Dugdale v Presbyterian Aged Care
[2021] NSWPICMP 118
•8 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dugdale v Presbyterian Aged Care [2021] NSWPICMP 118 |
| APPELLANT: | Lawrence John Dugdale |
| RESPONDENT: | Presbyterian Aged Care |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Douglas Andrews Dr Patrick Morris |
| DATE OF DECISION: | 8 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker suffering primary psychological injury appealed against the classification of the Medical Assessor (MA) in the PIRS categories of concentration, persistence and pace and employability on the basis the appellant was wrongly placed into those classes; Panel considered the evidence including history recorded by the MA and concluded that it was open to the MA to make the assessment he did in those classes; appellant submitted that the MA made a demonstrable error in making a substantial deduction for a pre-existing condition without establishing a proper and objective basis for concluding that one quarter of the current degree of WPI was due to the appellant’s pre-existing condition and the evidence demonstrated that the appellant did not have any pre-injury deficit in five of the six PIRS categories, and only a marginal increase in the category of social and recreational activities; Cole v Wenaline and Ballas v Department of Education (State of New South Wales) considered; the Panel agreed that the MA did not calculate the pre-existing impairment using the same method for calculating current impairment level and did not comply with the provisions of Paragraph 11.10 of the Guidelines that required the percentage impairment for the pre-existing impairment to be calculated using the aggregate score and median class score using the conversion table in Chapter 11; Panel considered that there is no residual power or discretion in Part 11.10 of the Guidelines to make a deduction of more than 1/10th of the assessed WPI if the assessor cannot make an assessment of the percentage of pre-existing impairment as set out in paragraph 11.10 and the only method that can be used to make a deduction of more than 1/10th of the assessed WPI is for the assessor to calculate pre-existing impairment in the PIRS categories and then calculate the impairment using the aggregate score and median class score; Panel considered that if this method is not used the only deduction that can be made for pre-existing impairment is 1/10th of the assessed WPI; Held- Panel concluded that the MA, in making a deduction of more than 1/10th of the assessed WPI for pre-existing impairment as set out in paragraph 11.10, made the assessment on the basis of incorrect criteria and this was a demonstrable error; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 April 2021 Lawrence John Dugdale (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Professor Nicholas Glozier, Medical Assessor (the MA) and issued on 22 March 2021.
The respondent to the appeal is the Presbyterian Aged Care (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds 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 s 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 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant developed a primary psychological injury in the course of his employment as a care service employee as a result of the nature and conditions of employment including bullying, harassment, isolation, intimidation, threat of loss of employment and systemic procedural failures.
The matter was referred to the MA, Professor Glozier, on 3 February 2021 for assessment of whole person impairment (WPI) of the appellant’s psychological disorder attributable to the injury deemed to have occurred on 5 December 2018.
The MA examined the appellant on 10 March 2021 and assessed 17% WPI in respect of the psychological disorder. The MA made a deduction of one-quarter or 25% for a pre-existing condition under s 323 of the 1998 Act. Therefore, the total WPI was assessed as 13% WPI as a result of the injury deemed to have occurred on 5 December 2018.
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.
The appellant requested that he be re-examined by a MA who is a member of the Appeal Panel.
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 there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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 MA that are relevant to the appeal are set out 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.
The appellant’s submissions include the following:
· The MA erred in his assessments under the following categories of the Psychiatric Impairment Rating Scale (PIRS) (a) Concentration, Persistence and Pace, and (b) Employability.
· The deduction of one-quarter made by the MA pursuant to s 323 is excessive, contrary to the evidence and based upon an erroneous understanding of the operation of that section.
· In relation to the PIRS scale for concentration, persistence and pace, the MA assessed the appellant as falling within class 2 (i.e. mild impairment) in this category, whereas the circumstances of the appellant indicate that he falls within class 3 (i.e. moderate impairment).
· The MA’s assessment involved a demonstrable error, and was made on the basis of incorrect criteria.
· It was erroneous for the MA to treat the appellant’s provision of his medical history in the setting of the medical assessment as evidence of his daily functioning at home. The fact that the appellant had an interest in personality disorders and spent time each day listening to lectures did not establish that he fell within class 2 as opposed to class 3. Listening to lectures is a passive exercise, and there was no detail of the duration of component periods, in the course of the day, actually spent watching respective lectures. As for the “research” referred to by the MA, no detail was recorded by the MA as to what he understood by “research”, and the periods spent reading.
· In relation to the PIRS scale for employability, the MA erred in treating the appellant’s particular interest in personality disorders, which was a self-regulated and voluntary pursuit, with employability. The latter involved submission to the authority of an employer, the need to follow and comply with instructions, the performance of tasks dictated by the employer, at a pace dictated by the employer, and subjection of the worker to discipline and performance appraisal (which are demanding and stressful), not casual and voluntary surfing of the internet in stress free circumstances in which the appellant was free to change the subject, or stop, pour a drink, or go to sleep, without any restriction, and without having any responsibility to produce an outcome.
· The appellant has significant psychological deficits and cannot reasonably be considered to have any capacity to work. Dr Hong and Dr Lutchman, the treating psychologist, were of the view that the appellant was unfit for employment. The MA failed to have regard to Dr Lutchman’s report.
· The appropriate class under this category is 5 – cannot work at all.
· In relation to the s 323 deduction, the MA made a substantial deduction without establishing a proper and objective basis for concluding that one-quarter of the current degree of WPI was due to the appellant’s pre-existing condition.
· There was evidence that the appellant had mental health issues prior to securing employment with the respondent. That pre-existing condition cannot, however, be automatically assumed to contribute to the appellant’s current degree of impairment. The extent to which that pre-existing condition was actually contributing to the appellant’s current condition required careful and objective assessment.
· The MA, when explaining the s 323 deduction noted that the appellant “has had lifelong difficulties in social situations and with focus, concentration and panics”. He stated that the appellant “was impaired in some aspects of social functioning” prior to his current difficulties with avoidance. That raises a question of the extent of any prior impairment, as compared with the extent of current impairment in respect of social functioning. The MA offered no more than the vague assertion of “some aspects” when referring to prior issues of social functioning.
· Another question concerned whether impairment that had previously resulted from a pre-existing condition was a component of post injury impairment. The effects of injury may result in a particular degree of impairment regardless of any prior condition.
· The MA stated that it was likely that the appellant’s “pre-existing impairment actually contributed in part to his injury itself, as people with such anxiety disorders have well-known attentional bias and interpretations”. That formulation explained the misdirection which proceeded to affect the outcome, with a conflation by the MA of the separate questions of “injury” and “impairment”.
· A susceptibility to injury by reason of a pre-existing condition does not automatically mean that impairment resulting from such injury has resulted to an extent from that pre-existing condition. An assessor needs to explain how the pre-existing condition was actually contributing to the degree of post injury impairment.
· The appellant was diagnosed in 2006 by Dr Friend as having a social anxiety disorder. This was prior to the appellant commencing employment with the respondent in 2009. This diagnosis would be relevant solely to matters contemplated by the PIRS scale of social and recreational activities.
· Both the MA and Dr Hong assessed the appellant as meeting the criteria of class 3 in the social and recreational activities scale, after his work-related injury, at which stage he had been diagnosed with a depressive disorder.
· The assessment in the social and recreational activities scale by both the MA and Dr Hong confirmed a decline in the appellant’s social functioning. The MA noted that the appellant “has become reclusive over the past two years”.
· The MA recorded the following:
“He listens to music and watches YouTube but does these on his own, no longer goes to the gym or bands due to his motivational difficulties. Even his very limited social life has been reduced, although in part because his two close friends now no longer live near him.”
Dr Hong recorded the following: “Mr Dugdale does not socialise anymore. All usual hobbies have ceased.”
· These particulars, as the basis for an assessment of class 3 3, indicated that there has been a decline in the appellant’s social functioning. If there was a degree of social impairment prior to the appellant’s period of employment with the respondent, the relevant pre-injury class would have been less, i.e. class 2. That confirmed that in the only relevant category of pre-existing impairment, the assessable degree of impairment was, as recorded in Table 11.2 of the Guidelines, “mild” (the descriptor for class 2).
· In relation to the other categories: (a) there was no evidence of a pre-injury deficit pertaining to self-care and personal hygiene; (b) there was no evidence of any pre-injury deficit in relation to travel (the MA noted that “He could travel as and where he needed to and described little anxiety using public transport”); (c) there was no evidence of any pre-injury deficit in relation to social functioning (there was evidence of friendships with Luke and Linda, of long-standing relationships with residents at work, and of his marriage – and no evidence of strain (relevant to classes 2, 3 and 4) affecting any of those relationships prior to his injury; (d) in the category of concentration, persistence and pace, there was evidence of the appellant completing a Certificate IV in Sound Engineering and a Certificate III in Aged Care nursing prior to employment with the respondent, and a Certificate IV in Aged Care during the course of his employment with the respondent; the appellant was also able to download files from computers at work prior to his injury, thus confirming a capacity to concentrate and to gain IT knowledge, and (e) in the category of employability the appellant obviously had no deficit as he worked from 2002/2003 at Elizabeth Lodge for between six and seven years, and then for the respondent from 1 July 2009 until the deemed date of injury (a further period in excess of nine years).
· It follows that as the appellant did not have any pre-injury deficit in five of the six PIRS scales, and a marginal increase in the category of social and recreational, the MA’s assessment that one-quarter of the appellant’s current impairment was due to the appellant’s pre-existing condition was misconceived and incompatible with the evidence.
· Given the miniscule degree of pre-injury impairment (confined to a single PIRS category), it was incumbent on the MA to provide thorough and convincing reasons for attributing a quarter of the appellant’s post-injury impairment to his pre-injury condition.
· The MA acknowledged that “the majority of his current impairment, and certainly as rated, would be attributable to the workplace injury”, and that the appellant’s pre-existing condition “contributes a minority of his current whole person impairment”. The MA then proceeded in the balance of that sentence to offer the following limited explanation for his conclusion: “…I would estimate one-quarter, or 25%, but certainly more than the standard 1/10th definition, which is to be made when there is not enough evidence to make a greater or lesser attribution of current WPI to pre-existing conditions.”
· It was not clear why the MA came up with 25%, as opposed to 15%, or 20% or 30%. The impression was of a guess, not the reasoned evidence-based conclusion of an expert.
· The evidence to which the MA referred in the first sentence of Part 11 of the MAC was limited to “lifelong difficulties in social situations and with focus, concentration and panics”. The actual evidence of pre-injury functioning showed that the appellant was able to secure and retain employment with the respondent and a prior employer in a demanding and stressful work setting over a period of 15 years. He was able to study and pass tertiary courses, to travel independently, to observe normal standards of hygiene, to marry and otherwise maintain relationships, and to enjoy a limited social life. That was not the track record of a person with a significant pre-injury degree of psychiatric impairment.
· Given the absence of any significant pre-injury impairment, the assumption by the MA that 25% of the appellant’s post-injury impairment was attributable to his prior condition was demonstrably erroneous.
· The decision of Schmidt J in Cole v Wenaline [2010] NSWSC 78 (Cole) addressed errors of the kind made in the current case. The appellant referred to [30]-[38]in Cole and made submissions in respect of the various paragraphs.
· In respect of [30] of Cole, the MA proceeded on the basis of an assumption that the appellant’s pre-injury condition had contributed to his post- injury impairment. The MA was required to specifically consider “the actual consequences” of the appellant’s pre-injury condition and to explain the respects in which those consequences were actually contributing to his current impairment.
· In respect of [31] of Cole, the MA has not considered whether the injury suffered by the appellant would have resulted in a degree of impairment regardless of the appellant’s pre-injury condition. The evidence did not establish that any proportion of the appellant’s post-injury impairment was due to his pre-injury condition.
· In respect of [32] of Cole, the evidence did not establish that any prior factor caused or contributed to the appellant’s post-injury impairment. The MA failed to engage in an analysis of the appellant’s pre-injury condition, and the respects in which that condition affected the appellant’s functioning in the various PIRS categories. The first sentence of Part 11 records in a few factors, without addressing their pre-injury effect, and why they have contributed to post-injury impairment. The MA does not provide an explanation of the medical basis for coming up with an “estimate of 25%” – an outcome which would require reasoned explanation with reference to his medical expertise.
· In respect of [33] of Cole, the MA did not explained how the appellant’s pre-existing condition in fact contributed to the permanent impairment identified after the later injury.
· In respect of [36] of Cole in the absence of any explanation by the MA as to how the appellant’s pre-injury condition actually contributed to his post injury impairment, it can be inferred that the MA simply proceeded on the basis of an assumption.
· In respect of [37] of Cole, in the current case, the appellant had remained employed for over 15 years, and his functioning showed no deficit in five of the six PIRS categories. The MA was required to address this evidence and explain why the post-injury impairment should be considered to include a significant contribution from prior factors.
· In [38] of Cole, Schmidt J said: “What s 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. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section”. The MA failed to meet the forgoing standard set by her Honour.
· If any deduction pursuant to s 323 is to be made in this case, it should be limited to one-tenth, in keeping with that section.
· The MA’s assessments under the scales of concentration, persistence and pace and employability, and the deduction made pursuant to s 323 were made on the basis of incorrect criteria (s 327(3)(c)) and involved a demonstrable error (s 327(3)(d)).
· The MAC should be revoked.
The respondent’s submissions include the following:
· Ground 1 - the MA made a demonstrable error in placing the appellant in class 2 for the PIRS scale of concentration, persistence and pace.
· It was open to the MA to treat the appellant’s provision of his history as evidence of his level of functioning when assessing his impairment for concentration, persistence and pace. The Guidelines are not prescriptive in terms of information which can be used to assess a claimant’s level of functioning. Rather, the Guidelines state:
“Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment”.
· It was open for the MA to have regard to a range of sources of information in forming his view as to the appellant’s level of functioning. He was not restricted to or bound by the other medical opinions which may be set out in the medical evidence.
· It can be inferred from the statement made by the MA (at page 9) “Mr Dugdale showed no difficulties with the assessment today, providing a complex detailed history” that the appellant was able to cope more easily with the assessment than often encountered, had an unexpected recollection of the history, and a more detailed and complex understanding of the relevant medical history, beyond that which might be expected of a layman with no medical or psychiatric training.
· This evidence goes to the appellant’s high levels of concentration, persistence and pace, demonstrating a class 2 impairment rather than a class 3.
· The MA explained what he referred to as ‘research’ and also confirmed that these activities were not passive.
· The MA provided sufficient evidence and justification that the appellant would be capable to undertake a basic retraining course, or standard course at a slower pace, and that the appellant can focus on intellectually demanding tasks for periods of up to 30 minutes, which would be required to have such a detailed understanding of such complex topics.
· The appellant’s activities and level of functioning as recorded in the MAC clearly corresponded to class 2 for concentration, persistence and pace.
· Ground 2 - the MA made a demonstrable error in in placing the appellant in class 4 for the PIRS scale of employability.
· The MA appropriately considered the distinguishing features between the research undertaken by the appellant and the requirements of employment.
· Class 4 for employability denotes a severe impairment, characterised by being unable to work more than one to two days at a time, less than 20 hours per week, with reduced pace, and erratic attendance. There was no dispute that the appellant’s activity level and interests were not comparable with full time employment and the obligations that are placed upon an employee, by an employer. However, the appellant’s level of functioning and his limitations were commensurate with class 4 for employability and the MA adequately explained why he assessed class 4 for employability.
· The appellant submitted that Dr Hong and Dr Lutchman opined that the appellant was unfit for employment, and the MA failed to consider Dr Lutchman’s report. However, Dr Lutchman’s opinion on capacity for work is not the same as an opinion as to the appropriate PIRS class for employability. Further, the MA may consider Dr Lutchman’s report, and yet make a different finding. In any event, Dr Lutchman’s report was dated 8 May 2020 and the MA examined the appellant on 10 March 2021, some 10 months later. It is likely that there has been some improvement in the appellant’s condition in the period between reports being issued.
· Clause 11.6 of the Guidelines states:
“It is expected that the Psychiatrist will provide rationale on the injured workers psychiatric symptoms…Clinical assessment of the person may include information from the injured worker’s own description of his functioning and limitations…Medical reports, feedback from treating professionals…may provide useful information to assist with the assessment.”
· Clause 11.6 confirms that the MA is to use his or her own clinical assessment of the person and may include information from the person’s own description of their functioning, which the MA has done in utilising the appellant’s own description of his functioning, to form an opinion on employability. Additionally, this clause also confirms that whilst treating medical reports may be useful, the MA is not bound by any of these opinions.
· The MA correctly placed the appellant in class 4 for employability.
· Ground 3 - the MA made a substantial deduction pursuant to s 323 of the 1998 Act, without establishing a proper objective basis for concluding that one-quarter of the current degree of WPI was due to a pre-existing condition.
· The appellant noted that he was diagnosed with social phobia or social anxiety disorder in 2006 by Dr Friend and contended that the only PIRS category that this condition would be relevant to was “social and recreational activities”. However, in the absence of any authority or evidence to support the assertion the respondent disputes this and submits that the submission cannot be upheld.
· The evidence suggested that in addition to being diagnosed with social phobia or social anxiety, the appellant had also suffered from; Attention deficit hyperactivity Disorder (ADHD) (at pages 4, 5 and 7), substance abuse disorder, social anxiety disorder, generalised anxiety disorder and panic disorder (at pages 5 and 7).
· The MA provided a detailed rationale for his opinion and findings.
· The appellant relied upon the completion of studying and the ability to maintain a social life, as evidence of limited pre-injury impairment. However, as noted at page 5: “He described taking the Certificate IV in Sound Engineering three times because although he says he passed it, he was unable to retain and understand the information”. Therefore, although the appellant was able to complete studies, as evidenced by his own words, he had great difficulty in doing so due to his pre-existing impairment.
· Section 323(1) of the 1998 Act specifies that there is to be a deduction for any proportion of the impairment due to any previous injury. The submissions of the appellant were at odds with the evidence available to the MA , and the reasons provided by the MA in the MAC.
· There was substantial medical evidence available with respect to pre-existing injuries and functioning, as well as factual evidence in the form of the appellant’s own history provided to the MA. Accordingly, as there was evidence available, that the one-tenth assumption was not appropriate in these circumstances, and the MA was responsible to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury, as required by clause 1.27 of the Guidelines.
· The appellant submitted that the 25% deduction was not a reasoned evidence-based conclusion. However, in addition to the available evidence and any history provided by the appellant, the MA is to use their clinical expertise to make an assessment of the contribution to impairment due to pre-exiting injuries. As such, it is submitted that the MA, in this instance, used his clinical expertise to assess the appellant’s pre-injury psychological functioning, and made a determination based on his skill and experience in the field of psychiatry, to make a determination of the proportion of impairment that was as a result of the pre-existing condition.
· The reasons provided by the MA for the one-quarter deduction were adequate given the facts of the pre-existing conditions, insofar as the availability of documented evidence of multiple pre-existing psychiatric conditions, including; social anxiety disorder, generalised anxiety disorder, panic disorder, ADHD, substance abuse disorder and alcohol abuse disorder.
· The MA has appropriately applied a deduction due to pre-existing psychiatric impairment, as per s 323 of the 1998 Act and the three step test prescribed by Cole.
· The MA determined the impairment due to psychiatric injury was 17%, he then determined that a proportion of impairment was due to significant psychiatric conditions which pre-dated the workplace injury, and assessed the proportion of WPI attributable to those pre-existing conditions to be 25%.
· The MA applied his clinical judgement having regard to the history and medical evidence before him, and the results of his own clinical examination to make what he had determined were the appropriate deductions for pre-existing injuries, the approach confirmed in Prakash v Novartis Australia [2019] NSWWCCMA 69.
· The MA’s approach does not contain a demonstrable error or application of incorrect criteria.
· A re-examination of the appellant is not necessary.
· The Appeal should be dismissed, and the MAC should be confirmed.
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. 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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
Under “History relating to the injury”, the MA wrote:
“We used Mr Dugdale’s statement inform (sic) this history above and herein, although it does not flow quite as logically as most do in WCC proceedings, with some elements missing. However he was able to provide a very detailed oral history”.
Under “Present symptoms”, the MA wrote:
“Mr Dugdale reports a primary difficulty with motivation and energy as well as a low mood. He says that some of previous anxieties are not as prevalent now. Possibly as he is so housebound. His thoughts are very focused on the Royal Commission, its sequelae and appears to meet the characteristics of what many have described in ‘whistle-blowers.’ However he says he refuses to let himself get angry about what has happened, although notes he can be irritable and tense with his wife. His wife has moved away to take up a new job over the past week, not related to his behaviour. His sleep has been irregular in pattern for a long time. It was difficult to define any particular routine to when he gets to sleep and he can spend much of his day lying on the couch watching YouTube, despite aiming to go to bed around 11pm or midnight. At times he gets motivated and energetic which he attributes to his ADHD medication and will then try and do as much as possible which may involve staying up quite late, again interfering with his circadian rhythms. As a result his medication use and compliance is quite chaotic and at times may even stay up overnight once or twice a week. He does not appear to be anhedonic and described a number of activities that he enjoys although says that some of these can ‘hype me up.’ Although he reports that he can find some focusing difficult, he also spends many hours researching Cluster B personalities, particularly narcissism, NPD, listening to lectures by Jordan Peterson and looking at other related activities, literature and information on YouTube and the internet, as well as aspects of the Royal Commission and its sequelae. He continues to be quite avoidant of many places, although says that this is less due to anxiety now, rather than a low mood. I could not identify any specific intrusive re-experiencing phenomena, although he obviously will ruminate about the events he has seen at work”.
Under “Details of any previous or subsequent accidents, injuries or conditions’” the MA wrote:
“Mr Dugdale noted a lifelong difficulty with concentration and focus. This became apparent in his teenage years when having achieved entry into a selective private school in Britain, he then went downhill, completing only two GCSEs, effectively leaving in the UK equivalent of year 10, a dramatic decline from his entry. He has noted its impacts over times of his life, even up to finishing at Presbyterian Aged Care when he noted that his ADHD apparently affected his ability to do the medication round.
His substance use began around the time of taking his school exams, primarily with cannabis. He then moved into the use of stimulants in the early 90s in his late teens whilst clubbing. It appeared that this stimulant use enabled him to manage some of his anxiety and attentional difficulties. Even so, on coming to Australia he described taking the Certificate IV Diploma in Sound Engineering three times because although he says he passed it, he was unable to retain and understand the information. He stated that he had been anxious and at times depressed for most of his adolescent and much of his adult life with high levels of social anxiety which affected his ability to interact with people, form social relationships and be with groups of more than two people. This was not just focused around the common fear of public speaking but in a number of other social situations such that he described symptoms that met the criteria for a Social Anxiety Disorder.In 2005 he first consulted Dr Friend who identified social anxiety disorder generalised anxiety disorder and panics, which were treated with SSRI medication and intermittent benzodiazepines. He re-consulted Dr Friend in February 2010 with continuing symptoms of social anxiety which was causing problems at work and in social situations. He continued to use the SSRI antidepressant, intermittent benzodiazepines and also attended a psychologist five times. Dr Friend’s very detailed reported identifies the further consultation with ‘similar anxiety symptoms’ in June 2012 which he states may have been contributed to by the events at work, noting that ‘he remained anxious in social situations. At that stage he made a diagnosis of Attention Deficit Disorder and many of his concentration and attention difficulties responded to treatment with amphetamines. Dr Friend noted ongoing use of amphetamines and other substances in 2012 and 2013. Dr Friend outlines the subsequent treatment including the introduction of more extensive anti-anxiety medications, short-acting benzodiazepines, the antidepressant Mirtazapine and later focusing on treating what was apparently a Substance Abuse Disorder, with the combination of ReVia and Campral in December 2014. He notes that the opiate medication for Mr Dugdale’s chronic back pain in 2016 did not have any significant effect on anxiety. Dr Friend notes a longstanding depression identified as chronic even in 2014, and again noted in 2016. Dr Friend notes that Mr Dugdale had become abstinent from the substance use although continued to use alcohol, at times harmfully, from 2014. He outlines ongoing treatment with different combinations of antidepressants, hypnotics and benzodiazepines since that time and confirms the recent treatment since leaving work in late 2018”.
Under “Work history including previous work history if relevant” the MA noted: “In his adult life, prior to working for Presbyterian Aged Care, Mr Dugdale had undertaken some diplomas and a certificate 3-4 in aged care nursing. He spent a few years working part-time for two different organisations”.
On page 4 of the MAC under “social activities/ADL”, the MA wrote:
“He has had life long social problems and really describes only two friends. One of these Luke, he met working in a bottle shop and they would occasionally go to bands and music venues which he enjoyed, whilst the other one, Linda, he met through work. He said he would go around to her house with half a bottle of scotch sometimes at night and drink though his issues. He says his ‘friends’ were the residents at work and describes significant emotional connection with them over the years. He also met his wife at work. They were flatmates but eventually became partners. He described sharing all household duties, and that they would shop together. She had her own social circle with Thai friends which he felt excluded from and his social life was very limited. However he enjoyed listening to music and this had always been a strong interest and occasionally went to bands but only with Luke. He would go to the gym at times, but described no other specific hobbies or interests. He could travel as and where he needed to and described little anxiety using public transport. He could obviously use the IT systems at work and was skilled enough that at one stage he was accused of downloading files at work, indicating a reasonable level of IT skills. He also had skills to enable him to complete the diploma in sound engineering.
He says he has become reclusive over the past two years. His wife has apparently taken over many of the day-to-day activities as well as her fulltime shift work. She has been offered a manager position near Tweed Heads and moved up there a few days previously. He has been left to ‘declutter’, pack up the house and apparently organised its sale. She is not due to come back until Easter when she will return for five days. As a result he is now living on his own. He says that she has stocked up the freezer and as he ‘only eats to survive,’ he says he will be able to get to the local shopping centre to pick up any further essentials he needs. His friend Linda is coming around to help him declutter. He described difficulties with managing his medication over the past few weeks that has contributed to his circadian rhythm disturbances and says that he has run out of one of his medications over the past few days due to not paying adequate attention to this and needs to go to the local pharmacy. He has no care and has to travel on his own which can at times be anxiety provoking but appears to be limited more by lack of motivation unless it is to do with his disenchantment (probably too weak a word for the emotions he feels) over the aged care system. For instance he describes travelling by train up to Newcastle to meet lawyers and then last year before the COVID lockdown, flying down to events for the Royal Commission, e.g. attending a Community Forum and attending Commission Fora in Sydney last year. He said he would also travel to do such things now, e.g. if he was able to meet Mike Baird to better enhance treatment in the aged care system. He now spends much of the day watching YouTube, reading, and watching Jordan Peterson lectures, particularly investigating aspects of Cluster B personality. He described quite an extensive knowledge of this which he was able to recall and synthesise with little difficulty. He reports he has some problems focusing for periods of time and concentration difficulties, particularly if he is less compliant with his medication. He has little contact with people as before, although his friend Linda will still see him, although she has moved away. He has some phone contact with Luke but otherwise little social interaction. He noted the tension in his relationship with his wife although her ongoing support, and that he is fully intending on moving up to Tweed Heads to be with her when they have sold the house. He describes no change in his weight which has been stable over the years, although he no longer goes to the gym. He says he still enjoys music and is also enjoying his research. He is fully aware of what may be conformational biases and other aspects of this and displayed quite a sophisticated knowledge of psychiatric and psychological concepts. He speaks with his mother once a week and Luke every couple of weeks”.
Under “Findings on Mental State examination” on pages 6-7 of the MAC, the MA wrote:
“Mr Dugdale was casually-dressed, lightly-bearded with long hair and his house had minimal clutter. He was quite a discursive speaker and we had some administrative difficulties for which I apologised, particularly noting that it might have exacerbated his anxiety, that he thanked me for. There were no speech abnormalities and he was a detailed historian although at times had to be brought to bear on the topic. As above, he showed a sophisticated understanding of many psychiatric concepts. He was very focused on both the events at work and in particular the broader implications for abuse in the aged care industry. He showed no difficulty recalling any of the aspects of his case and also noted documentation that I should either have received or that I may not have fully acknowledged in the readings. He describes his mood as ‘deeply sad, lonely, pessimistic’ but he ‘refuses to be angry’. He is not anhedonic and describes activities he enjoys. He has disrupted circadian rhythm in part related to his somewhat-chaotic medication use and difficult to identify any actual insomnia or sleep duration today. He generally describes a low motivation and anergia but at times with much higher levels, possibly again related to his medication. There have been no recent self-harm phenomena. He says his anxiety has reduced somewhat and described few recent panics (although is outside infrequently). He continues to avoid some areas. He is very strongly focused on the aged care industry and also the behaviour of many people which he attributes in part to their personality and possibly personality disorders, although as above, he is quite introspective and thoughtful about this. We did not undertake any formal cognitive testing and although there is some mild paranoid ideation resulting from his perceived treatment and the behaviours in the system, there is no psychotic phenomena”.
On page 4 of the MAC, under “summary of injuries and diagnoses” the MA wrote:
“As identified by everybody, and acknowledged by Mr Dugdale, he had a lifelong history of chronic anxiety problems and attentional problems, with diagnoses of Social Anxiety Disorder, Generalised Anxiety Disorder, Panic Disorder and Attention Deficit Hyperactivity Disorder. With treatment, many of the symptoms of these became less severe although he obviously continued to have a limited social life related to his anxiety. There have also been periods of illicit substance use and, probably for a small period of time at least, Alcohol Abuse Disorder, as evidenced by some of the sequelae and loss of control although I could not identify any actual dependence today. His psychiatrist has identified ongoing anxiety symptoms, in part related to his experiences at work over the past decade. I note there is a deemed date of injury of 2018 and I have to assume that I am to include all of the episodes of untoward interactions at work including the accusations in 2014 and his complaints in 2011 as part of this deemed date of injury, given that there is no information to the contrary. His psychiatrist also notes the chronic low level depression but that this has become much more severe over the past two to two and a half years since the significant events of late 2019. He continues to have an ongoing low mood, loneliness but not anhedonia, and I am not convinced he meets the criteria for Major Depressive Disorder currently as I am not certain I could identify either cardinal symptom. As such he would meet the criteria for a Persistent Depressive Disorder which appears to be the primary disorder relating to his workplace injury, although with aggravations of pre-existing anxiety disorders.
As with many whistle-blowers, his ‘symptoms’ do not quite fit the diagnostic categories that we have and there is no consistent view on whether the ‘symptoms’ actually constitute a psychiatric disorder.”
Under “Evaluation of permanent impairment” the MA wrote:
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Yes. There has been an obvious aggravation of lifelong pre-existing anxiety and attention/impulsivity disorders from the events at work although the dominant pattern now is one of a more depressive and retributional focus which appears to be a new disorder arising as a result of the workplace injury.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Social Anxiety Disorder, generalised anxiety, Panic Disorder, Attention Deficit Hyperactivity Disorder.On page 10 of the MAC under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, the MA wrote: “Mr Dugdale has had lifelong difficulties in social situations and with focus, concentration and panics. He continues to be quite avoidant of many situations, which he states is more to do with his motivation and depression now and was impaired in some aspects of social functioning even prior to this. It is also likely that his pre-existing impairment actually contributed in part to his injury itself, as people with such anxiety disorders have well-known attentional bias and interpretations. However, his predominant feature now is one more of a depressive pattern and these features, together with his focus on the events at work relating to elder abuse and the aged care system, indicating that the majority of his current whole person impairment, and certainly as rated, would be attributable to the workplace injury. As such, the evidence is that his pre-existing conditions, although extensive, contributes a minority of his current whole person impairment; I would estimate one-quarter, or 25%, but certainly more than the standard 1/10th definition, which is to be made when there is not enough evidence to make a greater or lesser attribution of current WPI to pre-existing conditions”.
In commenting on other medical opinion, the MA wrote:
“Dr Suman provided a supplementary report based upon a documentation review in October 2020 where he states that Mr Dugdale’s pre-existing injury would be more than 10% of the current whole person impairment. I agree this is in accord with the evidence we have, which is at odds with merely making a Section 323 1/10th deduction. He refused to make a whole person impairment assessment because he had not actually assessed him.
Report by Dr Hong, consultant psychiatrist, for the applicant’s lawyers dated 10 January 2020. Dr Hong elicited a similar history although, contrary to Mr Dugdale’s history and Dr Friend’s report, states that ‘there was no major impairment in terms of interpersonal functioning despite the very limited social life and ongoing effect of anxiety.’ He too noted the development of a more depressive pattern since the workplace injury and believed Mr Dugdale had an Alcohol Use Disorder. He states that there was no ‘substantial impairment prior to the injury’ which is the wrong test under the guidelines which is the contribution of the previous disorder to the current whole person impairment. As such deducting only 1/10th is at odds with the evidence. He also provides a 1% effect for treatment which, given he rates a 22% whole person impairment, is again not compatible with the Guidelines for the assessment of Whole Person Impairment which requires a substantial or complete elimination. I disagree with two of his classes. In terms of Concentration, Persistence and Pace, Mr Dugdale showed no difficulties within the assessment today, providing a complex detailed history and also spends many hours each day watching lectures and researching salient topics and aspects of personality disorders, narcissism, Jordan Peterson’s lectures and the Aged Care Commission’s reports which he could synthesise and present back to me in a detailed way. As such, although he may have difficulties with some aspects of persistence, in relevant salient areas he is unimpaired, which in toto is a mild impairment. Additionally, in terms of Employment/Adaptation, during COVID we have seen that people are successfully able to function vocationally at home. With his interacting digitally with the degree of research and focus that he has, he could be employable, at least for a few hours a week and is not totally impaired. I agree that even though he is currently living on his own with the chaotic medication use and requirement for his wife to fill the freezer, he really is probably unable to live well and has a moderate impairment with a lack of self-care and focus on food and hygiene. I concur with Dr Hong's ratings of Social and Recreational Activities, Travel and Social Functioning”.
At Part 11 of the MAC under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” the MA wrote:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
Mr Dugdale has had lifelong difficulties in social situations and with focus, concentration and panics. He continues to be quite avoidant of many situations, which he states is more to do with his motivation and depression now and was impaired in some aspects of social functioning even prior to this. It is also likely that his pre-existing impairment actually contributed in part to his injury itself, as people with such anxiety disorders have well-known attentional bias and interpretations. However, his predominant feature now is one more of a depressive pattern and these features, together with his focus on the events at work relating to elder abuse and the aged care system, indicating that the majority of his current whole person impairment, and certainly as rated, would be attributable to the workplace injury. As such, the evidence is that his pre-existing conditions, although extensive, contributes a minority of his current whole person impairment; I would estimate one-quarter, or 25%, but certainly more than the standard 1/10th definition, which is to be made when there is not enough evidence to make a greater or lesser attribution of current WPI to pre-existing conditions”.
Discussion
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – PIRS concentration, persistence and pace
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
The appellant submitted that the MA has made a demonstrable error by wrongly placing the appellant in class 2 for concentration, persistence and pace.
The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines are: “Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache”. The examples for class 3 are:
“Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In the PIRS Rating Form, the MA assessed the appellant as class 2 for concentration, persistence and pace, and under “Reason for decision” wrote:
“Mr Dugdale showed no difficulties within the assessment today, providing a complex detailed history and also spends many hours each day watching lectures and researching salient topics and aspects of personality disorders, narcissism, Jordan Peterson’s lectures and the Aged Care Commission’s reports which he could synthesise and present back to me in a detailed way.”
The MA noted in the MAC that the appellant provided a very detailed oral history.
Under “Present symptoms” the MA noted:
“Although he reports that he can find some focusing difficult, he also spends many hours researching Cluster B personalities, particularly narcissism, NPD, listening to lectures by Jordan Peterson and looking at other related activities, literature and information on YouTube and the internet, as well as aspects of the Royal Commission and its sequelae”.
On page 4 of the MAC, under “Social activities/ADL” the MA wrote:
“He now spends much of the day watching YouTube, reading, and watching Jordan Peterson lectures, particularly investigating aspects of Cluster B personality. He described quite an extensive knowledge of this which he was able to recall and synthesise with little difficulty. He reports he has some problems focusing for periods of time and concentration difficulties, particularly if he is less compliant with his medication”.
On pages 6-7 of the MAC, under “Findings on mental health examination” the MA wrote:
“…he was a detailed historian although at times had to be brought to bear on the topic. As above, he showed a sophisticated understanding of many psychiatric concepts. He was very focused on both the events at work and in particular the broader implications for abuse in the aged care industry. He showed no difficulty recalling any of the aspects of his case and also noted documentation that I should either have received or that I may not have fully acknowledged in the readings.”
In commenting on other medical opinion, the MA wrote:
“In terms of Concentration, Persistence and Pace, Mr Dugdale showed no difficulties within the assessment today, providing a complex detailed history and also spends many hours each day watching lectures and researching salient topics and aspects of personality disorders, narcissism, Jordan Peterson’s lectures and the Aged Care Commission’s reports which he could synthesise and present back to me in a detailed way. As such, although he may have difficulties with some aspects of persistence, in relevant salient areas he is unimpaired, which in toto is a mild impairment”.
In his report dated 10 January 2020, Dr Hong rated the appellant as class 3 for concentration, persistence and pace providing the following reasons:
“Mr Dugdale reported poor concentration and often loses things at home. He cannot read books anymore. He had difficulties reading a medical report about him, and a factual investigation report that summarized an interview with him, and although he knows these reports contained inaccuracies, he could not recall what the errors were.”
The Appeal Panel accepted the history as recorded by the MA.
The Appeal Panel considered whether the MA had erred in making a class 2 rating for concentration, persistence and pace. Dr Hong rated the appellant as class 3 for concentration, persistence and pace, but Dr Hong’s assessment was made more than a year before the assessment by the MA and it is possible that there had been some improvement in this area of functioning.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open to the MA on the evidence to make an assessment of class 2 for concentration, persistence and pace. The Appeal Panel considered that the history obtained by the MA was consistent with a class 2 rating for concentration, persistence and pace.
Ground 2 – PIRS employability
The appellant submitted that the MA made a demonstrable error in in placing the appellant in class 4 for the PIRS scale of employability.
The examples under Table 11.6 in the Guidelines for class 4 in employability are: “Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.” The examples for Class 5 are: “Totally impaired. Cannot work at all.”
In the PIRS Rating Form, the MA assessed the appellant as class 4 for employability and wrote: “He can do research and focus on some digital tasks such that he has could be [sic] employable, at least for a few hours a week.”
In commenting on the other medical opinion, the MA wrote:
“Additionally, in terms of Employment/Adaptation, during COVID we have seen that people are successfully able to function vocationally at home. With his interacting digitally with the degree of research and focus that he has, he could be employable, at least for a few hours a week and is not totally impaired.”
In his report dated 10 January 2020, Dr Hong rated the appellant as class 5 for employability providing the following reasons:
“Cannot work at all, due to his high levels of anxiety and poor emotional control, degree of impairment in social interaction and concentration.”
Dr Friend, in his report dated 30 December 2018, wrote:
“He currently feels incapable of working in any capacity and it is likely that he could not resume working in any capacity, until the workers compensation matters are resolved. It is likely that he would struggle to work in aged care in the future, even if he was employed for a different aged care organisation.
…
Mr Dugdale is not currently fit to work but may be fit to work in the future after the workers compensation matter is concluded. It is difficult to say how much he could work but I would estimate at best it would only be part-time 20 hours per week or less and probably in a role with lesser responsibility than he had prior to ceasing work on 5 December 2018.”
Dr Lutchman, treating psychologist, in her report dated 8 May 2020 expressed the view that the appellant did not have the capacity to be employed at any level within the Aged Care profession. She considered that he would experience difficulties in taking on any role within his chosen field. Dr Lutchman concluded that the appellant was currently unfit for employment.
The Appeal Panel accepted the history as recorded by the MA.
The Appeal Panel considered whether the MA had erred in making a class 4 rating for employability. Dr Hong rated the appellant as class 5 for employability but as noted above Dr Hong’s assessment was made more than a year before the assessment by the MA.
The MA considered that the appellant was employable for a least a few hours a week and could work at home. Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open to the MA on the evidence to make an assessment of class 4 for employability.
The Appeal Panel was satisfied that the MA applied the correct criteria and there was no demonstrable error in the MAC in relation to the rating in the PIRS categories of concentration, persistence and pace and employability.
Ground 3 – s 323 deduction
The appellant submitted that the MA made a demonstrable error in making a substantial deduction for a pre-existing condition without establishing a proper and objective basis for concluding that one-quarter of the current degree of WPI was due to the appellant’s pre-existing condition. The appellant argued that the evidence demonstrated that the appellant did not have any pre-injury deficit in five of the six PIRS categories, and only a marginal increase in the category of social and recreational activities.
Assessment of impairment is governed by the 1998 Act. If there is a medical dispute concerning the permanent impairment of an injured worker, there is a process pursuant to s 321A of the 1998 Act, and the Regulations made under that section, by which the worker is referred for assessment by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute.
Section 322(1) of the 1998 Act provides that:
“The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose”.
The power to issue the Guidelines is vested in the Authority and is sourced in s 376(1)(a) of the 1998 Act.
The Guidelines which were in force at the time that the MA made his assessment of the appellant were reissued on 1 March 2021 and applied to assessments of permanent impairment conducted on or after that date.
In the Introduction to the Guidelines in Chapter 1, Part 1, paragraph 1.1 provides:
“The reissued 4th edition of the NSW workers compensation guidelines for the evaluation of permanent impairment (catalogue no. WC00970) (the Guidelines) is made under s376 of the Workplace Injury Management and Workers Compensation Act 1998 (WIMWC Act) and commence on 1 March 2021 when the Personal Injury Commission is established. The Guidelines are to be used within the NSW workers compensation system to evaluate permanent impairment arising from work-related injuries and diseases.
The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) in most cases. Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.”
Paragraph 1.3 of the Guidelines Part 1.3 provides:
“The Guidelines are based on a template that was developed through a national process facilitated by Safe Work Australia. The template national guideline is based on similar guidelines developed and used extensively in the NSW workers compensation system. Consequently, provisions in the Guidelines are the result of extensive and in-depth deliberations by groups of medical specialists convened to review AMA5 in the Australian workers compensation context. In NSW it is a requirement under s 377(2) of the WIMWC Act that the guidelines are developed in consultation with relevant medical colleges. The groups that contributed to the development of the Guidelines is acknowledged and recorded at Appendix 2. The template national guideline has been adopted for use in multiple Australian jurisdictions”.
The Guidelines at Part 2 under “Principles of Assessment” at paragraph1.6 provide:
“The following is a basic summary of some key principles of permanent impairment assessments:
a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
• whether the condition has reached Maximum Medical Improvement (MMI)
• whether the claimant’s compensable injury/condition has resulted in an impairment
• whether the resultant impairment is permanent
• the degree of permanent impairment that results from the injury
• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.”
The Guidelines under “Principles of Assessment” at paragraph1.8 provide:
“The degree of permanent impairment that results from the injury/condition must be determined using the tables, graphs and methodology given in the Guidelines and the AMA5, where appropriate”.
The Guidelines under “Deductions for pre-existing conditions or injuries” at paragraphs 1.27 and 1.28 provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
Chapter 11 of the Guidelines headed “Psychiatric and psychological disorders”, at paragraph 11.1 lays out the method for assessing psychiatric impairment.
The Guidelines at paragraph 11.10 under “Pre-existing impairment” provide:
“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 pre-injury 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 1/10th of the assessed WPI.”
The Guidelines in Chapter 11 do not provide that the 10% deduction is to be made when a pre-injury PIRS assessment is difficult or costly to determine although such a provision is contained in s 323 of the 1998 Act.
Section 323 of the 1998 Act provides:
“(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 approved medical specialist in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre- existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case”.
However, in Cole the injury concerned was physical and, therefore, one to which the AMA 5 Guides, adopted by the Guidelines (issued pursuant to s 376 of the 1998 Act) were applicable. Guideline 11.10 had no application and the relevant Guideline was 1.28.
In Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) Bell P and Payne JA said at [97] (Emmett JA concurring):
“The aim of the Guidelines (which have been held to have the force or effect of delegated legislation: see Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [25]-[28] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [29]) would be subverted if the decision as to which scale to place certain conduct in for the purposes of assessing seriousness of impairment were left to the discretion of an AMS, as the Delegate indicated it could be. This would also have ramifications for the reviewability of decisions by an AMS. There is an important difference between a characterisation exercise and an exercise of discretion.”
The appellant submitted that the MA failed to engage in an analysis of the appellant’s pre-injury condition, and the respects in which that condition affected the appellant’s functioning in the various PIRS categories.
The Appeal Panel agree that the MA did not calculate the pre-existing impairment using the same method for calculating current impairment level. The MA did not comply with the provisions of paragraph 11.10 of the Guidelines that required the percentage impairment for the pre-existing impairment to be calculated using the aggregate score and median class score using the conversion table in Chapter 11. The appellant’s current level of WPI% should then have been assessed and the pre-existing WPI% subtracted from the current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury.
Paragraph 11.10 of the Guidelines provides that if the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.
There is no residual power or discretion in Part 11.10 of the Guidelines to make a deduction of more that 1/10th of the assessed WPI if the assessor cannot make an assessment of the percentage of pre-existing impairment as set out in paragraph 11.10. The only method that can be used to make a deduction of more than 1/10th of the assessed WPI is for the assessor to calculate pre-existing impairment in the PIRS categories and then calculate the impairment using the aggregate score and median class score. If this method is not used the only deduction that can be made for pre-existing impairment is 1/10th of the assessed WPI.
The Appeal Panel concluded that the MA, in making a deduction of more than one-tenth of the assessed WPI for pre-existing impairment without making a calculation of the percentage of pre-existing impairment as set out in paragraph 11.10, made the assessment on the basis of incorrect criteria and this was a demonstrable error.
The Appeal Panel accepts that the Guidelines state that an assessment of pre-injury impairment is to be calculated using the same method used for calculating current impairment level. The assessing psychiatrist is to use all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function and then calculate the percentage impairment using the aggregate score and median class score and the conversion table. 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. However, the Guidelines also provide that if the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.
The Appeal Panel considered the evidence in this matter and whether an assessment of the percentage of pre-existing impairment could be made as set out in paragraph 11.10.
The appellant commenced work for the respondent in about 2009. Prior to his employment with the respondent, he had been working for Elizabeth Lodge as an assistant in nursing since 2002 or 2003. The appellant, in his statement dated 8 May 2019, said that he did not have any difficulties in his work at Elizabeth Lodge and enjoyed his seven years employment there. The appellant undertook a Certificate in Aged Care Level III before working at Elizabeth Lodge. He later completed a Certificate in Aged Care Level IV. He also studied for three years undertaking a Diploma Certificate in sound engineering when he arrived in Australia in 1999 and described these studies as “quite difficult”.
Dr Friend, treating psychiatrist, in a report dated 26 August 2006, noted he first saw the appellant on 22 August 2006 and wrote:
“Mr Dugdale told me that he had generalised anxiety and panic disorder. This had present since about age 16 or 17 years.
He found it difficult to be in any situation which involved dealing with groups of more than two people. As such he would worry about going to work and worry particularly about attending staff meetings. He was worried about any situation where he might be in the spotlight. This included where he might be asked a question and expected to reply in front of others. In such situations he was worried that he would not be able to answer, that he would blush and sweat and that people would see him as 'socially unable to integrate'. He knew a lot of people who seemed to enjoy being in the spotlight.His symptoms have been sufficiently severe that he had been prescribed various medications. Originally he was prescribed Zoloft and more recently that had been changed to Cipramil. He found these medications were helpful but he is also required to take a Valium tablet usually about four mornings each week before going to work. He does one or two night shifts each week and does not need to take Valium on those nights because he has very few dealings with people other than the patients for whom he ls caring.
…
Although Mr Dugdale describes himself as having a panic disorder and generalised anxiety, I believe that he is best diagnosed as having a social phobia or social anxiety disorder.He is very concerned about others scrutinising him to see if he is anxious and whether he exhibits symptoms that would see him labelled as socially inept.
I believe that it Is reasonable to continue the Cipramil. He has tried taking it in a dose of 2 tablets daily. I have suggested that he might try initially taking 11/2 tablets and then if necessary, 2 tablets daily….”
In his report dated 30 December 2018, Dr Friend wrote:
“Mr Dugdale had pre-existing diagnoses which I have documented in my report dated 28 August 2006 of Social Phobia and Generalised Anxiety Disorder. It appeared that although he consumed approximately 20 standard drinks each week, he did not appear to have alcohol use disorder.
There was an exacerbation of his conditions which probably commenced in 2011 after he was transferred out of the Isobel Reed secure dementia unit.
He described experiencing panic attacks every day whilst working being constantly on edge. He tried to avoid social interactions as much as possible.
At that stage in 2012 documented in my letter dated 21 June 2012 I made an additional diagnosis of attention deficit hyperactivity disorder and commenced him on dexamfetamine sulfate.
Mr Dugdale reported a favourable response to dexamfetamine sulfate and the dose was eventually increased after obtaining the appropriate authority to 15 mg three times each day.
His history of illegal substance use meant that he had to have repeated urine drug screens which were always negative for illegal substances. He reported that his alcohol consumption was reduced as was his anxiety.
Mr Dugdale's mental state remained stable, although he did require Lorazepam to control his anxiety and he would sometimes take Stilnox at night to help him sleep. He took benzodiazepines the night before and the morning of work shifts. He did not require them the night before or the morning of non-work days. Mr Dugdale had pre-existing conditions of social phobia and generalised anxiety disorder. He was diagnosed as having attention deficit hyperactivity disorder, in 2012.The social phobia and generalised anxiety disorder were stable and in remission with treatment from about 2011 onwards and the attention deficit hyperactivity disorder was well managed and stable since about late 2012.
These pre-existing conditions have been exacerbated by the various events occurring at work on 2012, 2014 and 2018, but most severely by the events at work in 2018. He developed Major Depressive Disorder in the past 12 months as a consequence of the events at work in 2018.”The Appeal Panel noted that Dr Hong in his report dated 10 January 2020 made a deduction of one-tenth for pre-existing condition. Dr Suman, in a supplementary report dated 23 October 2020, did not make an assessment of permanent impairment but disagreed with the one-tenth deduction made by Dr Hong and stated that he would have deducted more but did not give a figure.
The Appeal Panel considered that taking into account the significant period of time which has passed since the appellant commenced work for the respondent, the percentage of pre-existing impairment cannot be assessed. It is very unlikely that the appellant would be able to recall accurately sufficient information about his level of functioning in the activities that need to be rated in the PIRS as those activities occurred so many years ago. Further, the statement by the appellant that he had no difficulties in his work at Elizabeth Lodge was at odds with the report of Dr Friend dated 22 August 2006, in which Dr Friend noted that the appellant found it difficult to be in any situation which involved dealing with groups of more than two people and would worry about going to work and worry particularly about attending staff meetings. This difference in the description of difficulties at work experienced by the appellant at Elizabeth Lodge demonstrated the difficulty that would be encountered in attempting to assess the appellant’s pre-injury level of functioning, particularly as such an assessment would be largely based on the history provided by the appellant.
Therefore, the Appeal Panel will apply a deduction of one-tenth in accordance with the provisions of paragraph 11.10 of the Guidelines. The MA assessed 17% WPI. The Appeal Panel has made a deduction of 1.7% resulting in 15.3% WPI which is rounded down to 15% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 March 2021 by the MA 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 Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Professor Nicholas Glozier 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) |
| Psychological Injury/ Mind | 2/12/18 (deemed) | Chapter 11, pp 55-60 | 17% | 1/10th | 15% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Carolyn Rimmer
Member
Dr Douglas Andrews
Medical Assessor
Dr Patrick Morris
Medical Assessor
8 July 2021
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