Jalco Automotive Pty Ltd v Harris
[2023] NSWPICMP 374
•7 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Jalco Automotive Pty Ltd v Harris [2023] NSWPICMP 374 |
| APPELLANT: | Jalco Automotive Pty Limited |
| RESPONDENT: | Michelle Elizabeth Harris |
| Appeal Panel | |
| MEMBER: | Rachel Homan |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 7 August 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; deduction under section 323; psychological injury; Medical Assessor did not make section 323 deduction despite evidence of a pre-existing psychological condition which was being treated with medication at the time of the work injury; failure to take into account relevant material; pre-existing condition contributed to the impairment; extent of deduction difficult to determine; 10% deduction not at odds with the available evidence; Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq), Marks v Secretary, Department of Communities and Justice (No 2), and Secretary, Department of Communities and Justice v Lewandowski discussed; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 May 2023, Jalco Automotive Pty Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria (s 327(3)(c)), and
· the MAC contains a demonstrable error (s 327(3)(d)).
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
In a Certificate of Determination dated 17 January 2023, Member Gaius Whiffin determined that Michelle Elizabeth Harris (the respondent worker) sustained an aggravation, acceleration, exacerbation or deterioration of a disease, namely, a major depressive disorder, in the course of her employment with the appellant.
The matter was remitted to the President for referral to a Medical Assessor for assessment of permanent impairment resulting from the psychiatric/psychological injury deemed to have occurred on 17 March 2020.
The matter was referred to the Medical Assessor, Dr John Lam-Po-Tang, on 20 February 2023 for assessment of whole person impairment (WPI) of the respondent worker’s psychological disorder.
The Medical Assessor examined the respondent worker on 13 March 2023 and assessed 22% WPI in respect of the psychological disorder. The Medical Assessor made no deductions for a pre-existing condition under s 323 of the 1998 Act.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination.
The appellant submitted that a re-examination by a Medical Assessor who is a member of the Appeal Panel was not required. The respondent worker did not disagree. The appeal concerned only the application of s 323 of the 1998 Act and all relevant material was before us. Accordingly, a re-examination was not indicated.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submitted that:
(a) the Medical Assessor applied incorrect criteria and made a demonstrable error in failing to apply a deduction in accordance with s 323 of the 1998 Act consistent with the available medical and factual evidence detailing the extent of the respondent worker’s pre-existing psychological injury;
(b) the decision not to apply a deduction of one-tenth to the assessment of the respondent worker’s psychological injury was at odds with the available evidence which was provided to the Medical Assessor during his examination;
(c) in circumstances where the pre-existing condition was contributing to the overall degree of impairment, a deduction ought to have been applied by the Medical Assessor, and
(d) the Medical Assessor erred in failing to provide proper reasoning as to the reason why a deduction was not applied.
The appellant referred to relevant aspects of the documentary evidence before the Medical Assessor and the history recorded in the MAC itself and submitted that the respondent worker had a pre-existing psychiatric condition requiring medical attention and treatment prior to the work injury. The respondent worker’s evidence confirmed that she was already on anti-depressants prior to the injury and the injury had caused a deterioration of that condition requiring an increase in medication.
In reply, the respondent worker submitted that the appellant had mis-stated the correct guidelines for the application of s 323 of the 1998 Act in respect of a psychological injury. The respondent worker submitted that the correct guideline was contained in cl 11.12, which stated that an assessment must be made of the pre-injury condition and such assessment is to be set off from the post injury assessment, or if that is too difficult then 10% can be deducted from the post injury assessment.
The respondent worker disagreed that there were any symptoms suggestive of psychological injury as assessed under the psychiatric impairment rating scale (PIRS) system of assessment prior to the injury and so no deduction needed to be made.
The psychological history in the MAC was at least four years old and there was no history of any symptoms which would ground a PIRS assessment immediately before the date of injury. The respondent was working in a full-time capacity before the injury and suffered no disability in regard to any of the PIRS categories.
The respondent worker submitted that the correct case law concerning the assessment as set out by Schmidt J in Cole v Wenaline[1] (Cole), particularly at paragraphs 32 to 38. The Medical Assessor was required to determine first the WPI amount and then determine what part the pre-existing condition played in the final calculation of WPI. The respondent worker’s clinical presentation did not give rise to an inference that the post-injury assessment contained any element of a symptom complex existing prior to injury.
FINDINGS AND REASONS
[1] (2010) NSWSC 78.
Relevant law
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the Medical Assessor to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners PtyLtd v Kocak[2] (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the Medical Assessor in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[2] [2013] HCA 43.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd.[3]
[3] [2014] NSWSC 1344.
Section 322 of the 1998 Act describes the assessment that a Medical Assessor is required to undertake where there has been a referral of a medical dispute:
“322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”
The Guidelines which were in force at the time that the Medical Assessor made his assessment of the respondent worker were reissued on 1 March 2021 and applied to assessments of permanent impairment conducted on or after that date.
The Guidelines at Pt 2 under “Principles of Assessment” at cl 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.
...”The Guidelines under “Deductions for pre-existing conditions or injuries” at cl 1.27 and
cl 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.”
Chapter 11 of the Guidelines headed “Psychiatric and psychological disorders”, at cl 11.1 sets out the method for assessing psychiatric impairment. The Guidelines replace the psychiatric and psychological chapter in AMA5.
The Guidelines at cl 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.”
Section 323 of the 1998 Act provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(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.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole where Schmidt J said:
“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.
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.
... as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case.
…What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq)[4](Elcheikh), her Honour confirmed:
“As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
• Firstly, what the extent of the resulting impairment is.
• Secondly, whether the pre-existing condition contributed to the impairment.
• Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
[4] [2013] NSWSC 365.
In both Cole and Elcheikh, the injury concerned was physical and, therefore, one to which AMA 5, adopted by the Guidelines (issued pursuant to s 376 of the 1998 Act) were applicable. Clause 11.10 had no application and the relevant Guidelines were contained in paragraph 1.28.
The decision in Marks v Secretary, Department of Communities and Justice (No 2)[5] (Marks) concerned a worker who previously suffered post-traumatic stress disorder which was found by the Medical Assessor to have been asymptomatic prior to the events that gave rise to a work-related psychiatric injury. The Appeal Panel found that, if it were to apply cl 11.10, the assessment of the worker’s permanent impairment “due to any pre-existing condition or abnormality” would be nil. This was said to produce an anomalous result as the pre-existing post-traumatic stress disorder, and a pre-existing intermittent depressive condition, (also asymptomatic at the time of the relevant injury) rendered the worker more vulnerable to psychiatric injury and therefore contributed to his permanent impairment. A number of decisions of the Supreme Court supported the proposition that, with respect to physical injury, a pre-existing condition or abnormality does not have to be symptomatic in order to make a contribution to the assessed level of permanent impairment.
[5] [2021] NSWSC 616.
At [29] Simpson AJ found:
“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.”
In Secretary, Department of Communities and Justice v Lewandowski[6] (Lewandowski) the worker sustained a psychological injury as a result of her perception of an excessive workload, bullying and harassment in the workplace. The worker had previously been eating in a restaurant when it was held up by a man wielding a knife. The Medical Assessor diagnosed post-traumatic stress disorder which he said had been “exacerbated by her employer due to the bullying and harassment”. The Medical Assessor found no deductible proportion for the purposes of s 323 of the 1998 Act.
[6] [2023] NSWSC 334.
The Appeal Panel in that case found that the evidence before the Medical Assessor undoubtedly established that the worker suffered symptoms of post-traumatic stress disorder as a result of the incident at the restaurant. The Medical Assessor had failed to consider whether that incident materially contributed to the worker’s impairment. If the Medical Assessor did consider the question, he failed to provide reasons for his decision. The Appeal Panel found the post-traumatic stress disorder was symptomatic at the time of the work injury and considered paragraph 11.10 of the Guidelines, stating:
“…the circumstances of the case and the evidence available do not readily facilitate the assessment of pre-existing WPI in accordance with the PIRS. Measuring the respondent’s pre-existing impairment in accordance with the PIRS is entirely speculative. There is no clear evidence which addresses the PIRS scales at the time of her return to work. In the circumstances, the panel concluded that it is difficult to assess the pre-existing impairment in accordance with the PIRS and that the appropriate deduction should be 1/10.”
Griffiths AJ found:
“…the Panel fell into jurisdictional error because, instead of acting consistently with the approach identified in Cole and Elcheikh, the Panel failed to determine what proportion of Ms Lewandowski’s pre-existing PTSD condition contributed to her impairment.
…
It is evident from [62] and [63] that the Panel was conscious of the need to address whether the pre-existing PTSD condition contributed to her impairment but instead of analysing the available medical evidence relating to the issue of contribution, the Panel was distracted from the relevant legal task by its consideration of whether
Ms Lewandowski’s pre-existing impairment could be measured according to the PIRS.”
MAC
Under the heading, “Past psychiatric history”, the MAC recorded a history of the respondent worker experiencing a mixture of grief and depression after her mother passed away in 2016. The respondent worker sought medical attention for her symptoms and reported being prescribed psychotropic medication. The general practitioner’s notes recorded the prescription of dothiepin, an antidepressant medication and doxepin (Deptran). The date of prescription was 4 May 2018 and the respondent worker said she took this until 2019. At that time, the respondent worker was switched to another antidepressant medication, escitalopram. The respondent worker stated she continued to take escitalopram whilst she remained at work.
The respondent worker said she had multiple presentations to Campbelltown Hospital Emergency Department for mental health symptoms. The respondent worker stated she had been assessed on a number of occasions, either by medical staff in the emergency department or by mental health service staff but had never been admitted overnight in a mental health unit. The respondent worker advised she had never consulted a psychiatrist until the injury in 2020 and had never experienced a panic attack until after ceasing work with the appellant.
In response to the question, “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?”, the Medical Assessor responded “No”.
The Medical Assessor noted that the respondent’s Independent Medical Examiner (IME),
Dr Warwick Blakemore had, in a report on 10 June 2020, opined that there was no history of non-work-related factors and excluded "any pre-existing condition or any psychosocial or lifestyle circumstances in the lead up to the injury", despite noting in the next paragraph that the respondent worker had experienced "some depression three years before".Under the heading, “Deduction (if any) for the Proportion of the Impairment that is due to Previous Injury or Pre-Existing Condition or Abnormality”, the Medical Assessor gave the opinion that the respondent worker suffered from “nil” relevant previous injuries, pre-existing conditions or abnormalities and found there was no deductible proportion.
Documentary evidence
The appellant’s submissions drew the Appeal Panel’s attention to a number of documents before the Medical Assessor said to contain evidence of a pre-existing psychiatric condition.
In the respondent worker’s statement, dated 1 June 2020, particular note was made of the following evidence:
“Since I commenced my employment, and after my mother died in 2016, I have suffered depression. I have seen my doctor and have taken medication for that… I have been depressed in the past, but I have never felt suicidal before.
…
After my mother died three years ago I suffered emotionally. Then a friend committed suicide shortly afterwards. My marriage also broke down and this was a very difficult period of time for me (2016/2017)”.
…
Their inappropriate response to my situation was the substantial cause for the deterioration of my depression and anxiety. Prior to this, my doctor had prescribed me with 20mg of Lexapro a night.
…
I also blamed issues external to the workplace for my anxiety and depression. I didn’t realise the workload and the constant pressure to train causal staff were also taking a toll on my mental health.
…
I agree that when my niece made an attempt on her life earlier this year I became depressed.”
The appellant noted that the respondent worker’s IME, Dr Rastogi reported:
“There is history of grief and adjustment symptoms in 2016 following the death of her mother and was commenced on an antidepressant that she has been taking on an ongoing basis till recent change in 2020 by her psychiatrist. She continued working in full time capacity despite having mood symptoms and maintained a good social life.”
In a report from the applicant’s treating psychiatrist, Dr Karthik Modem, dated 24 June 2020 it was noted:
“She was on Dothep following her mother’s passing 4 years ago – for 2 years. Changed to Lexapro 20mg. Recently switched to Venlafaxine XR 225mg and Mirtazapine 15mg nocte.”
WorkCover certificates of capacity attached to the Application to Resolve a Dispute noted “anxiety/depression” as a pre-existing factor which may be relevant to the work injury.
A general practitioner Mental Health Care Plan Assessment, dated 17 February 2020, reported the following symptoms suffered by the respondent worker:
“anxiety/agitation… sleep disturbance… stress at work/home… brother killed himself when she was 17… best friend’s husband killed himself in December 2019… her best friend killed herself 3 years ago.”
A clinical record prepared by Dr Hoang Tam Le dated 20 March 2020 recorded:
“went to see boss on 17 /3 about her illness/job
told her about her niece commited suicide, boss laughed at her
told her about her stress/suicidal thoughts, she was laughed at”
An entry in the clinical records of general practitioner Dr Van Lang Nguyen dated 26 March 2020 recorded:
“seeing psychologist weekly
Also seeing psychiatrist next week
… h/o anxiety and depression
Worse with problems at work”.
The consultation notes of psychologist, Ms Jodie Perkins, on 7 April 2020, recorded:
“Michelle discussed her Hx of loss including her niece’s recent attempt to end her life 3 weeks ago… also discussed the loss of her Mo 3 yrs ago, a friend (who ended life by suicide), another friend she lost to bowel cancer and her friend’s husband to suicide… Michelle also lost her brother to suicide when she was younger.”
Attached to the Reply was an Initial Rehabilitation Assessment report by Kairros, dated
15 April 2020, in which it was reported:“Ms Harris reported significant previous history of depression or anxiety prior to commencing employment with VIP Plastic Packaging, pre-injury employer. Ms Harris reported the following events which occurred between 2016 and 2020, which had contributed to her symptoms of depression and anxiety:
• 35 years ago, her brother committed suicide.
• 3 years ago, her mother passed away from cancer.
• 2.5 years ago, a close friend and old colleague committed suicide. Ms Harris reported feelings of guilt as she had planned to see her friend the day before her death, however, did not go.
• Ms Harris reported at this time she was caring for her elderly father-in law who was suffering from Alzheimer’s.
• Ms Harris reported a few months had passed when she heard the news that her friend’s husband, who had been on workers compensation, committed suicide due to his reported symptoms and stress of his claim.
• During this time, Ms Harris advised she split with her husband after more than 20 years of marriage.
• Ms Harris advised her relationship with her brother deteriorated.
• In February 2020, Ms Harris advised her niece attempted to commit suicide.
• In April 2020, Ms Harris herself had suicidal ideation and was taken to Campbelltown Hospital by her family. During this time, Ms Harris advised she was taking anti-depressant medication, however, did not have a regular psychologist or seek mental health help. Ms Harris advised she did, however, call Beyond Blue when feeling her symptoms got out of control.”
The appellant’s IME, Dr Blakemore, reported on 15 July 2020:
“I understand from the above mentioned documentation that her supervisor and the HR manager deny that they acted or had spoken in any derogatory way to her, the likelihood being that Ms Harris, who was already depressed enough to be unfit for work, had been, as a result of her depressive illness, hyper sensitive enough to the perceived attitude of her seniors with the perception or misperception, nonetheless, having the result of making her feel very distressed, more distressed than she had previously been.
…
it is unlikely that any of the work-related incidents have been the whole and predominant cause her Ms Harris’s psychiatric illness. She appears to have been very unwell prior to the incidents of 17 March 2020 and so needing to have to take time off work at any rate. It is unlikely that the perceived attitude of her superiors then has been a whole or predominant cause of her psychiatric illness.
…
Ms Harris gives a history of having suffered depressive illness in 2015 as a result of the death of her mother, but of having recovered with psychiatric treatment, particularly antidepressant medication, which she had continued to take to the present. While she gave a history of the stresses at work above mentioned, she appears to have been coping well until 2020, and, although she was a very vague historian, the personal events, particularly the attempted suicide of her niece and her brother going missing, appear to have been the major precipitants of her psychiatric illness.”
Certificate of Determination
The statement of reasons accompanying the Certificate of Determination issued by Member Whiffin summarised the evidence and submissions before the Commission. Member Whiffin observed,
“Whilst the applicant complains (particularly in her statement evidence - see paragraphs 21- 24 and 30 above) of various stressors arising from the workplace prior to March 2020, those stressors are not specifically mentioned in the general practitioner’s clinical notes, there only being vague references to work stress in those notes on 15 January 2016, 10 May 2019, and 17 February 2020.
In contrast, the clinical notes specifically mention a number of unfortunate personal events which have occurred in the applicant’s life (see paragraph 111(j) above), commencing with the death of her mother in 2016. The applicant had been taking anti-depressant medication since the death of her mother.
Although the clinical notes do not provide a specific diagnosis for the applicant’s psychological condition prior to March 2020 (other than ‘anxiety’, ‘stress’, and ‘depression’), the degree of medication prescribed to the applicant and her regular attendance for consultations point to there being a significant condition.
On the evidence in the clinical notes, that significant condition could not be argued to be due to work in anything other than a very minor degree.
I believe therefore that the question for me is whether the condition was aggravated by the events which occurred in March 2020…”
After weighing the evidence before him, the Member concluded,
“…I am comfortably satisfied that employment events (being the incidents when Kazzi and Khayum laughed at and/or smirked at the applicant on and after 17 March 2020) were the main contributing factor in the aggravation of the applicant’s pre-existing psychological condition.”
Demonstrable error
The Appeal Panel is satisfied that the MAC contains a demonstrable error.
In the MAC, it was stated that the respondent worker had a previous history of psychiatric disorder. She sought medical attention for her symptoms and reported being prescribed psychotropic medication. The general practitioner’s notes recorded the prescription of antidepressant medication. The respondent worker gave a history that she took this until 2019, at which time she was switched to another antidepressant medication, escitalopram. The respondent worker continued to take this medication while she remained at work.
The work injury found by Member Whiffin was an aggravation of a pre-existing psychological condition to which employment was the main contributing factor.
In concluding that there were “nil” relevant pre-existing conditions and “no” proportion of whole person impairment due to a pre-existing condition for the purposes of s 323 of the 1998 Act, the Medical Assessor failed to give consideration to the history recorded earlier in the MAC or the other documentary evidence referred to above. If the Medical Assessor did take that relevant material into account, he failed to provide reasons for his decision.
The Appeal Panel finds that the documentary evidence before the Medical Assessor established that the respondent worker suffered a pre-existing psychological condition consistent with a persistent depressive disorder or major depressive disorder, which was being treated with medication at the time of the work injury.
The Medical Assessor’s failure to take into account relevant material and give adequate reasons constituted demonstrable errors.
Whether the pre-existing condition contributed to the impairment?
It is clear from the documentation that the respondent worker had experienced considerable depressive symptomatology over a lengthy period of time and that this was not limited to a simple grief reaction following the death of her mother.
The respondent worker had consulted her general practitioner from late 2016 related not just to her mother’s illness and subsequent death but also, according to the general practitioner’s notes, because she was subsequently caring for her father-in-law with Alzheimer’s disease. She had also experienced, in January 2017, the suicide of a friend which had triggered memories of her brother’s suicide at age 22.
A diagnosis of anxiety/depression was made, at this time and the antidepressant medication Lexapro (escitalopram) was initiated along with various sedative medications including at various stages temazepam, diazepam and quetiapine. Her Lexapro was subsequently changed to doxepin.
On 24 June 2018, it was noted that the respondent worker was “currently seeing a psychologist from work”. At this point she was still taking the antidepressant doxepin.
On 18 February 2019, her general practitioner at the time noted that she was experiencing “occasional suicidal ideation” and again a diagnosis of anxiety/depression was made.
On 10 May 2019, her general practitioner at the time noted that she had experienced an “anxiety/panic attack”. At this point, the doxepin was reduced with the aim of introducing a new antidepressant which occurred some time later, when she was again started on escitalopram. She continued to use significant amounts of sedatives to deal with anxiety and insomnia during this period.
It is clear from the foregoing that the respondent worker had an extensive period of repetitive and chronic anxiety complicated by depression at various stages.
The Appeal Panel is satisfied that the pre-existing condition contributed to the respondent worker’s current impairment because the pre-existing condition made it more likely that the respondent worker would suffer further injury were she subjected to further stress, such as occurred in her workplace injury, and that subsequently her impairment would be more severe because of this pre-existing condition.
The Appeal Panel has considered the submissions made by the respondent worker that there was no evidence of any symptoms suggestive of psychological injury as assessed under the PIRS system of assessment prior to the injury and so no deduction needed to be made. Applying Lewandowski and Marks, the Appeal Panel is not satisfied that the respondent worker’s submissions reflect the correct approach in applying s 323 of the 1998 Act.
What proportion of the impairment was due to the pre-existing condition?
The Appeal Panel finds that the extent of the deduction under s 323 of the 1998 Act is difficult to determine because of the absence of medical evidence. Applying s 323(2) of the 1998 Act, the deductible proportion is assumed to be one tenth of the impairment.
The Appeal Panel is satisfied that this assumption is not at odds with the available evidence.
From the evidence of the general practitioner’s notes and the brief history obtained by the Medical Assessor it is apparent that the contribution is a moderate one. The Appeal Panel did not believe that any greater deduction was appropriate as it did not reflect the medical evidence available.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5628/22 |
Applicant: | Michelle Elizabeth Harris |
Respondent: | Jalco Automotive Pty Limited |
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 Dr John Lam-Po-Tang 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 WorkCover Guides | 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 | 17 March 2020 (deemed) | Chapter 11, page 6, table 11.8 | N/A | 22% | 1/10th | 20% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
0
6
0