Johnson v Secretary, Department of Education
[2023] NSWPICMP 427
•4 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Johnson v Secretary, Department of Education [2023] NSWPICMP 427 |
| APPELLANT: | Nadene Wilma Johnson |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 4 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment for self-care and personal hygiene; Ferguson v State of NSW and Parker v Select Civil Pty Ltd considered; reassessment under the Psychiatric Impairment Rating Scale (PIRS); section 323 deduction; worker argued that Medical Assessor should have made assessment under PIRS of impairment before injury; Marks v Secretary, Department of Communities and Justice (No 2) and Secretary, Department of Communities and Justice v Lewandowski discussed; one-tenth deduction was appropriate; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 June 2023 Nadene Johnson lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 May 2023.
Ms Johnson relies on the following grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, 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
Ms Johnson trained as a teacher and began her career in that role. She worked for a training organisation and in a youth crisis and training program before returning to the Department of Education as a teacher. In about 2010 she became a home schooling liaison officer. In that role she visited the students’ homes where she observed children to be suffering from abuse, trauma or neglect. Her mental state started to deteriorate in 2014 as a result of her work. Ms Johnson ceased work in 2015 and Dr Murphy diagnosed post-traumatic stress disorder.
The Medical Assessor agreed with the diagnosis of post-traumatic stress disorder. He also diagnosed persistent depressive disorder and gambling disorder. He said that Ms Johnson had developed alcohol use disorder in 2014 which was in sustained remission and opiate use disorder (suffered as a young adult) which was in full remission. He assessed 22% whole person impairment (WPI), placing Ms Johnson in class 2 for self care and personal hygiene, class 3 for social and recreational activities, class 2 for travel, class 3 for social functioning, class 3 for concentration, persistence and pace and class 5 for employability.
The Medical Assessor deducted one-tenth under s 323 in respect of the opiate use disorder, resulting in a total WPI of 20%.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Johnson to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary, Ms Johnson submitted that the Medical Assessor was in error to make a one-tenth deduction under s 323, noting that he did not say why he did not conduct an assessment under the Psychiatric Impairment Rating Scale (PIRS) immediately prior to the work injury. She said it was probable that any deduction would have been less. In the alternative, Ms Johnson said that the Medical Assessor was in error in making a s 323 deduction when he said that her opiate use disorder had been in remission for many years before the injury.
With respect to the PIRS, Ms Johnson said that the Medical Assessor was in error to assess her in class 2 for self-care and personal hygiene when she was homeless, living in her car and required control of her finances by her daughter. She said that if that adjustment was made, the Medical Assessor’s assessment would therefore have accorded with that of Dr Allan, qualified on her behalf.
In reply, the Secretary, Department of Education (the Secretary) submitted that the Medical Assessor gave reasons for determining that Ms Johnson had an assessable, pre-existing psychiatric condition – which was in sustained remission, rather than having resolved. The Secretary submitted that the Medical Assessor’s assessment for self-care and personal hygiene was appropriate.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
Self care and personal hygiene
Because the ground of appeal relating to the assessment of self care and personal hygiene is a component of the total assessment, we will deal with it before considering the s 323 deduction.
The Medical Assessor gave reasons for assessing Ms Johnson in class 2:
“Ms Johnson reported that she was able to live independently at the time of this assessment. She reported that her boat had no functional sewage tanks. She was living in her car with her dog at the time of this assessment.
Ms Johnson had spent money on 24/7 access to a gym so she could shower and use clean toilets. She avoided noisy public places when attending to her personal hygiene. She would attend to her needs only when there was no-one in the facility. She did not use the gym for any other purpose. Her dental hygiene was poor, and she had lost all her teeth.
Ms Johnson would skip meals as she did not have money for food after she had spent all her allocated funds playing ‘slot machine games’ on her smart phone.”
The Medical Assessor set out the following relevant history in the body of the MAC:
“Ms Johnson commenced sleeping in her car with her dog for warmth and security since her boat was pushed off the public wharf prior to Christmas 2022...
Ms Johnson reported that she gambled on her smart phone instead of using the money productively or on warm clean clothes, or nutritional food. She reported that her gambling disorder had replaced all but two cigarettes that she smoked daily. She stated she was unable to afford alcohol as most of her money was spent on gambling. She would often skip meals to enable her to gamble. Ms Johnson had become estranged from her daughter who currently restricts Ms Johnson’s access to money. Ms Johnson reported that she is supplied with $600 dollars per week electronically from her daughter. She had no other communication with her daughter.”
And:
“Ms Johnson remained compliant with her Thyroxine 100 mcg daily to treat her Hypothyroidism.”
And:
“Ms Johnson reported that she had reduced her consumption of tobacco to about two cigarettes daily. She rarely drank alcohol after she had been charged with driving under the influence of alcohol in about 2014. She had been treated by her psychiatrist Dr Murray who advised for her to stop her consumption of alcohol as part of her treatment for this condition.
…
Ms Johnson reported gambling excessively. She reported that her gambling had caused relationship problems with her daughter. She reported she would often prefer to gamble than eat meals or organise her day. She advised that she gambled alone in her car on her smartphone to avoid thinking about her losses since the onset of this primary psychological injury.”
And:
“Ms Johnson reported that she was able to live independently at the time of this assessment. She reported that her boat had no functional sewage tanks. She was living in her car with her dog at the time of this assessment. She had spent money on 24/7 access to a gym so she could shower and use clean toilets. She did not use the gym for any other purpose. Ms Johnson avoided noisy public places when attending to her personal hygiene. She would attend to her needs only when there was no-one in the facility. Her dental hygiene was poor, and she had lost all her teeth. Ms Johnson would skip meals as she did not have money for food after she had spent all her allocated funds playing ‘slot machine games’ on her smart Phone.”
The Medical Assessor noted that Ms Johnson presented as a “dishevelled and unkempt woman.”
In Jenkins v Ambulance Service of NSW[2] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[2] [2015] NSWSC 633 at [65].
Assessment in class 2 connotes a mild impairment. The examples relevant to that class are:
“Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
Class 3 is the appropriate assessment for a moderate impairment and the examples are:
“Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
As Campbell J said in Ferguson v State of New South Wales[3] (Ferguson) that intervention by an Appeal Panel is only justified if the assessment is “glaringly improbable.” While some of the examples for class 2 might, at face value, apply to Ms Johnson, the history taken by the Medical Assessor describes a moderate impairment.
[3] [2017] NSWSC 887 at [24]-[25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[4]
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[4] [2018] NSWSC 140 at [70]-[71].
We do not consider that this is the assessment of Ms Johnson’s self care and personal hygiene is one about which reasonable minds may differ. Ms Johnson lives in her car and has little contact with her family. She is, as a result, independent by necessity and has removed herself from an environment in which she may be prompted to take care of herself or where a family member may visit. Though she may live without that assistance, the severity of her condition suggests that she should have that assistance. Ms Johnson misses meals, electing to divert her funds so that she can gamble and smoke rather than eat, at the cost of her wellbeing. She has lost all her teeth. Though Ms Johnson has access to a gym so she can shower, she presented to the Medical Assessor as dishevelled and unkempt. Her impairment is moderate rather than mild and should be assessed in class 3.
Assessment of self care and personal hygiene in class 3, results in an aggregate score of 19, while maintaining the median class at class 3. Under the conversion table (Table 11.7), Ms Johnson has 24% WPI before any s 323 deduction.
Section 323
Ms Johnson did not argue that it was inappropriate for the Medical Assessor to make a deduction under s 323 but said that the Medical Assessor should have adopted the method in paragraph 11.10 of the Guidelines by using the PIRS to make an assessment of her impairment immediately before the injury. She said that because her opiate use disorder had been in remission for many years, it is likely that any deduction made by that method would have been less than one-tenth.
The Medical Assessor said:
“Ms Johnson reported that she had suffered from an Opiate Use Disorder was in sustained remission since being treated with Methadone for about 2 years in her early adult life.
In my medical opinion Ms Johnson did have a pre-existing assessable psychiatric condition prior to her employment with this employer.”
He said gave reasons for making a deduction of one-tenth:
“…
(ii) Substance use disorders and Gambling Disorder frequently emerge as a means where an individual uses a specific substance or engages in gambling to avoid distressing intrusive memories, or reliving specific events experienced in an individual’s life.
(iii) Ms Johnson’s substance use disorders of Opiates and Alcohol were in remission at the time of this assessment. Ms Johnson’s Gambling disorder was active at the time of this assessment.
(iv) Both of Ms Johnson’s disorders of Alcohol Use and Gambling developed after the onset of this primary psychological injury.
(v) Ms Johnson’s Opiate use disorder had been in full remission for many years prior to the commencement of her employment with this employer and many years before the onset of this primary psychological injury.
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.”
Section 323 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.
…”
The Guidelines provide additional guidance to a medical examiner in paragraphs 1.27 and 1.28 which 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.”
In Marks v Secretary, Department of Communities and Justice (No 2)[5] (Marks No 2), Simpson AJ held that paragraph 11.10 was inconsistent with section 323 and that the section was to be applied in the same way as for a physical injury.
[5] [2021] NSWSC 616.
In Cole v Wenaline Pty Ltd[6] Schmidt J considered a case in which the medical members of an appeal panel found that a deduction under s 323 was mandated because surgery had been undertaken as a result of a previous injury some years before. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction 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 injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[7]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”[8]
[6] [2010] NSWSC 78.
[7] At [29]-[30].
[8] At [38].
In describing the methodology for applying s 323, Her Honour specifically noted the exception in s 323(2) to the requirement that the actual contribution of the pre-existing condition to the impairment must be determined.
In Secretary, Department of Communities and Justice v Lewandowski[9] Griffiths AJ agreed with Simpson AJ’s decision in Marks No 2 and said that an approach such as that urged by Ms Johnson was “the wrong question”:
“Thirdly, I consider that 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. The Panel erred by asking itself the wrong question (see Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58). Alternatively the error can be expressed as the Panel applying the wrong legal test (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41]). This is evident from [63] of its reasons where, after determining that the PTSD caused by the restaurant experience as ‘a minor or background causative factor’, the Panel then turned its attention to whether Ms Lewandowski’s pre-existing impairment could be measured in accordance with the PIRS. The Panel focused its attention not on the proportion of Ms Lewandowski’s impairment which was due to her PTSD, but rather on whether the impairment produced by the PTSD could itself be measured. This was the wrong legal test, which flowed from the Panel asking itself the wrong question. This constitutes jurisdictional error.
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.”
[9] [2023] NSWSC 334 at [54]-[55].
Because Ms Johnson’s opiate use disorder had been in remission for many years, an assessment of Ms Johnson’s WPI under the PIRS immediately before the injury would probably not have resulted in a deduction. That result would have been inappropriate because the pre-existing condition was relevant to the impairment resulting from the injury.
Ms Johnson’s current presentation includes a gambling disorder. Since the onset of the injury in 2014, Ms Johnson has also suffered alcohol use disorder, now in remission. That diagnosis also highlights the relevance of a pre-existing impulse control disorder.
In the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), opiate use disorder, alcohol use disorder and gambling disorder are all described in the section headed Substance-related and Addictive Disorders. The disorders in the section are not fully distinct. The DSM-5 states:
“All drugs that are taken in excess have in common direct activation of the brain reward system, which is involved in the reinforcement of behaviours and the production of memories. They produce such an intense activation of the reward system that normal activities may be neglected. Instead of achieving reward system activation through adaptive behaviours, drugs of abuse directly activate the reward pathways… Furthermore, individuals with lower levels of self-control, which may reflect impairment is a brain inhibitory mechanisms, may be particularly predisposed to develop substance use disorders, suggesting that the roots of substance use disorders are some persons can be seen in behaviours long before the onset of actual substance use itself.… Gambling behaviours activate reward systems similar to those activated by drugs of abuse and produced some behavioural symptoms that appear comparable to those produced by the substance use disorders.”
For these reasons, the Appeal Panel agrees with the Medical Assessor’s determination that Ms Johnson’s previous opiate use disorder is a condition that predisposed her to suffering gambling disorder. The opiate use disorder therefore increases her level of current impairment and a deduction under s 323 is appropriate. It also pre-disposed her to alcohol use disorder, which is currently in remission.
Ms Johnson was functioning well immediately before her work injury. The extent of the contribution from the pre-existing opiate use disorder is difficult or costly to determine so that s 323(2) applies and the appropriate deduction is one-tenth. Ms Johnson’s resulting WPI is 22%.
For these reasons, we have determined that the MAC issued on 24 May 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: | W8187/22 |
Applicant: | Nadene Wilma Johnson |
Respondent: | Secretary, Department of Education |
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 Baker 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 and psychiatric disorders | 22 July 2015 (deemed) | Ch 11, | N/A | 24% | 1/10 | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
10
0