Edmen Community Staffing Solutions Pty Ltd v McAuley
[2025] NSWPICMP 58
•3 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Edmen Community Staffing Solutions Pty Ltd v McAuley [2025] NSWPICMP 58 |
| APPELLANT: | Edmen Community Staffing Solutions Pty Ltd |
| RESPONDENT: | Stephen Wayne McAuley |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 3 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application of section 323 deduction for preexisting psychological condition; whether MA erred in manner in which they assessed the relevant deduction; the respondent worker suffered an accepted psychological injury in the course of his employment against a background of pre-existing post-traumatic stress disorder; the MA determined the degree of the pre-existing impairment was difficult or costly to determine, and applied section 323(2) in assessing a 10% deduction; the overall impairment as assessed was not in dispute; the appellant submits the MA erred in failing to assess the preexisting impairment in relation to each of the permanent impairment rating scale (PIRS) categories and deducting that impairment from the overall impairment found on assessment: Quintiliani-Johns v Secretary, Department of Education (Quintiliani-Johns) discussed; Held – the MA did not err in the formulation of the section 323 deduction; once the MA determined in their clinical judgment that the degree of pre-existing impairment was difficult or expensive to determine, they were not required to embark on the exercise required by the decision in Quintiliani-Johns and to assess the effect of the pre-existing impairment on each of the PIRS categories; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 October 2024, Edmen Community Staffing Solutions Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 September 2024.
The appellant relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), namely that the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, the ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) 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).
RELEVANT FACTUAL BACKGROUND
On 9 January 2018, the respondent worker, Stephen Wayne McAuley was assaulted by a client in the course of his employment as a community support worker with the appellant. The client in question had a severe brain injury and violently attacked the respondent.
As a result of the assault, the respondent suffered physical injury and, relevantly for the purposes of this appeal, a psychological injury in the nature of post-traumatic stress disorder.
On 20 February 2024, the respondent discontinued his claim for permanent impairment compensation in relation to his physical injuries. The claim for psychological injury was remitted by consent to the President for referral to a Medical Assessor to determine the permanent impairment arising from the respondent’s injury.
There is no issue the respondent previously suffered post-traumatic stress disorder after being a victim of the Bali bombings. He discloses as much in his statement to the appellant’s investigator dated 4 April 2018.
In assessing the respondent, the Medical Assessor considered the provisions of s 323 of the 1998 Act in determining a 10% deduction for the preexisting psychological symptoms was appropriate in the circumstances. It is this deduction and the manner in which the Medical Assessor dealt with the provisions of s 323 which form the basis of the appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the matter for determination, namely the application of s 3232 of the 1998 Act, did not require further examination.
Fresh evidence
Neither party sought to lead fresh evidence on the appeal.
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.
The Medical Assessor examined the respondent and assessed him as suffering a 22% whole person impairment (WPI). That assessment is not challenged on appeal. The Medical Assessor also determined the amount deductible pursuant to s 323 of the 1998 Act was difficult or costly to determine, and accordingly assumed the relevant deduction was 10% of the impairment, in this case 2%. It is this deduction which the appellant challenges.
The Medical Assessor set out the history of the injury at issue, which is not controversial. In relation to the previous psychological problems the Medical Assessor took the following history:
“Prior [to] the subject injury, he initially denied any pre-existing psychiatric condition, and he denied requiring any psychiatric treatment. I pointed out that there has been a reference to pre-existing posttraumatic stress disorder, which he acknowledged that he had posttraumatic stress disorder and was treated by Dr Ricky Tang and saw a psychologist, and he was able to resolve his condition, without any active symptoms by the time of the subject injury, with full resumption of his function with work and social life. I asked if he had PTSD related to his father’s suicide attempt, which he acknowledged, but he said it happened a long time ago and he was able to get over it by himself.
Prior to the subject injury, he denied any substance use, or alcohol use, and he denied any current alcohol use or substance use.
Other stressors in life include his marriage breakdown, loss of his house, physical injury to his right hand, and more recently his mother going to hospital yesterday.”
The Medical Assessor specifically acknowledged the previous posttraumatic stress disorder in his reasons for the evaluation of permanent impairment. At [8(e)] of the MAC, the Medical Assessor said:
“He has had a previous posttraumatic stress disorder, for which he was treated with therapy and various medications, and was quiescent following successful treatment until the subject injury. However, his prior posttraumatic stress disorder can be seen to have recurred as a consequence of the subject injury. It consequently contributes to his current psychiatric impairment, in that if he had not suffered his earlier posttraumatic stress disorder, his current impairment would not be as great.”
After considering the evidence, the Medical Assessor found the respondent suffered from an overall 22% WPI, a figure not in itself the subject of any challenge. The Medical Assessor, having made the comments recorded at [18] above, noted the extent of the deduction to be applied pursuant to s 323 was difficult or costly to determine, so applied a 10% deduction pursuant to s 323(2), leaving the assessed WPI referable to the injury at issue as 20%.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits the MAC contains an error in that the Medical Assessor applied the wrong test when considering the s 323 provisions of the 1998 Act. The appellant submitted the Medical Assessor was required to assess the impairment under each of the individual Psychiatric Impairment Rating Scale (PIRS) categories which was attributable to the preexisting condition, and to subtract that impairment from the current level of WPI which was directly attributable to the work-related injury.
The appellant relied on the recent decision of Mitchelmore J in Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 (25 September 2024) (Quintiliani-Johns) and submitted the Medical Assessor had erred in the manner in which he assessed the s 323 deduction, as he did not measure the proportion of WPI due to the pre-existing condition by reference to each of the PIRS categories.
In reply, the respondent submits the Medical Assessor explained at 11(c) of the MAC that the extent of the s 323 deduction is difficult or costly to determine, and therefore applied s 323(2) to deduct 1/10th. The respondent submitted this assessment was made in accordance with the clinical judgment of the Medical Assessor, and that once the deduction is found to be difficult or costly to determine, the 10% statutory assumption in s 323(2) automatically applies, and no requirement to use the psychiatric impairment rating is enlivened.
The respondent also submitted the appellant has tendered no medical evidence relating to extent to which the preexisting stressors have contributed to the respondent’s current condition. Absent such evidence, the respondent submitted the preexisting impairment is plainly costly or difficult to determine.
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.
In this matter, the respondent’s submissions concerning the decision in Quintiliani-Johns are well made. Her Honour’s decision is distinguishable from the present matter, as it dealt with an assessment by a Medical Assessor and Medical Appeal Panel of a 50% deduction – in other words, that was not a matter where, in the clinical judgment of the Medical Assessor, the degree of pre-existing impairment was difficult or costly to assess. As such, it was incumbent on the Medical Assessor and Medical Appeal Panel in that matter to assess the extent of preexisting impairment for each of the PIRS impairment categories. That is not the case in this matter.
The categorisation of the preexisting impairment as difficult or costly to determine by the Medical Assessor was a matter of clinical judgment and was open to him. The Medical Assessor noted the respondent was not a reliable historian when it came to matters of employment history and also the extent of prior psychological impairment. In circumstances such as the present matter where there is no medical evidence proffered by the appellant to suggest the applicable deduction should have been higher, there is no evidence the Medical Assessor erred in assessing a 10% deduction pursuant to s 323(2).
There is no question the respondent had preexisting issues, however, as the report of treating specialist Dr Tsang notes, the respondent had been discharged from mental health care in November 2017, and no other significant new stressors or incidents were reported between that discharge and the assault at issue.
The appellant noted in its submissions a number of preexisting factors referred to by the Medical Assessor, however, the Medical Appeal Panel is of the view the MAC demonstrates the Medical Assessor in fact took those matters into account in reaching his clinical judgment the degree of preexisting impairment was costly or difficult to determine.
As such, the Medical Appeal Panel is of the view the Medical Assessor made no error.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 September 2024 should be confirmed.
0
2
0