Mayo Private Hospital v Radnidge
[2022] NSWPICMP 28
•24 February 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mayo Private Hospital v Radnidge [2022] NSWPICMP 28 |
| APPELLANT: | Mayo Private Hospital |
| RESPONDENT: | Vicky Narelle Radnidge |
| APPEAL PANEL: | Member Carolyn Rimmer Medical Assessor Michael Hong Medical Assessor Patrick Morris |
| DATE OF DECISION: | 24 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Ms Radnidge sustained a psychological injury in the course of her employment as a disability support worker; the Medical Assessor (MA) assessed 15% whole person impairment and found she had no pre-existing psychological condition; failure by MA to refer to clinical note of GP made 6 weeks before work injury in which he diagnosed anxiety and depression and prescribed anti-depressants; Appeal Panel found that the Approved Medical Specialist erred in failing to provide adequate reasons for concluding that there no pre-existing condition; the Appeal Panel applied a deduction of one-tenth pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 and part 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 December 2021 Mayo Private Hospital (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 23 November 2021.
The respondent to the appeal is Vicky Narelle Radnidge (Ms Radnidge).
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.
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 reissued on1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Radnidge sustained a primary psychological injury in the course of her employment as a disability support worker when she was assaulted by a patient.
In the Certificate of Determination – Consent Orders dated 2 August 2021 Member Jacqueline Snell remitted the matter to the President for referral to a MA for assessment of permanent impairment as a result of primary psychological disorder sustained on 15 January 2013.
The matter was referred to the MA, John Baker, on 1 September 2021 for assessment of whole person impairment (WPI) of Ms Radnidge’s psychological disorder.
The MA examined Ms Radnidge by video link on 27 October 2021 and assessed 15% WPI in respect of the psychological disorder. Therefore, the total WPI was assessed as 15% WPI as a result of the injury on 15 January 2013.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that Mr Radnidge be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Radnidge to undergo a further medical examination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) The MA failed to correctly apply the Guidelines (specifically parts 1.27, 1.28 and 11.10 in relation to a deduction) and therefore the assessment was made on the basis of incorrect criteria.
(b) The failure of the MA to provide reasons amounted to an appealable error (Campbelltown City Council v Vegan [2006] NSWCA 284).
(c) The MA erred for the following reasons:
(i) by incorrectly recording in the MAC that Ms Radnidge had no prior psychiatric or psychological history;
(ii)by not providing a deduction for pre-existing injury, condition or abnormality pursuant to Section 323 of the 1998 Act; and/or
(iii) by not providing any or any adequate reasons as to why a deduction for pre-existing injury, condition or abnormality is appropriate.
(d) On pages 9-11 of the MAC, the MA referred to the clinical records of Bawrunga Aboriginal Medical Service (Application to Resolve a Dispute (ARD) pages 15-82). The MA repeated the consultation notes from 16 January 2013 to 2019. The consultation note of 3 December 2012, just six weeks prior to the subject work injury, was not discussed by the MA in the MAC and the failure to refer to this amounted to an appealable error.
(e) The consultation note of Bawrunga Aboriginal Medical Service on 3 December 2012 (ARD page 57) recorded that Ms Radnidge’s father passed away three months prior. Dr Win Htein Moe recorded that Ms Radnidge had a “history of anxiety/depression”. Ms Radnidge was subsequently prescribed an anti-depressant medication, Efexor-XR capsule 75mg 1 daily. That prescription was again noted in the list of Ms Radnidge’s prescriptions (ARD page 80).
Ms Radnidge continued to take that medication to date, as recorded by the MA and the treatment providers.(f) The consultation note of 3 December 2012 was clear evidence of Ms Radnidge having a pre-existing injury, condition or abnormality and clear evidence that she was in fact psychiatrically or psychologically symptomatic in the weeks immediately prior to the work injury, resulting in the requirement of Ms Radnidge being prescribed anti-depressant medication.
(g) The clinical records were first served in the ARD and had not previously been available to the appellant. Dr Vickery, who provided reports on behalf of the appellant, did not the opportunity to comment on the records and, in the absence of those, accepted the incorrect history provided by Ms Radnidge and erroneously concluded that “there is no previous injury or pre-existing condition or abnormality”.
(h) The MA fell into error by recording that there was no prior psychiatric or psychological history and ought to have concluded, based on the consultation note of 3 December 2012, that Ms Radnidge had a pre-existing condition, injury or abnormality.
(i) The MA fell into error by failing to provide a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act, in the face of clear evidence of Ms Radnidge’s symptomatic condition which was being treated by anti-depressant medication at the time of her work injury.
(j) Alternatively, the MA fell into error by failing to provide any or any adequate reasons as to why it was not appropriate to provide a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
(k) For the reasons noted above, the MAC contained a demonstrable error and/or was based on incorrect criteria.
(l) The Appeal Panel should review the MAC and provide an appropriate deduction for pre-existing condition, injury or abnormality pursuant to s323 of the 1998 Act. Even a standard one-tenth deduction would result in Ms Radnidge not satisfying the 15% WPI threshold required pursuant to s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act) to be entitled to lump sum compensation.
Ms Radnidge’s submissions include the following:
(a) The alleged failure of the MA to record a prior psychiatric or psychological “history” was irrelevant to the application of s 323 of the 1998 Act.
(b) Section 323 requires a deduction “of any impairment that is due to any “previous injury”, “condition” or “abnormality”.
(c) There was no demonstrable error or use of incorrect criteria contained in the MAC for recording “no prior psychiatric or psychological history”.
(d) Section 11A (7) of the 1987 Act states:
“(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.”
(e) Ms Radnidge disputed there was a “previous injury”, “condition” or “abnormality” due to the following:
(i)Dr Moe’s consultation note dated 3 December 2012 (Dr Moe’s note) did not contain a diagnosis of a recognisable psychological or psychiatric disorder;
(ii)Dr Moe’s note did not contain accepted medical terminology;
(iii)Dr Moe’s note merely recorded symptoms of “Anxiety/Depression”;
(iv)Dr Moe’s note was more likely to be treatment for grief related to the passing of Ms Radnidge’s father;
(v)Ms Radnidge’s statements contained no evidence of a “previous injury”, “condition” or “abnormality” (ARD page1 and ARD page 4);
(vi)the report from Dr Teoh dated 15 August 2019 stated: “Ms Radnidge has no past history of psychiatric illness.” (ARD page 6), and
(vii)the report from Dr Vickery dated 6 January 2020 stated: “There is no previous injury or pre-existing condition or abnormality.” (Reply page 8).
(f) There was a lack of any evidence diagnosing the “previous injury”, “condition” or “abnormality” separate to Dr Moe’s note (which was disputed).
(g) The appellant submitted that Dr Vickery was unable to comment on Dr Moe’s note as it was first served by in the ARD. The following chronology of events is relied on to dispute the appellant’s submission that Dr Vickery was unable to comment on Dr Moe’s note:
(i)6 January 2020: Dr Vickery’s report;
(ii)5 July 2021: ARD filed in the Personal Injury Commission (the Commission);
(iii)27 July 2021: Reply filed in the Commission;
(iv)2 August 2021: Teleconference in the Commission before Member Jacqueline Snell;
(v)1 September 2021: MA Referral for Permanent Impairment;
(vi)27 October 2021: Date of examination with MA, and
(vii)22 November 2021: MAC issued.
(h) There was no evidence that the appellant attempted to obtain a supplementary report from Dr Vickery during the time between the filing of the ARD and the MA examination, that being in excess of five months. There was no evidence that the appellant made an application for leave to obtain a supplementary report from
Dr Vickery at the teleconference on 2 August 2021.The appellant’s submission about Dr Vickery’s inability comment on Dr Moe’s note should be disregarded in consideration of this appeal.(i) Reliance on clinical notes by health professionals needs to be approached with caution, bearing in mind the circumstances under which they are made (Qannadian v Bartter Enterprises Pty Limited [2016] NSWWCCPD 50 (Qannadian) at [35] and [37]).
(j) As Dr Moe’s note is the only evidence relied on by the appellant to prove “previous injury”, “condition” or “abnormality” and Qannadian’s case cautions in reliance of clinical notes, the Appeal Panel should find there was no “previous injury”, “condition” or “abnormality”.
(k) If the Appeal Panel finds there was a “previous injury”, “condition” or “abnormality”, there should be no deduction under s 323 for the following reasons:
(i)Dr Moe’s note stated: “in stable mood”;
(ii)Dr Moe’s note stated: “no suicidal idea or plan”;
(iii)Dr Moe’s note indicated the symptoms were likely to the transient grief due to “father passing away 3 months ago”;
(iv)Ms Radnidge’s symptoms were likely to have been minor as she did not seek treatment after 3 December 2012 until after the subject injury on 16 January 2013 (ARD page 56);
(v)Dr Teoh’s report dated 15 August 2019 made no deduction for pre-existing impairment (ARD page 13), and
(vi)The report from Dr Vickery’s report dated 6 January 2020 stated: “There is no previous injury or pre-existing condition or abnormality” (Reply page 7).
(l) The caution in relation to relying on the Dr Moe’s note in accordance with Qannadian’s case is repeated. In addition to opposing reliance as to prove “previous injury”, “condition” or “abnormality” (see paragraph 19 above), caution should be exercised in reliance on Dr Moe’s note to make a “deduction for any proportion of the impairment”.
(m) Dr Moe’s note contained insufficient detail for the MA to rely upon it to justify an assessment above class 1 for any of the PIRS categories for any “previous injury”, “condition” or “abnormality” (which is disputed).
(n) Dr Moe’s note contained insufficient detail for the MA to rely upon it to justify a deduction under s 323 of the 1998 Act.
(o) The appellant made submissions concerning the prescription of an antidepressant medication, Efexor-XR capsule 75mg 1 daily. The following evidence is relied upon to dispute Ms Radnidge continued to take the same medication as described in Dr Moe’s note:
(i)Dr Moe’s note states “Prescription added: EFEXOR-XR CAPSULE 75mg 1 daily m.d.u” (m.d.u means “as directed by the prescriber”. I.e., “1 daily”);
(ii)Dr Zaw’s clinical notes dated 17 November 2015 stated “has had one anxiety attack in the last few weeks…advised a trial of Efexor 150mg for 6-8 weeks if anxiety does not improve” (ARD page 42);
(iii)Dr Zaw’s clinical notes dated 17 June 2016 stated: “mood stable on efexor xr 75bd as she feels tired if she takes 150mg at the same time…” and “Prescriptions added: EFEXOR-XR SR CAPSULE 75mg 1tab b.d” (ARD page 38). “bd” means twice a day and therefore,
Ms Radnidge was taking twice as much mediation as prior to the subject injury;(iv)Ms Radnidge remained on the same prescription of 75mg of Effexor twice a day from 29 August 2016 to 13 May 2019;
(v)the GP clinical notes ceased on 19 June 2019 which was one consultation after 13 May 2019, and
(vi)Ms Radnidge’s statement dated 6 March 2017 stated: “I have been seeing my GP, Doctor Moe. I was transferred to Doctor May Zaw, a female doctor, when she came to that practice. I have also been treated by Antonia Erskine, psychologist. I am on Effexor 150 milligrams”.
(p) Ms Radnidge was on Efexor for a small period of six weeks prior the subject injury in respect of grief rather than a recognisable psychological or psychiatric disorder and she has been on double the pre-injury dose from November 2015 to date.
(q) Not every case in which a pre-existing condition can be identified will result in a deduction under s 323 (1). It is always a matter for assessment of whether any proportion of the impairment assessed is due to such a pre-existing condition (see Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Cole v Wenaline Pty Ltd [2010] NSWSC 78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254; Ryder v Sundance Bakehouse [2015] NSWSC 526).
(r) Consistent with the dicta of Justice Schmidt in Cole v Wenaline Pty Ltd [2010] NSWSC 78, the MA gave proper regard to the evidence as to the actual consequences of Ms Radnidge’s pre-existing condition in arriving at his decision regarding the appropriate deduction to be applied. No error was apparent, nor has error been demonstrated.
(s) In light of the absence of evidence of pre-existing injury, condition or abnormality (see submissions above) and the absence of evidence justifying a deduction under s 323 or 11.10 of the Guidelines, Ms Radnidge disputes the submission of failure to provide reasons.
(t) The MA correctly exercised his clinical judgement after taking into account all relevant medical information in accordance with the paragraph 1.6 of the Guidelines.
(u) The appeal should be dismissed. In the alternative, Ms Radnidge disputes that the MAC contained a demonstrable error (s327(d) of the 1998 Act) and disputed that the assessment of permanent impairment by the MA was made on the basis of incorrect criteria (s327(d) of the 1998 Act). The MAC should be confirmed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
Under “History relating to the injury”, the MA wrote:
“…She had been working with an intellectually disabled man.
Whilst working with this client she was hit in the face unexpectedly. She sustained significant injuries to her face and nose. She was off work for a ‘few weeks’. She had her physical injuries attended.
Ms Radnidge tried on many occasions to return to her primary substantive role as a carer for this employer. She developed nightmares of the hit to her face. She reported she commenced developing anticipatory anxiety with panic attacks on her journey to work each day. Her capacity to concentrate became poor. She feared she would be attacked again by another client at ‘any time’. She was unable to recover from her psychiatric symptoms caused by this work-related injury. Her energy level became low. She developed fatigue, guilt, and loss of interest. She isolated herself and avoided socialising in the public. She felt the “shame and stigma of having a mental illness”. She was unable to recover fully and left her primary substantive role on 1 May 2014. Her son had continued to support her. He provided her with simple support tasks that Ms Radnidge could complete within his mechanic workshop. She stated she developed the following psychiatric and psychological symptoms in relation to the onset of this work-related injury:
Poor sleep with recurrent nightmares about the injury to her face
Panic attacks with tremor, agitating racing thoughts and sweating
Depressed mood that fluctuates in intensity
Low energy and fatigue
Poor concentration with difficulty making decisions
Loss of self-esteem
Feelings of hopelessness, worthlessness and guilt for ‘losing my job’
Outbursts of anger towards herself
Increased avoidance and social isolation from the local community, friends, and
extended family
Avoidance of thinking about the work injury as she would become too agitated and
distressed
Recurrent ruminations that she had made the wrong choice to work in the ‘care industry’
Hypervigilance with avoidance of travel without support outside her local and familiar
area
Ms Radnidge was treated by her local medical practitioner, and clinical psychologist. She received CBT, relaxation techniques, and Mindfulness. She had been treated by her GP with Efexor XR 75mg twice daily. She continued to use this medication.”
Under “Details of any previous or subsequent accidents, injuries or conditions’” the MA wrote:
“Ms Radnidge reported she had never suffered from any pre-existing psychological or
psychiatric condition prior to the onset of this work-related injury. Ms Radnidge reported that there was no family history of psychiatric / psychological conditions.
Ms Radnidge had never had a motor accident. Ms Radnidge reported that this was her first WorkCover psychiatric/psychological claim.”Under “summary of injuries and diagnoses” on p 5 of the MAC, the MA made the diagnosis of Posttraumatic stress disorder and noted that the condition had not entered into remission at any time from the onset of this work-related injury to the date of the assessment. The MA wrote: “In my medical opinion Ms Radnidge did not have any pre-existing assessable psychiatric condition prior to employment with this employer”.
Under “Evaluation of permanent impairment” at 8(e) the MA wrote:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No.”
Under “Reasons for Assessment”, at 10(b) the MA wrote:
“Ms Radnidge had not suffered from a pre-existing psychological or psychiatric condition. For this reason no adjustment was made for pre-existing condition.”
At Pt 11 of the MAC under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” the MA wrote: “There is no deductible proportion”.
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Section 323 deduction
The Guidelines at Pt 2 under “Deductions for pre-existing conditions or injuries” at Guidelines 1.27 and 1.28 provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
Chapter 11 of the Guidelines headed “Psychiatric and psychological disorders”, at p 11.1 lays out the method for assessing psychiatric impairment.
The Guidelines at Guideline 11.10 under “Pre-existing impairment” provide:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The Guidelines in Ch 11 do not provide that the 10% deduction is to be made when a pre-injury PIRS assessment is difficult or costly to determine although such a provision is contained in s 323 of the 1998 Act.
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre- existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case.”
However, in Cole the injury concerned was physical and, therefore, one to which the AMA 5 Guides, adopted by the Guidelines (issued pursuant to s 376 of the 1998 Act) were applicable. Guideline 11.10 had no application and the relevant Guideline was 1.28.
In Ryder v Sundance Bakehouse [2015] NSWSC 526 Campbell J noted:
“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. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality.”
In Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks) at [29] where Simpson AJ noted the following:
“I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid.”
Marks confirmed that Guideline 11.10 of the Guidelines is to be applied unless the assessment is that of a pre-existing but asymptomatic condition.
Discussion
The appellant submitted that the MA failed to correctly apply the Guidelines (specifically parts 1.27, 1.28 and 11.10 in relation to a deduction) and therefore the assessment was made on the basis of incorrect criteria. The appellant also argued that the MA erred by incorrectly recording in the MAC that Ms Radnidge had no prior psychiatric or psychological history, by not providing a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act and in not providing adequate reasons as to why a deduction for pre-existing injury, condition or abnormality was not appropriate.
In the clinical notes of Bawrunga Aboriginal Medical Service, the entry of Dr Moe dated 3 December 2012 (ARD page 57) recorded:
“father passed away three months ago
history of anxiety/depression
in stable mood
no suicidal idea or plan.”
Dr Moe noted that the reason for contact was anxiety/depression. Dr Moe prescribed an anti-depressant medication, Efexor-XR capsule 75mg 1 daily m.d.u. The Appeal Panel noted that the meaning of m.d.u. is “to be used as directed”.
Focusing on the prescription of anti-depressant medication, the entries in the clinical notes after the injury on 15 January 2013 included the following:
(a) On 16 January 2013 Dr Zoe referred to the injury at work when Ms Radnidge was hit by a patient who she was taking shopping. The reason for contact was hypertension.
(b) On 28 March 2013 Dr Moe prescribed Efexor-XR capsule 75mg 1 daily m.d.u.
(c) On 4 June 2013 Dr Moe prescribed Efexor-XR capsule 75mg 1 daily m.d.u.
(d) On 16 July 2014 Dr Zaw prescribed Efexor-XR SR capsule 75mg 75mg mane (morning).
(e) On 12 January 2015 Dr Xaw prescribed Efexor-XR SR capsule 37.5mg 37.5 mg daily c.c.
(f) On 6 February 2015 Dr Zaw prescribed Efexor-XR SR capsule 75mg 75mg mane.
(g) On 15 May 2015 Dr Zaw prescribed Efexor-XR SR capsule 75mg 75mg mane.
(h) On 17 November 2015 Dr Zaw advised a trail of efexor 150mg for 6-8 weeks if anxiety did not improve and prescribed Efexor-XR SR capsule 75mg 75mg mane.
(i) On 17 March 2016 Dr Zaw prescribed Efexor-XR SR capsule 75mg 75mg mane.
(j) On 17 June 2016 Dr Zaw prescribed Efexor-XR SR capsule 75mg 1tab b.d. (twice daily). Dr Zaw noted that mood was “stable on efexor xr 75mg bd as she feels tired if she takes 150mg at the same time”.
(k) On 25 July 2016 Dr Zaw noted that Efexor-XR SR capsule 75mg ceased with the reason for cessation being “completed without problems”.
(l) On 29 August 2016 Dr Zaw prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(m) On 21October 2016 DR Xaw prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(n) On 17 January 2017 Dr Zaw prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(o) On 27 April 2017 Dr Zaw prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(p) On 21 July 2017 Dr Zaw prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(q) On 11 January 2018 Dr Yi prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(r) On 24 July 2018 Dr Yi prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(s) On 25 September 2018 Dr Yi prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(t) On 11 December 2018 Dr Yi prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(u) On 14 March 2019 Dr Yi prescribed Efexor-XR SR capsule 75mg 1tab b.d.
(v) On 13 May 2019 Dr Yi prescribed Efexor-XR SR capsule 75mg 1tab b.d.
The MA noted that Ms Radnidge continued to be treated with Efexor XR 75mg twice daily.
The Appeal Panel accept that the clinical note of Dr Moe dated 3 December 2012 was evidence of a pre-existing condition, that is, depression. Depression is a recognizable psychological or psychiatric disorder. The Appeal Panel has taken into account the fact that Ms Radnidge was prescribed an anti-depressant medication, Efexor-XR capsule 75mg 1 daily m.d.u. on 3 December 2012. Efexor would not be prescribed for treatment of normal grief related to the death of Ms Radnidge’s father.
The Appeal Panel concluded that there was evidence of Ms Radnidge being psychologically or psychiatrically symptomatic in the weeks before the injury on 15 January 2013 to the extent that she required and was prescribed anti-depressant medication. The clinical notes revealed that the dosage of Efexor continued at the same level for some time after the work injury on 15 January 2013 before it was increased in about November 2015.
The Appeal Panel concluded that the MA made a demonstrable error in incorrectly recording in the MAC that Ms Radnidge had no prior psychiatric or psychological history and by not providing reasons as to whether a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act should or should not be made.
The Appeal Panel were satisfied that Ms Radnidge was not asymptomatic before the injury on 15 January 2013 and that the pre-existing condition, depression, resulted in some impairment because she required and was prescribed anti-depressant medication.
Guideline 11.10 of the Guidelines requires that the MA undertake two PIRS assessments, one based on evidence of pre-injury functioning, and one to reflect post injury functioning. The impairment assessed under the PIRS should then be deducted from the post injury assessment. However, the Guidelines at 11.10 also provides that if the percentage of pre-existing impairment cannot be assessed, the deduction is one-tenth of the assessed WPI.
The Appeal Panel considered that the level of pre-existing impairment could not be assessed as there was no contemporaneous medical evidence apart from the clinical note of Dr Moe dated 23 December 2012. Ms Radnidge provided two statements, dated 17 May 2021 and 6 March 2017, but made no reference in these statements to the consultation with Dr Moe on 3 December 2012 and the prescription of Efexor during that consultation. There were no clinical notes available from any doctor who treated Ms Radnidge before she moved from Greater Western Sydney to Maxville in 2012 or any clinical notes for the period when she was in Maxville before 3 December 2012.
Dr Teoh, in his report dated 15 August 2019, did not make a deduction for pre-existing impairment. It appeared from the report that Dr Teoh was provided with the medical records of Bawrunga Aboriginal Medical Centre but did not refer to these records in his report.
Dr Teoh noted that Ms Radnidge did not report a pre-existing psychiatric condition.Dr Vickery, in his report dated 6 January 2020, stated: “There is no previous injury or pre-existing condition or abnormality”. Dr Vickery was not provided with the medical records of Bawrunga Aboriginal Medical Centre but did have the report of Dr Teoh dated 15 August 2019. Dr Vickery made a diagnosis of panic disorder and concluded that the condition was not related to employment.
The Appeal Panel considered that it would be too difficult to obtain an adequate history upon which pre-existing impairment could be assessed as the work injury occurred over nine years ago and the MA noted that Ms Radnidge had problems in concentration and low energy and fatigue. Taking into account the period of time which has passed since the injury on 15 January 2013, the Appeal Panel concluded that the percentage of pre-existing impairment could not be accurately assessed by reference to Ms Radnidge’s pre-injury level of functioning. It was very unlikely in view of Ms Radnidge’s current condition that she would be able to recall accurately sufficient information about her level of functioning in the activities that need to be rated in the PIRS as those activities occurred more than nine years ago.
The Appeal Panel therefore applied a deduction of one-tenth on the basis that the pre-existing impairment could not be assessed. The Appeal Panel considered that the extent of the deduction would be difficult or costly to determine and applied the provisions of s 323(2). The Appeal Panel did not consider that a deduction of 10% was at odds with the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 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 John J Baker 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) |
| 1.Psychological/psychiatric | 15 January 2013 | Chapter 11, pages 60-68 | Chapter 14 | 15% | One-tenth (1.5% rounded down to 1%) | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% WPI | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Carolyn Rimmer
Member
Michael Hong
Medical Assessor
Patrick Morris
Medical Assessor
24 February 2022
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