Loidl v Internet Traffic Solutions Management Pty Ltd
[2021] NSWPICMP 12
•8 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Loidl v Internet Traffic Solutions Management Pty Ltd [2021] NSWPICMP 12 |
| APPELLANT: | Florian LoidI |
| RESPONDENT: | Internet Traffic Solutions Management Pty Ltd |
| APPEAL PANEL: | Jane Peacock Professor Nicholas Glozier Dr Julian Parmegiani |
| DATE OF DECISION: | 8 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Primary Psychological Injury; appellant alleged error because the Medical Assessor (MA) excluded impairment from what he assessed as a secondary psychological injury as a result of physical injury being an exacerbation of eczema; Held- Panel found MA erred; the appellant suffered a primary psychological injury as a result of the behaviour of his supervisor; the exacerbation of eczema that he suffered is not a primary physical injury from which a secondary psychological injury has resulted but is a result of his primary psychological injury and any impairment that results from his psychological injury and its sequelae is indivisible; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 December 2020 Mr Florian Loidl (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Douglas Andrews, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 1 December 2020.
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, and
· the MAC contains a demonstrable error.
The Registrar 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 Workers compensation medical dispute assessment guidelines 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 Workers compensation medical dispute assessment guidelines.
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 Workers compensation medical dispute assessment guidelines.
As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS 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 AMS 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 by the Registrar to the AMS for assessment ((s 319 of the 1998 Act) as follows:
· Date of injury: 1 March 2018 (deemed)
· Body parts referred: Psychiatric/psychological disorder
· Method of assessment: Whole Person Impairment
The AMS 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) |
| 1. Psychiatric | 1 March 2018 (deemed) | Chap 11, p 54-60 | n/a | 19% | 1/10 | 17% |
| 3. | Proportion due to secondary psychiatric injury | 3/10 | 12% | |||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
The worker appealed.
In summary, the complaints on appeal by the appellant are that the AMS has erred has follows:
(a) Made a demonstrable error in his approach to the question of that which constitutes a primary psychological injury and that which constitutes a secondary psychological injury;
(b) Made a demonstrable error in concluding that the appellant had sustained a secondary psychological injury;
(c) Made an assessment on the basis of incorrect criteria by purporting to apply the Guides, in particular paragraph 1.22 but in fact applying incorrect criteria in coming to the conclusion that a proportion of the appellant’s psychological condition “arose as a consequence of, or secondary to, another work related condition”. Here there was no physical injury and hence no secondary psychological injury.
In summary Internet Traffic Solutions Management Pty Ltd (the respondent) submitted that the AMS did not apply incorrect criteria nor did he make a demonstrable error and that the MAC should be confirmed.
The AMS has taken a history, conducted a mental state examination and had regard to the other evidence that was before him.
The AMS has made an assessment of a total WPI of 17% WPI and there is no complaint about this on appeal. He however has then apportioned that impairment on the basis of his causal finding that the appellant has suffered a work-related physical injury of eczema and a secondary psychological injury as a result of the exacerbation of eczema. The AMS explains his reasoning as follows:
“Mr Loidl’s major depression and generalised anxiety have been aggravated and exacerbated by his eczema and the associated discomfort. A/Prof Shumack partly attributes this to the stress of work but, in that regard, the eczema is a primary injury sustained in the workplace. The depression and anxiety component attributable to the eczema is a subsequent secondary psychiatric injury.
Paragraph 1.22 of the Guidelines states:
A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work-related condition (e.g. depression associated with a back injury). No permanent impairment assessment is to be made of a secondary psychiatric and psychological impairment.
Relying on my experience as a psychiatrist, I determine (conservatively) that 30% of his WPI is caused by the secondary psychiatric sequelae of his eczema and that 70% of his WPI relates to his primary workplace injury, considered after the one-tenth deduction for the pre-existing anxiety and depression.”The AMS has erred. He has made findings on causation that were not open to him. He was referred a primary psychological injury and it was his job to assess the degree of permanent impairment, if any as a result of that injury. The appellant has suffered a primary psychological injury as a result of the behaviour of his supervisor. The exacerbation of eczema that he suffered is not a primary physical injury from which a secondary psychological condition has resulted but is a result of his primary psychological injury and any impairment that results from his psychological injury and its sequelae is indivisible. Accordingly the MAC will be revoked and the Panel will issue a new certificate certifying 17% WPI as a result of injury deemed to have occurred on 1 March 2018.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 December 2020 should be revoked. A new Medical Assessment Certificate is attached to this statement of reasons.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
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 Douglas Andrews and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in 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 | 1.3.18 (deemed) | Chapter 11, pp 55-60 | 14 | 17% | Nil | 17% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
Jane Peacock
Member
Professor Nicholas Glozier
Medical Assessor
Dr Julian Parmegiani
Medical Assessor
8 March 2021
0