Kempe v Complete Community Services Pty Limited
[2021] NSWPICMP 208
•4 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kempe v Complete Community Services Pty Limited [2021] NSWPICMP 208 |
| APPELLANT: | Peter Kempe |
| RESPONDENT: | Complete Community Services Pty Limited |
| APPEAL PANEL: | Member R J Perrignon Dr Julian Parmegiani Dr Douglas Andrews |
| DATE OF DECISION: | 4 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of 11% whole person impairment (psychological); remitted by the Supreme Court, by agreement of the parties, for decision according to law; whether application of Psychiatric Impairment Rating Scale with respect to Social and recreational activities, Concentration persistence and pace, and Social functioning, was in error; whether lone attendances at a local hotel relevant to assessment of Social and recreational activities; whether pre-existing anxiety condition makes permanent impairment greater than it would otherwise be; whether deduction available from impairment resulting from only one of three diagnosed disorders; Held - Medical Assessment Certificate set aside and replaced. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Kempe, appeals from the Medical Assessment Certificate of Approved Medical Specialist Dr Bench dated 25 March 2020.
The appellant suffered psychological injury as a result of threats and assaults over the period from September 2017 while working as a carer. The date of injury was deemed to be
8 March 2018.By a Medical Assessment Certificate dated 25 March 2020, Dr Bench assessed a 14% whole person impairment (psychological), from which he deducted 3% to account for a pre-existing condition of anxiety, yielding an 11% whole person impairment. Under the Psychiatric Impairment Rating Scale (PIRS), he assessed Social and Recreational Activities, Concentration persistence and Pace, and Social Functioning as being within impairment Classes 2, 2 and 3 respectively.
The appellant alleges that the deduction for pre-existing anxiety was in error, and that the three rating scales above were incorrectly assessed.
On 26 October 2020, this Appeal Panel first determined his appeal, by identifying error only in respect of the assessment of Social and recreational activities, and in making the deduction for a pre-existing anxiety condition. Its reasons for those findings were set forth in its published decision of that date, and need not be repeated here. The Panel set aside the Medical Assessment Certificate of Dr Bench, and issued a Medical Assessment Certificate assessing a 14% whole person impairment (psychological). The Panel reached that assessment by assessing a class 3 impairment in respect of Social and recreational activities which yielded a 16% whole person impairment, and deducting 1/10th for the pre-existing anxiety condition.
Mr Kempe commenced proceedings in the Supreme Court, seeking review of the Appeal Panel’s decision, on the basis inter alia that its reasons for the deduction were insufficient. Without proceeding to a hearing or determination, on 22 June 2021, by agreement of the parties, the Court set aside the Appeal Panel’s decision and Medical Assessment Certificate, and remitted the matter to the Panel for decision according to law.
The Appeal Panel conducted a preliminary review of Dr Bench’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines). It directed that further written submissions be filed by both parties, which was done. It has considered those submissions, as well as the submission filed by the parties at first instance before the Panel.
Submissions
In brief summary, the appellant worker submits as follows:
(a) the Panel’s assessment of a 16% whole person impairment, after assessing a class 3 impairment in respect of Social and recreational activities, was correct;
(b) however, no deduction for the pre-existing anxiety condition should be made. In order to determine that a deduction is appropriate pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998, the Panel must be satisfied, not only that there was a pre-existing condition, but also that, as a result of that condition, permanent impairment is greater than it would otherwise have been: Ryder v Sundance Bakehouse [2015] NSWSC 526. In this case, the pre-existing condition does not make the impairment greater than it would otherwise be, and
(c) even if it does make the impairment greater, the deduction should be no greater than one third of one tenth, because the pre-existing anxiety condition can only render the impairment greater in respect of one third of the impairment. That is so, because the Approved Medical Specialist diagnosed three existing conditions - post traumatic stress disorder, persistent depressive disorder and alcohol use disorder. By its nature, the pre-existing condition can only be material to one of the conditions, namely post traumatic stress disorder.
The respondent employer submits that the original assessment of Dr Bench should not be disturbed, for the reasons argued at first instance before the Appeal Panel.
Both parties agree that, if the Panel makes a deduction, the amount of the deduction should not be rounded before it is made.
Psychiatric Impairment Rating Scales
As indicated, the appellant first alleged error in respect of the assessment of three of the permanent impairment rating scales. The Panel identified error in respect only of Social and recreational activities, and assessed a class 3 impairment. It identified no error in Dr Bench’s assessment in respect of the other two rating scales.
Mr Kempe accepts that the Panel’s findings in that respect were correct and does not seek to disturb them.
The respondent says that the Panel should restore Dr Bench’s assessment of a class 2 impairment in respect of Social and recreational activities.
For the reasons set forth in our decision of 26 October 2020:
(a) we identify error in respect only of Social and recreational activities, and after setting the Certificate aside, assess a class 3 impairment, and
(b) we can identify no error in respect of the assessment of Concentration persistence and Pace, and Social Functioning.
Deduction for pre-existing condition
As indicated, the appellant alleges that the Approved Medical Specialist erred in making a deduction for a pre-existing condition, and that at most any deduction should not exceed one third of one tenth.
Before making any deduction for a pre-existing condition, an Approved Medical Specialist must first find that there was a pre-existing condition, and that it contributes to the assessed impairment. To do that, he must be satisfied that the pre-existing condition makes the impairment greater than it would otherwise be. As Campbell J explained in Ryder at [45] - emphasis added:
"What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
In our view, there was ample evidence before Dr Bench to show that, from 2014, the appellant suffered from an anxiety condition in reaction to his diagnosis and treatment for tongue cancer. Dr Bench reasoned that this had continued up to the time of injury, because he had continued to take medication for it. In our view, that reasoning and conclusion was open to him on the evidence.
Before making any deduction, it was necessary for the Approved Medical Specialist to find that the anxiety state was contributing to impairment, because it ‘made a difference to the outcome in terms of the degree of impairment resulting from the work injury’: Ryder. In other words, it was necessary for him to find that, as a result of the pre-existing anxiety condition, impairment was greater than it would otherwise have been.
Dr Bench made no such finding. It follows that the foundation for making a deduction was absent, and the deduction was in error.
As the Medical Assessment Certificate must be set aside due to the errors identified above, it falls to this Panel to determine whether a deduction is appropriate and, if so, in what amount.
For the reasons given, we are satisfied that there was a pre-existing anxiety condition which was being controlled by medication. In the absence of medication, we have no doubt that anxiety symptoms would have persisted. The persistence of an anxiety disorder serious enough to need long-term pharmacological control, as here occurred, tends to weaken the sufferer psychologically, so that the effects of supervening psychiatric disorders, such as the post traumatic stress disorder, persistence depressive disorder with anxious distress and alcohol use disorder diagnosed by Dr Bench, are greater than they would otherwise have been.
Brain imaging studies indicate that structural anatomical changes occur as a result of psychiatric disorders, including anxiety disorders. Such changes contribute to impairment caused by a new psychiatric injury.
In our view, that is what has happened here. The appellant was suffering from an anxiety disorder serious enough to require long-term pharmacological control. He experienced further psychosocial stressors at work, and suffered the disorders diagnosed by Dr Bench. It is highly likely, in our view, that a long-term anxiety disorder of this kind and severity, requiring as it did ongoing medication, made the sufferer more vulnerable to developing the three supervening disorders that he did, and made their effects greater than they would otherwise have been.
Accordingly, we consider that the pre-existing condition persisted, despite being under pharmacological control, and that it increased the level of impairment resulting from the other three disorders beyond what it would otherwise have been. A deduction for the pre-existing disorder is warranted.
Amount of deduction
In assessing the appropriate deduction at 3%, Dr Bench reasoned at [11]:
“There is a documented history of anxiety pre-dating the work injury that, as per the clinical evaluation and collateral materials presented for review, was in sustained remission as a result of evidence-based psychiatric and psychological treatment. In this context, there was a total elimination of impairments provoked by such treatment and in this context he attracts a 3% deduction for a pre-existing condition.”
He was there referring to the appellant’s anxiety disorder which resulted from a diagnosis of tongue cancer in 2014, and which required pharmacological control.
This, in our view, does not justify so precise a quantification as 3%, and we can identify no evidentiary basis for making a deduction in that amount.
The appellant submits that, if made, any deduction should not exceed one third of one tenth for the reasons set forth in his written submissions, which are summarised above.
That submission is incorrect, in our view.
First, it is incorrect to suggest that symptoms of anxiety or distress can increase only that part of the impairment which results from persistent depressive disorder with anxious distress, as diagnosed by the Approved Medical Specialist. Anxiety is a prominent feature of post traumatic stress disorder also. It is likely that a persisting anxiety disorder will increase the effects of post traumatic stress disorder, and we consider that it has probably done so in this case. With respect to alcohol use disorder, one of the effects of alcohol is to reduce anxiety symptoms. For that reason, it tends to be used as self medication for anxiety resulting from disorders such as anxiety disorders and post traumatic stress disorder. It is highly likely, in our view, that the need to suppress anxiety - resulting from the pre-existing condition as well as from post traumatic stress disorder - has contributed to the onset of alcohol use disorder and increased the effects of alcohol use disorder, including the degree of permanent impairment resulting from it.
Secondly, the submission appears to rely on the assumption that one third of the assessed impairment results from each of the three assessed disorders. That assumption is unfounded. No such finding was made by Dr Bench. In our view, there is no evidentiary basis for making such a finding. It is not possible to identify what part of the impairment results from each of the diagnosed disorders. Together, they have a combined effect. Those combined effects are assessed in each of the psychiatric impairment rating scales. There is no differentiation, for instance in respect of Concentration persistence and pace, between the effects of one disorder and another. In the circumstances of this case it would be impossible to do so, because the evidence does not support it.
In the state of the evidence, the only available conclusion is that the deduction is difficult to quantify. In those circumstances, section 323 of the Workplace Injury Management and Workers Compensation Act 1998 requires a deduction of one tenth.
Conclusion
For the reasons given, the appeal is allowed in part. The Medical Assessment Certificate of Dr Bench is set aside and replaced by the attached Medical Assessment Certificate. As the parties agree that the Guidelines do not permit the amount of the deduction itself to be rounded, we have not done so. Only the final percentage impairment, after making the deduction, has been rounded.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Bench and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric and psychological disorders | 8 March 2018-deemed | Chapter 11, pages 54 – 60, paragraphs 11.1 to 11.20 | n/a | 16% (15% + 1% for treat-ment effect) | 1.6% | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Peter Kempe | Claim reference number (if known) | Not known |
| DOB | 5 July 1961 | Age at time of injury | 56 years of age |
| Date of Injury | 8 March 2018-deemed | Occupation at time of injury | Carer/Youth worker |
| Date of Assessment | 10 March 2020 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1. Posttraumatic Stress Disorder | 2. Persistent Depressive Disorder with anxious distress | ||||||||||||||
| 3. Alcohol Use Disorder | 4. | |||||||||||||||
| Psychiatric treatment | ||||||||||||||||
| Is impairment permanent? | Yes | |||||||||||||||
| PIRS Category | Class | Reason for Decision | ||||||||||||||
| Self Care and personal hygiene | 2 | The applicant is living as a border. He showers five to six times per week noting he will always shower before work. He brushes his teeth daily. He noted he is occasionally remiss wearing the same clothes for a couple of days at a stretch. He does no chores around the home other than cleaning his own room. He relies on takeaway food. He has not cooked for “a couple of years, more”. As such, it is evident the applicant is able to live independently. This is most consistent with a mild impairment. | ||||||||||||||
| Social and recreational activities | 3 | The applicant noted he is particularly restricted in his social and recreational activities. He watches a lot of movies. He is not a member of any other clubs or associations. He has not played golf for 2 ½ years. He is not engaged in any exercise. He has had decreased contact with his children. He estimated having last seen them two months prior to the clinical evaluation. They will occasionally have lunch out. He spent Christmas with two of his children. His daughter Abbie has been in London for four years. He has not coached a rugby union team for three to four years (he clarified he had stopped coaching prior to the work injury as his son had ceased playing). This is most consistent with a moderate impairment. | ||||||||||||||
| Travel | 2 | The applicant noted the furthest he has travelled in recent times is the 35 to 40-minute trip from Cessnock to Pokolbin to attend work. With a support person, he has travelled to Sydney. As such, this is most consistent with a mild impairment. | ||||||||||||||
| Social functioning | 3 | The applicant noted he is estranged from his ex-wife Bridgette. He is not dating. When asked as to how often he sees his friends he noted “I don’t really have any … I don’t think I’ve lost friends because of the work injury”. On the other hand, he stated he has had no contact with any of his friends for greater than twelve months. He last had contact with his “Auntie Di” five to six months ago. He has phone calls with his siblings two to three times per year. He has not seen them in a couple of years. He reported he sees his son Charlie every three to four weeks, daughter Penelope every four to six weeks and Tabitha every other month. As such, I accept that the work injury has materially contributed to the marital separation and breakdown, even if it was not the sole cause. He has maintained relationships with his family. He has not lost any friendships. In this context, this is most consistent with a moderate impairment. | ||||||||||||||
| Concentration, persistence and pace | 2 | The applicant noted he has no difficulties concentrating whilst driving. He noted “I can’t read now … I find it very difficult to concentrate”. He is able to follow the plot and characters in a movie. He is no longer doing any sudoku or crosswords. As such, it is evident the applicant is able to persist in tasks for up to 7 to 8 hours at a stretch. As such, with a reasonable degree of medical certainty, it is the evaluator's opinion the applicant would be able to complete a complete a basic retraining course or a standard course at a slower pace and this is most consistent with a mild impairment. | ||||||||||||||
| Employability | 3 | The applicant noted he works Thursday to Sundays working 28 to 32 hours per week on the cellar door. For the most part, he does customer service. On the other hand, he also does some winery work, such as plunging grapes or monitoring fermentation temperatures. The applicant is unable to do his pre-injury employment on a full or part time basis whatsoever. He is employed on a less than full time basis in a position that is significantly less stressful. In this context this is most consistent with a moderate impairment. | ||||||||||||||
| Score | Median Class | |||||||||||||||
| 2 | 2 | 2 | 3 | 3 | 3 | =3 | ||||||||||
| Aggregate Score Impairment | Total | % | ||||||||||||||
| +2 | +2 | +2 | +3 | +3 | +3 | 15 | 15% | |||||||||
Adjustment for the effects of treatment: 1%, yielding 16%
Less pre-existing impairment: 1.6
Final whole person impairment: 14% (rounded)
R J Perrignon
Member
Dr Julian Parmegiani
Medical Assessor
Dr Douglas Andrews
Medical Assessor
4 November 2021
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