Lamella v Catholic Education Diocese of Wollongong
[2022] NSWPICMP 349
•5 September 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lamella v Catholic Education Diocese of Wollongong [2022] NSWPICMP 349 |
| APPELLANT: | Louise Lamella |
| RESPONDENT: | Catholic Education Diocese of Wollongong |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Patrick Morris |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 5 September 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the deduction of one-half by the medical assessor (MA) in respect of a pre-existing psychiatric condition under section 323 of the Workplace injury Management and Workers Compensation Act 1998 (1998 Act); the Panel noted the MA’s use of the terms “mild” and “low dose” anti-psychotics in respect of the pre-existing condition; it is the contribution of the pre-existing impairment to the level of overall permanent impairment that must be assessed; paragraph 11.10 of the the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) provides that a Permanent Impairment Rating Scale (PIRS) assessment is to be conducted in respect of the pre-existing condition and deducted from the results of the PIRS assessment in respect of the overall impairment; if this is too difficult a one-tenth deduction applies; Held – the MA did not conduct such an assessment stating that in fact that “the amount was impossible to ascertain”; in these circumstances in accordance with 11.10 of the Guidelines a one-tenth deduction applies; this accords with the provisions of section 323 of the 1998 Act that provides for a one-tenth deduction in circumstances where the extent of the deduction would be too difficult to assess as long as a one-tenth deduction is not at odds with the available evidence; the Appeal Panel did not consider that a one-tenth deduction was at odds with the available evidence noting the assessment by the MA of the pre-existing condition whilst chronic was mild prior to injury; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 June 2022 Ms Louise Lamella (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Professor Nicholas Glozier, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 May 2022.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 WorkCover Medical Assessment Guidelines 2006.
As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error there was sufficient material to enable a determination to be made.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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.
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. 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.
The matter was referred to the MA for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 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: 15 June 2017 (deemed)
· Body parts/systems referred: Psychiatric/psychological
· Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying as follows:
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)
Psychological injury/ Mind
15/06/17
Chapter 11, pp 55-60
14
22%
1/2
11%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
11%
The assessment was based on his assessment under the Permanent Impairment Rating Scale (PIRS) as required by the Guides as follows:
“Table 11.8: PIRS Rating Form
…
Psychiatric diagnoses
Recurrent Major Depressive Disorder
No psychotic features currently
Psychiatric treatment
Regular psychiatric and psychological review. Venlafaxine 75mg mane for approximately four months and Quetiapine 12.5mg nocte. She used Diazepam prn.
Is impairment permanent?
Yes
PIRS Category
Class
Reason for decision
Self-Care and Personal Hygiene
3
She reports that her mother has to cook for her frequently and that she has had to return home to be cared for, although she can do some shopping and has lost weight with the aid of her dietician.
Social and Recreational
Activities
3
She reports having relinquished going to church and all other social activities although will occasionally see one friend.
Travel
2
She can travel locally, e.g. to the shops or drive locally without a support person.
Social Functioning
2
She is very well supported by her parents although has lost most of her friends and has not had any long-term relationship for many years, presumably reflecting in some part the ongoing pre-existing conditions.
Concentration, Persistence and
Pace
3
She said she watches TV in a distracted fashion, listens to audiobooks and scrolls the internet with little focus for prolonged periods.
Employability
5
With her reported functioning, she would be unemployable on the open job market.
Classes in Ascending Order: Median Class
2
2
3
3
3
5
=3
Aggregate Score Impairment: Total %
2+
2+
3+
3+
3+
5
18
=22%
Whole Person Impairment:
22%
The worker appealed.
There was no complaint about the assessment of the overall level of whole person impairment (WPI) of 22%. The complaint on appeal concerned the deductible proportion of one-half applied by the MA under s 323.
In summary the appellant submitted that the appeal was
“on the basis of demonstrable error as to the reasoning of the MA in respect of the application of section 323 of the 1998 Act and/or incorrect criteria and/or demonstrable error in failing to apply section 11.10 of the Guidelines to the Evaluation of Permanent Impairment (pre-existing impairment with respect to psychiatric injury)”.
The appellant submitted that the MA erred as follows:
(a) “By way of conflating presumption about causation with proper application of the section 323 deduction”.
(b) “By failing to apply 11.10 of the Guidelines”.
In summary, the Catholic Education Diocese of Wollongong (the respondent) submitted that the MA did not err and the MAC should be confirmed. The respondent submitted that the MA took a thorough history, that he considered the evidence “in toto” and did not rely on the appellant’s self report of her pre-injury functioning. The respondent submitted that the “MA extensively engaged with the available evidence, which is consistent with Guidelines 11.10, before stating that a ‘50% deduction is not at odds with the toto of the evidence presented to me”.
The MA recorded a thorough history as follows:
“brief history of the incident/onset of symptoms and of subsequent related events, including treatment: We used Ms Lamella’s statement as well as her treating clinicians to inform this. I would note there are inconsistencies between her history of her condition over the years following her first admission in 2008 and that of her treating psychiatrist. We tried to explore this but it proved difficult as she seemed adamant that there was no ongoing problems although she required ongoing treatment with low dose antipsychotic medication.
Ms Lamella said that she commenced her employment at John Terry Catholic College in January 2017 as a fulltime multi-category teacher. She said that she already experienced perceived harassment from the drama teacher over planning days prior to her starting. She said that from the day she commenced she felt that multiple staff members turned against her, intimidated, harassed and bullied her. She felt that all the other teachers had wanted another candidate rather than her and therefore made her life miserable as a result. She believes that an ex-student named Ashley had been the preferred candidate. She said that people made claims that her students were unhappy with her, interrupted her class on a frequent basis and outlined in a second undated statement a large range of perceived confronting difficult and harassing situations that she found virtually all other staff members placed her in. She said that some of this harassment was of a sexualised nature, e.g. being squeezed on the shoulder and a male doll placed on her desk with a note saying ‘take me home for birthday fun.’ She also said students were engaged in confronting behaviours, e.g. one pulling his pants down in front of her. She remains considerably aggrieved that the school and the education system did not do enough to address these complaints and grievances and behaviours over the subsequent years. By the end of the year she realised that the entries into her classes consisted ‘sabotage’ and that the staff were encouraging the students to disrespect her.
She felt that she became unwell in mid to late 2018 with the accumulation of these incidents. She experienced physical ill health as well as anxiety with physical features of chest pain, heart pounding, reduced focus, concentration and said that she began to relinquish some of her social function and stopped going surfing. At that time she said she had moved to her own property in Campbelltown. Even at the weekends she would be agitated with sleep disturbance and became avoidant of social activities. Although these persecutory behaviours were reported at work, there was no elaboration to episodes outside of school or persecutory behaviours by people from outside the school system. In her statement she noted at the end of 2018 the union rep suggested she find another school but she felt that she needed to address ‘unprofessional and toxic behaviours.’ In a meeting in late December 2018 she said she felt threatened with aggressive behaviour and that the support person did not defend her. Things continued into 2019 and it appeared she attended the Emergency Department with cardiac symptoms in late February that year. Events continued where she felt that she was treated poorly, harassed and belittled whilst there were meetings about her performance. I note the disagreements about the various procedures. She said that her symptoms continued up until early 2020 by which time she felt that everyone was supporting each other and that she was ‘fighting nepotism as well as bullies’. By this stage she felt that the department was trying to destroy her career. Over a series of meetings in February 2020 which, from her statement, is confusing about whether these were performance reviews or about her grievances, she was ultimately stood down and instructed by Mr McCann that she was not allowed to approach school grounds or speak to anyone. She said she heard them ‘high five’ afterwards. She continues to believe that being stood down was unjustified and represented a concerted effort by the school and the system to destroy her career, compounded by a later fact-finding investigation. There were refusals for her to transfer to another school or diocese and she later found that the CEO did not want her working in any Catholic school for 10 years, which again supports her view that they wanted to destroy her career. By May 2020 she had terminated the first lawyer, being dissatisfied with her performance.
Over 2020 there continued to be problems over her workers compensation claim, payments and termination, perpetuating her psychological symptoms. A Fair Work Commission filing failed due to it being out of time which led her to being ‘wrecked.’ She filed a further complaint with Safe Work NSW. She ultimately withdrew her unfair dismissal application with the Fair Work Commission after some negative experiences as she felt overwhelmed and could not afford ongoing court costs. By that stage she had moved in with her parents and said that she had become quite dysfunctional and symptomatic. Despite ongoing treatment she appears to have made little symptomatic or functional improvement since that time and remains focused on the perceived ‘systematic bullying, victimisation, harassment, intimidation and vilification’ whilst working at the college.
She first started seeing a psychologist in 2018 but by March 2020 had transferred to a different psychologist because she felt the first one was not providing helpful strategies.
On reviewing his psychiatrist’s notes over the period of her employment, Dr Rosenman saw her in October 2017 and said he had not seen her for a year previously with the view to her starting Isotretinoin. There was no mention of any work problems. A year later he noted that she continued to take a small dose of Amisulpride ‘which is useful for reducing her marked personal sensitivities.’ As a result of Roaccutane-associated lassitude, Dr Rosenman changed her medication to Abilify but she found this problematic, leading to her fainting. Dr Rosenman in February 2019 the increase of anxiety and he started Citalopram as well as increasing the Amisulpride. He first noted in February 2020 that ‘the difficulties of paranoid sensitivity continue but have come to a head with conflict between her and her school employer over complaints on both sides’ and he recorded the perpetuation of her symptoms by the ongoing problems with the school and litigation. He added a low dose Olanzapine in September 2020. Sometime after that she ceased seeing him due to her dissatisfaction with his treatment.
Over the past year or so she has conducted online or telephone appointments with Dr Johnston at Wesley Hospital and her new psychologist Malva whom she has seen for a year. She does not feel as though she has made any significant improvement.
· present treatment: Regular psychiatric and psychological review with a new psychiatrist and psychologist. Venlafaxine 75mg mane for approximately four months and Quetiapine 12.5mg nocte. She used Diazepam prn. She says she no longer takes any antipsychotics and recently a dietician helped control the weight that she had gained some time ago. She has changed psychiatrists and psychologists because she thought they were not treating her well. She has also changed her lawyer, again because of perceived poor performance.
· present symptoms: She feels angry, anxious and low for much of the time with her mood alternating depending on her content. She continues to ruminate about her perceived negative experiences at work which can dominate her thoughts and her dreams. She enjoys almost nothing and describes significant negative cognitive features about the future and herself and the Beck’s negative cognitive triad. She said she is unmotivated due to shame about what has happened to her and her destroyed life.
· details of any previous or subsequent accidents, injuries or condition: Ms Lamella’s statement, and what she told me today, was that in 2008 she had a brief admission to a psychiatric ward following a break up, where she was treated with an antipsychotic and continued with ongoing treatment with her psychiatrist and taking low-dose antipsychotics for many years throughout her employment with the Diocese. She stated that this condition ‘never had any significant or ongoing impact on my ability to complete my work duties or daily duties’ and goes on further in paragraph 9 in her statement to indicate minimal sequelae.
Dr Rosenman’s notes indicate the onset and acute psychosis with paranoid ideas and ongoing treatment with low-dose antipsychotics. He also notes that the psychosis had an affective component, i.e. it was a psychotic depression rather than Schizophrenia. He noted that she again became more depressed later in 2008 requiring antidepressants with quite distinct psychomotor slowing and even later that year ‘echoes of some of her paranoid thoughts.’ In 2009 she seemed well and was due to return to university without any treatment but restarted her antipsychotic in early 2009. Over the following years Dr Rosenman noted ‘paranoidal sensitivities’ and other social difficulties with anxiety components in August 2009. He then stopped the antipsychotics. However she had relapsed by April 2010 with paranoid thoughts, affective instability and physical symptoms and he recommenced Amisulpride which had a rapid effect at treating these paranoid and depressive symptoms. She again relapsed slightly in December 2010 having again ceased the antipsychotic medication. She again experienced ‘circular quasi-paranoid thoughts and the misery that accompanies them.’ Dr Rosenman noted the difficulties with treating her due to side effects. Once he re-established her on medication he did not see her for a year and then in 2013 noted that ‘without the medication that paranoia swings back in a very predictable way.’ There was a gap of two years before he saw her again in July 2016, where he noted that she had completed her studies and was teaching in contract positions. Contrary to what Ms Lamella says, he noted that she perceived bullying and unfair treatment in the workplace in these contract jobs even prior to joining John Terry and he noted her sensitivity to victimisation and the hostility of those around her. He notes she continued to struggle at work with ongoing symptoms, anxiety, obsessional thoughts in August 2016. Although he saw her in October 2017 (after the stated deemed date of workplace injury), he noted no ongoing paranoid or other symptoms at that time, unlike the year previously before she started at John Terry. He specifically noted that her anxiety became more prominent when she started Isotretinoin in 2018 and noted her ‘mild but intrusive paranoid illness complicated by affective change’ (i.e. a chronic psychotic depressive illness). It was only in February 2020 that he noted the emergence of ‘paranoid sensitivity’ that has ‘come to a head with conflict with her school employer.’
In toto this suggests that she has never fully recovered from her first psychotic depression that first emerged in 2008 and has continued to experience paranoid ideation, sensitivities and mood problems over the years, particularly when she has ceased her medication and has perceived other environments as being hostile and threatening, e.g. in the year before joining John Terry. In fact her long-term treating psychiatrist only noted the emergence of new paranoid and depressive symptoms in 2020 in the context of the performance difficulties and interactions with the Diocese and the system. From a psychiatric perspective this would suggest that Ms Lamella’s condition was a significant cause in and of itself of the experiences she encountered at the school, although I note there has been a deemed injury date made by an Arbitrator on the basis of the legal interpretation of causation rather than the medical one.
· general health: She reported a rhinoplasty but no chronic physical health conditions.
· work history including previous work history if relevant: She reported that she drank alcohol occasionally socially, intermittently stopped and started smoking, and did not use illicit drugs. We confirmed that in her statement she left school after year 12 and worked in retail and barista work. She did a diploma of business and theatre performance. Following her admission to the psych hospital, she recovered enough to complete a bachelor of dramatic arts and later a diploma in education, specialising in drama and studies of religion. Following this she worked casually in both disability support and education, working fulltime for a period before taking up her formal role. As noted above, there were interpersonal difficulties associated with her paranoia in these jobs prior to joining.
· social activities/ADL: Ms Lamella’s statement describes a very healthy picture of someone pre-joining John Terry who was ‘of a happy and calm disposition with a strong mental fortitude’ and described no problems in any domains as in her statement. On assessment today she reported that at the time she joined she was living with her family and at home would help care for her grandmother. For some time whilst employed at John Terry she lived on her own in Campbelltown, returning to her parents when things became difficult in February 2020. She said she was actively involved in the church, initially at the New Creation Ministry and later at Hillsong. She had friends at church and elsewhere. She reported surfing, going on surfing trips with no problems driving, flying or using public transport. She said she would go to the gym and theatre regularly and enjoyed reading. She has not had a long-term partner for many years.
She returned to live with the family in early 2020 and appears to have become quite disabled since that time. Both her parents work but she says her mother prepares most of her food for her now. Most of the days are very similar. She goes to bed late because she said she does not look forward to sleeping as she often tosses and turns. She will watch TV in a distracted fashion. She describes that she can’t watch series as they are difficult to follow. She sleeps for a few hours and then had broken sleep from waking up in the late morning. Although by my calculations this made it a normal sleep duration she says her watch gives her a sleep duration of 4-5 hours, a low sleep duration. She will frequently wake up with anxious, angry nightmares and ruminations, often school-based. When she gets up she, may go out for a walk or a coffee or into the garden and feed the chickens. Her parents bought her a puppy which she walks rarely. She now watches church services on YouTube and does not go now, saying that her ‘faith has been rocked’ and she is uncomfortable in groups. She occasionally sees one female friend who will text or occasionally go for a coffee but otherwise has relinquished all of her social activities and no longer goes surfing or to the gym because she says she has lost her confidence. She can walk to the local shops to buy basics. When she drives she feels anxious and agitated and so prefers others to drive longer distances, particularly if she feels she is not concentrating well. She spends much of the day scrolling through the internet, reads less, although occasionally will listen to Bible readings. She looked for courses when she first left work in 2020 but never heard back from any of the seven education and disability jobs she applied for and this shattered her confidence. She feels that things declined and she could no longer cope with work. She pointed out that she is restricted in any attempts to work for the Diocese due to the deed.”
The MA conducted a mental state examination and recorded his findings as follows:
“Ms Lamella was casually-dressed, but looked down with poor eye contact. She has a somewhat empty circumstantial speech pattern, quite often devoid of details and painted a rosy picture of her function and life prior to working for the Diocese. She was very focused on negative aspects of others treatment of her. She describes a pervasive low mood, anhedonia, extensive negative cognitions, low motivation, low energy, short broken sleep duration, reduced focus and concentration with no self-harm features. She says she can get anxious but has no panic. Although she has some marked paranoid interpersonal sensitivities about how people have treated her, there is no elaboration to this nor currently any extension outside of the workplace or to other agencies, indicative of a paranoid psychosis.”
The MA made a diagnosis as follows:
“(a) summary of injuries and diagnoses:
Although there is a significant inconsistency between Ms Lamella’s report and those of her treating clinicians, it is apparent from taking the documentation as a whole, that she has had a chronic paranoid and affective disorder, albeit of a mild nature, whose symptoms have fluctuated leading to repeated clinical presentations and paranoid interpretations of people’s behaviours over the years, requiring low dose antipsychotics. These were present even prior to working with John Terry in 2016. Reading all of the documentation, it seems quite clear that her condition was the most likely primary cause of the problems at work, although I do note that there were significant later problems compounded by the Diocese’s treatment of her, which caused an exacerbation of her pre-existing chronic paranoid affective illness, and probably has now led to a more marked presentation. Currently she presents with a Major Depressive Disorder without psychotic features and it is likely that the most accurate description of her condition over time is a recurrent Major Depressive Disorder with intermittent psychotic features or possibly a Schizophreniform Disorder. Currently her post injury-condition represents an exacerbation of her pre-existing condition.
(b) consistency of presentation
It is difficult to take at face value some of Ms Lamella’s history, given the inconsistency with the contemporaneous clinical documentation and this reflects both her condition and the associated pre-injury impairment.”
The MA considered there was a proportion of the impairment assessed due to a pre-existing condition namely “Chronic Major Depressive Disorder with significant paranoid sequelae”.
The MA explained his reasons for making a deduction under s 323 of one-half from the overall level of permanent impairment assessed as follows:
“In my opinion the deductible proportion for the contribution of the chronic pre-existing psychotic and depressive disorder to her current impairment is at least 50%. It is quite clear that she remained over many years with marked paranoid and interpersonal sensitivities and the alleged injuries at work represent a manifestation of this. As such her pre-existing condition was the main cause of her condition, the symptoms of which emerged from 2018 onwards and the workplace exacerbation of this contributed a minority of the causation and the current impairment. The amount is impossible to ascertain and as such I of the opinion that a 50% deductible portion is not at odds with the toto of the evidence presented to me.”
The MA had regard to the other opinions that were before him as follows:
“I have included Ms Lamella’s statements and those of Dr Rosenman into the history above. I note the psychologist’s reports which are very advocative and not appear to be aware of the chronic nature of Ms Lamella’s symptoms and condition, thus attributing all of her condition to the workplace events. I also note a number of documents indicating marked interpersonal sensitivity and somewhat paranoid interpretations over the years with her colleagues but also the significant difficulties within the Safe Work and other legal processes. They do not confirm the presence of an orchestrated attempt to undermine by all other staff.
Medicolegal report for the applicant worker by Dr Clark. Dr Clark elicited a similar history and made the same diagnosis. Dr Clark seemed unaware of the chronic nature of her symptoms. He provides a whole person impairment of 22%. He gives every class a 3, and the reasons for this appear inconsistent with the guidelines. For instance he states she is not presently employable yet only rates this a 3, rather than a 5, whilst he also notes she is unable to travel unaccompanied and rates this a 3 rather than a 2. As such it is difficult to understand his justification for his classes. He only made a section 323 deduction which appears at odds with the evidence provided and his provision of a 1% treatment effect cannot be allowed under the guidelines.
Reports by Dr McDonald, consultant psychiatrist for the insurers. Dr McDonald elicits a similar history and notes her report of ‘an orchestrated campaign to discredit her and remove her from school which commenced at the outset of her employment.’ He was cautious in ascribing causality or actual diagnosis without seeing Dr Rosenman’s results which appears justified. A subsequent report confirmed this. In a third report dated 30 November 2021, having been provided with Dr Rosenman’s notes, he was of the opinion that she had a chronic psychiatric illness with significant paranoid features that explained her perception of her treatment at work. I agree with his interpretation that the most likely cause of her current condition was her pre-existing condition, but note that an injury has been deemed, representing an aggravation of this pre-existing condition.”
The appellant complains that the MA erred in his approach to the deductible proportion under s 323.
Section 323 provides as follows:
“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 medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
(5) (Repealed)
[Note: Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.]”
A deduction can only be made if the pre-existing injury, abnormality or condition contributes to the overall level of permanent impairment assessed.
Paragraph 11.10 of the Guidelines provides as follows:
“Pre-existing impairment
11.10 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.”
In accordance with the findings of the MA, and consistent with the other evidence that was before him, the appellant had a chronic condition that was of a mild nature and well controlled by medication prior to injury. The MA notes as follows:
“Although there is a significant inconsistency between Ms Lamella’s report and those of her treating clinicians, it is apparent from taking the documentation as a whole, that she has had a chronic paranoid and affective disorder, albeit of a mild nature, whose symptoms have fluctuated leading to repeated clinical presentations and paranoid interpretations of people’s behaviours over the years, requiring low dose antipsychotics.”
The appellant says that either no deduction should have been made or in the alternative one-tenth. The appellant does concede that the appellant suffered a pre-existing condition.
The respondent says that the MAC should be confirmed or in the alternative, then a minimum deduction of one-tenth should be made.
The Appeal Panel considers that its is clear that the appellant had a pre-existing condition. This is conceded by the appellant. The contribution of the pre-existing condition to the level of permanent impairment must be taken into account.
The Panel notes the MA’s use of the terms “mild” and “low dose” anti-psychotics in respect of the pre-existing condition. It is the contribution of the pre-existing impairment to the level of overall permanent impairment that must be assessed. Paragraph 11.10 of the Guidelines provides that a PIRS assessment is to be conducted in respect of the pre-existing condition and deducted from the results of the PIRS assessment in respect of the overall impairment. If this is too difficult a one-tenth deduction applies. The MA did not conduct such an assessment stating that in fact that “the amount was impossible to ascertain”. In these circumstances, in accordance with 11.10 of the Guidelines, a one-tenth deduction applies. This accords with the provisions of s 323 that provides for a one-tenth deduction in circumstances where the extent of the deduction would be too difficult to assess as long as a one-tenth deduction is not at odds with the available evidence. The Appeal Panel does not consider that a one-tenth deduction is at odds with the available evidence noting the assessment by the MA of the pre-existing condition whilst chronic was mild prior to injury.
Applying a deduction of one-tenth leaves a WPI as a result of injury of 20% after rounding.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 May 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W4859/21 |
Applicant: | Louise Lamella |
Respondent: | Catholic Education Diocese of Wollongong |
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 Professor Nicholas Glozier 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) |
| Psychological injury/ Mind | 15/06/17 | Chapter 11, pp 55-60 | 14 | 22% | 1/10 | 20% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
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