Godfrey v Aldi Stores (A Limited Partnership)
[2024] NSWPICMP 370
•6 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Godfrey v Aldi Stores (A Limited Partnership) [2024] NSWPICMP 370 |
| APPELLANT: | James Godfrey |
| RESPONDENT: | Aldi Stores (A Limited Partnership) |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 6 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; worker claims demonstrable errors in assessment of Psychiatric Impairment Rating Scale Categories on concentration, persistence and pace and employability, and a one-tenth deduction for a pre-existing illness; reference to Ferguson v State of NSW, Jenkins v Ambulance Service of NSW and Fire & Rescue NSW v Clinen; Held – demonstrable error in assessment of concentration, persistence and pace, but not employability; no demonstrable error in application of section 323; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 April 2024 the appellant, James Godfrey, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 March 2024.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
James Godfrey, the appellant worker, sustained a psychological injury in the course of his employment with the respondent employer, Aldi Stores (A Limited Partnership) with a deemed date of injury of 12 June 2018.
Mr Godfrey provided a statement dated 19 August 2023. He states that he commenced employment as a retail assistant with the respondent in 2010 and was promoted to the position of store manager in about 2012. He states that he “had no issues at work” until September 2017 when a new employee began to create problems for other employees. Mr Godfrey states that he requested assistance from his supervisor, but no action was taken by management and the new employee began to stalk and threaten Mr Godfrey. He states that he began to be stressed, anxious and depressed.
Mr Godfrey states that his psychological symptoms worsened when he was summoned to Sydney to submit a report regarding this employee. He states that he attempted to commit suicide by an overdose of medication and was admitted to John Hunter Hospital.
Mr Godfrey states that he resigned his employment with the respondent after this overdose incident because he could no longer function due to the severity of his psychological symptoms.
Mr Godfrey states that he has had more than five jobs within a period of three years since he ceased employment with the respondent. He states that he has been unable to remain employed because he no longer possesses the same capacity to work at the level which he did prior to his psychological injury. He states that he has pushed himself to work because he has four children and is the sole provider for his family.
Dr Nagesh, consultant psychiatrist, provided a report at the request of Mr Godfrey’s lawyers dated 28 September 2022. Dr Nagesh assessed Mr Godfrey as having 18% whole person impairment (WPI) as a result of his psychological injury.
Dr Nagesh assessed moderate impairment (Class 3) for concentration, persistence and pace on the basis that Mr Godfrey’s attention and concentration remains very poor, and Mr Godfrey struggles to maintain his concentration for more than 10 minutes.
Dr Nagesh recorded that Mr Godfrey had changed five jobs in three years and is in constant fear and anxiety that he will lose his job. He recorded that Mr Godfrey had an increased rate of sick leave and was sacked from two of the four jobs which he has had since leaving the employment of the respondent. He recorded that Mr Godfrey was now working five days a week as a manager in a tobacco company.
Dr Nagesh assessed moderate impairment (Class 3) for employability despite Mr Godfrey working more than 20 hours per week because this is a big struggle for Mr Godfrey due to being constantly anxious, having panic attacks, and under constant fear that he might lose his job at any time.
Dr Nagesh recorded that Mr Godfrey denied any previous history of mental illness and did not make a deduction for any pre-existing condition.
Dr Paisley, consultant psychiatrist, provided a report at the request of the respondent dated 17 May 2023. Dr Paisley assessed Mr Godfrey as having 7% WPI as a result of his psychological injury.
Dr Paisley assessed mild impairment (Class 2) for concentration, persistence and pace on the basis that Mr Godfrey is able to work full time despite complaining of concentration difficulties, and Dr Paisley found no overt evidence of gross concentration difficulties during his interview with Mr Godfrey.
Dr Paisley recorded that Mr Godfrey had worked in five different jobs since returning to work following his injury, being at a tobacco company, mattress company, United Petroleum, Kentucky Fried Chicken and Beaurepairs. Mr Godfrey had been in his current role at Offficeworks for about six weeks, but he had called in sick on six or seven occasions because of his mental health. Dr Paisley recorded that Mr Godfrey was working in lesser roles than with the respondent and his earnings were currently about $50,000 less per annum when compared to his earnings with the respondent.
Dr Paisley assessed moderate impairment (Class 3) for employability because Mr Godfrey has struggled to work full time in a lesser role which is not as demanding as his employment with the respondent, and his attendance and performance at work is poor.
Dr Paisley recorded that Mr Godfrey denied any previous history of mental illness. Dr Paisley did not make any deduction for pre-existing impairment because there was no evidence of a pre-existing condition or impairment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because even though the Appeal Panel found one demonstrable error, there was enough material available to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The Medical Assessor notes that Mr Godfrey provided vague information when asked about specific mental health issues that he has struggled with since 2017 and the treatment he has received. The Medical Assessor also records that Mr Godfrey was vague regarding ongoing illicit drug and alcohol abuse over the last six years.
The Medical Assessor records that Mr Godfrey has had six jobs over the last six years since he stopped working with the respondent, and that his longest job has been for one year. He records that Mr Godfrey has been working as an auditor with 7-11 for the last three months for 25 hours per week, although Mr Godfrey has been provided with a contract for a full time job. The Medical Assessor records on “further clarification” that Mr Godfrey was vague about his current work commitments. The Medical Assessor records in that part of the MAC headed “Presentation Over Last Six Months” that Mr Godfrey has had two formal warnings due to his work performance and ongoing leave.
The Medical Assessor concludes:
“On further diagnostic clarification, it is evident Mr Godfrey has continued to struggle with a mix of anxiety and depressed mood in the context of past work issues. He has found it difficult to hold onto a single job. He has continued to receive input from Mental Health Services, although he was unable to provide the exact details.”
The Medical Assessor records that Mr Godfrey denied in the assessment any significant mental health input before 2017. However, the Medical Assessor writes that clinical records from Mr Godfrey’s general practitioners indicate that he had been receiving antidepressant treatment trials and psychological input since around 2012, and possibly before that.
The Medical Assessor refers to an entry made by Dr Karen on 14 December 2012 which records panic attacks over the previous year, that Mr Godfrey preferred not to go to counselling, but that Lexapro was prescribed for him.
The Medical Assessor refers to an entry made by Dr Long on 7 August 2015 (although it would appear to be 7 October 2015 from the clinical notes) which records Mr Godfrey suffering depression and anxiety since he was 18 years of age. There is also a record of Mr Godfrey having low moods for up to two hours every day and having panic attacks twice a week which he cannot control.
The Medical Assessor refers to an entry made by Dr Whitty on 22 September 2016 which includes: “Drug dependence”, and that Mr Godfrey “takes Benzos, Valium, Xanax, weed daily, cocaine, stimulants”.
The Medical Assessor refers to a report from a psychologist dated 2 November 2015 which records that Mr Godfrey’s depressive symptoms began after an injury in high school which resulted in the loss of a football career, and that Mr Godfrey has never felt happy in an enduring sense since that time.
The Medical Assessor writes in regard to Mr Godfrey’s mental state examination:
“Psychomotor retardation was evident from the start of the assessment. Mr Godfrey was vague in providing information about his mental health issues. He spoke in a soft tone with significant pauses.”
The Medical Assessor diagnoses Mr Godfrey as having a persistent depressive disorder, and also an alcohol use disorder and illicit substance abuse in partial remission.
The Medical Assessor makes an assessment of 13% WPI. The following reasons were given by the Medical Assessor in regard to the two categories which are now challenged by Mr Godfrey:
· Concentration, persistence and pace – Class 1: no or minor deficit. Mr Godfrey struggles with his concentration, but he can complete tasks assigned to him at work. Mr Godfrey can concentrate for four to five hours but then needs to take a break. Mr Godfrey struggles with his motivation to attend to any household chores.
· Employability/Adaptability – Class 2: mild impairment. Mr Godfrey’s current job has less organisation and less responsibility. Mr Godfrey is able to manage his work commitment, but he does take sick leave on some days when he is struggling with mental health issues, and he is not sure how long would be able to continue in his current job.
The Medical Assessor makes a one-tenth deduction of WPI due to a pre-existing mental illness of persistent depressive disorder. The Medical Assessor writes: “The pre-existing illness made him vulnerable to experiencing a psychological injury.” The Medical Assessor assesses the deductible proportion as one-tenth because the extent of the deduction is otherwise difficult or costly to determine.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions
Mr Godfrey submits that the MAC contains the following demonstrable errors:
(a) the assessment of his condition, specifically in relation to the psychiatric impairment rating scale (PIRS) categories of ‘Concentration, persistence and pace’ and ‘Employability’; and
(b) the deduction for a pre-existing injury, condition or abnormality, as provided for by s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Mr Godfrey submits that throughout the MAC there is reference to his impaired memory, impaired work performance, inability to retain employment, and low motivation. He submits that the work injury has had a significant impact upon him when compared with his situation before the injury. The failure by the Medical Assessor to contrast those changes which are apparent in his concentration and capacity for work points to an error on the part of the Medical Assessor as opposed to a mere difference of opinion in the assessment of the relevant PIRS rating scale.
Mr Godfrey submits that the failure by the Medical Assessor to explain his variation to the assessment of the PIRS criteria from the assessments made by Dr Nagesh and Dr Paisley is indicative of an error made by the Medical Assessor.
Mr Godfrey submits that the only reason provided by the Medical Assessor for a deduction in WPI is because the “pre-existing illness made him vulnerable to experiencing a psychological injury.” However, the Medical Assessor has not explained how Mr Godfrey’s history has actually contributed to his current condition or his current degree of impairment.
Mr Godfrey submits that the approach taken by the Medical Assessor is inconsistent with the steps considered in Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole) and Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder). Justice Schmidt said in Cole at [30]:
“Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’.”
Justice Campbell said in Ryder at [54]:
“Section 323…requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been no subsequent impairment and therefore make a deduction under this section because of the existence such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”
Mr Godfrey submits that the Medical Assessor failed to consider in any properly reasoned fashion the proportion of his overall impairment that could, on the evidence, be objectively assessed as being due to any pre-existing condition. Instead, the Medical Assessor proceeded on the assumption that Mr Godfrey’s history is reason enough to apply a deduction.
Mr Godfrey submits that it is not necessary for the Panel to undertake a re-examination for the purpose of considering this appeal.
The respondent’s submissions
The respondent submits that Mr Godfrey has been appropriately placed in Class 1 for concentration, persistence and pace because he is able to concentrate for four to five hours, which is far in excess of up to 30 minutes focus on intellectually demanding tasks which is prescribed in Class 2.
The respondent submits that the offer of a fulltime position with 7-11 allows for an inference to be drawn that Mr Godfrey is able to work full time but in a different environment from his pre-injury job. Mr Godfrey’s ability to work 25 hours per week with 7-11 and the offer a fulltime position which has been made to him is consistent with Mr Godfrey having mild impairment and being placed in Class 2 for employability.
The respondent submits that Mr Godfrey should not be placed in Class 3 for Employability because that is for circumstances where a worker can perform less than 20 hours per week in a different position.
The respondent refers to the denial of any significant psychological issues prior to 2017 when Mr Godfrey attended Dr Nagesh and the Medical Assessor, and the significant history of counselling and prescribed medication prior to the work injury which is set out in the MAC. The respondent submits that the s 323 deduction was applied appropriately and “somewhat sparingly” given this past history of psychological issues.
The respondent submits that the Medical Assessor did not make an assumption or hypothesis in respect of the contribution to the impairment flowing from any prior injuries because there were extensive contemporaneous medical records confirming that Mr Godfrey had an ongoing psychological injury prior to the work injury in June 2018.
The respondent submits that the MAC should be confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The principles regarding the finding of a demonstrable error or errors in the MAC, particularly as they apply to assessment of permanent impairment for psychological injury, were set out by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson) at [23]-[25]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
In regard to the PIRS category of concentration, persistence and pace, the Medical Assessor places Mr Godfrey in Class 1:
‘No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass TAFE or university course within normal time frame.’
However, the Medical Assessor found Mr Godfrey to have psychomotor retardation from the start of the assessment and that he spoke with significant pauses. The Medical Assessor records that Mr Godfrey can concentrate for four to five hours but then needs a break. The Medical Assessor records that Mr Godfrey struggles with his energy and motivation.
The Appeal Panel considers that these details recorded from Mr Godfrey by the Medical Assessor, and the observations made by the Medical Assessor in his mental state examination of Mr Godfrey, reveal that in some aspects of his concentration, persistence and pace Mr Godfrey cannot be regarded as having no deficit in concentration, persistence and pace, or such a minor deficit attributable to the normal variation in the general population. Mr Godfrey did present at the assessment with a degree of impairment in his concentration and pace. There has been a clear misunderstanding by the Medical Assessor of the extent of Mr Godfrey’s concentration and pace which amounts to a demonstrable error.
Mr Godfrey nonetheless informs the Medical Assessor that he can concentrate for four to five hours, which is a considerably greater period of time than up to 30 minutes of focus on intellectually demanding tasks before fatigue sets in, being one of the activities set out as an example for the application of Class 2 in concentration, persistence and pace. The ability to concentrate for four to five hours is also considerably longer than Mr Godfrey having to struggle to maintain his concentration for more than 10 minutes, which is recorded by Dr Nagesh in September 2022. The Appeal Panel considers that the ability by Mr Godfrey to concentrate for four to five hours is also better than many in the general population and in this respect indicates no impairment, if not superior functioning.
The Appeal Panel therefore does not consider that Mr Godfrey reaches a rating of moderate impairment (Class 3) taking into account the differential aspects of Mr Godfrey’s conduct when rating this PIRS category.
There is a demonstrable error in the rating made by the Medical Assessor of Class 1 for concentration, persistence and pace, and the MAC will be revoked to allow for a rating of Class 2 in that Category.
In regard to the PIRS category of employability, the Medical Assessor places Mr Godfrey in Class 2:
‘Mild impairment: Able to work fulltime but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of his pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).’
Although the Medical Assessor records that Mr Godfrey has had six jobs over the last six years, Mr Godfrey has been able to engage in employment since he sustained his injury, including his current work as an auditor for 7-11.
The Appeal Panel acknowledges that the evidence provided by Mr Godfrey and the details of his post-injury employment recorded by Dr Nagesh, Dr Paisley and the Medical Assessor can result in Mr Godfrey falling into either class 2 or class 3 for employability when rated at different points in time. However, the Appeal Panel is also mindful of what was said by Garling J in Jenkins v Ambulance Service of NSW [2015] NSWSC 633 (Jenkins) at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
Similarly, in Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker), Harrison AsJ said at [71], albeit in regard to a different category than employability:
“The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error.”
The evidence and expert opinion which supports a finding that Mr Godfrey meets the criteria for Class 3 (moderate impairment) for employability is that Mr Godfrey states that he no longer possesses the same capacity to work at the level he did prior to his psychological injury, and that Dr Nagesh and Dr Paisley accept that Mr Godfrey has struggled to maintain employment due to his psychological injury.
Dr Nagesh records in September 2022 that Mr Godfrey said he had been sacked from two jobs since leaving the employment of the respondent due to the amount of sick leave he had been taking. Dr Paisley records in May 2023 that Mr Godfrey told him that he had called in sick on six or seven occasions in the six weeks that he had been employed with his most recent employer, being Officeworks.
However, the Medical Assessor also records that although Mr Godfrey has found it difficult to hold onto a single job, he has nonetheless gained several full time jobs since his psychological injury, including a job which lasted a year. The Medical Assessor considers that Mr Godfrey’s current job has less organisation and less responsibility, but this job is as an auditor, which would use many similar skills to that of a store manager, and he has now been offered a contract for full time work.
The ability of Mr Godfrey to work 25 hours per week in his current position, with the offer of a full time position, and that this position involves the responsibility of an auditor, allows for a conclusion to be reached that Mr Godfrey fits Class 2 (mild impairment) for employability. Mr Godfrey is now working more than 20 hours and he has undertaken duties as a manager and auditor in jobs since leaving the employment of the respondent which require a comparable skill and intellect to that of his pre-injury job as a store manager with the respondent.
Adding to the conclusion that Mr Godfrey fits Class 2 for employability is the importance of the clinical assessment of Mr Godfrey made by the Medical Assessor as Mr Godfrey presented on the day of his assessment. Reference is made to the approval in Ferguson at [23] of the dicta of the Appeal Panel in NSW Police Force v Daniel Wark that:
“... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face”.
Furthermore, the circumstances of Mr Godfrey’s employment have changed and evolved since he was assessed by Dr Nagesh in September 2022 and by Dr Paisley in May 2023. The details recorded by the Medical Assessor, along with his clinical observations, allowed him to conclude that Mr Godfrey has mild impairment for employability.
The Appeal Panel therefore finds that there has been no demonstrable error in the assessment made by the Medical Assessor for the category of employability.
The Medical Assessor makes a deduction for a pre-existing condition on the basis that the “pre-existing illness made him vulnerable to experiencing a psychological injury.” However, a vulnerability or predisposition to an injury is not enough to engage the provisions of s 323 of the 1998 Act. In Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), Campbell J said at [32]:
“…it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s. 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.”
The Appeal Panel considers that there is ample evidence of Mr Godfrey having had at least two chronic pre-existing psychological conditions, even though the history given by Mr Godfrey to the Medical Assessor was “vague”, and that a proportion of Mr Godfrey’s impairment is due to those pre-existing conditions.
The Medical Assessor refers to several entries made by Mr Godfrey’s general practitioners and commencing in 2012, which record significant psychological symptoms. The clinical notes from those general practitioners record that Mr Godfrey was prescribed multiple anti-depressants including Lexapro, Efexor, Avanza and Endep for some prolonged periods to treat those symptoms between 2013 and 2016.
The notes also reveal that Mr Godfrey would become unwell again if he stopped taking medication. For instance, Dr Long records on 7 October 2015:
“Was on avanza, efexor and Lexapro
Stopped them because didn’t want to be on them
Mood up and down – low moods every day up to 2 hours day”.
The Appeal Panel also notes, although it is not referred to by the Medical Assessor, the Discharge Summary from Belmont District Hospital for admission by Mr Godfrey to the Lakeview Detoxification unit between 30 and 31 October 2017 for detoxification of his pre-existing alcohol and benzodiazepine use disorder. That discharge summary also records Mr Godfrey’s daily heavy alcohol use, over a decade of cannabis use that ceased just prior to that admission, as well as recent use of cocaine, amphetamines and opiates.
The discharge summary from Belmont District Hospital also includes reference to a psychiatric history of depression and anxiety, and the prescription of “Efexor XR mane (non-compliant)” to treat those symptoms. Those notes indicate that Mr Godfrey was already separated from his partner at the time of his admission. The admission to this hospital also occurs around the same time when Mr Godfrey states that he started to have issues while employed with the respondent.
The Appeal Panel concludes from a review of the contemporaneous treatment records that Mr Godfrey had been suffering a depressive disorder with recurrent episodes from at least 2012. The diagnosis of the condition of persistent depressive disorder made by the Medical Assessor reflects a chronic low level recurrence of this pre-existing disorder with similar clinical features. Mr Godfrey’s pre-existing alcohol and substance use disorders are still only in partial remission.
The one-tenth deduction made by the Medical Assessor is therefore not based on an “assumption or hypothesis” (Cole), but instead on a consistent need that Mr Godfrey had for treatment for psychological problems from 2012 and up until the time he commenced to experience an increase in psychological symptoms while working for the respondent.
Mr Godfrey does not assist his claim by denying any previous mental illness when he was assessed by Dr Nagesh and Dr Paisley, despite the well-documented history of psychological problems dating back to at least 2012. The failure by Mr Godfrey to disclose that history deprived Dr Nagesh and Dr Paisley of the opportunity to grapple with a possible s 323 deduction and allow for consideration of any such opinion by the Medical Assessor or Appeal Panel.
The Appeal Panel is critical of the Medical Assessor’s use of the term “vulnerable” as being the basis for a deduction pursuant to s 323 of the 1998 Act. However, the Appeal Panel considers that the Medical Assessor clearly identified that Mr Godfrey had not just a vulnerability but a pre-existing condition, namely a persistent depressive disorder, which is the same disorder which he has now.
Upon review of the contemporaneous treatment records there has been no demonstrable error in the one-tenth deduction made the Medical Assessor. Indeed, the Appeal Panel agrees with the submission made by the respondent that the Medical Assessor applied the s323 deduction “somewhat sparingly” considering the substantial amount of treatment which Mr Godfrey underwent prior to his work injury for the same conditions he has now been diagnosed with.
There is therefore no demonstrable error made in the MAC for the one-tenth deduction made by the Medical Assessor pursuant to s 323 of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons. The calculation of WPI for the new certificate is set out below.
The Appeal Panel confirms that the following PIRS categories now apply:
Self care and personal hygiene Class 3
Social and recreational activities Class 3
Travel Class 2
Social functioning Class 3
Concentration, persistence and pace Class 2
Employability Class 2
Score Median Class
3 3 2 3 2 2 3
Aggregate Score Impairment Total
+3 +3 +2 +3 +2 +2 15
Pre-existing deduction clause: one-tenth deduction for pre-existing condition
One-tenth of 15 = 1.5
Treatment effect clause – nil
Final WPI = 14%.
0
7
0