Mann v Serendipity WA Pty Ltd (Advanced Personnel Management)
[2023] NSWPICMP 633
•1 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mann v Serendipity WA Pty Ltd (Advanced Personnel Management) [2023] NSWPICMP 633 |
| APPELLANT: | Michael Mann |
| RESPONDENT: | Serendipity WA Pty Ltd (Advanced Personnel Management) |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 1 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in making a deduction pursuant to section 232 of 30%; Panel found extensive evidence of a significant pre-existing condition; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 October 2023 Michael Mann (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the 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) 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 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 because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in applying a 30% deduction pursuant to s 323 of the 1998 Act.
In reply, Serendipity WA Pty Ltd (Advanced Personnel Management) (the respondent) submits that no errors were made.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a date of injury of 23 June 2018.
The MA obtained the following history:
“He has worked for WooliesX (an online digital platform for Woolworths) as a senior customer service representative, a work-from-home position, since April 2021…
At the time of the injury, he worked as an employment consultant based in Maroubra in disability support services. He had a difficult clientele, including clients with substance abuse and serious mental health problems and was exposed to violence, abuse and death threats. His caseload was around 320 people, and he was required to see 240 people per fortnight. Police reports were lodged about threats and violence. He said his employer would not take difficult clients off his caseload. He said there was an attrition of staff and organisational change. He felt unsafe at work, and there was no lock on the inside of the door, and there was only one door in and out of the room with one elevator to escape from the building. He became anxious about going to work and developed palpitations and depressive symptoms, including difficulties getting out of bed and getting ready for work. The final incident was threats by a client and her partner, who gave him a detailed description of the car he drove and what times he drove the car and threatened to kill him. He said he was threatened to be killed in October of 2018.
He was at his worst for the first year after the incident. He said he could not get out of bed and did not speak to his family and friends for a year. He neglected his self-care and lost weight… While working with Advanced Personnel Management, he lived in Zetland with his fiancée. They stayed together for six months after he left work until they had an argument and a physical altercation, and he was the subject of AVO. I note the matter was dealt with under Section 32 of the NSW Mental Health Act.
After separating from his fiancée, he moved to Parramatta with a friend and her partner. He relocated to Wolli Creek at the beginning of the lockdown and then moved to live alone in Edgecliff. He has not received WorkCover benefits since working with WooliesX. Since leaving his fiancée, he started a new relationship that has also ended.
He said his mental state did not improve despite the new relationship and successfully resuming full-time employment.
He said he saw several psychiatrists and psychologists with whom he had difficulties establishing a rapport or consistent treatment. He tried multiple psychotropic medications and developed side effects, including mirtazapine, duloxetine, desvenlafaxine, fluvoxamine, fluoxetine, valproate, benzodiazepines and quetiapine.”
Present treatment was noted as follows:
“He said it has been approximately two years since he last took antidepressants. He has not seen a psychologist for approximately two years. He said he has never had consistent treatment with a psychologist since the injury.
He takes PrEP, an HIV prevention medication, as required. He said he might take it for a week and then might not take it for six months, depending on his level of sexual activity. He uses an inhaler for asthma.”
Present symptoms were reported as follows:
“He told me he is under considerable pressure currently after negotiations over a proposed rent increase broke down, and he has five days to move out of the apartment. He has been off work for the last three weeks. He cannot focus and cannot think. He is having difficulty initiating activities. He said he uses his work as a distraction because ‘I am scared to be alone or inside my own head’.
His mood is depressed and anxious. He has days when he does not want to live anymore. He is reluctant to leave the house. He said it takes an hour to get ready to leave the house. He panics in anticipation of having to go out. He worries about what threats he may face if he leaves home. He keeps headphones in, avoids eye contact and avoids lingering. He is concerned about running into one of his former clients.
He has panic attacks three times per day.
He sleeps four hours per night and has difficulty winding down before sleeping. He ruminates compulsively. He denied nightmares. He is fatigued during the day. He feels tense, anxious and hypervigilant when he leaves the home. He feels worthless and useless and has low self-esteem.
His concentration is impaired. He said he is easily overwhelmed, shuts down and cannot focus or think. He distracts himself by watching YouTube. He watches other content on the internet. He uses the internet as a distraction to avoid getting caught in his thoughts. He ruminates over past regrets.
He denied any performance issues at work. His income is guaranteed, and he said his manager is supportive.
He denied symptoms consistent with obsessive compulsive disorder, mania, hypomania or psychosis.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition,” the MA said:
“He took antidepressants in adolescence. He denied a history of suicidal thoughts or self-harm. This was contrary to the evidence contained in the documentation.
He moved to Sydney eight years ago from Brisbane. He said he tried methamphetamine recreationally in Brisbane and then used it in Sydney. He said he was spending time with people who moved methamphetamine and was involved in the chemsex scene. He said he was using about once a fortnight. Around the same period, he was hospitalised at St Vincent’s Hospital psychiatric emergency care centre. He said he used methamphetamine for approximately a year.
He experienced a robbery in Queensland in 2016 when a gun was held to his head. His friend was assaulted and their belongings were stolen. He said he was supported after the incident. He stayed with a friend’s mother and then moved in with his parents. He then transferred to Sydney to work for Harvey Norman and a fresh start. A psychologist treated him for the effects of the trauma.
He said he saw a doctor while trying to recover from methamphetamine but denied taking antidepressants. This was contrary to the evidence in the documentation. He said he did not attend a treatment program and never attended Narcotics Anonymous. Around the time of the injury, he had two brief emergency psychiatric admissions to St Vincent’s Hospital with suicidal thoughts. I note recommendations to attend the Stimulant outpatient treatment program at St Vincent’s Hospital after his admission to the psychiatric emergency care centre in September 2018. He could not recall the circumstances of his second admission. The acute care team followed him up. He said he might have been admitted the second time after the acute care team attended his home in Wolli Creek.”
The MA then set out details of the respondent’s general health and the impact of his condition on his activities of daily living, and said:
“He denied any significant medical problems.
He said he has used cannabis and alcohol most of his adult life. His use increased once he moved to Sydney. He said cannabis helps calm his thoughts and reduces panic attacks. He is smoking a quarter of an ounce of cannabis per week. He has it delivered. He is smoking daily. He told me cannabis has replaced antidepressants.
He drinks a bottle of red wine every day or two. He has an occasional alcohol-free day and denied symptoms of alcohol withdrawal. He denied other illicit drug use. He denied driving under the influence charges or any other forensic history. I note that he was subject to an AVO after assaulting his ex-fiance, which was dealt with under Section 32 of the NSW Mental Health Act. He said he had a low-range driving under the influence charge in Queensland.
His methamphetamine use history is detailed above.
He denied any family history of psychiatric disorders.
He denied problem gambling.
He is getting out of the house once a week.
His groceries are delivered for free because he works for WooliesX.
He attends the office once a quarter on the train. He said the initial anticipation of leaving his apartment was the most difficult part. Once he is on the train, he feels more settled. He does not have a car. He flew to Queensland once this year to see his family in February. His father, his little sister and his nephew live in Brisbane. He denied other trips out of Sydney.
He has been to a pub in Redfern three times to see a workmate from WooliesX. He occasionally has casual App-based sexual encounters at his house. He has been to a restaurant or a café six times in the last few years. Typically, someone would pick him up. He attended a Darren Hayes concert with his last partner at the Entertainment Centre. He said he had to be drunk to get out of the apartment. He denied attending other parties or crowded events.
His only regular social contacts are people from work and his sister. He said he has no close friends. He showers irregularly and brushes his teeth irregularly. He skips meals and eats one meal at most each day. He eats cup noodles and Uber Eats. He has lost 3 kg and currently weighs less than 60 kg. He exercises by running up and down the stairs.
He said he has a hairdresser friend who comes to his home once a month to cut his hair. He had a haircut three weeks ago. He neglects his housework. A friend visits every two months to help. He said she is the only person that he can rely on. He speaks to his younger sister every fortnight. He has contact with his mother and father every six months. He said he would fly up to Queensland six times per year before the injury. He said his parents are supportive but busy. He could not explain why they have not been in more regular contact. He has no contact with his ex-partners.”
Findings on mental state examination were reported as follows:
“Mr Mann presented punctually by teleconference. His self-care was adequate. He wore a bushy beard, a tee shirt and a trucker hat. He appeared nervous. His eye contact was good. His mood was anxious and depressed. His affect was nervous.
His thought content included trauma themes, including loss of his sense of safety, exaggerated vulnerability to threats, difficulties with trust and heightened arousal. He described trauma re-experiencing including intrusive thoughts and memories. He described depressive themes including loss of confidence, loss of interest in previously enjoyed activities and low self-esteem. He denied suicidal plans. He denied any immediate safety concerns. There was no evidence of psychotic symptoms.
He was alert and oriented. I estimated his intelligence to be in the average range. No overt cognitive deficits were noted. His insight and judgement were intact. He was ambivalent about antidepressants due to previous problems with side-effects. He reported difficulties affording psychological treatment.”
In summarising the injuries and diagnoses, the MA said:
“Mr Mann is a 34-year-old man who alleges the development of anxiety and depressive symptoms after exposure to violence, threats and threatening behaviour during his employment as an employment consultant.
I note there have been differences in opinion concerning his diagnosis and the impact of pre-existing conditions and vulnerabilities. I note that Mr Mann minimised the impact of pre-existing conditions. This was noted by other examiners. The documentation provided evidence of pre-existing anxiety and depression with Cluster B personality traits. He has a history of polysubstance use, including methamphetamine, predating and coinciding with the time of the reported injury and an ongoing cannabis use disorder.
He meets the DSM-5 criteria for post-traumatic stress disorder. The diagnosis of post-traumatic stress disorder was made on the basis of exposure to incidents meeting Criterion A for post-traumatic stress disorder. Consistent with post-traumatic stress disorder.
Mr Mann developed repeating disturbing memories, thoughts and images of the incident, felt upset when reminded of the incidents or cues associated with the incidents, developed physical anxiety symptoms when reminded of the incidents, avoided thoughts about or activities which reminded him of the incident, lost interest in previously enjoyed activities, felt distant and cut and off from others, developed emotional numbing and a depressed mood as well as difficulty sleeping, impaired concentration and hypervigilance.
He has substantial vulnerabilities to post-traumatic stress disorder including exposure to trauma meeting Criterion A before the incidents described in the workplace for which he received treatment. He has a longstanding, documented history of recurrent anxiety and depression meeting criteria for major depressive disorder, with borderline personality traits. He meets DSM-5 criteria for a cannabis use disorder and drinks alcohol at hazardous levels. His methamphetamine use disorder is in sustained remission.
The impairment reported by Mr Mann is not solely related to the injuries sustained while working for the Respondent, and a deduction for a pre-existing condition is appropriate. I do not accept that he was entirely asymptomatic when he arrived in Sydney and soon after, noting the impact of isolation and personal stressors in the clinical records and the impact of methamphetamine use destabilising his mental state around the time of the work-related injury.
Mr Mann’s representations of his pre-injury function were inconsistent with the information in the documentation, indicating substantial and ongoing problems with his mental health, social and interpersonal function, and drug use. I have not attempted to calculate the preinjury impairment because I cannot reliably evaluate aspects of the functional assessment. His self-report was inconsistent and there was insufficient information about functional effects in the documentation. The impact of the subject injury accounts for greater than 50% of the observed and reported impairment. The impact of the pre-injury conditions and diagnoses is greater than 10%. I conclude that a 30% apportionment for the effects of preexisting conditions is appropriate.”
As regards Mr Mann’s consistency of presentation, the MA said:
“Mr Mann’s mental state was consistent with the injury and conditions described. The reported symptoms and mental state examination were consistent with the mechanism of the injury, the nature of the injury, the injury time and place and the post-injury medical evidence provided by his treating practitioners. Inconsistencies were identified in his reporting of his past psychiatric history and drug use.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA said: “Yes, Psychological, psychiatric disorder (recurrent anxiety, depression, previous trauma exposure and substance use disorders).”
The MA assessed 17% WPI, with a 30% deduction, with a final WPI of 12% (with rounding).
He then turned to consider the other evidence he had before him and said:
“In his statements dated 2 September 2021 and 21 June 2023, I noted that he began working at Advanced Personnel Management around March 2018 and was verbally and physically attacked by his employer’s clients. He noted that more than two incidents were internally and externally reported through police reports. Whilst the incidents had been reported, management took no action due to fragmentation in the management team. He requested a lock be installed for his safety, but the request was refused. He consulted his general practitioner in October 2018 and was diagnosed with an acute adjustment reaction with agitated depression. He consulted multiple doctors from 2018 to early 2021, noting he did not have a stable home, moved frequently, and took antidepressants. He noted he had a history of antidepressant use during his teenage years. He noted that in 2016, he experienced a daylight robbery where he was held at gunpoint in Queensland and saw a psychologist regarding this. However, he noted that he had moved past the incident after relocating to New South Wales for a change in environment. He noted he was only diagnosed with post-traumatic stress disorder after sustaining a psychological injury at work. A discharge summary dated 20 September 2018 noted polysubstance use beginning in 2013. He noted his substance use was during his youth at social gatherings. He claimed to have increased his substance use after the trauma in 2016 and abstained from substances after moving to New South Wales and overcoming the stress from the event in 2016. This was inconsistent with the medical records noting methamphetamine use in 2017. He claimed his substance use recurred after the post-traumatic stress whilst working at Advanced Personnel Management. GP notes reference multiple stressors contributing to distress. He addressed reports that he had been inconsistent with treatment, noting he had been having financial difficulties, had struggled to find stable accommodation, lived in different cities and states, was frequently moving and had difficulties engaging with treatment. He detailed his functional impairments. He avoided taking antidepressant medication due to the effects of antidepressants. He noted he had not taken antidepressants, and he had not had any treatment for his mental health for more than a decade before the incidents at work. This was inconsistent with general practitioner records and his self report that a psychologist treated him for the effects of the robbery in 2016. He noted when commencing work with Advanced Personnel Management, ‘I felt as though I was in the best place mentally and at quite a high point in my life’. He noted he has tried more than 12 selective serotonin reuptake inhibitors and other antidepressants that caused side effects and were ineffective. He took Seroquel to assist with sleeping. He noted difficulties managing his work when he was re-employed.
In his report dated 15 April 2021, Dr Abdal Khan, Consultant Psychiatrist and Independent Medical Examiner detailed the circumstances of the injury noting the past psychiatric history and current cannabis use. He has not commented on Mr Mann’s trauma exposure and treatment history in 2016. He diagnosed post-traumatic stress disorder with comorbid alcohol use disorder and cannabis use disorder. He stated major depressive disorder and stimulant use disorder were pre-existing conditions. He stated that Mr Mann’s condition had stabilised based on ‘his engagement in comprehensive mental health treatment with his general practitioner, psychologist and psychiatrist as well as a trial of numerous psychotropic medications’. This is somewhat inconsistent with the treatment history. He assessed whole person impairment at 22%, assessing self-care and personal hygiene as a Class 2, social and recreational activities as a Class 3, travel as a Class 2, social functioning as a Class 3, concentration, persistence and pace as a Class 3 and employability as a Class 5. Soon after Mr Mann commenced full-time employment with WooliesX.
In his subsequent assessment dated 1 October 2021, Dr Khan noted the circumstances of his employment as a disability support consultant with Advanced Personnel Management was the main contributing factor to his psychological injuries. He noted his opinion that Mr Mann’s work-related psychological trauma was more severe than that discussed with Dr Ingram, Independent Medical Examiner for the Respondent. He disputed Dr Martin’s opinion dated 19 March 2020 and based this on the timeline of symptoms and the difference in the perceived severity of symptoms. He addressed Dr Kaplan’s report dated 31 March 2021 (finding that Mr Mann did not have a work-related injury but had a pre-existing generalised anxiety disorder, dysthymia and substance use disorder). He disagreed with Dr Kaplan’s conclusions, citing the timeline of symptoms and the difference in perceived severity of symptoms.
I note that Dr Khan was also the treating psychiatrist. The initial assessment was 16 August 2019. On presentation, he was prescribed fluoxetine and advised to continue quetiapine 200 mg at night and 50 mg as required. He noted that Mr Mann had seen a psychiatrist at Northside Cremorne Clinic and was trialled on fluvoxamine and more recently commenced on mianserin and quetiapine but had started mianserin when he saw Dr Khan for the first time.
Dr Khan noted on 4 January 2021, Cluster B personality vulnerabilities. He was trialled on Valproate around February of 2021. There was little change in his mental state in progress correspondence.
In his initial assessment dated 13 February 2019, Dr Lee Ingram treating psychiatrist detailed the circumstances of the injury. He diagnosed an adjustment disorder with mixed anxiety and depressed mood and a comorbid marijuana use disorder. He noted a relatively unstable early life with a conflictual relationship with his father but a good relationship with his siblings and his mother, noting bullying at school and frequent changes of schools. He noted he was initially introverted but had greater stability later in his schooling with no significant injury, mood or anxiety symptoms given his long periods of work in marketing, sales and a history of long-term relationships. He noted a period of depression after leaving school that was short-lived and trauma-related symptoms dated to the robbery in 2016. He noted that the consequences of the robbery had resolved well before the onset of the work-related injury. Dr Ingram increased fluvoxamine to 200 mg and prescribed zopiclone.
A referral from Dr A R Small, General Practitioner, dated 9 November 2018 to the Redfern Community Health Centre Mental Health Team for ‘depression, isolation and an adjustment reaction, not seeing psychologist. unplanned self-harm thoughts, very isolated’. The referral from Dr Small dated 3 January 2019 noted, ‘Work-related exacerbation of adjustment disorder with agitated depression. States can’t move on from work trauma, trying to stab self ?borderline personality, supportive partner ?crisis’…
From the report of A/Professor Kaplan noted on 2 March 2021, ‘There were problems in his personal life around the same time as he reported difficulties at work. This was dominated by the breakdown of his engagement with an AVO being taken out against him and an assault charge dismissed on the basis of Section 32’. Dr Kaplan assessed a 0% whole person impairment.
In his report dated 2 March 2021, Dr Robert Kaplan noted the circumstances of the injury. He detailed the psychiatric history. He noted Mr Mann tood antidepressants after being held at gunpoint during a ‘home invasion’ in Queensland when staying with friends at age 26. Mr Mann claimed he had not taken antidepressants for 10 years before the injury. He became socially withdrawn and moved back to stay with his parents. Dr Kaplan noted a number of diagnostic possibilities in the presentation. He noted the history of anxiety and depression was was difficult to clarify and mostly arose from external stressors and ‘exit events’. Comment: I am unsure what an ‘exit event’ is. He had personal problems around the same time as the reported difficulties at work dominated by the breakdown of his engagement with an AVO being taken out against him and an assault charge dismissed on the basis of a Section 32. He noted the substance abuse. He diagnosed generalised anxiety, dysthymia and substance use disorder. He noted the problems at work only constituted one issue in a range of personal difficulties, pre-existing anxiety and depression and a substance use disorder. His conclusions were echoed in the report of Dr Adam Martin dated 19 March 2020. Most examiners have noted inconsistency in the history and the tendency to attribute all reported symptoms and problem behaviours to the reported work incidents and negating previous experiences. He noted that the psychiatric impairment was not substantially work related, not ongoing and that any impairment was related to long-term vulnerabilities rather than reported work issues. He noted his ongoing impairment was reflective of ‘long-term vulnerability and predisposition to anxiety and maladaptive coping mechanisms (for instance, drugs, self-harming) with evidence of relationship dysfunction, mood/anxiety problems/substance use issues predating the claimed work injury’. He did not believe that work was a substantial contributing factor to his psychological impairment.
A mental health discharge summary dated 24 October 2018 noted diagnoses of mental and behavioural disorders due to multiple drug use and use of other psychoactive substances; emotionally unstable personality disorder, borderline type, depressive episodes, acute stress reaction…
I note a referral to Northside Clinic on 16 January 2019 by Dr Small, General Practitioner noting an adjustment disorder with GAD and dysphoria, home and work issues and now grandad has cancer. Despite being typed, I note that much of Dr Small’s medical notes were illegible…
Documentation on 25 September 2017 to Dr Harold Kwiatek noted that the Zoloft was ceased and venlafaxine was started due to anxiety. He was noted to have anxiety worsening with a panic episode. On 28 June 2017, he was noted to have used marijuana and amphetamines over the weekend with auditory hallucinations, anxiety and confusion with a longstanding anxiety disorder having decided to leave Brisbane since he had a gun held to his head in a robbery. He was noted to have found Zoloft helpful and planned on restarting. He presented with insomnia, anxiety-related on 1 May 2017 to Dr Brian Muhall.
A National Home Doctor Service report by Dr Simon Howell dated 25 September 2019 noted, ‘Anxiety and panic attacks, recently wanted to cut. Presently denies self-harm and hedonistic [sic] on an antidepressant but did no counselling. Recognised problem three years ago, cut self as younger person. Diagnosed with panic attacks, anxiety, depression, somatisation, is denying drug and alcohol use’.
A discharge summary from St Vincent’s Hospital dated 20 September 2018 noted an overnight admission to PECC with an acute stress reaction with suicidal ideation, borderline personality disorder newly diagnosed this admission and suicidal ideation. He was noted to have depression and anxiety diagnosed and managed by his general practitioner since age 14 associated with self-harming, had ceased. It noted no formal post-traumatic stress disorder diagnosis related to being held at gunpoint three years ago. They noted a history of polysubstance use, noting that he was smoking amphetamine 0.5 gram fortnightly, and began using five years ago. He was on citalopram 40 mg. Stressors noted included the attacks against him at work and relationship issues on a background of longstanding anhedonia, insomnia and risk-taking behaviour. Under ‘Impression’ it was noted his history and clinical presentation was not consistent with depression, rather due to his diagnosis of borderline personality disorder and polysubstance misuse. Follow-up plan: He was noted to be considering seeking information about a Victims of Crime Scheme in relation to the robbery and was recommended treatments for borderline personality disorder and treatment for the consequences of the robbery.
A Mental Health Plan dated 31 August 2018 noted ice and marijuana use.”
The MA concluded:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities: (i) Recurrent anxiety and depression. (ii) Borderline personality traits. (iii) Polysubstance use disorder. b. 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 10a, and in the following ways:
(i) Mr Mann has a well-established psychiatric history predating the injury. See above.
c. [TR1] Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one-tenth is at odds with the available evidence. In my opinion the deductible proportion is 30% for the following reasons:
(i) The impact of his pre-existing psychological conditions is established and substantial.
(ii) Mr Mann’s representations of his pre-injury function are contradicted by the information in the documentation, indicating substantial and ongoing problems with his mental health, social and interpersonal function predating, leading into and during his employment with the Respondent.
(iii) Calculating the pre-injury impairment using the PIRS was impossible because I could not reliably evaluate his function based on his self-report or the information in the documents provided.
(iv) The impact of the subject injury accounts for greater than 50% of the observed and reported impairment. The reported symptoms and mental state examination were consistent with the mechanism of the injury, the nature of the injury, the injury time and place and the post-injury medical evidence provided by his treating practitioners. The available evidence indicates the impact of the pre-injury conditions and diagnoses is greater than 10%. I conclude that a 30% apportionment for the effects of pre-existing conditions is appropriate.”
The Submissions
The thrust of the appellant’s submissions is that a 30% deduction is at odds with all the available evidence.
Essentially, the appellant urges acceptance of the opinion and assessment of Dr Khan, an IME [TR2] qualified by the appellant.
More specifically, the appellant submits:
(a) At paragraph 11(c) of the MAC the MA states that “calculating the pre-injury impairment using the PIRS was impossible because I could not reliably evaluate his function based on his self-report or the information in the documents provided.” We state that this is contradictory with the facts raised above by Dr Khan, namely that the appellant was clearly working in his role which he maintained for a significant period of time until he was threatened repeatedly to the point that it impacted his capacity to work and resulted in his current psychological condition.
(b) We note that at page 10 of the Application to Resolve a Dispute the appellant provides a detailed account of his pre-injury condition concerning the PIRS [TR3] assessment method. This description aligns with the nature of the work he was required to perform at the time of his injury. Notably, the appellant indicates that he was actively engaged in maintaining his personal hygiene, including showering twice a day and brushing his teeth two to three times daily. He was also involved in cooking and cleaning. Furthermore, he mentions his enjoyment of recreational activities, his ability to socialise and interact with people, his good concentration level as evidenced by his performance in his job, and his capacity to work full-time hours. Additionally, it is worth highlighting that the appellant was fully capable of independent travel to unfamiliar locations, a skill required by his job as it involved driving clients to different places, many being unfamiliar places, it required him to be social and interactive with his clients and always looking presentable. This underscores his ability to function at a relatively "normal level" before his injury, irrespective of his prior psychiatric condition. Considering the appellant's employment status at the time of the injury and his apparent ability to function at a relatively high level before the incident, even with a prior psychiatric condition, it can reasonably be concluded that he would have received an average rating of Class 1 for each category under Table 11.12 for his pre-existing condition. It therefore would seem that the MA disregarded all the above when making such comments at paragraph 11 (c).
(c) The MA makes a demonstrable error by stating that a deduction of one-tenth is at odds with the available evidence, noting the evidence supports the fact that the appellant was functioning at a relatively “normal level” prior to suffering his workplace injury. As such, pursuant to Table 11.10 of the guidelines “if the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
(d) In summary, the appellant submits that there were not any symptoms suggestive of psychological injury as assessed under the PIRS system of assessment immediately prior to the injury and so no deduction needed to be made.
The respondent makes the following submissions:
(a) The interpretation of Guideline 11.10 contended for by the appellant is inconsistent with ss 323(1)&(2) and the authority of Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616.
(b) Section 323(1) requires a deduction to be made when a proportion of the impairment is due to a previous injury, condition or abnormality, regardless of whether the pre-existing condition was symptomatic at the time of injury. To the extent that Guideline 11.10 requires proof of assessable functional impairment prior to the injury, it is inconsistent with s 323(1). To the extent of the inconsistency, s 323(1) prevails and Guideline 11.10 is invalid.
(c) Section 323(2) requires that an assumed 10% deduction be applied when the extent of the deduction is difficult or costly to determine, unless that assumption is at odds with the available evidence. The MA found that an award of 10% was at odds with the available evidence.5 Guideline 11.10 cannot be used to read down or qualify the content of the discretion contained within s 323(2).
(d) Therefore, taken at their highest, the appellant’s submissions are not capable of demonstrating error on the part of the MA for applying a s 323 deduction for impairment that was due to an asymptomatic psychological condition, or alternatively for failing to axiomatically apply a 10% deduction. Had the MA applied the Guidelines in the manner contended for by the appellant, that approach would have been erroneous.
(e) There was ample evidence before the MA that was at odds with the assertion that the claimant was functioning at a relatively normal level prior to his work injury, and that showed that a 10% deduction was at odds with the available evidence.
(f) The applicant experienced a ‘daylight robbery’ in 2016 where he was held at gunpoint, following which he sought psychological treatment, and moved from Brisbane to Sydney for a fresh start.
(g) The claimant had pre-existing “recurrent anxiety and depression meeting criteria for major depressive disorder, with borderline personality traits” for which he was prescribed Zoloft and Temazepam, and self- medicated with cannabis and alcohol.
(h) The fact that the appellant was employed prior to the injury does not carry any independent weight. The appellant was employed for three months prior to his workplace injury, which was not a “significant period of time.”
(i) The MA expressly considered the statement of the appellant and the report of Dr Khan, but considered that they were inconsistent with other available evidence.
(j) There was ample evidence before the MA, which he considered and referred to, demonstrating there was a pre-existing condition that contributed to the appellant’s impairment. Having discharged his onus of referring to that evidence and explaining the reasons for his assessment, the respondent submits the extent of impairment was a matter wholly within the jurisdiction of the MA.
Discussion
Section 323 of the 1998 Act states:
“(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.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526, Campbell J said:
“What s.323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury”.
The test is whether the pre-existing condition or injury actually contributes to the current impairment. If the evidence does not establish that the previous injury contributes to the impairment then no deduction can be made. However, if the previous injury does contribute, even if it was asymptomatic at the time of the later injury, then there must be a deduction. To put it another way, we understand the Appeal Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.
The appellant’s submissions with respect totally miss the point.
The MA clearly accepted that Mr Mann had a fairly significant injury when he assessed a 17% WPI.
The issue for the MA to determine was whether Mr Mann’s undoubted pre-existing psychological condition “made a difference to the outcome in terms of the degree of impairment resulting from the work injury.”
Moreover, mere disagreement with an assessment, particularly in reliance on a party’s IME report, is not a proper basis for appeal.
Chapter 1.6 of the Guidelines sets out the principles of assessment. The importance of the exercise of clinical judgment by the MA in the process of assessment was reported by the Supreme Court in Glenn William Parker vSelect Civil Pty Limited [2018] NSWSC 140:
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 where it stated at [33]: ‘[TR4] the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face…”
In our view there was ample evidence to support the deduction made by the MA having regard to “the matters raised in the consultation.” The contemporaneous clinical records indicate prolonged and recurrent episodes of pre-existing psychiatric and substance abuse conditions, warranting treatment, with similar symptoms and associated impairment, although of a lesser severity, to those existing now after the work injury. He also indicates why some assessing and treating doctors, unaware of the full extent of the pre-existing conditions, may have come to different conclusions, and why he disagrees with them.
We agree with the thrust of the respondent’s submissions, noting in particular the submission that: “Having discharged his onus of referring to that evidence and explaining the reasons for his assessment, the respondent submits the extent of impairment was a matter wholly within the jurisdiction of the MA.”
The MA’s findings and reasons were both thorough and detailed. He has identified the pre-existing conditions using the evidence before him and clearly outlined why a 1/10th deduction is at odds with that evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 January 2023 should be confirmed.
[TR1]Where is 'b.'??
[TR2]Write in full in first instance
[TR3]Write in full in first instance
[TR4]No end single quotation mark
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