Matenga v Mackillop Family Services Limited
[2024] NSWPICMP 154
•18 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Matenga v Mackillop Family Services Limited [2024] NSWPICMP 154 |
| APPELLANT: | Stanley Matenga |
| RESPONDENT: | Mackillop Family Services Limited |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 18 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; parties agreed that Medical Assessor (MA) erred by making a deduction under section 323(1), but respondent contended that error made no difference to outcome because MA should have engaged section 65A(2) and had he done so, the same result would be achieved; appellant submitted that MA erred with the rating of his impairment for psychiatric impairment rating scale (PIRS) for social functioning; Appeal Panel found Medical Assessment Certificate (MAC) contained a demonstrable error because MA made deduction under section 323(1); Appeal Panel held section 65A(2) did not apply to this matter; Appeal Panel held MA’s rating in PIRS for social functioning was open to him; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 November 2023 Stanley Matenga, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Samuel Lim a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 October 2023.
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 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 (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).
RELEVANT FACTUAL BACKGROUND
On 18 June 2018 the appellant was driving home after completing his days work with MacKillop Family Services Limited, the respondent. He was asked to return to work. In the process of doing that he was involved in a motor vehicle accident in which he suffered both physical injuries and a psychological injury.
He claimed compensation against the respondent’s insurer for under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 26% whole person injury (WPI) from his psychological injury. He relied on a report of psychiatrist Dr Ashwinder Anand dated 10 November 2022 to support his claim. The insurer denied it was liable to pay him compensation for permanent impairment from his psychological injury because it contended the degree of his permanent impairment from his injury was not at least 15%. A worker’s permanent impairment from his psychological injury must be at least that under by virtue of s 65A(3) of the 1987 Act for the worker to be entitled to compensation for permanent impairment from a psychological injury. The insurer relied on a report of psychiatrist Dr Yajuvendra Bisht dated 14 March 2023, who assessed the appellant at 13% WPI from his injury.
The appellant then instituted proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment. The matter was referred to the Medical Assessor who examined the appellant on 15 September 2023 and, as mentioned, issued the MAC on 27 October 2023. In that the Medical Assessor certified he assessed the appellant had 28% WPI in total but he deducted one-half of that pursuant to s 323(1) of the 1998 Act and assessed the degree of the appellant’s permanent impairment from his injury was 14% WPI.
The issue that the appellant challenges in his appeal against the MAC relates to the deduction the Medical Assessor made under s 323(1) of the 1998 Act. The Medical Assessor’s explanation for making that deduction is contained in part 11 of the MAC and is as follows:
“11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion, the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
Mr Mantega’s [sic] presentation consists of Posttraumatic Stress Disorder which I believe is a primary psychiatric injury causally related to his employment. He also presents with a Major Depressive Disorder. I consider a significant component of his Major Depressive Disorder to occur secondary to his physical injuries, which have not resolved. He has an Alcohol Use Disorder, which I consider to be a secondary psychological injury to both his Posttraumatic Stress Disorder and, to an extent, to his secondary Major Depressive 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:
Mr Mantega’s [sic] Major Depressive Disorder results in an impact on his concentration, motivation, and energy levels and is also associated with suicidal ideation and reported self-injurious behaviour, which would exert a general impact on his psychosocial functioning as assessed in the PIRS. His Alcohol Use Disorder results in periods of intoxication and the need to recover from the effects of intoxication, as well as potential cognitive difficulties, which would impact on his overall psychosocial functioning as assessed in the PIRS.
c. 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 one-half for the following reasons:
The information available is that Mr Mantega’s [sic] symptoms of Major Depressive Disorder manifested prior to his Posttraumatic Stress Disorder, and were a focus of his previous treatment. It was also noted by treatment providers he saw up until at least 2020 that the majority of his psychological difficulties arose in relation to his persistent pain and physical disability. His reported physical injuries have not resolved. He continues to experience persistent pain. Furthermore, his description of his disordered alcohol use is significant and ongoing and would be expected to exert a substantial proportion of effect on his current level of psychosocial dysfunction. I would estimate the combined impact of his Major Depressive Disorder and Alcohol Use Disorder to be at least one-half.”
The Medical Assessor noted in part 4 of the MAC under the subheading “Details of any previous or subsequence accidents, injuries or conditions” that the appellant “denied requiring prior treatment for his mental health”.
The Medical Assessor recorded the appellant’s current symptoms to be:
“Mr Mantega [sic] endorsed experiencing pain affecting his neck, chest and lower back.
He described having difficulties with low mood and feelings of worthlessness. He reported being unable to tolerate crowded conditions and heavy traffic, which was a strong motivator for him to move to his sister’s home in regional Western Australia. He reported, on occasion, self-harming by making lacerations in response to feeling distress from his symptoms. He did not advise where on his body he made these lacerations. He reported less frequent flashbacks but described nightmares relating to the motor vehicle accident, which he said he is able to suppress by consuming large amounts of alcohol.”
The Medical Assessor in part 7 of the MAC provided the following diagnosis and his summary of the appellant’s injury:
“Mr Mantega [sic] presented with the following diagnoses.
He has a Posttraumatic Stress Disorder. He presented with flashbacks and nightmares secondary to the motor vehicle accident associated with avoidance behaviour, hyperarousal symptoms, and persistent negative changes in his moods and cognitions.
He also presents with a Major Depressive Disorder. He presents with clinically significant depressive symptoms associated with feelings of worthlessness, disruption to his sleeping and eating patterns, and feelings that life is not worth living. This occurs as part of the persistent negative changes associated with his Posttraumatic Stress Disorder, and also secondary to the persistent pain he reports from his physical injuries.
He also presents with an Alcohol Use Disorder. He described engaging in disordered alcohol use, consuming alcohol at amounts deleterious to his physical and mental well-being and having difficulties in controlling his use of alcohol. The Alcohol Use Disorder occurs secondary to his Posttraumatic Stress Disorder, and he reports having resorted to using alcohol to suppress some of his Posttraumatic Stress Disorder symptoms.”
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 appellant to undergo a further medical examination. This is because the information before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that he was not suffering from any previous injury, pre-existing condition or abnormality and consequently the Medical Assessor erred by making a deduction under s 323(1) of the 1998 Act on account of him having a pre-existing condition.
The appellant submitted that the Medical Assessor found that his alcohol use disorder resulted both from his post-traumatic stress disorder and from a secondary condition of major depressive disorder. The appellant submitted that his alcohol use disorder stemmed primarily from his primary condition of post-traumatic stress disorder and to a lesser extent from the secondary condition of major depressive disorder. The appellant submitted that the Medical Assessor did not clearly identify what proportion of his impairment was attributable to his primary condition of post-traumatic stress disorder and what was attributable to his secondary condition.
The appellant referred to Mercy Connect Limited v Kiely [2018] NSWSC 1421 at [96] (Kiely) wherein Harrison AsJ discussed a two step approach for assessing the degree of WPI from a primary psychological injury. That approach requires a Medical Assessor to calculate firstly the entire degree of impairment from a psychological injury in accordance with the psychiatric impairment rating scale (PIRS) and then to assess and deduct the permanent impairment due to a secondary psychological injury, leaving the degree of permanent impairment from a primary psychological injury remaining. The appellant submitted that the Medical Assessor did not apply that approach to assess his permanent impairment.
The appellant submitted that the Medical Assessor’s “decision to deduct the appellant’s WPI in half by virtue of his secondary major depressive disorder and alcohol use disorder is disproportionate and in error”.
The appellant submitted that the Medical Assessor’s conclusion that the majority of his psychological difficulties arose in relation to his persistent pain and physical disability was incorrect and not in accordance with the evidence.
The appellant submitted that the Medical Assessor’s conclusion that his major depressive disorder is a secondary psychological condition and not a primary condition is incorrect.
The appellant also submitted that the Medical Assessor’s rating that his impairment in the PIRS for social functioning was class 3 is wrong and that it ought to have been rated as class 4, that is a severe impairment. The appellant submitted this is because firstly, his prior relationship ended due to his psychological injuries, secondly, he spends most of time in his sister’s house alone, and lastly his children stopped living with him because he could not look after them.
In reply, the respondent agreed that the Medical Assessor erred by applying s 323(1) and this is because the appellant did not have a pre-existing condition. The respondent submitted however that “the deduction ought to have been made pursuant to s65A(2)” of the 1998 Act. The respondent submitted that the Medical Assessor considered that a significant component of the appellant’s major depressive disorder was secondary to his physical injuries and that this disorder had not resolved. The respondent further noted that the Medical Assessor considered that the appellant’s alcohol use disorder related both to the appellant’s post-traumatic stress disorder and major depressive disorder.
The respondent submitted that the Medical Assessor undertook the PIRS assessment with respect to the three diagnoses he made, being post-traumatic stress disorder, major depressive disorder and alcohol use disorder. The respondent submitted that the Medical Assessor made a deduction of 50% due to the appellant’s major depressive disorder and alcohol use disorder that related to the appellant’s physical injuries.
The respondent submitted that the Medical Assessor relied significantly on the appellant’s history about his experience of persistent pain. The respondent noted that independent medical examiners that the appellant had qualified had also obtained a history of the appellant suffering pain. The respondent submitted that no error is demonstrated by the Medical Assessor concluding that until 2020 the majority of the appellant’s psychological difficulties arose in relation to his pain and his physical disability.
With respect to the Medical Assessor’s rating of the appellant’s impairment in social functioning, the respondent submitted that the appellant is unable to entertain friends or family because he resides in a remote area. The respondent noted that the Medical Assessor recorded that the appellant had lost friends because of the remote nature of his current residence and that the appellant rarely leaves his home because there is nothing for him to do in that remote area. The respondent noted that the Medical Assessor recorded that at the time the appellant suffered injury his wife and children were living away from him but would occasionally visit him in Coffs Harbour.
The respondent submitted that the Medical Assessor’s rating that the appellant’s impairment in PIRS for social functioning was class 3 was open to him and that no error is demonstrated by it.
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.
Dealing firstly with the issue of the Medical Assessor’s rating of the appellant’s impairment in the PIRS for social functioning, the Appeal Panel notes that the Medical Assessor provided the following reasons for rating the appellant’s impairment as class 3:
“Mr Mantenga [sic] reported having separated from his children’s mother as a result of the impact of his psychological injuries. He also stated that he has lost various friends and also no longer has contact with most of his siblings. From a psychiatric perspective this is a moderate impairment”.
It is apparent to the Appeal Panel from the MAC, when read as a whole, that the appellant maintains a relationship with his sister. The Appeal Panel observes from the report of Dr Anand dated 10 November 2022 that the appellant was divorced from his wife seven years earlier than when Dr Anand examined him, which means that his relationship with his wife ended prior to his suffering his injury. The Appeal Panel observes that his children reside with his wife. The Panel also observes that the appellant now lives in a remote location and, notes from the MAC that his remoteness affects the extent to which he’s able to see family or friends.
The Appeal Panel considers that, as the respondent submitted, it was open to the Medical Assessor to rate his impairment in the PIRS for social functioning as class 3, which was the same as Dr Anand rated it and also Dr Bisht.
Beyond that, the Appeal Panel notes that the appellant resides in a remote location, and in the Appeal Panel’s view, it is not evident from the material that was before the Medical Assessor, that the appellant is unable to sustain long-term relationships as a consequence of his psychological injury. His living in a remote location is likely to be a factor in his being able to maintain relationships. In other words, it is not apparent from the material that his pre-existing relationships ended as a consequence of his psychological injury. Further, it is also evident from the MAC, in the Appeal Panel’s view, that the appellant maintains a relationship with his sister.
These matters lean against a rating of class 4 in the PIRS for social functioning.
The Panel consequently discerns no error from the face of the MAC that the Medical Assessor erred by rating the appellant’s impairment as class 3 in social functioning. The Appeal Panel also finds that the Medical Assessor based his assessment with respect to this matter on the correct criteria, given he used the criteria set out in Chapter 11 of the Guidelines.
Both parties agree that the Medical Assessor erred, and made his assessment based on incorrect criteria, by applying s 323(1) of the 1998 Act. This is because the appellant did not have a pre-existing condition and hence there was no basis upon which s 323(1) could be engaged. Consequently, both of the grounds for appeal on which the appellant relied are established. The key issue is whether that demonstrable error in the MAC or the Medical Assessor’s application of incorrect criteria to assess the appellant’s impairment makes a difference to the outcome.
The Appeal Panel observes that the medical dispute that was referred to the Medical Assessor to assess related to “psychiatric/psychological disorder”. There was no mention in the referral of a primary psychological injury or secondary psychological injury. There was no agreement between the parties nor had there been a determination by the Commission that the appellant suffered a secondary psychological injury. The medical disputes that the Medical Assessor was required to assess, as listed in the referral to the Medical Assessor, did not require the Medical Assessor to assess the impairment of the appellant from any secondary psychological injury. It was not part of the Medical Assessor’s task, with respect to the medical disputes that had been referred to him to assess, to make any findings or conclusions regarding whether the appellant suffered a secondary psychological injury. That is a matter for the Commission to determine.[1] Given that, the Medical Assessor’s conclusion that the appellant’s major depressive disorder is a secondary psychological condition and not a primary condition was not a finding that was open to him to make.
[1] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [22]-[23].
The Appeal Panel therefore accepts the appellant’s submission to the effect that the Medical Assessor’s finding that his major depressive disorder is a secondary condition is incorrect. It was incorrect for the Medical Assessor to make that conclusion because there was no medical dispute that had been referred to him to assess that required him to do so.
The Appeal Panel also considers that the two-step process her Honour Harrison AsJ in obiter dicta propounded in Kiely cannot be applied in this case. This is because the appellant’s symptoms and impairments from the various psychological disorders he suffers, consequent upon the motor vehicle accident, being a post-traumatic stress disorder, a major depressive disorder and alcohol use disorder, are completely intermingled. In other words, his impairment and symptoms from his post-traumatic stress disorder and major depressive disorder are essentially indivisible from each other and cannot be disentangled such that it could be found that some symptoms or impairments relate solely to one disorder and some solely to the other. In such a circumstance the two-step process proposed in Kiely simply cannot be applied.
Further, the Appeal Panel considers that the requirement of s 65A(2) of the 1987 Act not to have regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. The requirement of s 65A(2) is not to make a deduction, but rather, and to stress, not to have regard to impairment or symptoms from a secondary psychological injury. It does not require a Medical Assessor to ignore the impairment and symptoms arising from a primary psychiatric injury. If that were the case, then in a circumstance such as this case where the impairment and symptoms of the appellant from the various psychological disorders he has, are completely intermingled and cannot be disentangled such that some symptoms can be attributed to one disorder and some to another, then not to have regard to the impairment or symptoms from a secondary psychological injury would mean that regard could also not be had to impairment and symptoms from a primary psychological injury. That cannot be the purpose of s 65A(2). It would result in a worker being assessed to have no degree of permanent impairment resulting from primary psychological injury when in fact a worker does have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the objectives of the legislation that injured workers receive payment for permanent impairment.
In any event, as already mentioned, the Medical Assessor was not required to assess degree of permanent impairment of the appellant from a secondary psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 October 2023 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: | W4117/23 |
Applicant: | Stanley Matenga |
Respondent: | Mackillop Family Services Limited |
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 Medical Assessor Samuel Lim 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) |
| Psychiatric | 18/02/2018 | Chapter 11 | - | 28% | - | 28% |
| Total % WPI (the Combined Table values of all sub-totals) | 28% | |||||
0
3
0