Davis v Pizza Pan Equity Group Pty Ltd
[2024] NSWPICMP 188
•3 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Davis v Pizza Pan Equity Group Pty Ltd [2024] NSWPICMP 188 |
| APPELLANT: | Paul Davis |
| RESPONDENT: | Pizza Pan Equity Group Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 3 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by attributing proportion of the appellant’s permanent impairment to secondary psychiatric condition and not including that in the degree of the appellant’s permanent impairment from the injury referred to the MA for assessment; no agreement between the parties nor determination by the Commission that the appellant had a secondary psychological injury; referral to MA described body part/system being referred as “psychological/psychiatric disorder”; Appeal Panel found that absent agreement from the parties or determination by the Commission that appellant had a secondary psychological injury, the medical dispute referred to the MA did not require the MA to assess the appellant’s impairment from a secondary psychological injury; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 December 2023 Paul Davis, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 December 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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with Pizza Pan Equity Group Pty Ltd, the respondent. On the morning of 5 July 2018 he was working as a manager at the respondent’s Pizza Hut store on Mulgoa Road. Whilst working he touched exposed electrical wires and suffered electrocution in his left hand. As a consequence of that he suffered both physical injuries and a psychological injury.
The appellant claimed compensation from the respondent’s insurer for permanent impairment from his physical injuries and also for permanent impairment from his psychological injury. With respect to his physical injury he relied on a report of pain and rehabilitation specialist Dr Tim Ho, who had assessed he had 51% whole person impairment (WPI) from his physical injuries. With respect to his claim for permanent impairment from his psychological injury, he relied on a report of psychiatrist Dr Abdal Khan dated 8 October 2022, who had assessed the appellant had 19% WPI from his psychological injury, which Dr Khan described as “a frank injury” and which he diagnosed was post-traumatic stress disorder and major depressive disorder. Dr Khan said this was a direct result of the workplace trauma that occurred when the appellant was electrocuted which Dr Khan wrongly stated happened on 11 November 2018.
The insurer denied liability for the appellant’s claim for compensation for permanent impairment from his psychological injury. It notified him of that by a notice issued under s 78 of the 1998 Act on 12 September 2023. It relied on a report of psychiatrist Dr Yajuvendra Bisht dated 20 July 2023 who assessed the appellant had 7% WPI from a “primary work-related injury”. Dr Bisht advised the insurer in his report that he assessed the appellant had 13.5% WPI overall relating to his psychological injury but Dr Bisht also said “the work-related psychologic injury was a combination of a primary injury as a result of the subject incident and secondary to the worker’s physical injuries sustained in that incident”. Dr Bisht apportioned half of the appellant’s permanent impairment relating to his psychological injury to what he described as a “primary work-related injury” and half to what he described as “secondary to the appellant’s physical injuries”.
For completeness, the Appeal Panel notes that the insurer also had the appellant examined by orthopaedic surgeon Dr Tod Gothelf to provide a medical-legal report relating to the appellant’s physical injuries. Dr Gothelf produced that report to the respondent’s insurer on 19 December 2022. In it he advised he had assessed the appellant had 16% WPI from his physical injuries. The respondent’s solicitors wrote on 12 September 2023 to the appellant’s solicitors advising that the respondent offered to settle the appellant’s claim for permanent impairment from his physical injuries by paying him compensation for 16% WPI.
Subsequent to the insurer issuing its s 78 notice and the respondent’s solicitor’s letter of offer, the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of the claims he made for compensation for permanent impairment resulting from his injuries he suffered on 5 July 2018. The description of this injuries in the Application to Resolve a Dispute that he filed in the Commission to initiate the proceedings was in these terms:
“During the course of his employment the applicant was conducting his usual duties at work by himself at 10.00am to make preparations for the day ahead. He was in the process of turning a preparation table on. In the course of doing this, he had a door of the over or refrigerator close on his left hand and it closed in such a way that caused a significant electrocution to his left hand, of which he estimates was in the vicinity of 30amps. The applicant underwent carpal tunnel release procedure under the hand of Dr Dowd to his left hand on 11 November 2018. Shortly after the incident, the applicant developed mood symptoms and anxiety levels reported at times including sleep problems, nightmares and flashbacks of being electrocuted at work. His psychiatrist Dr Nadeen Anwar diagnosed him with PTSD and depressive symptoms.”
A delegate of the President of the Commission issued a referral to the Medical Assessor relating to the appellant’s psychological injury, which was amended on 6 November 2023. The amended referral described the medical disputes that had been referred to the Medical Assessor for assessment in these terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 5 July 2018
Body part/s referred: Psychiatric / psychological disorder
Method of assessment: Whole Person Impairment”
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor examined the appellant on 29 November 2023 to conduct the assessment. As said, he issued the MAC on 1 December 2023 certifying his assessment of the medical disputes that had been referred to him.
Under the subheading “summary of injuries and diagnoses” the Medical Assessor said the following:
“My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
o Post-traumatic stress disorder (PTSD)
o Major depressive disorder (MDD)
Mr Davis experienced severe trauma when he was electrocuted, meeting Criterion A for PTSD. He has distressing intrusion symptoms in the form of involuntary, intrusive memories of the event, recurrent nightmares, prolonged psychological distress at exposure to things that remind him of the incident and physiological reactions evidenced by panic. He actively avoids reminders.
He has a persistent negative emotional state, especially fear, and diminished interest in participating in significant activities. He has a reduced ability to experience positive emotions. He is hypervigilant, prone to startle, and has problems concentrating and sleeping.
Mr Davis also has 8 of the 9 symptoms described for a major depressive disorder. I leave off the symptom of weight loss or gain because Mr Davis has long-standing morbid obesity and has lost weight well on an active weight loss program.
PTSD is a primary psychiatric condition, and the MDD is secondary to his physical limitations and pain.”
The Medical Assessor applied the criterion in chapter 11 of the Guidelines to assess the appellant had an overall permanent impairment of the order of 15% WPI, but the Medical Assessor apportioned one-third of that to what he said was the appellant’s “secondary psychiatric condition (MDD)”, such that the Medical Assessor certified the degree of the appellant’s permanent impairment from the psychiatric injury the appellant suffered on 5 July 2018 was 10% WPI.
The Medical Assessor provided the following explanation at Part 8g of the MAC for apportioning one-third of the appellant’s permanent impairment to what he described as a secondary condition:
“Mr Davis suffered PTSD because of his experience of electrocution, which elicited shock, fear and thoughts of death. MDD arose subsequently and was secondary to his pain and physical disability. The PTSD may have been exacerbated by the pain and physical disability as well.
Mr Davis’s description, as well as that of his treating psychiatrist, make it clear that the psychiatric response to pain and physical disability was significant. Some part of the psychiatric disability would now be present even if Mr Davis had not developed PTSD.
It is impossible to determine exactly what proportion is due to each condition. Relying on my experience and expertise as a psychiatrist, I apportion one-third to the secondary condition and two-thirds to the primary condition. In doing so, I have considered the exacerbating effect of the MDD, pain and physical disability on his PTSD, the impairment for which the causal chain is unbroken.”
No controversy has been raised with the Medical Assessor’s assessment that the appellant’s overall permanent impairment relating to his psychological conditions is 15% WPI. The issue raised in the appellant’s appeal relates to the Medical Assessor apportioning one-third of his overall permanent impairment to a secondary psychological condition and certifying that the degree of his permanent impairment from the injury that was referred to him for assessment was 10% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
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 because the information before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.
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.
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 erred by not attributing all of his permanent impairment to “the accepted injury”. The appellant submitted that common law principles of causation applied such that there was no reason for the Medical Assessor to apportion any part of his permanent impairment to a secondary psychological condition. The appellant referred to Secretary, NewSouth Wales Department of Education v Johnson,[1] Ozcan v Macarthur Disability Services Ltd[2] and State Government Insurance Commission v Oakley[3] to support this submission.
[1] [2019] NSWCA 321, [2021] NSWCA 56.
[2] [2021] NSWCA 56.
[3] [1990] 10MVR 570; [1990] Aust Tort reports 81-003.
The appellant also submitted that his impairment can have multiple causes and so it did not matter that a secondary psychological condition contributes to his impairment. The appellant referred to Calman v Commission of Police,[4] Cluff v Dorahy Bos. (Wholesale) Pty Ltd[5] as authorities to support that submission.
[4] [1999] HCA 60; [1999] 73 ALJR 1699.
[5] [1979] 2NSW LR 435.
The appellant submitted that his impairment “as a whole” resulted from the injury he suffered on 5 July 2018.
The appellant submitted that the Medical Assessor did not indicate why he made a deduction of one-third when assessing his WPI. The appellant submitted the Medical Assessor erred by failing to provide adequate reasons.
The appellant submitted that the Medical Assessor did not assess his impairment as at the day of assessment but on the basis of what his impairment may have been but for developing a secondary psychological condition, and that the consequence of this was that the Medical Assessor applied incorrect criteria.
In reply, the respondent submitted that s 65A(1) and (2) of the Workers Compensation Act 1987 (1987 Act) required the Medical Assessor to apportion the appellant’s permanent impairment between the appellant’s primary psychological injury and the secondary psychological condition that arose as a consequence of the physical injuries the appellant suffered in the incident on 5 July 2018. The respondent also submitted paragraphs 1.19 and 1.22 of the Guidelines required the Medical Assessor to apportion the degree of permanent impairment he found the appellant had between a primary psychological injury and a secondary psychological condition.
The respondent submitted that the Medical Assessor adequately explained his reasons for doing this at paragraph 8g of the MAC.
The respondent referred to earlier decisions of differently constituted appeal panels to support its submissions, namely Wang v Star Timber Pty Ltd[6] and Manly Fresh Pty Ltd v Bachal.[7]
[6] [2023] NSWPICMP 515.
[7] [2021] NSWPICMP 218.
The respondent referred to a medical assessment certificate that Medical Assessor Mark Burns issued on 17 November 2023 in which he certified the appellant had 19% WPI resulting from the appellant’s physical injuries that had occurred in the same incident on 5 July 2018 in which the appellant suffered a psychological injury. Regarding this, the respondent submitted, in substance, that the appellant’s appeal against the MAC was futile because in accordance with s 65A(4) of the 1987 Act even if a medical certificate had issued certifying he had 15% WPI from his psychological injury, because the degree of his permanent impairment from his physical injuries was assessed to be higher than that, he would be compensated under s 66 based on the WPI that Medical Assessor Burns assessed him to have from his physical injuries.
The Appeal Panel notes that it does not have the medical assessment certificate that Medical Assessor Burns issued. In any event, and notwithstanding s 65A(4) of the 1987 Act, that limits the appellant to receiving compensation for permanent impairment from one or the other of his psychological and physical injuries, but not both, the Appeal Panel is still tasked to determine whether any of the grounds for appeal on which the appellant relies is substantiated.
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 agrees with the appellant’s submission to the effect that the Medical Assessor was required to assess the whole of his permanent impairment resulting from the psychological injury he sustained in the incident on 5 July 2018. The Appeal Panel agrees with this not because of common law principles of causation but rather because the medical dispute that was referred to the Medical Assessor to assess required that. The Appeal Panel notes too that the authorities to which the appellant referred to support his submission relating to common law principles of causation are not on point because those matters involved the occurrence of supervening incidents or injuries and not different conditions or injuries that arose from a single event.
The medical dispute that was referred to the Medical Assessor to assess related to a “psychiatric/ psychological disorder”. There was no mention in the referral of either a primary psychological injury or secondary psychological condition. There was no agreement between the parties nor had there been a determination by the Commission that the appellant suffered a secondary psychological injury or a secondary psychological condition. Hence, the medical disputes that the Medical Assessor was required to assess, as listed in the amended referral, do not require the Medical Assessor to assess the impairment of the appellant from any secondary psychological injury or secondary psychological condition. It was not part of the Medical Assessor’s task, bearing in mind the medical disputes that had been referred to him to assess, to make any findings or conclusions regarding whether the appellant suffered a secondary psychological injury or condition.
If there was any dispute between the parties regarding that, and on the Appeal Panel’s analysis of the material before it, potentially there is, then that is a matter for the Commission to determine.[8]
[8] State of New South Wales (NSW Dept of Education) KAUR [2016] NSWSC 346 at [22]-[23].
The Appeal Panel notes that the earlier decisions of differently constituted appeal panels to which the respondent referred in its submissions to the effect that the Medical Assessor was required by s 65A(2) of the 1998 Act to apportion the appellant’s permanent impairment between a primary psychological injury and a secondary psychological injury, both involved cases in which a determination had been made by the Commission that the worker had suffered a secondary psychological injury. It would seem therefore that the medical disputes referred to respective Medical Assessors to assess in those matter required the Medical Assessors to apply s 65A(2) when assessing the workers’ permanent impairment. That however, is not this case.
Consequently, the Medical Assessor’s conclusion that the appellant’s major depressive disorder is a secondary psychological condition was not open for him to make and, following on from that, it was not open to the Medical Assessor to apportion the degree of the appellant’s permanent impairment that he found had resulted from a psychiatric/ psychological disorder between a primary psychological injury and a secondary psychological condition.
Whilst that is sufficient to deal with the appeal against the MAC, the Appeal Panel notes, beyond that, the requirement of s65A(2) of the 1987 Act not to have regard to any symptoms from a secondary psychological injury would not affect the outcome in this case. This is because, in the Appeal Panel’s view, the symptoms and impairments that the appellant currently has relating to his psychiatric conditions are entirely accountable due to his posttraumatic stress disorder. That is the symptoms and impairments he has from both psychiatric disorders, namely posttraumatic stress disorder and major depressive disorder, are entirely intermingled and cannot be disentangled such that some symptoms or impairments can be attributable to one disorder and some to the other. The symptoms he has from his major depressive disorder are not over and above the symptoms and impairments he has from his posttraumatic stress disorder.
The requirement of s 65A(2) of the 1987 Act is that no regard be had to any impairment of symptoms resulting from a secondary psychological injury. It does not stipulate that a deduction has to be made if symptoms or impairments a worker has are explicable as a consequence of both a primary psychological injury and a secondary psychological injury. The requirement is not to make a deduction but rather, and to stress, not to have regard to impairment or symptoms from a secondary psychological injury. It does not require a medical assessor to ignore the impairment and symptoms arising from a primary psychiatric injury. If that were the case, then in a circumstance such as this case where the impairment and symptoms of the appellant from the various psychological disorders he has are completely intermingled and cannot be disentangled such that some symptoms can be attributed to one disorder and some to the other, then not to have regard to the impairment or symptoms from a secondary psychological injury would mean that regard could also be had to impairment and symptoms from a primary psychological injury. That cannot be the purpose of s 65A(2). If it were, it would result in a worker being assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact the worker does have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and contrary to one of the objectives of the legislation that injured workers receive payment for permanent impairment.
In any event, as already mentioned, the Medical Assessor was not required in this case to assess the degree of permanent impairment of the appellant from a secondary psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons
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