Johnson v Suncorp Staff Pty Ltd
[2023] NSWPICMP 415
•25 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Johnson v Suncorp Staff Pty Ltd [2023] NSWPICMP 415 |
| APPELLANT: | Danielle Johnson |
| RESPONDENT: | Suncorp Staff Pty Limited |
| APPEAL PANEL | |
| MEMBER: | R J Perrignon |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 25 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment; whether Medical Assessor erred in assessing Social functioning or Social and recreational activities; Held– Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Johnson, appeals from the Medical Assessment Certificate of Medical Assessor Smith dated 3 May 2023. He examined her on 18 April 2023, and assessed a 9% whole person impairment (psychological) as a result of injury on 24 November 2016 (deemed date). He subtracted 1% for the effect of stressors which had occurred after injury to arrive at a final whole person impairment of 8%.
He assessed two of the psychiatric impairment rating scales (PIRS) as follows:
(a) Social functioning: Class 2 impairment; and
(b) Social and recreational activities: Class 2 impairment.
Ms Johnson submits that the assessment of these two scales demonstrates error and the application of incorrect criteria. She says that in each case the evidence supports a class 3 impairment.
The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:
(a) As a matter of law:
(i)The descriptors in each impairment class are examples only which provide a guide as a general indicator of the level of behaviour that might generally be expected in that class of impairment: Ferguson v State of NSW [2017] NSWSC 887 at [24] and following.
(ii)Whether particular conduct falls within one scale or another calls for the correct characterisation of the conduct; failure to allot it to the correct class will result in the assessor taking into account an irrelevant consideration: Ballas v Department of Education (State of NSW) [2020] NSWCA 86.
(b) In respect of Social functioning, the Medical Assessor found that the breakdown of the appellant’s marriage was related to her husband’s alcohol use and gambling and could not be attributed to the effects of her injury. That finding was contrary to the weight of the evidence, was unsupported by the evidence, and demonstrated that he was unaware of a significant fact or misunderstood it.
(c) The evidence relied on is:
(i)Appellant’s statement at [64] to the effect that the breakdown affected the whole family including children;
(ii)a series of reports of treating psychiatrist Dr Bradley from 8 March 2018 to 15 February 2019, which record the poor state of the relationship and its stressful effect on the appellant;
(iii)Dr Bradley’s opinion expressed on 15 August 2019 that, “the financial stress on Danielle and her husband is the major factor…”, and
(iv)clinical notes of general practitioner (GP) Dr Croaker from 28 June 2018 to 7 December 2020, which record the appellant’s reports to him of the poor state of the marital relationship.
(d) Both Dr Lotz (9 May 2022) and Dr Kumar (11 October 2022) assessed a class 3 impairment in respect of Social functioning.
(e) In respect of Social and recreational functioning also, Dr Lotz and Dr Kumar assessed a class 3 impairment.
Despite her reference to Ballas, the appellant does not suggest that the marital breakdown was wrongly considered in the context of Social functioning or should properly have been considered in relation to Social and recreational activities. In our view, neither proposition can be supported, having regard to the descriptors of each class extracted below.
No error is alleged in respect of the deduction of 1% whole person impairment for the effects of subsequent stressors, which included the marital breakdown.
The respondent submits in brief summary as follows:
(a) The evidence relied on to establish that the assessor’s finding about the cause of the marital breakdown was contrary to the weight of the evidence (see [5c] above) goes only to the existence of ongoing marital issues, without reference to their underlying cause.
(b) In her report of 15 August 2019, Dr Bradley recorded that the appellant had referred to severe marital stress as one of the causes of depression, and recorded that, “with her husband she alleges had significant gambling and alcohol problems and also she said in April 2018 had lost his job in sales”. Dr Bradley added: “It appears that the financial stress on Danielle and her husband is the major factor although the details of this are still unclear.”
(c) In his report of 6 May 2021, Associate Professor Rattehali said that the appellant reported:
(i)“severe marital stress especially when her husband had significant problems with gambling and alcohol”,
(ii)that he had lost his job in April 2018 which put “excessive financial stress on them”, and
(iii)that they had “overextended themselves by buying a blueberry farm which was not providing satisfactory income”.
(d) The Medical Assessor was aware of the factual matrix, and assessed the facts and issues having regard to the evidence and his examination findings.
Social functioning – whether class 2 was reasonably open
In his Psychiatric Impairment Rating Scale form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment – emphasis added:
“Her depressive symptoms have strained Ms Johnson’s relationships and she feels burdensome on her family, as if she has failed them. She is less tolerant of her children. Although she has separated from her ex-husband, this was related to his alcohol use and gambling and cannot be attributed to the effects of the injury. She maintains an amicable relationship with her ex-husband and has enduring relationships with a few close friends and her parents. She has a small group of regular social contacts. She has recently ventured back into dating but is worried she will be too overwhelmed.”
This passage includes findings to the effect:
(a) that the marital breakdown was not due to the effects of injury, but to the behaviour of the husband, and
(b) that, notwithstanding the breakdown, the relationship between the appellant and her husband is now ‘amicable’.
The appellant’s case is that the first of these findings was against the weight of the evidence, with the result that stresses caused by, and the behavioural consequences of, the marital breakdown should have been included in the assessment of Social functioning.
For the reasons which follow, we consider that, even if the Medical Assessor had been satisfied that the marital breakdown resulted from injury, and included in his assessment the behavioural effects of the breakdown, a class 2 impairment was reasonably open to him.
The criteria for rating class 2 and 3 impairment in Social functioning are as follows:
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
It was the task of the Medical Assessor to determine in which category the behavioural consequences of psychological injury best fit, by applying the descriptors in each class of impairment as examples: Guidelines at [11.12].
There is no dispute that the appellant satisfied a class 2 impairment at the least. She submits that she satisfied the descriptors for class 3.
There is no dispute that she is separated from her husband. However, whether the relationship is ‘severely strained’, consistently with the descriptor for class 3, depends on the evidence. The mere fact of separation does not alone determine whether the relationship is ‘severely strained’, as couples can and often do manage their relationships after separation in an amicable fashion. The appellant told the Medical Assessor that her relationship with her husband was ‘amicable’, notwithstanding the separation, with no evidence of domestic violence. So far as it goes, that does not support a finding that the relationship continues to be ‘severely strained’. In light of that evidence, we cannot be satisfied that the relationship is ‘severely strained’.
The remaining class 3 descriptor is that “Spouse, relatives or community services [are] looking after children”. There is no evidence that that descriptor is satisfied. The Medical Assessor took a history at [4] that, “She shares 50/50 custody with her ex-partner”.
For those reasons, even if (as the appellant contends), the effects of injury caused the marital breakdown, the evidence is consistent with a class 2 impairment and does not satisfy the descriptors for a class 3 impairment.
Even if (contrary to the history taken) there was “severe strain” in the relationship, the mere satisfaction of one of two descriptors would not compel a class 3 assessment. In those circumstances, the issue on appeal would be whether the assessment of a class 2 impairment was reasonably open. In our view, it would have been, even though one of the descriptors in class 3 was satisfied. The evidence before the Medical Assessor demonstrated close and ongoing relationships with family and friends. In those circumstances, clinicians might differ as to which class is more appropriate, but the choice of one over the other establishes neither error nor the application of incorrect criteria.
Whether marital breakdown caused by injury
Though it is strictly unnecessary to do so, for the benefit of the parties we address below the contention that the Medical Assessor erred in finding that the marital breakdown was not caused by injury or its effects.
At [10b], the Medical Assessor explained:
“The impact of subsequent stressors, specifically the breakdown of her marriage, more recently finding out that her ex-husband has a new partner, and the diagnosis and treatment of breast cancer over COVID, are significant and have impacted her function and level of impairment since the injury.”
His reference to ‘subsequent stressors’ was a reference to stressors occurring after the date of injury, which was deemed to have occurred on 24 November 2016.
He took the following history at [4]:
“Ms Johnson is a 46-year-old woman with two children, ages 16 and 14. She separated from her husband in 2021. She shares 50/50 custody with her ex-partner. She has just commenced mediation with her ex-partner over property and custody arrangements. …
She commenced with Suncorp in January 2015 as a mobile lending manager and left work in November 2016 with panic attacks. She briefly returned to work with an Aboriginal lending organisation for three months in May 2017 ….
… She had not worked since leaving Aboriginal Lending in August 2017. She has remained depressed and anxious, with fluctuation, since.
Having reviewed the documents I clarified the concurrent non-work-related stressors. They bought a blueberry farm in 2010 and started planting and clearing the land to grow blueberries in 2014. Ms Johnson claimed that the account from Dr Robyn Bradley was incorrect and her stress had nothing to do with the blueberry farm other than the reduced income from not working to service the debt on the farm. She said she had become unwell, and her income had reduced significantly. She was, therefore, in financial difficulty and had lost her car.
She denied that her husband had a gambling problem. She told me she was annoyed that he spent every Saturday at the pub. She said they broke up because he was not there for her during her cancer treatment because he was going to the pub instead. She said her relationship with her ex-partner is now amicable. She said she felt he chose the pub over her. She said she tried to correct the misunderstanding with Dr Bradley, but at their final appointment, Ms Johnson told Dr Bradley that she did not have the money to pay, the appointment was cut short, and the receptionist was told not to rebook her. No further appointments were booked. …”
Under the heading, “Details of any previous or subsequent accidents, injuries or condition”, he added:
“After the work-related injury, she was diagnosed with breast cancer and underwent surgical treatment and radiotherapy with complications, and her marriage broke down. She is about to enter mediation with her ex-partner.”
Under the heading, “Social activities/ADL”, he recorded relevantly:
“She said she has an amicable relationship with her ex-husband and is unsure about the impact on her relationship with her children. She feels guilty for putting them through so much.”
At [7], he diagnosed Major Depressive Disorder with anxious distress.
As indicated, the Medical Assessor found that the marital breakdown was not caused by the effects of injury. As it was his task to assess only the permanent impairment resulting from injury (Guidelines at [1.6c]), he excluded the effects of the marital breakdown from his assessment of Social functioning, as he was bound to do.
The appellant submits that the finding itself was contrary to the weight of the evidence. She relies on the evidence listed in the above summary of her submissions, and indicates that the assessor was unaware of a material fact or misunderstood it.
Apart from Dr Bradley’s report of 15 August 2019, the evidence extracted in the appellant’s submissions was:
(a) her statement evidence that the marital breakdown affected the whole family;
(b) Dr Bradley’s evidence in 2018 and 2019 that the marital relationship was poor and placed stress on the appellant, and
(c) the clinical notes of Dr Croaker from 2018 to 2020 that the relationship was poor.
None of that evidence establishes the cause of the marital breakdown, but rather the existence, and psychological sequelae of that breakdown.
However, in her report of 15 August 2019, Dr Bradley said – emphasis added:
“Danielle’s diagnosis currently is of a depressive illness with severe anxiety. Danielle comes from a very difficult childhood and background and this has meant that she is very vulnerable in times of stress. The cause of her depression is complex and unclear in many ways as there are multiple interacting factors. I am aware that her depression developed in the context of her work and that she went on sick leave when the office for which she was working closed and she was starting to work from her home. As I did not know her at this time I am unaware of the interplay of other factors at this time. Her first symptom was a persistent cough leading to multiple investigations and for which there was no specific cause found. This seemed to progress into the current situation of depression, agitation and anxiety.
There are many factors which are interacting here - work stress and change in her office situation, severe marital stress and with her husband she alleges had significant gambling and alcohol problems and also she said in April 2018 had lost his job in sales. They had also overextended themselves buying a blueberry farm which was not providing a satisfactory income. It appears that the financial stress on Danielle and her husband is the major factor although the details of this are still unclear.”
This passage was extracted and considered by the Medical Assessor at [10b] of his reasons.
We interpret Dr Bradley to mean that the ‘severe marital stress’ was caused by the husband’s gambling and alcohol use, and the loss of his job.
In context, the reference to ‘financial stress’ on the spouses appears to refer to the failure of the blueberry farm to provide a satisfactory income, and perhaps the loss of the husband’s job. The reference to that stress being “the major factor” appears to refer back to the sentence “There are many factors which are interacting here”, which in turn is a reference to the factors causing “the current situation of depression, agitation and anxiety”.
Dr Bradley’s evidence, if accepted, supports findings that:
(a) the cause of the marital breakdown was the husband’s gambling, alcohol use and loss of employment, and
(b) the economic failure of the blueberry farm, and perhaps the husband’s loss of employment, contributed to the appellant’s symptoms of depression, agitation and anxiety as at 15 August 2019.
That evidence does not, in our view, support a finding that the marital breakdown was caused, in whole or in part, by injury or its effects.
In the absence of any reliance on the ground of inadequate reasons, the issue for determination on appeal is whether there was evidence to support the finding of the Medical Assessor that injury did not cause the marital breakdown.
As indicated, he took a history from the appellant that ‘they broke up because he was not there for her during her cancer treatment because he was going to the pub instead’. He noted her denial that her husband had gambling problems, though apparently there was no denial of his alcohol use, or that he had lost his job. That evidence, as summarised by the Medical Assessor, was sufficient to establish that the marital breakdown resulted from the husband’s behaviour and loss of employment, rather than any other cause.
Neither the report of Dr Bradley, nor the history taken by the Medical Assessor, supported a finding that the breakdown resulted from injury or its effects.
In our view, it was reasonably open to the Medical Assessor to find, as he did, that the marital breakdown resulted from causes which did not include the effects of injury. In those circumstances, he was obliged to exclude the effects of the marital breakdown from his assessment of Social functioning, as he did.
Assessments of Dr Lotz and Dr Kumar
The fact that Dr Lotz and Dr Kumar assessed a class 3 impairment in respect of Social functioning in May and October 2022 respectively did not compel the Medical Assessor to make the same assessment in April or May 2023. He was obliged to assess the appellant as she presented to him on the day of assessment: Guidelines at [1.6a]. That is what he did.
He considered and discussed the assessments of Dr Lotz and Dr Kumar at [10c] of his reasons, but his assessment differed from theirs. In respect of Dr Lotz, he explained,
“Her social activity has increased since his assessment in March 2022. … Dr Lotz has not commented on the impact of subsequent or concurrent stressors, such as her financial difficulties or relationship problems.”
The fact that the Medical Assessor assessed Social functioning differently from Dr Lotz and Dr Kumar establishes neither demonstrable error nor the application of incorrect criteria.
For all those reasons, we can identify neither error nor the application of incorrect criteria in the assessment of Social functioning.
Social and recreational activities
As indicated, the only ground of appeal which goes to the assessment of this category is the fact that Dr Lotz and Dr Kumar assessed as class 3 impairment. Their assessments were considered by him. For reasons already explained, this establishes neither demonstrable error nor the application of incorrect criteria.
Conclusion
The Medical Assessment Certificate of Medical Assessor Smith is confirmed.
0
2
0