Kennard's Hire Pty Ltd v Elliott
[2024] NSWPICMP 288
•14 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kennard's Hire Pty Ltd v Elliott [2024] NSWPICMP 288 |
| APPELLANT: | Kennard’s Hire Pty Ltd |
| RESPONDENT: | Julian Elliot |
| APPELLANT: | Julian Elliot |
| RESPONDENT: | Kennard’s Hire Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 14 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; both parties appealed the Medical Assessment Certificate (MAC) regarding the deduction Medical Assessor (MA) made under section 323(1); whether MA gave proper consideration to the evidence; whether MA erred by assuming in accordance with section 323(2) that the deduction was 10%; whether MA erred by not applying paragraph 11.10 of the Guidelines; whether worker had pre-existing condition; Appeal Panel held that MA erred by not finding worker had pre-existing condition of recurrent depression but that error made no difference to the outcome; Held – MAC upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
Julian Elliot commenced employment with Kennard’s Hire Pty Ltd (Kennards) in 2010 as a customer service centre manager. He last worked for Kennards in April 2022. At that time two employees of Kennards who were on probation made false allegations to Kennards about Mr Elliot's behaviour towards them. Kennards conducted an inquiry, but despite being unable to substantiate the allegations made against him, Kennards sought his resignation. These events caused Mr Elliot to suffer a psychiatric injury.
Mr Elliot claimed compensation from Kennards for permanent impairment resulting from his injury. Kennards denied his claim, prompting Mr Elliot to initiate proceedings in the Personal Injury Commission (Commission) seeking determination by the Commission of his claim.
A delegate of the President of the Commission referred several medical disputes to Medical Assessor Aman Suman to assess. These were described in the referral issued to the Medical Assessor in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 14 April 2022
Body part/s referred: Psychiatric and psychological disorders
Method of assessment: Whole Person Impairment”
The Medical Assessor examined Mr Elliot on 18 January 2024 to conduct the assessment.
On 5 February 2024 the Medical Assessor issued a Medical Assessment Certificate (MAC) in response to the referral. In that he certified that Mr Elliot's impairment is permanent and that the degree of his permanent impairment is fully ascertainable. The Medical Assessor also indicated he assessed the overall permanent impairment of Mr Elliot from his injury is 22% whole person impairment (WPI). The Medical Assessor certified that a proportion of that is due to a pre-existing condition and further certified that the proportion is 1/10th. It is apparent to the Appeal Panel from the MAC, when the MAC is considered a whole, that the Medical Assessor’s assessment of the extent of the proportion of Mr Elliot’s permanent impairment from his injury that was due to a pre-existing condition, had assumed pursuant to s 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) it was 1/10th because it was difficult to determine the precise proportion and making that assumption was not at odds with the evidence.
Ultimately, the Medical Assessor certified he had assessed the degree of Mr Elliot’s permanent impairment from his injury was 20% WPI.
Both Mr Elliot and Kennards have appealed against the Medical Assessor's assessment of the medical dispute relating to whether any proportion of Mr Elliot's permanent impairment was due to a pre-existing condition and the extent of that proportion. Kennards relies on the grounds for appeal provided in s 327(3)(c) and (d) of the 1998 Act and Mr Elliot relies on the ground for appeal in s 327(3)(d) of the 1998 Act. Section 327(3)(c) provides a ground for appeal where the assessment is made on the basis of incorrect criteria. Section 327(3)(d) provides a ground for appeal where the MAC contains a demonstrable error.
A delegate of the President is satisfied that there is a ground for appeal capable of being made out in both appeals. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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).
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. This is because the Appeal Panel came to the view that neither party had established the grounds for appeal on which they relied, and consequently there is no basis for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
RELEVANT PARTS OF THE MAC
As mentioned, each party's appeal relates to the Medical Assessor’s assessment of the dispute regarding whether any proportion of Mr Elliot's permanent impairment from his injury is due to a pre-existing condition and, if so, the extent of that proportion. Relevant to that issue is the Medical Assessor’s diagnosis of Mr Elliot's injury, which is major depressive disorder and panic disorder.
The Medical Assessor also detailed in the MAC that Mr Elliot had “denied struggling with chronic mental health issues”, that Mr Elliot had said “he received outpatient appointments, including the trial of antidepressant treatment in 2010 - 2012 under the care of a psychiatrist”, and that Mr Elliot had said “he used psychotropic treatment only for a short while”. The Medical Assessor noted that he brought to Mr Elliot’s attention various entries in the records of his general practitioner relating to the trial of psychiatric medication and psychological therapy to which Mr Elliot responded that he did not remember the detail. The Medical Assessor noted that “clinical records provide details of Mr Elliot struggling with his mental health issues on multiple occasions from 2012 to 2022”.
The Medical Assessor, under the heading “review of documentation”, also detailed that
Dr Danielle Florida, whom the Appeal Panel notes is a psychiatrist practicing from the Hills Clinic in 2012, wrote in a letter dated 19 June 2012 that “Mr Elliot was suffering from a major depressive disorder with comorbid social anxiety”.The Medical Assessor also noted that Mr Elliot's general practitioner’s records detailed that he required antidepressant treatment due to mental health stresses from 2011 onwards and that there were entries in the general practitioner's records from October 2010,
November 2011, July 2012, January 2016, August 2018, January 2019 and September 2019 that revealed Mr Elliot was “struggling with mental health issues requiring input from a psychologist or trial of psychotropic treatment”.The Medical Assessor noted that psychiatrist Dr Frank Chow, who had provided a report dated 27 January 2023 to Mr Elliot's lawyers to support the claim Mr Elliot had made against Kennards for compensation, had assessed Mr Elliot had 22% WPI but had not made any deduction for a pre-existing illness.
The Medical Assessor also noted that psychiatrist and occupational physician Dr Naresh Verma, who assessed Mr Elliot on behalf of Kennards’ solicitors, had assessed Mr Elliot had 22% WPI but had deducted 66% of that, when assessing Mr Elliot’s permanent impairment from his injury, on account of Mr Elliot having a long history of depressive symptoms with intermittent exacerbation, such that Dr Verma assessed Mr Elliot had 8% WPI from his work injury.
The form that the President has prescribed for a medical assessment certificate contains several standard questions, one of which is, “is any proportion of loss of efficient use or impairment or whole person impairment due to a previous injury, pre-existing condition pr abnormality”, to which the Medical Assessor responded yes. A further question is “if so, please indicate which body parts/system is affected by the previous injury, pre-existing condition abnormality”, to which the Medical Assessor responded:
“Mr Elliot quite likely struggle with mental health issues before 2022. It's difficult to provide a specific diagnosis or ascertain the level of functional deficits due to lack of documentation/information in clinical records.”
The Medical Assessor subsequently stated that he had made a 1/10th deduction “for a pre-existing psychological injury”.
The prescribed form for the MAC also contained this standard paragraph:
“The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in the following ways”
In answer to that the Medical Assessor said, “Mr Elliot has required input from mental health professionals before April 2022”.
In the Psychiatric Injury Rating Scale (PIRS) form within the MAC the Medical Assessor also stated:
“Pre-existing deduction clause - Mr Elliot has struggled with mental health issues before April 2022, although it's not possible to ascertain the level of functional deficits he experienced (secondary to mental health stressors) before April 2022. I have accordingly made a deduction of 1/10”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing Kennards’ submissions in support of its appeal, so as to provide a summary of them, they are that the clinical records that were available to the Medical Assessor relating to Mr Elliot detailed that Mr Elliot had an extensive history of mental illness preceding his work injury which had caused him functional deficits prior to his injury. Kennards submitted that the Medical Assessor did not properly consider this evidence. Kennards submitted that Dr Verma did give proper consideration to this evidence and, having done so, made a deduction under s 323(1) of 66% when assessing the degree of Mr Elliot's permanent impairment from his injury.
Kennards submitted that, bearing in mind the extensive evidence on Mr Elliot’s history of mental illness, the Medical Assessor did not provide an explanation why it is too difficult to determine the proportion of Mr Elliot's impairment that was due to his pre-existing condition such that s 323(2) could be engaged, nor did the Medical Accessor explain why assuming that the deduction was 1/10th was not at odds with the available evidence.
Paraphrasing Mr Elliot's submissions in response to Kennards’ submission, again to provide a summary of them, they are that the most recent entry in the clinical records relating to his mental health prior to his suffering his work injury was on 24 September 2019. That entry did not indicate he then had any functional deficit. Mr Elliot highlighted that in his statement, which he signed on 24 July 2022, he indicated he was asymptomatic preceding his injury. He submitted there was no evidence contradicting that. He also submitted that at the time he suffered injury no permanent impairment could be assessed as resulting from his pre-existing condition based on the criteria set out in Chapter 11 of the Guidelines, namely the PIRS.
Mr Elliot submitted that given what he said in his statement and the lack of any entry in the medical records of his consulting his doctor for mental health between 24 September 2019 and the time of his injury, the trajectory of his mental illness was one of improvement.Mr Elliot submitted that “the role of an assessor with respect to s323 is made clear by the authorities which is to identify the existence of some pre-existing condition or abnormality, and to assess whether that had caused an effect on the “pre-injury level of function”.
With respect to his appeal against the MAC Mr Elliot submitted that, because he was asymptomatic at the time he suffered his work injury, the Medical Assessor ought to have applied the instruction contained within paragraph 11.10 of the Guidelines to determine the deduction to be made under s 323(1). He relied on an earlier decision of a differently constituted Appeal Panel in Mayo Private Hospital v Radnidge[2] in which that Appeal Panel held that Marks v Secretary, Department of Communities and Justice (No.2) [3] said that paragraph 11.10 of the Guidelines must be applied unless the assessment is that of a pre-existing but asymptomatic condition. Mr Elliot submitted that the Medical Assessor was consequently required to attempt to apply paragraph 11.10 and only if the percentage of a pre-existing impairment could not be assessed by reference to that criteria, could the Medical Assessor then make the assumption under s 323(2) that the deductible proportion is 10%.
[2] [2022] NSWPICMP 28.
[3] [2021] NSWSC615 (Marks).
Mr Elliot submitted that it is not apparent why the Medical Assessor did not make a PIRS assessment for a pre-existing condition. Mr Elliot submitted that the Medical Assessor did not provide sufficient reasons for not applying Paragraph 11.10 of the Guidelines.
Mr Elliot submitted that the Medical Assessor “stops plainly short” of concluding that he had a pre-existing condition. Mr Elliot also submitted that the Medical Assessor also stopped short of finding that he had functional deficits preceding his injury. Mr Elliot submitted that that is “fatal” to making a deduction under s 323. Mr Elliot submitted that if there is no diagnosed condition then s 323 cannot apply.
In response to those submission Kennards submitted that it is apparent from the MAC that the Medical Assessor considered that Mr Elliot had pre-existing functional deficits. Kennards agreed with Mr Elliot that it was not apparent from the MAC why the Medical Assessor did not conduct a PIRS assessment of Mr Elliot's pre-injury level of functioning in accordance with paragraph 11.10 of the Guidelines.
Kennards disputed Mr Elliot's submission that the entry in his general practitioner's records on 24 September 2019 did not indicate that he had a functional deficit. Kennards highlighted that the entry included that Mr Elliot was “feeling low” and felt “depressed, angry”. Kennards submitted that feeling low and depressed are related to several of the PIRS categories.
FINDINGS AND REASONS
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.
Section 323(1) of the 1998 Act requires a Medical Assessor to make a deduction when assessing a worker's permanent impairment from a work injury for any proportion of that impairment that is due to a previous injury, pre-existing condition or abnormality. Consequently, in order that a deduction be made a Medical Assessor must, based on the evidence before the Medical Assessor, make a finding based on the evidence that the worker has a previous injury, pre-existing condition or abnormality. If the Medical Assessor is satisfied that the worker has suffered a previous injury, or has a pre-existing condition or abnormality, then in order that a deduction can be made part of the worker’s permanent impairment must be due to that previous injury, pre-existing condition or abnormality.[4]
[4] Cole v Wenaline Pty Ltd [2010] NSWSC78 at [29].
Section 323(2) permits the Medical Assessor to assume the deduction to be made under
s 323(1) is 10% if it would be difficult or costly to determine the deduction to be made under
s 323(1), provided making that assumption is not at odds with the available evidence.It follows from that that it cannot be assumed from the fact that a pre-existing condition is asymptomatic at the time a worker suffers injury, that no portion of the worker's permanent impairment is due to that pre-existing condition. Similarly, the corollary of that applies, that is it cannot be assumed that merely because a worker has a condition, be it symptomatic or asymptomatic at the time of injury, the condition did contribute to the impairment a worker has from injury.[5]
[5] Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC365 at [91].
The Appeal Panel does not accept the submissions of Mr Elliot to the effect that paragraph 11.10 of the Guidelines requires a Medical Assessor, when assessing what proportion of a worker's impairment from a psychiatric injury is due to a pre-existing condition, to assess the degree of the worker's permanent impairment from the pre-existing condition as at the time of injury and then to deduct that from the permanent impairment the Medical Assessor assesses the worker has at the time of assessment. There is nothing within Marks requiring that, irrespective of whether the pre-existing condition is symptomatic or asymptomatic at the time that the worker suffers injury, to adopt that method, that is subtract the permanent impairment of a worker has at an earlier point in time from the permanent impairment the worker has at the time of assessment. That would conflict with what s 323(1) of the 1998 Act requires the Medical Assessor to do. What s 323(1) requires of the Medical Assessor is to establish what proportion the pre-existing condition makes to a worker's permanent impairment, as assessed at the time the assessment is undertaken. That is a different thing from using PIRS to measure what the permanent impairment of a worker was at an earlier point in time from the pre-existing condition for the purpose of establishing the deductible portion for s 323(1).[6]
[6] Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC334 at [54]; Fardell v Clinton Industries Pty Ltd [2022] NSWSC111 at [81].
The Appeal Panel considers that it is abundantly clear from the evidence that Mr Elliot suffered recurrent depression prior to his injury. The earliest evidence of his illness is from as early as 2009. A diagnosis was made by his general practitioners, which is confirmed in the clinical records they maintained. The diagnosis was also made by psychiatrist Dr Danielle Florida whom Mr Elliot consulted in 2012.
Mr Elliot sought treatment for his illness in the period of 2009 to 2010, in 2012, in 2016 and between 2018 and 2019. He had been placed on mental health care plans. He was prescribed antidepressants.
The Appeal Panel considers that the Medical Assessor was wrong to conclude that it was difficult to provide a specific diagnosis regarding Mr Elliot’s previous illness. What was contained in the evidence was, in the Appeal Panel's view, sufficient to allow a conclusion that in all likelihood Mr Elliot had recurrent depression as at the time he suffered injury.
The evidence also reveals that Mr Elliot had been doing well, notwithstanding his illness, for 2 to 2 ½ years before his injury. It is apparent from the record his general practitioner made on 29 April 2022 that Mr Elliot was not then taking antidepressants.
The fact that Mr Elliot was at the time he suffered injury not then affected by his pre-existing illness in any significant way affected and was obviously able to cope with his employment until the occurrence of the circumstances that led to his injury is, as indicated above, a factor relevant to weigh when assessing the proportion of his permanent impairment that is due to his pre-existing condition, it is not determinative of whether or not a deduction should be. That is to say, no assumption can be drawn from the fact that Mr Elliot's pre-existing illness was not manifesting symptoms as at the time he suffered injury that his pre-existing condition did not contribute to his permanent impairment from his injury.
It is the case that Mr Elliot's permanent impairment from his injury is worse as a consequence of his pre-existing illness. This is because without his having a pre-existing illness his permanent impairment now would not now be as great. Consequently, part of
Mr Elliot’s permanent impairment now is the result of his pre-existing condition. Saying that another way, but for his pre-existing condition, his permanent impairment from his injury would be less. Hence, there must be a deduction under s 323(1) on account of his pre-existing condition when assessing the degree of his permanent impairment from his injury.[7] The Medical Assessor consequently did not err by making a deduction.[7] Ryder v Sundance Bakehouse [2015] NSWSC526 at [45].
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning.[8] The reasons do not necessarily need to be comprehensible to a person with no medical expertise. In a circumstance where an assessment or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it, a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.[9]
[8] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[9] Campbelltown City Counsel v Vegan [2006] NSWCA 284 at [122], 67 NSWLR 372; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34].
In the Appeal Panel's view, it would be uncontroversial to a specialist medical practitioner, and indeed to any others, that it would be difficult to determine precisely the extent to which Mr Elliot’s pre-existing condition contributes to his permanent impairment from his injury. There is simply no easy way to do that. As explained earlier, paragraph 11.10 of the Guidelines cannot be applied because what that requires is inconsistent with s 323(1). That is to say, to attempt to assess what Mr Elliot's permanent impairment would have been as a result of his pre-existing illness immediately before he suffered injury by reference to the severity of his function in the several PIRS categories and then to deduct that from his impairment as of the time he presented for assessment is inconsistent with s 323(1).
The Medical Assessor was consequently correct to assume the deduction to be made under s 323(1) is 10% provided that assumption was not at odds with the evidence. Relevant to that matter is that Mr Elliot had for a long period of time suffered from recurrent depression that had at least during three prior periods manifested symptoms. Also relevant is that his function at the time he suffered injury seemed to be unimpaired.[10]
[10] Secretary, Department of Communities and Justice v Taane & ORS [2024] NSWSC54 at [75].
In the Appeal Panel's view, given the evidence relating to Mr Elliot's functioning immediately preceding his injury notwithstanding his psychiatric illness at that time, the Medical Assessor was correct to make an assumption in accordance with s 323(2) that the deductible proportion for s 323(1) is 10%. The Appeal Panel considers that when the MAC is read as a whole the Medical Assessor has adequately explained that, consistent with the extent of reasons the Medical Assessor was required to provide as explained in [47] above.
In the final analysis, the Appeal Panel considers that the Medical Assessor was wrong not to conclude that Mr Elliot had a pre-existing recurrent depression, but that error makes no difference to the outcome and hence it is not material and therefore not a demonstrable error.
For these reasons, the Appeal Panel has determined that the MAC issued on
5 February 2024 should be confirmed.
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