Myers v Knet Technologies Pty Ltd
[2024] NSWPICMP 518
•30 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Myers v Knet Technologies Pty Ltd [2024] NSWPICMP 518 |
| APPELLANT: | Samantha Myers |
| RESPONDENT: | Knet Technologies Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 30 July 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by finding appellant had a pre-existing condition; whether MA erred by making a deduction based on the fact that the appellant’s permanent impairment from her injury was due to a pre-existing condition; Held – MA did not err by finding appellant had a pre-existing condition; MA erred by finding a proportion of the appellant’s permanent impairment was due to a pre-existing condition; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 May 2024 Samantha Myers, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 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 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with Knet Technologies Pty Ltd, the respondent, on 14 May 2018, working as a sales and marketing representative. She suffered a psychological injury due to events that occurred within her work in the period to 20 March 2019. The respondent’s insurer made weekly payments of compensation to her for the period until 3 October 2023 for an incapacity for work she had from her injury.
On 19 January 2023 she completed a personal injury claim form. Her solicitors wrote on 20 January 2023 to the respondent’s insurer providing a copy of that claim form to it and a copy of a report of psychiatrist Dr Shannon Paisley dated 14 November 2022 who had assessed the appellant had a permanent impairment from her injury of the order of 15% whole person impairment (WPI).
The respondent’s solicitors then arranged for the appellant to be examined by a psychiatrist Dr Peter Young on 2 March 2023. In a report dated 9 March 2023 Dr Young advised that he did “not believe the conditions for maximum medical improvement and stabilisation has been met for calculation of whole person impairment”. This was because he considered that the appellant’s dosage of antidepressant medication was not at an appropriate level and that her “treatment has not been escalated to a potential more effective agent”. He considered that if the appellant’s “treatment had followed standard guidelines for the management of major depression, then it is likely that her condition would have substantially improved by the current date”.
On 18 April 2023 the respondent’s solicitors wrote to the appellant’s solicitors providing them with a copy of Dr Young’s report and advising them that the insurer “is unable to respond to your client’s claim for lump sum compensation as the extent of permanent impairment is not yet fully ascertainable”.
On 13 December 2023 the appellant’s solicitors, on behalf of the appellant lodged with the Personal Injury Commission (Commission) an application to resolve a dispute seeking determination of the appellant’s claim for compensation for permanent impairment and also determination of a claim she had made for weekly payments of compensation for the period beyond 4 October 2023.
The matter was referred to a member of the Commission, namely Mr John Isaksen, who, with the consent of the parties, directed on 6 February 2024 that the matter be remitted to the President of the Commission so that the appellant’s claim relating to compensation for permanent impairment could be referred to a Medical Assessor to assess the degree of her permanent impairment from her psychological injury. Consistent with that direction a delegate of the President of the Commission referred on 13 February 2024 a medical dispute to the Medical Assessor that was defined in the form of referral in the following terms:
“ the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 20 March 2019 (deemed)
Body part/s referred: Psychiatric and psychological disorders
Method of assessment: Whole Person Impairment”
The Medical Assessor examined the appellant on 4 April 2024 for the purpose of assessing those medical disputes. In the MAC he issued on 12 April 2024 he certified that the appellant’s impairment is permanent and that the degree of her permanent impairment is fully ascertainable. He also indicated that he had assessed the degree of the appellant’s permanent impairment by reference to the psychological impairment rating scale (PIRS). He certified that, based on that scale, he assessed the degree of the appellant’s permanent impairment was 15% WPI.
No issue has been raised in the appellant’s appeal against the medical assessment regarding the matters in the preceding paragraph.
The Medical Assessor also identified the appellant had a pre-existing condition in the form of a persistent depressive disorder. He said that that “pre-existing illness made [the appellant] vulnerable to experiencing a psychological injury”. The Medical Assessor made a deduction under s 323(1) of the 1998 Act on account of that. He assumed in accordance with s 323(2) of the 1998 Act that that deduction was 10%.
The issues that the appellant has raised in her appeal against the MAC relate to the Medical Assessor’s finding that she suffered a pre-existing illness that contributed to the degree of her permanent impairment from her injury.
The relevant clinical history that the Medical Assessor obtained and detailed in the MAC regarding that included that the appellant had previously seen a psychologist on multiple occasions and that the appellant had received short-term psychotropic treatment under the care of psychiatrist 20 years ago. The Medical Assessor indicated that the appellant was not able to provide him with much detail regarding this.
The Medical Assessor certified that he assessed the degree of the appellant’s permanent impairment from her injury was 14% WPI, upon making a deduction under s 323(1) 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 that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the information before the Appeal Panel is sufficient for it to determine the appeal.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions to provide a summary of them, they are that the Medical Assessor did not disclose his reasoning for his conclusion that she suffered from a pre-existing persistent depressive disorder. The appellant submitted that at the time she suffered her employment injury she was not being treated for any psychological condition. The appellant submitted that there is no evidence that she has a pre-existing depressive disorder. The appellant submitted that there was no evidence that any proportion of her impairment from her injury is due to any pre-existing condition.
Paraphrasing the respondent’s submissions, they are that the history the Medical Assessor obtained was sufficient to enable him to reach the conclusion that he did. The respondent noted that this history included the appellant suffering pre-existing illness for which she had sought treatment from mental health practitioners.
The respondent submitted that the fact that the evidence before the Medical Assessor did not contain medical records detailing the appellant’s prior psychiatric illness supported the Medical Assessor assuming, in accordance with s 323(2) of the 1998 Act, that the deduction to be made under s 323(1) of the 1998 Act was 10%.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] the Court of Appeal held that the Appeal Panel is obliged to give reasons.
[1] [2006] NSWCA 284 (Vegan).
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning.[2]
[2] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[26]; Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320 (Wills) at [73]-[74].
The task of ascertaining the Medical Assessor’s reasons requires the MAC to be read as whole, but not with an eye fine tuned for error.[3] The reasons do not necessarily need to be comprehensible to a person with no medical expertise. In a circumstance where an assessment or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it, a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.[4]
[3] Wills at [73].
[4] Vegan at [122]; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34].
The Appeal Panel considers that when the MAC is read as a whole, the Medical Assessor has exposed his reasons for concluding the appellant had a pre-existing illness in the form of a persistent depressive disorder. Whilst the Medical Assessor was not able to elicit much by way of specific detail directly from the appellant regarding her prior psychiatric, he was nevertheless able to ascertain from her that she had been under the care of a psychiatrist 20 years ago at which time she had received short-term psychotropic treatment, and that subsequent to that she had seen a psychologist for relationship issues. The Medical Assessor noted that both Dr Young and Dr Paisley had highlighted in their respective reports that the appellant had a history of mental illness before 2019 requiring her to seek input from mental health professionals.
The Appeal Panel notes that the history that Dr Paisley obtained and set out in her report of 14 November 2022 was that the appellant suffered from anorexia in her 30s, which would have been around 2005, and saw a psychiatrist at the Northside Clinic. Dr Paisley noted the appellant responded well to treatment. Dr Paisley also obtained a history of the appellant experiencing symptoms of anxiety and depression following the ending of a relationship approximately 10 years before her consultation with the appellant. That would have been around 2012. Dr Paisley noted that the appellant did not receive any psychiatric treatment and made a full recovery.
The history Dr Young obtained included the appellant having two periods of psychological distress between 6 and 10 years apart following relationship break ups which involved the appellant experiencing acute feelings of grief and loss associated with decreased appetite and weight loss. The history Dr Young also obtained included that the appellant was admitted to the Northside Clinic where she underwent a two week inpatient program which resulted in an improvement of her mood.
The Medical Assessor’s conclusion that the appellant had a pre-existing illness of persistent depressive disorder was based on the histories Dr Paisley and Dr Young obtained and the brief but imprecise details he obtained directly from the appellant. The fact the appellant had sought psychiatric treatment some time ago is uncontroversial, based on the evidence before the Medical Assessor and the information the Medical Assessor obtained from the appellant. Based on that evidence it was open to the Medical Assessor to make a diagnosis of persistent depressive disorder. As said, when the MAC is read as a whole his reasons for drawing that conclusion was sufficient, at least to a medical practitioner. His conclusion, given the evidence that the Medical Assessor drew upon to reach it, is not medically controversial and hence the Medical Assessor’s reasons for it, although brief, were sufficient.
Simply put, there is no error in the Medical Assessor’s conclusion that the appellant had a pre-existing persistent depressive disorder at the time she suffered her work injury.
The Appeal Panel agrees with the appellant’s submission to the effect that the evidence does not demonstrate that her pre-existing condition contributes to the permanent impairment the Medical Assessor assessed she had from her injury at the time of the assessment. The fact that her illness made her more vulnerable to suffering injury is beside the point. What the Medical Assessor was required to do was to determine whether any permanent impairment he assessed the appellant had at the time of assessment was due to her pre-existing injury.
The evidence indicates that the matters that precipitated her persistent depressive disorder occurred several years before her work injury and that her illness was not affecting her function at the time she commenced her employment with the respondent. Whilst her pre-existing illness did make her vulnerable to suffering her work injury, and in that sense was a factor in the occurrence of her injury, the evidence does not in the Appeal Panel’s view indicate that it contributes a proportion of the appellant’s post injury impairment.[5] The Medical Assessor did not explain how the appellant’s pre-existing illness made up a portion of the permanent impairment he assessed she had from her injury. That is an error that amounts to a demonstrable error, which the Appeal Panel must correct.
[5] See Southwell v Qantas Airways Ltd [2024] NSWSC497 at [63] – [65].
The correction the Appeal Panel makes is to make no deduction under s 323(1) of the 1998 Act because the evidence does not substantiate that her pre-existing illness contributes to the permanent impairment she now has from her injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W9412/23 |
Applicant: | Samantha Myers |
Respondent: | Knet Technologies Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Aman Suman and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric and psychological disorders | 20/03/2019 | Chapter 11 | - | 15% | - | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
4
0