Hawes v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 438
•9 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hawes v State of New South Wales (NSW Police Force) [2024] NSWPICMP 438 |
| APPELLANT: | Katherine Patricia Hawes |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: DATE OF AMENDMENT: | 9 July 2024 10 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment (psychological); whether Medical Assessor (MA) erred in the assessment of self-care and personal hygiene, social and recreational activities, travel, social functioning or employability under the Psychiatric Impairment Rating Scales; whether MA erred in making a deduction for pre-existing conditions; Held – error identified with respect to the assessment of the employability scale; class 3 impairment is assessed; deduction not available; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Hawes, appeals from the Medical Assessment Certificate of Medical Assessor Verma dated 14 February 2024.
The Medical Assessor assessed a 6% whole person impairment (psychological) as a result of injury on 15 April 2018 (deemed date), due to stressors in the course of Ms Hawes’ duties as a police officer from 2004 to 15 April 2018. From this, she deducted one-tenth to account for pre-existing alcohol use disorder and personality vulnerabilities, yielding 5% whole person impairment.
She assessed a class 2 impairment in respect of each of the psychiatric impairment rating scales (PIRS).
The Medical Assessor had made the same assessment, on the same basis, in a previous Medical Assessment Certificate dated 13 January 2023. That assessment was the subject of appeal in separate proceedings. On 21 November 2023, the appeal was discontinued, and Member Turner issued a Certificate of Determination – Consent orders, remitting the matter for reconsideration by the Medical Assessor, and requesting the Medical Assessor to consider additional documents and to issue an amended Medical Assessment Certificate.
On 14 February 2024, the Medical Assessor issued the Medical Assessment Certificate which is the subject of this appeal. She explained that she had read the additional documents referred for consideration. She summarised them in detail and concluded at [3]:
“After carefully going through the documents provided for reconsideration, I do not believe there is any other additional history that was discovered. I had already noted a vast history of Alcohol Use Disorder and personality vulnerabilities as mentioned in various documents that were provided to me.”
At [6], she confirmed her previous assessment of 5% whole person impairment. She added:
“I have attached the PIRS rating form which remains the same as submitted in my earlier certificate.”
The appellant submits:
(a) that the assessment of a class 2 impairment in respect of five of the rating scales - Self care and personal hygiene, Social and recreational activities, Social functioning, Travel and Employability - demonstrates error and the application of incorrect criteria;
(b) that the evidence in respect of each supported a class 3 impairment, except Travel, in respect of which she does not submit an alternative appropriate assessment, and
(c) that the deduction for a pre-existing injury, abnormality or condition also demonstrates error.
The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:
(a) The assessment of 5% whole person impairment must be erroneous, because
Dr Bisht (relied on by the worker) assessed a 15% whole person impairment on
8 May 2023, Dr Whetton (relied on by the insurer) assessed a 7% whole person impairment on 18 August 2023, and ‘it is inconceivable within a short period after that medical assessment [of Dr Bisht] (6-8 months), that the MAS [sic] Assessment takes place on 13 October 2023, and that there [was] such dramatic improvement in the injured workers [sic] psychological condition and impairment’.(b) In respect of Self care and personal hygiene, an assessment of class 2 impairment is incorrect, and a class 3 impairment is appropriate, because:
i.the appellant ‘struggles to participate in self-care and dress herself professionally for work. Moreover, the Applicant brushes her teeth but is not concerned about having haircuts unless prompted. She has low motivation to exercise, is unable to maintain routine and often over-sleeps’;
ii.‘she showers and brushes her teeth especially when she works, [but] her motivation for self-care is low’;
iii.she ‘keeps her kitchen in a neglected state, washes her utensils when the pile grows and washes her clothes when she runs out of clothes’, and
iv.the finding that the appellant can live independently without regular support was incorrect because ‘she maintains self-care and personal hygiene only when she runs out of options or is prompted to do so out of compulsion’.
(c) In respect of Social and recreational activities, an assessment of class 2 impairment is incorrect, and a class 3 impairment is appropriate, because:
i.the appellant ‘does not engage in social gatherings’;
ii.she ‘attends A[lcoholics] A[nonymous] meetings, but these are a part of her treatment rather than a social outing’;
iii.she has ‘very limited hobbies now and she does not play any social sports anymore’, and
iv.she is ‘reluctant to make new friends’.
(d) In respect of Travel, the assessment of class 2 impairment is incorrect, because the appellant:
i.only drives to and from work in familiar areas, and no longer travels overseas, and
ii.does not drive long distances because she has nowhere to go, which results from her injury, because it has had a negative impact on her social life.
(e) In respect of Social functioning, an assessment of class 2 impairment is incorrect, and a class 3 impairment is appropriate, because she has ‘severely strained relationships, inability to form a new relationship and being [sic, is] solitary’, having regard to the evidence that:
i.‘she has not been engaging in conversations [with family], and prefers to spend most time alone’,
ii.she ‘has not been able to establish any new intimate relationships’, and
iii.she is ‘socially withdrawn, self-isolating and cannot handle confrontation’.
(f) In respect of Employability, the assessment of class 2 impairment is incorrect, and a class 3 impairment is appropriate, because:
i.she is unable to work in her former position as a police officer and is only now able to work as a security officer in electronic monitoring, which requires far less skills and intellect;
ii.it is ‘draining on her to complete her duties [as a security officer]’;
iii.she is ‘hyper-aware and tries to remain vigilant’;
iv.she ‘tries to avoid any confronting situation’;
v.she is paid less than in her former position;
vi.she works alone and not in a team in order to avoid the impact on her concentration of the noise and disruption caused by working with others;
vii.if she had someone who could provide her with financial support, she ‘could not have returned to work’, and
viii.in any event, the Medical Assessor failed to take into account the fact that her former employment in a similar capacity with Sonder was terminated.
(g) With respect to the deduction of one-tenth:
i.the deduction for pre-existing alcohol use disorder was in error, because that disorder resulted from psychological injury;
ii.the Medical Assessor ought to have considered the report of Dr Bisht, who assessed 15% whole person impairment, including his list of persisting symptoms, his diagnosis and his finding that significant symptoms commenced in 2011, and
iii.she should have provided reasons why she accepted or rejected his opinions, but did not do so.
Under the heading, ‘Psychological injury employment summary’, the applicant’s solicitor provides a discursive history of events and a series of observations. Doing our best to understand them and their purpose, they do not allege any further errors apart from those the subject of the above submissions, which are considered below.
The respondent submits in brief summary as follows:
(a) Generally:
i.the appellant’s submissions amount to a mere difference of opinion as to the appropriate assessment. This does not amount to error;
ii.Dr Whetton’s assessment of 7% whole person impairment is close to that of the Medical Assessor (5%). There has not been a drastic improvement, and
iii.The Medical Assessor’s assessment is the most recent of the three assessments and therefore more reliable.
(b) In respect of Self care and personal hygiene:
i.all three doctors assessed a class 2 impairment, and
ii.a class 3 impairment is not open on the evidence, because ‘the worker lives alone in a unit and there is no indication or evidence that regular support is provided to assist in her self-care or personal hygiene’.
(c) In respect of Social and recreational activities,
i.a class 2 assessment was supported by the Medical Assessor’s finding that the worker ‘occasionally goes out to events with her friends but does not become actively involved’ and the fact that ‘There is no indication in any of the reports of the worker requiring a support person to attend these events’, and
ii.Dr Bisht (who assessed class 3) had taken a contrary history that she did not attend social gatherings at all.
(d) With respect to Social functioning:
i.a class 3 rating was not available, because there were no periods of ‘separation or domestic violence’, despite some exclusion by family due to drunkenness, and
ii.a class 2 rating was available because existing relationships with family were strained.
(e) With respect to Employability:
i.a class 2 impairment was appropriate because the appellant is able to work full time in a different environment from her pre-injury job, and
ii.a class 3 impairment was not appropriate because the appellant works more than 20 hours per week.
(f) With respect to Travel:
i.all three doctors assessed a class 2 impairment, as ‘the appellant was able to drive her car and catch the train and only required a support person if travelling to an unfamiliar place’, and
ii.overseas travel is irrelevant to the assessment of this scale.
(g) With respect to the deduction of one-tenth for pre-existing conditions, the deduction was made not only for the effects of alcohol use disorder but also for pre-existing interpersonal conflict with her brother including an assault, and personality vulnerabilities, and an abusive father and upsetting youth.
Prior independent assessments
The appellant submits that the assessment of 5% whole person impairment by the Medical Assessor must be erroneous, because it differs so widely from the assessment of previous examiners Dr Bisht (15%, 8 May 2023) and Dr Whetton (7%, 18 August 2023), and it is inconceivable that the level of whole person impairment could have improved so greatly in the ensuing six to eight months.
Neither the Medical Assessor, nor this Panel on review, nor even the parties, are bound to accept the correctness of previous assessments, where those assessments do not form the basis of a binding award or finding by the Personal Injury Commission.
In any event, the assessments of Dr Bisht and Dr Whetton varied widely between themselves over a period of only three months. As the respondent points out, there is a difference of only 2% between the assessment of Dr Whetton and that of the Medical Assessor.
There is a significant difference between that of Dr Bisht and the Medical Assessor, but the latter was not bound to accept Dr Bisht’s assessment. Her task was to assess the worker as she presented at examination, which she did. Her task was also to explain why she came to a different assessment. She gave detailed reasons for doing so.
We can discern neither demonstrable error not the application of incorrect criteria merely because there is a significant difference in the assessments.
Self care and personal hygiene
The criteria for rating class 2 and 3 impairment in Self-care and personal hygiene are as follows:
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
In the PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment:
“She added that she showers and brushes her teeth on most days, especially when she works. Her motivation for self-care is low and at times, she keeps her kitchen in a neglected state. She said she washes her utensils when the pile grows and will wash her laundry when she runs out of clothes. She is still able to live independently, although can be unkempt occasionally.”
That reflected the history taken at [4] of the original Medical Assessment Certificate under the heading ‘Social activities/ADL’s’.
It was the task of the Medical Assessor to determine in which category the behavioural consequences of psychological injury best fit, by applying the descriptors in each class of impairment as examples: Guidelines at [11.12]. The criteria in each class are not prescriptive, but they must be considered in determining into which of two classes a given set of behavioural consequences best fits, taking into account a person’s cultural background, and what activities are usual for a person’s age, sex and cultural norms.
In our view, the Medical Assessor was correct in finding that the behavioural consequences of injury best fit into class 2, because at examination the worker told her that she lives by herself currently – that is, independently - and that she showers most days, notwithstanding the fact that her kitchen was in a neglected state or that she only did the laundry when she ran out of clothes.
They did not fit a class 3 impairment because there was no evidence that family members or a community nurse visits or should visit at all (let alone two or three times per week) in order to ensure minimum hygiene or nutrition, that the appellant frequently missed meals, that she did not prepare her own meals, or that she needed prompting to wear clean clothes or to shower daily.
There is no evidence that the worker’s cultural background, age or sex would not support any different outcome.
The appellant does not point to any evidentiary basis for the assertion in submissions that ‘she maintains self-care and personal hygiene only when she runs out of options or is prompted to do so out of compulsion’. There is evidence that she only cleans her clothes when she runs out of fresh clothes to wear, but that neither compels the selection of a class 3 impairment, nor renders an assessment within class 2 unavailable. As indicated, we consider that a class 2 impairment is warranted on the evidence, and the Medical Assessor’s assessment was correct. We can discern neither demonstrable error nor the application of incorrect criteria. This ground fails.
Social and recreational activities
The criteria for rating class 2 and 3 impairment in Social and recreational activities are as follows:
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
In the PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment – emphasis added:
“She used to enjoy playing volleyball and netball. She said that she now does not engage in any of these activities. She said that even premorbidly, she did not have a lot of friends and did not have a big social life. She said that because she has been abstinent from alcohol, she had to sacrifice her social life for that. She said that she does not feel confident in social situations and occasionally goes out to events with her friends but does not become actively involved.”
That, too, reflected the history at recorded at [4] of the original Medical Assessment Certificate under the heading ‘Social activities/ADL’s’.
On the evidence, the behavioural effects of injury best fit the exemplars for a class 2 impairment, because the appellant told the Medical Assessor that she occasionally goes out to social events with friends without becoming actively involved, and did not suggest there was a need for a support person.
Though the Medical Assessor took a history at [4] that the appellant currently attended meetings of Alcoholics Anonymous, there is nothing in the reasons to suggest that the Medical Assessor confused these meetings with social gatherings, or took them into account in assessing Social and recreational activities. On the contrary, in the passage above, the Medical Assessor refers to going out ‘with her friends’. That suggests the occasions are truly social, rather than treatment events like meetings of Alcoholics Anonymous. In finding that the behavioural consequences of injury best fit a class 2 impairment, we exclude the worker’s attendance at meetings of Alcoholics Anonymous.
We also consider that the Medical Assessor was correct in finding that the evidence did not better fit the exemplars for a class 3 impairment, because the appellant did not give a history concordant with the descriptors in that class, e.g. that she required prompting to go out to social events, that she would not attend without a support person, or that her attendances at such events were rare.
That is so, even if she no longer plays sports which she used to, and is reluctant to make new friends.
There is no evidence that the worker’s cultural background, age or sex would support any different outcome.
In our view, the omission to assess a class 3 impairment is not one which discloses error of any kind. This ground also fails.
Travel
The criteria for rating class 2 and 3 impairment in Travel are as follows:
Class 2
Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3
Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
In the PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment – emphasis added:
“She continues to drive now as she got her license back. She said she only drives to work and for shopping and for short distances. She will drive in familiar areas. She said that she does not have anywhere to go and hence does not drive long distances.”
In our view, the Medical Assessor was correct in finding that the evidence best fit a class 2 impairment, because the worker told the Medical Assessor that, having obtained her license again, she drives to work, for shopping and for short distances in familiar areas - almost a perfect match for the descriptors of a mild impairment. The mere fact that she does not drive long distances does not render a class 2 assessment unavailable, regardless of the reason.
We also consider that a class 3 assessment was not indicated on the evidence, because the evidence did not suggest she was unable to travel away from her residence without a support person.
We are unable to discern error of any kind. This ground fails.
Social functioning
The criteria for rating class 2 and 3 impairment in respect of Social functioning are as follows:
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
In the PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment – emphasis added:
“She reported that her mental health has impacted her relationships. She feels alienated from her family. She said that she has withdrawn from her family members and it seems that her family members have also excluded her. She attributed the exclusion to being drunk and embarrassing her family members.”
The history of exclusion by family members due to the appellant’s prior drunkenness, even though she has been sober for four years, is consistent with the family relationships being ‘severely strained’, evidenced by a period (or periods) or separation. Such exclusion is qualitatively greater than mere “tension” with close family. The Medical Assessor did not explain why, in those circumstances, she considered that the facts best fit a class 2 rather than a class 3 impairment. The failure to give adequate reasons demonstrates error, requiring that this part of the assessment be set aside.
This error can be corrected on the evidence before us. The worker’s close friendships have not ended, as the Medical Assessor recorded at [4] that ‘she has been able to maintain some friendships’, even though those relationships have been affected by her friends moving overseas and ‘she feels anxious even when she is around friends’. The worker does not submit that the descriptors for a class 4 impairment are met, and we do not consider that they are.
In our view, the evidence and history obtained best fit the descriptors for a moderate impairment (class 3), because previously established family relationships are severely strained, evidenced by periods of separation.
Employability
The criteria for rating class 2 and 3 impairment in respect of Employability are as follows:
Class 2
Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the 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).
Class 3
Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
In the PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment – emphasis added:
“She works full-time in a different environment from that of her pre-injury job. She is currently working full-time as a monitoring operator.”
At [4] of the 2023 Medical Assessment Certificate, the Medical Assessor took a history that the applicant works full time monitoring persons on parole who wear an ankle bracelet, and performing a (presumably related) equipment role.
The fact that she works full time, though in a different role, is consistent with the criteria for a class 2 impairment, and inconsistent with the criteria for a class 3 impairment. The exemplars for class 2 require that current employment ‘require comparable skill and intellect as those of the pre-injury job’. In submissions, the appellant denies that her current job requires comparable skill or intellect. To prove that would require a comparison of the roles performed by the appellant as a police officer with the roles in her current occupation. There is no such evidence before us. So far as we can tell, there was no such evidence before the Medical Assessor. In its absence, we cannot be satisfied that the assertion is correct.
Even if we were so satisfied, it would not compel the assessment of a class 3 impairment, because the appellant does not satisfy the criterion of working 20 hours or less.
The fact that the appellant was incapable of performing a similar role with a former employer does not contradict the evidence that she is capable of her present role on a full-time basis. The assertion that she ‘could not have returned to work’ if she had someone who could provide her with financial support is not supported by any evidence referred to in submissions. It is hypothetical and irrelevant to assessing the actual whole person impairment of the appellant.
We can identify neither error nor the application of incorrect criteria.
This ground fails.
Deduction for pre-existing condition
The Medical Assessor did not advance any reasons for making a deduction apart from those which she gave at [3] of her most recent Medical Assessment Certificate, which are quoted above. Accordingly, her reasons remained the same as those disclosed in her Medical Assessment Certificate of 13 January 2023 at [11a]:
“I believe that Ms Hawes struggled with alcohol use even before the workplace incidents. There is also evidence that her depression was probably exacerbated by workplace incidents and because of interpersonal conflicts with her brother. She also reported that she was physically assaulted at that time. I believe that she struggled with alcohol use disorder and had personality vulnerabilities, which could be considered pre-existing conditions.”
And at [11b]:
“There is a clear history of alcohol use disorder. Ms Hawes herself reported that she used to struggle with alcohol intake and cope with alcohol when she was stressed.”
Reading these passages together, we interpret her to mean that pre-existing conditions of alcohol use disorder, personality vulnerabilities, and depression, contribute to current impairment. The fact that she selected one-tenth as the appropriate deduction necessarily implies a finding that the extent of the deduction was difficult or costly to determine, and that it was not at odds with the evidence.
When explaining the differences between her assessment and that of Dr Whetton at [10c], the Medical Assessor added:
“I believe that Ms Hawes struggled with alcohol use which only worsened after the workplace-based incidents. There is also a significant history of personality vulnerabilities and a childhood history of emotional neglect and physical abuse which could have also contributed to the illness. I have therefore made an adjustment for the pre-existing impairment which is one-tenth.”
The ‘workplace-based incidents’ is a reference to the incidents of which the Medical Assessor took a history at [4] of her Medical Assessment Certificate dated 13 October 2023. The first such incident was in 2010:
“Ms Hawes reported that the first major incident which affected her mental health was in 2010. She remembers working very hard for Marrickville Police and attended a scene where a part was gate-crashed. …. Someone put in a complaint against her She was put on a performance management plan. She said that she was terribly upset about this …”
Reading her reasons as a whole, we interpret her to mean that alcohol use disorder pre-dated the 2010 incident.
Doing our best to understand the balance of the passage at [10c] extracted above, we interpret ‘the illness’ to be a reference to the alcohol use disorder which is referred to in the first sentence of the paragraph, though in shorthand as ‘alcohol use’. This discloses a path of reasoning to the effect that personality vulnerabilities and a childhood history of emotional neglect and physical abuse ‘could have contributed’ to pre-existing alcohol use disorder, and thereby to current impairment.
On 14 September 2023, the Commission had referred the matter to the Medical Assessor for assessment of whole person impairment as a result of psychological injury on a deemed date. The task of the Medical Assessor was to assess whole person impairment in accordance with the referral. The referral described the date of injury in the following terms:
‘2004 to 15 April 2018 with a deemed date of injury of 15 April 2018 – Disease’.
That was a short form for describing injury as follows: ‘15 April 2018 (deemed date) due to the nature and conditions of employment from 2004 to 15 April 2018’. The date of injury itself was deemed by operation of s15 (disease of gradual process) or 2016 (aggravation of a disease) of the Workers Compensation Act 1987.
Having assessed a 6% whole person impairment, it remained for the Medical Assessor to decide whether to make a deduction for a pre-existing injury, abnormality or condition in accordance with section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). To do so, she had first to determine whether there was a pre-existing injury, abnormality or condition. In cases where, as here, injury results from the nature and conditions of employment during a specified period, the Medical Assessor must identify an injury, abnormality or condition which existed prior to that period.
As indicated, the Medical Assessor found that alcohol use disorder existed prior to 2010. She did not, however, make any finding to the effect that it occurred prior to 2004, either in the 2023 Medical Assessment Certificate or in the 2024 Medical Assessment Certificate.
In the later Certificate, the Medical Assessor considered case notes by a police psychologist dated 16 November 2011 which ‘described a long history of depressive symptomology and alcohol use for which she has sought various treatments for [sic] over a number of years’. She also considered a report of Dr George dated 13 May 2011 in which he observed:
‘She also appears to have been dependent on alcohol and continues to abuse alcohol.’
The report of Dr George does not say when the worker first suffered from alcohol dependence. The police psychologist’s note of 16 November 2011 records that there had been ‘alcohol use’ for a number of years, which does suggest a history prior to the first incident in 2010, but falls short of diagnosing an alcohol use disorder at that time.
Neither of these documents supports a finding that alcohol use disorder was present prior to 2004 (from which time the nature and conditions of employment were alleged to have caused injury) or prior to the first stressor found by the Medical Assessor to have been causative of permanent impairment 2010.
On the evidence, in our view, it was not reasonably open to the Medical Assessor to find, as she did, that there was a pre-existing condition of alcohol use disorder, whether the appropriate date was identified as 2004 or 2010. This demonstrates error, necessitating that the deduction be set aside.
The ‘personality vulnerabilities’ which the Medical Assessor identified as pre-existing conditions are not identified with sufficient particularity to enable us to discern what they were, or whether they amount to an injury, condition or abnormality. No finding is made as to when they first existed. This amounts to a failure to provide reasons for the conclusion that there was a pre-existing condition, leaving the Panel in the position where it does not know why the finding was made or whether it was affected by error. That also demonstrates error, necessitating that the deduction be set aside.
With respect to the finding that a pre-existing depressive condition contributes to impairment, the Medical Assessor recorded the following history at [4] of the 2023 Medical Assessment Certificate:
“She reported that she started having mental health symptoms in 2004. She said that she used to live in a high-rise apartment and used to have thoughts of jumping from the apartment. She said that at that time, she was struggling both in her personal and professional life. Her brother had assaulted her at that time. She was also struggling with general pressures of doing shift work, working in an unsupportive atmosphere. She sought some help and was prescribed antidepressant Lexapro.”
This amounts to a finding that a depressive condition arose in 2004 in the context of personal and workplace stressors, requiring medication. It does not support a finding that such a condition existed prior to 2004, though it does support a finding that a condition existed prior to the first stressor causative of injury (on the Medical Assessor’s analysis) in 2010. It is unnecessary to decide which of those two dates was the operative date in this case, for the reasons which follow.
Even if, contrary to our view, the evidence supported findings that alcohol use disorder, personality vulnerabilities of some kind or another or a depressive condition existed prior to the operative date, and the Medical Assessor had made such a finding, a deduction would not have been available. In order to find that a pre-existing condition contributes to current impairment, an assessor must be satisfied that, but for the existence of the pre-existing condition, current impairment would not be as great as it is: Ryder v Sundance Bakehouse [2015] NSWSC 526. So far as the reasons disclose, the Medical Assessor did not turn her mind to that issue, and made no finding to that effect. The making of a deduction in the absence of such a finding demonstrates error, requiring that the deduction be set aside.
The error is capable of correction on the available evidence, so it is unnecessary to refer the appellant for further examination.
For the reasons already given, we are not satisfied that a condition of alcohol use disorder existed prior to 2010 or, if it be relevant, 2004.
Even if, as the Medical Assessor has found, there were pre-existing ‘vulnerabilities’, a vulnerability is not a pre-existing psychological condition or abnormality. It is a vulnerability to contract a disorder, which may or may not occur. It is not an injury, condition or abnormality capable of supporting a deduction pursuant to s 323.
We are satisfied that there was a pre-existing depressive condition as early as 2004, but it is impermissible to assume that, simply because there was a pre-existing condition, it must now contribute to impairment. By 2010, prior to the work stressor which occurred in that year, the appellant was able to function as a police officer at Marrickville. Her condition thereafter deteriorated. There is in our view no evidence to support a finding that, but for the pre-existing depressive condition in 2004, her impairment would now be less. The test in Ryder is not satisfied.
For those reasons, a deduction is not available.
Conclusion
For the reasons given, the Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Verma, and issues the new certificate attached.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5452/23 |
Applicant: | Katherine Patricia Hawes |
Respondent: | State of New South Wales (NSW Police Force) |
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 Medical Assessor Verma 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 NSW workers compensation guidelines | 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) |
| Psychological Injury | 15 April 2018 | Chapter 11 Guidelines 11.1-11.3 11.4-11.6 | Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6 | 7 | nil | 7 |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0