New Food Coatings Pty Ltd t/as Newly Weds Foods Australia v Jimenez
[2024] NSWPICMP 586
•20 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | New Food Coatings Pty Ltd t/as Newly Weds Foods Australia v Jimenez [2024] NSWPICMP 586 |
| APPELLANT: | New Food Coatings Pty Ltd t/as Newly Wed Foods Australia |
| RESPONDENT: | Amorsolo Jimenez |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 20 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred by not having regard to a psychological injury the appellant suffered following the injury that had been referred for assessment and in regards to which an award had been entered for the appellant; whether MA erred by not excluding from his assessment any impairment the respondent had from the subsequent injury; whether MA erred by not making a section 323 deduction for pre-existing condition; ; Held – the MA erred by not having regard to the subsequent injury but did not make an error by not making a section 323 deduction because there was no evidence the respondent had pre-existing condition; respondent was re-examined; re-examination found that respondent’s subsequent injury had no effect on his current function or impairment; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 May 2024 New Food Coatings Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Steven Yeates, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds for 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 employed Amorsolo Jimenez, the respondent, as a quality officer between August 2017 and 17 August 2022. The respondent alleged he suffered a psychiatric injury arising out of the course of his employment and on 5 June 2023 his solicitors wrote on his behalf to the insurer of the respondent advising it that he claimed compensation from it under s 66 of the Workers Compensation Act 1987 for permanent impairment from that injury that psychiatrist Dr Abdal Khan had assessed as 24% whole person impairment (WPI). In their correspondence to the insurer, the respondent’s solicitors provided a copy of a report of
Dr Khan dated 22 May 2023, in which Dr Khan had detailed his assessment and explained his reasons for it.In that report, Dr Khan detailed within the history he obtained relating to the respondent an interaction that Dr Khan said had occurred on 31 January 2019 between the respondent and another of the appellant’s employees that caused the respondent to feel intimidated. Further interactions between the two continued beyond 31 January 2019 on other shifts. Following the respondent alerting the appellant of this, the respondent was moved to an afternoon shift. Dr Khan noted that following this the respondent attended on his general practitioner who referred him for psychological treatment and that the respondent required a brief time off work.
Dr Khan also detailed in the history that the respondent and another of the appellant’s employees had an altercation on 29 April 2022 when that other employee blocked the respondent’s exit from the respondent’s premises by standing at the door and pushing the respondent away every time the respondent tried to reach the door handle. Dr Khan described how the respondent felt unsafe and became tearful and experienced acute symptoms of anxiety and panic. Dr Khan noted that the respondent ceased working on
25 May 2022. Dr Khan also noted that the respondent’s employment was terminated on
17 August 2022.Dr Khan expressed his opinion in his report that the respondent developed “a trauma and stressor related disorder” due to what occurred on 31 January 2019 and that “the incidents that occurred after 31 January 2019 were an aggravation, acceleration, exacerbation and deterioration of the original injury that occurred on 31 January 2019”.
The Appeal Panel notes at this juncture that Dr Khan was asked to assume that the incident in which the respondent felt intimidated by another employee occurred on 31 January 2019. The material before the Appeal Panel indicates that the parties agree that this in fact occurred on 31 August 2019.
Dr Khan had also been asked by the respondent’s solicitors to “provide any relevant commentary regarding the report of Dr Alexey Sidorov dated 17 October 2022”. Dr Sidorov is a psychiatrist who examined the respondent at the request of the insurer. Dr Sidorov had detailed a history in his report of the respondent experiencing “psychological distress in the context of alleged workplace bullying that started in 2019”. Dr Sidorov noted that the respondent had seen a psychologist for some time and he had taken two weeks leave from his work and presented at Blacktown Hospital with anxiety and associated palpitations.
Dr Sidorov also noted that on 29 April 2022 the respondent was prevented from passing through a door by a fellow employee with whom the respondent had experienced issues in the past. Dr Sidorov noted that the respondent did not sleep well for the whole of the weekend subsequent to that incident. Dr Sidorov noted that the respondent reported the incident to a human resources manager who investigated the matter. Dr Sidorov noted that the respondent continued to work until the completion of the investigation but experienced significant anxiety when he encountered his fellow employees within that period and that he felt harassed by them. Dr Sidorov noted that the respondent was transferred to day shift which he was unable to do due to family commitments and which he refused to work.
Dr Sidorov also noted in his report that the respondent’s employment was terminated on
7 August 2022.Dr Sidorov considered the respondent met the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood.
The insurer had asked Dr Sidorov what diagnosis he would provide for the respondent’s “psychological injury from the incident on 31/08/2019” to which Dr Sidorov answered that was “unclear” because he did not assess the respondent at that time and there was no documented psychiatric assessments from that time. Dr Sidorov was also asked what diagnosis he would provide for the respondent’s “psychological injury from the incident on 29/04/2022”, in response to which Dr Sidorov advised that the respondent described experiencing anxiety symptoms but he considered there was no clear evidence that he developed a psychiatric disorder at that time.
Dr Sidorov was also asked what diagnosis he would provide for the “respondent’s psychological injury from the incident on 17/08/2022”. Dr Sidorov answered that the respondent developed symptoms of an adjustment disorder with a mixed anxiety and depressed mood after that incident, that is “the date of termination of his employment”. He subsequently advised in his report that the respondent’s “adjustment disorder has developed wholly or predominantly due to the termination of his employment on 17 August 2022”.
As said, Dr Khan was asked to provide “relevant commentary” on Dr Sidorov’s report.
Dr Khan’s commentary included that “Dr Sidorov obtained a similar history regarding causation and diagnosed [the respondent] with the adjustment disorder with mixed anxiety and depressed mood”. Dr Khan disagreed with that diagnosis and repeated his diagnosis that the respondent had post-traumatic stress disorder with major depressive disorder.
Dr Khan also noted that Dr Sidorov considered the respondent’s “psychiatric condition to have been caused by the termination of his employment”. With respect to that Dr Khan said that was “not consistent with the temporality of events where it is evident that [the respondent] had ceased employment on 25 May 2022 due to his deteriorating mental state in the context of traumatic workplace experiences from early 2022”.Dr Khan was also asked to provide his opinion on a matter the insurer had raised in a declinature notice it issued the respondent in March 2023. That matter was an alternative basis on which the insurer, specifically a circumstance in which if the respondent’s psychological injury was to be characterised as a disease process of gradual onset, then the insurer contended the medical evidence did not support that the respondent’s employment was the main contributing factor to the contraction of that disease. Dr Khan disagreed with the insurer’s contention and, in substance, repeated that the respondent’s mental state first deteriorated because of the incident in early 2019 and in early 2022.
The Appeal Panel notes too that Dr Khan obtained a history that the respondent prior to the incident that Dr Khan described as having occurred on 31 January 2019, did not have “any pre-existing past psychiatric history”. Dr Sidorov in his report did not describe within the history he obtained the respondent having any psychiatric illness prior to the incident in 2019.
Following the respondent making his claim for compensation, by means of his solicitor’s correspondence of 5 June 2023 to the appellant’s insurer, the insurer’s solicitor arranged for the respondent to be examined on 6 September 2023 by a forensic and general psychiatrist Dr Kirsty MacDonald. In a report of that date, the title to which included a claim reference number of 3994290, Dr MacDonald advised the insurer’s solicitor that the respondent appeared to meet the criteria for a diagnosis of “Major Depressive Disorder (single episode) (subsequently referred to as Major Depressive Episode)” at least from March 2022. She said that the respondent did not appear to have been symptom-free since 2022 although the severity of his symptoms varied over time. Dr MacDonald advised that “on the balance of probabilities I believe that the incidents at work with his co-workers (in 2019) were the genesis off his condition”. She advised there was a significant worsening of his symptoms in 2022 “which might be related to the termination of his employment also playing a role”. She advised that she was “inclined to agree that although he had symptoms from 2019, the symptoms were significantly milder”. She said “it appears his employment termination has been the main reason for significant worsening of his symptoms”. She later said that she believed the respondent’s symptoms “became severe in 2022 secondary to his employment being termination [sic]”. She concluded that the “termination of his employment was likely the major causal factor”.
On 19 October 2023 the insurer issued the respondent two declinature notices under s 78 of the 1998 Act. One bore the claim reference number 3994290. In that the insurer detailed that the claim to which the notice related was an injury of “major depressive disorder, single episode, unspecified” that occurred on 31 August 2019. The insurer advised the respondent that it denied liability to pay the respondent compensation for his claim relating to that injury. It advised its reason for denying liability was that it did not agree the respondent had suffered a psychological injury or that his injury arose out of his employment or, if it did, that his employment was a substantial contributing factor to his injury. As indicated earlier, it also advised the respondent that if his injury was to be characterised as a disease then his employment was not a major contributing factor to the contraction of that disease. It referred to the report of Dr Sidorov dated 7 October 2022 noting that “Dr Sidorov considered the diagnosis and substantial contributing factor of your alleged injury is unclear”. It indicated that it relied upon that opinion of Dr Sidorov to conclude that the respondent did not sustain a psychological injury from his employment with the appellant.
The insurer in the second declinature notice it issued on 19 October 2023 detailed that it related to claim reference number 5025457 for a psychological injury that occurred on
17 August 2022. The insurer advised that it disputed the respondent was entitled to compensation for that injury. It advised the respondent that its reason for that was that his injury was wholly or predominantly caused by reasonable action taken by the appellant with respect to “dismissal and/or the provision of employment benefits (being the continuation of your employment)”. It further advised that:“The evidence demonstrated that the termination of your employment and the actions taken or proposed to be taken in relation to your termination were reasonable having regard to your inability to meet the inherent requirements of your role. The evidence also demonstrated that the actions taken or proposed to be taken in relation to your termination were undertaken in a reasonable manner.”
In that declinature notice the insurer referred to the report of Dr MacDonald dated
11 October 2023 in which she said that the respondent had experienced stress reactions, mood and anxiety symptoms secondary to workplace incidents in August 2019 that were worsened and were aggravated by the termination of his employment in August 2022. It then said that it remained “of the view that the whole or predominant cause of your reported injury on 17 August 2022 was a result of reasonable action taken by your employer in relation to dismissal and/or provision of employment benefits (being the continuation of your employment)”. It further said that “this is particularly the case in circumstances where there is no evidence that you sustained an injury of any kind as a result of your alleged interactions with Mr Nguyen”.On 17 January 2024 the respondent’s solicitors filed with the Personal Injury Commission (Commission) an Application to Resolve a Dispute seeking determination by the Commission of the respondent’s claim for compensation. Within the application the respondent described the injury to which his claim related in the following terms:
“Whilst in the course of his ordinary employment, the applicant was subjected to bullying and harassment perpetrated by his colleagues throughout the period of 2019 to approximately 25 May 2022”.
As a result of the above, the applicant has developed a significant psychological injury, diagnosed as post-traumatic stress disorder and major depressive disorder”.
The Commission referred the matter to one of its members, namely Mr Anthony Scarcella, who on 21 February 2024, with the consent of the parties, made the following determinations and notations that were recorded in a certificate determination issued on that date:
“By and with the consent of the parties, the Commission determines:
1. Leave is granted to the applicant to amend the Application to Resolve a Dispute by also pleading a date of injury of 17 August 2022.
2. Award for the applicant in relation to the date of injury of 31 August 2019 in respect of liability (claim number 3994290).
3. Award for the respondent for weekly benefits and medical expenses in relation to the date of injury of 31 August 2019.
4. Award for the respondent in relation to the date of injury of 17 August 2022 (claim number 5025457).
5. The matter is remitted to the President for referral to a Medical Assessor under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) Date of injury: 31 August 2019 (deemed) – disease.
(b) Body systems: psychological/psychiatric disorder.
(c) Method of assessment: whole person impairment.
6. The documents to be reviewed by the Medical Assessor are:
(a) Application to Resolve a Dispute dated 17 January 2024 and attached
documents, and
(b) Reply dated 8 February 2024 and attached documents.
Notations
The following is not a determination of the Commission. However, I note that the parties have agreed:
A. The parties acknowledge that the injury arising from the date of injury on 17 August 2022 was the result of reasonable action taken, or proposed to be taken, by the respondent in relation to dismissal and/or provision of employment benefits within the meaning of s11A(1) of the Workers Compensation Act 1987.
B. The Medical Assessor is to consider the issue of what apportionment, if any, is appropriate for any assessed permanent impairment between the injuries sustained on 31 August 2019 and 17 August 2022.”
A delegate of the President of the Commission duly issued a referral to the Medical Assessor on 28 February 2024. That delegate transcribed within that referral the notations that Member Scarcella made with respect to the consent determinations as recorded in the Certificate of Determination. As mentioned at the outset, the Medical Assessor issued the MAC on 9 April 2024, having examined the respondent on 11 March 2024 so as to conduct the assessment of the medical disputes that had been referred to him.
MEDICAL ASSESSMENT CERTIFICATE
The parties’ submissions are summarised below but at this juncture the Appeal Panel notes the issues that the appellant raised in its appeal against the medical assessment relates to, firstly, whether the Medical Assessor included in his assessment of the respondent’s permanent impairment from the referred injury any impairment relating to the injury of
17 August 2022 and, secondly, whether the Medical Assessor ought to have made a deduction under s 323(1) of the 1998 Act for a proportion of the respondent’s permanent impairment due to a pre-existing condition or abnormality or previous injury.With respect to those matters, the Appeal Panel notes that under a subheading in the MAC “details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor detailed the following history he obtained:
“Mr Jimenez gave no history of other mental health symptoms or conditions. However, the history lacked detail. Most of his history was superficially addressed with significant gaps when pressed for more detail. For example, contemporaneously with his feelings of bullying and persecution, Mr Jimenez was caring for his sick and elderly mother, with whom he had resided long term. Still, he elaborated very little on his relationship with her or the effect of her passing. He could not, for example, recall when he was married for five years, instead superficially dismissing my inquiries as “years ago.” As such, the presence of previous conditions is unclear, although there is no firm evidence of a mental health diagnosis.”
The Appeal Panel observes that nowhere within the MAC did the Medical Assessor provide any detail relating to any psychiatric symptoms the respondent experienced following the termination of his employment with the appellant.
The Appeal Panel further notes that notwithstanding the Medical Assessor had detailed that he obtained no history of the respondent having suffered mental health symptoms or conditions prior to his work injury of 31 August 2019 and that there was no evidence of a mental health diagnosis before that date, and notwithstanding the Medical Assessor had also said at Part 8e of the MAC that no proportion of the respondent’s permanent impairment was due to a previously pre-existing condition or abnormality, the Medical Assessor nevertheless recorded at Part 10b of the MAC that “I have deducted 2/10th for pre-existing conditions of major depressive disorder and alcohol use disorder, arriving at the final WPI of 19%”.
The Medical Assessor assessed the respondent’s permanent impairment was 19% WPI. That was done by reference Psychiatric Impairment Rating Scale (PIRS). Neither party has challenged the correctness of that. The Medical assessor in Table 2 attached to the MAC certified that was the respondent’s degree of permanent impairment from the injury that had been referred to him for assessment. In other words, notwithstanding that the Medical Assessor had expressed within Part 10b of the MAC that he had made a deduction of 2/10th for pre-existing condition of major depressive disorder and alcohol use disorder, he in fact made no deduction.
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 the respondent should undergo a further medical examination. This is because the Appeal Panel found, for reasons explained below, the MAC contained a demonstrable error and that in order to be able to correct that error the Appeal Panel would need further clinical data from the respondent.
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 referral to the Medical Assessor specifically identified the respondent had suffered two psychological injuries, one in 2019 and the other in 2022. The appellant submitted that the Medical Assessor did not obtain a history relating to the respondent’s termination of his employment and its apparent effect on his psychological symptoms. The appellant noted the Medical Assessor did not refer to any medical evidence relating to that event.
The appellant submitted that the Medical Assessor failed to give consideration to the respondent’s psychological injury that occurred in 2022, which the appellant submitted the Medical Assessor was directed to do in accordance with the notation that was made in the Certificate of Determination, which direction had also been recorded in the referral to the Medical Assessor. The appellant submitted that the Medical Assessor’s failure to do that amounts to a demonstrable error in the MAC.
The appellant further submitted that the Medical Assessor’s failure to do that results in his assessment of the respondent’s permanent impairment being based on incorrect criteria because that failure meant he gave no consideration to a potential deduction with respect to the separate subsequent psychological injury.
The appellant observed that within paragraph 10b of the MAC the Medical Assessor said that he had deducted 2/10th for pre-existing conditions of major depressive disorder and alcohol use disorder. The appellant highlighted that on the final page of the MAC, which the Appeal Panel notes is Table 2 wherein the Medical Assessor tabulates his or her assessment, the Medical Assessor applied no deduction. The appellant submitted that the Medical Assessor having concluded that a deduction ought to be applied, it was incumbent upon him to apply that deduction to the final assessment of the respondent’s whole person impairment. The appellant submitted that the Medical Assessor’s failure to apply that deduction constitutes a demonstrable error.
Paraphrasing the respondent’s submissions in reply, also to provide a summary of them, they are that the Medical Assessor was not bound to accept the notations in the referral to him. The respondent submitted that it would have been “beyond the statutory powers” of the Medical Assessor to apportion any assessed permanent impairment between the injuries of 31 August 2019 and 17 August 2022 and further, it would have been inappropriate for the Medical Assessor to have done so. The respondent submitted that it was not incumbent on the Medical Assessor to assess impairment resulting from the second of the psychological injuries, absent a referral to him to do so simply because the parties mistakenly thought that a Medical Assessor could do so.
The respondent submitted that it is implicit in the referral and also from the appellant’s submissions in support of its appeal against the medical assessment, that the injury of
17 August 2022 is distinct from the injury of 13 August 2019 and that in accordance with sub-section 322(2) and sub-section 322(3) of the 1998 Act the Medical Assessor had no power to assess the combined effects of the two injuries, and that pursuant to s 322(1) of the 1998 Act was to assess only the degree of permanent impairment resulting from the injury of
31 August 2019.The respondent accepted “the uncontested assessment of 19% made by the Medical Assessor and concedes that after a deduction of 2/10th the assessment ought to be 15%”.
During its preliminary review of this matter the Appeal Panel came to the view that it would benefit from the parties making further submissions relating to the issue the appellant raised in its appeal regarding s 323(1) of the 1998 Act. To that end, the Commission subsequently directed the parties to provide further written submissions on the following matters:
“a. What evidence is there that supports a finding that the respondent had a preexisting condition or abnormality or had suffered a previous injury;
b. Is it open to the Appeal Panel to find that the respondent did not have a pre-existing condition or abnormality or had not suffered a previous injury;
c. Assuming that the Appeal Panel finds that it is open to it to find that the respondent did not have a pre-existing condition or abnormality or had not suffered a previous injury, and assuming too that the Appeal Panel finds that the respondent did not have a pre-existing condition or abnormality and had not suffered a previous injury, is it open to the Appeal Panel to find that the Medical Assessor did not make an error by not making a deduction under s323(1), noting that both parties’ in their respective submissions have contended the Medical Assessor did err by not making a deduction under s323(1).”
Both parties abided that direction. The appellant submissions in response to it, again paraphrasing them, are that it is unclear whether there is any evidence that the respondent had a pre-existing condition or abnormality or had suffered a previous injury, but, notwithstanding that, it is not open to the Appeal Panel to make a finding that the respondent did not have a pre-existing condition or abnormality or had suffered a previous injury because the Medical Assessor was of the view that he did and that issue was not appealed by the respondent. The appellant submitted that the Appeal Panel consequently does not have jurisdiction to deal with the matter.
Further, even if the Appeal Panel did make a finding that there was no evidence of a pre-existing condition or abnormality or that the respondent had not suffered a previous injury the Appeal Panel cannot find that the Medical Assessor did not make an error by not making a deduction under s 323(1) because both parties had contended that the Medical Assessor did make an error.
The respondent submitted that there is no evidence that he had a pre-existing condition before 31 August 2019. The respondent submitted that the appellant did not allege he had a condition or abnormality pre-existing his injury of 31 August 2019.
The respondent submitted it was open to the Appeal Panel to find that he did not have a pre-existing condition or not suffered a previous injury.
The respondent submitted that his submissions in reply to the appellant’s primary submissions, in which the respondent conceded that the Medical Assessor ought to made a 2/10th deduction for pre-existing conditions, are not to be read as the Medical Assessor erred by not making a deduction, but rather the Medical Assessor failed to provide reasons for saying “he did make a deduction of 2/10th for pre-existing conditions, especially when it appears he did not do so”.
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.
The Certificate of Determination the Commission issued on 21 February 2024 recording the determinations and notations that Member Scarcella made with the consent of the parties makes clear that the respondent suffered a psychological injury on 17 August 2022 and that he is not entitled to compensation for that injury, including permanent impairment resulting from that injury. Indeed, an estoppel arises by virtue of the consent determination by which an award was made for the respondent relating to the injury of 17 August 2022, that prevents the respondent from asserting an entitlement to compensation from that injury. Consequently, the permanent impairment of the respondent from his injury on
31 August 2019, as at the date the date the Medical Assessor assessed that, could not include any permanent impairment of the respondent that arose from his injury of17 August 2022.[1][1] Wright v State of New South Wales [2024] NSWCA 77 (Wright) at [71] – [80]
It is also apparent from Notation A of the Certificate of Determination that the psychological injury the respondent suffered on 17 August 2022, when read in context with the s 78 declinature notice that the insurer issued on 19 October 2023 for claim reference number 5025457, that this injury of the respondent was precipitated by his employment being terminated on 17 August 2022. The insurer contended that his employment was terminated because the respondent was unable to meet the inherent requirements of his job and the appellant’s action in terminating his employment was reasonable. Notation A of the Certificate of Determination indicates that the respondent now accepts that is the case.
As the appellant submitted, the MAC is silent on that injury. The Medical Assessor failed to obtain a history relating to it. He failed to indicate whether that injury did or did not have any effect on the respondent’s functioning. That is, the Medical Assessor did not within the reasoning he exposed in the MAC for his assessment of the respondent’s permanent impairment from the respondent’s injury of 31 August 2019 detail whether the respondent had been impaired from his subsequent injury on 17 August 2022. That was relevant because, consistent with Wright, if the respondent had any permanent impairment from that injury, then that could not form part of the degree of the respondent’s permanent impairment from his injury on 31 August 2019.
The Medical Assessor’s failure to grapple with this issue amounts to a demonstrable error. The Appeal Panel consequently is required to correct that error. That is done by investigating the extent to which the respondent’s injury of 17 August 2022 impairs his function.
A consequence of the Medical Assessor not dealing with that matter at the time he assessed the degree of the respondent’s permanent impairment from the injury of 31 August 2019, is that there is no current clinical data relating to the matter. Consequently, the Appeal Panel needed to obtain that clinical data and to do that it directed the respondent be re-examined by one of its members, Medical Assessor Graham Blom, who is a psychiatrist. Medical Assessor Blom examined the respondent on 6 August 2024 and provided the Appeal Panel with the following report on his examination:
“The workers medical history, where it differs from previous records
Mr Jimenezo confirmed that he began working with Newly Weds Foods in 2017 as a Food Tester. He had no difficulty in his job until 2019 when he began to be bullied, harassed and physically threatenedby the maintenance technician, Mr Hamilton. He confirmed the history of bullying and harassment provided by the Medical Assessor. As a result of this he said that he began to experience a variety of anxiety-based psychological symptoms. In particular, he began to experience significant anxiety, sometimes bordering on panic when going to work and during his time at work. He became increasingly hypervigilant and began to experience repetitive heart palpitations. On one occasion he said that he experienced such a severe panic attack that he was advised by his general practitioner to attend the local hospital Emergency Department where he was admitted overnight. He experienced difficulties with sleep and began to experience some nightmares. He became tearful and said that he cried every night. His symptoms were made worse because he felt ‘abandoned’ by management. He was at some point during this process given two weeks sick leave by management and advised to attend a psychologist. He consulted a psychologist,
Ms Fiona Woods, on several occasions at this time.Eventually the situation at work was partially resolved when Mr Jimenez was transferred to the afternoon shift some months after his symptoms had begun. Despite the change of shifts he said however that when he had the opportunity, Mr Hamilton continued bullying him, especially at the end of shifts when they were both at work together. Moreover, Mr Jimenez felt that it was deeply unfair that his shift was transferred when as he put it he had done nothing wrong. Because of these problems, for a considerable time there was little improvement in his symptoms. Eventually Mr Hamilton was dismissed from his position, for incidents unrelated to Mr Jimenez, and this resulted in some overall improvement in his symptomatology. Nevertheless, he said that he remained anxious at work, hypervigilant and continued to have nightmares and sleep disturbance. From late 2019, when the first incident occurred, Mr Jimenez continued to have symptoms of anxiety and some depressive symptoms which never completely resolved. He was very clear about this in the history, and this generally appears to be confirmed by the documentation.
In April 2022, Mr Jimenez again experienced an episode of harassment by another worker, Mr Nygun. Again, the basics of the injury are outlined in the original Medical Certificate, although Mr Jimenez was clear that there were multiple episodes where
Mr Nygun was bullying, threatening and physically intimidating, rather than the couple of incidents described in the Certificate. As a result of these experiences, Mr Jimenez had a substantial exacerbation of the symptoms that had first begun in 2019. He said he became extraordinarily anxious and panicky. On one occasion his panic was so severe that an ambulance had to be called to his workplace although he was not required to be transferred to hospital. Mr Jimenez said that he was generally feeling overwhelmed and became repetitively and uncontrollably tearful. He had a marked increase in the frequency and severity of his nightmares as well as substantial disturbance in his overall sleep. He struggled to think clearly and felt “confused” with difficulties in memory and focus. He became increasingly withdrawn and avoidant because, he said he no longer trusted people at all, and as well, felt amotivated and lacking in energy. His symptoms were such that eventually he felt unable to cope with the workplace and so left work on sick leave in late May. He never returned to work. Despite being off work however, he said that there was little improvement in his symptomatology. He attended a psychologist and also a psychiatrist, first consulting his psychiatrist Dr. Manambrakkat in July 2022 – that is prior to his eventual dismissal from his workplace. He said that Dr. Manambrakkat advised him that he should never return to work and it was this advice that led to his eventual termination.During the period May through to August 2022 he consulted his psychologist on a regular basis and was trialled on various antidepressants, sedatives and latterly beta-blockers, to assist with his nightmares and palpitations, by his psychiatrist,
Dr. Manambrakkat. Despite this he said that there was only very limited improvement in his symptoms and at the time of his termination from work he continued to experience a broad range of symptoms as described above.Following his termination from work, he said that there was no particular deterioration in his symptomatology – this was consistent with the documentation, generally, his overall history and his current presentation. He was clear that he felt unable to return to work because of the trust issues that he felt about his workplace as well as his ongoing fear, that he continues to experience, that he would be attacked in some way. He said that he never felt safe even approaching the building in which his workplace was situated. He also stated that following his termination he was advised by his general practitioner to consult a solicitor about the legality of the termination. As a result of the solicitors intervention, he said that he was offered reinstatement by his previous employer but then refused it as he felt completely unable to return to work.
Since the time of his termination, that is over the past two years, there has only been modest improvement in his overall symptomatology, primarily related it would appear, to the psychological and psychiatric treatment that he has continued to seek. He has had a variety of trials of medications of different classes and these have helped to some degree in somewhat improving his sleep, reducing his nightmares and assisting his overall depression and anxiety. Nevertheless during this time he said that he has continued to feel depressed, hopeless, overwhelmed and a burden to his family. He said that he has repetitive suicidal ideation and that on one occasion he actually obtained a rope in order to hang himself but was prevented from carrying this out by the intervention of his nephew. He also continues to experience anxiety and panicky feelings although does not have full-blown panic attacks.
Current Symptoms.
Mr Jimenez complained repetitively about his loss of trust in people and how withdrawn and avoidant he has become. He continues to experience regular anxiety and panicky feelings although now does not have panic attacks very often. He did comment on how anxious he had been about this interview and the necessity of dealing with a new person. He said that he is able to control his panic now using various grounding and breathing exercises that he has learned.
He continues to have nightmares although less frequently than before, occurring now approximately twice/week. Nevertheless, his sleep remains disturbed even on nights when he does not have nightmares.
He is regularly tearful and generally feels down, with prominent feelings of hopelessness and despair. He continues to have occasional suicidal thoughts, although has not acted on them beside the above-described incident. He has very limited capacity for pleasure and an overall reduction in his capacity to focus and concentrate. He described often feeling confused in his mind especially when agitated. He described feeling regularly fatigued and struggling with motivation. His appetite is low although overall his weight has not changed dramatically because he says that his nephew encourages him to continue eating.
He denies using alcohol at all and does not smoke tobacco.
Current Treatment.
He continues to consult his psychiatrist Dr. Manambrakkat on a monthly basis. His current medications are:
– haloperidol – 1 mg/night
– venlafaxine – 150 mg/day
– Prazosin – 7 mg/night
– mirtazapine – 30 mg/night
– temazepam – 10 mg as required at night.
He currently is consulting both a counsellor and psychologist, he said. He sees the counsellor on a weekly basis, for I gather, assistance in utilising various grounding and breathing techniques. He also consults a psychologist every fortnight for overall management of his psychological disorder.
He has not been hospitalised since leaving work.
Previous History.
I specifically enquired in some detail as to any pre-existing psychiatric or psychological disorder prior to the original injury in 2019. Mr Jimenez was very clear that he had not had any prior psychiatric or psychological disorder, nor had he sought treatment from either a psychologist or a psychiatrist. Regarding the specific issues of alcohol abuse, raised in the Medical Certificate, he denied ever drinking heavily, let alone having an abuse disorder, and said in fact that he has always been a very light and infrequent drinker of alcohol. He also specifically denied ever having previously experienced an episode of depression. I note that there is no mention in any of the documentation of a pre-existing disorder, except for the one mention by the MA in his explanation of calculations in Section 10, Reasons for Assessment.
Additional history since the original Medical Assessment Certificate was performed
There has been no significant changes in either Mr Jimenez’s level of symptomatology, or his impairment since the time of the previous Medical Assessment. There also has been no substantial changes in his circumstances.
Findings on clinical examination
Mr Jimenez was seen via the Teams App. He had no difficulty managing the application and I was able to undertake a satisfactory examination. Mr Jimenez was accompanied by his brother in the interview, although he was not ‘in shot’ throughout and at no time intervened.
Mr Jimenez presented as a very emotionally labile man, who had great difficulty managing his affect which consisted primarily of tearfulness and anxiety.
He presented as approximately his stated age and was dressed casually, cleanly and neatly, as far as I could see, in a jacket and shirt.
As mentioned, he was tearful on a frequent basis, anxious and had a somewhat histrionic style, although he was relatively easily calmed by encouragement to undertake breathing exercises which appeared to have a remarkably settling effect on him. It was clear that he was quite distressed, and he appeared depressed and anxious. He occasionally expressed suicidal ideation, although I did not believe that he was at imminent risk of acting on this.
There was no evidence of psychosis, in particular there was no evidence of delusions, hallucinations or formal thought disorder.
He appeared to be generally an honest witness who attempted to engage actively with the interview within his emotional limits.
There was no evidence of organic cognitive impairment. He was able to present his history reasonably accurately and thoroughly and could acknowledge areas where his memory failed him. I noted that the MA raised the issue of a possible organic cognitive disorder, while I did not test for this formally, there was no evidence to suggest this in the interview which lasted just under one hour
Results of any additional investigations since the original Medical Assessment Certificate
There were no additional investigations.
Signed: Dr Graham Blom.”
The Appeal Panel considers that Medical Assessor Blom has conducted a thorough examination of the respondent and obtained a detailed history relating to all relevant issues. The Appeal Panel accepts the history Medical Assessor Blom obtained, his descriptions of the respondent’s current symptoms, his findings regarding the respondent’s current treatment, his history relating to the respondent’s pre-existing psychiatric and psychological disorder and his findings from his clinical examination.[2]
[2] Coco-Cola Euro-Pacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88]
Based on Medical Assessor Blom’s report, the Appeal Panel finds that the respondent’s termination from his employment and the respondent’s consequent, and accepted, psychological injury from that has only had the most minimal impact on this current functioning. The Appeal Panel finds based on the respondent’s presentation to Medical Assessor Blom and the history Medical Assessor Blom obtained that the incident in which the respondent was involved in 2019 with a fellow employee of the appellant initiated a chronic psychiatric illness. That illness was exacerbated significantly by the subsequent interaction in April 2022 with another employee of the appellant whereby that employee prevented the respondent from leaving the appellant’s premises. That later incident is separate from the respondent’s employment being terminated.
Given that, the Appeal Panel finds that the respondent has no permanent impairment from the injury of 17 August 2022 consequent upon the termination of his employment. The Appeal Panel finds that all of the respondent’s current permanent impairment relates to the incident in August 2019 and April 2022. Insofar as the incident in April 2022 exacerbated and worsened the respondent’s symptoms and function, that is to be treated as falling in the second of the three categories of circumstance identified in State Government Insurance Commission v Oakley[3], that is that the incident resulted in a worsening of the respondent’s symptoms from the psychiatric illness that was precipitated by the incident in August 2019 and which was chronic. The principles of common law relating to causation are to be applied in workers’ compensation cases and hence the respondent’s permanent impairment insofar as it relates to the incident in April 2022 is to be treated as resulting from his injury on 31 August 2019.[4]
[3] (1990) 10MVR 570; [1990] Aust Torts reports 81 - 003
[4] Secretary, New South Wales, Department of Education v Johnson [2019] NSWCA 321 at [53], [70] and [126]
With respect to the issue relating to s323(1) of the 1998 Act, the Appeal Panel does not accept the appellant’s submissions. There is no evidence whatsoever that the respondent had any psychiatric illness prior to the incident that occurred in his workplace in August 2019. In the Appeal Panel’s view the MAC, when read as a whole, does not indicate that the Medical Assessor found the respondent had a pre-existing condition or had suffered a previous injury. It would seem that the Medical Assessor’s reference in Part 10b of the MAC to the respondent having a pre-existing condition of major depressive disorder and alcohol use disorder reflects confusion on the part of the Medical Assessor. That is, when preparing the MAC, he has confused the respondent with another worker or with one of his patients. What the Medical Assessor said at Part 10b of the MAC contradicts the history that he obtained and detailed under the subheading “details of any previous or subsequent accidents, injuries or condition”.
In any event, assuming only for the sake of argument that the Medical Assessor did find that the respondent had a pre-existing condition (which finding would be incorrect because it conflicts with the evidence and also the history of the Medical Assessor obtained), then the Appeal Panel would reject what the appellant has contended that because the respondent has not separately appealed the medical assessment regarding that incorrect finding the Appeal Panel is unable to make a finding that the respondent does not have a pre-existing condition. The Appeal Panel’s rejection of that submission is based on the age-old logic of two wrongs do not make a right. In other words, the Appeal Panel has no power to correct an error by making an error.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 May 2024 should be confirmed.
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