are:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply to Application to Resolve a Dispute and attached documents;
(c) Applications to Admit Late Documents and attachments dated 7 June 2023 and 17 August 2023;
(d) The supplementary report of Dr Abhishek Nagesh, as redacted in accordance with the Senior Member’s determination.
Elizabeth Wood
DEPUTY PRESIDENT
21 December 2023
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