McAusland v Secretary, Department of Communities and Justice

DETERMINATION OF APPEAL PANEL
CITATION:	McAusland v Secretary, Department of Communities and Justice [2024] NSWPICMP 766
APPELLANT:	Secretary (Department of Communities and Justice)
RESPONDENT:	John Henry McAusland
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	8 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by the Crown from an assessment pursuant to the Civil Liability Act 2002 for injury to an offender in custody; whether Medical Assessor (MA) erred in failing to separate primary from secondary psychological injury; whether MA erred by not discussing Chapter 11.3 and 11.4 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed , 1 March 2021 (the Guidelines); whether MA failed to adequately consider the report of the Crown’s medico-legal expert; whether the Crown had been deprived of procedural fairness; Held – MA was not asked in the referral to consider the question of secondary psychological injury; Skates v Hill Industries Ltd considered and applied; the issue was not raised in the expert reports; Hancock v East Coast Timber Products Pty Ltd considered; no application in that regard was made to the Commission; State of New South Wales (NSW Department of Education) v Kaur considered and applied; validity of Chapter 11.3 of the Guidelines doubted in circumstances and if technically breached constituted no appealable error; Chapter 11.4 of the Guidelines not breached; Campbelltown City Council v Vegan and Wingfoot Australia Pty Ltd v Kocak considered and applied; procedural fairness available in sections 327(3)(b) and 328(3) of 1998 Act, but not sought; Shi v Transpace Pty Ltd & Ors considered and applied; MA’s consideration of medico-legal expert adequate; presumption of regularity considered and applied, citing Bojko v ICM Property Service Pty Ltd and Jones v The Registrar WCC; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 May 2024 the Secretary (Department of Communities and Justice), the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 April 2024.
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, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 20 March 2024 this matter was referred by the President's delegate for an assessment of WPI arising from psychological and psychiatric disorders as a result of an injury which occurred on 1 March 2019. Mr McAusland was born in 1985.
This matter comes before us a result of the provisions of Part 2A of the Civil Liability Act2002 (the 2002 Act). Section 26D thereof provides that permanent impairment that results from an injury sustained by an offender in custody is to be assessed both under Part 2A of the 2002 Act and Part 7 of Chapter 7 of the 1998 Act.
On 1 March 2019, whilst incarcerated at the Wellington Correctional Centre, Mr McAusland was physically and sexually assaulted by a number of prisoners. He sustained severe physical injuries and was transferred first to Dubbo Base Hospital and then to Long Bay Prison to receive ongoing care at Prince of Wales Hospital.
Mr McAusland did not make a statement or testify against his assailants.
The evidence shows that he was released sometime in 2019.[1]
[1] Appeal papers page 61. See report of Dr Justine Schelle, psychiatrist dated 16 November 2023.
The Medical Assessor assessed 24% WPI from which he deducted one third pursuant to the provisions of s 323 of the 1998 Act.

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 the preliminary review the Appeal Panel determined that a further medical examination was not necessary for the reasons given below.
The appellant Department also sought to make oral submissions to the Panel. That application is declined, as there is nothing in the MAC before us that contains any novel factual or legal issue.

EVIDENCE

Documentary 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.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan) 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 MAC

The Medical Assessor took a history consistent with the other evidence before him. He noted that Mr McAusland had a past complex mental health history which arose out of significant developmental trauma and later substance abuse. When he was 14 years old he discovered the body of his father who had died of a drug overdose, and after that his behaviour at school deteriorated. He was asked to leave when he was 16. He became a user of illicit drugs and spent at least the last seven years in jail, the longest sentence being two and a half years.
Mr McAusland was diagnosed as having post-traumatic stress disorder as early as 2010.
The Medical Assessor on examination formed the impression that Mr McAusland was genuine but that he struggled with details and event sequences. Mr McAusland complained that he had not been given any support at Long Bay after the assault saying, “They refused to give me my medications for five 5 weeks because I lost my identification card”. He said he also filled in a form seeking support but was never seen by a counsellor.
In his summary the Medical Assessor said:[2]
[2] Appeal papers page 34.
“• summary of injuries and diagnoses:
My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5),
published by the American Psychiatric Association.
o post-traumatic stress disorder
o major depressive disorder with anxious distress
o substance use disorder (opiates and psychostimulants) in short-term remission
Mr McAusland suffered a violent sexual assault by several assailants while incarcerated at Wellington Correctional Centre. He was given little support after the assault and returned to an environment where he had legitimate and ongoing fears for his safety. He had preexisting PTSD because of the death of his father, and the assault exacerbated this. He has persisting and severe intrusion symptoms of avoidance, negative alterations in cognition and mood and marked alterations in arousal and reactivity, consistent with PTSD.
He also meets the criteria for a major depressive disorder with anxious distress. His preexisting mood and anxiety symptoms have been exacerbated.
He had substance use problems before going to jail, and these have continued while incarcerated and post-release. They are in short-term remission, supported by the use of buprenorphine.
• consistency of presentation
I found no significant inconsistencies in Mr McAusland’s presentation. Although he was
imprecise with details and contradicted the provided history in minor ways, he did not
exaggerate. Overall, I thought he was open and honest in relating a difficult and traumatic story.”
The following appeared in the templated paragraph 8 of “The evaluation of the permanent impairment”. At 8F the following appeared:[3]
“f. … please indicate which body part/system is affected by the previous injury, preexisting condition or abnormality.
Psychiatric/psychological. Mr McAusland has had pre-existing PTSD and mood and anxiety disorders, together with his substance use disorders. These conditions were exacerbated and perpetuated by the assault. The assault was at the upper range of severity because it involved several perpetrators inflicting physical and sexual trauma, and Mr McAusland was returned to a similar environment where he had legitimate concerns for his safety.”
[3] Appeal papers page 35.
At paragraph 10C the following question appears:[4]
“c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:”
[4] Appeal papers page 35.
The Medical Assessor noted that the treating psychiatrist, Dr Malcolm Foxcroft, diagnosed Mr McAusland “with post traumatic stress disorder, secondary major depressive disorder with psychotic features and substance dependent disorder (amphetamines and heroin)”. He noted that Dr Foxcroft found 30% WPI from which he deducted one half.
The Medical Assessor noted the opinion of Dr Doron Samuell, the medico-legal expert retained by the appellant, of 28 September 2020 (erroneously recorded as
20 September 2020). The Medical Assessor noted that Dr Samuell diagnosed post-traumatic stress disorder and determined a 2% WPI before deducting one half for the pre-existing condition.
The Medical Assessor said:[5]
“I note that Dr Samuell’s assessment was done almost four years ago, and it is an outlier regarding Mr McAusland’s symptoms and impairment. At the time, he was in a relationship with Jessica and coping somewhat better with her support. Still, he spent much of his time in his bedroom.”
[5] Appeal papers page 36.
The Medical Assessor noted that on 7 November 2023 Mr McAusland’s medico-legal expert, Dr Justine Schelle, had diagnosed post-traumatic stress disorder originally when
Mr McAusland discovered his father’s body in 2010. She noted an exacerbation of post-traumatic stress disorder with additional diagnoses of substance abuse disorder, major depressive disorder, psychosis (probably schizophrenia) and antisocial personality disorder.
He noted that Dr Schelle determined a 22% WPI from which she deducted 1/10.
In considering the question of a deduction pursuant to s 323 of the 1998 Act, the Medical Assessor said:[6]
“Mr McAusland had persisting symptoms for several years. He was not functioning well socially and vocationally. He had ongoing substance use with significant forensic problems, such that he had spent several years of his adult life in jail. He was incarcerated at the time of the assault. However, the assault was severe and likely to cause significant mental health problems and impairment in most people. This was exacerbated by his continued incarceration, especially before he was granted protective custody. He was denied appropriate psychological and psychiatric care.
Mr McAusland’s symptoms and impairment would be less severe had the pre-existing conditions not been present.
Because of the severity of the assault and his continued perceived threat while at Long Beach jail, I considered that two-thirds of his current impairment is due directly to the assault and one-third to the pre-existing conditions.
….
(i)Mr McAusland suffered a physical and sexual assault at the upper range of severity. It is likely that PTSD and comorbid mood and anxiety (sic). Problems would have arisen in almost anyone and resulted in significant impairment. There is no standard or scientific way to determine the exact apportionment for the pre-existing and current conditions. I rely on my experience and expertise as a psychiatrist.”
[6] Appeal papers page 37.

SUBMISSIONS

Appellant

The appellant referred to the relevant legislation which founded the jurisdiction of the Medical Assessor, to which we will refer below. The appellant submitted that the legislation required the Medical Assessor to separate primary and secondary psychological injury.
In particular we were referred to s 151H of the 2002 Act, which provides that no regard is to be had to impairment that results from a secondary psychological injury.
We were referred to the definition of a secondary psychological injury contained in s 151H(5) (which is identical to s 65A(5) of the 1987 Act).
The appellant then submitted that a Medical Assessor:
“must ensure that the WPI assessment of such a person (deemed to be a ‘worker’ for the purposes of the workers compensation legislation and guidelines) is clearly limited to a primary ‘psychological injury’ and does not include assessment of any ‘secondary psychological injury’.”
The appellant gave some examples of a secondary psychological injury, and referred to a website, Icare.nsw.gov.
The appellant submitted that the Medical Assessor had identified a number of facts and made a number of findings that were “only consistent with the statutory definition of secondary psychological injury.” We were referred to:
·        Mr McAusland’s facial fractures;
·        his treatment in Dubbo Base and Prince of Wales Hospitals;
·        his eventual placement in protective custody at Long Bay Prison;
·        counselling support not being provided;
·        his conflicted relationship with the mother of his children;
·        subsequent ruminations of paranoid thinking and auditory hallucinations which were likely related to drug use and not to schizophrenia;
·        his lack of support in Long Bay;
·        his substance abuse whilst incarcerated and post release, and
·        the severity of the assault which was exacerbated by his continued incarceration, especially before he was granted protective custody.
Under the heading “Other diagnostic deficiencies” the appellant referred to the Diagnostic and Statistical Manual – 5^th edition DSM-V and the Medical Assessor’s reference thereto. The appellant submitted that a set of diagnostic criteria for each disorder diagnosed required the presence of symptoms, their duration and a list of other symptoms, disorders and conditions that must first be ruled out to qualify for the particular diagnosis.
The appellant claimed:[7]
“The AMS [sic – Medical Assessor] does not explain the way in which such diagnostic criteria were applied in his avowed ‘reliance’ on diagnostic criteria for DSM-5. The inference to be drawn from the lack of any such explanation is that the diagnostic criteria of DSM-5 were misapplied or, otherwise, conflated with some other, unstated, diagnostic system.”
[7] Appeal papers pages 11 – 12.
This failure, we understood the appellant to submit, contravened Chapter 11.4 of the Guides.
Under the heading “Demonstrable Error” the appellant submitted that the Medical Assessor had failed to “duly consider the evidence of Dr Samuell”. We were referred to the reports of Dr Foxcroft and Dr Schelle. The appellant noted that Dr Foxcroft had assessed 30% WPI whereas Dr Schelle had determined 22% and that there had been deductions pursuant to s 323 of 50% and 10% respectively. The appellant noted that the Medical Assessor had explained why the 10% deduction was insufficient and could not be accepted.
It was argued however that the manner in which the Medical Assessor considered
Dr Samuell’s report consisted of a “curt dismissal”. The appellant referred to the Medical Assessor’s description of Dr Samuell’s report as being an “outlier” which was described as “somewhat “pejorative” description. We were referred to the definitions of the word “outlier” in the Macquarie Dictionary and the Mirriam Webster Dictionary online.
The appellant criticised the Medical Assessor’s explanation regarding his view of
Dr Samuell’s report. It alleged that further consideration should have been made because
Dr Samuell had, like Dr Foxcroft, assessed a 50% s 323 deduction.
The appellant submitted that the Medical Assessor had not considered the reasons given by Dr Samuell. It submitted further that “Dr Samuell’s assessment was a relevant consideration for the assessor to take into account. Before excluding a statistical observation from a qualified expert as an ‘outlier’ in data analysis, more information must be obtained to try to find out why the value is unusual”.
The appellant Department referred to Ballas v Department of Education (State of New South Wales)[8] as authority for its proposition, without developing its submission. We were not referred to what dicta in Ballas the appellant was relying on to support this alleged principle.
[8] [2020] NSWCA 86.
The failure to consider Dr Samuell’s reasoning meant that the Medical Assessor’s opinion was more than a mere difference of opinion, it was argued. This failure constituted a failure to exercise the jurisdiction conferred on a Medical Assessor.
We were referred to Carrascalao v Minister for Immigration and Border Protection[9] in that regard. The principle summarised by the appellant from that case, was “that a review court will be open to examining the full set of circumstances leading up to an administrative decision to determine whether proper consideration was given.” We concur with that submission.
[9] [2017] FCAFC 107; (2017) 347 ALR 173.
The appellant Department submitted that because Dr Foxcroft and Dr Samuell both favoured a deduction of 50%, the Medical Assessor had erred in not giving fuller consideration to
Dr Samuell’s report.
The appellant Department then alleged that there had been a failure to afford the State procedure fairness.
There followed an assertion that the Medical Assessor had accepted various factual assertions made by Mr McAusland “without the State being accorded any opportunity to address the allegations of the worker and provide documentary evidence it could place the assertions of the worker in a significantly different light”.
We were referred to Vitaz v Westform (NSW) Pty Ltd[10] in furtherance of the submission that there was a requirement to accord procedural fairness to parties and that it was a defining aspect of the legal obligations cast upon administrative decision makers by the common law. We concur with that submission also.
[10] [2011] NSWCA 254 at [17].
We were referred to a Medical Appeal Panel decision of Qantas Airways Limited v Katz.[11] We were also referred to Civil Aviation Safety Authority v Ovens[12] as authority for the proposition that an evaluation in the procedure used in the particular circumstances of a case decides whether the principles of procedural fairness had been complied with. Again, we concur with that principle, as will be seen.
[11] [2024] NSWPICMP 189 at [44], [61].
[12] [2011] FCAFC 75 at [33].

It was submitted that in having a 75 minute video link discussion with Mr McAusland and in placing the extensive reliance on “uncorroborated assertions of the worker” that the State should have been given the opportunity to address those assertions.
We were also referred in this regard to Kioa v West..[13]
[13] (1985) 159 CLR 550 at 585.
It was submitted “it cannot be doubted” that the Medical Assessor was required to inform the State of the assertions made as to Mr McAusland’s post injury treatment in the prison environment to give the State an opportunity to place relevant material before the Medical Assessor.
It was submitted that the assertions made by Mr McAusland as to the lack of treatment or mistreatment after his injury “was plainly relied upon” by the Medical Assessor from the point of view of both the diagnosis and to evaluate the worker’s WPI.
The appellant then submitted that a re-examination under the circumstances should take place, expanding on the box it had ticked in its application.[14] It referred to documents detailing Mr McAusland’s history and in particular a handwritten statement that was referred to by Dr Samuell. A re-examination would ensure that the evidence was “professionally considered” by the Panel which, with a “skilful re-examination of the worker” would enhance an “objective assessment.”
[14] Appeal papers page 3.
As also noted above the appellant ticked the appropriate box to indicate that it requested the opportunity to present oral submissions before the Panel. It submitted that such a hearing was required “to achieve a definitive assessment” of the two issues it raised. Finally, the appellant submitted that the matter should be referred under s 329 back to the Medical Assessor. However, as the matter has now proceeded before the Panel, that option no longer exists.

The respondent

Mr McAusland submitted that the enabling legislation limited a Medical Assessor’s function to the assessment of primary psychological injury, and there was accordingly no requirement for him to expressly state that Mr McAusland’s psychiatric diagnosis was primary.
Mr McAusland submitted that the diagnosis of “a primary psychological disorder, namely PTSD with major depressive disorder” was sufficient to comply with the guidelines, as the Medical Assessor found no secondary psychological injury, neither had he been asked to make any assessment of a secondary injury.
Mr McAusland submitted that there was no secondary psychological injury identified in the medical reports nor in the application for assessment and thus the Medical Assessor was not required to do anything more than assess a primary injury.
Mr McAusland submitted that there was no requirement for the Medical Assessor to find that the psychological disorder was a primary injury, as he had not been requested to separate from the psychological injury any secondary injury.
We were referred to Chapter 11.3 of the Guides and s 326(1)(b) of the 1998 Act in support of Mr McAusland’s submission that s 65A(5) defined a secondary psychological injury as one flowing from a physical injury. It followed that the appellant’s reliance on Mr McAusland’s subsequent medical treatment and/or the appellant’s subsequent actions as indicating the basis for a finding of a secondary injury were not supported by the legislation, Ms McAusland argued.
Mr McAusland submitted that the Medical Assessor had complied with the requirement to explain the application of the diagnostic criteria as required by Chapter 11.4 of the Guides. This was apparent from the psychiatric impairment rating Form (PIRS) compiled by the Medical Assessor. This had not been addressed by the appellant, Mr McAusland observed, and he reproduced the Table 11.8 PIRS table which, Mr McAusland submitted, was in compliance with the relevant guidelines.
With regard to the submissions regarding Dr Samuell, Mr McAusland agreed that the Medical Assessor is required to consider the evidence of Dr Samuell and to take it into account.
This, it was submitted, the Medical Assessor had done. The fact that Dr Samuell was described as an “outlier,” and that there was an obvious difference between the assessments, demonstrated that Dr Samuell’s evidence had indeed been considered,
Mr McAusland argued.
As to the submissions regarding a failure to afford the State procedural fairness,
Mr McAusland said that the Medical Assessor was required to consider the evidence before him on the day of assessment and to rely on the evidence that was provided to him.
It was submitted further that the appellant Department had not complied with the provisions of Practice Direction 16 [13].
Mr McAusland submitted further that to call such evidence would involve a hearing on factual matters which was beyond the power provided by s 327(3) of the 1998 Act.
Mr McAusland submitted that in any event the appellant had such evidence in the records at the Department of Corrective Services, Dubbo Base Hospital and other clinical records, the information that had been examinable regarding Mr McAusland’s complaints and reports.

DISCUSSION

Legislation

Jurisdiction

Mr McAusland’s entitlement arises because he was an offender in custody when he was injured, as provided by s 26B of the 2002 Act, relevantly:
“(1) This Part applies to and in respect of an award of personal injury damages against a protected defendant in respect of-
(a) an injury to a person received while the person was an offender in custody, or
(b) …
being an injury caused by the negligence (that is, the failure to exercise reasonable care and skill) of the protected defendant or caused by the tort (whether or not negligence) of another person for whose tort the protected defendant is vicariously liable.”
The Medical Panel’s jurisdiction is founded on s 26D of the 2002 Act, which provides:
“(1)    The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the ‘1998 WC Act’ ).
(2)     Part 7 of Chapter 7 of the 1998 WC Act extends to an assessment of degree of permanent impairment for the purposes of this Part and for that purpose applies as if-
(a) an assessment under this Part were an assessment under and for the purposes of that Part of the 1998 WC Act, and
(b) a reference in that Part of the 1998 WC Act to a worker were a reference to an offender, and
(c) a reference in that Part of the 1998 WC Act to a worker’s employer were a reference to the Crown, and
(d) section 330 (Costs of medical assessment) of the 1998 WC Act were omitted from that Part, and
(e) a reference in that Part to the WorkCover Guidelines were a reference to guidelines issued under subsection (2A), and
(f)the provisions of that Part applied with such other modifications as may be prescribed by the regulations.
(2A) The Minister administering the CAS Act may, by order published in the Gazette, issue guidelines for the purposes of the application of Part 7 of Chapter 7 of the 1998 WC Act to offenders in respect of the same kinds of matters for which the WorkCover Guidelines may make provision for the purposes of that Part.
Note : The Minister may amend or repeal an order made under this subsection. See section 43 of the Interpretation Act 1987 .
(2B) Without limiting subsection (2A), an order made under that subsection may apply, adopt or incorporate (whether wholly or in part or with or without modifications) the provisions of the WorkCover Guidelines, either as published or as in force from time to time.
(2C) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order made under subsection (2A) in the same way as they apply to a statutory rule.
(3)     If there is a dispute about the degree of permanent impairment of an injured offender, a court may not award damages unless the degree of permanent impairment has been assessed by a medical assessor in accordance with the 1998 WC Act.
(3A) A dispute about the degree of permanent impairment of an injured offender cannot be referred for assessment unless the offender has provided the protected defendant with a medical report by a medical practitioner that assesses that the degree of permanent impairment of the injured offender is at least 15% and sets out the medical practitioner’s reasons for that assessment.
(4)     A court may, at any stage in proceedings on a claim for damages, refer the matter for assessment of the degree of permanent impairment by a medical assessor in accordance with the 1998 WC Act.
(5) Section 151H (No damages unless permanent impairment of at least 15%) of the Workers Compensation Act 1987 applies for the purposes of an assessment under this Part of whether the degree of permanent impairment resulting from an injury is at least 15%.
(6)     In this section-
‘modification’ includes an addition, omission or substitution.
‘WorkCover Guidelines’ has the same meaning as it has in the 1998 WC Act.”

Secondary psychological injury

Section 151H of the Workers Compensation Act 1987 (the 1987 Act) provides relevantly:
“(2)    In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%)-
(a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and
(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and
(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.
…
(3)     In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.
(4)     …..
(5)     In this section-
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Section 65A of the 1987 Act provides relevantly:
“(1)    No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3)     No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
…
(4)     If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply-
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) ….
(c) …
(5)     In this section-
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
It can be seen that the two provisions are similar, and provide that an assessment of WPI for a “psychological injury,” to use the statutory language, can thus only be obtained with regard to a primary psychological injury.

Primary v secondary

That Mr McAusland suffered such an injury is not in question. However, he did also suffer physical injuries as described by the appellant, and indeed they were of such severity that it was deemed necessary to move Mr McAusland from Wellington Correctional Centre, where he had been receiving treatment at Dubbo Base Hospital, to Long Bay Prison in order to have his injuries treated at Prince of Wales Hospital.
The appellant submitted that there were a number of facts that could only be consistent with the statutory definition of a secondary psychological injury. This submission, we apprehend, was the basis for its argument that there was an obligation on the Medical Assessor to distinguish between a primary and secondary psychological injury. The appellant relied on Chapter 11.3 of the Guides, which provides:
“11.3 Permanent impairment assessments for psychiatric and psychological disorders are only required where the primary injury is a psychological one. The psychiatrist needs to confirm that the psychiatric diagnosis is the injured worker’s primary diagnosis.”
It was argued that the existence of the facts relied on (which we have reproduced at [37] above) required the Medical Assessor to make the confirmation mentioned in Chapter 11.3. The submission appeared to be predicated on the assumption that each or all of the facts mentioned cumulatively might have caused a secondary psychiatric injury, but we note that there is no evidence before us that supports that hypothesis.

Lack of expert opinion

Dr Malcolm Foxcroft, the psychiatrist qualified by Mr McAusland, recorded on
[15] Appeal papers page 176.
29 August 2019[15] that Mr McAusland’s physical injuries included two fractured eye sockets, a broken jaw and a broken nose. He had bruising to much of his body.
Dr Foxcroft identified that Mr McAusland had already acquired a post-traumatic stress disorder and secondary major depressive disorder when he discovered, at 15 years, the death of his father through a heroin overdose. Dr Foxcroft said that following the assault
Mr McAusland developed a clinically significant exacerbation of his pre-existing post-traumatic stress disorder as well as an exacerbation of his secondary major depressive disorder which, when Dr Foxcroft assessed him, then had psychotic features, described as “auditory hallucinations”. These were described as follows:[16]
“…He said that since the assault he has started to hear voices. He said initially they were saying things like “he should kill himself” and they had a depressive content to them.
Initially it was his own voice, now it is other people’s voices and they have also been saying that he is going to get bashed and is going to be in trouble from the perpetrators. He said that the TV sometimes send him messages. He has never had this happen before…”
[16] Appeal papers page 179.
Both the post-traumatic stress disorder and secondary major depressive disorder were exacerbated “following a history of serious sexual assault which occurred in the Wellington Correctional Centre on 1st of March 2019.” Dr Foxcroft repeated his opinion on a number of occasions.[17]
[17] Appeal papers pages 182, 184, 185,188, 190.
Dr Justine Schelle, psychiatrist, was Mr McAusland’s treating specialist, who reported on
[18] Appeal papers page 54.
[19] Appeal papers pages 66, 68-70.
7 November 2023.[18] She too recorded that Mr McAusland had acquired a “chronic PTSD with secondary depressive and anxiety symptoms…” after the death of his father, and indeed such had been diagnosed by a psychiatrist, Dr Douglas, in October 2010. Auditory hallucinations had been present since at least 2016. Dr Schelle diagnosed that the subject assault had worsened Mr McAusland’s “posttraumatic stress disorder, substance use disorder…,major depressive disorder, psychosis (probably schizophrenia) and antisocial personality disorder.” She repeated that diagnosis in some detail, and her explanation was concerned with Mr McAusland’s psychological symptoms.[19] She did not refer to his physical injuries.
Dr Doron Samuell, clinical and forensic psychiatrist, was retained by the appellant as its medico-legal expert. His report was dated 28 September 2020.[20] Dr Samuell took a consistent history of the circumstances of Mr McAusland’s father’s death, and the subject assault. He also recorded that Mr McAusland suffered “fractured eye sockets, jaw and nose” in the assault.[21] Dr Samuell noted that Mr McAusland underwent surgery to put his jaw back in place. Dr Samuell also reported:
“[Mr McAusland] said that he has recovered from the physical component of the assault.”
[20] Appeal papers page 194.
[21] Appeal papers page 201.
Dr Samuell considered the reports of Dr Foxcroft, agreeing that a 50% deduction was reasonable for Mr McAusland’s pre-existing condition, but taking issue with Dr Foxcroft’s calculation of WPI, as Dr Foxcroft had used the AMA4 Guidelines, rather than those provided by the PIRS scale (contained within Chapter 11 of the Guides). Dr Samuell agreed with
[22] Appeal papers page 205/6, 207, 209, 212.
Dr Foxcroft that the diagnosis was of a post-traumatic stress disorder which had been in partial remission at the time of the subject assault. He differed as to whether a diagnosis of Schizophrenia was appropriate rather than that of a major depression with psychotic features, although he accepted that both were differential in any event.[22]
In Hancock v East Coast Timber Products Pty Ltd[23] Beazley JA (Giles and Tobias JJA agreeing) said:
“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence …”
[23] [2011] NSWCA 11.
None of the expert evidence in this case gives a satisfactory basis for the appellant’s submission that the factual matters it raised in [37] above were relevant to the function the Medical Assessor was performing. The factual matters referred to by the appellant were discussed by Dr Foxcroft, Dr Samuell and the Medical Assessor. Matters such as the severity of the physical injuries, Mr McAusland’s history regarding his lack of support, his social life and his activities since his injury were all relevant to the assessment of his impairment, but none of the expert witnesses suggested that it had been caused by a secondary injury. Indeed the only reference to secondary injury was in the context that the major depressive disorder was secondary to the post-traumatic stress disorder.[24] It is thus a part of the primary psychological injury.

[24] Dr Foxcroft at page 182, Dr Schelle at page 70, Dr Samuell thought this disorder was in fact an idiopathic Schizophrenia at page 207.

Misleading authority

The appellant referred to a website, and relied on the definition of a secondary issue as interpreted by that source, namely:[25]
"Secondary psychological injuries can be caused by an individual's reaction to a primary event or injury. They can stem from an individual's attempts to cope with a primary injury or event and can develop during the process of recovery and rehabilitation.
Secondary psychological injuries can manifest in various ways, such as mental health symptoms like anxiety or depression, substance abuse problems or other harmful behaviours, but are usually treatable with adequate support and interventions."
[25] Appeal papers page 10.
As can be seen from the legislative definition, this definition has the potential to mislead by the inappropriate use of the word “primary.” Both s 151H(5) and s 65A(5) contain the following definition of a secondary psychological injury, to repeat:
”secondary psychological injury” means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.

Thus, secondary psychological injuries can only arise where there is a physical injury, and the above website phrase “primary event” has a misleading connotation to it, as does the phrase “primary injury”. In s 65A(5) the phrase “primary psychological injury” is defined as a psychological injury that is not a secondary psychological injury, by which it is necessary to identify whether there was a physical injury which caused a psychological condition.
Whilst physical injury was sustained by Mr McAusland in the subject injury, and was recognised by most of the experts in this case, there was no suggestion in the evidence that Mr McAusland’s impairment was related to that physical injury. Indeed, Dr Samuell recorded that Mr McAusland was then “recovered from the physical component of the assault” when he assessed Mr McAusland on 28 September 2020, as noted.
The list of events compiled at [21] of the appellant’s submissions, which we have summarised at [37] above, was said to disclose factual situations which might have caused a secondary psychological injury, and in failing to distinguish them it was argued that the Medical Assessor had applied incorrect criteria and made a jurisdictional error. Without any supporting expert evidence those submissions are based on no more than speculation. The appellant’s medico-legal specialist Dr Samuell did not make any finding of secondary psychological injury, and neither did the experts retained by Mr McAusland. None of the expert reports engaged with s 65A or s 151H of the 1987 Act.

Procedural and legal issues

Further, this allegation had not hitherto been made by the appellant, and it was not a part of the medical dispute. This is evident from the terms of the referral itself, which as indicated above, sought an assessment of WPI caused by “Psychological and Psychiatric disorders” on 1 March 2019.
Had the appellant wished to raise this issue, the appropriate venue was not the Medical Appeal Panel, but within the Commission, as legal entitlement is at the root of the distinction between primary and secondary psychological injury. In State of New South Wales (NSW Department of Education) v Kaur[26] Campbell J said at [20]:
“[The employer’s medico-legal expert]’s reports do not raise the question whether
[26] [2016] NSWSC 346.
Dr Kaur’s psychological injury is a secondary psychological injury. I have come to this conclusion because I am of the view that the definition of secondary psychological injury in s 65A (5) of the 1987 Act should be read as meaning a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical work related injury....”
At [22] his Honour said:
“Given that I am of the view that the particular question of law does not arise, it perhaps is unnecessary for me to express any opinion about the correctness of the Appeal Panel's legal view. However, given the detailed argument that was addressed to me by counsel, and lest the matter go on appeal, I should point out that in my judgment, the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act. In my opinion this follows from the judgment of the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264…”
His Honour then cited the dicta of Emmett JA (Meagher and Ward JJA agreeing) in that decision. Campbell J then said at [23]:
“Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase, "a disentitling provision". This is made clear in my view by the language "no compensation is payable" at the outset of s 65A (1). Similar language appears in s 9A and s 11A which are clearly recognised as "disentitling provisions". It is true that s 65A is not found in a division dealing with general liability to receive compensation, as s 9A and s 11A are. Nonetheless, the language of s 65A is concerned with substantive rights rather than questions of the process of the quantification of the entitlement to monetary compensation dealt with in the other provisions of Division 4 of part 3 of the 1987 Act.
It is thus beyond the power of a Medical Appeal Panel to assess an issue raised for the first time on appeal which ought to have been raised before the matter had been referred to the Medical Assessor.

The referral

Moreover, the terms of the referral are binding on a Medical Assessor. In Skates v Hills Industries Ltd[27] the Court of Appeal held that whilst the referral was but an aspect of the statutory scheme to resolve a medical dispute,[28] the failure to comply with the terms of the referral constituted a demonstrable error[29] and a Medical Assessor was not free to ignore its terms.[30] The terms of the referral are, however, subject to an accurate description of the medical dispute as agreed between the parties.[31]
[27] [2021] NSWCA 142.
[28] Per Leeming JA (as he then was) at [48].
[29] Per Basten JA at [35].
[30] Per McCallum JA at [82].
[31] Per Leeming JA at [48 – 50].
The terms of the referral, as noted, did not specify the type of psychological injury the Medical Assessor was to assess, but simply referred to “Psychological and Psychiatric disorders.” Such is unsurprising, as the above legislation makes it clear that a Medical Assessor only has power to assess a primary psychological disorder.
Occasionally a Medical Assessor is requested to assess the contribution of a secondary psychological injury to the impairment caused by a primary psychological injury,[32] but the terms of the referral request such an apportionment to be made. No such request was made in this case.
[32] See eg Mercy Connect Limited v Kiely [2018] NSWSC 1421; Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447.
The submission that the Medical Assessor had ignored the need to separate primary psychological injury from secondary psychological injury must accordingly fail, as does the submission that he had failed to ask the correct question or apply the correct statutory test under the legislation.

Guidelines

The appellant argued that the Medical Assessor had not complied with the terms of Chapter 11.3 of the Guides, which we have reproduced above. The guide is no more than a statement of the effect of the legislation – that assessments are only required for primary psychological injuries - and we regard as otiose the requirement that the Medical Assessor needs to confirm the psychiatric diagnosis as being primary in the current circumstances. There was no need for such confirmation, as the referral did not seek such a distinction. In as much as there may be a technical breach of this provision we do not regard it as a reason to vitiate the MAC.
Similarly, the provisions of Chapter 11.4 state:
“11.4 The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based. Impairment
arising from any of the somatoform disorders (DSM IV TR, pp 485–511) are excluded from this chapter.”
The appellant argued that this provision required the Medical Assessor to:
·        identify symptoms that must be present;
·        identify for how long they had been present, and
·        list “other symptoms, disorders, and conditions that must first be ruled out.
We would observe that Chapter 11.4 contains no such requirements. We have reproduced the whole of the diagnosis given by the Medical Assessor at [23], above. What Chapter 11.4 requires is an identification of the psychiatric diagnosis, and the system on which it is based, together with “the diagnostic criteria.” The Medical Assessor stated that his diagnoses relied on DSM-5, and he found Mr McAusland to be suffering from “post traumatic stress disorder, major depressive disorder with anxious distress, and substance use disorder (opiates and psychostimulants) in short-term remission”. He identified the criteria as being a “violent sexual assault by several assailants while incarcerated” which exacerbated his pre-existing post-traumatic stress disorder. He stated that McAusland “meets the criteria” for the major depressive disorder, and he noted that the substance use problems which pre-existed the subject assault has continued.
We referred to Vegan at the outset of these reasons. At [122] Basten JA (Handley and McColl JJA agreeing) said:
“On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: (Authority omitted). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”
The medical science regarding psychological injury is not controversial, and is governed by DSM-5 - the Diagnostic and Statistical Manual of Mental Disorders - fifth edition, published by the American Psychiatric Association. The Panel accordingly is satisfied that the explanation of the criteria set out by the Medical Assessor is adequate to satisfy the requirement for the Medical Assessor to provide adequate reasons, or, to use another phrase, to show his path of reasoning, in reaching a professional judgment.[33]

Procedural fairness
[33] Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43 at [48].

In Shi v Transpace Pty Ltd & Ors[34] Senior Member Kerry Haddock considered the application to the Commission of the principles of procedural fairness. Senior Member Haddock said from [200]:
“The Workers Compensation Commission considered the issue of procedural fairness in Inghams Enterprises Pty Limited v Michelle Zarb.^[4] Deputy President Fleming said, of the operation of the now repealed s 354 of the Workplace Injury Management and Workers Compensation Act 1998, which was of similar effect to ss 43 and 52 of the PIC Act:
‘What constitutes procedural fairness will depend upon the nature of the decision under review (Kioa v West) and may be modified by clear and express provision in the statute. The procedure before the Commission is set out in section 354 of the 1998 Act ... While this provision modifies the common law rules of procedural fairness in some respects, for instance, in relation to the determination of matters on the papers, it does not alter the fundamental rule that a party is entitled to be heard in relation to the case against it, before the decision-maker exercises the power to make the decision…’
In Paul Segaert Pty Limited trading as Lidco v Narayan Acting Deputy President Roche, as he then was, said:
‘There is no doubt that the Commission and its Arbitrators are bound to comply with the rules of natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Zarb)(at [46])’.”
(Citations omitted).
[34] [2023] NSWPIC 314.
The relevant legislation regarding Chapter 7 of the 1998 Act is s 327(3)(b) and s 328(3).
Section 327(3)(b) allows as a ground of appeal the following:
“(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
….”
Section 328(3) states:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
With regard to proceedings before the Medical Appeal Panel it is therefore clear that the legislation envisaged that the rules of procedural fairness were to apply. The provisions of s 327(3)(b) and s 328(3) enable a party to adduce evidence to redress any perceived dispute or controversy about the actual consultation between a claimant and the Medical Assessor.
No such application was made, nor was there any satisfactory explanation for the respondent’s failure to do so. The appellant’s complaint that it was not afforded procedural fairness accordingly fails.

Failure to consider the report of Dr Samuell

The appellant appeared to base its submission on an allegation that the Medical Assessor had not duly considered the report of Dr Samuell, as he had “curtly” dismissed Dr Samuell’s opinion as an “outlier”. We were referred to dictionary definitions of the word “outlier,” and whilst the appellant acknowledged that there was a significant difference in Dr Samuell’s PIRS score compared to those of the other experts, it submitted that the fact that Dr Samuell agreed with Dr Foxcroft that there should be a s 323 deduction of 50% required, as we understood the submission, further consideration of Dr Samuell’s report, including an explanation as to why Dr Samuell was described as an “outlier”.
Firstly, there is an inherent contradiction in the appellant’s submission. It could not be said that the Medical Assessor had failed to adequately consider Dr Samuell’s report in the face of the Medical Assessor’s comments at [10c] of the MAC, which we have produced above at [27-28] above. The Medical Assessor not only noted that Dr Samuell had assessed a total of 2% WPI and deducted therefrom one-half with regard to Mr McAusland’s pre-existing condition, but he also noted that the assessment was done almost four years before and that Mr McAusland’s circumstances were different in that he was then in a domestic relationship. It follows that the Medical Assessor had given some consideration to Dr Samuell’s report, and explained why he differed. The complaint appeared to be that the Medical Assessor should have considered more carefully Dr Samuel’s assessment of a one-half deduction, as it coincided with that of Dr Foxcroft. Indeed, the appellant submitted that such a deduction ought to have been made pursuant to s 323 of the 1998 Act “for the reasons given by
Dr Foxcroft and Dr Samuell”.
Secondly, In Wingfoot, the plurality held, in discussing the function of a Medical Assessor[35] at [47]:
“..The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[35] The High Court was in fact considering the functions of an Appeal Panel, but in Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13] it was held that a Medical Assessor’s functions were analogous.
Whether or not the appellant thought that the Medical Assessor ought to have considered
Dr Samuell’s report in more detail, the Medical Assessor was obliged to apply his own medical experience and expertise in reaching his own independent decision. The appellant’s submission devolves to an argument that the Medical Assessor did not give adequate reasons for rejecting Dr Samuell’s report. It is however apparent that the Medical Assessor did adequately consider that report in view of his comments at [10c]. Further, the appellant did not make any submissions regarding the Medical Assessor’s reasons at [11] for making a deduction of one third pursuant to s 323.
Thirdly, there is a presumption of regularity that attends the actions of an administrative decision-maker, of which a Medical Assessor is one.[36] A Medical Assessor may be presumed to apply the correct methodology in his examination, and indeed may be presumed to have read the material that has been referred to him. Presumptions are of course rebuttable but the submissions by the appellant do not carry sufficient weight in that regard. We concur that Dr Samuell’s assessment was an outlier. It was almost four years out of date, pertained to an assessment of Mr McAusland when he was in a different domestic situation, and his estimate of Mr McAusland’s entitlement of 2% WPI was at odds with those other reports that contained such estimates, namely Dr Foxcroft (30%) and Dr Schelle (22%).
[36] Jones v The Registrar WCC [2010] NSWSC 481 at [37]: Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36].
Fourthly, the Panel also noted that Dr Samuell simply stated that he concurred with
Dr Foxcroft’s 50% pre-existing deduction, and neither doctor explained how he came to that percentage.

DECISION

For these reasons, the Appeal Panel has determined that the MAC issued on 26 April 2024 should be confirmed.

[2024] NSWPICMP 766

8 November 2024