Manly Fresh Pty Ltd v Bachhal
[2021] NSWPICMP 218
•15 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Manly Fresh Pty Ltd v Bachhal [2021] NSWPICMP 218 |
| APPELLANT: | Manly Fresh Pty Ltd |
| RESPONDENT: | Rahul Bachhal |
| APPEAL PANEL: | Member Catherine McDonald Professor Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 15 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; arbitrator found that worker suffered a primary and a secondary injury; Medical Assessor (MA) did not apportion impairment as required by section 65A of the Workers Compensation Act 1987; State of NSW v Kaur and Mercy Connect v Kiely considered; appellant also argued that MA erred in the assessment of social functioning; difference of opinion; Ferguson v State of NSW considered; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 September 2021 Manly Fresh Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Bench, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 August 2021.
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 was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that the assessment was made on the basis of incorrect criteria. We conducted a review of the original medical assessment but limited to the grounds 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).
RELEVANT FACTUAL BACKGROUND
Mr Bachhal was employed by Manly Fresh as a trainee store manager. On 24 January 2019 he was in a loading dock when a forklift was reversed over his left foot. He claimed compensation for physical injuries to his left foot, ankle and knee and his lumbar spine. He also alleged that he suffered a primary psychological injury.
On 21 September 2020, an arbitrator in the former Workers Compensation Commission determined that Mr Bachhal suffered a primary psychological injury, being post traumatic stress disorder (PTSD). The arbitrator found that he also suffered a secondary psychological injury, being major depression which was a result of his physical injuries.
The Medical Assessor saw Mr Bachhal in December 2020 and issued a MAC on 18 January 2021 in which he said that Mr Bachhal’s condition had not reached maximum medical improvement.
In response to a reconsideration application dated 15 March 2021, the Personal Injury Commission referred the matter back to the Medical Assessor who prepared a further MAC dated 24 August 2021. The Medical Assessor diagnosed PTSD and persistent depressive disorder with psychotic symptoms. He assessed 24% whole person impairment (WPI).
PRELIMINARY REVIEW
We 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 that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have before us 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.
The parts of the medical certificate given by the Medical Assessor 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.
In summary and in submissions prepared by its solicitor, Mr Elder, Manly Fresh submitted that the Medical Assessor had applied incorrect criteria in that he failed to adequately address the distinction between the primary and secondary psychological injures and failed to apportion any part of the impairment assessed to the secondary psychological injury.
Manly Fresh also submitted that the MAC contained a demonstrable error with respect to the assessment in class 4 for social functioning because the Medical Assessor had not provided “adequate consideration” of the evidence in that his relationship with his siblings remained intact.
Manly Fresh submitted that 50% of the impairment should be apportioned to the secondary psychological condition.
Mr Tanner of counsel prepared submissions on behalf of Mr Bachhal. He said that the use of “adequately” in Manly Fresh’s submissions was a concession that the Medical Assessor did address the distinction between the primary and secondary conditions. Mr Tanner said that the Medical Assessor’s opinion that there was “no scientific or medical evidence to apportion impairment to one condition or another being provoked by two contemporaneous and intertwined psychiatric disorders” was open to him based on his training as a medical specialist and a Medical Assessor. Mr Tanner noted that Manly Fresh did not rely on any evidence as to the impairment resulting from a secondary injury and argued that the appeal should be dismissed.
With respect to the assessment of Mr Bachhal’s social functioning, Mr Tanner submitted that Manly Fresh had not identified error in the assessment made by the Medical Assessor.
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[1] 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.
[1] [2006] NSWCA 284.
The Certificate of Determination and referral
Section 65A of the Workers Compensation Act 1987 (the 1987 Act) provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Mr Bachhal’s claim for permanent impairment compensation was listed for conciliation conference and arbitration hearing before an arbitrator of the former Workers Compensation Commission in July 2020. Manly Fresh’s insurer had denied liability for Mr Bachhal’s primary psychological injury and the arbitrator was required to determine if he had suffered a primary injury.
The arbitrator determined that Mr Bachhal suffered a primary psychological injury “in the nature of PTSD”. She found that that he also had a secondary psychological condition which would not, of itself, preclude a primary diagnosis of PTSD.
The Medical Assessor was provided with a copy of the arbitrator’s reasons and asked to assess “primary psychological impairment (PTSD)”.
The MAC
The Medical Assessor set out the history he obtained from Mr Bachhal and his current symptoms in detail, both psychiatric and physical. With respect to the physical symptoms the Medical Assessor wrote:
“The applicant noted on an on-going basis, he has pain and swelling in his left foot. He also continues to experience back pain. He reported his pain is always ‘bad’. He continues to pursue further investigation in order to delineate the nature of his concerns. He is very stiff in his ankle and lower back. He noted during the evaluation, his pain was ‘not as bad … it gets bad if I try to do stuff.’ He continues to report episodes of paralysis whereby ‘I can’t open my teeth. I can’t open my eyes, I can’t move myself at all’.”
The Medical Assessor recorded:
“The applicant noted his mother has been in and out of hospital for heart and kidney disease. He was fearful she would die without his being able to see her. He noted ‘she is recovering a bit better than before.’ His father has also been admitted to hospital with a lung infection, ‘he was in critical care, too, for a moment.’ He is now out of hospital and recovering. He acknowledged such have been significant stressors.
He reported he separated from his partner a few months following the work injury ‘she left me because I can’t talk to her much … every time she’s rang me, I was in pain … I was feeling hopeless. I broke up with my girlfriend’. He asserted the separation from his partner was the result of the work injury. His ex-girlfriend got married last year, which greatly upset him. He acknowledged being homesick.”
The Medical Assessor took a detailed history of Mr Bachhal’s social activities and activities of daily living. He described his examination by audio-visual link:
“He presented as an overweight Indian male. He was bearded and was wearing a beanie. He was half-lying, half-sitting throughout the evaluation, other than when I had him retrieve his medications. He rose very slowly and gingerly from the lounge. He evidenced a need to repeatedly change position due to pain. His eye contact was intermittent. He participated in the ninety-minute evaluation without the need for a break or interruption. His speech was monotonous and slowed. His thought processes were logical, relevant and coherent throughout. There was no evidence of formal thought disorder. He described his recent mood as ‘the same, as before … a bit off, a bit low’. His observed emotional tone was blunted. There was no overt delusional material elicited. He has prominent health anxiety. He denied any auditory hallucinations or visual hallucinations. He denied any suicidal ideation.”
The Medical Assessor said that Mr Bachhal’s presentation is unusual. He reviewed the medical reports in the file and called for the treating records of Mr Bachhal’s new treating psychiatrist. He set out his diagnosis and reasons, saying:
“The applicant meets diagnostic criteria for Posttraumatic Stress Disorder. He meets Criterion A in that the work injury caused a serious injury. The applicant believed he would be disabled at the time of the injury. He has developed re-experiencing phenomena in the form of nightmares, intrusive thoughts and images and physiological symptoms of arousal on reminders of the trauma. He has engaged in marked avoidance of any triggers that remind him of trauma. He has a markedly negative emotional state with persistent impairments with incapacity to enjoy activities and depressive symptoms. He remain isolative and withdrawn. He reported symptoms of hyperarousal, including insomnia, collateral materials to suggest the applicant has been exposed to any other traumas that meet Criterion A and as such it is the evaluator's opinion the Posttraumatic Stress Disorder was caused by the work injury.
The applicant has profound symptoms of depression dating back to the time of the injury, including depressed and anxious mood, lethargy, lack of libido, impaired ability to enjoy activities, being isolative and withdrawn, lethargy, weight gain and suicidal ideation. He has had persistent symptoms for greater than two years. The applicant has also developed psychotic symptoms, which currently appear to be quiescent in spite of only taking an anti-psychotic intermittently to assist with sleep. As previously noted, his psychotic symptoms are not consistent with Posttraumatic Stress Disorder. The onset of Schizophrenia at such a late age is also atypical. Such suggests he does not have a primary psychotic illness, such as Schizophrenia. Using best clinical judgement, he meets diagnostic criteria for a Persistent Depressive Disorder with psychotic symptoms. There was some four years-worth of medical records prior to the work injury provided for review. There was no evidence of any psychotic symptomatology in such. In this context, it is apparent the applicant would appear to have first developed psychotic symptomatology associated with impairment following the work injury. As such, I accept that the psychotic illness is also caused by the work injury.
The applicant has profound physical symptomatology and impairments. There is a high degree of disagreement with regards to the physical assessors as to the cause of such treatment. Nonetheless, reviewing the mechanism of injury and the severe extent of his impairments, it is the evaluator's opinion he has also developed Somatic Symptom Disorder with predominant pain. He asserted his physical pain and symptomatology is severe and has associated functional impairments. Furthermore, his pain syndrome now encompasses various parts of his body, unrelated to the initial injury. In this context, it is the evaluator's opinion he also meets diagnostic criteria for Somatic Symptom Disorder with predominant pain.”
The Medical Assessor determined that Mr Bachhal had reached maximum medical improvement. He said:
“It is the evaluator’s opinion the Posttraumatic Stress Disorder and Persistent Depressive Disorder with psychotic symptoms has been the cause of his impairment. It is the evaluator’s opinion there is no scientific or medical basis upon which to apportion any impairment to a primary or secondary psychiatric injury. I believe he has in fact developed a primary depressive illness as a result of the work injury. His chronic pain and impairments may well have aggravated his primary depressive illness.”
The Medical Assessor noted the Certificate of Determination dated 21 September 2020 and said:
“It is the evaluator’s opinion there is no scientific or medical basis upon which to apportion any impairment to a primary or secondary psychiatric injury. I believe he has in fact developed a primary depressive illness as a result of the work injury. His chronic pain and impairments may well have aggravated his primary depressive illness.
The Medical Assessor disagreed with Dr A Khan, qualified for Mr Bacchal, about the cause of Mr Bachhal’s psychotic symptoms:
“Comment: Although Dr Khan has suggested the psychotic symptoms are part of dissociation due to his Posttraumatic Stress Disorder, his description of his symptoms were wholly inconsistent with such. His symptoms were not those of pseudohallucinations or flashbacks with visual illusions or the like, but rather he described both auditory and visual hallucinations, paranoid and persecutory delusional beliefs and passivity phenomena. Such are not typical symptoms of Posttraumatic Stress Disorder. They are consistent with true psychotic symptoms.”
The Medical Assessor also disagreed with Dr G George, qualified for Manly Fresh, who made a preliminary diagnosis that Mr Bachhal had undifferentiated schizophrenia and considered that he had some symptoms of PTSD which were insufficient to warrant that diagnosis. The Medical Assessor said:
“For the reasons noted above, a diagnosis of Schizophrenia is less likely, especially given he has now been off regular anti-psychotics and is not experiencing psychotic symptoms. The psychotic symptomatology that he was experiencing would be considered inconsistent with Posttraumatic Stress Disorder. With a reasonable degree of medical certainty, it is the evaluator’s opinion his psychotic symptoms are likely secondary to his depressive illness. I was unable to reconcile how Dr George arrived at the conclusion that he was functioning reasonably well. As per the applicant's report and seemingly the entirety of the collateral materials, he has been wholly dysfunctional almost immediately from the time of the work injury to the present, both due to severe physical and psychiatric symptomatology.”
The Medical Assessor assessed Mr Bachhal in class 2 for self-care and personal hygiene, class 3 for social and recreational activities, class 2 for travel, class 4 for social functioning, class 3 for concentration, persistence and pace and class 5 for employability. He gave the following reasons for his assessment of social functioning:
“The applicant elaborated on his relationship with Manu. They were together since high school. He immigrated to Australia the year after completing high school following which they had a long-distance relationship. He reported having flown back to India on a number of occasions. On the other hand, he asserted prior to the work injury, he would talk to her ‘every single day’. He noted Manu never travelled to Australia. He stated they maintained a long-term relationship for six years after he immigrated to Australia and had planned to marry. He stated the relationship broke down ‘when I stopped talking to her … I cry a lot. I’m depressed.’ He reported he calls his mother and father once to twice per week. He is ‘very close’ to his parents. He is close to his brother who has been highly supportive. One of his sisters visits every day. He has ‘good’ relationships with each of his sisters. He reported he has had no contact with any of his friends for ‘a while now … I don’t remember … a month ago or a couple of months ago.’ He has lost all of his other friendships. As such, based upon the assumption the defendant was in a stable longterm relationship with his girlfriend at the time of the injury that has subsequently dissolved, this is most consistent with a severe impairment.”
Primary psychological injury
The Medical Assessor diagnosed PTSD and persistent depressive disorder with psychotic features. Those diagnoses were clearly both appropriate on the basis of his examination.
Mr Bachhal’s evidence in his statement dated 2 April 2020 - that the injury has solely flowed from the flashbacks he experienced after the injury - is not supported by the history he gave the Medical Assessor or his treating doctors.
The medical evidence in the file confirms that the depressive disorder is a reaction to Mr Bachhal’s physical pain, not a primary injury as deemed by the Medical Assessor.
As early as 4 April 2019, Mr Bachhal’s general practitioner, Dr J Lee, noted that Mr Bachhal was “frustrated and upset about the injury and how the injury may ruin his career”.
Mr Bachhal’s treating psychiatrist, Dr U Malik said in his report dated 10 October 2019 that he suffered from major depression secondary to his injuries and pain, and (our emphasis) PTSD. He confirmed those diagnoses and causes in his subsequent reports.
Dr Khan said in his report dated that Mr Bachhal suffered PTSD as a result of a traumatic incident and “had since” developed a depressive disorder. Despite that, Dr Khan did not apportion the permanent impairment to the two conditions he assessed.
The Medical Assessor said that there was no scientific or medical basis to apportion the impairment between a primary and secondary injury. There is, however, a legal basis to apportion impairment because the legislation in s 65A of the 1987 Act (and the terms of the referral) required him to do so. The legislative intent is to avoid double compensation in respect of physical injuries and there is no entitlement to compensation in respect of a secondary psychological injury.
In State of New South Wales v Kaur[2], Campbell J said of s 65A:
“Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase, ‘a disentitling provision’. This is made clear in my view by the language ‘no compensation is payable’ at the outset of s 65A (1). Similar language appears in s 9A and s 11A which are clearly recognised as ‘disentitling provisions’. It is true that s 65A is not found in a division dealing with general liability to receive compensation, as s 9A and s 11A are. Nonetheless, the language of s 65A is concerned with substantive rights rather than questions of the process of the quantification of the entitlement to monetary compensation dealt with in the other provisions of Division 4 of part 3 of the 1987 Act.”
[2] [2016] NSWSC 346.
The prohibition is reinforced by the Guidelines which provide:
“Psychiatric and psychological injuries
1.21 Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.
1.22 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 (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
If no apportionment was made, Mr Bachhal would receive compensation to which he was not entitled.
The Medical Assessor was required to adopt a two-step approach – to calculate the WPI using the PIRS and to then assess the impairment resulting from the secondary injury and to deduct it.[3]
[3] Mercy Connect Limited v Kiely [2018] NSWSC 1421 at [95]-[97].
We accept that the apportionment between a primary and secondary injury may be difficult or, in a complex case, even somewhat arbitrary. Nonetheless, the Medical Assessor was required to make that apportionment.
The Medical Assessor was required to make his own assessment on the day of his examination, taking into account the findings made by the Arbitrator. It is irrelevant that Manly Fresh did not rely on evidence that apportioned the impairment and Mr Tanner’s submission that such evidence was required cannot be accepted.
We consider that the appropriate way to make the apportionment is to ascribe a percentage to the impairment from each injury. The apportionment is not a deduction to which s 323 of the 1998 Act applies. The fact that the primary and secondary injuries arose at about the same time means that it is not possible to use the PIRS to make an assessment in respect of the secondary injury.
The presence of psychotic features indicates the most severe type of any depressive disorder. It is a disabling condition even in the absence of a concurrent diagnosis (in this case the primary injury of PTSD) and it is clearly so in Mr Bachhal’s case, as identified by his treating clinicians. It warranted a significant apportionment of the WPI assessment made. However, we accept that PTSD is the more impairing condition.
We consider that the appropriate apportionment is that two thirds of the impairment results from primary psychiatric injury (PTSD) and one-third from the secondary psychiatric injury (depressive condition).
Social functioning
The class descriptors for class 4 are:
“Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).”
The Medical Assessor assessed Mr Bachhal in class 4 for social functioning on the basis of the breakdown of his long term relationship with his girlfriend.
The assessment was open to the Medical Assessor. While another assessor may have only assessed Mr Bachhal in class 3, the Medical Assessor was not in error to assess him in class 4.
In Ferguson v State of New South Wales[4] (Ferguson) Campbell J said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
[4] [2017] NSWSC 887.
Mr Tanner submitted that Mr Bachhal fulfilled the “criteria” for class 4. It is important to remember that the activities in the Table are examples only and not criteria.[5]
[5] See also Jenkins v Ambulance Service of NSW [2015] NSWSC 633.
Paragraph 11.12 of the Guidelines provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The Medical Assessor provided detailed reasons for his assessment in class 4 and, based on those reasons, that assessment was open to him in the exercise of his clinical judgement.
For these reasons, we have determined that the MAC issued on 24 August 2021 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
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 Christopher Bench 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological injury | 24 January 2019 | Chapter 11 , pp 54 – 60. Paragraphs 11.1 – 11.20 | Not applicable | 24% | Nil | 24% |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
Catherine McDonald
Member
Prof Nicholas Glozier
Medical Assessor
Dr Patrick Morris
Medical Assessor
15 November 2021
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