Donald v Hastings Medical Centre Pty Ltd
[2021] NSWPICMP 173
•20 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Donald v Hastings Medical Centre Pty Ltd [2021] NSWPICMP 173 |
| APPELLANT: | Kimberley Donald |
| RESPONDENT: | Hastings Medical Centre Pty Ltd |
| APPEAL PANEL: | Member William Dalley Dr Douglas Andrews Professor Nicholas Glozier |
| DATE OF DECISION: | 20 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Allegation of demonstrable error in respect of a deduction of 1/10 pursuant to section 323 (2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) from an assessment of 15% WPI in respect of psychological injury; the appellant worker submitted that, although she had suffered previous psychological conditions, there was no evidence that these contributed to the impairment following the subject psychological injury; Held - the appellant’s independent medical expert had diagnosed the injury as an aggravation of a previous major depressive disorder as well as a new generalised anxiety disorder; the independent medical expert qualified by the respondent agreed there was a pre-existing condition of major depressive disorder; the notes of the general practitioner supported the existence of a psychological disorder prior to the subject injury which was likely to have contributed to the level of impairment assessed by the Medical Assessor; the extent of contribution was relatively minor and a deduction of 1/10 was not at odds with the evidence; the Medical Assessment Certificate was revoked to cure an error of rounding. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 July 2021 Kimberley Donald lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 June 2021.
The appellant relies on the following ground of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act): the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, the ground of appeal is capable of being made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under section 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant, Ms Donald, suffered a psychological/psychiatric injury as a result of incidents in the workplace in the course of her employment as an enrolled nurse with the respondent, Hastings Medical Centre Pty Ltd. The injury is deemed to have occurred on 29 July 2019.
Ms Donald was prescribed various antidepressants but suffered side-effects. Her treating general practitioner referred her to a psychologist for ongoing treatment which was of assistance but did not resolve the symptoms entirely.
On 2 October 2020 Ms Donald was examined by a psychiatrist, Dr Ash Takyar, for the purpose of assessment of impairment resulting from the subject injury for the purposes of a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987.
Dr Takyar diagnosed Ms Donald as suffering an aggravation of a Major Depressive Disorder and a new Generalised Anxiety Disorder. He assessed Ms Donald as suffering 15% whole person impairment (WPI) based upon the Psychiatric Impairment Rating Scale (PIRS) to which he added a further 1% WPI for the effects of treatment. Dr Takyar made no deduction pursuant to section 323 of the 1998 Act in respect of any previous injury, pre-existing condition or abnormality.
Ms Donald’s representatives made a claim for lump-sum compensation in accordance with the assessment of Dr Takyar. The insurer then had Ms Donald assessed by a consultant psychiatrist, Dr Ashwinder Anand, who examined Ms Donald on 7 December 2020. Dr Anand diagnosed Ms Donald as suffering a Major Depressive Disorder with Prominent Anxiety.
Dr Anand assessed Ms Donald as suffering 7% WPI assessed in accordance with the PIRS to which he added a further 1% WPI for the effects of treatment. Dr Anand reported that Ms Donald had a pre-existing condition, a major depressive disorder, and deducted 1% to give an assessment of 7% WPI as result of the subject injury.
The dispute as to the extent of impairment was referred to the Medical Assessor who examined Ms Donald on 28 May 2021. The Medical Assessor diagnosed Ms Donald as suffering a Major Depressive Disorder with Anxious Distress. He assessed Ms Donald as having 15% WPI based on his assessment of the PIRS and deducted one tenth in respect of a pre-existing psychiatric/psychological condition to give an assessment of 13% WPI (after rounding down).
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because sufficient information was available to the Panel to enable it to complete a review of the MAC.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor incorrectly applied a deduction of one tenth to the assessed level of WPI. The appellant submits that the Medical Assessor fell into error in failing to identify how an earlier injury or condition contributed to the current level of impairment assessed. The appellant further submits that the conclusion that the earlier injury or condition contributed to the overall level of impairment was not open on the evidence.
In reply, the respondent submits that the Medical Assessor had appropriately exercised his clinical skill and judgement in concluding that the earlier injury or condition did contribute to the overall level of impairment.
FINDINGS AND REASONS
The procedures on appeal are contained in section 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[1] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.
The appeal is limited to consideration of the deduction pursuant to section 323 of the 1998 Act. That section provides:
“323 DEDUCTION FOR PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note : So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the Medical Assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
Paragraph 11.11 of the Guidelines provides:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s preinjury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI % is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is one tenth of the assessed WPI.”
The Medical Assessor reported:
“In my medical opinion Ms Donald did suffer from a different pre-existing assessable psychiatric condition prior to this work-related injury sustained whilst working at Hastings Medical Centre Pty Limited. Ms Donald suffered from an adjustment disorder with depressed mood DSM 5 code 309.0. She had developed this condition about the same time she had been diagnosed with Crohn’s disease at 17 years of age in Scotland, UK. She received psychological treatment for her pre-existing psychiatric condition.”.
The Medical Assessor agreed that a proportion of loss of efficient use or impairment or WPI, was due to a previous injury, pre-existing condition or abnormality. The Medical Assessor noted:
“I note that Ms Donald had received prior psychological treatment for a depressed mood first at about 17 years of age when she was diagnosed as suffering from Crohn’s disease and then in Perth Western Australia when she was ‘homesick’. Ms Donald had suffered from adjustment disorder with depressed mood DSM 5 Code 309.0 with treatment provided by a clinical psychologist. Ms Donald continued to have regular appointments by the videoconferencing with this psychologist with whom she had rapport and support prior to the onset of this work-related injury. Her local medical practitioner, and clinical psychologist continued to treat Ms Donald [sic] work-related injury at the time of this assessment. There was no resolution in Ms Donald’s work-related injury that is now a permanent psychiatric impairment.”
and explained:
“Ms Donald had a pre-existing psychiatric condition, best described by DSM 5 criteria as adjustment disorder with depressed mood DSM 5 Code 309.0. An adjustment of one tenth of the assessed whole person impairment was made for this pre-existing assessable psychiatric condition.”.
Under the heading “Deduction (if any) for the Proportion of the Impairment That Is Due to Previous Injury or Pre-Existing Condition or Abnormality” the Medical Assessor reported:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
i)Adjustment Disorder with depressed mood DSM 5 Code 309.0.
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:
ii)Adjustment Disorder with depressed mood DSM5 Code 309.0 was suffered by Ms Donald about the time of onset of her Crohn’s disease and right hemi colectomy in about 2007. This condition made Ms Donald vulnerable to further psychiatric conditions, such as the diagnosed work-related injury Major depressive disorder with anxious distress DSM5 Code 296.22.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of section 323 (2) I assess the deductible proportion as one tenth. The deduction is not at odds with the evidence as Ms Donald was able to fully recover from her adjustment disorder with depressed mood DSM 5 Code 309.0, prior to her emigrating from Scotland and commencing work in Perth full-time. She was fit to transfer to NSW independently and resettled. She had formed new relationships and friendships prior to the onset of this work-related injury.”
The Medical Assessor did not adjust his assessment of impairment for the effects of treatment. Having assessed Ms Donald at 15% WPI on the basis of her PIRS the Medical Assessor then deducted one tenth, rounding the final assessment down to 13% WPI.
The appellant submits that she was fully recovered from her adjustment disorder and that the findings of the Medical Assessor did not support a deduction pursuant to section 323 (2). The appellant submits “In the appellant worker’s case, there is no evidence to suggest that she was impaired as a result of her pre-existing injury”, noting that the Medical Assessor had confirmed that Ms Donald had fully recovered from her pre-existing condition prior to her emigrating from Scotland and noting her ability to function after coming to Australia.
The appellant submitted that the Medical Assessor had fallen into error in failing to set out his reasoning for the decision to make a deduction pursuant to section 323 “in circumstances where he found that the Appellant Worker ‘was able to fully recover’ yet he still elected to apply a deduction pursuant to section 323.”
The appellant’s submissions drew attention to Ms Donald’s statement which detailed her recall of her preinjury level of functioning and concluded that “it cannot be said that, but for the pre-existing condition, the degree of impairment resulting from the Appellant Worker’s work injury would not have been as great.” The appellant drew attention to the level of functioning indicated by Ms Donald’s statement and concluded that there was “no evidence before the MA to suggest that the Appellant Worker was impaired as result of her pre-existing condition.”
Consideration
There is no dispute that Ms Donald suffered a pre-existing condition. Dr Takyar identified the subject injury as an aggravation of a pre-existing major depressive disorder and Dr Anand similarly accepted a pre-existing psychological condition. Ms Donald, in her statement, acknowledged that she suffered psychological problems in connection with Crohn’s disease and also noted emotional problems at the time when she came to Perth from her former home in Scotland.
The Panel does not accept the submission that “there is no evidence to suggest that [Ms Donald] was impaired as a result of her pre-existing injury”. One of the treating general practitioners, Dr Jeong, recorded in a letter of referral dated 26 November 2018 which was in evidence:
“Thank you for seeing Miss Kimberly Donald for an opinion and management of anxiety and depression which was exacerbated by recent work-related stress issues. Please refer to the MHCP for background information, which was done by another doctor.
History: revisited
Psychological stress, anxiety, depression – baseline worsened after being overloaded at work with the role it was not supported.”
That information reflects the history recorded by the general practitioner at consultation on 6 November 2019. The use of the word “exacerbated” implies the pre-existence of a condition.
On 23 October 2019 the general practitioner, Dr Spedding, noted the history “anxiety and depression for 10 years”. On a number of occasions in September and October 2019 Dr Spedding recorded “Emotion – Depression – since I was 17”. On 2 September 2019 Dr Spedding noted “Crohn’s disease anxiety depression, B12 and sinus problems and back pain.”
In his report dated 2 October 2020 Dr Takyar was of the opinion that, although Ms Donald’s mood was “likely within the normal domain at the time of the injury,” he nevertheless diagnosed Ms Donald as suffering “an aggravation of her Major Depressive Disorder and a new Generalised Anxiety Disorder.”
Ms Donald’s statement refers to depression which she suffered following a diagnosis of Crohn’s disease which she believed resolved and a further bout of depression after arriving in Australia which led to her consulting a counsellor in Perth throughout 2016 and 2017 and subsequently after moving to New South Wales by telephone in 2019.
That evidence suggests that Ms Donald, at the time of the subject injury and at the time of commencement of her employment with the respondent, was suffering a psychological condition, although she was coping relatively well at the time she commenced that employment.
The Panel notes that the Medical Assessor asserted: “This condition made Ms Donald vulnerable to further psychiatric conditions, such as the diagnosed work-related injury Major depressive disorder with anxious distress DSM5 Code 296.22”.
In Matthew Hall Pty Ltd v Smart[2] Giles JA said “Thus to establish a pre-existing condition for the purposes of section 323 (1) there must, at the relevant date, an actual condition although it may be asymptomatic. A mere previous disposition or even a susceptibility is not sufficient to constitute a condition.”
[2] [2000] NSWCA 284; 21 NSWCCR 34.
The Panel accepts the submission by the appellant that the Medical Assessor found that Ms Donald “was able to fully recover” from her pre-existing condition (or conditions) and that his assessment of the deduction be made pursuant to section 323 was based upon vulnerability to further psychiatric conditions.
In adopting that approach the Panel is satisfied that the Medical Assessor fell into error. In Cole v Wenaline Pty Ltd[3] Schmidt J said:
“What section 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly what that proportion was.”
[3] [2010] NSWSC 78 at [30].
It does not appear from the MAC that the Medical Assessor assessed the extent to which the pre-existing condition or conditions contributed to the impairment assessed as a result of the subject injury. Rather, the Medical Assessor found that the pre-existing condition or conditions had made Ms Donald vulnerable to the onset of further psychological conditions.
The Panel is satisfied that, in this regard, error has been established and the Panel is required to review the whole of the evidence to assess the extent of impairment arising from the subject injury in accordance with the 1998 Act and the Guidelines.
No submissions have been addressed to the overall level of impairment assessed by the Medical Assessor at 15% WPI. That assessment was appropriately made in accordance with the Guidelines on the basis of the PIRS Assessment and appears to be soundly based in accordance with the evidence. Accordingly, the Panel accepts that Ms Donald suffers an overall level of 15% WPI.
No submissions have been addressed by the parties as to the finding of the Medical Assessor that no adjustment should be made in respect of the effects of treatment, although both independent medical experts added 1% WPI in this regard. The Panel accepts that
the Medical Assessor was correct to make no adjustment for the effects of treatment. Paragraph 1.32 of the Guidelines requires that treatment should result in “apparent substantial or total elimination of the claimant’s permanent impairment” before an allowance is made. The Panel is satisfied on the evidence that there has been no “apparent substantial or total elimination” of Ms Donald’s impairment as result of treatment and accordingly no adjustment is required pursuant to paragraph 1.32.For the reasons noted above, the Panel is satisfied that, at the time Ms Donald’s mental state began to be impacted by the adverse events in the workplace, she was suffering from a pre-existing condition which, as noted by Ms Donald’s independent medical expert, Dr Takyar, can be categorised as a Major Depressive Disorder. That condition is shown by the notes of the general practice to have been of long-standing, going back some 10 years.
Although largely in remission the Panel is satisfied that the pre-existing condition would have contributed to the overall degree of impairment experienced by Ms Donald as a result of
the subject injury. The Panel is satisfied that it is difficult to apply the provisions of paragraph 11.10 of the Guidelines as there is conflict between the evidence of Ms Donald who, fairly naturally, has a positive view of her level of functioning prior to her employment with the respondent and the evidence of the general practitioners’ records, Dr Takyar and Dr Anand. The two independent medical experts who examined Ms Donald identified a pre-existing major depressive disorder. Dr Anand made a deduction in respect of that condition.The Panel, accepting that there was a pre-existing condition of the nature of major depressive disorder at the time when Ms Donald began to be impacted by adverse events in the workplace, is satisfied that the pre-existing major depressive disorder would have contributed to the assessed level of impairment as result of the subject injury.
The extent of the contribution was relatively minor and, although it is difficult to assess the extent of that contribution, the Panel is satisfied that a deduction of one tenth is not at odds with the evidence. A deduction of 1.5% WPI is appropriate.
The Panel has accordingly come to the same conclusion as the Medical Assessor, but for other reasons. However, the Panel is obliged to conduct its assessment in accordance with the Guidelines.
Paragraph1.26 of the Guidelines provides that “the usual mathematical convention is followed when the rounding occurs – values less than 0.5 rounded down to the nearest whole number and values of 0.5 and above rounded up to the next whole number.” The Medical Assessor, in assessing 13% WPI after deducting one tenth from an assessment of 15% WPI appears to have rounded up the proportion to be deducted, raising 1.5% WPI to 2% WPI.
The Panel is satisfied that it is the level of impairment assessed as due to the injury after deduction that attracts the rounding and that the appropriate assessment is 15% WPI reduced pursuant to section 323 by one tenth to 13.5% WPI and then rounded up to 14% in accordance with paragraph 1.26 of the Guidelines. The Panel has reasoned that the deduction is not an “impairment value” but simply a proportionate reduction in the overall level of impairment assessed upon examination.
The conclusion is that Ms Donald is assessed at suffering 15% WPI as a result of psychiatric injury with a deduction of one tenth pursuant to section 323 to give a measure of impairment resulting from the subject injury of 13.5%. That assessment is rounded up to 14% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 June 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr John Baker and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological/psychiatric disorder | 29/07/2019 | Chapter 11 | Chapters 1 and 2 | 15% | 1/10 | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
Mr William Dalley
Member
Dr Douglas Anderson
Medical Assessor
Professor Nick Glozier
Medical Assessor
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