New Horizons Enterprises Ltd v Lindsay
[2024] NSWPICMP 483
•18 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | New Horizons Enterprises Ltd v Lindsay [2024] NSWPICMP 483 |
| APPELLANT: | New Horizons Enterprises Limited |
| RESPONDENT: | Amanda Lindsay |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Professor Nick Glozier |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 18 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against finding of 15% whole person impairment for psychological injury; Medical Assessor (MA) applied the provisions of section 323(2) in assessing that a 1/10th deduction was appropriate in circumstances of significant prior psychological treatment; whether MA considered Application to Admit Late Documents containing clinical notes; whether MA erred in finding a class 3 rating pursuant to the psychiatric impairment rating scale (PIRS) for social and recreational activities, class 2 for social functioning and class 3 for concentration persistence and pace; Wingfoot Australia Partners Pty Ltd v Kocak, Cottom v Scone Race Club Ltd, Cole v Wenaline Pty Ltd and Ryder v Sundance Bakehouse Pty Ltd considered; Held – documentation in the Application to Admit Late Documents did no more than confirm the MA’s history regarding the worker's past psychological history; no error established regarding challenge to PIRS categories; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 January 2024 the appellant employer, New Horizons Enterprises Limited, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 December 2023.
The appellant employer 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, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 4 December 2023 an amended referral was made to the Medical Assessor seeking a WPI assessment of psychological and psychiatric disorders that were caused by injury on 30 October 2019 following consent orders being made within the Personal Injury Commission (Commission).
Ms Lindsay was employed as a disability support worker for the appellant employer, commencing there in 2016. She had a history of episodes of mental ill health requiring treatment, but on 30 October 2019 she was subjected to hostility and abuse from a co-worker over a period of two to three weeks until she was moved to work at another location again on 1 December 2019.[1] She experienced problems with anxiety, disturbed sleep and impaired functioning as a consequence of the psychological changes that resulted.
[1] Appeal papers page 54.
In January 2020 she was referred to a psychologist Mr Laverack and a treatment plan was instigated to try to get her back to full hours.[2]
[2] Appeal papers page 107.
In February 2020 she had a complete breakdown. She ceased work around that time and has not resumed employment.
The Medical Assessor assessed 15 % WPI being a baseline 17% less 1/10th 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 that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no error was established in the appeal.
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 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 assessment was carried out on 7 December 2023. The Medical Assessor acknowledged receipt of all documents that were listed in the referral from the Commission.
The Medical Assessor noted a previous history regarding Ms Lindsay’s mental health condition. At page 3 of the MAC, he said:
“Ms Lindsay confirmed that she had considerable problems with her mental health from the age of 16. She describes significant trauma at age 10 and believes that this was a factor in her mental health problems. She described herself as ‘a wild teenager’. She said that her main problem was with depression, and she acquired a diagnosis of bipolar affective disorder. She had several admissions in Wagga Wagga and was treated with medication for a long period of time. She said that in 2008 or 2009 she was treated with ECT on two occasions and this coincided with a marked and persistent improvement in her mental health. She said that she remained on medication following this though discontinued approximately two years ago. Ms Lindsay described her mental health as being generally stable and manageable for approximately 10 years until 2019. This is consistent with the account in Lisa Phillips’ report of January 2019”.
In his summary at [7], the Medical Assessor said:
“Ms Lindsay is a 53-year-old single woman. She has a history of significant mental health problems leading to multiple hospital admissions between the ages of 16 and 38 Though she acquired a diagnosis of bipolar affective disorder in the past it is more likely that she has a major depressive disorder. She has experienced a recurrence of this disorder in the context of an injury sustained in the workplace on 30 October 2019 which was initially an adjustment disorder with anxiety and depressed mood though progressed to a recurrence of major depressive disorder with anxious distress, recurrent, which has now become a persistent depressive disorder with anxious distress with persistent major depressive episode.”
(Emphasis as written.)
The Medical Assessor applied the provisions of s 323(2) in assessing that a 1/10th deduction was appropriate. At [11] of the MAC he said that Ms Lindsay suffered from a pre-existing Persistent Depressive Disorder (previously categorised as chronic Major Depressive Disorder). He said:
“(i) Ms Lindsay has had serious problems with her mental health in the past including multiple admissions to hospital between the ages of 16 and 38 years. For the 10 years until 2019 her mental health was relatively improved, though Ms Lindsay was referred to psychologist Lisa Phillips for assessment and treatment in January 2019. Ms Lindsay was experiencing a recurrence of mood and anxiety symptoms at that time, which appear to have improved in the early part of 2019 with a change in her workplace location.
Ms Lindsay describes recurrent difficulties in relationships in the workplace prior to the date of injury, and these are a likely consequence of her pre-existing mental disorder. She has longstanding difficulties with anxiety which would impair ability to function in a number of situations, particularly socially.
The nature of Major Depressive Disorder (or Persistent Depressive Disorder) is that it is a relapsing/remitting condition and Ms Lindsay will have been at increased risk of recurrence of a period of ill health in adverse circumstances of any type due to that pre-existing illness.”
The Medical Assessor set out his reasons for the class ratings he assessed within the Table 11.8 Psychiatric Impairment Rating Scale (PIRS) rating form.[3] The appellant employer challenged three of the PIRS categories, and the reasons given by the Medical Assessor for each assessment will be considered in our determination, below.
SUBMISSIONS
The appellant employer
[3] Appeal papers page 34.
The appellant employer listed four principal grounds of appeal.
Ground (a) – failure to refer to the appellant’s evidence
The appellant employer argued that the Medical Assessor had not addressed “all the evidence which was provided to him for review.” It referred to an Application to Admit Late Documents (ALD) dated 30 November 2023, the contents of which had been summarised by the appellant employer’s representative in a letter to Ms Lindsay’s representatives dated 24 November 2023. The summary contained “relevant excerpts in relation to the worker’s pre-existing psychological condition, and post injury non-work-related stressors.”
The previous diagnoses of borderline schizophrenia, bipolar affective disorder, endogenous depression and major depression were all highlighted in that letter, which also contained an observation that if the Medical Assessor failed to refer to those records or to provide reasoning for a deduction under s 323, then such failure “may support an appeal of the MAC.” This letter was the first document in the ALD.
The appellant employer referred to comments made by the Medical Assessor regarding Ms Lindsay’s previous mental disorders. It was noted, however, that the Medical Assessor had not referred to any of the clinical records listed in the late documents.
The appellant employer referred to a referral letter dated 19 August 2013 within the ALD which reported an acute situational crisis involving the suicide of Ms Lindsay’s mother, and that by 1 December 2015 Ms Lindsay’s psychological symptoms had not improved.
We were referred to the findings by the Medical Assessor that Ms Lindsay had long-standing difficulties which would impair her ability to function in several situations, particularly social. The appellant employer noted that the Medical Assessor had considered that the relapsing/remitting condition “would have been at increased risk of recurrence due to that pre-existing illness.” Notwithstanding, the appellant employer submitted, the Medical Assessor did not address why the extent of the deduction was difficult or costly to determine when applying the provisions of s 323 (2).
The Medical Assessor had failed to conduct the examination in accordance with the guidelines, it was submitted, in that he had not “properly” recorded the findings in the clinical records. His failure to explain why the extent of the deduction was difficult or costly to determine constituted error, the appellant employer said. A “proper examination records” by the Medical Assessor would have resulted in a finding that the deductible proportion was greater than 1/10th, it was argued. The Medical Assessor could have provided some “further clarity” had he addressed the contents of the ALD.
Ground (b)
The next ground relied on by the appellant employer related to the PIRS category of social and recreational activities, social functioning and concentration, persistence and pace (CPP).
Ground (b) (i) – Social and recreational activities
The appellant employer submitted that the class 3 rating by the Medical Assessor was excessive in “having regard to the definition of the classes.”
The appellant employer conceded that the classification was a matter for the clinical judgment and discretion of a Medical Assessor, but the class 3 rating was said to be “so inconsistent and inadequately explained” that the Medical Assessor had fallen into error.
The appellant employer kindly provided the PIRS classes as provided by chapter 11 of the Guides for the normal, mild and moderate (or class 1, 2 and 3) descriptors.
It was submitted that the findings by the Medical Assessor were indicative of a lower class rating.
The appellant employer submitted that the worker’s behaviour had shown her leaving her residence without a support person, being actively involved with her friends in Melbourne, and was currently residing in Maryborough with a friend she had met online. Moreover, the finding by the Medical Assessor that Ms Lindsay spent most of the time listening to music, watching YouTube videos or playing online games was not consistent with a finding that she remained quiet and withdrawn.
It was submitted that there was no basis for the Medical Assessor to find that Ms Linsday got less enjoyment from previously enjoyable activities because there was no other information as to what those previously activities had been.
A class 1 rating would have been more appropriate, it was submitted, when the evidence was looked at as a whole. The appellant employer submitted that “at the very maximum” at class 2 impairment should have been assessed.
The appellant employer put its remaining submissions as an alternative, should the class 3 rating not be disturbed.
Ground (b) (ii) – social functioning
The appellant employer submitted that the class 2 rating assessed by the Medical Assessor was excessive having regard to “the definition” of the classes, and we were again kindly provided with the descriptors for classes 1 and 2 in this category.
We were referred to the reasoning given by the Medical Assessor for making this impairment rating. The appellant employer acknowledged that there was some tension with Ms Lindsay’s daughter but submitted that Ms Lindsay was able to form new friendships and the appellant employer again referred to Ms Lindsay’s visit to her friend in Melbourne and her current residence with her friend in Maryborough. Ms Lindsay accordingly had no difficulty in forming and sustaining relationships, which was consistent with the descriptors for a class 1 rating.
The class 2 rating given because the relationship with Ms Linsday’s daughter was becoming strained, was misconceived because they were able to maintain their relationship and remain on speaking terms, it was argued.
It was submitted that the Medical Assessor had not provided adequate consideration to the evidence of Ms Linsday’s other relationships that were still intact.
Ground (b) (iii) – CPP
Again, the appellant employer set out the appropriate class descriptors for classes 1, 2 and 3. It submitted that the class 3 rating for this category also had been excessive.
The appellant employer submitted that it was “not clear” whether the online games referred to by the Medical Assessor involved complex tasks and instructions and it was suggested that he “could have” ascertained this history before assessing a moderate impairment.
The appellant employer also submitted that it was “not clear” of the extent to which Ms Lindsay was using cannabis and to what extent it contributed to the alleged lack of CPP.
The appellant employer submitted that, having regard to the evidence as a whole, the Medical Assessor should have given a class 1 rating, or “at the very maximum,” class 2.
Amanda Lindsay (respondent worker)
The submissions on behalf of Ms Lindsay were prepared by Mr Graham Barter of counsel.
Failure to refer to evidence
Mr Barter submitted that there was nothing to suggest that the Medical Assessor was unaware of the factual matters referred to by the appellant employer or, if so, whether those matters were significant. Mr Barter referred to the acknowledgement by the Medical Assessor of the receipt all the evidence that was identified in the referral. Those documents, Mr Barter said, were:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached document, and
(c) ALD lodged by the respondent on 30 November 2023 (comprising 2,814 pages).
Mr Barter submitted that it should be assumed that the 24 November 2023 letter contained in those late documents would have been read. He noted that it was the first document in the late documents bundle and that the ALD was referred to in the Consent Orders which were the basis for the referral.
Mr Barter noted the threat of an appeal in the 24 November 2023 letter, but submitted that the documents in the ALD did no more than confirm the unfortunate and prolonged history of Ms Lindsay’s past psychological problems, and were consistent with the summary given by the Medical Assessor in his MAC.
There was nothing in the documents, apart from the “acute situational crisis” between August and October 2015, that contradicted the findings by the Medical Assessor, Mr Barter said. The Medical Assessor had found that Ms Lindsay’s health had been generally stable and manageable for about 10 years until about 2019.
We were referred to a history taken by Dr Lisa Phillips, referred to by the Medical Assessor on 8 January 2019 which supported the finding by the Medical Assessor.
Mr Barter submitted that “the Medical Assessor clearly considered all the evidence he thought was relevant to his assessment and that is all he was required to do.”
Mr Barter submitted that the Medical Assessor was correct in applying the provisions of s 323(2), submitting that in the circumstances of the complexity of Ms Lindsay’s past psychological history, a deduction of anything greater would have been too difficult and costly to determine.
Ground (b) - PIRS category
Ground (b) (i) - Social and recreational activities
Mr Barter referred to Jenkins v Ambulance Service of New South Wales[4],, which we will discuss below. We were referred to Chapter 1.13 of the Guides relating to the intention behind their drafting.
[4] [2015] NSWSC 633
Mr Barter noted that the Guides provided that the descriptors in the classes of the PIRS were examples only, not to be substituted for the exercise of a Medical Assessors clinical judgement on the day of assessment, based on the relevant evidence.
The factual background relied on by the appellant employer for challenging the class 3 rating did not have any validity, it was submitted. The descriptors for class 3 did not require a worker to be “devoid of friends,” nor that the worker would require a support person at all times - they assumed the retention of some friends to promote attendance at events which she would otherwise not attend.
Mr Barter submitted that the act by Ms Lindsay of confining herself to her friend’s home with only electronic diversions was entirely consistent with Ms Lindsay remaining quiet and withdrawn.
It was appropriate for the Medical Assessor to accept Ms Lindsay’s statement that she now got little enjoyment from previous enjoyable activities, Mr Barter said, and there was no requirement for a Medical Assessor to examine and record the “minutiae of those activities”.
Ground (b) (ii) – Social functioning
Mr Barter submitted that the findings by the Medical Assessor were entirely consistent with the descriptors in class 2 for this category. Ms Lindsay had strained relationships, she had lost friends and there was “no evidence that her new friendships were of the close and lasting character envisaged by class 1”.
Ground (b) (iii) – CPP
Again, Mr Barter submitted that there was nothing in the submissions by the appellant employer that showed any inconsistency with the class 3 rating given by the Medical Assessor.
Mr Barter submitted that online gaming did not require anything but a primitive response to stimuli and it was not suggested that it was comparable with following complex instruction such as operating manuals. Again, it was submitted that email communications with Ms Lindsay’s friends were not comparable to typing of long documents.
Mr Barter submitted that the reference to her cannabis use was entirely speculative, “almost certainly designed to be inflammatory and entirely without merit.”
DISCUSSION
The PIRS
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[5] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[5] Guides page 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[6]
[6] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[7] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales.[8] The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[7] [2017] NSWSC 887.
[8] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[9] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[9] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[10] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[10] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw in the many different possible scenarios within the six categories of the PIRS, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples. They give a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allow a wider discretion to be applied than if the descriptors were intended to be strict criteria.
Failure to consider evidence
The submission by the appellant employer that the Medical Assessor had failed to consider the documents within the ALD of 30 November 2023 is clearly speculative, as there is no direct evidence as to whether he considered them or not. We are invited to infer that, because he did not mention them, it must follow that he did not consider them – an invitation which we hesitate to accept.
Firstly, it is not the function of a Medical Assessor to refer to every piece of evidence before him. The function of a Medical Assessor is similar to that required of a Medical Appeal Panel, and the dicta from the High Court in Wingfoot Australia Partners Pty Ltd v Kocak[11] applies as much to a Medical Assessor.[12] It was held at [48] of Wingfoot that a Medical Assessor’s function is to set out the actual path of reasoning by which he formed his opinion based on his own medical experience and expertise. The Court said:
“…The function ….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.”
[11] [2013] HCA 43.
[12] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13] per Adams J.
Secondly, there is a presumption of regularity that applies to the actions of decision-makers. In Cottom v Scone Race Club Ltd [2022] NSWPIC 519 from [63], the following was stated:
“63. A claim that a Medical Assessor had not read, or not read adequately, documentation on which a party relies on is often made in the Medical Appeal Panel jurisdiction. In Bojko v ICM Property Service Pty Ltd[10] Handley AJA, with whom Allsop P and Giles JA agreed, said at [36]:
‘Both [grounds of appeal] ....ignore[s] the presumption of regularity which attends administrative action..’
64. In Jones v Registrar WCC[11] James J said at [50], having referred to Bojko:
‘There is a presumption of regularity that the AMS had performed such tests as might be required ....’”
It is also fundamental to the task of a Medical Assessor that he read all the material referred to him. A presumption is of course rebuttable and Mr Barter’s submission appeared to consider that possibility when he stated that there was nothing to suggest that the Medical Assessor was unaware of the factual matters relied on by the appellant employer, “or, if so, that those matters were significant.”
The context in which this issue arose concerned the deduction of 1/10th made by the Medical Assessor pursuant to s 323(2) of the 1998 Act.
Section 323 of the 1998 Act
Section 323 provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Relevant authority
We note that we were not referred to any authority as to the application of s 323 by the appellant employer.
It is well accepted that there are three steps to be considered in the application of s 323. In Cole v Wenaline Pty Ltd[13] Schmidt J held that firstly the level of impairment caused by the subject injury should be assessed. Her Honour said:
“What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was.[14] Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
[13] [2010] NSWSC 78 at [38].
[14] The present case involves a pre-existing condition, and not an earlier (first) injury.
In Ryder v Sundance Bakehouse Pty Ltd[15] Campbell J said at [45]:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[15] [2015] NSWSC 526.
His Honour said further at [54]:
“Section 323 …. requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”
The degree of the assessment of impairment arising from the subject work injury is also challenged by the appellant employer, and will be determined in these reasons. The second stage has been established by the Medical Assessor, that the impairment so determined has been contributed to by Ms Lindsay’s pre-existing condition. It is thus the third question that is in dispute before us, namely what proportion of Ms Lindsay’s permanent impairment is due to the pre-existing condition. This requires an analysis of the available evidence.
The ALD
The letter referred to by the appellant employer of 24 November 2023 summarised the clinical records available.[16] The records showed that Ms Lindsay was having serious problems with her mental health as noted by the Medical Assessor at [11] of the MAC. He noted that Ms Lindsay had multiple admissions to hospital from the ages of 16-38 and for 10 years until 2019 her medical health was “relatively improved” although he noted that Ms Lindsay came under psychological treatment with Lisa Phillips in January of that year, 2019.
[16] Appeal papers page 237.
The letter of 24 November 2023 summarised the 2,814 pages of clinical notes contained within the ALD and accurately summarised them as follows:[17]
[17] Appeal papers page 237.
“Clinical records of Trinity Medical Centre
·7 June 2005 – the worker attended Dr Barsoum who diagnosed borderline schizophrenia. She was prescribed with antipsychotic medication.
·10 November 2009 – Dr Barsoum counselled the worker after she reported poor sleep, depressed mood, low self-esteem and irrational fear. The worker’s antidepressant medication dosage was increased.
·24 March 2010 – the worker reported to Dr Seha with three months of worsening depression from her two jobs and university. The worker’s daughter was identified as a supporting thought (sic). She presented with symptoms of stress, exhaustion, poor sleep and poor appetite. There was also suicidal ideation. The worker was diagnosed with bipolar disorder previously. The worker’s medication was altered, and she was referred to the emergency department.
·18 May 2010 – Dr Barsoum reviewed the worker for her bipolar affective disorder. There were several medication changes.
·30 September 2010 – Dr Seha counselled the worker as she was entering the depression phase of her bipolar disorder. However, she reported no suicidal ideations and no stress, but continued to experience insomnia and anxiety attacks. The worker as prescribed further anti-depressant medication.
·23 December 2010 – the worker consulted Dr Barsoum for borderline schizophrenia and her medication was changed.
·10 February 2011 – the worker was counselled for her bipolar affective disorder and her medication was changed after leaving the Wagga Wagga inpatient mental health unit.
·14 July 2011 – there was ongoing counselling for the worker’s borderline schizophrenia and her prescriptions were changed.
·15 March 2012 – the worker reported poor sleep, early morning wakening, depressed mood, low self esteem, irrational fear and panic attacks. Dr Barsoum counselled the worker and placed her on a mental health plan.
·10 August 2012 – Dr Poudel diagnosed the worker with depression and altered her prescription.
·18 December 2012 – there were improvements in the worker’s psychological symptoms.
·29 May 2014 – the worker was counselled by Dr Khalil for her bipolar disorder and anxiety. Dr Khalil noted if the worker’s symptoms exacerbated, she may need to be referred to the emergency department.
·3 July 2014 – the worker’s bipolar disorder and anxiety were ongoing. Dr Barsoum changed her prescriptions.
·1 October 2014 – Dr Phang reviewed the worker. Her depression was ‘under control’ and she was placed on a mood stabiliser.
·19 August 2015 – the worker attended Dr Shukor. She presented in an ‘acute situational crisis’ as her mother committed suicide three weeks prior. The worker reported finding her mother deceased at home, possibly overdosing. She said she was experiencing flashbacks, nightmares, palpitations, hyperventilation, shaking and dizziness. The worker was referred for further psychological treatment and her prescriptions were changed.
·20 August 2015 – the worker attended grief counselling with Dr Barsoum.
·6 October 2015 – the worker was not coping well with her mother’s death. She had symptoms of poor sleep, early morning wakening, depressed mood, low self-esteem and irrational fear. Dr Barsoum counselled the worker.
·1 December 2015 – Dr Barsoum diagnosed endogenous depression. The worker’s psychological symptoms did not report any improvement.
·16 December 2022 – Dr Edwards said the worker was dealing with significant physical symptoms of anxiety relevant to her abdominal pains.
Clinical records from Wagga Wagga Base Hospital
·24 March 2010 – the worker presented to hospital after she was referred by her GP as a suicide risk. She experienced regular panic attacks and stress. The causal factors seemed to relate to the worker’s financial concerns and work-study stress.
·8 April 2010 – Dr Hickey issued a report after reviewing the worker. Dr Hickey diagnosed ‘major depression’ caused by the worker’s financial difficulties, compounded by her working significant hours per week and undertaking tertiary education. The worker also had a past neck injury which caused ongoing pain.
·28 June 2010 – Dr Hickey reviewed the worker for treatment of her bipolar affective disorder. Medication changes and psychological intervention methods were discussed as forms of treatment.
·22 July 2010 – the worker attended with presenting issues of depression and bipolar disorder. There were thoughts of self-harm.
·20 August 2010 – the ED admitted the worker after she presented with issues with significant depression, manifesting through crying, distress, suicidal ideation, poor sleep and deteriorated mental state. She was diagnosed with post-ictal epilepsy.
·7 January 2011 – the worker was referred after she experienced a relapse of depression. She was significantly depressed, emotionally unstable and her condition had not improved despite several medication changes. There continued to be psychosocial stressors compounding her psychological injury.
Clinical records of Dr Victoria Edwards
·A mental health care plan was completed by Dr Magdy Kyrillos on 11 February 2009 with goal of controlling the worker’s depression symptoms. Dr Kyrillos considered the worker’s progress was successful.
·The worker attended Dr Peter Seha on 24 March 2010 due to a relapse of depressive episode, precipitated by work-study stress. Dr Seha reported the worker had recent suicidal ideation.
·Dr Nurul Abd Shukor reviewed the worker on 19 August 2015. The worker presented ‘in acute situational crisis’ as her mother had committed suicide 3 weeks prior. She was experiencing flashbacks and nightmares, and was referred to a psychologist.”
The appellant employer submitted that this body of evidence displaced the statutory assumption in s 323(2). The extent of the deduction was neither at odds with the available evidence, nor was it difficult or costly to determine, as there was no absence of medical evidence, as we understood the submission’s effect. A larger deduction was called for.
Of relevance within the ALD was an entry in the Wagga Wagga Base Hospital notes of June 2023 where Ms Lindsay was assessed by Dr Hickey, the same consultant psychiatrist who had treated her mood disorder in 2010. Dr Hickey recorded that the worker had been well for many years since the ECT and “not been on meds since 2015”.
Material acknowledged by the Medical Assessor
The Medical Assessor noted Ms Lindsay’s difficult past history regarding her psychological health. His diagnosis on the day Ms Lindsay was assessed noted the opinion that she had suffered a bipolar effective disorder in the past. However, he advised that it was more likely that she had a major depressive disorder. His diagnosis was that Ms Lindsay had experienced a recurrence of that disorder. He thus considered that the pre-existing condition was a relevant fact regarding the application of s 323. He agreed with Dr Vickery’s opinion, saying:[18]
“I agree with Dr Vickery’s report of 12th April 2022 in that Ms Lindsay is suffering from a relapse of her chronic Major Depressive Disorder.”
[18] Appeal papers page 30.
The Medical Assessor also agreed with Dr Allan, saying:[19]
“Dr Allan is of the opinion that Ms Lindsay has a chronic major depressive disorder which had been relatively stable with mild mood fluctuations over the years and was on long term medication.”
[19] Appeal papers page 30.
He noted Dr Allan’s opinion of 17 February 2023, saying:
“…Ms Lindsay was relatively stable and not impaired prior to the work issue. Dr Allan is of the opinion that Ms Lindsay’s difficulties are entirely attributable to losses arising from the workplace situation and inability to work. He regards Ms Lindsay as suffering a relapse of her chronic major depressive disorder and that employment was the main and substantial contributing factor to the relapse of her chronic major depressive disorder. …..
I agree with the points made by Dr Allan.”
The Medical Assessor also noted the opinion of psychologist Dr Lisa Phillips:[20]
“….[Ms Lindsay] is reported as having managed her mental health quite well over the preceding 10 years.”
Ms Lindsay
[20] Appeal papers page 30.
These histories were confirmed by Ms Lindsay in her statement of 29 August 2023:[21]
“… When I was in my 20s and 30s, I had depression, which I received treatment for. I was admitted to the Psychiatric Unit at Wagga Wagga Hospital on a number of occasions. I have not been admitted to hospital within the last decade.
20. On my last admission to Wagga Hospital, I underwent ECT treatment twice. This was approximately 2008/2009. I remained on medication thereafter and continued [with] minimal medication until I worked at New Horizons.
21. After my ECT treatment, and while I was on minimal medication, my depression did not impact my personal life, personal care and or work function. At this time was when I went back to university to study graphic design as I felt I was in the best mental state ever, which was prior to working at New Horizons. I really felt I had my mental state under control, and I was initially excited to start working at New Horizons.”
Dr Lisa Phillips
[21] Appeal papers page 49.
On 22 January 2019 psychologist Dr Phillips, wrote to Ms Lindsay’s general practitioner (GP) Dr Waris, advising that she had met with Ms Lindsay on 9 January 2019. Dr Phillips took a history of Ms Lindsay having “difficulties coping with the reactive stress and depression type symptoms in the context of workplace stressors.”[22] Dr Phillips said:
“Amanda reported experiencing a panic attack recently which was the first panic attack (characterised by shaking and increased teariness) she has had in 15 years which was understandably confronting and overwhelming for her. She also reported a 10 year history of Bipolar Disorder. She identifies that she has been coping very well in the past few years primarily due to keeping structured routine and having a sense of purpose through her work. She identifies that she is anxious that due to the current lack of stability or clarity in her role that she has left with her thoughts to[o] long which is unhelpful and that she is vulnerable to a relapse if the protective factors are not maintained…”
CONSIDERATION
[22] Appeal papers page 144.
The appellant employer correctly identified that the Medical Assessor did not refer to any of the 2,814 pages that constituted the ALD, when considering the material that was before him at [10c] of the MAC. It is relevant that the templated question at [10c] reads:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.”
The first point to note about that request is that the comments by a Medical Assessor be “brief.” It would be unrealistic to expect any Medical Assessor to comment on 2,814 pages of clinical notes, even had they all been relevant. We note that consent orders were made by Member John Isaksen on 3 October 2023, but that the parties agreed that further material could be served and filed by 30 November 2023, and the ALD was indeed dated 30 November 2023. Whilst liberty to apply was granted by Member Isaksen, it was not exercised, and the practice of simply placing before a Medical Assessor that amount of documentation – most of which was not relevant – and expecting him/her to make brief comments about it, is contrary to the policy by which compensation is awarded under the NSW scheme.[23]
[23] See s 3 of the Personal Injury Commission Act 2020.
The second is that the Medical Assessor is asked to give his reasons “where applicable“ why his opinion differed. We were not referred to the particular records were of such significance that the Medical Assessor’s failure to mention them constituted a demonstrable error.
Whilst the appellant employer made general submissions that the documents “could have” provided “further clarity“, and that a “proper examination” would have resulted in a greater deduction than the Medical Assessor awarded, we were not directed to the evidence within the ALD on which the appellant employer was relying – apart from a reference to a period in 2015 when Ms Lindsay’s mother unfortunately committed suicide.
The letter of 24 November 2023 contained a convenient summary of the evidence which the appellant employer considered to be relevant, and its reference to the Trinity Medical Centre records about that event was the only incident referred to in the appellant employer’s submissions. We assume the submission that Ms Lindsay reported significant symptoms at that time “(eight years prior to the MAC)” was intended to demonstrate an inconsistency with the finding by the Medical Assessor that for the 10 years up to 2019 Ms Lindsay’s mental health was relatively improved. It may also be that the appellant employer intended to demonstrate that many of the entries about Ms Lindsay’s attendance at the Trinity Medical Centre, the Wagga Wagga base Hospital and on Dr Victoria Edwards were also inconsistent with the finding by the Medical Assessor that for 10 years Ms Lindsay’s mental health was relatively improved.
Dealing with the unfortunate death of Ms Lindsay’s mother firstly, the evidence shows no more than a grief reaction, which is a normal response to such a tragic event. The reaction lasted a number of months but was self-limiting to that extent.
Secondly, whilst the material referred to by the appellant employer in its letter of 24 November 2023 referred to attendances in 2010, 2011, 2012 and 2014, the Medical Assessor noted that Ms Lindsay remained on medication following her two electro convulsive treatments at Wagga Wagga Base Hospital in 2008 or 2009, until about two years before the assessment. It follows that Ms Lindsay would have been attending medical practitioners and discussing her condition with them from time to time whilst obtaining her medication, which the records in the ALD confirmed.
Thirdly, the Medical Assessor noted that Ms Lindsay’s mental health had been “generally stable and manageable for approximately 10 years until 2019.”
DECISION
As we indicated above in discussing Wingfoot, the function of a Medical Assessor is to use his clinical judgement and experience to determine the issues before him. We have also referred to Vegan and the requirement that reasons be given, the extent of which depends on the circumstances of the case.
The Medical Assessor explained his decision to apply the statutory assumption in s 323(2) after taking an accurate account of Ms Lindsay’s complex and persistent past psychological conditions. The material within the ALD does not contradict the conclusion reached by the Medical Assessor, and indeed it confirms the conclusion he reached when he referred to the evidence we have outlined above. He found that the nature of Ms Lindsay’s Major Depressive Disorder (or Persistent Depressive Disorder) was that it was a lapsing/remitting condition, to which adverse circumstances of any type were likely cause a recurrence. However he was satisfied that her improvement over the 10 or so years preceding her injury was such that it was her workplace injury that he saw as the primary cause of her current impairment. This was confirmed by Dr Hickey, who had treated Ms Lindsay in both 2010 and 2023 and noted that she had been well for many years since her electro convulsive therapy, and ceased her medication in 2015, the year before she commenced with the appellant employer.
The Medical Assessor had the advantage of a face to face assessment, and was able to judge the extent to which Ms Lindsay’s pre-existing condition had contributed to her overall impairment. His assessment was not glaringly improbable, and he was aware of the relevant facts. Whether or not he considered the contents of the ALD, they did no more than confirm the facts that he had accepted. Whilst other minds may have differed, we find no error in his reasoning.
The impugned categories of the PIRS
Social and recreational activities
The relevant class descriptors in this category are set out at Table 11.2 of the Guides:
“Class 1
No deficit, or minor deficit attributable to the normal variation in the general population:
regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
As indicated above, the Medical Assessor rated a class 3 impairment in his Table 11.8 PIRS Rating Form:
“Ms Lindsay rarely participates in social and recreational activities. She has recently travelled from Wagga Wagga to Melbourne to visit an old friend and spent a week during the visit. Since then she has travelled to Maryborough in Queensland and is currently temporarily staying with another friend as she establishes independent accommodation. She otherwise is not involved in social activities. She maintains contact with other friends by text message or online.”
It can be noted that the emphasis in this category concerns whether Ms Lindsay’s psychiatric disorder has resulted in the diminution of her ability to partake in activities that are age sex and culturally appropriate. The appellant employer’s submission that the Medical Assessor has erred because he recorded that Ms Lindsay now got little enjoyment from previously enjoyable activities, without naming those previously enjoyable activities, travels nowhere without any factual basis for challenging that she used to do “enjoyable activities.” Ms Lindsay said in her statement:[24]
“I have been active and healthy most of my life, being involved in sports and recreational hobbies….
I struggle with concentration and this has affected my ability to conduct daily tasks and engaging in activities that I once enjoyed such as reading books, watching TV and communicating with others…[25]
…..
I do not have a social life and I do not participate in any social activities, nor do I have any drive to do so. I have lost friendships since my work-related psychological injury.
…..
I used to go for walks when I was living independently, but now I do not like to go outside…”[26]
[24] Appeal papers page 49 [19].
[25] Appeal papers page 51 [34].
[26] Appeal papers page 55 [67]-[68].
Although the appellant employer submitted that the Medical Assessors explanation was “inconsistent and inadequately explained,” we are unable to agree as to either proposition. The appellant employer rather turned a blind eye to the comment by the Medical Assessor that up to when she moved to Maryborough and while she was living in Wagga Wagga, Ms Lindsay “denied being involved in any social activities.”
The appellant employer has attempted to categorise Ms Lindsay’s relocation to Maryborough as an indication that a class 1 rating was appropriate. In the circumstances described, namely that Ms Lindsay and her daughter were estranged and that Ms Lindsay found her present abode with a friend she made online, we fail to see in that behaviour anything that could be described as a minor deficit attributable to the normal variation in the general population.
Similarly, of itself the one trip Ms Lindsay made before going to Maryborough to see an old friend in Melbourne does not advance the appellant employer’s case. We were unable to find any reference to Ms Lindsay being “actively involved with her friends in Melbourne” as was alleged by the appellant employer.
Moreover, the other matters nominated by the appellant employer that is, listening to music, watching YouTube videos and playing online games - did indeed tend to confirm that Ms Lindsay was not actively involved in social or recreational activities. The appellant employer did not explain how those activities would lead to an inference that Ms Lindsay was anything but quiet and withdrawn.
The appellant employer’s submissions go no further than demonstrating that it has a mere difference of opinion to that reached by the Medical Assessor. It has been unable to establish error on his behalf.
Social functioning
The relevant classes for this category are set out at Table 11.4 of the Guides:
“Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2
Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
As indicated, the Medical Assessor gave a class 2 rating in this category, saying:
“Ms Lindsay has been living with her daughter for the last two years though this relationship has become strained and as a result Ms Lindsay has moved out to obtain her own independent accommodation. She has been able to maintain the relationship with her daughter and there still on speaking terms. Ms Lindsay has been able to maintain relationships with some old friends online, and recently visited one and stayed with her for a week. She is currently residing with another friend who she has met in person for the first time a week ago having formed an online relationship previously.”
The appellant employer’s submission that the two instances given by the Medical Assessor of Ms Lindsay’s ability to visit a friend in Melbourne for a week, and to form a new friendship online rather glossed over the fact that Ms Linsday had to move out of her daughter’s residence where she had been living for two years because the relationship had become strained. Moreover, the fact that Ms Linsday was able to maintain a relationship with her daughter and that they were still on speaking terms, did not imply that there was therefore no strain in their relationship. There clearly was, as Ms Lindsay no longer lived there as a result of the degree of strain in the relationship.
We note that the Medical Assessor included in his reasons fact that Ms Lindsay had been able to maintain friendships with some of friends online. The appellant employer submitted that he had not given “adequate consideration” to the evidence of Ms Lindsay’s other relationships, but just what it alleged was inadequate about his consideration was not explained.
In the circumstances of this case, the proposition that Ms Lindsay had no deficit or otherwise should have been found to have had a minor deficit attributable to the normal variation in the general population with regards to her social functioning, must fail. The appellant employer could not refer to any supporting evidence for its submission, but simply cavilled at the findings made by the Medical Assessor.
CPP
The relevant descriptors in this category are at Table 11.5 of the Guides.
“Class 1
No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2
Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3
Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor gave a class 3 rating. He said:
“Ms Lindsay struggles to concentrate on reading material, though is able to use the Internet for email and communications with friends. She can concentrate on online games and driving including for extensive periods of time.”
The appellant employer’s submission again lacks any substantive basis. Whilst it was “not clear” to the author, who asserted that the Medical Assessor “could have” ascertained the nature of the online games, the hypothesis has no evidential support and is based upon speculation that Ms Lindsay might have been playing complex games that required the comprehension of instructions. There was no evidence that the Medical Assessor did not ascertain the nature of the online games being played and indeed his description of them in the context of Ms Lindsay struggling to concentrate on reading material rather implies that they were games of a simple nature, requiring no more than a knowledge of how to use the Internet for email and online socialising. Moreover, the Medical Assessor referred in the same sentence to the activity of driving, which from a cognitive viewpoint requires little concentration. Driving is a learnt behaviour which can be performed most of the time with little focus whilst performing other tasks such as, for example, listening to the radio or having a conversation with a passenger. In context we are satisfied that the Medical Assessor was referring to online games that did not require any complexity in cognition.
The paucity of the appellant employer’s reasoning was further revealed when it resorted again to speculation surrounding the history the Medical Assessor took about Ms Lindsay’s general health, and that Ms Lindsay used cannabis when she had the money to buy it. The appellant employer parlayed that history into a submission that, notwithstanding that the extent of her use was “not clear“ it may have contributed to Ms Lindsay’s lack of CPP. We concur with the respondent worker that this submission was entirely without merit, and designed to be inflammatory.
ORDER
For these reasons, the Appeal Panel has determined that the MAC issued on 12 December 2023 should be confirmed.
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