Njorge v State of New South Wales (Mid North Coast Local Health District)
[2021] NSWPICMP 116
•7 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Njorge v State of New South Wales (Mid North Coast Local Health District) [2021] NSWPICMP 116 |
| APPELLANT: | Mbogua Njorge |
| RESPONDENT: | State of New South Wales (Mid North Coast Local Health District) |
| APPEAL PANEL: | Member John Wynyard Douglas Andrews Dr Michael Hong |
| DATE OF DECISION: | 7 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against finding of 0% for psychological injury; applicant claimed bullying & harassment caused cerebrovascular accident (CVA) and psychiatric condition; Consent Order entered for the respondent re claim regarding CVA; Medical Assessor (MA) found that applicant suffered adjustment disorder by the bullying up to the occurrence of the CVA, but that the CVA created a secondary major depression that was not compensable; Held- MA properly considered the question of medical causation following the Consent Award; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd applied; the appellant lodged no contemporaneous evidence of any social or medical disruption regarding the bullying events prior to the CVA; MA entitled to rely on clinical experience and expertise in face to face consultation; conclusion that appellant’s psychological state post CVA secondary and any impairment caused by the adjustment disorder subsumed available on the evidence; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 January 2021 Mbogua Njorge, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 18 December 2020.
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,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (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
The Application to Resolve a Dispute (ARD) had originally claimed that Mr Njorge’s “constant work related stress caused depression, hypertension which then caused a stroke.” When consent orders were entered on 6 August 2020, Order 1 read:
“Award for the respondent on the claim for stroke injury”[1].
[1] Appeal papers page 39.
On 21 September 2020 an Amended Referral was made by the delegate to the MA seeking an assessment of WPI caused by psychological/psychiatric injury which occurred on a deemed date of 20 August 2017, the date of the stroke, or cerebrovascular accident (CVA).
Mr Njorge was employed as a Psychiatric Nurse in the Mid North Coast Local Health District at Kempsey. He had an impressive background, being involved in mental health care for over 40 years in the United Kingdom, New Zealand and since 2000, New South Wales. He was born in Kenya in 1954.
Mr Njorge was subjected to conduct on behalf of employees of the respondent that was distressing and offensive. He experienced unprofessional and hostile behaviour from a particular member of the respondent’s staff, including the placement of a kitchen knife on his desk.
Mr Njorge made a formal written complaint on 24 October 2016. However, Mr Njorge himself was directed to undergo a Performance Improvement Plan, which was the first he had received in his career. It was also suggested to him that he should consider apologising to the staff member.
Mr Njorge was transferred to Port Macquarie where his interactions with two senior staff members, Mr Pretty and Ms Costello soon deteriorated. Mr Njorge felt that he was being harassed and belittled in that they ignored him, demeaned him, did not take his professional advice and undermined his factual reports. Mr Njorge felt harassed, isolated and “racially profiled”.
Mr Njorge suffered a CVA on 20 August 2017 which was treated from 28 August 2017 at Concord Hospital. When he returned to work on 16 September 2017 he was advised that he was to be transferred to work at the in-patient psychiatric unit.
On returning to work he found that his access card had been blocked and that his computer password had been changed. He was presented with a letter containing allegations of claims against him from a number of colleagues. He was advised that there would be a formal disciplinary investigation. In the meantime he would be required to work elsewhere.
He received a further letter on 13 November 2017 outlining nine allegations against him, of which two were subsequently substantiated but with which findings he disagreed.
He was then placed on a Service Check Register which restricted his ability to work. He ceased work in October 2017.
The MA found that Mr Njorge did not suffer from any WPI, certifying 0% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested a re-examination by an MA who was a member of the Appeal Panel. For the reasons given below, whilst error was found, it was of a technical nature and able to be corrected by the Panel on the material that was before the MA. Accordingly no re-examination was required.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit a report dated 11 February 2020 from Ms Jacobine van Kessel, Clinical Psychologist. This report was annexed to the appellant’s submissions as it was not in the material referred to the MA, although apparently it appeared in the index to the Reply. The appellant submitted that the absence of this report was a “serious issue,” particularly as the “views of Ms van Kessel were critically referred to by the MA in his actual path of reasoning”. We were referred to “the Wingfoot[2] decision” in that regard.
[2] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot).
The report cannot satisfy the criteria mandated by s 328(3) of the 1998 Act for admission, and we were not addressed as to how it might otherwise be admissible. We have no discretion where the material was available to a party before the assessment or could reasonably have been obtained by the party. Clearly the report could reasonably have been obtained, as it was apparently listed by the respondent in its reply. Ms van Kessel was the appellant’s treating Psychologist and a simple Notice to Produce would have yielded the report, notwithstanding that it was addressed to the respondent’s solicitors.
If we are wrong in that determination we do not agree that the report was of any moment in any event. In an earlier report of 15 May 2019, Ms van Kessel noted that symptoms “before and since” Mr Njorge consulted her in February 2018 “were caused by the work incidents and the CVA.” [3]
[3] Appeal papers page 157.
In the report of 11 February 2020 Ms van Kessel said her views remained “essentially unchanged.” She added that the appellant’s “self-view and view of others has been affected by the work incidents and the CVA….”.[4]
[4] Appeal papers page 17.
We do not see any additional probative value in the report of 11 February 2020, even if it were admissible. We will consider the appellant’s submissions regarding Ms van Kessel’s reports further when discussing our reasons and findings.
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 MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
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 appellant set out the allegations made in the ARD, the response in the s 78 notice and the subsequent Consent Orders entered into on 6 August 2020. That background demonstrated a concession by the employer that there was no issue in relation to the fact that Mr Njorge had suffered a primary psychological injury. (We interpolate to observe that we concur with that view.)
The appellant relied on three grounds of appeal. Firstly, that the MA erred in law in finding that Mr Njorge had suffered a secondary psychological injury when the employer admitted that a primary injury had been sustained.
The second ground was the MA did not consider relevant history.
The third ground was that the diagnosis of an adjustment disorder was against the weight of the evidence, being contrary to the conclusions reached by the medico-legal experts on both sides of the record.
The appellant summarised his appeal by submitting that the MAC should be revoked, and Mr Njorge re-examined by a member of the Panel.
THE MAC
The MA took a detailed and accurate history of the circumstances of Mr Njorge’s condition and noted:
“Not uncommonly in such situations, Mr Njorge believes, as in his statement, that ‘I am 100% certain that bullying and harassment and my toxic work environment has a direct correlation with the stroke I suffered’, despite the presence of significant pathological risk factors and chronic cerebrovascular disease identified.”
As a result of his ongoing stress symptoms following his stroke, Mr Njorge was referred to his treating Psychologist, Ms van Kessel. The MA said:
“Her letter [of 15 May 2019] is instructive. Firstly, it identifies that he was referred ‘concerning anxiety and depressive symptoms post cerebrovascular accident’ and that for a number of months of treatment his ‘main symptoms he reported…were residual frustration and disturbance in his sleep due to ruminating’.”
The MA noted Ms van Kessel’s opinion that Mr Njorge had no symptoms that met the criteria for any psychiatric diagnosis until April 2019, when Mr Njorge’s presentation was “different”.[5]
[5] Appeal papers page 29.
The MA enquired of Mr Njorge why his condition deteriorated at that time, and was told that it was because Mr Njorge’s clinicians had advised that he would have to get used to his on-going physical disabilities and situation. As a result he realised that he could never return to work. This caused his mood to deteriorate and by then he also realised that following his stroke he was unable to type properly, was limited in walking, could not run and was unable to return to tennis. He had difficulty in carrying out domestic activities such as cooking and suffered a further set back when he had a motor vehicle accident in November 2019 which further affected him.
In discussing the diagnosis the MA said[6]:
“Mr Njorge describes symptoms at most consistent with an Adjustment Disorder due to the ongoing perception of harassing and bullying behaviour towards him over 2016, and particularly in 2017, by a number of colleagues and managers at work. There is no description of any more pervasive psychiatric disorder, no work or social impairment, and certainly none was recorded by his general practitioner or noted by his psychologist.
Subsequent to the stroke, he developed memory problems, physical problems and a poststroke insomnia ….. His psychologist clearly describes that he did not have any psychiatric disorder or symptoms clinically significant enough to warrant this from his assessment until his deterioration in April 2019 resulting from the realisation that his post-stroke sequelae were chronic and unlikely to recover. This led to the development of a secondary psychiatric disorder, a chronic Major Depressive Disorder, which has received little in the way of adequate treatment, primarily due to Mr Njorge’s reluctance and has been further compounded by a motor vehicle accident in November 2019.
As such the Adjustment Disorder that resulted from the workplace injury subject to this MAC, would likely have remitted following the resolution of his complaints at work and there is no indication there is any more severe psychiatric disorder resulting from the workplace injury as a primary injury. He did not meet the criteria for a psychiatric disorder for many months post-stroke until April 2019, nearly two years after he stopped working. Consequently although quite disabled overall his current psychiatric disorder and the associated impairment is entirely caused by the stroke, compounded by the subsequent motor vehicle accident, and represents a secondary psychiatric injury which does not allow for any rateable whole person impairment under the Act and Guidelines.”
[6] Appeal papers page 32 [7].
The MA explained his reasoning further whilst addressing the opinions of the medical specialists. He acknowledged that Dr John O’Neill noted that Mr Njorge’s stress may have exacerbated the hypertension and thus potentially contributed to the stroke. Dr O’Neill was a Consultant Neurologist. The MA said:[7]
“….I have published on this… and these commonly-made assertions have little support from the evidence in the literature and any effect is minor compared to that of his chronic underlying pathophysiology. Regardless, it is apparent that he was psychiatrically not unwell enough to warrant a diagnosis of a psychiatric disorder for nearly two years following the stroke until April 2019, according to his longterm treating psychologist.”
[7] Appeal papers page 34.
In dealing with Dr Robert Gertler’s report (Dr Gertler being retained as the medico-legal expert on behalf of the applicant) the MA noted that Dr Gertler did not have an exact history. He said[8]:
“……I do agree that [Mr Njorge] now meets criteria for a Major Depression. However, for the reasons given above, this is a secondary psychiatric injury and thus does not result in any rateable whole person impairment. Any impact of the work-related Adjustment Disorder has been completely subsumed by this secondary injury and its impairment, even if it continued to exist, which is unlikely given the pattern described by Mr Njorge and his treating clinicians.”
[8] Ibid.
In considering the report of the respondent’s medico-legal referee, Dr Peter Whetton, the MA noted that Dr Whetton too was unaware of the course of Mr Njorge’s condition, and did not accept that Mr Njorge’s current Major Depressive Disorder was a primary psychiatric injury.
The MA found accordingly that no WPI had been caused by the primary work-related psychiatric condition. As required by the Guides, the MA compiled a Table of the Psychiatric Impairment Rating Scale (PIRS), which we reproduce:[9]
[9] Appeal papers page 37.
The diagnoses were listed by the MA in the Table as:
“Primary psychiatric injury: Adjustment Disorder
Other Psychiatric Diagnoses:
(1) post stroke Major Depressive Disorder
(2) post-motor vehicle accident anxiety (probably Adjustment Disorder)PIRS Category Class Reason for decision
Self Care and Personal Hygiene 0 Mr Njorge reports some physical limitations consequent to his stroke in aspects of his selfcare. Any motivational issues in what would at most be a minimal psychiatric impairment are attributable to the post stroke depression. Social and Recreational
Activities0 Mr Njorge relinquished his sole hobby of tennis because of his stroke physical sequelae, had few if any friends locally, and now has little social life because of his post stroke depression. Travel 0 There was no impairment until the motor vehicle accident in November 2019. Social Functioning 0 He continues to report feeling very well supported by his wife and close to his family. His social circle has been reduced by moving away and the impact of his stroke. Concentration, Persistence and
Pace0 There was no reported cognitive problems prior to the stroke. Subsequently he has suffered memory difficulties attributable to the stroke with associated observable cognitive deficits explicable by his underlying cerebrovascular pathophysiology. Employability 0 His post stroke depression, cognitive deficits and physical sequelae would render him capable of only doing basic roles for a few hours per week, although none of these were attributable to the primary psychiatric injury of his Adjustment Disorder.” SUBMISSIONS
Ground 1
Secondary injury
The appellant argued that the issues were defined before the matter went to an MA, and the Consent Order reflected that agreement.
The appellant argued that the respondent had conceded that the nature of the psychological injury was primary. Both the Appeal Panel and the respondent accept that contention.
The appellant also accurately recorded that the diagnosis of primary psychiatric injury had been made by the medico-legal consultant psychiatrists retained on either side of the record, Dr Robert Gertler for the appellant and Dr Peter Whetton for the respondent. Accordingly, the appellant submitted that the only question for determination by the MA should have been the level of impairment, rather than whether the injury had been primary or secondary.
A further aspect to this error was that the MA had “neglected” to perform an assessment in accordance with the PIRS.
Respondent
The respondent agreed that Mr Njorge had suffered a primary psychological injury. However, the respondent submitted:[10]
“….. [what] the AMS was asked to determine was the degree of permanent impairment resulting from a primary psychological injury caused by bullying and harassment in the course of his employment.”
[10] Appeal Papers page 23.
The respondent argued that in order to do this, the MA was required to comment on diagnosis and in turn consider causation.
The respondent argued that the MA has found that Mr Njorge’s current psychological condition was “secondary to non-work-related events.” It submitted that the MA found that the primary injury Mr Njorge was suffering from was an Adjustment Disorder, and that the level of impairment was 0%. This conclusion, it was submitted, was open to the MA. The respondent noted that in fact the MA had provided a PIRS assessment and that its result had been a 0% permanent impairment.
Ground 2
Relevant history not considered
The appellant submitted that the MA had made a number of critical findings in his certificate, and had erred in making them. These errors resulted in the MA failing to consider relevant history. The failings in this regard by the MA were said to be ignoring of failing to consider Mr Njorge’s statement, the histories contained in the clinical notes, and the medico-legal report of Dr Gertler. The history recorded was inconsistent, it was argued, with particular paragraphs in the statement (paragraphs 26-35) and there was “abundant evidence” that established that Mr Njorge was being treated for a recognisable psychiatric condition well before his stroke. We were referred to reports by Dr Waba, Mr Njorge’s GP, Ms van Kessel and the report of Dr Gertler. We were not referred to any page references in the material before us regarding Dr Waba.
The appellant also submitted that the MA fell into error in his finding that the post injury
motor vehicle accident was a possible cause of psychological disturbance on the face of Mr Njorge’s statement from paragraphs 36-39 that clearly pointed out that no compensation was received and that the claim was rejected on the basis that it was a minor injury.We were referred to correspondence between the appellant and the respondent on 9 January 2020 and 16 January 2020 (which were reproduced in the Reply).
The clinical notes of Dr Waba showed that Mr Njorge was suffering from depression prior to the stroke which led to him being referred to Ms van Kessel, and her report of 11 February 2020. Thus, it was argued the MA fell into error when he found that the appellant did not meet the criteria for a psychological disorder many months post stroke.
The respondent
The respondent submitted firstly that the outcome of any compensation proceedings for the subsequent motor vehicle accident was not relevant to the assessment.
The respondent further submitted that the failure to refer to all of the evidence does not amount to an error. We were referred to dicta from Johnson J in Vitaz v Westform (NSW) Pty Ltd & Ors[11] as authority for the proposition that a MAC is to be read as a whole, and not with a mind finely attuned to error.
[11] [2010] NSWSC 667 at [35].
Ground 3
The weight of the evidence
The appellant listed 13 subparagraphs referring to the evidence he relied on to demonstrate that the diagnosis of an adjustment disorder as a result of the primary injury was against the weight of the evidence.
Reference was made to Dr Gertler’s opinion that Mr Njorge was suffering from symptoms of a major depression, on 14 October 2020.[12]
[12] Appeal Papers page 62.
Reference was made to Dr Whetton’s opinion of 14 February 2020[13], which found:
· that the diagnosed condition arose in the course of Mr Njorge’s employment,
· that employment was a substantial contributing factor to Mr Njorge’s psychiatric state,
· that the predominant cause of Mr Njorge’s conditions were the workplace problems identified as bullying harassment, as Dr Whetton outlined consistently with the other histories,
· that Dr Whetton agreed with Ms van Kessel of 15 May 2019 that the diagnosis of Major Depressive Disorder was caused by “work incident and the CVA”[14], and
· that Dr Whetton had agreed with the opinion of Dr Gertler that the diagnosis was Major Depression.
[13] Appeal Papers page 160.
[14] Appeal papers page 169.
It therefore followed, the appellant asserted, that the diagnosis of Adjustment Disorder was “against the weight of all the evidence.”
The appellant noted that Dr Whetton had assessed a 15% WPI and that “at that stage” it was incumbent upon the respondent to concede a primary psychiatric injury and also to concede that 15% WPI had been assessed as Dr Whetton’s assessment was the same as that given by Dr Gertler. (The appellant acknowledged that a further report from Dr Whetton was forthcoming dated 16 March 2020[15] in which he reduced his assessment to 7% WPI.)
[15] Appeal Papers page 172.
Finally, the appellant submitted that the opinion given by Ms van Kessel on 15 May 2019 could be ignored because she changed her opinion in the report of 11 February 2020. Moreover, it was asserted that the guidelines provided that a psychologist’s opinion could not be accepted in the face of contrary expressions from qualified experts. This latter assertion may be dismissed, as there is no such guideline, and the Arbitral authority relied on, Rebecca Monahan v RH Anticich & AJ Deegan & Ors t/as Sparke Helmore Lawyers (Matter No 2055/2018, 5 August 2019), made no such finding.
The respondent
The respondent submitted that an MA was able to form a different opinion to those contained in the medical evidence before him, including that of treatment providers. It submitted that a difference of opinion is not a demonstrable error, citing Merza v Registrar Workers Compensation Commission[16].
[16] [2006] NSWSC 939 at [51] (Merza).
Accordingly the respondent submitted that the findings, opinion and assessment by the MA were open to him and that his reasons were detailed, logical and clear - thus complying with the requirements set out in Wingfoot.
DISCUSSION AND FINDINGS
No evidence of medical treatment prior to the CVA
Submissions were made by the appellant that referred to the clinical notes of Dr Waba. We note that the s 74 notice dated 11 December 2017 was addressed to a denial of liability for Mr Njorge’s stroke injury. The notice said:[17]
“On the 17th October 2017, QBE requested your clinical notes from Dr Waba….without any response…
….
QBE acknowledge key pieces of information are missing from your claim which are clinical notes and responses from further questions sent to Dr Waba…”
[17] Appeal papers page 135.
It would appear that Dr Waba’s notes were not lodged, which makes the appellant’s submission that “an examination of the clinical notes of Dr Waba demonstrate[s] that the Appellant was diagnosed with depression before the stroke” somewhat curious.[18]
[18] Appeal papers page 13 [24].
There is no evidence in the material of any medical treatment prior to Mr Njorge’s stroke in August 2017. Medical certificates were lodged, but the earliest of them post-dated the CVA, being dated 7 November 2018. Mr Njorge had ceased work since October 2017. The diagnosis given by Dr Waba in that document was “constant work related stress that aggravated [the appellant’s] hypertension with subsequent stroke.”[19] It is clear from other reports that Dr Waba was consulted immediately following the CVA, but there is no evidence that there was any consultation with him prior to that event.
[19] Appeal papers page 71.
Neither Dr Gertler nor Dr Whetton referred to any medical treatment given for psychological issues prior to the CVA, and neither did Mr Njorge himself.
Dr John O’Neill, Consultant Neurologist, reported on 27 February 2019 to the appellant’s solicitors.[20] Dr O’Neill took a history of the pre-CVA stressors, and noted that “at some point” Mr Njorge consulted Dr Waba, who found that Mr Njorge had both hypertension and diabetes.[21] Following Mr Njorge’s CVA, Dr O’Neill recorded that Dr Waba was consulted the day after.
[20] Appeal papers page 65.
[21] Appeal papers page 66.
Thus, apart from the assertion in the appellant’s submissions, there was no reference to any medical treatment for Mr Njorge’s psychological condition that preceded his CVA.
The Consent Order and the claim in the ARD
It is not without relevance that when the matter was before the Commission, the parties agreed that the respondent bore no liability for the stroke injury itself. As indicated, the terms of the ARD claimed that the appellant had suffered a personal injury on 20 August 2017 which had been caused by “constant work related stress caused depression, hypertension which then caused a stroke.”
The claim resulted from the opinions of the medico-legal experts Dr Gertler and initially Dr Whetton. By its nature, the claim related to Mr Njorge’s work-related stress prior to his CVA on 20 August 2017, and to the assertion that his psychological condition had caused or aggravated his hypertension, which in turn had caused Mr Njorge’s CVA. Thus Mr Njorge’s psychological condition was said to have resulted from the whole period of his being bullied and harassed, from 2016 to his cessation of work in October 2017.
The MA, by virtue of the Consent Order that Mr Njorge’s stroke had not been caused by the stress of his pre-stroke employment, had a more precise task to perform. He noted in the intituling of his MAC that there had been an award for the respondent on the claim for the stroke injury. He found that the stroke itself had caused a psychiatric injury, which he agreed was a Major Depression, and he explained his reasoning as to how he reached that conclusion.
Ms van Kessel
The most compelling evidence the MA found came from Mr Njorge’s Consultant Psychologist, Ms Jacobine van Kessel in her report of 15 May 2019 to the appellant’s solicitors.[22]
[22] Appeal papers page 157.
We have already referred to this report in rejecting her later report of 11 February 2020. Ms van Kessel said that she had been treating Mr Njorge since February 2018 over nine sessions.
She said that Mr Njorge had been referred by Dr Waba “concerning anxiety and depression symptoms post Cerebrovascular accident (CVA)...” She reported that Mr Njorge’s main symptoms initially were “residual frustration and disturbances in his sleep due to ruminating.” Under the heading “Your Diagnosis,” Ms van Kessel said:
“Based on his presentation between February 2018 and February 2019, my view has been that there is no recognisable psychiatric illness. The reported symptoms did not qualify for a depressive disorder, anxiety disorder or PTSD diagnosis. At the time of the initial appointment the symptoms had subsided already.”
Ms van Kessel however recorded that the situation changed. She said:
“However, in the last session (April [2019]) Mbogua’s presentation was different and he reported more severe symptoms, such as an increased fear of having another stroke, sleeping difficulties (including nightmares), increased worry and a deterioration of his mood. He reported that his business is not doing well and that there is pressure from his previous employer. It appears (to me) that those elements and possibly also the ongoing court case, could have had an impact on his view on the future and increased his insecurity.”
Ms van Kessel diagnosed a major depressive disorder (mild). She was asked whether Mr Njorge’s psychiatric illness had been caused by the conduct of the employer. She said:
“In my opinion, the symptoms reported by Mbogua (before and since I have seen him) were caused by the work incidents and the CVA. I am not in a position to comment on the conduct of the employer.”
Ms van Kessel stated that between February 2018 and February 2019 Mr Njorge was “coping well.” He was usually in a good mood, he had clear goals which she was actively pursuing, and he managed and reduced his stress. In view of the changes she had noted Ms van Kessel was unable to comment on prognosis.
When asked whether Mr Njorge was capable of returning to his pre-injury employment Ms van Kessel said:
“… The working relationships seem to be too damaged for that and it would be very likely that stress symptoms would return/intensify. Mgobua, in January 2019, reported that he was contacted by his old manager via email and he noticed that his sleep deteriorated as a result.”
As indicated, the appellant sought to demonstrate that Ms van Kessel’s opinion was against the weight of the evidence, and we were referred to the opinions of Dr Gertler and Dr Whetton. The appellant submitted that the rejected report of 11 February 2020 had reflected a change in Ms van Kessel’s opinion, a submission which we implicitly rejected in our alternative finding regarding its admissibility.
It is convenient to consider the precise submission at this point in the discussion. The appellant submitted that Ms van Kessel’s statement in her later report that Mr Njorge’s self-view and the view of others had been affected by the work incidents, constituted the change in her opinion. We do not agree, with respect, because Ms van Kessel was simply repeating what she said in her report of 15 May 2019 - that Mr Njorge’s symptoms, both before and since she had been treating him, had been caused by the work incidents and the CVA.
The evidence before the MA
Dr Hayes
An MA can only deal with the evidence before him. There was no medical evidence of any psychological deficit that predated the CVA on 20 August 2017. The earliest report thereafter was from the Neurologist at Concord Repatriation General Hospital who treated the stroke, Dr Michael Hayes. He reported on 16 October 2017 to Dr Waba,[23] giving a history of Mr Njorge’s treatment on admission on 28 August 2017. Dr Hayes noted that Mr Njorge had consulted Dr Waba after the onset of his symptoms. Dr Hayes noted that Mr Njorge has suffered from hypertension, which had previously been well-controlled, diabetes under moderate control, and he had not smoked for 28 years. Mr Njorge’s blood pressure was consistently elevated on admission for which medication was given. On 16 October 2017 Dr Hayes said that Mr Njorge’s blood pressure remained elevated. Dr Hayes said:
“[Mr Njorge] initially tried to return to work shortly after the stroke but struggled with [t]his, particularly in relation to writing, keyboarding and a sense of imbalance. He works as a Psychiatric Nurse. Additionally, he reports work-related stress that pre-dates the stroke. He was previously working at Kempsey and reportedly made an official complaint about harassment/bullying in 2016. Subsequently he moved to Port Macquarie in about February 2017. According to [Mr Njorge], the issue has not been completely resolved and he feels that this has been a major issue in contributing to a spike in his blood pressure….”
[23] Appeal papers page 88.
Dr Hayes indicated that a return to work remained problematic due to the poorly controlled blood pressure and the reported work related issues.
Dr O’Neill
We have referred above to Dr O’Neill’s report of 27 February 2019. He took a consistent history of Mr Njorge’s work related issues prior to his CVA. This included the conflict with a manager who was accused of leaving a knife on Mr Njorge’s workstation in 2016, and the support that Mr Njorge received from the manager who arranged for his transfer to Port Macquarie. It also included the account of the barking dog belonging to a senior colleague who lived next door, and that Mr Njorge said he was bullied and harassed at Port Macquarie. As to diagnosis, Dr O’Neill found that Mr Njorge had suffered an ischaemic stroke in the right medulla, caused as a result of age, hypertension and associated conditions such as diabetes. He said:[24]
“Mr [Njorge] developed hypertension and diabetes at some stage after his transfer to (sic) Kempsey at which time he was under considerable stress.
Whilst stress would not be a cause of hypertension, it would certainly aggravate pre-existing hypertension and it would seem this was the case here. Even at the time of Mr [Njorge’s] admission to Concord Hospital on 28/08/2017, his blood pressure was very high requiring a considerable escalation in blood pressure medication.”
[24] Appeal papers page 68.
As indicated, the earliest contemporaneous medical note was the certificate issued by Dr Waba on 7 November 2018. The diagnosis contained thereon stated that the work related stress had aggravated Mr Njorge’s hypertension with subsequent stroke.
This opinion, along with the opinions of Dr Hayes and Dr O’Neill, did not assist Mr Njorge, as they postulated a causal link between the work stress and the stroke, being the aggravation of Mr Njorge’s hypertension. This part of Mr Njorge’s claim resulted in an award in favour of the respondent by consent.
Dr Gertler and Dr Whetton
Dr Gertler noted that Mr Njorge had been seeing a psychologist regularly since early 2018, whom we accept was Ms van Kessel, but otherwise did not consider her report, which was before him.
The appellant was also correct in his assertion as to Dr Whetton’s report. Dr Whetton found that Mr Njorge suffered his major depression in the course of his employment; that employment was a substantial contributing factor to that condition; and that workplace problems were identified by Mr Njorge as bullying and harassment. It was also correct that Dr Whetton agreed with Ms van Kessel.
However, these assertions were only correct as far as they went. They did not address the question of whether those findings were caused by a primary or a secondary psychological injury. They assumed that the CVA was an integral part of the work-place stressors, and that the entirety of Mr Njorge’s psychological condition had the one cause of workplace bullying and harassment.
Dr Whetton’s attention was drawn by his retaining solicitors to Ms van Kessel’s report in both his reports. In his report of 14 February 2020 he was asked to comment. He said:[25]
“My opinion is in accord with that of Ms van Kessel who reaches the diagnosis of a major depressive disorder and considers the disorder was caused by work incidents and the CVA…”
[25] Appeal papers page 169.
In his report of 16 March 2020 he reproduced a question from his retaining solicitors:[26]
“3. Please comment on Ms Van Kessel’s opinion, outlined in her report dated 15 May 2019. In this regard, she states that, based on the Claimant’s presentation between February 2018 and February 2019, ‘my view has been that there is no recognisable psychiatric illness’. She stated that ‘the reported symptoms did not qualify for a depressive disorder, anxiety disorder or PTSD diagnosis. At the time of the initial appointment the symptoms had subsided’. Could you please comment on whether the Claimant has suffered a diagnosable psychological injury at the time of his cessation of work, and further, the cause of the Claimant’s deterioration following February 2019?”
[26] Appeal papers page 173.
Dr Whetton answered:
“From the history that he gave he suffered a psychological injury prior to ceasing work and described the psychiatric injury as continuing from that time and present when examined by me.
From the history he provided that he suffered a diagnosable psychological injury prior to the cessation of work.”
It can be seen that the focus of the respondent at that time was whether Mr Njorge was suffering any psychiatric condition at the time he ceased work, and by implication whether the CVA had caused the deterioration noted by Ms van Kessel between February 2018 and February 2019. At the time the questions were asked it was not appreciated that the claim would be limited to Mr Njorge’s psychological condition at the time he suffered his CVA. Dr Whetton’s opinion as to diagnosis was: [27]
“His current medical condition is one of a chronic major depressive disorder. There are continued deficits from the stroke however his major condition is given as psychiatric.”
[27] Appeal papers page 65.
Similarly, Dr Gertler did not address this aspect of Mr Njorge’s claim. Whilst Dr Gertler recorded the fact of the CVA, he made no attempt to include it in his opinion regarding causation. He took consistent histories with Mr Njorge’s work related problems both prior and after his CVA. He said:[28]
“Mr [Njorge] is in my opinion, suffering from symptoms of a major depression. These include marked sleep disturbances with nightmares related to his previous employment at Kempsey and Port Macquarie…”
[28] Appeal papers page 62.
The opinions of both medico-legal referees were adequate to answer the claim as phrased in the ARD. The implication was that the constant work related stress had caused depression and hypertension, both of which conditions had caused the stroke, so that the subsequent progress of Mr Njorge’s psychological condition was causally related to the conditions that caused the stroke.
MA expertise
It follows that the MA did not have available any contemporaneous medical accounts that related to the pre-CVA psychological state. He had to rely on his experience, clinical training and expertise to formulate an opinion regarding that period of Mr Njorge’s employment with the respondent.
An important part of the formulation of an assessment is always the face-to-face nature of the consultation on which a psychiatrist can satisfy himself by appropriate questioning as to relevant issues.
As to the pre-CVA material, the MA had available only the statement from Mr Njorge, the handwritten character references and a further reference by Dr Andy Hughes the clinical director of psychiatry under whom he was working dated 20 July 2017. The only documentary evidence that confirmed the unsatisfactory nature of Mr Njorge’s relation to his employers was an email from Mr Njorge to Mr Pretty dated 4 May 2017, responding to three specific allegations against him.[29]
[29] Appeal papers page 103.
The MA went into considerable detail in his interview with Mr Njorge. He asked a number of questions regarding Ms van Kessel’s report, and he noted that there had been no description of work or social impairment prior to the CVA, and no description of any more pervasive psychiatric disorder than an adjustment disorder.
The effect of the Consent Order
The appellant was correct in its submission that both Dr Gertler and Dr Whetton diagnosed symptoms of a major depression.
The effect of the Consent Order was to recast the claim to be one that the work related stress had caused depression prior to the CVA, and the MA found that he then had to consider the part played in the development of Mr Njorge’s present psychiatric state by the CVA. It is now accepted law that an MA has jurisdiction to consider medical causation.[30]
[30] See Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264.
We accordingly find that the approach taken by the MA was open to him. His explanation and reasoning was clear and appropriate. He considered the alternative diagnoses of the medico-legal referees in detail and explained the position he had taken in terms that were consistent with the evidence. We therefore do not find any error in the conclusions to which he came based on his view of the medical causation in the circumstances of the case as it was referred to him.
Chapter 11.9 of the Guides provides:
“Co-morbidity
11.9 Consider comorbid features (eg bi-polar disorder, personality disorder, substance abuse) and determine whether they are directly linked to the work-related injury, or whether they were pre-existing or unrelated conditions.”
That the MA has applied that guideline is abundantly clear from his reasons. He found that the adjustment disorder had been so subsumed by the effect of the CVA that, although it existed, it was not causing any impairment, due to the overpowering effect this event in Mr Njorge’s life had caused to his psychological state. It was accordingly unrelated. That opinion was open to him, notwithstanding that reasonable minds, properly informed, might differ. It could be quite reasonably argued that there was some lingering impairment that was assessable, notwithstanding the lack of corroboration for Mr Njorge’s complaints. However its contribution to the impairment caused by the secondary psychological effects of the CVA would have been minor on any view of the evidence, and would not have entitled him to lump sum compensation in any event.
DECISION
For these reasons, the Appeal Panel has determined that the MAC issued on 18 December 2020 should be confirmed.
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