iStaff Australia Pty Ltd v White

DETERMINATION OF APPEAL PANEL
CITATION:	iStaff Australia Pty Ltd v White [2024] NSWPICMP 504
APPELLANT:	iStaff Australia Pty Ltd
RESPONDENT:	Mathew White
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	26 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; where the Commission noted the parties’ agreement that there had been primary and secondary psychological injury and an apportionment of impairment between the primary and secondary psychological injuries must be addressed; whether the Medical Assessor (MA) erred in failing to apportion permanent impairment to secondary psychological injury; Held – no power to make apportionment in the absence of a determination by the Commission that there was secondary psychological injury; purported apportionment of 0% whole person impairment made in any event; appeal dismissed.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Verma dated 5 March 2024. Medical Assessor Verma assessed a 7% whole person impairment as a result of psychological injury on 11 July 2019 (deemed date).
In separate proceedings, the worker, Mr White, has also appealed from that assessment.
The employer says that the Medical Assessor erred by failing to comply with the referral for assessment made by the Personal Injury Commission (Commission).
By a Certificate of Determination – Consent Orders dated 6 February 2024, the Commission had remitted the matter for referral to a Medical Assessor “for assessment of the applicant’s whole person impairment attributable to a primary psychological injury suffered on
11 July 2019 (deemed)”.
Without further determination, the Commission noted the agreement of the parties as follows – emphasis added:
“A. The parties agree that the applicant has a psychological condition secondary to the physical injury on 25 May 2019 as a result of pain and other restrictions caused by this injury.
B. The parties agree that the applicant suffers both a primary and secondary psychological injury, and an apportionment of impairment between the primary and secondary psychological injuries must be addressed by the Medical Assessor.”
On 27 February 2024 the worker was examined by Medical Assessor Verma, who issued her assessment on 5 March 2024. As indicated, she assessed a 7% whole person impairment as a result of psychological injury. She made no finding to the effect that any impairment resulted from a secondary psychological injury.
The appellant employer says that she erred in failing to apportion the assessed whole person impairment as between the primary and secondary psychological injuries, in accordance with the Certificate of Determination.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

EVIDENCE

Documentary evidence

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits as follows:
(a)    In the substantive proceedings before the Commission:
(i)the employer disputed liability in reliance on the opinion and assessment of independent psychiatrist Dr Saboor, and
(ii)at teleconference [sic] on 6 February 2024, a member of the Commission noted ‘that the worker suffers from a concurrent secondary psychological injury – and that the MA is to apply an apportionment attributable to the secondary condition’.
(b)    By a Certificate of Determination dated 6 February 2024, the Member:
(i)noted that the parties agreed that ‘the applicant had a psychological condition secondary to the physical injury on 25 May 2019 as a result of pain and other restrictions caused by this injury’, and
(ii)‘required the Medical Assessor to apply an apportionment attributable to the secondary condition’.
(c)    The Medical Assessor erred in finding there was no secondary psychological injury.
(d)    That was a finding on causation, which did not form part of the medical dispute before the Medical Assessor.
(e)    The Medical Assessor therefore conducted an assessment on a matter not referred to her for assessment.
(f)    The Medical Assessor failed to provide reasons for not making an apportionment, having regard to the ‘extensive entries in the clinical records’ - none of which are specified in the appellant’s submissions.
(g)    All the assessed impairment should be apportioned to secondary psychological injury, in accordance with the views of Dr Saboor.
The respondent worker submits as follows:
(a)    the Medical Assessor had regard to the secondary (‘consequential’) psychological injury and “explicitly determined that the total of whole person impairment assessment was caused by his primary psychological injury, that there was ‘no deductible proportion’”;
(b)    it was ‘within her discretion’ to assess whether or not the worker continued to experience symptoms resulting from the secondary psychological injury, as she did;
(c)    the Medical Assessor explicitly referred to the assessment of Dr Saboor, and provided reasons as to why her assessment differed, and
(d)    she did not determine that the worker had not suffered a secondary psychological injury, or make any findings on causation.

FINDINGS AND REASONS

Compensation for impairment of the whole person is not payable ‘in respect of permanent impairment that results from a secondary psychological injury’: s 65A(1), Workers Compensation Act 1987. ‘Secondary psychological injury’ is defined as ‘a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury’: s 65A(5). ‘Primary psychological injury’ is defined as ‘a psychological injury that is not a secondary psychological injury’.
In State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [22], the Supreme Court found:
“22. … the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act. In my opinion this follows from the judgment of the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [109] – [111] by Emmett JA, with Meagher and Ward JJA agreeing. At [111] his Honour said:
‘It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act [1987 Act]. The Commission must always determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act [1998 Act]. However, that jurisdiction is subject to the restriction contained in s 65(3) in the Compensation Act [1987 Act], which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that the medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act [1987 Act] in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7 [of the 1998 Act].’ [Original emphasis]
23. Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase, ‘a disentitling provision’.”
Only a medical dispute may be referred to a Medical Assessor for assessment: s 321, Workplace Injury Management and Workers Compensation Act 1998. The issue as to whether a psychological injury is a secondary psychological injury does not form part of a medical dispute: Kaur. It follows that a Medical Assessor does not have power to determine whether an injury is a secondary or primary psychological injury. Unless the Commission finds that there was secondary psychological injury, the Medical Assessor has no power to attribute whole person impairment to it.
For those reasons, where both primary and secondary psychological injury has occurred, parties request the Commission to determine, by agreement or otherwise, whether there was primary and secondary psychological injury, and the nature of each, before referral for assessment of whole person impairment.
In this case, the Commission noted that the parties agreed on the following three propositions, of which the last two were contained in a single paragraph:
(a)    that the worker suffered from a ‘a psychological condition secondary to the physical injury on 25 May 2019’;
(b)    that he ‘suffers [sic, suffered] both a primary and secondary psychological injury’, and
(c)    that ‘an apportionment of impairment between the primary and secondary psychological injuries must be addressed by the Medical Assessor’.
Proposition (a) amounted to an agreement that a secondary psychological injury had occurred, and that the worker still suffered from a condition resulting from it. No determination to the effect that there was a secondary psychological injury was made by the Commission. There is no evidence that it was asked to do so. To empower the Medical Assessor to assess impairment resulting from a secondary psychological injury, it was necessary for a determination to be made that one had occurred. In the absence of such a determination by the Commission, the Medical Assessor lacked power to make such an assessment.
The same can be said in respect of proposition (b), which also amounts to an agreement that there was secondary psychological injury.
Proposition (c) amounts to an agreement that the task of the Medical Assessor was to apportion permanent impairment between primary and secondary psychological injury. The Medical Assessor either had power to assess impairment resulting from secondary psychological injury or not, depending on the terms of the statute. The parties cannot, by agreement, confer jurisdiction on a Medical Assessor which he or she does not have. In this case the Medical Assessor did not have that power, because the Commission had not determined that there had been secondary psychological injury, and the Medical Assessor had no power to do so because that issue did not form part of the medical dispute.
For those reasons, any alleged failure on the part of the Medical Assessor to apportion impairment between primary and secondary psychological injury is incapable of demonstrating error.
In any event, we consider that, when her reasons are read as a whole, the Medical Assessor did purport to make an apportionment. Having diagnosed major depressive disorder with anxious distress, she described the primary psychological injury at [7]:
“Mr White during his employment … sustained a physical injury. He, thereafter, returned to work with reduced duties. Mr White alleged that his psychological condition was caused by the maltreatment that was perpetrated by his employer during his attempts to return to work following his work-related physical injury. He stopped working because he was unable to tolerate the maltreatment and lack of support from his managers because of the work-related physical injury.”
In considering the assessment of Dr Khan dated 4 May 2023, she observed at [10c]:
“I agree that Mr White's current mental health issues do not seem to be a secondary condition.”
We interpret that to mean that his current psychological symptoms did not result from secondary psychological injury.
The Medical Assessor gave the following reasons for this conclusion at [10c], when explaining the difference between her assessment and that of Dr Saboor, who considered that impairment resulted only from secondary psychological injury:
“I respectfully disagree that his condition is a secondary psychological injury as even at the time of assessment, even though Mr White reported that there has been tremendous improvement in his physical health issues, he continues to experience psychological symptoms.”
The concept of ‘injury’ is distinct from a worker’s current condition, even if the latter results from the former. We interpret her disagreement with the proposition that ‘his condition is a secondary psychological injury’ to mean that the Medical Assessor disagreed that the worker’s then current ‘condition’ (or impairment) resulted from secondary psychological injury. Her reasons for that conclusion were that, despite the ‘tremendous improvement in his physical health issues’, psychological symptoms continued.
Even if that conclusion were one on which learned minds might differ, that passage was sufficient to disclose her path of reasoning. It explained why the Medical Assessor considered that all current impairment resulted from primary psychological injury, and none resulted from secondary psychological injury. We can discern no failure to provide reasons. She was not obliged to consider each and every clinical record I order to explain why she did not come to the opposite conclusion. In any event, the appellant has not identified the clinical records on which it relies in that respect.
Even if a nil apportionment exceeded power, because the Commission had not determined the occurrence of secondary psychological injury, it can have made no difference to the outcome because, for the reasons already given, the Medical Assessor would have had no power to apportion any part of the impairment to secondary psychological injury in any event.
For those reasons, it is not appropriate to set aside the Medical Assessment Certificate on the basis of any error alleged by the employer.

Directions

In the worker’s appeal no M1-W9474/23, we have discerned error in the assessment of certain of the psychiatric impairment rating scales (PIRS), and referred the worker for examination by Medical Assessor Baker on 30 August 2024. He is a member of this Panel. Our assessment will be made, and our reasons published, after examination.
Before the Commission on 6 February 2024, the parties appear to have agreed that there was a secondary psychological injury. To inform our assessment, it is appropriate to remit the matter to the Commission to make findings, by consent or otherwise, as to whether there was a secondary psychological injury, and if so, its nature, prior to examination by Medical Assessor Baker.
Accordingly, we make the following directions in proceedings M1-W9474/23 and M2-W9474/23:
(a) the matter is remitted to the Commission to consider the making of findings, by consent or otherwise, as to whether there was a secondary psychological injury and, if so, its nature, and
(b) the appointment with Medical Assessor Baker, currently scheduled for
30 August 2024, is postponed until a date to be notified by the Registry.

[2024] NSWPICMP 504

26 July 2024