Fuller v Secretary, Ministry of Health (Justice & Forensic Mental Health Network)

[2023] NSWPICMP 568

DETERMINATION OF APPEAL PANEL
CITATION:	Fuller v Secretary, Ministry of Health (Justice & Forensic Mental Health Network) [2023] NSWPICMP 568
APPELLANT:	Katharine Louise Fuller
RESPONDENT:	Secretary, Ministry of Health (Justice & Forensic Mental Health Network)
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	13 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s (MA) rating of the appellant worker’s impairment in psychiatric impairment rating scale (PIRS) category of travel correct; whether the MA was correct to make a deduction under section 323(1) for a proportion of the appellant’s permanent impairment that was due to an earlier injury; Appeal Panel held MA’s rating of appellant’s impairment in travel was open to him and therefore correct and that the Medical Assessor was correct to make a deduction under section 323(1); Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 31 August 2023 Katharine Louise Fuller, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Davis, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 August 2023.

2. 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.

3. 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 ground(s) of appeal on which the appeal is made.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

1. The appellant commenced employment as a nurse with NSW Health in November 2018. She was stationed at the Shortland Correctional Centre in Cessnock. The Secretary of Minister of Health, the respondent, is her employer in accordance with ss 25(3) and 26(1) of the Government Sector Employment Act 2013. Due to incidents that occurred in her employment after late 2019 the appellant suffered a psychological injury.

2. Consultant psychiatrist Dr Martin Allan examined the appellant on 18 January 2023 at the request of her solicitors. In a report dated 18 January 2023 Dr Allan advised her solicitors that he diagnosed the appellant had post-traumatic stress disorder post traumatic disorder, a major depressive disorder and an alcohol use disorder. He noted that the appellant had earlier suffered post traumatic disorder due to an incident that occurred in 2017 when she was employed at the Westmead Hospital. Dr Allan said that the appellant’s employment with the respondent aggravated the appellant’s post traumatic disorder and “alongside this aggravation she developed a new onset major depressive disorder”. Dr Allan advised he assessed the appellant had 24% whole person impairment (WPI) from her injury. He said that her “pre-existing % impairment” was 0%.

3. On 27 January 2023 the appellant’s solicitor wrote to the respondent’s insurer attaching a Permanent Impairment Claim Form and Dr Allan’s report. The claim form revealed that the appellant sought compensation from the insurer in the amount of $65,050 for 24% WPI from her injury.

4. The respondent’s solicitors then arranged for the appellant to be examined by consultant psychiatrist Dr Ashwinder Anand on 31 March 2023. Dr Anand provided a report to the respondent’s solicitors on 14 April 2023 relating to that examination. It is obvious from his report that he had earlier examined the appellant in November 2020 on behalf of the respondent and it seems from his report of 14 April 2023 that the history that he provided therein was largely an update of the history he obtained on the earlier occasion, which was not detailed in his report of 14 April 2023. His report on his earlier examination of the appellant is not before the Appeal Panel, and consequently the history he obtained is not before the Appeal Panel, nor was it before the Medical Assessor.

5. Dr Anand in his report of 14 April 2023 advised the respondent’s solicitors that the respondent met the criteria for post traumatic disorder, major depressive disorder and alcohol use disorder. He noted that the appellant had previously been diagnosed with post traumatic disorder in 2017 when she was assaulted by a patient of Westmead Hospital. He advised that in his opinion the appellant’s injury was an aggravation of a pre-existing post traumatic disorder, and major depression. He advised he assessed the appellant had 22% WPI. In terms of assessing the appellant’s permanent impairment from the injury she suffered in her employment with the respondent, Dr Anand deducted 2% WPI for “pre-existing impairment”, and hence he assessed the appellant had 20% WPI from her injury.

6. On 27 April 2023 the respondent’s solicitors wrote to the appellant’s solicitors advising them that the respondent offered to pay the appellant $52,450 for 20% WPI from her injury.

7. The appellant then instituted proceedings in the Personal Injury Commission (Commission) seeking determination of her claim against the respondent to be paid for compensation under s 66 of the Workers Compensation Act 1997.

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]

   [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

3. In the prescribed form by which the appellant made her appeal against the MAC she indicated that she did not seek to rely on additional information. However, attached to her appeal was a statutory declaration she made on 31 August 2023 comprising two paragraphs. In the first she declared the date upon which she was born. In the second she declared as follows:

   “I am aware that the Personal Injury Commission Medical Assessor Dr Alan Doris in his medical assessment certificate dated 3 August 2023 assessed my PIRS category travel as Class 2 being a mild impairment. I cannot travel away from my own residence without a support person.”

4. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.

5. Clause 17 of Procedural Direction PIC7 requires a party who seeks an Appeal Panel receive evidence under s 328(3) of the 1998 Act, to provide submissions relating to why the evidence is additional relevant information or fresh evidence and why the evidence was not available or could not reasonably have been obtained by the party prior to the medical assessment. The appellant has not provided any submissions on those matters. In any event, whilst the statutory declaration was made subsequent to the medical assessment certificate being issued, the content of it was evidence that it was available to the appellant prior to the medical assessment. That is to say, the appellant could have made her statutory declaration before the medical assessment occurred saying that she could not travel without a support person and declaring when her date of birth is. Consequently, the Appeal Panel cannot receive the evidence under s 328(3) of the 1998 Act.

EVIDENCE

1. 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

1. The appellant’s appeal relates to, firstly, the Medical Assessor’s rating of her impairment in the Psychiatric Impairment Rating Scale (PIRS) for travel and, secondly, the Medical Assessor finding that a proportion of her permanent impairment was due to a pre-existing condition and making a deduction under s 323(1) of the 1998 Act on account of that.

2. The history the Medical Assessor obtained relevant to those matters included the appellant suffering an injury when working as a nurse at Westmead Hospital in 2017. The Medical Assessor reported that the incident by which the appellant suffered that earlier injury caused the appellant both physical problems “as well as a mental injury”. The Medical Assessor noted that after that injury, the appellant initially came under the care of psychiatrist Dr Malik and then Dr Bhandari and that she was diagnosed as having developed post traumatic disorder, major depressive disorder and alcohol use disorder.

3. The Medical Assessor also noted that following the appellant’s earlier injury in 2017 the appellant had “some symptomatic improvement”.

4. The Medical Assessor said that the incidents that occurred at the correctional facility during the appellant’s employment with the respondent “led to an acute exacerbation of a pre-existing mental health problem”.

5. The Medical Assessor’s diagnosed the appellant had chronic post traumatic disorder, chronic major depressive disorder which was severe but without psychosis, and alcohol use disorder.

6. The Medical Assessor rated the appellant’s impairment in travel as Class 2, that is a mild impairment. His reasons were as follows:

   “Ms Fuller is able to attend face-to-face appointments with her psychologist and GP and will travel by taxi if she is not driven to these by her wife. She last drove herself approximately one year ago and discontinued driving because of excessive anxiety. Ms Fuller will go to her pharmacy more than once per week to pick up her medication, though this is with her wife as a support person. She travelled with her wife and son to Queensland at the end of last year.”

7. The Medical Assessor noted that his assessment of the appellant’s impairment in travel differed from the assessment that Dr Allan had made, which was Class 3, that is a moderate impairment. The Medical Assessor indicated, when comparing his assessment with the assessment Dr Allan had made, that he considered the appellant’s impairment was mild because the appellant is able to attend appointments in person and will travel by taxi if the appellant’s wife is not available to take her.

8. The Medical Assessor also observed that Dr Anand had assessed the appellant’s impairment in travel as mild.

9. The Medical Assessor recorded that the median class of his scores of his ratings of the appellant’s impairment in all PIRS categories was 3 and that the aggregate of his scores was 18, which converted to 22% WPI.

10. The Medical Assessor considered that a proportion of the appellant’s permanent impairment was due to the pre-existing conditions he considered the appellant had following her earlier injury in 2017, namely post traumatic disorder, major depressive disorder and alcohol use disorder. He provided the following explanation for his view:

    “Ms Fuller had ongoing symptoms arising due to the injury in 2017 at the time of the incidents at Justice Health in early 2020 to which this claim relate. Though she was in employment and recalls functioning well in her family and social life, the report from treating psychiatrist Dr Bhandari in September 2019 describes significant symptoms including avoidance with hypervigilance, and that Ms Fuller’s quality of life including personal relationships and social activities were adversely affected.”

11. The Medical Assessor also noted within the MAC that when Dr Bandari reviewed the appellant in March 2020, following the incidents that occurred in her employment with the respondent at the Cessnock Correctional Facility, Dr Bandari found that there had been a significant deterioration in the appellant’s mental health and a recurrence of symptoms associated with the incident of 2017. The Medical Assessor noted that Dr Bandari’s opinion was that the recent deterioration of the appellant’s condition was directly related to her original injury at Westmead in 2017.

12. The Medical Assessor considered that it is difficult or costly to determine the proportion of the appellant’s impairment that was due to her pre-existing condition and assumed in accordance with s 323(2) that the deductible proportion under s 323(1) of the 1998 Act was one-tenth. Consequently, the Medical Assessor certified the appellant had 20% WPI from her injury.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that the Medical Assessor misinterpreted her ability to travel away from her residence without a support person. The appellant submitted that she is unable to travel away from her residence without a support person and in that circumstance her impairment ought to have been rated as Class 3.

3. The appellant further submitted that it was neither difficult nor expensive for the Medical Assessor to have carried out a PIRS assessment of the appellant’s medical condition immediately prior to her work injury. The appellant submitted that her WPI assessed under PIRS immediately prior to her work injury would have been “Class 1” with an aggregate of not more than 9 and hence a WPI of 1%. The Appeal Panel understands this submission of the appellant to mean that at the time immediately prior to her work injury she had a mild impairment in most PIRS categories, and possibly a moderate impairment in some of the categories, such that her aggregate scores in all the categories, if assessed immediately before the events that led to her injury, would have been 9. The Appeal Panel also understands the appellant’s submission is that the Medical Assessor erred by deducting 2% WPI rather than 1% WPI under s323(1) of the 1998 Act from the 22% WPI he assessed was the appellant’s overall permanent impairment.

4. In reply, the respondent submitted that it was open to the Medical Assessor to assess the appellant’s impairment in travel as Class 2. The respondent submitted that there was clear evidence the appellant had a pre-existing psychological condition. The respondent submitted that there was no medical evidence relating to appellant’s psychological condition immediately before her work injury with the respondent other than the appellant’s report of her psychological condition. The respondent submitted that in the absence of such medical evidence it was appropriate for a one-tenth deduction to be made.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. Table 11.3 of the Guidelines relates to the PIRS category for travel. The examples provided in that for a Class 2 and Class 3 impairment 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.

1. The Appeal Panel considers that the matters upon which the Medical Assessor relied to rate the appellant’s impairment in this category as Class 2 correlate best with the examples provided for that class, rather than Class 3.

2. The Medical Assessor’s reasons for his ratings reveal that the appellant can travel by taxi to a medical appointment without a support person. The history Dr Allan obtained, who examined the appellant around six months prior to the Medical Assessor’s examination of the appellant, did not include that and consequently Dr Allan did not factor that circumstance into his assessment of the appellant’s impairment with respect to travel.

3. The Medical Assessor was entitled to rely upon the history he obtained when rating the appellant’s impairment.[2] In the Appeal Panel’s view based on the history the Medical Assessor obtained it was open to him to make the assessment of the appellant’s impairment with respect to her capacity in travel that he did. The Medical Assessor took into account all relevant matters.

   [2] Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [65]-[71]; Ferguson v State of NSW [2017] NSWSC 887 at [23].

4. The Appeal Panel also considers that the Medical Assessor was correct to make a deduction under s 323(1) of the 1998 Act for a proportion of the appellant’s permanent impairment that was due to her pre-existing conditions and to assume, in accordance with s 323(2), that the deduction to be made was 10%.

5. Insofar as the appellant submits that the Medical Assessor erred by not determining what her impairment from her pre-existing condition was immediately before she suffered her work injury with the respondent and deducting that impairment from the permanent impairment he assessed she had at the time of assessment, the Appeal Panel does not accept that submission. The requirement of s 323(1) of the 1998 Act is to determine at the time the assessment is done the proportion that the pre-existing condition or previous injury then makes to the permanent impairment of a worker from the subject injury. To adopt an approach that would require a Medical Assessor to deduct from a worker’s permanent impairment from a work injury what impairment the worker had immediately before the worker suffered the work injury would be contrary to that requirement of s 323(1).[3]

   [3] Marks v Secretary, Department of Communities and Justice, (No.2) [2021] NSWSC 616 at [29]; Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 at [54]

6. The appellant’s injury was an aggravation or worsening of the injury she previously suffered in 2017 in different employment. Without her having suffered that earlier injury her current psychological functioning, and her consequent impairment, would not be nearly as severe. Hence, her earlier injury has made a difference with respect to the degree of permanent impairment she has from her current injury. In that circumstance it was appropriate for the Medical Assessor to make a deduction under s 323(1) of the 1998 Act. As said, that deduction had to be made based on the contribution the appellant’s earlier injury made to the appellant’s permanent impairment from her work injury at the time of assessment and not at the time she suffered injury.

1. The Appeal Panel discerns no error in the deduction the Medical Assessor’s made under s 323(1) of the 1998 Act.

2. For these reasons, the Appeal Panel has determined that the MAC issued on 3 August 2023 should be confirmed.