Harm v Secretary, Department of Education
[2024] NSWPIC 101
•4 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Harm v Secretary, Department of Education [2024] NSWPIC 101 |
| APPLICANT: | Meral Harm |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 4 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claimed a separate injury resulting in hypersomnolence thereby entitling her to a referral to a medical examiner or assessment of whole person impairment; the respondent relied on section 65A and submitted that the applicant’s condition resulted from a secondary psychiatric condition; Held – finding of a second injury; application referred to a medical examiner. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant was injured by developing hypersomnolence whilst in the employ of the respondent after recommencement of employment in casual positions in 2022, arising from her concerns about ongoing secure employment rising from her previous vocal tract injury. The Commission Orders: 2. The lump sum claim is remitted to the President for a referral to a Medical Assessor to assess permanent impairment as follows: (a) dates of injury: 17 October 2017 and 13 October 2022; (b) body systems: voice and hypersomnolence; (c) method of assessment: whole person impairment, and (d) documents to be referred: Application to Resolve a Dispute and attachments, Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
Secretary, Department of Education (the respondent) has accepted liability for Meral Harm’s (the applicant) claim for a vocal tract injury on 13 October 2017 and has paid weekly compensation and treatment expenses in relation to that injury pursuant to The Workers Compensation Act 1987 (the 1987 Act).
From 2004 the applicant was employed by the respondent as a permanent primary school teacher. She sustained a vocal tract injury, with dysphonia and vocal cord nodules. She could not work full-time after 13 October 2017. She had two surgeries in 2019. She resigned on 27 January 2021 thereby losing her permanent position. The applicant returned to work in April 2021 as a casual teacher with small groups.
The applicant felt stressed about losing her permanent position. She started to develop insomnia in January 2021. She had counselling for sleep problems and eventually consulted a psychiatrist she was diagnosed with major depression and anxiety. By June 2022 her condition improved.
MATTERS IN DISPUTE
The applicant suffers from hypersomnolence.
It is disputed by the respondent that the applicant’s hypersomnolence arose as a result of an injury separate to the vocal tract injury. The respondent disputes the applicant’s claim for whole person impairment pursuant to s 66 of the 1987 Act on the basis that she is suffering from a secondary psychological injury and her claim is barred by the operation of s 65A of the 1987 Act.
The applicant alleges that she has suffered two separate injuries and is entitled to an assessment of whole person impairment based upon those separate injuries to her vocal tract and hypersomnolence.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Fergus Austin of counsel, instructed by Susan Burke of Gerard Malouf and Partners appeared for the applicant. Ms Kavita Balendra of counsel, instructed by Durga Shivaji of Bartier Perry Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
There was no oral evidence.
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before the Personal Injury Commission (Commission).
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply to ARD (Reply) and attached documents.
The applicant’s submissions
The applicant alleges that she has suffered two injuries in the employ of the respondent.
The first injury, which has been accepted by the respondent, is an injury to her vocal tract. This has given rise to a 10% whole person impairment supported by Dr Howison an independent medical examiner (IME) for the applicant who diagnosed the applicant as having “muscle tension dysphonia and chronic vocal fold scar tissue”. Given that the assessed impairment for this condition is less than 11% the applicant has no entitlement to proceed to make a claim on this basis alone.
The second injury alleged is one of hypersomnalence. This diagnosis and consequent claim is based on the report of the IME Dr Frieberg,[1] a respiratory and sleep physician
[1] ARD page 33.
Dr Freiburg assesses a whole person impairment arising from this injury at 12%.
The applicant seeks a determination of whole person impairment of 21% based upon the combined assessments of Dr Howison[2] and Dr Freiburg arising from what she submits are two separate injuries.
[2] ARD page 44.
Dr Freiberg had the following documents for the preparation of his report:
(a) diary of events prepared by the claimant from 2013 to 21 July 2021;
(b) Ambulatory Sleep Study Report of Dr Geoff Williams dated 3 August 2020;
(c) medical report of Dr Kenneth Howison dated 23 November 2021;
(d) clinical notes of Dr Daniel Novakovic as at 17 August 2021;
(e) clinical notes of Alisa Hawkins (Cate Madill Voice & Speech) as at 26 July 2021;
(f) clinical notes of Dr David Pohl as at 8 June 2021, and
(g) medical reports of Dr Iftikar Ahmad dated 8 April 2021 and 10 June 2021.
15. Dr Freiberg concluded:
“This woman has experienced significant difficulty initiating and sustaining sleep and frequent awakenings as a result of the stress of her work related injury. This has caused significant hypersomnolence the following day.
She appears to have reached maximal medical improvement in regard to her major depressive disorder with anxiety which has had such an impact on her overall health and sleep.
The American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition Page 4 Table 1-2 states that a restful nocturnal sleep pattern is essential to activities of daily living.
The final paragraph on page 317 of the abovementioned Guides states that an Epworth Sleepiness Scale score of 10/24 is equal to excessive sleepiness or class 2 impairment. Table 13-4 criteria for rating impairment to sleep and arousal disorders on Page 317 of these Guides indicates a class 2 impairment is a 10%-29% impairment of whole person. This results in reduced daytime alertness which interferes with the ability to perform some activities of daily woman. This woman's degree of hypersomnolence has certainly resulted in this. There are no pre-existing factors that would have contributed to her impairment due to sleep and arousal disorders. I would therefore classify her as a 12% impairment of whole person due to her fragmented and disturbed sleep as a result of her injury and her frequent awakenings that this is associated with and the hypersomnolence she experiences the following day.
I would be happy to supply any further information that may be of assistance.”
The applicant submits that there is no opinion from a psychiatrist that the applicant’s claim for hypersomnolence arises from a secondary psychological condition despite the applicant having suffered from some significant depression and anxiety arising from her circumstances.
The respondent’s submissions
The respondent submits that the applicant’s sleep disorder arises from a secondary psychiatric condition and that it is therefore prohibited by s 65A of the 1987 Act.
The applicant was referred to Dr Anthony Johnson, a respiratory and sleep physician, by the respondent’s solicitors. In his report[3] Dr Johnson diagnosed the applicant with insomnia. Hs summary and assessment was:
“This 44 year old lady has a vocal injury at work. She had subsequently developed depression and anxiety as a result and developed insomnia subsequent to this. She had a sleep study which did not show a significant sleep problem. Her insomnia has fluctuated, and she recalls after being overseas in July this year her sleep was much improved. It has now worsened in the last two months as she is concerned about her work and what work she will be offered next year. She does have excessive daytime sleepiness when she has insomnia. I think she has insomnia secondary to her depression and anxiety which is a result of her loss of a permanent position resulting from her vocal cord injury. She did not have any sleep disorder prior to this.
I think that the prognosis is guarded. She has been able to wean herself off antidepressants but is developing further insomnia and may need to go back on them. Until she has a permanent position, I think it is likely she will have ongoing insomnia and anxiety. It is unlikely she will have a permanent position she tells me due to her voice injury. Therefore, I consider she is likely to have ongoing insomnia.
There does seem to be significant flotation however in how severe it is. When she does have significant insomnia, it affects her daytime function, and she is excessively tired.
…..
I consider the worker’s sleep disorder is a result of her depression and anxiety resulting from the vocal cord injury, causing her to lose her fulltime work. I consider the sleep disorder is a result of the psychological condition secondary to this. There is no other significant sleep disorder on her sleep study and she herself notes that it fluctuates, and her sleep disorder is worse when her anxiety is worse.”
[3] ARD page 37.
CONSIDERATION
Section 65A is set out below:
“Special provisions for psychological and psychiatric injury is set out below:
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
I consider the applicant’s work history to be very relevant in determining whether she has had a second injury in her employment which has led to her suffering hypersomnolence. In 2021 the applicant weaned herself off the medication Avanza. She travelled overseas and her sleep improved. She stopped medicating and returned to work.
There is no diagnosis of any underlying secondary psychiatric condition from a psychiatrist in the material before me and I make no such finding. However, if the applicant had been previously suffering any incapacity as a result of an underlying secondary psychiatric condition, I am satisfied that she had recovered from it when she returned to work.
In November and December 2022 the applicant’s sleep problems reoccurred as a result of her serious concern about the possibility of not having a permanent position in 2023 and whether she would get casual work.[4]
“In November and this month, she started to have insomnia again. She admits to being stressed about next year as she does not have a permanent position and is unsure whether she will get casual work. She is now having difficulty initiating sleep and then waking frequently overnight, getting four to five hours sleep. Previously she could get seven hours.”
[4] ARD page 37 Dr Johnson’s Report page 3.
The applicant may have been vulnerable to a reoccurrence but I am persuaded that it was her new concerns that separately injured the applicant.
I am satisfied that this is when the applicant was injured for the second time in the respondent’s employ when she returned to work in 2022 and developed hypersomnolence.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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