Galea v Secretary, Department of Communities and Justice - [2021] NSWPICMP 233

DETERMINATION OF APPEAL PANEL
CITATION:	Galea v Secretary, Department of Communities and Justice [2021] NSWPICMP 233
APPELLANT:	Marlene Galea
RESPONDENT:	Secretary, Department of Communities and Justice
APPEAL PANEL:	Member William Dalley Dr Michael Hong Professor Nicholas Glozier
DATE OF DECISION:	7 December 2021
CATCHWORDS:	WORKERS COMPENSATION- Allegation of demonstrable error and application of incorrect criteria with respect to method of assessment adopted by the Medical Assessor (MA); the appellant worker suffered admitted psychological injury in 2013; she was carrying out suitable duties in 2014 when she had a stroke and then ceased work; the appellant had a heart attack in 2015 and a further stroke in 2019; the strokes resulted in partial aphasia and other physical symptoms; the MA noted difficulties in assessing the appellant as she presented upon examination due to the effects of the strokes; the MA assessed whole person impairment (WPI) by considering evidence of the appellant’s functioning in each of the Psychiatric Impairment Rating Scale areas prior to the first stroke and adopted this as the level of impairment; Held - the ground of appeal, that the MA had failed to assess WPI as at the date of examination, was established; upon reassessment the Panel accepted that evaluation of each of the areas of function prior to the first stroke was appropriate as a first step with consideration then given to whether each of those areas assessed was likely to have continued to the date of examination and by then assessing impairment in the light of State Government Insurance Commission v Oakley and Secretary, New South Wales Department of Education v Johnson.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 September 2021 Marlene Galea lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 August 2021.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant, Ms Galea, suffered an accepted psychological injury (the subject injury) in the course of her employment as a disability support worker with the Department of Communities and Justice (the respondent) which arose out of a protracted assault by a patient and from the actions of Ms Galea’s co-workers. That injury is deemed to have occurred on 26 July 2013.[1]
[1] Galea v Secretary, Department of Communities and Justice [2020] NSWWCC 253 at [1].
Ms Galea was off work for some weeks and then attempted to return to work on a return to work program with restricted hours and a change of location. Ms Galea was diagnosed as having suffered a psychiatric injury and was referred to a psychiatrist, Dr Geoffrey Robinson, for treatment. Dr Robertson diagnosed post-traumatic stress disorder.
Ms Galea was working part-time when, on 26 June 2014 she sustained a left middle cerebral artery occlusion resulting in a cerebrovascular accident (a stroke). She developed expressive and receptive aphasia. Ms Galea was partially responsive to thrombolytic therapy. With rehabilitation her condition improved. She continued to receive treatment from Dr Robinson.
On 23 December 2015, following an encounter with a member of staff from her former employer, Ms Galea suffered stress induced cardiomyopathy.
At the request of her solicitors, Ms Galea was assessed on 4 February 2016 by Dr Robinson as suffering 24% whole person impairment (WPI) as a result of work-related psychological injury and was assessed on 22 March 2017 by a physician, Associate Professor Haber, as having 20% WPI. Associate Professor Haber reported that Ms Galea “had a significantly greater risk of suffering this cardiac condition had she not been employed in employment of that nature”.
Ms Galea was examined by Dr Graham Vickery, a Psychiatrist and Pain Management Consultant, at the request of the insurer, on 4 November 2013. Dr Vickery diagnosed
Ms Galea as suffering post-traumatic stress disorder as a result of a work incident.
Dr Vickery subsequently carried out a file review which led him to make a diagnosis of a less severe condition; an adjustment disorder. Dr Vickery again examined Ms Galea at the request of the insurer on 8 June 2016 and diagnosed amnesic disorder and communication disorder due to Ms Galea’s stroke. He did not assess any impairment as a result of the psychiatric injury.
On 18 January 2019 Ms Galea was assessed by a cardiologist, Dr Mark Herman, at the request of the insurer. Dr Herman also assessed Ms Galea as having 20% WPI in respect of cardiomyopathy resulting from workplace psychological injury.
In December 2018 Ms Galea’s solicitors made a claim for lump-sum compensation in respect of impairment arising from psychological/psychiatric injury and the cardiomyopathy.
In May 2019 Ms Galea suffered a further stroke. She was treated by a neurologist,
Dr O’Brien, and underwent weekly speech therapy, weekly physiotherapy, assistance with weekly cleaning and weekly shopping and/garden maintenance.
The insurer declined liability in respect of the claim based on Takotsubo cardiomyopathy and the psychological/psychiatric injury. In January 2020 Ms Galea’s solicitors filed an Application to Resolve a Dispute in the Commission claiming lump-sum compensation attributed to:
“psychological injury as a result of being assaulted by patients on two separate occasions and staff members attempting to infect the applicant with hepatitis by taking saliva from a heavily disabled boy’s mouth who was hepatitis positive, spreading it on the applicant’s cake in watching her eat it. After six weeks a colleague asked the applicant in front of other workers ‘do you have hepatitis yet?’ And revealed their actions. Consequential takotsubo cardiomyopathy arising on 24 December 2015 when the applicant suddenly saw an ex-colleague at a shopping centre”.
and, in the alternative, injury deemed to have occurred on 24 December 2015: “Tako Tsubo [sic] cardiomyopathy as a result of suddenly seeing an ex-staff member at a shopping centre on 24 December 2015 and being shocked surprised and extremely distressed”.
In the further alternative. It was alleged that the latter incident constituted a frank injury.
The respondent maintained denial of liability in respect of the cardiomyopathy and disputed that Ms Galea had suffered impairment as result of psychiatric injury.
Following a hearing of the dispute, the then Workers Compensation Commission determined on 27 July 2020:
“1.     The applicant suffered a psychological injury in the course of her employment with the respondent, with a deemed date of injury 26 July 2013.
2.     The injury referred to in (1) above is referred to an Approved Medical Specialist (AMS) to determine the degree of permanent impairment arising from the following:
Date of Injury: 26 July 2013 (Deemed)
Body systems referred: Psychological injury
Method of assessment: Whole person impairment.
3.     The documents to be referred to the AMS to assist with their determination are to include the following:
a)      This Certificate of Determination and Statement of Reasons;
b)      Application to Resolve a Dispute and attachments;
c)      Reply and attachments.
4.     The applicant suffered an injury on 24 December 2015 in the nature of Takotsubo cardiomyopathy arising out of employment with the respondent, to which employment was a substantial contributing factor.
5. The injury referred to in (4) above was a heart-attack injury within the meaning of section 9B of the Workers Compensation Act 1987.
6. The requirements of section 9B(1) of the Workers Compensation Act 1987 have been satisfied.
7.     The permanent impairment arising out of the applicant’s heart-attack injury is 20% whole person impairment.
8.     [Provides for payment of lump sum compensation in respect of the heart-attack injury suffered on 24 December 2015].”
In accordance with those findings the medical dispute relating to the extent, if any, of impairment arising from the psychological injury was referred to a Medical Assessor who examined Ms Galea initially on 16 April 2021 and further on 6 August 2021. Both examinations were conducted by audiovisual link. The Medical Assessor assessed Ms Galea as suffering 11% WPI as a result of the subject injury.

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 submitted that the Panel should undertake re-examination of the appellant. 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 as there was sufficient information available to the Panel to enable the Panel to determine the appeal and the Panel was of the opinion that any re-examination was unlikely to add to an understanding of the issues as it was not likely that Ms Galea would be able to provide further factual material relevant to assessment of impairment resulting from the subject injury.

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 MAC 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.
In summary, the appellant submits that the Medical Assessor has not assessed Ms Galea’s impairment at the date of examination but had assessed her at an earlier date, contrary to paragraph 1.6 of the Guidelines. The appellant further submitted that the Medical Assessor had failed to identify whether he regarded the cerebrovascular events in 2014 and 2019 as breaking the chain of causation with respect to impairment resulting from injury.
In reply, the respondent submits that the Medical Assessor had made an appropriate finding with respect to impairment on the day of examination and then had effectively assessed the extent of impairment resulting from the injury by considering the position prior to the first of the cerebrovascular events in 2014. The reasoning of the Medical Assessor, in finding that assessment on the day of examination could not reflect impairment arising from the injury and by assessing with regard to the position prior to the first stroke, necessarily implied that the Medical Assessor was satisfied that the cerebrovascular events in 2014 and 2019 broke the chain of causation.

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[2] 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.
[2] [2006] NSWCA 284

Assessment in accordance with the Guidelines

The appellant noted that the Medical Assessor had recorded:
“This is a very complex case. I am of the opinion that it is extremely difficult, if not impossible, to delineate the effect of Ms Galea’s work injury and its psychological impact upon her current clinical presentation. Therefore, I believe the most appropriate way of assessing whole person impairment is to try to assess Ms Galea’s level of impairment between the time of the subject work incident on 26 July 2013 and when she had her first stroke in June 2014”.
The appellant submitted that this approach was contrary to clause 1.6 of the Guidelines which relevantly provides:
“The following is a basic summary of some key principles of permanent impairment assessments:
a.    Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
·     whether the condition has reached Maximum Medical Improvement (MMI)
·     whether the claimant’s compensable injury/condition has resulted in an impairment
·     whether the resultant impairment is permanent
·     the degree of permanent impairment that results from the injury
·     the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these guidelines.
b.    Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”
The respondent submitted that on an appropriate interpretation of the Guidelines the approach taken by the Medical Assessor was in accordance with the Guidelines, submitting:
“It is clear the MA assessed the appellant as present on the day of assessment taking account the appellant’s relevant medical history and all available relevant information, in accordance with the Guidelines.”
The respondent submitted that, having made an assessment of Ms Galea as she presented upon examination, the Medical Assessor had correctly concluded that the appropriate approach was to assess Ms Galea as she would have presented prior to the first of her strokes in 2014.
The Medical Assessor recorded the circumstances of the subject injury. The Medical Assessor noted the difficulty occasioned by Ms Galea’s aphasia which resulted from the strokes that she had suffered subsequently to the subject psychological/psychiatric injury. The Medical Assessor adjourned the assessment to a further occasion when Ms Galea’s daughter was available to provide additional information and assist with communication.
The Medical Assessor noted that Ms Galea had suffered a stroke in June 2014 and had been in hospital undertaking rehabilitation for a number of months. He noted that, at the time,
Ms Galea said that she had “not been able to talk at all and was forgetful”. Ms Galea’s depressive symptoms worsened following that event. A second stroke occurred in May 2019 with significant effect on speech reported by Ms Galea.
The Medical Assessor noted that, following the second stroke, Ms Galea was receiving assistance from the National Disability Insurance Scheme and was undergoing weekly speech therapy, weekly physiotherapy and receiving assistance with weekly cleaning and weekly shopping as well as assistance with maintaining her property. He noted that she was taking an antidepressant, Valdoxan.
The Medical Assessor recorded present symptoms noting that Ms Galea reported being “very emotional and easily upset”. The Medical Assessor recorded that Ms Galea was “upset that she cannot talk will walk properly” and was “very worried about having another stroke or having another heart attack”.
Under the heading “summary of injuries and diagnoses” the Medical Assessor recorded:
“This is a very complex case. Ms Galea clearly had psychological symptoms of anxiety after the incident on the bus on 26 July 2013, in which she was attacked by 16-year-old boy and was in the bus for 45 minutes before she was able to be released, as well as finding out about a very unpleasant experience in which her food that she had placed in the fridge was contaminated by another residence spit which was put there by another worker. However, Ms Galea has been significantly affected by two serious cerebrovascular accidents in June 2014 and in May 2019. In my opinion, it is impossible to delineate currently the effects of the original work injury in her current presentation.”
The Medical Assessor noted the reports in evidence, observing that Dr Robinson, the treating psychiatrist, had observed “Marlene’s presentation has of course been dramatically different following a stroke, when she had a right side of weakness [sic] and had some problems with expressive and receptive dysphasia”. He noted that Dr Robinson had assessed impairment as Ms Galea had presented at the time of examination rather than prior to the first stroke.
The Medical Assessor noted Dr Vickery’s diagnosis and his observations that “there is no work-related diagnosable DSM-IV/DSM-5 psychiatric disorder or injury.” The medical assessor noted the other reports in evidence including the report of the later treating psychiatrist, Dr Rastogi, who reported to the treating general practitioner “complex injury… A primary psychological injury is work-related and has magnified and worsened following/enhancing her impairments and disabilities”.
The Medical Assessor concluded:
“These reports illustrate the complexity of this case, and as such I believe that an attempted assessment of the level of whole person impairment in the 11 months from July 2013 until June 2014 when she had her first stroke was the best approach to take in the circumstances.”
With respect to assessment the Medical Assessor explained:
“This is a very complex case. I am of the opinion that it is extremely difficult, if not impossible, to delineate the effects of Ms Galea’s work injury and its psychological impact upon her current clinical presentation. Therefore, I believe the most appropriate way of assessing whole person impairment is to try to assess Ms Galea’s level of impairment between the time of the subject work incident on 26 July 2013 and when she had her first stroke in June 2014.”
Adopting that approach, the Medical Assessor assessed Ms Galea as having 11% WPI. He made no deduction for any pre-existing condition or abnormality nor for any previous injury.
Section 322 (1) of the 1998 Act provides:
“1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”.
The Panel accepts that section 322 (1) of the 1998 Act requires assessment of the extent of impairment to be made in accordance with the Guidelines and paragraph 1.6a of the Guidelines requires that assessment of the worker to be made at the time of examination.

Whilst the respondent correctly points out that the Medical Assessor has made an assessment on the day of examination, that assessment was not an assessment of impairment at the time of examination but instead assessed Ms Galea’s level of impairment as arising from the subsequent strokes as well as the result of the subject injury. The Medical Assessor did not attempt assessment of the extent of WPI at the date of examination.
Accordingly, the Panel is satisfied that, in assessing Ms Galea in the period prior to her first stroke in June 2014 and then accepting that assessment as the level of impairment resulting from the injury, the Medical Assessor fell into error. That error was to fail to relate the degree of impairment assessed prior to the stroke to her presentation of the day of examination.
The Panel accepts that the procedure adopted by the Medical Assessor was an appropriate step in the assessment in accordance with the Guidelines, but the Guidelines require a further step which involved a consideration, based on the evidence available, as to how the level of impairment assessed at an earlier date was likely to have continued up to the date of examination and how and to what extent it has been affected by subsequent injury or injuries.
The Panel is satisfied that, to accept the assessment of the extent of impairment prior to the first stroke was to apply the criteria laid down by chapter 11 of the Guidelines at an inappropriate point of time, in the absence of consideration of whether that level of impairment was likely to have continued up to the time of examination in August 2021.

The Chain of causation

The appellant submitted that the Medical Assessor had “misapplied the law pertaining to causation i.e. he did not assess the appellant’s whole person impairment as caused or materially contributed to by the accepted injury (Bindah v Carter Holt Harvey Woodproducts [2013] NSWSC 1290)”. The appellant submitted that common law principles of causation were applicable, citing Secretary, New South Wales Department of Education v Johnson[3] (Johnson).
[3] [2019] NSWCA 321 (Johnson).
Further, the appellant submitted that the Medical Assessor had failed to consider and decide whether the strokes suffered by Ms Galea broke the chain of causation, citing State Government Insurance Commission v Oakley[4] (Oakley).
[4] (1990)10 MVR 570; [1990] Aust Torts Reports 81-003
In Johnson, Simpson AJA noted the decision in Oakley, saying [at 126]:
“In that case, the Chief Justice identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury (or, perhaps more accurately, the assessment of damages consequential upon an earlier injury). The observations were made in the context of proceedings at common law in which negligence is alleged, but are equally applicable to the assessment of the degree of permanent impairment resulting from injury under no-fault legislation such as the WC Act. His Honour identified the three categories as:
‘(1)   where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2)   where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and
(3)   where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include [sic] no element of aggravation of the earlier injury, the subsequent and further injury should be regarded as causally independent of the first.’.”
Emmett AJA in Johnson said (at [76]):
“76 More significantly, however, the defective procedure adopted by the Appeal Panel indicates that the Appeal Panel failed to inquire properly as to whether, by reason of the First Injury, the Second Injury was more serious than it would have been had the First Injury not occurred. If that were the case, it would follow that there was a causal connection between the First Injury and the degree of permanent impairment of the Worker at the time of the examination of the Worker by the AMS. The Appeal Panel erred in so far as it failed to make that enquiry.”
The Panel accepts that it is a necessary inference from the reasons provided by the Medical Assessor that he had concluded that the impairment suffered by Ms Galea, as disclosed on the day of examination, included no element of aggravation of the subject injury. However, the Panel notes that Dr Robinson, on whose assessment Ms Galea’s claim in respect of psychiatric injury was based, was of the view that the subject injury had played a causal role in the subsequent stroke.
Section 325(2)(c) of the 1998 Act requires a Medical Assessor to give reasons for the assessment and, in this respect, the Panel accepts that the Medical Assessor has not explained his reasons for disagreeing with the opinion of Dr Robinson as to the relationship between the subject injury and the first stroke in 2014 (noting that Dr Robinson’s assessment was made before the 2019 stroke).
It follows from the decisions in Oakley and Johnson that the Medical Assessor was required to assess not only whether the subject injury caused the subsequent strokes but also whether the effects of the subject injury had been made worse as a result of the subsequent strokes and whether the effects of the strokes had been made more severe because
Ms Galea had suffered the subject injury. The Medical Assessor did not do this. In this respect the Panel accepts that demonstrable error has been made out.

Assessment of permanent impairment resulting from the subject injury

The Panel is satisfied that error has been established with respect to the requirement to assess the level of impairment as at the date of examination and in respect of the failure to provide reasons for assessing Ms Galea on the basis that there was no causal relationship between the subject injury and the degree of impairment at the time of examination. It is therefore necessary for the Panel to review the material in evidence to determine the level of impairment resulting from injury in accordance with the Guidelines.
The facts in Johnson are somewhat different to the facts in the current case. In Johnson the worker suffered a further psychiatric/psychological injury whereas, in the present case, the further injury, the stroke suffered in June 2014, and the further injury constituted by the stroke in 2019 were both physiological injuries.
An undated report from Dr Gary Chen from Gosford Private Hospital Rehabilitation unit notes that Ms Galea suffered a stroke on 26 June 2014. Dr Chen said:
“Marlene has been experiencing significant work-related stress, was assaulted at work with head injury, seen mental health team for post-traumatic stress disorder, with stress related hypertension this may have been a minor contributor to her stroke. However no definite cause of stroke has been determined from hospital investigations.”
In his report dated 4 February 2016 Dr Robinson noted the comments of Dr Chen and said:
“I concur with Dr Chen that the opinion that the stress related hypertension, that is hypertension (high blood pressure) secondary to post-traumatic stress disorder, was a contributor to her stroke. As no other contributing factors were noted or found on investigation, the only contributor found to her stroke was PTSD related hypertension.”
The clinical records in evidence do not record any history of hypertension prior to the first stroke. The clinical records of the general practitioner include a diagnosis of post-traumatic stress disorder following the workplace incidents in July 2013 but no assessment of blood pressure is recorded and no medication relevant to hypertension is prescribed.
The Panel notes that Ms Galea was diagnosed by Dr Robinson, the treating psychiatrist, and by Dr Vickery in his report of 2013, as having suffered post-traumatic stress disorder as a result of the workplace incidents. Subsequently, in his report dated 8 June 2016, Dr Vickery said; “There was no mention of any present or prior symptoms of Post-Traumatic Stress Disorder” and diagnosed “amnesic disorder due to a medical condition” and “communication disorder – mixed expressive receptive language disorder”[5]. Dr Vickery stated “there is no psychiatric whole person impairment in relation to her employment. The whole person impairment is entirely due to the neurocognitive impairments arising from the CVA”.
[5] Reply page 43; MAP Brief page 308
The stroke in 2014 and its effects are set out in the report of Dr Dudley O’Sullivan, Neurologist, dated 16 June 2016.[6] Dr O’Sullivan examined Ms Galea on 16 June 2016 at the request of the insurer. Dr O’Sullivan reported:
“She told me on 26 June 2014 she was at home and had just had a shower. At the time she was alone. She had difficulty washing her hair in actual fact she fell in bathroom [sic]. She was confused and attempted to crawl into her bedroom but couldn’t. She had difficulty remembering precisely what happened next because of her confusion. Subsequently a friend came in and she was taken by ambulance to Gosford Hospital. Her treating neurologist was Dr O’Brien.
Subsequent investigations establish the fact that she had sustained a left hemispheric stroke with a distal MI occlusion and a large area at risk. She underwent thrombolysis and recanalisation on follow-up imaging. Despite this, she has a large area of her frontotemporal left hemisphere infarction.
It transpires that she was aphasic and had a right hemiparesis. She could move her right arm and leg, however to a minimal degree. There was improvement with regards to her right facial weakness as well as her right arm and leg weakness, but have major issue related to her speech with both receptive and expressive issues. She was placed on aspirin as well as Atorvastatin, because of her raised cholesterol.”
[6] Reply page 57; MAP brief page 322
Dr O’Sullivan noted that there was no history of hypertension and that Ms Galea had not been placed on any blood pressure medication.[7] Dr O’Sullivan reported; “I have already commented on the documentation by Dr Robinson, suffice to say that I do not think that her stroke relates to her post-traumatic stress disorder” and provided his reasons.
[7] Reply page 58; MAP brief page 323
Associate Professor Haber, who examined Ms Galea at the request of Ms Galea’s solicitors, discussed a possible relationship between Ms Galea’s heart attack and the subject injury but did not address the issue of relationship between the subject injury and the impairments arising from the stroke in June 2014.
The Panel accepts the view of the neurologist, Dr O’Sullivan, that the subject injury is not causally related to the stroke suffered by Ms Galea in June 2014. In the clinical opinion of the Medical Assessor members of the Panel, there is no evidence to suggest such a relationship both in respect of the first stroke and the further stroke in 2019.
However, it is necessary to consider the issues raised in Oakley to determine whether the level of impairment observed at examination is greater because of aggravation of the subject injury or whether the impairment existing at the time of examination included no element of aggravation of the subject injury.
The Panel take into account the history provided to the Medical Assessor upon examination as recorded in the MAC together with Ms Galea’s statements and the medical reports in evidence.
In her statement dated 18 September 2015 Ms Galea noted the circumstances of her injury. She said that she had attempted a return to work and was performing a limited role until she said; “I suffered a stroke in June 2014 and since that time I have been unable to work”.
Ms Galea said that she had been prescribed antidepressants but current medication was “only for my stroke”.
In her statement dated 31 October 2019 Ms Galea said that she was still experiencing symptoms from her psychological injury including PTSD when the stroke happened and that she had been on suitable duties at that time. Ms Galea said that the stroke had left her with impaired speech, that she had regained a reasonable ability to talk but had difficulty reading and writing. She confirmed that she had never been treated for high blood pressure.
Ms Galea said:
“My PTSD, depression and psychological symptoms from my work injury continued after the stroke. I still had intrusive thoughts about work and how I was treated. I felt down a lot and cried frequently. Most symptoms never fully ceased. I still can’t get over the fact that my workmates tried to give me hepatitis and so many people knew and didn’t stop them. Having depression made dealing with the debilitating effects of the stroke even harder.”
Ms Galea commented:
“The effects of the stroke have certainly been very frustrating and I have overcome a lot of the effects through rehabilitation. I am disappointed that I can’t read or write any more. The stroke wasn’t anyone’s fault. These things just happen although it frustrates me at times it doesn’t plough my mind and make me feel depressed.”
The Medical Assessor recorded:
“Ms Galea reports being very emotional and easily upset. She is upset that she cannot talk well all walk properly. She said she is not sleeping well and suffers with frequent headaches. She is very worried about having another stroke or having another heart attack. She is worried she will have a stroke and because of this fear she limits her time with her children or going out because she fears having a stroke when doing these activities. She is particularly worried because in 2015 when she had a heart attack she was with her grandchildren at the time. Ms Galea said her appetite is good and she eats frozen dinners. She said she cannot taste food anymore since the first stroke because of neurological damage. She said she stays at home. She said her family visited her regularly at her home. She said that she is very worried about the Covid situation. She is afraid of having the Covid vaccine because of her fear of having another stroke. She said that if she sees someone from a previous workplace in the Department of Corrective Services [sic], she would leave the shopping centre and would become very obsessed and anxious about the traumatic incidents that had occurred to her at work.”
This account of presenting complaints reasonably closely reflects the complaints recorded by Dr Vickery in his report of 1 February 2019. Dr Robinson recorded observations in respect of each of the six PIRS areas of function. Dr Robinson assessed Ms Galea as class 5 (total impairment) in respect of “employability”, class 4 (severe impairment) in respect of “concentration, persistence and pace”, class 3 (moderate) impairment in respect of “self-care and personal hygiene” and “social and recreational activities” and class 2 (mild impairment) in respect of “travel” and “social functioning”. Dr Robinson accepted that the stroke resulted from the subject injury and accordingly included the effects of the first stroke in his assessment of impairment.
The symptoms and problems within the areas of function suggest that the strokes suffered by Ms Galea have had a substantial effect on her ability to function. The strokes in 2014 and 2019 were not caused by the subject injury for the reasons noted above. The Panel accepts that it needs to consider whether the increase in the level of impairment with respect to the areas of function is causally related to the subject injury and whether the present level of impairment in the respective areas of function would be less if Ms Galea had not suffered the subject injury in July 2013.
The level of impairment is assessed in accordance with chapter 11 of the Guidelines. That chapter mandates assessment with regard to performance within the six areas of function noted above. It is not a measure of the level of mood, anxiety or depression save to the extent that these impact upon each of the areas of function.
The Medical Assessor made a determination based on his understanding of Ms Galea’s capacity within each of the areas of function described in the Psychiatric Impairment Rating Scale (PIRS) and outlined in Table 11.1 at the time immediately preceding Ms Galea’s first stroke. As noted above that finding did not, of itself, relate to the task be performed pursuant to Paragraph 1.6 of the Guidelines which required assessment as at the date of examination.
However, the Panel is satisfied that, in the difficult circumstances of this case, assessment of Ms Galea’s capacity to function prior to the stroke was an appropriate step, provided that the capacity or impairment then assessed was able to be related to the probable level of impairment resulting from the subject injury at the date of examination.
In reassessing Ms Galea, the Panel has considered each of the assessments of the Medical Assessor and compared these with the overall assessment of impairment carried out by
Dr Robinson. The Panel accepts that the assessment of Dr Robinson is supported by the evidence of Ms Galea’s presentation on examination by the Medical Assessor.
It is necessary to address each of the areas of function to examine whether impairment within each area relates to the subject injury or to the effects of the physiological and emotional impairment arising from the strokes.
Dr Robinson assessed Ms Galea as having moderate impairment with respect to “self-care and personal hygiene”. He set out his reasons in the PIRS table accompanying his report.
Dr Robinson noted that Ms Galea was unable to live independently without having regular support and would need assistance from a community support worker. The Medical Assessor noted that, since she suffered the stroke, Ms Galea has been receiving that assistance but the requirement for that assistance does not arise in any way from the subject injury but is purely the result of the first stroke.
Based on the information supplied to the Medical Assessor by Ms Galea and her daughter upon examination and the history recorded in the medical reports from 2013, the Medical Assessor’s assessment of Ms Galea as having no deficit or a minor deficit attributable to the normal variation in the general population (Class 1) was appropriate prior to the first stroke.
Dr Robinson assessed Ms Galea as having moderate impairment with respect to “social and recreational activities”. In assessing Ms Galea’s impairment in this area of function prior to the first stroke, the Medical Assessor assessed a similar level of impairment.
With respect to the area of function “travel”, Dr Robinson assessed Ms Galea as suffering mild impairment (Class 2) noting that Ms Galea was able to drive herself to familiar places but needed a rest after the stroke, and was unable to drive distances without a support person. The Medical Assessor assessed Ms Galea as having Class 1 impairment with respect to “travel” noting that Ms Galea reported no problems with her ability to drive wherever she needed to go prior to her stroke in June 2014. That assessment is supported by Ms Galea’s own statement that she was driving a long-distance to attend her workplace when she was working suitable duties.
With respect to “social functioning” Dr Robinson assessed Ms Galea as moderately impaired (Class 2). The Medical Assessor agreed that this was also an appropriate assessment of
Ms Galea prior to June 2014.
Dr Robinson assessed Ms Galea as having severe impairment (Class 4) with respect to “concentration, persistence and pace”. Dr Robinson explained:
“I note that Ms Galea is not able to read much these days. She is able to look at TV, she explained, like a movie, ‘a little bit’. She does not understand it at all, she elaborated, unless it is an old movie she had watched before her stroke. I note that she has difficulty reading; she has trouble following simple instructions. I note she would not be able to live independently without support.”

The Medical Assessor assessed Ms Galea as having moderate impairment (Class 3) with respect to “concentration persistence and pace”. He explained that Ms Galea remembered finding it “very difficult to concentrate at that time”, i.e. prior to the stroke.
Dr Robinson notes that there is a contrast between Ms Galea’s ability to concentrate prior to her stroke and her presentation of the time of examination in 2016. He notes that she is unable to follow a movie unless it is one that she had seen before her stroke.
In the area of function, “employability”, Dr Robinson assessed total impairment (Class 5) noting that Ms Galea “cannot work at all”. The Medical Assessor assessed Ms Galea as having moderate impairment (Class 3) prior to the stroke. That assessment appears correct in the light of the fact that Ms Galea was in fact working in a part-time role up to the time of her stroke.[8]
[8] Statement 18 September 2015; paragraphs 63 and 65; MAP Brief page 94
A consideration of the respective assessments of the level of impairment prior to the first stroke and Ms Galea’s subsequent presentation leads to the following conclusions:
(a)    Ms Galea had no deficit or “minor deficit attributable to the normal variation in the general population[9]” in the areas of “personal hygiene” and “travel” prior to the first stroke. Her impairment thereafter is entirely attributable to the two subsequent strokes. Those later events do not represent an aggravation of any pre-existing impairment in the areas of function, personal hygiene and travel. The conclusion is that Ms Galea’s current level of impairment in respect of these areas is entirely attributable to the strokes that she suffered in 2014 and 2019;
(b)    Ms Galea continues to suffer moderate (Class 3) impairment at the same level as prior to the first stroke in respect of the area of function “social and recreational activities”. She is currently to be assessed as suffering moderate (Class 3) impairment in respect of this area of function for the reasons set out by the Medical Assessor and Dr Robinson in their respective assessments which the Panel accept;
(c)    Ms Galea continues to suffer mild (Class 2) impairment at the same level as prior to the first stroke in respect of the area of function, “social functioning” and is appropriately assessed as such in respect of that area of function for the reasons set out by the Medical Assessor and Dr Robinson in their respective assessments;
(d)    prior to her first stroke, Ms Galea suffered moderate impairment (Class 3) in the area of function, “concentration persistence and pace” as assessed by the Medical Assessor. It is apparent that this area of function has been aggravated by the subsequent strokes. The PIRS table prepared by Dr Robinson in respect of this area of function notes this increase. The Panel accepts that, in this area of function, the subsequent strokes have aggravated the impairment in respect of this area of function and Ms Galea is currently to be assessed as suffering severe impairment (Class 4) as a result of the subject injury;
(e)    with respect to the area of function, “employability”, the Medical Assessor assessed Ms Galea as having a moderate impairment prior to her first stroke. The Panel accepts that the subsequent strokes have rendered Ms Galea unemployable, that is “unable to work at all[10]”. However that level of impairment does not represent an aggravation of a pre-existing level of psychological impairment. The strokes have imposed on Ms Galea a level of physical and neurological impairment that is totally independent of the impairment resulting from the subject injury in this area of function and it is probable that, if Ms Galea had been in normal health, the neurological effects of the two strokes of themselves would have rendered her unemployable, and
(f)    had the strokes not occurred, it is probable, as a matter of clinical judgement, that with ongoing medication and the appropriate level of treatment, Ms Galea would have maintained her pre-stroke level of impairment up to the present and she is appropriately assessed as having moderate impairment (Class 3) respect of this area of function as a result of the subject injury.
[9] Guidelines table 11.1 – Class 1
[10] Guidelines table 11.6 – Class 5
In summary, the Panel finds that Ms Galea, as a result of the subject injury, had no assessable impairment in respect of the areas of function “self-care and personal hygiene” and “travel” prior to her strokes. The strokes represent new events which break the chain of causation and which impose levels of impairment in areas of function that were not previously impaired or impaired only to a minor extent attributable to the normal variation in the general population.
The Panel finds that, as a result of the strokes, Ms Galea suffered aggravation of her level of impairment in the area of “concentration persistence and pace” and, in accordance with the decisions in Oakley and Johnson, it is appropriate to assess the current level of function in that area as resulting from the subject injury.
The Panel is satisfied that, in the area of “employability”, the two strokes constitute a break in the chain of causation and do not represent an aggravation of an impairment resulting from the subject injury. Ms Galea’s current level of impairment has not been made worse or increased by any impairment arising from the subject injury and is now wholly attributable to the effects of the two strokes which included aphasia and inability to read and write.
Although Dr Robinson made his assessment in 2016, it does not appear to the Panel that the subsequent stroke in 2019 has materially affected the assessment of the respective areas of function and the Panel is satisfied that the levels of impairment assessed by Dr Robinson in 2016 would be likely to continue to the present.
For these reasons the Panel assesses Ms Galea as suffering the following levels of impairment as a result of the subject injury:
(a)    self-care and personal hygiene                 Class 1
(b)    social and recreational activities               Class 3
(c)    travel  Class 1
(d)    social functioning  Class 2
(e)    concentration persistence and pace         Class 4
(f)    employability  Class 3
The list of class scores in ascending order is:

1

1

2

3

3

4

with a median class value of three (after rounding) and an aggregate score of 14.

Accordingly, the Panel is satisfied that Ms Galea suffers 13% WPI as a result of the subject injury[11].
[11] Guidelines Table 11.7
For these reasons, the Appeal Panel has determined that the MAC issued on 16 August 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Patrick Morris and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Psychiatric/psychological	26 July 2013 (deemed)	Chapter 11 Tables 11.1 to 11.67	Not applicable	13%	Nil	13%
Total % WPI (the Combined Table values of all sub-totals)					13%

Mr William Dalley
Member
Dr Michael Hong

Medical Assessor

Professor Nick Glozier

Medical Assessor

7 December 2021