Packham v Retail Adventures Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Packham v Retail Adventures Pty Ltd [2024] NSWPICMP 237
APPELLANT:	Ricky Jon Packham
RESPONDENT:	Retail Adventures Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	23 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) wrongly considered if appellant’s permanent impairment was partly caused by subsequent events; whether MA applied correct test to determine if appellant’s permanent impairment was due to injury or subsequent event; whether MA was correct to make a deduction under section 323 for proportion of appellant’s permanent impairment due to a pre-existing condition; Appeal Panel held MA was correct to consider all matters including subsequent events that caused appellant’s permanent impairment, but MA applied incorrect test when assessing the degree of appellant’s permanent impairment due to appellant’s injury; Appeal Panel held MA was correct to make a deduction under section 323; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 November 2023 Ricky Jon Packham, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 October 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant was employed by Retail Adventures Pty Ltd, the respondent, as a retail assistant for approximately 10 years until 18 April 2012. Due to events that occurred in his workplace, including an assault on him on 18 April 2012 by several persons who had entered into the premises of the respondent, he suffered a psychological injury in the form of post-traumatic stress disorder. Relevant to the issues that have been raised in this appeal, the Panel notes that prior to the appellant commencing his employment with the respondent he had been diagnosed with attention deficit hyperactivity disorder.
Subsequent to the appellant ceasing his employment with the respondent, the appellant worked for around seven years until November 2019 with Woolworths Group Limited. During this time the appellant was subject to various stressors in this workplace. These included long hours of work and being required to undertake tasks that were not part of his job description. Those stressors resulted in, at times, a worsening of his symptoms from post-traumatic stress disorder and a fluctuation of those symptoms.
Subsequent to the appellant ceasing his employment with Woolworths Group Limited he worked for Australia Post sorting mail and then delivering it. He rode a motorcycle to perform the deliveries. In May 2020 he was attacked by a dog while delivering mail. The appellant reported that incident to both the RSPCA and the NSW Police. When he was on the same run a few days later, the owner of the dog verbally abused him and threatened him. This caused him to become very stressed and resulted in his taking a time off work.
In April 2021 the appellant witnessed an assault, he ceased work for a short period. After his return to work he was hit by a car whilst completing a delivery. He then ceased riding motorcycles because of his worry about having further accidents. He ceased his work with Australia Post.
Subsequent to the appellant’s employment with Australia Post he worked briefly for Kent’s Supplies, but did not advance beyond the probation period of three months due to difficulties with dealing with the customers of his employer. He now receives a disability support pension from the Commonwealth Government, and has not worked since 2021.
On 7 September 2020 the appellant completed and signed a permanent impairment claim form that his solicitors served on the respondent’s insurer. In that he made a claim for compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% whole person impairment (WPI) resulting from his psychological injury he suffered in his employment with the respondent. He indicated in the claim form that he relied on a report of psychiatrist Dr Graham Blom dated 31 August 2020 to support his claim.
On 8 January 2021 the respondent’s insurer notified the appellant under s 78 of the 1998 Act, that it disputed that he was entitled to compensation under s 66 of the 1987 Act. It advised him that it relied on a report of psychiatrist Dr Leonard Lee dated
20 November 2020, who had advised in his report that his opinion was that the appellant psychiatric condition was not related to his employment and that any of the appellant’s “whole person impairment is not a result of the work injury”.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment. The matter was referred to the Medical Assessor who examined the appellant on 28 May 2021. In a Medical Assessment Certificate dated 7 June 2021 the Medical Assessor stated that the appellant’s injury was not yet stable and that maximum medical improvement had not been attained. It is apparent from what the Medical Assessor set out in that certificate that he considered the degree of the appellant’s permanent impairment was not then fully ascertainable and declined to make an assessment of the appellant’s permanent impairment from his injury. The Medical Assessor indicated in the certificate that he considered the appellant had not attained maximum medical improvement. This was because the appellant had witnessed an assault shortly before the Medical Assessor’s examination of the appellant and this had caused the appellant to become distressed and resign from his employment and had a consequent decline in his condition. The Medical Assessor indicated that it would be a further six months before the appellant would achieve maximum medical improvement and that the degree of his permanent impairment from the injury could be assessed.
A delegate of the President of the Commission again referred the matter to the Medical Assessor on 2 August 2023, and in response to that referral, examined the appellant on
29 September 2023 and, as said above, issued the MAC on 10 October 2023.
In the MAC the Medical Assessor certified he assessed the overall degree of the appellant’s permanent impairment was 15% WPI.
The Medical Assessor rated the appellant’s permanent impairment from his injury in accordance with the criteria set out in Chapter 11 of the Guidelines. That required the Medical Assessor to rate the seriousness of the effects of the appellant’s injury in six areas of activity and conduct which together are termed the psychiatric impairment rating scale (PIRS). The appellant in his appeal against the MAC has challenged the Medical Assessor’s rating of his impairment in the PIRS for employability, in which the Medical Assessor rated the appellant’s impairment as Class 3, that is a moderate impairment. The reasons the Medical Assessor provided in the PIRS rating form for his rating were:
“He cannot perform full-time work. He can manage lower stress employment at around 20 hours per week, eg delivery work. He can no longer work at Sam’s Warehouse.”
The Medical Assessor also recorded in the MAC that he had discussed with the appellant his capacity for work and that the appellant had indicated that he had an inability to deal with customers and have social interactions and that he could not do motorcycle related work anymore. The Medical Assessor noted that he had also discussed with the appellant that after he had ceased working with the respondent he still had some capacity to deal with customers and staff members and that he had been promoted during his employment with Woolworths Group Limited. The Medical Assessor observed that the appellant is significantly worse now in dealing with people but the appellant could not recall any specific reason why he has become worse overtime.
The Medical Assessor noted that the appellant was able to work full-time with Woolworths for several years although was subject to stressors due to rostering and bullying behaviour. The Medical Assessor considered that the appellant had developed an adjustment disorder as a result of bullying and harassment in that workplace.
The Medical Assessor also said in the MAC, when summarising the appellant’s injury and his diagnosis of it, that the appellant “suffered a new psychiatric injury” after being hit by a car and the Medical Assessor observed that the appellant had not ridden a motorcycle since then and could not perform motorcycle based work. The Medical Assessor said “in my view, this is consistent with another episode of an adjustment disorder and specific of motorcycle riding”.
The Medical Assessor said that the injury the appellant developed due to being hit by a car “did not supplant the original subject injury”. The Medical Assessor considered “some of [the appellant’s] new psychiatric impairments are related to the subject injury and included in the PIRS, and some new impairment [sic] are not related to the original injury and therefore are set aside from the PIRS assessment”.
The Medical Assessor observed, with respect to the appellant’s capacity in employability, that most of the other independent medical examiners, which in addition to Dr Blom and
Dr Lee, included psychiatrist Dr Richa Rastogi, who prepared a report dated
23 September 2022 on behalf of the appellant, and psychiatrist Dr Mukesh Kumar, who prepared a report dated 13 December 2022 on behalf of the respondent, had rated the appellant’s impairment as Class 5. With respect to that, the Medical Assessor said that his view is that the appellant has some capacity for work purely as a result of the subject injury and observed that the appellant had a undertaken at least two long-term full-time employments after his employment with the respondent. The Medical Assessor said that the appellant “ceased work due to subsequent causally unrelated impairment, which is set aside”. The Medical Assessor said that the appellant “could have continued work in delivery work at 20 hours a week had he not developed a motorcycle phobia”. The Medical Assessor repeated that “the additional impairment from the subsequent event is set aside, as it is causally unrelated to the earlier subject injury and it can be shown the same new impairment would have developed, even if the original psychiatric injury had not occurred”.
The Medical Assessor certified that the appellant had a pre-existing condition in the form of a lifelong attention deficit hyperactivity disorder that directly contributed to the degree of the appellant’s permanent impairment from his injury. The Medical Assessor explained that this was because that condition affected the appellant’s concentration, persistent and pace, his vocational learning and vocational options and his capacity to participate in activities that require him to keep still including group settings. The Medical Assessor explained that the appellant’s pre-existing condition made his overall impairment higher and had he not had the pre-existing condition his current impairment would be lower. The Medical Assessor certified that he made a deduction of 1/10^th when assessing the degree of the appellant’s permanent impairment from his injury for the proportion of the appellant’s permanent impairment from his injury that was due to his pre-existing condition. The Medical Assessor advised in the MAC that he had assumed, in accordance with s 323(2) of the 1998 Act, that the deductible proportion was 10%.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient to deal with the matters raised in the appeal.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions, by way of providing a summary, they are that the Medical Assessor wrongly interpolated his opinion regarding whether the motor accident in which he was involved, and from which the Medical Assessor opined he had developed a motorcycle phobia, caused any impairment with respect to his ability to work.
The appellant further submitted that, irrespective of that, the Medical Assessor ignored “the principles” set out in Johnson v New South Wales Compensation Commission[1] (Johnson). The appellant did not however articulate what those principles were, nor which one or more of the unidentified principles Medical Assessor had ignored.
[1] [2019] NSWSC 347.
The appellant submitted that the Medical Assessor’s rating of his impairment in employability as Class 3 is an error and should be replaced with a rating of Class 5. It seems, from how the Appeal Panel understands the appellant’s submission, that this is on the basis that both
Dr Kumar and Dr Rastogi had assessed it as Class 5. Other than making reference to the ratings of Dr Rastogi and Dr Kumar, the appellant did not highlight any evidence to support his submission that his impairment “should be replaced with a rating of 5”.
The appellant submitted that the Medical Assessor erred “by applying a 1/10^th discount for a pre-existing condition or abnormality”. The appellant submitted that the Medical Assessor did not properly assess how the appellant’s pre-existing attention deficit hyperactivity disorder contributed to his permanent impairment. The appellant noted that neither Dr Rastogi nor
Dr Kumar “mentioned the relevance of ADHD in their reports”.
Paraphrasing the respondent’s submissions, also to provide a summary of them, they are that the medical dispute referred to the Medical Assessor required the Medical Assessor to assess the degree of permanent impairment of the appellant from the injury on 18 April 2012 and this required the Medical Assessor to confine his assessment only to the impairment related to that injury and to discount unrelated impairment. The respondent submitted that the Medical Assessor expressly did so and provided a detailed explanation for why he did so. The respondent submitted that the evidence before the Medical Assessor and the history the Medical Assessor obtained detailed intervening injuries that the appellant had suffered whilst employed by Woolworth and Australia Post.
The respondent submitted that the deduction the Medical Assessor made under s 323 of the 1998 Act was appropriate and open to the Medical Assessor on the available evidence. The respondent submitted that the Medical Assessor obtained a detailed history regarding the appellant’s pre-existing attention deficit hyperactivity disorder and how it impacted on the appellant’s functioning before the appellant’s injury. The respondent noted that the Medical Assessor considered the appellant’s pre-existing condition affected the appellant’s concentration and that the appellant’s impairment is greater as a result of his pre-existing attention deficit disorder. The respondent noted that the Medical Assessor had detailed how the appellant’s pre-existing attention deficit hyperactivity disorder affected his ability in employability because it affected his concentration, vocational learning and vocational options and ability to participate in activities that require him to keep still.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The Appeal Panel rejects the appellant’s submission to the effect that the Medical Assessor was wrong to consider whether subsequent events had caused or materially contributed to his impairment, and whether any such impairment was related to his injury of 12 April 2012. It is the exclusive function of a Medical Assessor to determine what permanent impairment results from a work injury.[2] Necessarily, that requires a Medical Assessor to consider whether any event has occurred subsequent to the worker’s work injury, from which the worker suffers impairment or symptoms, and, if a worker has, to consider whether and to what extent the subsequent event and any impairment and symptoms arising from the subsequent event is related to the work injury.
[2] Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA264; 13DDCR156 at [110] – [118].
That said however, when considering that matter, the Medical Assessor must apply common law principles of causation in tort.[3] Further, the Medical Assessor must be mindful that an impairment of a worker can have multiple causes.[4]
[3] Secretary, NSW Department of Education v Johnson [2019] NSWCA321 at [55].
[4] Calman v Commissioner of Police [1999] HCA60 at [38] – [40]. This case concerned an incapacity from an injury, but the principle extends to an impairment from an injury; Cluff v Dorahy Bos (Wholesale) Pty Ltd [1979] 2NSWLR435 this case also concerned an incapacity from injury, but again the principle extends to an impairment from an injury; ACQ Pty Ltd v Cooke [2009] HCA28 at [25].
Given that, where a worker has suffered a work injury and subsequently suffers another injury, or in the case of psychological injury is exposed to subsequent stressors, a Medical Assessor must consider which of the 3 scenarios or categories identified in State Government Insurance Commission v Oakley[5] (Oakley) correlates with the worker’s situation when assessing the degree of the workers permanent impairment from the work injury. [6] Those categories are, in a workers compensation context:
(a)    where the worker suffers an injury subsequent to suffering a work injury and that later injury would not have occurred had the worker not been in the condition caused by the work injury, the impairment or symptoms from the later injury should be treated as being caused by the work injury;
(b)    where a worker suffers a subsequent injury that would have occurred had the worker been in normal health, but the impairment of the worker from the subsequent injury is greater because of aggravation of the work injury, then additional impairment resulting from the aggravated injury should be treated as caused by the work injury, and
(c)   where the worker suffers further injury which would have occurred had the worker been in normal health and the impairment from that further injury includes no element of aggravation of the work injury, the subsequent and further injury should be regarded as causally independent of the work injury.
[5] [1990] 10MVR 570; [1990] Aust Torts reports 81 – 003.
[6] Johnson at [70] and [126] .

The Medical Assessor considered that the appellant could have continued delivery work at 20 hours a week had he not developed a “motorcycle phobia”. The Medical Assessor considered that the motorcycle phobia was the exclusive result of the car accident in which the appellant was involved many years after he suffered his work injury. That was a factor the Medical Assessor took into account when rating the appellant’s impairment in the PIRS for employability. The Medical Assessor said he “set aside” when rating the appellant’s impairment from work injury in the PIRS for employability the “motorcycle phobia” that he considered the appellant suffered from the motor accident.
The Appeal Panel considers the Medical Assessor was wrong to do so. What the Medical Assessor described as a motorcycle phobia was in substance the appellant becoming anxious about using a motorcycle and consequently avoiding using a motorcycle, which in the Appeal Panel’s view stems from an exacerbation of the appellant’s post-traumatic stress disorder. In other words, the appellant’s anxiety about using that form of transport is a manifestation of the post-traumatic stress disorder he developed as a consequence of his employment with the respondent. This falls within the second category identified in Oakley.
The Medical Assessor consequently ought to have had regard to the appellant’s anxiety about and his increasing avoidant behaviours, such as the use of motorcycles when rating the appellant’s impairment in employability. The MAC consequently contains a demonstrable error. In the Appeal Panel's view, the Medical Assessor was wrong to conclude that the appellant was able to undertake delivery work, or any other form of employment, for 20 hours a week. There is no evidence available that this is the case. The appellant has ceased his employment with Woolworths and with the Post Office after the exacerbation of this condition and failed a work trial at Kent’s Supplies. His impairment in employability is severe.
The Appeal Panel also rejects the appellant’s submission to the effect that the Medical Assessor was wrong to conclude that a proportion of his permanent impairment from his work injury was due to his pre-existing attention deficit hyperactivity disorder and that the Medical Assessor did not explain how his pre-existing disorder contributed to his permanent impairment from his injury. The Medical Assessor made plain in the MAC that the appellant’s pre-existing attention deficit hyperactivity disorder affected his concentration, vocational learning and vocational option, his capacity to participate in activities and including group setting. The Medical Assessor cogently explained that the appellant’s pre-existing disorder affected his capacity in the domain of concentration, persistence and pace. The Medical Assessor explained that the appellant’s work injury made his concentration, persistence and pace worse, and that if the appellant did not have attention deficit hyperactivity disorder his impairment in this domain would not have been as great.
It is not to the point that the other medical examiners who assessed the appellant did not make a deduction under s 323. Dr Blom did not obtain a history that the appellant had attention deficit hyperactivity disorder. Dr Rastogi, whilst obtaining that history, simply did not grapple with the issue of whether that disorder contributed to the appellant’s permanent impairment. Indeed, it is not apparent from the content of her report that she was briefed by the appellant’s solicitors to consider that issue. Dr Kumar whilst also obtaining a history that the appellant had a pre-existing attention deficit disorder considered that no deduction was necessary on account of that pre-existing condition when assessing the degree of the appellant’s impairment from his injury but the explanation he provided lacked cogency, in the Appeal Panel’s view. Dr Kumar merely said that the appellant had not had any impairments or needed treatment prior to the index incident in 2012. That is not the correct test. The test is whether the condition, at the time the degree of the appellant’s permanent impairment was assessed, contributed to his impairment, not whether it was symptomatic at the time of injury.
The Medical Assessor applied the correct test when considering whether any proportion of the appellant’s permanent impairment was due to his attention deficit disorder. The Medical Assessor provided a cogent explanation for his conclusion that it was. The Appeal Panel discerns no error from the Medical Assessor making a deduction of 10% under s 323 (1) of the 1998 Act on account that the appellant’s attention deficit disorder.
Given that the Appeal Panel has found an error in the MAC, it must correct that error. The Appeal Panel considers, based on the symptoms the appellant currently has from his post-traumatic stress disorder, that he has reduced pace and his attendance at any job would be erratic. Certainly that was his history with Australia Post and with Kent’s Supplies. It is unlikely that he would be able to do delivery work. In all likelihood he would be only able to work one or two days at a time and less than 20 hours a fortnight given his current symptoms. The Appeal Panel consequently rates his impairment in employability as severe, that is Class 4.
That means the median of his Class scores in the several PIRS remains as 3, but the aggregate of his scores increases to 16. In accordance with Table 11.7 of the Guidelines, that equates to 17% WPI. When the 10% deduction under s 323 (1) of the 1998 Act that the Medical Assessor correctly assessed is applied, then the degree of the appellant’s permanent impairment from his injury is 15% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 October 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	505/21
Applicant:	Ricky Jon Packham
Respondent:	Retail Adventures Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Michael Hong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter,

page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Psychological/psychiatric disorder

18/04/2012

Chapter 11

17%

1/10

15%

Total % WPI (the Combined Table values of all sub-totals)

15%

[2024] NSWPICMP 237

23 April 2024