Firat v Ocart Pty Ltd (Liquidated)
[2024] NSWPICMP 307
•22 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Firat v Ocart Pty Ltd (Liquidated) [2024] NSWPICMP 307 |
| APPELLANT: | Kemalettin Firat |
| RESPONDENT: | Ocart Pty Ltd (in liquidation) |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 22 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor’s (MA) ratings of appellant’s impairment in all psychiatric impairment rating scale (PIRS), other than employability, accorded with the evidence; whether the MA’s deduction under section 323(1) was based on correct criteria; whether the MA’s deduction under section 323(1) accorded with the evidence; whether the MA provided the appellant with medical advice and thereby took into account an irrelevant consideration; Appeal Panel found that the MA’s ratings of appellant’s impairment in the challenged PIRS and the MA’s deduction under section 323 accorded with the evidence; Appeal Panel found the MA applied correct criteria with respect to the section 323 deduction; Appeal Panel found the MA did not provide medical advice to the appellant; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 March 2024 Kemalettin Firat, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 February 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as a delivery driver on 21 October 2021 with Ocart Pty Ltd (in liquidation). He obtained that employment through the assistance of Wise Employment, whom the appellant described in a statement he signed on 15 September 2023 as “a disability employment service”.
The appellant last worked for the respondent on 11 December 2021. On 18 December 2021 he received an email from the respondent terminating his employment.
The appellant suffered a psychological injury due to circumstances to which he was exposed in the period of his employment between 21 October 2021 and 11 December 2021. On 11 October 2022 his solicitors wrote to the respondent, care of its insurer, advising it that the appellant claimed compensation from it under s 66 of the Workers’ Compensation Act 1987 for 22% whole person impairment (WPI) from his injury. The appellant's solicitors provided the insurer with their correspondence a report of forensic psychiatrist Dr Aman Suman dated 12 September 2022, who had examined the appellant on that date and assessed his permanent impairment to be of the order for which the appellant claimed compensation.
In his report Dr Suman advised that the appellant’s presentation satisfied the criteria for a diagnosis of “bipolar affective disorder – current episode of major depressive disorder with comorbid social anxiety disorder”. Dr Suman also advised that the appellant had provided him with a history of long standing bipolar affective disorder dating from 2000 that had relapsed on multiple occasions and had resulted in inpatient psychiatric admissions and ongoing input from mental health services. Dr Suman advised that the appellant “had been stable regarding his mental health (being compliant with his psychotropic treatment regiment) in October 2021”. Dr Suman advised that the workplace stressor to which the appellant was exposed in his employment with the respondent led the appellant to experience “a relapse of bipolar affective disorder”. Dr Suman advised that the appellant had “experienced a depressive episode, adversely affecting his social, occupational and general functioning”.
Dr Suman assessed the appellant’s WPI by reference to the Psychiatric Impairment Rating Scale (PIRS), which the Appeal Panel observes is detailed in paragraphs 11.11 and 11.12 and Table 11.1 – 11.6 of the Guidelines. Dr Suman rated the appellant’s impairment in the PIRS categories of self-care and personal hygiene, social and recreational activities and concentration, persistence and pace (CPP) as Class 3. He rated the appellant’s impairment in travel and in social functioning as Class 2. He rated the appellant’s impairment in employability as Class 5. Dr Suman noted that the median Class value of those scores is 3 and that aggregate is 18, which correlated to 22% WPI. Dr Suman indicated he deducted 10% from that assessment due to the appellant’s pre-existing condition, which deduction rounded to 2% WPI. Dr Suman also indicated that he added 2% WPI in accordance with paragraph 1.32 of the Guidelines, which permits an addition of 1%, 2% or 3% WPI to an assessment of permanent impairment where effective long term treatment of an illness or injury has resulted in apparent substantial or total elimination of a workers’ permanent impairment but the worker would like to revert to the original degree of impairment if treatment is withdrawn. Hence, the end result was, as earlier noted, that Dr Suman assessed the appellant had 22% WPI from the appellant’s work injury.
On 5 June 2023 the respondent’s insurer notified the appellant, in accordance with s 78 of the 1998 Act, that it disputed liability for his claim for compensation for permanent impairment. It advised him in that notice that it relied on a report dated 28 April 2023 Dr Ashwinder Anand, who had examined the appellant on 28 April 2023 at the request of the respondent’s solicitors and who advised it in that report he assessed the appellant had 6% WPI. Dr Anand also indicated that his assessment was done by reference to the PIRS and he had rated the appellant’s impairment as Class 3 in self-care and personal hygiene and in employability, Class 2 in social and recreational activities, social function and CPP, and Class 1 in travel. Dr Anand advised he diagnosed the appellant’s injury is an adjustment disorder. Dr Anand noted that the appellant had a well established pre-existing bipolar disorder with multiple admissions.
Following receipt of the insurer’s s78 notice the appellant instituted proceedings in the Personal Injury Commission (Commission). The matter was referred to one of the Commission’s Members, namely Mr Gaius Whiffin, who on 9 November 2023 made directions with the consent of the parties relating to various procedural matters and remitted the matter to the President of the Commission so that the medical disputes between the parties relating to the appellant’s permanent impairment from his injury could be referred to a Medical Assessor to assess.
A delegate of the President duly did so on 19 December 2023.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor examined the appellant on 6 February 2024, by an audiovisual link, to conduct that assessment. In the MAC he issued on 13 February 2024 he certified that the appellant’s impairment is permanent and that the degree of the appellant’s permanent impairment is fully ascertainable. No issue is raised regarding the Medical Assessor’s assessment and certification of those medical disputes.
The Medical Assessor applied the criteria of Chapter 11 of the Guidelines to assess the appellant’s permanent impairment from his injury. That required him to rate the seriousness of the effects of the appellant’s injury in the several areas of activity and conduct comprising the PIRS. In his appeal against the MAC the appellant has challenged the Medical Assessor’s rating of his impairment in all of the PIRS categories except employability. In the PIRS rating form within the MAC the Medical Assessor detailed his ratings of the appellant’s impairment in the several PIRS categories and provided his reasons for his ratings. With respect to the PIRS categories that have been challenged in the appeal they are as follows:
Self care and personal hygiene
2
Mr Firat has been neglecting his self-care. He told me he showers twice a week and buys takeaway food 4 days per week, and only cooks 2-3 times per week. He does not need prompting as he initiates all self-care activities himself and functions independently. He maintains a basic level of nutrition and hygiene.
Social and recreational activities
2
He attends regular social recreational activities with his friends, such as watching football at RSL with his friends. Overall, he has been less since his injury. He also enjoys regular solitary recreational activities, which has not significantly changed since the subject injury.
Travel
2
Mr Firat has anxiety and avoids some places with crowds.
He is independent in travel generally.
Social functioning
2
Mr Firat's relationship with his partners ended when they discovered he was not faithful, and not due to his psychological injury.
He is anxious and socially avoidant, and ceased contact with some of his friends.
He has maintained many long-term friendships.
The relationship with his sisters is good.
Concentration, persistence and pace
3
Mr Firat described having poor concentration.
He does not engage in any intellectually demanding or complex tasks.
His mental state examination is consistent with 3.
The Medical Assessor recorded that the median class of his scores is 2 and the aggregate of his scores is 16, which converts to 9% WPI.
The Medical Assessor also noted within the body of the MAC that the appellant attends to his hair less now but showers everyday and dresses normally and normally eats well and forces to himself to have 2 meals a day. The Medical Assessor noted that the appellant is “still on good speaking terms” with one of his former partners. The Medical Assessor noted the appellant only drives 50km from home before suffering an anxiety attack. The Medical Assessor noted that the appellant goes fishing by himself regularly every couple of weeks, and walks in the park or to the beach regularly. The Medical Assessor recorded that the appellant has good friends with whom the appellant talks rather than go out with because his friends tend to gamble and drink alcohol. The Medical Assessor noted that the appellant has lost some friends because he has no money since his work injury. The Medical Assessor noted that the appellant goes to an RSL club to watch sports with his friends.
The Medical Assessor compared his rating of the appellant’s impairment in the several PIRS categories with the ratings Dr Suman had made (to whom, the Appeal Panel notes, the Medical Assessor referred as Dr Aman in the MAC). The Medical Assessor noted that Dr Suman had rated the appellant’s impairment in self-care and personal hygiene as 3 but the Medical Assessor considered that Dr Suman’s explanation was also consistent with a rating of Class 2. The Medical Assessor further observed that the appellant lives in shared accommodation and maintains full independence with self-care and the Medical Assessor said that he was of the view “2 is more accurate”.
The Medical Assessor also noted that Dr Suman had rated the appellant impairment in social and recreational activities as Class 3 and that Dr Suman had explained that the appellant had attended social events because a friend insisted but the appellant could not enjoy them. The Medical Assessor noted too that Dr Anand had rated the appellant’s impairment in social and recreational activities as Class 2 noting the appellant would go to a local club to watch football. The Medical Assessor remarked that Dr Anand’s history was similar to the history he obtained and the Medical Assessor explained that he rated the appellant’s impairment in social and recreational activities as Class 2 because the appellant has several regular social and solitary recreational activities.
The Medical Assessor observed that Dr Suman had rated the appellant’s impairment in CPP as Class 2 but the Medical Assessor explained that he considered there was evidence of a long standing problem with the appellant’s concentration with a possible pre-existing attention deficit hyperactivity disorder (ADHD) diagnosis, and that based on the appellant’s presentation on the day he rated him Class 3.
The Medical Assessor identified the appellant had a pre-existing condition which he described as being “consistent with bipolar disorder, PTSD and borderline personality disorder”. The Medical Assessor made a deduction under s 323e(1) of the 1998 Act for a proportion of the appellant’s permanent impairment from his injury that the Medical Assessor considered was due to this pre-existing condition. The appellant did not in his appeal against the MAC challenge the Medical Assessor’s finding that he had a pre-existing condition, and indeed acknowledged that he had. In his appeal, the appellant has challenged the deduction that the Medical Assessor made on account of that pre-existing condition. Relevant to that matter, the Medical Assessor detailed in the MAC the following history he obtained relating to the appellant’s psychiatric illness:
“In terms of past history, Mr Firat reported that he had attended Royal Prince Alfred hospital and a psychiatrist diagnosed bipolar II disorder in 2003. He recalling having consulted Dr Cornelius Greenway, Psychiatrist, but said that he has not had a consultation for a while.
He reported that over time he has had maybe a dozen psychiatric admissions since 2002 and before Ocart. He cannot remember the last time was when he had an admission before working at Ocart.
After Ocart he said he has only had one psychiatric overnight admission, which was to Concord Hospital when he felt overwhelmed and was ruminating and they changed his medication. He did not recall any specific treatment events and said that he was admitted for a few days. I noted to him, he may have had more than one admission, although some of the hospital presentations may have been a few hours and not overnight, after Ocart. Before that Concord admission, he stated he was on a combination of Epilim 1500mg, Zyprexa 20mg and Valium when needed for many years. In the hospital they added Seroquel, but this stopped after he left the hospital when he had a review with a community psychiatrist, as it was causing too much sedation. He maintained the same medication as he did before the admission and said he has been taking Valium in the last 5 to 7 years, usually every two days.
Mr Firat believes his bipolar disorder was stable before Ocart.
I asked him about pre-existing PTSD and he said that when he was 22 years old, he was a dual citizen and his father took him back to Turkey and he had to serve in the National Service in the military. He was assaulted by three men and had a machine gun pointed at him. He developed trauma symptoms consistent with PTSD from it. He felt that he then overcame that.
I discussed with him, his MAP results (Mood Assessment Program, which is an online questionnaire, and provides an analysis of a person’s potential psychiatric diagnoses and subtypes of depression, and personality-related data, and is based on that person’s self reported symptoms), which was done in January 2022, that is, the month after he stopped working at Ocart and in terms of stressors the 12 months before that date, he had listed many major issues, including assaults. He has no recollection what these issues are. I noted he may have recorded lifelong stressors as stressors in the past 12 months.
I asked Mr Firat about borderline personality disorder diagnosis and explained that it is when a person has encountered trauma and developed unstable emotional and interpersonal functioning, and difficulty regulating moods with intermittent self-harm thoughts, and he agreed that this was a diagnosis that applied to him. He also told me that he would like to have Dialectical behavioural therapy as has been suggested by his treating team (which is a common treatment for this diagnosis), but has never done it. He stated the hospital suggested it and his private psychiatrist also agreed that DBT was reasonable treatment.”
The Medical Assessor also within the Part 10c of the MAC summarised parts of the documentary evidence provided to him. This included a report of the appellant’s treating psychiatrist Dr Muhamad Ziedni, in which was noted that he had been providing ongoing psychiatric treatment to the appellant since May 2017 for both bipolar disorder and an incident that had caused post-traumatic stress disorder. The documentary evidence the Medical Assessor summarised also included discharge summaries Marrickville Health Centre had issued dating between and including 10 June 2021 and 23 November 2021.
Under the heading “Summary” in the MAC the Medical Assessor noted that the appellant had “a long history of unstable mental health with variable prior psychiatric diagnoses, including personality disorder, PTSD, bipolar disorder, substance use disorder and ADHD”. The Medical Assessor noted that the appellant “has chronic anxiety and depressive symptoms, which can be consistent with a major depressive disorder or anxiety disorder, and can also be conceptualised as part of his bipolar disorder”. The Medical Assessor considered that the appellant’s employment with the respondent caused “an aggravation of pre-existing psychological injury”.
With respect to the deduction of 50% the Medical Assessor made under s 323(1) of the 1998 Act, the Medical Assessor provided, also under the heading “Summary” in the MAC, the following explanation:
“In terms of s323, he described an unstable employment and relationship history, and symptoms of chronic mood disorder and his psychological symptoms were not particularly stable in the years prior to Ocart, and a similar pattern has continued since his employment with Ocart, after the aggravation. Given Mr Firat has a history of extensive pre-existing conditions and associated impairment and his psychological symptoms were not particularly stable immediately before the subject injury, and his functional capacity in the years prior to Ocart was not particularly favourable or stable, my view is that his pre-existing psychiatric disorder contributed to one half of his current impairment.”
At Part 11b (i) of the MAC the Medical Assessor provided this explanation regarding why he made a deduction under s 323 (1) of the 1998 Act:
“Mr Firat's pre-existing condition contributed to his current impairment, because many of his previous psychological symptoms and impairment are similar to his current psychological injury, and part of his current injury is a recurrence of the previous injury, resulting in a greater overall impairment.”
The Medical Assessor said the following at Part 11c of the MAC:
“The extent of the deduction is difficult and/or costly to determine, so in applying the provisions of s.323(2), I assess the deductible proportion as one-half for a pre-existing injury. One-tenth deduction would be at odds with the evidence as the pre-existing injury is significantly more than a minor contribution. There is a significant amount of evidence related to Mr Firat's pre-existing injury and it is not too difficult or costly to determine the preexisting contribution. Therefore, I applied 1/2.”
Upon making a deduction of 50% under s 323(1) of the 1998 Act for the proportion of the appellant’s permanent impairment that the Medical Assessor considered was due to the appellant’s pre-existing condition, the Medical Assessor assessed, and certified, that the degree of the appellant’s permanent impairment from his work injury was 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 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. This is because the Appeal Panel came to the view that the appellant had not established either of the grounds for appeal on which he relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the application of PIRS, whilst a matter for the clinical judgement of the Medical Assessor, must nevertheless ensure that the rating corresponds with the facts and if it does not a legal error will have occurred.
The appellant noted the Medical Assessor observed during the Medical Assessor’s examination of him that his hair was uncombed. The appellant observed that the Medical Assessor said that he maintained full independence with self-care and the appellant submitted that if he could not attend to a basic task of combing his hair before the medical examination then the Medical Assessor’s assessment that he maintains full independence is problematic. The appellant submitted that his having unkempt hair indicates a Class 3 impairment in self care and personal hygiene. The appellant submitted that whilst Class 2 provides an example of “may look unkempt occasionally” Class 3 is a more appropriate classification because he did not comb his hair before the medical examination.
The appellant submitted that the Medical Assessor’s rating of his impairment in social and recreational activities did not correspond with the history taken, because the history was that he had not attended a social event for two months and then only because a friend had insisted and he did not enjoy the event. The appellant submitted that the Medical Assessor did not appear to take into account his statement. The appellant submitted that the impairment in this category ought to have been assessed at least as Class 3 if not Class 4.
The appellant submitted that, with respect to the category of travel, the Medical Assessor obtained a history that he could not travel beyond 50km without panic, which does not describe his being independent in travel generally. The appellant referred to his statement in which he described that he only travels for purposes such as shopping and attending medical appointments. The appellant submitted that a Class 3 rating would be most appropriate.
With respect to social functioning the appellant submitted that the Medical Assessor did not appear to consider whether his injury was a concurrent cause with his infidelity to the break down of his relationships. The appellant also referred to his statement that wherein he said that when he meets strangers he has panic attacks. The appellant submitted that a Class 5 rating would be more appropriate.
With respect to CPP the appellant noted that his psychologist accompanied him at the examination, which the appellant submitted indicates a Class 4 rating.
The appellant submitted that s 323 requires one of two alternative methodologies to be applied. The appellant submitted that the primary methodology is, in accordance with s 323(1), “a scientific justified deduction” is made based on a “measurable proportion of pre-existing pathology”. The appellant submitted that the second method is contained within s 323(2) which applies when the method under s 323(1) would be difficult or costly to obtain a proper measurement. The appellant submitted that the Medical Assessor purported to apply s 323(2) but simultaneously found that it is not difficult or costly to determine the measurable deduction of his permanent impairment. The appellant submitted that the Medical Assessor “thus muddled the two legislatively acceptable approaches to the s 323 deduction” and provided “a legally incoherent conclusion”. The appellant submitted that the Medical Assessor provided no reason why the deduction to be made is 50% and such a deduction “is problematic against the background of significant stabilisation of the condition before the employment in which the condition was exacerbated”.
The appellant submitted that the Medical Assessor provided him medical advice, contrary to the requirements of the Guideline, because the Medical Assessor explained to him what borderline personality disorder is. The appellant submitted that the Medical Assessor blended the role of examiner and treating physician and by doing so took into account an irrelevant consideration.
In reply, the respondent submitted that the Medical Assessor clearly stated his findings by which he rated the appellant’s impairment and had considered all the evidence before him in making his findings and his assessment. The respondent submitted that the Medical Assessor had a clear understanding of the appellant’s clinical history and also took into account the appellant’s self-report of his impairment for each PIRS category.
The respondent submitted that the Medical Assessor provided thorough and consistent reasoning for making a 50% deduction under s 323(1) of the 1998 Act. The respondent also submitted that the appellant’s submission that he had largely stabilised prior to commencing his employment was not available on the evidence.
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.
Self care and personal hygiene
The examples provided in Table 11.1 of the Guidelines for a Class 2 and Class 3 impairment in self-care and personal hygiene are:
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit)
2–3 times per week to ensure minimum level of hygiene and nutrition.
The Medical Assessor rated the appellant’s impairment as Class 2. The appellant contends that that was an inappropriate rating because he had uncombed hair at the time of examination which indicates that he cannot live independently.
The Appeal Panel does not agree with that submission.
The Medical Assessor was aware from the history he obtained from the appellant that the appellant reported that he attended to his hair less now than he did before his injury. Hence the Medical Assessor was aware that on occasions the appellant’s hair would be uncombed. The Medical Assessor noted that the appellant had been neglecting his self-care, but it is apparent from the reasons the Medical Assessor explained that the appellant was able to take adequate care of himself in that he was showering and was able to feed himself and did not need prompting for that. Further in the body of the MAC the Medical Assessor also noted that the appellant was able to dress daily. The Medical Assessor noted that the appellant purchased some of his meals and cooked others. The Medical Assessor noted that the appellant maintained a basic level of nutrition and hygiene.
In the Appeal Panel’s view, contrary to what the appellant submitted, the Medical Assessor’s rating of his permanent impairment in this PIRS category was in accordance with the facts as established by the Medical Assessor both from his interview of the appellant and the documentary evidence before him. The Appeal Panel considers that the Medical Assessor considered all relevant matters necessary to rate the appellant’s impairment in this category and there is no error by the Medical Assessor in the exercise of his clinical judgement in rating the appellant’s impairment as Class 2 as a consequence of the appellant having unkempt hair during the examination.
Social and recreational activities
The examples provided for a Class 2 and Class 3 impairment in Table 11.2 of the Guidelines, which relates to social and recreational activities, are:
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
The Medical Assessor rated the appellant’s impairment in this category as Class 2. The appellant contends it ought to have been rated as Class 3 or 4 based on a history that he had not attended a social event for two months and then only at the insistence of a friend and he had not enjoyed the event. The Appeal Panel observes that was the reasoning Dr Suman provided for his rating of the appellant’s impairment in this PIRS as Class 3. That was not the history the Medical Assessor. The history the Medical Assessor obtained was that the appellant goes to the RSL club with friends to watch sport regularly, although less so since his injury. The Medical Assessor also noted that the appellant engages in regular solitary recreational activities and that has not changed significantly since he suffered the injury.
In the Appeal Panel’s view the Medical Assessor was correct to rate the appellant’s impairment as Class 2 in this category as that falls within the seriousness of the impairment described by descriptors provided for such a rating. The history the Medical Assessor obtained and upon which he rated the appellant’s impairment does not correlate with an impairment described by the descriptors for a Class 3 rating.
In short, the Appeal Panel considers that there is no error exposed in the exercise by the Medical Assessor of his clinical judgement by correlating the matters by reference to which he assessed the appellant’s impairment with the descriptors for a Class 2 rating.
Further, The Appeal Panel does not accept the appellant’s submission that the Medical Assessor did not have regard to his statement and this is because the Medical Assessor, within part 10c of the MAC, referred to the appellant’s statement and summarised those parts he considered necessary to give context or to explain his assessment of the medical disputes that had been referred to him for assessment. The Appeal Panel considers that the composition by the Medical Assessor of the history he detailed in the MAC was done after considering all of the documentary evidence and having interviewed the appellant and the history the Medical Assessor composed contains those matters that the Medical Assessor considered relevant to the assessment of the medical disputes he was tasked to do by the referral to him.
Travel
The examples for a Class 2 and Class 3 impairment provided in Table 11.3 of the Guidelines, which relates to travel are:
Class 2
Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3
Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Again, for the reasons the Appeal Panel detailed at [53] above, the Appeal Panel does not accept the appellant’s submission that the Medical Assessor did not have regard to his statement. The Medical Assessor was aware that the appellant had anxiety attacks after travelling more than 50km, and this is apparent because the Medical Assessor noted that within the history he detailed in the MAC.
The Medical Assessor reasoned that the appellant’s impairment in this PIRS was Class 2 because the appellant is able to travel generally independently but has anxiety and avoids some places with crowds. This accords with the history the Medical Assessor detailed in the MAC which was that the appellant no longer drives more than 50km because of anxiety attacks.
The fact that the appellant travels to his local shops and appointments and up to 50km before experiencing anxiety supports the Medical Assessor’s rating of the appellant’s impairment in this PIRS as Class 2. In other words, it seems to the Appeal Panel that, based on those matters, there is no error exposed in the Medical Assessor’s reasoning for rating the appellant’s impairment as Class 2, which was that the appellant has anxiety and avoids some places with crowds but is independent in his travel generally.
In the Appeal Panel’s view the history that the Medical Assessor detailed in the MAC coupled with what the appellant has said in his statement revealed that the appellant’s ability with travel best correlates with an impairment described by the descriptors provided for a Class 2 rating. They do not correlate with the descriptors provided for Class 3. Consequently, in the Appeal Panel’s view there is no error in the Medical Assessor rating the appellant’s impairment in this PIRS as Class 2.
Social functioning
The examples for a Class 2, Class 3 and Class 5 impairment provided in Table 11.4 of the Guidelines, which relates to social functioning are:
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 5
Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
The Medical Assessor rated the appellant’s impairment in this PIRS as Class 2. The appellant contends a Class 5 rating was more appropriate because the appellant in his statement describes experiencing panic when he meets strangers and because current non-romantic relationships are strained. The appellant has also submitted that the Medical Assessor did not appear to have considered whether his injury is a concurrent cause with his infidelity of the breakdown of his romantic relationships.
The appellant informed the Medical Assessor that the reason why his most recent romantic relationships ended was because “he had cheated” and each of his partners “became aware of his other relationship”. The Medical Assessor considered, based on that history, that the ending of the appellant’s most recent romantic relationships was not due to his psychological injury. Noting that the Medical Assessor is a specialist psychiatrist, and consequently familiar with the psychiatric illness the appellant suffers, the Appeal Panel considers it was open for the Medical Assessor to reach this conclusion. It is apparent, it seems to the Appeal Panel, that the Medical Assessor considered whether there was any causal connection between appellant’s psychiatric illness and the ending of his relationships and concluded there was not. The Appeal Panel considers that there is no error in the Medical Assessor coming to that conclusion. The Medical Assessor was aware of the appellant’s psychiatric illness, and as a psychiatrist aware of how that illness affects the behaviour of those afflicted by it. The Medical Assessor was also aware of what the appellant had reported to him as the reason for the ending of his romantic relationships. In other words the Medical Assessor was cognisant of all relevant matters but concluded that it was not the appellant’s psychiatric injury that resulted in the termination of his relationships but rather his infidelity. The Appeal Panel discerns no error in the Medical Assessor coming to that conclusion.
The Medical Assessor had regard to the appellant being socially avoidant and anxious which accords with what the appellant described in paragraph 44 of his statement. The Medical Assessor took account of the fact that the appellant had lost some of his friends but also maintained many long term friendships and had good relationships with his sisters.
The Appeal Panel also observes that the history the Medical Assessor obtained included the appellant being on good speaking terms with one of his most recent romantic partners.
In the Appeal Panel’s view those matters best correlate with the descriptors provided for a Class 2 impairment, rather than a Class 3 impairment. The matters on which the Medical Assessor based his rating of the appellant’s impairment certainly do not correlate with the descriptors for a Class 5 impairment.
In all, the Appeal Panel considers that the Medical Assessor’s rating of the appellant’s impairment in this category as Class 2 is correct based on the history obtained.
Concentration, persistence and pace
The examples provided in Table 11.5 of the Guidelines for a Class 3 and Class 4 impairment in CPP 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.
Class 4
Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
The Medical Assessor reasoned that the appellant’s impairment in this PIRS is Class 3 because the appellant had poor concentration and does not engage in intellectually demanding or complex tasks.
The appellant contends the rating in this PIRS ought to have been Class 4 because he needed the onsite presence of his psychologist to attend the examination. The Appeal Panel does not consider this to be a correct description of what the Medical Assessor reported had occurred. The Medical Assessor noted that the appellant was in his psychologist’s office for the examination the Medical Assessor conducted, but the appellant’s psychologist was in a different room. The Medical Assessor noted that the audiovisual equipment was set up for the appellant. Other than that, the Medical Assessor did not record that the appellant’s psychologist provided the appellant any assistance throughout the examination. Given that the appellant’s psychologist did not provide support to the appellant for the purpose of the examination, other than to set up the audiovisual equipment, the Appeal Panel considers the fact that the appellant was in his psychologist’s office for the interview the Medical Assessor conducted has no relevance with respect to the Medical Assessor’s rating of the appellant’s impairment in CPP.
In any case, the presence or absence of his psychologist as a support person would tells nothing about the appellant’s concentration, persistence and pace.
There is nothing within the history the Medical Assessor obtained, in the Appeal Panel’s view, that reveals that his rating of the appellant’s impairment as Class 3 was an error. Noting that the Appeal Panel considers that the appellant’s presence in his psychologist’s office during the examination has no relevance, the appellant has not identified any matter that indicates the Medical Assessor’s rating of his impairment as Class 3 is wrong. The Appeal Panel finds that it is not wrong.
Section 323
For s 323(1) of the 1998 Act to be engaged, some part or portion of a workers’ permanent impairment must be found to have been due to a pre-existing condition. That is, some part of the appellant’s overall impairment must have been caused by the pre-existing condition and not by the workers’ injury.[2] The determination by Medical Assessor whether this is the case must be done by reference to the evidence and not by reference to assumption or hypothesis, except in the circumstance where it would be difficult or costly to determine that, in which case, in accordance with s 323(2), a Medical Assessor can assume the deduction is 10% as long as that is assumption is not at odds with the evidence.
[2] Southwell v Qantas Airways Ltd [2024] NSWSC497 at [47] and [48]; Ryder v Sundance Bakehouse [2015] NSWSC526 at [45].
In this case the Medical Assessor’s finding that the appellant had a pre-existing bipolar disorder, post-traumatic stress disorder and borderline personality disorder has not been challenged. The issue is whether the deduction of 50% the Medical Assessor made under s 323(1) for the proportion of the appellant’s permanent impairment from his injury that is due to that is correct.
The evidence before the Medical Assessor demonstrates that the appellant had been afflicted by his pre-existing illness for decades before he suffered injury and was being treated for his illness before suffering his injury. The Appeal Panel does not accept the appellant’s submission that there had been “significant stabilisation of the condition before the employment in which the condition was exacerbated”. That defies the evidence.
Within the material that the appellant lodged with his application to resolve the dispute were 10 discharge summaries that the Marrickville Health Centre had issued relating to the appellant dating from 10 July 2018 to 6 December 2021 inclusive. Discharge summaries that were issued in the period to and including 28 October 2021 reveal that the appellant was symptomatic from his psychiatric illness and required regular treatment and oversight. The discharge summary issued on 28 October 2021, which was one week after the appellant commenced his employment with the respondent, revealed that the appellant was referred to the Marrickville Health Centre on 26 October 2021, which followed his attendance at the Royal Prince Albert Hospital as a category A emergency expressing suicidal ideation in the context of his wanting a review of his medications.
The discharge summary issued on 24 September 2021, preceding the appellant’s employment with the respondent, revealed that the appellant had been referred to the acute care service on 19 September 2021 from the Royal Prince Albert Hospital Emergency Department following the appellant’s presentation there from a low lethality overdose of Olanzapine and Diazepam in the context of a relationship breakdown.
The discharge summary on 17 August 2021 followed the appellant contacting a mental health line by phone requesting mental support. The appellant reported that he is “all over the place” and has been for the past few months.
That is sufficient to reveal, in the Appeal Panel’s view, that the appellant immediately preceding his injury was suffering significant symptoms from his illness that would have been affecting his function. There is no need for the Appeal Panel to detail the contents of the other discharge summaries.
The Medical Assessor described the appellant’s function before commencing his employment with the respondent as being impaired as a consequence of chronic symptoms from his illness. The Medical Assessor explained that given the appellant’s history of extensive pre-existing conditions and associated impairment, the appellant’s psychological symptoms not being particularly stable before his employment with the respondent and his functional capacity not being favourable or stable before his employment with the respondent, that one half the appellant’s overall impairment was due to the appellant’s pre-existing condition, and not to the appellant’s injury, which he described as being an exacerbation of the appellant’s pre-existing condition.
In the Appeal Panel’s view, that reasoning has no error. The Appeal Panel considers that what the Medical Assessor was explaining was essentially that absent the appellant having the pre-existing condition, his impairment from his work injury would have been far less severe, and hence a part of the appellant’s present impairment is due to his pre-existing condition. The Medical Assessor was required to determine what portion of the appellant’s present impairment was due to the pre-existing condition. The appellant’s symptoms from his pre-existing bipolar disorder, borderline personality disorder and post-traumatic stress disorder were impairing his function before his injury. As a result of his injury, his symptoms worsened and so consequently did his function, that is his function became more impaired. The deduction to be made under s 323(1) involves clinical judgement by a Medical Assessor, which permits latitude of opinion.[3] The Appeal Panel considers that a deduction of greater than one-tenth was warranted, given the extent to which the appellant’s function was impaired by his illness prior to injury. The Appeal Panel considers, given the appellant’s lengthy history of psychiatric illness and its adverse affect on his function before his injury, there is no error in the Medical Assessor concluding that the portion of the appellant’s present impairment due to his pre-existing illness is half.
[3] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [91]-[92].
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor has muddled s 323(1) and s 323(2). The Medical Assessor has perhaps used infelicitous language, which the Appeal Panel considers is most likely due to the Medical Assessor trying to answer standard questions within the templated form for a Medical Assessment Certificate. Essentially what the Medical Assessor was trying to convey is that it is difficult and costly to determine the precise deduction to be made under s 323(1), which is more often than not the case with any impairment from a psychiatric injury. The Medical Assessor was saying that the proportion of the appellant’s impairment due to his pre-existing condition could not be assumed to be 10% because that would be at odds with the evidence, which evidence the Medical Assessor adequately detailed in the MAC.
The Appeal Panel finds no error in the deduction the Medical Assessor made under s 323 (1) of the 1998 Act.
Giving of advice
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor provided therapeutic advice to the appellant. What the Medical Assessor did was to explain to the appellant, in common language, the basic criteria for borderline personality disorder and his purpose in doing so was to try to elicit an appropriate history from the appellant regarding his psychiatric history. That is a common technique used by psychiatrist to establish a clinical history about a patient. The Medical Assessor made no error by doing this.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 February 2024 should be confirmed.
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