De'Athe v Frost Antiques Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	De'Athe v Frost Antiques Pty Ltd [2024] NSWPIC 217
APPLICANT:	Lorraine Yvette De’Athe
RESPONDENT:	Frost Antiques Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	30 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; permanent impairment claim; operation of transitional provisions contained in schedule 6, part 18C; whether applicable in circumstances of matter, and if so, to what extent; the applicant suffered a previous non-compensable psychological injury in the employ of the respondent before suffering a further injury of the same nature with a deemed date of 22 July 2011; the matter was referred for medical assessment, and a deduction of 2/10ths was made pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 by the Medical Assessor (MA); that finding was not the subject of any appeal; the applicant conceded she suffered a previous, non-compensable condition; Held – the transitional provisions apply to the matter.; the provisions require a factual examination of the evidence and to determine the amount, if any, of the deduction from the compensation awarded; on examining the lay and medical evidence, the appropriate deduction pursuant to the transitional provisions is a monetary figure in accordance with the findings of the MA, namely a 20% or two tenths deduction; Certificate of Determination dated 15 March 2024 confirmed.
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination dated 15 March 2024 is confirmed.

STATEMENT OF REASONS

BACKGROUND

On 12 October 2023, the Personal Injury Commission (Commission) found the applicant, Lorraine Valerie De’Athe suffered a psychological injury in the course of her employment with the respondent, Frost Antiques Pty Limited with a deemed date of injury of 22 July 2011.
In accordance with the Commission’s findings, the applicant was referred for medical assessment, and on 7 February 2024, Medical Assessor Mason issued a Medical Assessment Certificate (MAC) assessing the applicant as suffering an 18% whole person impairment as a result of the injury at issue.
Relevantly, and in accordance with the terms of the referral contained in the Amended Certificate of Determination dated 12 October 2023, the Medical Assessor made a deduction of 2/10ths from the applicant’s degree of permanent impairment as a result of pre-existing, non-compensable psychological conditions suffered before 1 January 2002 including a prior injury suffered by the applicant in the course of her employment with the respondent on
25 August 1995. The MAC is not the subject of any appeal.
On 15 March 2024, the Commission issued a Certificate of Determination ordering the respondent pay the applicant lump sum compensation in the sum of $29,950 pursuant to
s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of an 18% whole person impairment.
Demonstrating tenacity in the face of the findings made against it, the respondent then had the matter listed for further telephone conference on 25 March 2024. At that time, the Commission directed the parties lodge and serve written submissions as to whether there should be a deduction to the amount payable to the applicant pursuant to the transitional provisions found in Schedule 6, Pt 18C of the 1987 Act, despite the Medical Assessor making deductions for the same pre-existing problems suffered by the applicant pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) from which the respondent did not appeal.

ISSUES FOR DETERMINATION

The parties agree that the only issue remaining in dispute is whether the transitional provisions of the 1987 Act apply, and if so to what effect.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing. The matter had previously been the subject of a contested hearing. I do not propose to repeat the detailed and lengthy factual history which was the subject of the original decision. Suffice to say, the issue in dispute at the hearing was the correct deemed date of an accepted psychological injury, and consequently, which insurer was on risk at the date of that injury.
The parties have agreed to the determination of the matter without a conference or formal hearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply in the interests of EML and attached documents;
(c)    Reply in the interests of GIO and attached documents;
(d)    Application to Admit Late Documents lodged by GIO and attachments, and
(e)    MAC dated 7 February 2024.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the transitional provisions apply

The answer to this question is plainly “yes”. The applicant in her written submissions accepts the respondent’s contention that the provisions apply in the circumstances of this matter.

The appropriate deduction pursuant to the transitional provisions

The transitional provisions in Sch 6, Pt 18C of the 1987 Act relevantly provide:
“(2) There is to be a reduction in the compensation payable under Division 4 of Part 3 (as amended by the lump sum compensation amendments) for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. This subclause does not limit the operation of section 323 of the 1998 Act or section 68B of the 1987 Act.
(3) A "previously non-compensable impairment" is loss or impairment that is due to something that occurred before the commencement of the amendments to Division 4 of Part 3 made by the lump sum compensation amendments, being loss or impairment that is of a kind for which no compensation was payable under that Division before that commencement.”
Any deduction pursuant to the transitional provisions must apply to the monetary compensation rather than the degree of impairment: Fleming v NSW Police Force [2011] NSWWCCPD 33, and the question of any deduction is a question of fact rather than medical opinion.
In its written submissions, the respondent relied on a number of documents which were in evidence before the Commission to assert a deduction of 50% was warranted. I do not propose to recite those factual matters in these reasons, as they were before the Commission and taken into consideration in making the findings contained within the first reasons for decision in this matter. They were also placed before the Medical Assessor and plainly taken into consideration by him. I have also taken those matters into account in formulating these reasons.
Moreover, there is no issue the applicant suffered a prior non-compensable condition. Indeed, the referral to the Medical Assessor which formed part of the original Certificate of Determination specifically requested a deduction of the prior condition be taken into account. The Medical Assessor then made a deduction of 2/10^thsto account for that condition.
Despite the operation of the transitional provisions not being the subject of any submissions at the hearing, no objection is taken to their operation being raised at the heel of the hunt, or to the respondent apparently seeking a second bite at securing a larger deduction from the compensation payable to the applicant than that found by the Medical Assessor in circumstances where it did not appeal the findings contained in the MAC.
Nevertheless, I am unaware of any authority which precludes this course of action, and accordingly, it is necessary to engage in a factual determination of the amount, if any, of the relevant deduction to be applied. In SAS Trustee Corporation v Pearce [2009] NSWCA 302 (Pearce), the Court noted:
“The reduction required by the transitional provisions turns on a causal connection between the impairment and the events which occurred before the commencement of the amendments. There may be various circumstances in which an injury is received after a particular date but is due to something that occurred before that date. Circumstances which engage sub-ss 15 or 16, providing for deemed dates of injury, could also engage the transitional provisions and require a reduction under cl 3(2). They require the assessment of a 'proportion’ of the impairment which is due to events occurring before 2002.”
The respondent submitted that an application of the principles set out in Pearce would lead to a conclusion the prior non-compensable events, in particular the 1995 injury, are the most significant contributor to the applicant’s current impairment. It submitted a deduction of at least 50% of the assessed compensation should therefore be made.
The difficulty with that submission is the applicant returned to work after the 1995 injury and was able to remain in employment until the later, compensable injury. Whilst it is the case she did not return to full time work, the applicant was able to return to her employment with the respondent in what were obviously very trying circumstances, given the nature of her treatment at that workplace in the past. An examination of the evidence to determine the causal connection between the earlier condition and the applicant’s current level of impairment includes the findings of the Medical Assessor. In the MAC, the Medical Assessor stated:
“a.     In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Major depressive disorder with anxious distress on the background of a personality vulnerability.
b.      The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) The most significant impact of the 1995 injury was that she was unable to return to work on a full-time basis. She initially returned on 2 days/week and then 3 days/week but did not regain full time employment.
c.      Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 2/10 for the following reasons:
(i) Ms De’Athe had a pre-existing vulnerability prior to commencing work at Frost Antiques in 1987, warranting a 1/10th deduction in regard to the 1995 injury. After the 1995 injury she was unable to return to full-time work, warranting a further 1/10th deduction in regard to the 2011 injury. The total deduction is 2/10th .
12.    ANSWERS TO SPECIFIC QUESTIONS
Your answers to the specific questions raised by the Member.
The Member raised the following specific question:
“In making their determination, the Medical Assessor is to consider whether there is any deduction to be made pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of a psychological injury suffered by the applicant on 25 August 1995 in the course of her employment with the respondent.”
13. In my opinion a 1/10th deduction pursuant to s 323 for pre-existing vulnerability in regard to the 1995 injury is warranted. A further deduction of 1/10th is warranted in respect of the 2011 injury because she had been unable to return to full-time work following the 1995 injury. The total deduction is 2/10th.”
Those findings were made by the Medical Assessor after a consideration of the lengthy factual history of the case, following a consistent history being given by the applicant to him and following a reading of the medical and lay evidence in the matter. Although the Medical Assessor’s opinion is not determinative of any deduction to be made pursuant to the transitional provisions, in my view his opinion is persuasive. He is uniquely qualified of all the health professionals, treating and medicolegal, to assess all of the material before the Commission before providing his assessment, and proceeded to apply a 20% reduction of the amount payable to the applicant for lump sum compensation.
In my opinion, the Medical Assessor’s opinion is persuasive. He plainly turned his mind to the previous, non-compensable conditions suffered by the applicant, and made a substantive and significant deduction to account for them.
In carrying out my own evaluation of the lay and medical evidence, I am likewise minded that a 2/10^th deduction is appropriate. Although the Medical Assessor quite appropriately applied his deduction pursuant to s 323 of the 1998 Act, the effect of that deduction is identical to the reduction which I have concluded is appropriate pursuant to the transitional provisions.
This being so, the amount of monetary compensation reflected in the Certificate of Determination dated 15 March 2024 adequately accounts for the operation of the transitional provisions, and that Certificate of Determination is confirmed.
As an aside, it was unclear in the submissions whether the respondent was seeking a monetary deduction of the equivalent of 50% on top of that deducted by the Medical Assessor, or whether the 20% deduction awarded in the MAC was part of the 50% deduction sought. Given my findings, however, it is not necessary to determine which position the respondent was adopting.

SUMMARY

For the above reasons, the Commission will make the Order set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 217

30 April 2024