ING Bank (Australia) v Cole

Case •

[2021] NSWPICMP 219

•

19 November 2021
DETERMINATION OF APPEAL PANEL
CITATION: ING Bank (Australia) v Cole [2021] NSWPICMP 219
APPELLANT: ING Bank (Australia)
RESPONDENT: Simon Cole
APPEAL PANEL:

Member Carolyn Rimmer

Professor Nicholas Glozier
Dr Patrick Morris
DATE OF DECISION: 19 November 2021
CATCHWORDS:  WORKERS COMPENSATION -  Medical Assessor (MA) made an assessment of 19% whole person impairment (WPI) and deducted one tenth for pre-existing condition; employer submitted that assessment was made on basis of incorrect criteria MA failed to apply Guideline 11.10 of the  NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 and the MA failed to make an appropriate deduction for pre-existing condition; Cole v Wenaline and Marks v Secretary, Department of Communities and Justice (No 2) considered; Held - Medical Assessment Certificate confirmed.

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

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 24 September 2021 ING Bank (Australia) (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Douglas Andrews, Medical Assessor (the MA) and issued on 27 August 2021.

  2. The respondent to the appeal is Simon Cole (Mr Cole).

  3. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):

    · the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act, and

    ·        the MAC contains a demonstrable error.

  4. The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.

  5. The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.

  6. 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.

  7. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

  1. Mr Cole sustained an aggravation, acceleration, exacerbation or deterioration of a disease, namely, a persistent depressive disorder in the course of his employment as a Contact Centre team leader as a result of alleged bullying and harassment by senior management from 2018 and a distressing episode dealing with an “irate, abusing and screaming client” in February 2020.

  2. In the Certificate of Determination – Consent Orders dated 13 August 2021 Member Kerry Haddock remitted the matter to the President for referral to a MA for assessment of permanent impairment as a result of psychiatric/psychological disorder, deemed to have occurred on 4 February 2020.

  3. The matter was referred to the MA, Dr Douglas Andrews, on 16 August 2021 for assessment of whole person impairment (WPI) of Mr Cole’s psychological disorder.

  4. The MA examined Mr Cole by video link on 25 August 2021 and assessed 19% WPI in respect of the psychological disorder. The MA made a deduction of one-tenth for a pre-existing condition under s 323 of the 1998 Act. Therefore, the total WPI was assessed as 17% WPI as a result of the injury on 4 February 2020.

PRELIMINARY REVIEW

  1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

  2. The appellant did not request that Mr Cole be re-examined by a MA who is a member of the Appeal Panel.

  3. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Cole to undergo a further medical examination because there was sufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

  1. The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

  1. The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

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

  2. The appellant’s submissions include the following:

    ·        Ground 1 – the assessment was made on the basis of incorrect criteria as the MA incorrectly assessed Mr Cole’s impairment by failing to apply Guideline 11.10 of the Guidelines.

    ·        Guideline 11.10 of the Guidelines should be taken to mean that the MA should undertake two Psychiatric impairment rating scales (PIRS) assessments. One based on evidence of pre-injury functioning, and one to reflect post injury functioning. The impairment assessed under the PIRS should then be deducted from the post injury assessment.

    ·        In Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks) at [29] where Simpson AJ noted the following:

    “I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid”.

    ·        Marks confirmed that cl 11.10 of the Guidelines is to be applied, unless the assessment of the pre-existing condition under the PIRS finds a 0% impairment, in which case the use of the use of the PIRS is inconsistent with s 323(1).

    · The MA's failure to apply Guideline 11.10 demonstrated the MA’s assessment of impairment, and relevant deductions due to pre-existing condition, has been made on the basis of incorrect criteria and satisfies the ground of appeal in s327(3)(c) of the 1998 Act.

    ·        Ground 2 – the MA fell into error by failing to make an appropriate deduction for pre-existing conditions considering the available medical evidence in accordance with s 323 of the 1998 Act.

    ·        In the MAC, the MA noted the following:

    "The circumstances of his workplace have exacerbated Mr Cole's pre-existing depression and anxiety. Had he not had a pre-existing condition, his current symptoms would likely be less, as would his impairment. Major depression is a chronic relapsing illness and commenced in 2010 or earlier. He had a prejudicial upbringing that contributes to his vulnerability. There was likely mental illness in both of his parents, evidence by their substance use and his father's suicide. However, he functioned reasonably well on a day-to-day basis, working continuously since leaving school. Hiss long-term relationship with Alana was strained in 2019, but he repaired this, and they remain together now as a loving couple.”

    ·        The MA confirmed the following as accurate with reference to the report of Dr Geoff McDonald:

    "Mr Cole took antidepressants for a period in 2010 after his cousin, to whom he was very close, was murdered by his fiancee by stabbing. He stated ‘this broke my heart’. He took the antidepressant fluoxetine from about 2013 to 2016. From about 2018, he was on the antidepressant sertraline 50 mg daily, and this was increased to 100 mg by his GP in February 2020. He has in the past also taking quetiapine when his niece disclosed sexual abuse in 2019."

    ·        The MA also made comments regarding another potential stressor being Mr Cole's father's suicide in 2019. The MA also referred to a relationship Mr Cole had with a co-worker in 2019 who fell pregnant. Mr Cole separated from his wife during this time. They have now reconciled.

    ·        The clinical records from Tuggerah Medical Centre included in the Application to Resolve a Dispute (ARD) referenced the respondent's history of psychiatric illness, in particular the entries on 31 March 2016, 23 September 2018, 25 September 2018, 12 July 2019 and 8 August 2019.

    ·        Based on this history provided by the MA and within the clinical records, the 10% deduction made by the MA pursuant to s 323 of the 1998 Act was at odds with the available evidence. Despite referring to the significant history of symptoms that Mr Cole suffered from the MA did not make an appropriate deduction for these pre-existing conditions.

    ·        The MA’s failure to consider the available evidence and the history when making a deduction pursuant to s 323 of the 1998 Act constitutes a demonstrable error.

    ·        The MA’s assessment of deductions pursuant to s 323 of the 1998 Act, was made on the basis of incorrect criteria, as the MA did not undertake a PIRS assessment of the pre-existing condition, as required by cl 11.10 of the Guidelines.

    ·        The MA’s application of a one-tenth deduction constitutes a demonstrable error pursuant to s 323(2) of the 1998 Act. The extent of pre­ existing impairment was not difficult of costly to determine due to the availability of contemporaneous medical evidence, and accordingly a one-tenth assumption should not have been used.

    ·        A one-tenth deduction is at odds with the available medical evidence, and that the MA failed to consider the available medical evidence appropriately when making deductions pursuant to s 323 of the 1998 Act which constitutes a demonstrable error (s 327(3)(d)).

    ·        The assessment of 19% WPI made by the MA should not be disturbed and the Appeal Panel should limit their review to the Application of s 323 of the 1998 Act and Guideline 11.10.

    ·        In the event an assessment under the PIRS of the pre­ existing condition, in line with cl 11.10, results in 0% WPI, that it is inconsistent with s 323(1) of the 1998 Act, and that deductions be made in line with s 323(2) of the 1998 Act.

    ·        A one-tenth deduction for Mr Cole’s pre-existing condition, is at odds with the available medical evidence pursuant to s 323(2) of the 1998 Act.

    ·        The MAC should be revoked, and an amended MAC issued in its place.

  3. The respondent’s submissions include the following:

    ·        Mr Cole suffered pre-existing mental health problems since 2010 diagnosed as longstanding depression and anxiety by the treating psychiatrist, Dr A Mason.

    ·        It is reasonable to infer that the MA found the pre-existing condition was 0% WPI as it was noted: “Mr Cole states that things had settled down for him before the incident in February 2020.”

    ·        Commenting specifically on the extent of Mr Cole’s pre-existing condition, the MA on p 8 of the MAC commented: “... he functioned reasonably well on a day-to-day basis, working continuously since leaving school. His long-term relationship with Alana was strained in 2019, but he repaired this, and they remain together now as a loving couple.”

    ·        Accordingly, the assessment was not made on the basis of incorrect criteria.

    ·        The MA reviewed the clinical records of Tuggerah Medical Centre and made specific reference to prior events (p 3 of the MAC) noting in particular: (a) that Mr Cole was only taking Sertraline 50 mg daily from about 2018, which increased to 100mg following the episode in February 2020; (b) otherwise the respondent worker only took Fluoxetin following the death of his cousin from 2013 to 2016, and Quetiapine in 2019 in relation to the sexual abuse of his niece; (c) Mr Cole "was not overly affected” by his father’s suicide in 2019 as he was estranged from his father from the age of 14, and (d) he separated from his wife from May to November 2019 but they have since reconciled and now enjoy a close relationship.

    ·        The MA carefully reviewed the pre­conditions and accepted Mr Cole’s statement that: “...things had settled down for him before the incident in February 2020.”

    ·        Accordingly, the one-tenth deduction made by the MA pursuant to s 323 of the 1998 Act was justifiable and not at odds with the available evidence.

    ·        A MAC, like any administrative decision, is meant to inform and not be scrutinised over-zealously in an attempt to glean some inadequacy from the reasons expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31]. The decisions made by the MA are sound.

    ·        Even if it is found that the MA made errors with respect to the reasoning process (which is not conceded), the appellant failed to demonstrate the findings were in fact wrong or how it is material.

    ·        The applicant should be dismissed.

FINDINGS AND REASONS

  1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

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

  3. The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.

  4. Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

The Medical Assessment Certificate

  1. Under “History relating to the injury”, the MA wrote:

    “Mr Cole worked in the ING Contact Centre between 2014 and February 2020. He remains an employee of the company.

    He said that he experienced bullying and harassment at the hands of senior management during 2018 and 2019. He was a witness in a bullying complaint made against his Sydney manager by a female colleague. After that, he felt targeted, which continued when he returned to Tuggerah as a team leader. His then-manager warned him that others wanted to have him removed from his position, leading to paranoia and anxiety.

    In his statement, Mr Cole wrote:

    Put on a support plan by David Finlay (Manager at the time) as he advised me countless times I would be targeted by the management team once he had left for his career break. David advised me I couldn’t trust any of the leadership group and the support plan would ensure I was best equipped to deal with the contact centre leadership group. This made me extremely anxious and I was extremely scared coming to work for quite a long time.

    He was demoted in December 2019 for having a relationship with a colleague without disclosing this to management. He had told his immediate manager, but this information had not been passed on.

    Much of this resolved by the end of 2019.

    In February 2020, he took a call from a distressed woman who had lost her wallet had no access to funds. She was ‘irate, abusing and screaming’ and her behaviour led him to believe she was suicidal. He assisted her over an extended time.

    He felt unsupported by management and was criticised for how he handled the situation.

    After the call, Mr Cole was highly distressed and sought help from his general practitioner. He was referred to a psychologist and a psychiatrist.”.

  2. “Under “Details of any previous or subsequent accidents, injuries or conditions’” the MA wrote:

    “Mr Cole has had long-standing depression and anxiety.

    Mental health problems started in 2010.

    IME psychiatrist Dr Geoff McDonald, 4 May 2020, wrote:

    Mr Cole took antidepressants for a period in 2010 after his cousin, to whom he was very close, was murdered by his fiancée by stabbing. He stated ‘his broke my heart.’ He took the antidepressant fluoxetine from about 2013 to 2016. From about 2018, he was on the antidepressant sertraline 50 mg daily, and this was increased to 100 mg by his GP in February 2020. He has in the past also taking quetiapine, when his niece disclosed sexual abuse in 2019.

    I read this paragraph to Mr Cole, and he agreed that it was accurate.

    Mr Cole was still on sertraline when he went off work in February 2020.

    Another potential stressor was his father’s suicide in 2019, although Mr Cole was estranged from his father from the age of 14, so he was not overly affected by this.

    He was in a relationship with a co-worker, Ashleigh, between July 2019 and November 2019. Ashleigh fell pregnant; she kept the child, but Mr Cole no longer has any contact with her. He acknowledged that the child might be his.

    He separated from his wife between May 2019 and November 2019, during which time they had shared custody of their children. They have reconciled.

    Mr Cole states that things had settled down for him before the incident in February 2020.”

  3. Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA made the diagnoses of persistent depressive disorder with a current major depressive episode and a generalise anxiety disorder (GAD). The MA noted: “Mr Cole meets DSM-5 criteria for a major depressive disorder on a background of depressive symptoms persisting for more than two years. He has long-standing GAD”.

  4. Under “Evaluation of permanent impairment” the MA wrote:

    “Mr Cole has long-standing problems with anxiety and depression, which have become much worse since February 2020. He has had comprehensive treatment with multiple medication trials and some psychotherapy. Despite this, he remains unwell. His condition, and associated impairment, are unlikely to change substantially over the next 12 months, with or without further medical treatment. His condition is stable, and he has reached  maximum medical improvement.

    …

    Mr Cole has pre-existing mood and anxiety disorders. On the available history, he likely had a persistent depressive disorder and a generalised anxiety disorder. He had been on treatment on and off since 2010”.

  1. At Pt 11 of the MAC under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” the MA wrote:

    “a.     In my opinion, the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:

    Persistent depressive disorder and generalised anxiety disorder.

    b.      The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:

    The circumstances in his workplace have exacerbated Mr Cole’s pre-existing depression and anxiety. Had he not had a pre-existing condition, his current symptoms would likely be less, as would his impairment. Major depression is a chronic relapsing illness and commenced in 2010 or earlier. He had a prejudicial upbringing that contributes to his vulnerability. There was likely mental illness in both of his parents, evidenced by their substance use and his father’s suicide.

    However, he functioned reasonably well on a day-to-day basis, working continuously since leaving school. His long-term relationship with Alana was strained in 2019, but he repaired this, and they remain together now as a loving couple.

    c.      The extent of the deduction is difficult or costly to determine, so in applying the provisions of s.323(2) I assess the deductible proportion as one-tenth”.

Discussion

  1. The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.

  2. The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Section 323 deduction

  1. The Guidelines which were in force at the time that the MA made his assessment of the appellant were reissued on 1 March 2021 and applied to assessments of permanent impairment conducted on or after that date.

  2. The Guidelines at Pt 2 under “Principles of Assessment” at Guideline 1.6 provide:

    “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 judgment in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.

    c. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. ...

    d. The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought. 
    ... “

  1. The Guidelines under “Deductions for pre-existing conditions or injuries” at Guidelines 1.27 and 1.28 provide:

    “1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.

    1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”

  2. Chapter 11 of the Guidelines headed “Psychiatric and psychological disorders”, at p 11.1 lays out the method for assessing psychiatric impairment.

  3. The Guidelines at Guideline 11.10 under “Pre-existing impairment” provide:

    “To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”

  4. The Guidelines in Ch 11 do not provide that the 10% deduction is to be made when a pre-injury PIRS assessment is difficult or costly to determine although such a provision is contained in s 323 of the 1998 Act.

  5. Section 323 of the 1998 Act provides:

    “(1)    In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

    (2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.

    Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).

    (3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.

    (4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”

  6. The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:

    “29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre- existing injury, pre-existing condition or abnormality caused or contributed to that impairment.

    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 s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.

    31     …That is a matter of fact to be assessed on the evidence led in each case”.

  1. However, in Cole the injury concerned was physical and, therefore, one to which the AMA 5 Guides, adopted by the Guidelines (issued pursuant to s 376 of the 1998 Act) were applicable. Guideline 11.10 had no application and the relevant Guideline was 1.28.

  2. In Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks) at [29] where Simpson AJ noted the following:

    “I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid”.

  3. Marks confirmed that cl 11.10 of the Guidelines is to be applied unless the assessment is that of a pre-existing but asymptomatic condition.

Ground 1 – failure to apply cl 11.10 of the Guidelines

  1. The appellant submitted that the assessment was made on the basis of incorrect criteria as the MA incorrectly assessed the respondent’s impairment by failing to apply cl 11.10 of the Guidelines. The appellant argued that Guideline11.10 of the Guidelines should be taken to mean that the MA should undertake two PIRS assessments, one based on evidence of pre-injury functioning, and one to reflect post injury functioning. The impairment assessed under the PIRS should then be deducted from the post injury assessment.

  2. However, the Appeal Panel noted that the Guidelines at 11.10 also provide that if the percentage of pre-existing impairment cannot be assessed, the deduction is one-tenth of the assessed WPI.

  3. The MA stated that in the MAC at Pt 11. c: “The extent of the deduction is difficult or costly to determine, so in applying the provisions of s 323(2) I assess the deductible proportion as one-tenth”.

  4. The Appeal Panel accept that the MA considered that the extent of the deduction was difficult or costly to determine and so he applied the provisions of s 323(2) and made a deduction of one-tenth.

  5. Section 323(2) does provide that if the extent of a deduction under s 323 (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed that the deduction is 10% of the impairment, unless this assumption is at odds with the available evidence.

  6. The Appeal Panel noted that the MA considered that Mr Cole had long-standing problems with anxiety and depression, which became much worse since February 2020. The Appeal Panel regarded this as a finding that Mr Cole was not asymptomatic before the work injury.

  7. The Appeal Panel inferred given the AMS specifically referred to the provisions of s 323(2) that he considered that 10% deduction was not at odds with the evidence.

  8. The MA found that Mr Cole had two longstanding psychiatric conditions, namely, a persistent depressive disorder and a generalised anxiety disorder, both of which contributed to his current impairment. The MA made a deduction of one-tenth of the assessed WPI. The MA was of the view that the percentage of pre-existing impairment could not be assessed. The Appeal Panel considered that it can be inferred given the MA specifically referred to the provisions of s 323(2) that he considered that 10% deduction was not at odds with the evidence.

  9. The appellant argued that the extent of pre­ existing impairment was not difficult or costly to determine due to the availability of contemporaneous medical evidence. While there were some clinical notes available from the treating general practitioners there was actually little other material available concerning the impairment arising from Mr Cole’s pre-existing condition just before 2018 when he alleged he was subjected to bullying and harassment by senior management. The Appeal Panel was not persuaded in the circumstances that the extent of pre-existing impairment was not difficult or costly to determine.

  10. The Appeal Panel was satisfied that the MA did not make the assessment on the basis of incorrect criteria.

Ground 2 – failure to make an appropriate deduction for pre-existing condition in accordance with s 323

  1. The appellant submitted that the MA fell into error by failing to make an appropriate deduction for pre-existing conditions considering the available medical evidence in accordance with s 323 of the 1998 Act.

  2. The Appeal Panel considered the evidence in this matter.

  3. In his statement dated 3 September 2020, Mr Cole said that he had been employed by the appellant as a senior contact centre manager for about eight years and for the last six years dealt with calls from complex customers which were too difficult for other operators to handle. He wrote:

    “19.   In 2018/19 I put a claim for workplace bullying/ psychological injury and l had some time off. ln 2010 I was on antidepressants when my cousin died and in 2013 I was on antidepressants till 2016 when I stopped taking it. I broke my ankle in 2018. My wife and I split for a short time but we reconciled in 2019.

    20.    I took 50 mg doses of sertraline in about 2019 after an episode of workplace bullying but I stopped taking that medication almost immediately in 2019. At the time of DOI:4/2/20 I was not on any medication.”

  1. Dr Anthony Mason, treating psychiatrist in a report dated 3 April 2020 made diagnoses of generalised anxiety disorder, major depressive disorder and adjustment disorder. He wrote:

    “Past Psychiatric History:


    Simon was on antidepressants in 2010 for a few months after his cousin died. In 2013, he restarted antidepressants and took fluoxetine for three years and then stopped. In 2018, he started sertraline again. The does was increased in February 2020, to 100 mg daily. At the time mirtazapine was prescribed initially 15 mg, increased to 30 mg and then 45 mg which he has been on for two weeks in combination with sertraline 100 mg. He has tried diazepam which did work slightly and also lorazepam which was not effective. In the past, he has tried quetiapine”.

  2. Dr Geoff McDonald, consultant psychiatrist, in a report dated 4 May 2020 wrote:

    “Previous Psychiatric History:

    Mr Cole took antidepressants for a period in 2010 after his cousin, to whom he was very close, was murdered by his fiance by stabbing. He stated this "broke my heart." He took the antidepressant fluoxetine from about 2013 to 2016. From about 2018, he was on the antidepressant sertraline 50 mg daily, and this was increased to 100 mg by his GP in February 2020. He has in the past also taken quetiapine, when his niece disclosed sexual abuse in 2019.

    Diagnoses - Chronic adjustment disorder with depression and anxiety: recent

    exacerbation.

  3. Dr Geoff McDonald Consultant psychiatrist in a report dated 26 February 2021 made a diagnosis of a major depressive disorder recurrent. He wrote:

    “In my last report I diagnosed exacerbation of Chronic Adjustment Disorder. The difference from MOD is one of degree. I have elected to prefer the MOD diagnosis today, to reflect Mr Cole's lack of improvement since our last interview and his degree of reported disability”.

  4. Dr Thomas Oldree Clark, consultant psychiatrist, in a report dated 6 August 2020 wrote:

    “He has a prior history of depression, for which he was treated. He was taking antidepressants and had stabilised before the incident on 4 February 2020. He had stopped the antidepressants in 2016 and restarted during the perceived problems of his employment. This constitutes an exacerbation of his prior depression”.

  5. In calculating WPI, Dr Clark assessed 17% WPI and deducted 1.7% rounded to 2%, resulting in 15% WPI. He wrote:

    “Less pre-existing impairment (if any). There is evidence of a pre-existing psychiatric condition, which would cause significant impairment, although difficult to calculate. According to the NSW Workers Compensation, if the percentage of pre-existing impairment cannot be assessed, the deduction is 1/l0th of the assessed WPI”.

  6. Dr Clark, in a supplementary report, dated 22 April 2021 wrote:

    “Mr Cole has suffered an exacerbation of his former symptoms, which were similar and consistent with the diagnosis of a Persistent Depressive Disorder. That is, the symptoms he suffered following the 2019 bullying and February 2020 phone calls are similar to and consistent with the diagnosis of a Persistent Depressive Disorder and therefore constitute a ‘single injury.’


    This was a consistent diagnosis. That is, Mr Cole suffers a Persistent Depressive Disorder.”

  7. In a referral to Dr Mason dated 4 March 2020, Dr Peter Kemp, general practitioner, noted that Mr Cole had been subject to some incredibly stressful events at work in recent times and taken calls from individuals threatening suicide etc. Dr Kemp noted that Mr Cole had a background of anxiety / depression with his own father committing suicide by driving into a tree. Dr Kemp wrote: “Backgound os [(sic] separation from his wife, got another woman pregnant and is now back with his wife”.

  8. The clinical notes of Tuggerah Medical Centre included the following entries:

    (a)    On 31 March 2016 Dr Abhijit Ray noted that Mr Cole:

    “has been on cymbalta 60mg daily for last 2y for anxiety/depression cousin was murdered 6y ago - he regards this as one of the main factors, work has been stressful saw a psychologist at Erina medical centre in 2014/2015 - did not help - lives with wife and children - 3 & 5y normally trains 6 days per week at the gym - has reduced frequency over last few weeks no suicidal ideation. Reason for visit -Anxiety/Depression. Says he went 'cold turkey' for 10 days approx 12m ago - struggled with anxiety wants to switch ADs as cymbalta not helping - has not been on any other ADs
    Medication prescribed: Cymbalta 30mg Capsule 1 Daily.
    Medication prescribed: Sertraline 50mg Tablet 1 Daily.
    Prescription printed: Cymbalta 30mg Capsule 1 Daily
    Prescription printed: Sertraline 50mg Tablet 1 Daily
    casually dressed
    good eye contact
    conversational
    appears to have good eye contact 1. drop down to cymbalta 30mg daily
    2. introduce sertraline 50mg daily on day 21
    3. review 21-28 days - sooner if worsening
    declined counselling/psychology - did not help before
    otherwise fresh air/exercise

    Medical Certificate given from 31/03/2016 until 01/04/2016”.

    (b)    On 28 April 2016, Dr Abhijit Ray noted: “has now come off Cymbalta now on sertraline 50mg daily - still feeling ‘on edge’ and anxious- long chat – agreed to increase dose to 100mg daily, see how we go”.

    (c)    On 23 September 2018, Dr Michael Cranney noted:

    “pts niece (sister daughter) been sexually assaulted by her stepdad 10/7 ago poor sleep, angry, work at bank., 8, 5 yr old children counselling... Reason for visit: viral URTI grief counselling. Actions: Sertraline 100mg Tablet ceased (by pt months ago).???later restart??? Prescription printed: Temaze 10mg Tablet 1 in the evening.”

    (d)    On 25 September 2018, Dr David Burcher noted:

    “as above distressed after news of niece's assault. temaze without effect. boss sent him home early -- told him to get something to help. has appt 3/7 with counsellor - feels weight on chest and felt everything closing in on him at work with all the talk (call centre). was on sertraline until a few/12 ago- PTSD following finding a friend suicided 2010 – was OK with it. … discuss. will prob req SSRI again. will try diaz for time being. See after counsellor. Reason for visit: anxiety. Actions: Temaze 10mg ceased. Prescription printed: Diazepam 5mg Tablet 1/2 tds, 1 Before bed p.r.n.”

    (e)    On 12 June 2019, Dr Peter Kemp noted:

    “Has orif left ankle, workers compensation, frequent panic attacks due to work stressors. Harrassment in workplace, head of ING call centre needs cert to cover this week. Poor sleep…Reason for visit: harassment at work”.

    (f)    On 17 June 2019, Dr Abhijit Ray noted:

    “has lodged a formal complaint to employer for workplace harassment. Being investigated by HR also going through a desperation with wife employer has organised counselling for him…says he has weaned himself off targin now no thoughts of self harm considering restarting SSRI again – have given him script.”

    (g)    On 21 June 2019, Dr Abhijit Ray noted: “looks brighter today looking forward to getting back to work on Monday back to gym now has restarted sertraline – no issues so far.”

    (h)    On 12 July 2019, Dr Abhijit Ray noted: “hospital appt rescheduled for next week -father died in car accident earlier this week already has counselling arranged through work says he will take off next week anyway feels he is coping OK for now.”

    (i)    On 8 August 2019, Dr Abhijit Ray noted: “grandmother has recently been diagnosed with terminal cancer … last went to gym end of last week, is trying to go regularly.”

    (j)    On 5 February 2020, Dr Peter Kemp noted:

    “issues – got call at work from woman threatening suicide with her child in care. Threatening head on. Also separated from wife for 6 months, got another woman pregnant, now back with wife, to see counsellor at Imperial Centre, she works at his workplace. Also father committed suicide 8/7/19 by driving car into tree, cost of counselling covered by work. After discussion will increase sertraline to 2 daily…stress, grief, PTSD. Reason for visit: stress. Actions: ...Dose of Sertraline 50mg Tablet changed from 1 In the morning to 2 In the morning.”

    (k)    On 11 February 2020, Dr Abhijit Ray noted:

    “previous entry reviewed is seeing counsellor arranged by employer – saw them for 1st time yesterday says he is back together with his wife SSRI dose increased last week …stressed ++sleeping less denies thoughts of self harm ... Actions: Medical Certificate given from 11/02/2020 until 16/02/2020. add mirtazapine – counselled review in 203 weeks see sooner if worsening.”

    (l)    On 21 February 2020, Dr Li Yen Lim after Reason for visit wrote “workers compensation certificate”. Dr Lim noted:

    “9th Dec 2019 given new role - contact centre support specialist for ING- tells me no support/training4th Feb took call from female customer she had mental breakdown over phone whilst driving with her son after 2 hrs taken off the call broke down, crying after took next day off work, seen Dr Kemp 5.2.20 - sertraline increased to 100mg - called work on that day too but not heard any further back to work 6th, no recall of any issues. 7th Feb Fri- had threats from customer to burn building down- finished work. 10th Feb Mon- called into meeting performance review – left after that lunchtime 12.30pm – saw counsellor before work that day, has FU next Monday 24.2.20 has med cert 5.2.20 and 11-16.2.20.11 Feb Tues – seen Dr AR started on Mirtazaphine 15mg – med cert 11-16.2.20 17th Feb Mon – spoke to HR to discuss being taken off any calls - - asked for week off work, has been given it without any med cert (using A/L) now insomnia poor concentration and moods antidep since June 2019 - off them since 2017 has FU with work counsellor on Mon…FU with Dr Ray on 5.3.20 when he is back.”

  1. Mr Cole stated that he was taking antidepressants until 2016 when he stopped taking them and then took 50 mg doses of sertraline in about 2019 after an episode of workplace bullying but stopped taking that medication almost immediately in 2019. He said that he then started to take medication again in February 2020. This history was not entirely consistent with all of the clinical notes of Tuggerah Medical Centre. It appeared from those notes that on 23 September 2018 Dr Cranney reported that Mr Cole had been taking Sertraline 100mg tablets until some months ago. On 25 September 2018 Dr Burcher noted that Mr Cole had been sent home because he was distressed by his niece’s assault and would probably require SSRI again. Dr Burcher noted that Mr Cole had been on sertraline until a “few/12 ago”. On 17 June 2019 Dr Roy noted that Mr Cole had lodged a complaint about workplace harassment and considered restarting SSRI again. On 21 June 2019 Dr Roy noted that Mr Cole had restarted sertraline. On 5 February 2020 Dr Kemp noted Mr Cole had issues at work and increased sertraline to 2 daily. It is difficult to work out precisely when Mr Cole was taking antidepressants in the pre-injury period.

  2. After considering the evidence in this matter, the Appeal Panel concluded that it was open to the MA on the evidence before him and the results of his clinical examination to make a deduction of one-tenth for pre-existing conditions. The evidence discloses that although Mr Cole had some periods where he was stressed and anxious and required medication, at the time when he first alleged that he was subjected to bullying in the workplace, namely in 2018 and 2019, he was functioning reasonably well. He was employed full time and his work duties were reasonably demanding. He did not require any significant period of time off work because of his pre-existing condition.

  3. Dr Oldtree Clark in his report dated 6 August 2020 made a deduction of one-tenth for pre-existing condition.

  4. The Appeal Panel concluded that the deduction of one-tenth was open to the MA to make on the evidence and the MA did not fall into error by failing to make an appropriate deduction for pre-existing conditions in accordance with s 323 of the 1998 Act. The Appeal Panel was satisfied that the deduction of one-tenth for pre-existing conditions was not at odds with the evidence.

  5. The Appeal Panel considered taking into account the period of time which has passed since the bullying alleged to have started in 2018, that the percentage of pre-existing impairment could not be accurately assessed by reference to Mr Cole’s pre-injury level of functioning. It is very unlikely in view of Mr Cole’s current condition that he would be able to recall accurately sufficient information about his level of functioning in the activities that need to be rated in the PIRS as those activities occurred some years ago.

  6. But based on the evidence available, the Appeal Panel noted that even if the MA had adopted the other approach set out in Guideline 11.10 of the Guidelines and rated Mr Cole’s pre-injury level of functioning in each of the areas of function, the result in terms of a deduction pursuant to s 323 of the 1998 Act would have been the same or possibly even less.

  7. Mr Cole did not appear to take any time off from work to deal with the pre-existing conditions pre-injury beyond one or two days noted by his GP following a very stressful event, as would most employees. The Appeal Panel was satisfied that in terms of the scale of employability, there was no deficit, or minor deficit attributable to the normal variation in the general population (class 1) in Mr Cole’s level of pre-injury functioning in this scale.

  8. Mr Cole was able to take stressful telephone calls and deal with complaints from customers that were too difficult for other operators to handle. There was no mention of cognitive difficulties in any setting. Mr Cole did not appear to have any difficulty maintaining focus and concentration pre-injury. The Appeal Panel was satisfied that in terms of the scale of concentration, persistence and pace, there was no deficit (class 1) in Mr Cole’s level of pre-injury functioning in this scale.

  9. The Appeal Panel noted that the MA (on p 4 of the MAC) noted that Mr Cole, before becoming unwell, was active with bushwalking and swimming, enjoyed an active social life and time with his family and coached his son’s soccer team. The Appeal Panel was also satisfied that there was no deficit or minor deficit attributable to the normal variation in the general population in Mr Cole’s level of pre-injury functioning in the scale of social and recreational activities. The Appeal Panel was satisfied that in terms of the scale of social and recreational activities, there was no deficit (class 1) in Mr Cole’s level of pre-injury functioning in this scale.

  10. There was no evidence that Mr Cole had any problems with travel pre-injury. He travelled to work, and to attend his social and recreational activities. The Appeal Panel was satisfied that there was no deficit or minor deficit attributable to the normal variation in the general population in Mr Cole’s level of pre-injury functioning in the scale of travel. The Appeal Panel was satisfied that in terms of the scale of travel, there was no deficit (class 1) in Mr Cole’s level of pre-injury functioning in this scale.

  11. There was no evidence that Mr Cole had problems with self-care and personal hygiene pre-injury. However, if there had been a mild impairment in those areas, Mr Cole would have been assessed at most as class 2 for self care and personal hygiene in his level of pre-injury functioning in this scale.

  12. There was, however, evidence of strain in Mr Cole’s relationship with his wife in 2019, and they separated for a six month period. The Appeal Panel considered that this was a moderate impairment and would result in a class 3 rating for social functioning.

  13. These assessments of class 1 for employability, concentration, persistence and pace, social and recreational activities, and travel and class 2 for self care and personal hygiene and class 3 for social functioning result in median class score of 1 and an aggregate score of 9, which is converted to 1% WPI. The MA made a deduction of 2% WPI so the result, using the method of assessing the s 323 deduction as set out in Guideline 11.10 of the Guidelines (that is, assessing Mr Cole’s pre-existing WPI and deducting it from the current level of WPI to obtain the percentage of permanent impairment directly attributable to the work-related injury), would not be the same but less.

  14. Therefore, the Appeal Panel agrees with the MA that a deduction of one-tenth in accordance with the provisions of Guideline 11.10 of the Guidelines and s 323(2) is appropriate in this case and not at odds with the evidence.

  15. For these reasons, the Appeal Panel has determined that the MAC issued on 27 August 2021 by the MA should be confirmed.

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