Dural Early Learning Centre Pty Ltd v Boucher
[2023] NSWPICMP 577
•11 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dural Early Learning Centre Pty Ltd v Boucher [2023] NSWPICMP 577 |
| APPELLANT: | Dural Ealy Learning Centre Pty Ltd |
| RESPONDENT: | Elizabeth Boucher |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 11 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant alleged error in the failure of the Medical Assessor to make a deduction under section 323 for the contribution of a diagnosed pre-existing condition to the overall level of permanent impairment assessed and failed to give adequate reasons; Appeal Panel satisfied as to error; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 April 2023 the employer Dural Early Learning Centre Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 March 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 did not request that the worker Elizabeth Boucher (the respondent) be re-examined. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because even though the Appeal Panel found error, there was enough material before the Appeal panel to make a determination.
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.
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 matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 8/06/2021 (deemed)
· Body parts/systems referred: psychological
· Method of assessment: WPI”
The Medical Assessor issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. psychological
8/6/21
11
11
15
15
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
15
The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
Name
Boucher
Claim reference number (if known)
DOB
Age at time of injury
Date of Injury
8/6/21
Occupation at time of injury
Date of Assessment
23/3/23
Marital Status before injury
Psychiatric diagnoses
1.adjustment disorder
2.PTSD
3.
4.
Psychiatric treatment
Medication, therapy
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Some reduction in personal ADLs
Social and recreational activities
3
Has withdrawn from social and recreational activities with friends
Travel
2
Is able to drive independently to familiar areas
Social functioning
2
Maintains good relationships with family
Concentration, persistence and pace
3
Subjectively impaired concentration
She has intrusive symptoms which affect her concentration
Employability
3
Is currently moderately impaired. She has capacity to provide care for her mother
Score
Median Class
2
2
2
3
3
3
3
Aggregate Score Impairment
Total
%
+
+
+
+
+
15
15
The Medical Assessor made no deduction under s 323 in respect of a pre-existing condition or abnormality.
The employer appealed. The appeal concerns only the Medical Assessor’s failure to make a deduction under s 323. In summary, the appellant submitted that the Medical Assessor erred in this regard by failing to make a deduction and in failing to adequately explain his reasoning for not making a deduction in circumstances where the available evidence supported a deduction being made.
In summary, the respondentsubmitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories and when making a deduction under s 323. A deduction under s 323 can only be made if any pre-existing injury, abnormality or condition has contributed to the level of permanent impairment assessed. The reasons for making a deduction or not must be adequately explained.
The Medical Assessor recorded a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Her father died in January 2021 after what she states is ‘medical misadventure’. In the context of this she developed PTSD symptoms including nightmares relating to the hospital and her father. She said that initially her boss was supportive and allowed her 2 weeks off however quickly demanded that she work her full hours and continued to harass her about this. In this context she became increasing depressed and anxious and unable to work.
She describes numerous symptoms including increased stress, anxiety, low mood, poor sleep, poor energy.
· Present treatment: psychologist for ‘rehab’, Dr Rastogi psychiatrist, medication Pristiq and quetiapine.
· Present symptoms: ongoing low mood, sleep difficulties, feelings of worthlessness, irritability, social withdrawal, anxiety, avoidance, nightmares
· Details of any previous or subsequent accidents, injuries or condition: She was treated by Dr Rastogi and psychologist in 2012/2013 after she injured her hand. She had a full psychological recovery.
· General health: nad
· Work history including previous work history if relevant: she has not been able to successfully work or study since
Social activities/ADL: reduction in ADLs. Reduction in social activities. Able to travel independently by car and public transport. Maintains good relationships with family. She is carer for her mother”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Appeared stated age. Flat affect. Nil abnormal psychomotor activity. Depressed and anxious mood. Oriented to time, place and person. Speech of normal rate, rhythm, volume and prosody. Nil formal thought disorder. Nil delusions or hallucinations. No thoughts of harm to others.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
Adjustment Disorder
PTSD
· consistency of presentation
no obvious inconsistencies”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. These assessments are not the subject of complaint on appeal.
The Medical Assessor made no deduction under s 323 and this is the subject of complaint on appeal.
The Medical Assessor stated as follows:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No”
The Medical Assessor made brief comments on the other evidence that was before him as follows:
“Dr Cassimatis provided a number of reports the last 7/11/22 arriving at WPI of 13%
Dr Rastogi 28/6/22 diagnosed adjustment disorder and PTSD with WPI 17%
I note that PTSD symptoms from her father’s death and the subsequent Adjustment Disorder symptoms are separated temporally by 2 weeks and are difficult to apportion accurately.
I have agreed mostly with Dr Rastogi WPI except self-care noting that she is the carer for her mother.”
Dr Rastogi who provided an opinion on behalf of the respondent worker made no deduction under s 323 and the respondent worker points to this opinion in submissions. The respondent worker submitted that whilst a deduction of one-tenth was open to the medical assessor, the making of no deduction was also open to him in the exercise of his clinical judgment on the evidence.
The Medical Assessor is required to reach his own independent opinion but he must explain his reasons adequately. The appellant submits that the Medical Assessor failed to do so. In determining whether the path of reasoning is adequate the MAC must be read as a whole. The Medical Assessor has provided a brief and inadequately reasoned MAC and has failed to have due regard to the other evidence before him in regard to the appellant’s pre-existing psychiatric condition.
A deduction can only be made if a pre-existing condition, abnormality of injury has contributed to the level of current permanent impairment assessed. Further, if a pre-existing injury has contributed to the current degree of impairment, then a s 323 deduction must be made. This depends on the evidence before the Medical Assessor and the exercise of clinical judgment by the Medical Assessor. In this case the available evidence establishes that the appellant suffered a pre-existing psychiatric condition of Post Traumatic Stress Disorder as a result of her father’s death associated with medical misadventure. The Medical Assessor gave no reasons for not making a deduction under s 323 to take account of the pre-existing psychiatric condition suffered by the appellant of Post Traumatic Stress Disorder as a result of her father’s death. Despite acknowledging that “PTSD symptoms from her father’s death and the subsequent Adjustment Disorder symptoms are separated temporally by 2 weeks and are difficult to apportion accurately”, the Medical Assessor made no deduction under s 323 and made no attempt to explain why no deduction was made. There is a specific provision in the Act which allows for a one-tenth deduction to be made in circumstances whether the contribution of the pre-existing condition to the level of permanent impairment assessed is difficult to determine. In these circumstances a one-tenth deduction should be made unless at odds with the available evidence.
On the available evidence the respondent worker suffered a diagnosed pre-existing psychological condition or abnormality of PTSD that has contributed to the level of permanent impairment assessed by the Medical Assessor as a result of the work injury, given the proximity of the pre-existing Post Traumatic Stress Disorder iagnosis to the work injury, which is not a mild disorder and she had treatment for it. A deduction of one-tenth should have been made and the Medical Assessor’s failure to do so in circumstances where he had not adequately explained why he did not do so, in in clear error and accordingly the Appeal Panel will revoke the MAC. As the overall level of permanent impairment assessed of 15% is not the subject of complaint on appeal, the application of a one-tenth deduction leads to an assessment of 13.5% which after rounding is 14% whole person impairment as a result of injury.
Accordingly, the Appeal Panel will revoke the MAC and issue a new MAC in accordance with this statement of reasons.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 March 2023 should be revoked. A new MAC is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7969/22 |
Applicant: | Elizabeth Boucher |
Respondent: | Dural Early Learning Centre Pty Ltd |
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 Medical Assessor Gerald Chew 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric disorder | 8 June 2021 (deemed) | Chapter 11, page 54 | Chapter 14, | 15 | 1/10 | 14 (after rounding) |
| Total % WPI (the Combined Table values of all sub-totals) | 14 | |||||
0