SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PASCHALIS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA & ANOR
[2021] SASCFC 44
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Livesey and the Honourable Justice Bleby)
25 November 2021
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - GENERALLY
INTERPRETATION - GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS
This is an appeal against the finding of the Full Bench of South Australian Employment Tribunal (the Full Bench) that the appellant had a “whole person impairment” (WPI) of 15 per cent, disentitling him to compensation as “seriously injured worker” under s 21(2) of the Return to Work Act 2014 (SA) (the Act).
The appellant worker sustained a psychiatric injury after a workplace incident on 7 August 2017 and subsequently sought benefits as a “seriously injured worker”. Dr Begg, an accredited assessor, assessed the appellant as having a “whole person impairment” (WPI) of 35 per cent, which was reduced by 20 per cent to 15 per cent on account of pre-existing impairment not related to the work injury.
The trial Judge found that the 20 per cent WPI deduction was erroneous and substituted for it a WPI of 35 per cent. The employer appealed to the Full Bench which concluded that the trial Judge erred and restored the 15 per cent WPI.
The appellant now appeals that finding to this Court on the basis that the Full Bench exceeded jurisdiction, erred in adopting the 20 per cent deduction and misconstrued ss 28(8)(b) and 22(8)(g) of the Act.
Held per Kourakis CJ, allowing the appeal and setting aside the decision of the Full Bench:
1. The Full Bench exceeded its jurisdiction by finding, in the absence of any evidence to that effect, that the pre-existing conditions of an adjustment and alcohol abuse disorder were the cause of an unrelated impairment.
2. The Full Bench conflated the subject matter of ss 22(8)(b) and (g) and did not grasp that subparagraph (g) only authorises a deduction for pre-existing conditions if it was due to an injury.
3. In relation to subparagraph (g), there was no assessment of the impairment in accordance with the principles of the Impairment Assessment Guidelines as so required.
4. It was not correct to postulate the degree of impairment that the workplace insult would have caused a hypothetical worker who did not suffer losses from a subsequently contracted condition and deduct that from the actual WPI.
5. The Full Bench erred in its construction of the words “unrelated cause’” in s 22(8)(b) by extending them to impairments which are not the consequence of an injury.
6. When conducting a deduction exercise in relation to pre-existing or unrelated causes, there must be an assessment of the degree of impairment flowing from any pre-existing condition or any condition or injury resulting from an unrelated cause.
Held per Livesey and Bleby JJ, dismissing the appeal:
1. The Full Bench did not substitute or make a finding of fact contrary to that of the trial Judge. Rather, it identified an error of law in the trial Judge’s approach to the evidence.
2. It is permissible to have regard to the Act and the Impairment Assessment Guidelines referred to in the Act in order to ascertain the nature of the s 22 scheme, particularly where they establish an interdependent regime.
3. A construction of the Act that permits compensation for injuries or impairments arising from injuries or causes which have no relevant connection to a compensable injury is inconsistent with the objects and the scheme of the Act as a whole.
4. Sections 22(8)(b) and (g) express the same legislative intention: only impairment attributable to the relevant work injury will be assessed for compensation. The difference between the provisions is that s 22(8)(b) is limited in application to injuries or causes that are “unrelated” to the relevant work injury, whereas s 22(8)(g) may apply even where previous injuries are related to the relevant work injury in some way. The previous injury need not be a work injury and may arise “because of a pre existing condition”.
5. Where a pre-existing injury or cause leading to impairment is identified as affecting any assessment of a work injury impairment, the assessor must recognise the impairment flowing from that pre-existing cause or injury, evaluate it, and deduct it from the work injury assessment.
6. The Guidelines provide for a two-stage approach to the assessment of WPI, whereby the assessor must first assess the worker’s WPI taking into account both the relevant work injury and any unrelated or previous injury before deducting the degree of impairment attributable to the unrelated or previous injury.
Return to Work Act 2014 (SA) s 3, s 7, s 21(2), s 22(2), s 22(3), s 22(7)(c), s 22(8)(b), s 22(8)(g); South Australian Employment Tribunal Act 2014 (SA) s 26I, s 27; Workers Rehabilitation and Compensation Act 1986 (SA) s 43A(9)(b), referred to.
McMahon Services Australia Pty Ltd v Return to Work Corporation of South Australia & Paschalis [2019] SAET 199; Paschalis v RTWSA & McMahon Services Australia Pty Ltd [2018] SAET 121, discussed.
Abraham v Return to Work SA [2016] SAET 76; Alcoa Holdings Limited & Anor v Lowthian & Ors [2011] VSC 245; Attorney-General (NSW) v Melco Resorts and Entertainment Ltd (2020) 102 NSWLR 47; Barnett v Transport Accident Commission (1999) 15 VAR 414; Barnett v Transport Accident Commission (2001) 34 MVR 26; Berden v Return to Work SA [2018] SAET 27; Comcare v Martin (2016) 258 CLR 467; Connelly v MMI Workers Compensation (Vic) Ltd (2003) 6 VR 555; Dallimore v Return to Work SA [2017] SAET 72; Department for Health and Ageing v Neilson [2017] SAET 136; Frkic v Return to Work Corporation of South Australia (No 2) [2020] SASCFC 59; Gillat v Transport Accident Commission (2003) 38 MVR 463; Harrison v Melhem (2008) 72 NSWLR 380; H J Heinz Company Limited v Kotzman [2009] VSC 311; Lake v Transport Accident Commission [1998] 1 VR 616; Lennon v Gibson & Howes Ltd (1919) 26 CLR 285; Marrone v Employers Mutual Ltd (2013) 116 SASR 501; Martinez v Dynamic Engineering Construction Co Pty Ltd [2005] VSC 204; Millane v Hacker & Greenberg [2003] VSC 72; Mountain Pine Furniture Pty Ltd v Taylor (2007) 16 VR 659; O’Connell v Nixon (2007) 16 VR 440; Plaintiff M47-2012 v Director-General of Security (2012) 251 CLR 1; Purkess v Crittenden (1965) 114 CLR 164; Redman v Return to Work Corporation of South Australia [2021] SASCA 25; Reilly v Workcover Corporation/MMI Workers Compensation (SA) Pty Ltd (Anglicare South Australia) [1999] SAWCT 93; State Trustees Ltd v Transport Accident Commission (2002) 6 VR 359; Tabcorp Holdings Ltd v Victoria (2016) 328 ALR 375; The State of South Australia (In Right of the Department for Health and Ageing (SA Ambulance Service)) v Dohnt [2021] SASCFC 33; The State of South Australia v (SAPOL) v Weeding [2014] SAWCT 36; Transport Accident Commission v Elworthy [2007] VSC 48; Vegco v Gibbons [2008] VSC 363; Watts v Rake (1960) 108 CLR 158, considered.
PASCHALIS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA & ANOR
[2021] SASCFC 44Full Court: Kourakis CJ, Livesey and Bleby JJ
KOURAKIS CJ: This is an appeal against the decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and SAET respectively) reinstating the whole person impairment (WPI) assessment resulting from the appellant’s major depression made by an approved medical practitioner, Dr Begg. That percentage impairment was 15 per cent, at which Dr Begg arrived after deducting 20 per cent for ‘unrelated causes’.
I would allow the appeal and restore the decision of the Deputy President which had set aside Dr Begg’s assessment and found that the appellant, Mr Paschalis, had a WPI of 35 per cent. My essential reasons for doing so appear immediately below. The construction I give s 22(8) of the Return to Work Act 2014 (SA) (RTW Act) and the findings to which I have applied that construction are then further explicated in what follows.
Dr Begg was asked by the first respondent, Return to Work Corporation (RTW), to assess the impairment of Mr Paschalis’ ‘major depressive disorder with psychotic features’. Although described in different terms on Mr Paschalis’ claim, and the subsequent acceptances of that claim, the proceeding in SAET proceeded on the basis that Mr Paschalis suffered the psychiatric injury so described as a result of an injury at work on 7 August 2015.
Mr Paschalis’ employer, McMahon Services Australia Pty Ltd, is the second respondent.
The circumstances of the injury are described in the judgment of Livesey J. I will refer to it as the workplace insult to encapsulate both the nature of the incident and its effect on his psyche.
In requesting an assessment of Mr Paschalis, RTW, through its agent Gallagher Bassett, informed Dr Begg that the work injury was a major depressive disorder with psychotic features which had been diagnosed by another psychiatrist, Dr Van den Bos. Dr Begg was not asked by Gallagher Bassett to make a deduction for any unrelated or pre‑existing impairment identified by them, but was asked to identify for himself, and disregard, any portion of the impairment that was due to a pre-existing or unrelated condition, injury or cause.
Dr Begg accepted the diagnosis of a major depressive disorder which he described as severe and with psychotic features. He assessed the WPI arising from that condition in accordance with the Impairment Assessment Guidelines (IAG) to be 35 per cent but apportioned 20 per cent of that impairment to what he described as ‘multiple relationship losses’. The IAG is the statutorily prescribed guide against which approved medical practitioners must assess degrees of impairment for the purpose of the RTW Act. The relationship losses were Mr Paschalis’ marital separation, within a week or so of the work insult, distancing from his children, and subsequent tension between him and his sister. Dr Begg thought, unremarkably, that if a relationship breaks down within six months of contraction of an illness it is often because of pre-existing problems, and that the loss of the relationship itself can become a potent cause of mental illness, particularly depression. I pause to make the trite observation that a poor marital relationship, like having no marital relationship, or being relatively isolated, is not in itself an injury or impairment. True it is that all three life circumstances may be manifestations of an injury, illness or impairment. However, in his report to RTW Dr Begg did not identify nor assess any non-work injury, illness or impairment which contributed to Mr Paschalis’ relationship problems and did not diagnose any medical condition at all which pre‑existed the workplace insult. Nor did he identify any particular impairment flowing from the relationship breakdown which was not an integral part of Mr Paschalis’ major depression which was the accepted work injury.
However, in the trial before the Deputy President, Dr Begg testified that there was a pre‑existing impairment which made ‘quite a contribution to the overall subsequent injury or subsequent impairment.[1] Dr Begg attributed the pre-existing impairment to Mr Paschalis’ pre-existing personality but was reluctant to describe it as a psychiatric disorder. He did not assess the degree of the impairment which pre‑existed the workplace insult against the IAG.
[1] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3594/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 116.
In his evidence Dr Begg spoke of a ‘pre-existing impairment in [Mr Paschalis’] relationships’:[2]
I think they were related to a pre-existing impairment that he had in his relationships and in general with how he was dealing with the world as such, and that meant that when those relationships broke down, he didn’t have a capacity to be able to re-establish the relationships.
[2] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3594/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 115.
Dr Begg explained that he quantified the degree of impairment unrelated to the workplace insult at 20 per cent because he thought that the depression from which Mr Paschalis suffered was a disproportionate reaction to the workplace insult.
Insofar as Dr Begg’s opinion was based on an opinion that there was no relationship between Mr Paschalis’ distress over the workplace insult and the argument with his wife which precipitated their separation, the Deputy President found otherwise. The evidence supporting the Deputy President’s finding was strong. Indeed, it would have been unreasonable to find otherwise given concessions made by Dr Begg in cross‑examination to which I refer below. Whether or not the review before the Deputy President was a review of Dr Begg’s assessment in itself, or of the decision of RTW to reject Mr Paschalis’ claim that he was a seriously injured worker on the basis of that assessment, the Deputy President was entitled, and indeed required, to reach the correct or preferable decision after having due regard to the decision of the original decision maker.[3] Accordingly, the assessment of Mr Paschalis’ WPI must proceed from the Deputy President’s finding that the workplace insult contributed to the breakdown of Mr Paschalis’ familial relationships. It follows that, to the extent that those losses manifested a medical condition, that condition, howsoever it might be described, was aggravated or exacerbated by the workplace insult.
[3] Section 27(4) of the South Australian Employment Tribunal Act 2014 (SA).
Insofar as Dr Begg based his opinion, either in his reported assessment or in his testimony, on a pre-existing personality, adjustment or alcohol abuse disorder, there was no proper ground on which to make a deduction to Mr Paschalis’ incapacity because Dr Begg made no assessment of the degree of Mr Paschalis’ impairment against the IAG before the workplace insult occurred. That is not surprising. His pre-workplace functioning was not explored at all in the report and was barely touched on in evidence. The evidence simply did not allow an assessment of that pre-existing impairment to be made in accordance with the IAG or at all.
In any event, on a proper reading of Dr Begg’s report and his testimony, his opinion was that the major depression caused by the workplace insult was worse than it might otherwise have been because Mr Paschalis lost close personal relationships, which were already in a poor state prior to the workplace insult. The question of relative contributions to the major depression is a completely different one to the degree of any impairment which Mr Paschalis might have suffered before the workplace insult.
It might also be accepted that it was Dr Begg’s opinion that Mr Paschalis’ work caused major depressive illness and was made worse than it might otherwise have been because of his pre-existing personality.
However, in whichever way Dr Begg’s opinion is understood it did not support a deduction for an unrelated impairment. As to the former, it is an ordinary incident of life’s ebb and flow that personal circumstances, and changes in personal circumstances, will undermine resilience and wellbeing in a way which obstructs recovery from, or increases the severity of, an illness. Those life events are not pre-existing or unrelated impairments or causes within the meanings of ss 22(8)(b) and (g). They are simply part of the personal circumstances on which the illness operates. As to the latter, a pre-existing personality vulnerability which exposed Mr Paschalis to a more severe injury is not a condition which warrants a deduction of the assessed WPI, nor is it something which must be disregarded. Even if it is a condition, but one which is aggravated by a work injury, the compensable injury which must be assessed is the condition so aggravated.
In summary, Dr Begg and the Full Bench of SAET conflated two quite different concepts. The first concept is the relative contribution of different causes or illnesses to the compensable illness or impairment. The second is the assessment and deduction of impairments which operate independently of the compensable impairment.
The first concept is primarily a question of liability. Liability for Mr Paschalis’ major depression with psychotic features was accepted by RTW (and is not in issue). It is the condition which RTW asked Dr Begg to assess. Section 22(8) of the RTW Act does not authorise a deduction to the WPI assessed by Dr Begg, even if it be accepted that Mr Paschalis’ pre-existing personality and alcohol abuse disorders and subsequent relationship breakdowns contributed substantially to his major depression. To the extent that the pre-existing disorders were aggravated or exacerbated, and will indefinitely continue to be aggravated or exacerbated by the workplace insult, they form part of the compensable condition which fell to be assessed. It is those conditions so aggravated, together with the direct effect of the workplace insult, which are the compensable injury or impairment.[4] Section 7 of the RTW provides:
[4] See s 7 of the Return to Work Act 2014 (SA). I note that the effect of s 7 may not be properly reflected in that part of Appendix 1 of the IAG headed ‘Prior compensation payment under another jurisdiction for the same body part’.
7—Injury must arise from employment
(1)This Act applies to an injury if (and only if) it arises from employment.
(2)Subject to this section, an injury arises from employment if—
…
(b) in the case of a psychiatric injury—
(i)the psychiatric injury arises out of or in the course of employment and the employment was the significant contributing cause of the injury; and
…
(3)In connection with the application of subsection (2) to an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury (a prescribed event)—
…
(b) in the case of a psychiatric injury—
(i)employment must be the significant contributing cause of the prescribed event; and
(ii)the prescribed event must not arise wholly or predominantly from any action or decision designated under subsection (4) [reasonable disciplinary or administrative action],
and then the injury is only compensable to the extent of and for the duration of the relevant aggravation, acceleration, exacerbation, deterioration or recurrence.
…
It follows that the relative extent of the contributions made by the various causes of an injury, which is an aggravation or exacerbation, to the single resulting compensable impairment is irrelevant. So too are any pre-existing or subsequently occurring personal circumstances which are not an injury or impairment within the meaning of those terms in the RTW Act. There can be no deduction to the WPI assessment of an injury or impairment which is compensable under the Act on the grounds that a person’s functioning, although not limited by a medically recognisable injury or condition, has always been sub‑optimal.
On the other hand, s 22(8) of the RTW Act does require an assessment of the degree of any pre-existing impairment or a subsequently contracted, unrelated injury or impairment which limits the worker’s functioning independently of, or in addition to, the compensable impairment. The best measure of a pre-existing impairment is its effect on a worker’s functioning prior to the work injury. The best measure of subsequent but unrelated impairment is its additional effect over and above the worker’s compensable impairment. There was no evidence in this case of any such assessment because no medical practitioner attempted it. Dr Begg’s report proceeds on the premise that all of Mr Paschalis’ impairments are inextricably connected and are part of a single major depression. There was no attempt to identify parts of Mr Paschalis’ permanent post-workplace insult impairment which were related either to relationship losses (which in any event are simply part of his personal circumstances) or of any psychological impairment which resulted from those losses alone. Nor was there an identification or assessment of any pre-existing impairment due to a personality disorder which was not aggravated by the workplace insult.
An integral part of a single injury or impairment caused by an aggravation cannot constitute a pre-existing or unrelated impairment. If an impairment cannot be separately identified, it is probable that it is integral to the compensable impairment.
The point I seek to make about Mr Paschalis’ pre-existing disorders can perhaps be better explained by contrasting them with a major psychiatric illness which is clearly not affected by the later work injury. For example, if Mr Paschalis had suffered from a pre‑existing schizophrenia or bipolar disorder which was not exacerbated by his workplace insult, an assessment of Mr Paschalis’ psychological impairment for either of those pre-existing illnesses would be made and deducted before assessing his permanent compensable impairment. Equally, if, after the workplace insult, Mr Paschalis had developed either illness, their adverse effects on his psychiatric functioning would be disregarded.
The point can also be illustrated by reference to a physical injury. A pre‑existing lumbar spine impairment from a L2 vertebral injury must be deducted if it has not been aggravated by a subsequent workplace vertebral injury at the L4 level. So too if a L2 vertebral injury is subsequently suffered without any contribution from an earlier compensable vertebral injury at the L4 level. The additional impairment must be disregarded.
Expanding on the last example, the conflation of concepts in the approach adopted by Dr Begg and the Full Bench can be illustrated as follows. Let it be assumed that a non‑compensable vertebral injury at the L4 level has stabilised, leaving a worker with a 10 per cent functional impairment. Let it be assumed that that condition is aggravated by a work injury to the L2 vertebra, leaving a permanent impairment of 30 per cent, to which both the first and second injury contributed equally. The proper approach is to deduct from that 30 per cent assessment the pre-existing 10 per cent impairment. It is an improper application of s 22(8) of the RTW Act to halve the 30 per cent impairment on the basis that both injuries contributed equally to it.
It is the latter, and erroneous, approach which was taken by Dr Begg and the Full Bench. The error is one of law in the construction of s 22(8)(g) of the RTW Act. Alternatively, it is an error of law in accepting that there was evidence on which an assessment of a pre-existing or unrelated 20 per cent impairment might be made when there was none. Dr Begg and the Full Bench reduced Mr Paschalis’ WPI by the percentage causal contribution to his final overall condition and not by reference to an assessment of a pre-existing or unrelated impairment. The former approach might properly be adopted in assessing the proportionate liability of multiple wrongdoers and may guide a reduction of damages for adverse contingencies at common law. The latter is the approach prescribed by s 22(8) of the RTW Act.
I elaborate on the above reasons and expand on the facts on which they are based below.
The applications for review
The workplace insult occurred on 7 August 2015. Mr Paschalis lodged a claim for income support and medical expenses on 31 August 2015. A medical certificate was attached. On 29 September 2015 WorkCover accepted the claim for medical expenses and weekly payments for an ‘adjustment disorder with anxiety and depression that occurred on 7 August 2015’. It is probable that the certificate was that of the psychiatrist Dr Farnbach who saw Mr Paschalis on 11 August 2015, or Mr Paschalis’ general practitioner who had referred him to Dr Farnbach, because Dr Farnbach diagnosed Mr Paschalis with an ‘adjustment disorder with anxious and depressed mood’.
On 15 November 2016 Gallagher Bassett wrote to Mr Paschalis informing him that he was not eligible for long-term support under the amendments to the RTW Act which came into effect on 1 July 2015 because he was assessed with a WPI below 30 per cent and therefore did not qualify as a seriously injured worker.
On 3 February 2017 Gallagher Bassett, as agents for RTW, denied Mr Paschalis’ request for an adjustment of his income maintenance pursuant to s 47 of the RTW Act on the grounds that he was not a seriously injured worker. On 27 March 2017 Mr Paschalis’ solicitors applied for a review of that decision on the ground that Dr Begg had erred in making a deduction from the WPI he had assessed.
On 12 April 2017 RTW confirmed its decision of 3 February 2017.
On 24 July 2017 Mr Paschalis’ solicitors made an application for a review of the decision of Gallagher Bassett dated 15 November 2016 referred to in [27] above. Again, the application asserted that Dr Begg had erred in that there was no evidence to support the conclusion that Mr Paschalis suffered a pre‑existing or unrelated impairment of 20 per cent. On the same day Mr Paschalis’ solicitors made an application for review of Dr Begg’s assessment itself on the same grounds.
On 22 May 2018 Mr Paschalis’ solicitors filed a statement of issues and contentions, ahead of the hearing before the Deputy President, in which identified the following issues:
1.Whether the Applicant is a ‘seriously injured worker’ for the purposes of the Return to Work Act 2014 (“the Act”)?
2.Is the determination of the Respondent dated 15 November 2016 correct in finding that 15%, out of a total 35% WPI, of the Applicant’s psychiatric injury is compensable?
3.If the current psychiatric opinion is unreliable, or incomplete, or does not properly follow the Impairment Assessment Guidelines, should the matter be referred to an Independent Medical Assessment (see Abraham v RTWSA [2016] SAET 76; White v RTWSA [2018] SAET 91)?
The proper construction of s 22 of the Return to Work Act
Section 22 of the RTW Act relevantly provides:
22—Assessment of permanent impairment
(1)This section sets out a scheme for assessing the degree of impairment (being whole person impairment) that applies to a work injury that results in permanent impairment.
(2) An assessment under this section—
(a) must be made in accordance with the Impairment Assessment Guidelines; and
(b) must be made by a medical practitioner who holds a current accreditation under this section.
(3)The Minister will publish guidelines (the Impairment Assessment Guidelines) for the purposes of the assessment of permanent impairment (being whole person impairment).
…
(7) An assessment of the degree of impairment resulting from an injury—
(a) must not be made until there is evidence that the injury has stabilised; and
(b) must, subject to subsection (8), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and
(c) must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines.
(8) An assessment must take into account the following principles:
(a) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury;
(b) impairments from unrelated injuries or causes are to be disregarded in making an assessment;
(c) impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines);
(d) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury;
(e) in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm;
(f) in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm;
(g) any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre existing condition) that caused the worker to suffer an impairment before the relevant work injury is to be deducted for the purposes of an assessment, subject to any provision to the contrary made by the Impairment Assessment Guidelines;
(h) assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines.
…
(10)Subject to subsections (11) to (15) (inclusive), only 1 assessment may be made in respect of the degree of permanent impairment of a worker from 1 or more injuries (including consequential injuries) arising from the same trauma (and any injury that may subsequently develop or manifest itself or develop after the assessment of impairment is made will not be assessed).
…
(12)Subsection (10) does not affect the requirement under subsection (8)(d) for impairment resulting from physical injury to be assessed separately from impairment resulting from psychiatric injury.
…
Section 22(1) of the RTW Act announces that the purpose of the scheme which follows is the assessment of the degree of impairment, known as whole person impairment, resulting from a work injury. Section 22 contemplates the making of guidelines pursuant to s 22(3) of the RTW Act but unfortunately, its language, in parts, anticipates the very contents of the yet to be published guidelines. For example, s 22(8) of the RTW Act requires certain impairments to be ‘assessed together or combined’ but that phrase can be given no precise statutory meaning other than that which the phrase might be given by the principles set out in the IAG, to which that subsection refers. Similarly, whatever meaning might be given to the word ‘disregarded’ on a reading of subparagraph (b) alone, its practical effect is likely to be determined by the requirements of the IAG which are given statutory force by s 22(8)(h) of the RTW Act.
The RTW Act does not define an impairment. However, the definition of the word ‘injury’ shows that the statutory concept of impairment under the RTW Act is inextricably linked to the concept of injury which is defined to include loss, deterioration or impairment of a body part or physical, mental or sensory faculty.
RTW submitted in this Court that s 22(8)(b) and s 22(8)(g) should be construed as a complementary suite of provisions, a central theme of which is to exclude from the compensable WPI any impairment from a cause other than the relevant work injury. So much can be accepted, but their interrelationship is more complex than that.
The predecessor of s 22(8)(b) of the RTW Act is s 43A(9)(b) of the Workers Compensation and Rehabilitation Act 1986 (the repealed Act). It governed the assessment of lump sum compensation for non‑economic loss. Its purpose was to ensure that the lump sum payment was made only in respect of permanent impairment which was compensable.[5]
[5] Reilly v Workcover Corporation/WMI Workers Compensation (SA) Pty Ltd (Anglicare South Australia) [1999] SAWCT 93.
The WPI assessed in accordance with s 22 of the RTW Act now governs not only lump sum compensation for non‑economic loss but also determines whether a worker is a seriously injured worker for the purposes of the extended income maintenance provisions. For those two purposes, s 22(8)(b) of the RTW Act operates together, and must be construed coherently, with s 22(8)(g) of the RTW Act and indeed the Act as a whole.
It is convenient to consider first the operation of subparagraph (g). It operates in cases in which a worker suffered an impairment before the relevant work injury. It is that impairment which is the portion of an impairment that is ‘due to a previous injury’ which must be deducted. The words in parenthesis show that the deduction must be made whether the previous injury is an earlier compensable work injury or a non‑work related condition. It is for that reason that subparagraph (g) operates ‘subject to any provision to the contrary made by the IAG’. It allows, as an alternative to reducing the WPI, the deduction of a lump sum previously paid by way of compensation from the lump sum which would otherwise be payable for the WPI comprising both the pre-existing and the current, compensable, condition, in accordance with the IAG.
The deduction authorised by the IAG is of the lump sum paid for the pre-existing impairment. If deductions made from a WPI were calculated by reference to the percentage contribution to the final injury and not the degree of pre-existing impairment there would be a tension between those two approaches to reducing the compensation payable for the later impairment. The former approach would favour the compensating authority: the latter the worker. Of course, impairments due to pre‑existing conditions which are not work injuries will generally be deducted from the WPI. As shall be seen, however, whichever construction is given to s22(8) of the RTW, the IAG requires an assessment of the pre-existing impairment and not the percentage impairment contributed by the pre-existing condition.
Subparagraph (b) is wide enough, on its face, to extend to pre‑existing work injuries or conditions and to subsequently contracted conditions. In the former respect, however, it must be read coherently with, and must therefore not yield any different result to, subparagraph (g). It would be anomalous to apply subparagraph (b) to pre‑existing ‘causes’ which are not injuries or conditions within the meaning of subparagraph (g), or for the process of disregarding authorised by subparagraph (b) to result in a different WPI than the WPI calculated in accordance with subparagraph (b). If that were allowed, a legislative choice would be impermissibly conferred on RTW or the SAET.
That result suggests that for subsequently contracted conditions ‘causes’ are also limited to injuries or other conditions. That construction of subparagraph (b) is, in any event, also consistent with its purpose. Subparagraph (b) requires both unrelated ‘injuries’ and ‘causes’ to be disregarded because an injury may be related to the compensable injury but have a different (unrelated) cause. It is because the word ‘injury’ includes the physiological effects of both an external insult or endogenous condition, and the resulting impairment, that subparagraph (b) is drafted as it is. To return to my earlier example, an impairment of the lumbar spine may be attributable to vertebral disruption at two different levels caused by different incidents, only one of which is compensable. The injuries are related because they both limit the function of the lumbar spine but the impairment due to the non‑work injury results from an unrelated cause. The pre‑existing impairments governed by subparagraph (g) will in practice be related impairments in the sense that they affect the same functionality as the compensable impairment, because if they were not it would be either supererogation or irrational to deduct one from another. There would seem to be little point in assessing and accumulating the WPI resulting from both a non-compensable arm injury and a compensable lumbar spine impairment only to then deduct the former from the total. When there is an impairment attributable to an unrelated injury it is simplest to disregard it so that no occasion for a deduction arises. It follows that impairments which are unrelated, in the sense that they do not affect the functionality impaired by the compensable injury or condition, whether pre‑existing the work injury or sustained after it, will generally be disregarded in accordance with s 22(8)(b) of the RTW Act. The practical effect may be the same as a deduction but there will not be a need to quantify the impairment in accordance with the IAG because it only affects a completely different function. It would of course be irrational to deduct the WPI attributable to the arm injury alone from the WPI attributable to the lumbar spine injury alone.
That leaves for consideration a related impairment which affects the same functionality as the compensable condition, but which is caused by injury or illness sustained or contracted after the work injury. Unlike pre-existing conditions which are expressly dealt with by s 22(8)(g) of the RTW Act, there is no statutory direction to deduct the unrelated impairment from the worker’s WPI; the impairment must instead be disregarded in accordance with s 22(8)(b) of the RTW Act. However, guideline 1.23 of the IAG speaks of the deduction of the unrelated impairment. The process of disregarding an impairment, without resort to the IAG principles, necessitates the identification of the loss of function due to the work injury alone, and its quantitative assessment against the criteria of the IAG. Alternatively, if a deduction is to be made from the totality of the work, and unrelated, impairments, the unrelated impairment must be assessed in accordance with the IAG. Neither approach was adopted by Dr Begg, even if it be accepted that Mr Paschalis’ subsequent relationship losses were injuries.
As I have already emphasised, in making any deduction, logic demands that like must be compared with like. It would be irrational, therefore, if there was a deduction from an impairment caused by a recognisable medical or psychiatric injury or illness on account of a condition which is no more than a common vicissitude of life. It is contrary to both the statutory regulation of workers’ compensation and common law principles for the assessment of personal injury to make a deduction for individual vulnerabilities and circumstances short of impairment causing illnesses. Moreover, impairment resulting from those conditions must be capable of assessment by applying the same guidelines which are promulgated for the assessment of medical conditions arising out of employment. In the absence of a clear statutory command to engage in the irrational exercise of deducting physiological incommensurables, the connotation of the word ‘cause’ must be read down; it means only those causes which operate through injuries, illnesses, or other medical conditions.
The IAG cannot, of course, govern the proper construction of the RTW Act, even though, as I observed earlier, s 22 anticipates the making, and some of the content, of the guidelines. Nonetheless, I observe that the IAG is drawn, and is premised, on the construction I would give s 22(8)(b) and (g). Moreover, to the extent that s 22(8)(b) and (g) of the RTW Act might be given a different construction, the IAG requires an assessment in accordance with the construction I have given those subparagraphs. I refer to:
Guideline 1.23 which requires deductions for ‘unrelated or previous injury’.
Guideline 1.24 which directs that:
[I]f the requestor asks for any injuries to a part of the body to be ‘deducted’, the assessor assesses the permanent impairment of the affected part of the body by applying the methodology in the Guidelines then deducts the permanent impairment % attributable to such injury. …
Guideline 1.29 which stipulates that there must be objective evidence to support an assessment of impairment attributable to a pre-existing injury because:
The impairment rating of the pre-existing injury is determined by applying the methodology in the Guidelines. The impairment from the pre-existing injury is then subtracted from the overall impairment rating.
The provisions of the Guidelines to which I have referred are not only consistent with the construction I would give the word ‘cause’ but are also necessary to ensure that the resulting WPI is scientifically and medically sound and consistent with the very purpose of the RTW Act, as with all workers compensation Acts which preceded it, to compensate each worker for his or her injury and impairment. If a person’s actual age, fitness level, and inherited physical, cognitive, and psychological variations were ignored, the assessed impairment would be of a mythical worker and not of the actual worker who suffered the injury. Moreover, a deduction for a cause which is not a physical or psychiatric injury is likely to be subjective and, indeed, incapable of assessment by applying the methodology of the IAG or any other guideline devised for the assessment of injuries.
The evidence
The paragraph headed ‘Diagnosis’ in Dr Begg’s report, set out in [128] of the judgment of Livesey P, concludes with a finding of a severe major depressive disorder with psychotic features. The paragraph preceding that diagnosis is a discursive discussion of the features of Mr Paschalis’ condition. Dr Begg notes Mr Paschalis’ tendency to blame and distrust others and his poor rapport. Dr Begg observes that Mr Paschalis ‘is retraumatising himself psychologically by constantly thinking about what happened’. None of those observations, in themselves, support a diagnosis of a pre-existing, or unrelated, condition. They are symptoms, particularly the ruminations, commonly suffered by depressives.
Next, Dr Begg suggests that the rapid breakdown of the marital relationship after the workplace insult suggested that Mr Paschalis’ rosy view of his marriage did not match the reality. Mr Paschalis is not the first, nor will he be the last, spouse to labour under that misapprehension which is, or course, not unique to persons suffering from an illness or impairment. When giving his evidence, Dr Begg accepted that the personality traits and personal circumstances observed by him suggested an ‘underlying personality vulnerability’. A mere vulnerability is, of course, not a pre-existing personality disorder.
Under the heading ‘Impairment assessment for each work injury’ Dr Begg assessed the impairment flowing from Mr Paschalis’ major depression to be at ‘class 3’ and in the ‘mid-range’. Those terms are elements of the impairment assessment of psychiatric injury prescribed by Chapter 16 of the IAG which is entitled ‘Guideline for the Evaluation of Psychiatric Impairment by Clinicians’ (GEPIC).
GEPIC prescribes the use of matrices for the evaluation of dysfunction in the fields of intelligence, thinking, perception, judgement, emotive mood and behaviour as a whole number on a scale of 1-5. The median value is then selected as the measure of WPI. Accepting for present purposes that the median value across those largely incommensurable mental health fields is a meaningful measure of impairment, it nonetheless exposes the difficulty in making any assumption about the expected GEPIC measure of impairment which might result from a particular psychiatric insult inflicted on a particular individual. I also observe that GEPIC considers psychiatric disorders to be synonymous with mental or psychological disorders. Accordingly, it defines a psychiatric disorder to be ‘a syndrome characterised by clinically significant disturbance in an individual’s cognition, emotional regulation or behaviour that reflects dysfunction in the psychological, biological or developmental processes underlying mental functioning’. I observe that the definitional requirements of clinical significance and the anchoring of the dysfunction in psychological, biological or developmental processes limit assessable impairments to those flowing from an injury or illness. In that respect, the introduction to GEPIC warns that ‘expected’ responses to common stressors or loses are not mental disorders. GEPIC also requires that the diagnosed disorder is based on ‘DSM-5’, which is a compilation of psychiatric conditions accepted as such by a professional body of the psychiatric profession of the United States of America.
Returning to Dr Begg’s written assessment, he observed that if a relationship breaks down within six months of an illness there is usually to be found a significant relationship problem. Dr Begg continues ‘the loss of such a relationship is a potent cause of mental illness, particularly depression’. Dr Begg then noted the history of separation from his wife and the breakdown of his relationship with his sister shortly thereafter and concluded:
The depression that arose from the workplace injury is not sufficient to explain the failure to re-establish a relationship with his sister, or with his wife or children. There is persistence of his depression because of the manner in which he relives in his mind the humiliation of the workplace event, and the loss of his relationship with his partner and with his family. In my opinion these multiple relationship losses contribute 20% to the whole person impairment and are not related to the original injury.
I have explained above why the relative contributions to Mr Paschalis’ final and permanent condition of its various causes have no bearing on the deduction prescribed by s 22(8) of the RTW Act. However, I observe that Dr Begg offers no explanation in his report as to why the relative contribution of the relationship losses is not some percentage in a range (allowing for something more than a de minimis contribution from each cause) of say five per cent to 30 per cent. The unexplained selection of 20 per cent may be contrasted with the quantitative scale prescribed by GEPIC. I deal below with the explanation given by Dr Begg in his testimony. It is sufficient for present purposes to foreshadow that it was not based on an assessment in accordance with the IAG.
Dr Begg did not find, and could not possibly have found, that if Mr Paschalis had lost those relationships, absent the workplace insult, he would have suffered a depressive illness of a particular severity resulting in a 20 per cent WPI. All that can be said with any scientific or medical certainty is that the work injury resulted in a major depressive condition with a consequential 35 per cent WPI and it is unlikely to have been as great if Mr Paschalis’ marriage and relationship with his sister had not broken down.
That reasoning does not permit a deduction to be made pursuant to s 22(8) of the RTW Act for at least three reasons. First, the loss of Mr Paschalis’ personal relationships which left him vulnerable to a more severe major depression is not in itself an injury impairment or cause for the purpose of s 22(8)(b) or (g) of the RTW Act. It is no more than a change in the ordinary circumstances of life in which injured workers might find themselves. The Full Bench observed that s 22(8)(b) of the RTW Act did not expressly limit an unrelated cause to a recognised medical condition. However, for the reasons I have given in [40] to [43] above, there is a necessary implication to that effect.
Secondly, and not surprisingly, the trial Judge found that there was a causal relationship between the work injury and the separation which was not remote.
Thirdly, Dr Begg did not make any assessment at all of Mr Paschalis’s actual unrelated or pre-existing impairments. Counsel for RTW asked Dr Begg how he quantified the contribution of the relationship losses at 20 per cent. He responded:[6]
I think essentially there was two ways I quantified it, and the first method was looking at what I thought I would have expected given the nature of the injury that occurred, and I thought, well, that would probably be around about a 10 or a 15 per cent impairment, and the other way I quantified it was I didn’t - that wasn't my final conclusion, but that was sort of my ballpark figure, and then I was looking through the impairment guidelines and essentially he was at class 3, which is a moderate impairment, and I was thinking, well, really these other things are not - you know, it’s not all class 3. The class below it was about class 2, and I thought, well, that would kind of make sense, that if you’ve got these other factors - a relationship is a very significant factor. I think we tend to just say, “Oh, a relationship loss.” I mean, an intimate relationship with your partner is a very powerful experience in anyone's life, and so to lose that is going to make - is going to be significant. So I felt, well, I would attribute the non-work-related issues of the relationship loss with wife, sister and children as causing a mild impairment, and that was consistent with his sort of history of being able to continue to work beforehand, didn't appear to have come into much grief with a lot of people beforehand. I mean, he hadn’t told me of problems, so it was an assumption on my part that the relationship had been problematic for a long time. So, yeah, I thought that was probably about where the mark was, but 5 per cent either way, I’d have to accept that as well.
[6] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3954/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 118.
Dr Begg’s answer shows that he hypothesised the degree of depression which an imagined ordinary worker might have suffered by reason of the workplace insult and reasoned that any more severe depression suffered by Mr Paschalis must have another cause. Dr Begg did not suggest that there were benchmarks accepted by any body of psychiatrists standardising the level of depression a range of life events can be expected to cause. Life experience suggests that any such attempt would be a quixotic endeavour. Human behaviour varies widely. Some workers might have reacted to the insult with some well-placed punches and left the workplace, far from feeling depressed. Others, as Dr Begg hypothesised, might have suffered mild depression. Yet others might have suffered depression as severe, or more severe, than Mr Paschalis’. Dr Begg did not explain why Mr Paschalis might not have suffered a relatively severe depression irrespective of the breakdown of his marital and sibling relationships.
The explanation for the particular reaction of a particular worker may, or may not, require some expert psychiatric elucidation. Some might react differently because of their personal experiences and personality traits which are neither illnesses nor impairments. Others might have pre-existing conditions which are aggravated or exacerbated by the result. Others may, by an unrelated cause, subsequently contract a condition of a related, or unrelated kind, to the work injury, which operates in parallel to it. Of those who do suffer depression, some may recover completely or partially, again because of their personal experiences and resilience. The personal traits and circumstances of others may leave them without the resilience to resist the progression of the impairment.
Moreover, it is difficult to see how any useful conclusion can be made without investigating the root causes of the poor relationships, which Dr Begg acknowledges he did not undertake. Married partners might simply be incompatible. Sibling relationships may suffer from poor parenting. Without an assessment of those, and other, factors, a conclusion that the breakdown is indicative of an underlying pre‑existing personality flaw can be little more than speculation. If the relationship breakdowns are not indicative of an illness, impairment, or other condition within the meaning of those statutory terms, the relationship losses are no more than the background personal circumstances on which the workplace insult operated.
The point I make is not that there was good reason for the trial Judge to reject Dr Begg’s opinion as a question of fact. The point is that his subjective approach is inconsistent with the objective assessment of impairment required by the RTW Act and the IAG and was therefore vitiated by error. He did not address the statutory question.
In any event, Dr Begg’s assessment of 20 per cent was not a quantification of an impairment related to the breakdown of those relationships alone. So much is clear from the following exchange during a sympathetic cross-examination of Dr Begg by counsel for the employer:[7]
If I could ask, having considered all of the questions that I’ve just asked you or all the information I’ve just put to you, does it change your view with respect to your decision to attribute 20 per cent of the whole person impairment to pre-existing impairment?---No, I think it - it doesn’t change my view, and it reinforces my view.
Can I just ask one question which probably follows logically, but for the sake of evidence can you categorically rule out that the worker would have been at zero per cent whole person impairment prior to the workplace incident?---Well, you’re asking for my opinion, and my opinion is that, yes, he was not at zero per cent whole person impairment before the incident.
[7] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3954/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 127.
I digress to observe that the questioning is premised on Dr Begg’s assessment of 20 per cent referring to a pre-existing impairment, whereas his report attributed that level of impairment to be the subsequent loss of relationships and was silent as to any pre-existing impairment on Mr Paschalis’ part which caused those losses. I also observe that Dr Begg did not support his ‘opinion’ that the pre‑existing impairment was not zero by reference to an assessment made on objective evidence and in accordance with GEPIC.
More importantly for present purposes Dr Begg’s response clearly shows that his opinion was that a pre‑existing condition contributed, in a causal sense, to the extent of 20 per cent of the major depression suffered by Mr Paschalis after the workplace insult; it was not an assessment of Mr Paschalis’ impairment before the workplace insult. If there was an identity between those two concepts the percentage impairment, too, would be identical; that is to say, Dr Begg’s response would have been a clear, if not indignant, response ‘of course it is not zero, it is as, I have said, 20 per cent’. Far from that being the case, Dr Begg could opine no more than that the pre‑existing impairment was something more than zero. Indeed, Dr Begg acknowledged that he had ‘estimated’ the impairment he attributed to pre-existing or unrelated conditions and had not assessed that impairment against the GEPIC.
It also follows from Dr Begg’s answer that Mr Paschalis’ impairment had deteriorated from something more than zero before the workplace insult to 20 per cent after the workplace insult. It follows that the workplace insult had aggravated Mr Paschalis’ pre-existing condition, whatever Dr Begg thought it might be, because Dr Begg, as we have seen, accepted that the workplace insult contributed to the loss of the relationships. That being so, the degree of impairment attributable to the aggravation, and therefore the entire 35 per cent WPI, was compensable in accordance with s 7(3) of the RTW Act.
Under cross-examination from Mr Paschalis’ counsel, a rather nebulous picture of Mr Paschalis’ pre-existing condition emerged:[8]
Doctor, you have described a number of behaviours which you suggest could be consistent with having a mild impairment, and I take it there to mean a mild impairment of mental functioning?---Yes.
Those behaviours could, for example, include behaviours such as being, in the workplace, more cautious than others or some others. Correct?---Yes.
Reticent?---Yes.
Less flexible, withdrawn and touchy I think were other behaviours you described?---Yes.
Those behaviours are routinely exhibited by people who don’t have any diagnosable mental impairment, aren't they, doctor?---Yes.
They're in fact behaviours that are demonstrated in the community at large. Would you agree with that?---Well, yes. You have to put it in the context, though, of they may not be diagnosed with an impairment but they may still have an impairment if their ability to relate with people is poor.
If a person has a collection of particular behaviours, sometimes that collection is sufficiently identifiable that they are described as having an identifiable personality disorder. Do you agree with that?---Yes.
Are personality disorders as described in the DSM-5, for example - are they regarded as psychiatric disorders?---That's a conundrum, that question, because some people would separate out the mental illness as a discrete issue that you have, and your personality is separate, and yet another way of looking at it is to say, “Let's cut down the barrier between personality disorder and mental illness and look at how the person is functioning,” and the AMA5 guidelines, for example, has a number of examples of people with personality disorders that are rated under the guidelines, so I think it's quite applicable to rate personality disorders. I also think it’s - you know, we’re applying a theory or a construct to understanding human behaviour and illness, and we're not talking about a biological illness, we’re talking about people's mental functioning, and so there's a lot of people with personality disorders that have a lot of distress and I think a lot of people that are impaired with personality disorders.
[8] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3954/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 129.
Dr Begg’s explanation of the approach taken by psychiatrists to diagnosing a personality disorder is important. The conundrum he describes means that even though DSM-5 includes the condition known as a personality disorder as a psychiatric condition, whether the condition can be diagnosed in a particular case is problematic. Dr Begg did not, in his assessment, or when testifying, diagnose a personality disorder. He recognised a continuum between personality traits and a personality disorder with consequential distress and impairment. Dr Begg’s cross‑examination continued:[9]
[9] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3954/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 129-131.
Doctor, isn’t it also the situation that there are many, many people in the community who don’t have, if you like, the full range of behaviours which might lead to a diagnosis of a particular personality disorder but just generally have different ways of behaving? That’s a self-evident proposition, isn't it?
---It’s self-evident and, you know, perhaps the way in which - the DSM-5 is a categorical diagnostic tool, and so once the person's ways of behaving are persistently problematic in a number of different domains and generally evident throughout the life span, then that person might attract a personality disorder diagnosis, as against the person who demonstrates those traits that are ubiquitous and common throughout the community, and some of those traits, if they're exacerbated by a stress such as an illness or a problem, might be only a temporary aberration. So there’s, if you like, a judgment call made in deciding whether this is a persistent problem or just a temporary problem.
…
MR POSSINGHAM: All right, doctor. Is it the situation that people can have irritating behaviours and not have any diagnosable impairment? Do you follow me?---Yes.
There must come a point where people’s behaviours are just regarded as part of the normal run of human behaviours, which we know are very broad. Do you agree with that proposition?---Yes, and I differentiate that from mental illness or personality-driven behaviours that are rateable, by the transient nature of that irritating trait that you refer to. That is, if that person is irritating you just, you know, when there’s a problem in the workplace but otherwise is functioning quite well, then I wouldn't rate that as a disorder.
…
Doctor, behaviours – let’s call them somewhat difficult behaviours, being perhaps a little argumentative for example - they can be behaviours that again are demonstrated by ordinary members of the community, friends and relations. We put up with them and they don't attract any impairment rating. Would you agree with that proposition?---Yes.
So somewhere or another there’s got to be, what, some sort of line drawn about when somebody is just demonstrating a range of behaviours some of which can be irritating or difficult to deal with, and where somebody is demonstrating behaviours that fall into the - can I call it clinical category; that is, that they are rateable impairments? ---Yes
(Underlining added)
The underlined question and answer shows that, notwithstanding the acceptance in DSM-5 of a personality disorder as a psychiatric disorder, a distinction remains between personality behaviours and traits and a ‘clinical’ diagnosis which would support a ‘rateable impairment’. It is also significant that in the above passage Dr Begg did not offer a clinical diagnosis that Mr Paschalis had a pre-existing personality disorder. In the following exchange the speculative nature of Dr Begg’s opinion that Mr Paschalis had any pre‑existing impairment at all emerges:[10]
You say that you are able to determine that this man had pre-existing impairments on the material that you have. Is that correct?---Yes.
You didn’t even have his GP notes at that time?---No, but I had the response that he had to the workplace event, his marital breakdown and, you know, the loss of the relationships, which I considered was quite out of the ordinary experience for someone without any impairments beforehand.
So doesn’t it amount to that, doctor, with respect: that you have inferred or determined that because he had an unusual or even most unusual reaction to this event, as you understood it, in the workplace, that therefore he must have had a pre-existing impairment?---Yes.
Is that how you've done it? Yes?---Yes.
[10] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3954/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 131.
Later again in cross-examination, Dr Begg was pressed on the reason for his deduction:[11]
Look, the commissioning letter to you asked – I’ll just read it out, the bottom of page 3. “If there is any part of the worker’s impairment attributable to unrelated injuries or causes, please deduct that impairment before arriving at your final assessment.” So is that the instruction you were following when you made your estimate of some - the proportion of contribution from the relationship breakdown issues? ---Yes. I think I saw the relationship breakdown as a pre-existing - I mean, I believe he has a pre-existing impairment that is in his personality domain and that resulted in all the problems with the relationship, et cetera, and the need to see himself in the workplace. So then an event occurs in the workplace and he just doesn't have the strength of relationship to weather that. While I accept that there might be a direct chain between anger at the workplace, getting drunk, taking mirtazapine and having an argument and separating from the wife because of the argument, then feeling suicidal, you know, and requiring hospitalisation under Dr Van den Bos - normally in that six-week period you see the relationship heal. I mean, usually the spouse will go - a sigh of relief – “At last he's getting treatment and maybe he'll get better. We can start talking about getting back together again.” You know, there’s usually a bringing together and - I mean, obviously I haven't interviewed the wife, but I would suggest to her it was like, “That's it. Final straw. I've had enough. I've been putting up with problems for a long time. Now he's in this state, I can't cope any more.”
(Underlining added)
[11] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3954/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 140.
Three significant matters emerge from the underlined parts of that answer. First, an ‘impairment in the personality domain’ is not a diagnosis of a personality disorder. Secondly, the ‘[lack of] strength of the relationship’ is put, not as an impairment, but as a vulnerability, or psychological ‘eggshell skull’, which allowed the workplace insult to have a more severe effect. Again, Dr Begg did not venture an assessment of the degree of pre-existing or unrelated impairment.
Thirdly, it is not admissible opinion evidence for Dr Begg, who acknowledged that he had not interviewed Mr Paschalis’ wife, to rely on an imagined interview in which he would have elicited from her that Mr Paschalis’ reaction to the workplace insult was the ‘final straw’. Moreover, the difference between Mr Paschalis’ actual impairment as assessed and the impairment of the hypothetical worker is not a measure of an impairment. If, and only if, the failure to re-establish his prior relationship or enter into replacement relationships is the result of an injury or impairment within the meaning of those terms in the RTW Act, can there be a deduction, and even then only to the extent of the assessment of the loss of function due to that impairment. That assessment may be, indeed generally will be, very different to the degree that another illness is more severe because of the vulnerability of persons who are the loss of a relationship.
Dr Begg’s opinion was that if Mr Paschalis had been able to restore his relationship, he is likely to have had no greater depression than his hypothetical ordinary worker. However, the failure to re-establish a relationship is a personal circumstance in which any worker, not only Mr Paschalis, might find himself or herself for any number of reasons which are not relevantly an impairment.
Dr Begg accepted that a person may have an inherent vulnerability to depression without suffering an impairment before its onset:
Accepting all of that, doctor, but there is still a situation that can exist where a person doesn't have an identifiable psychiatric disorder despite having a pre-existing psychological or psychiatric vulnerability. That can occur, can’t it?---Well, it’s the - yes. I mean, it’s a bit like your example of the car accident. There are people who are exposed to quite horrific situations. In fact, fortunately the majority of people actually in a car accident do not get a post-traumatic stress disorder. And so, yeah, people can have exposure to these events and not get ill.
In the following answers, Dr Begg accepted a causal link between the workplace insult and the breakdown of Mr Paschalis’s marriage, thereby accepting the work caused aggravation of such pre-existing impairments as there might have been:[12]
But does that piece of information - how would you see that piece of information? I suppose - - -? --- I suppose I see him as a person who - my view is that he’s a man whose marriage is failing when he’s in the workplace, and to counter the failure of his relationship, which ultimately is a sexual relationship, and he’s brought up already with the doctor - the GP - that the lack of sex is an issue for him. So even if he can't articulate it to himself, I think he sees himself as a failure sexually and so he counteracts the whole failure of the marriage and his self-identity by taking on the persona of a very competent and good worker, well respected by everyone else, and then that comes crushing down because of this – I’ll call it a gay - I don't know what one refers to it as.
(indistinct) phobia? --- Well, yes, but the comment - you know, the drawing on his helmet implies that he's gay, and so psychologically there’s a link now with the failure of his marriage, because he's going, “Well, you know, maybe I am gay.” Well, that's just anathema to him. I don't think he could accept that. So it becomes quite a strong reaction and probably an angry reaction and then he's faced with his life afterwards and the whole history of, “Well, you know, look at me, I’m a failure sexually. You don’t desire me. They think I'm” - you know, I’m postulating unconscious thoughts that may have gone on along the lines of, “Well, they think I'm gay. Maybe she thinks I’m gay,” and then, “I'm very angry,” and that kind of wells up in depression and then the drinking, possibly the mirtazapine. The whole lot leads to argument and the breakdown of the relationship. And so I think that it’s - well, I think I’ve answered your question.
(Underlining added)
[12] Transcript of Proceedings, Paschalis v Return to Work SA (South Australian Employment Tribunal, 1334/17, 3954/17, 3636/17, 3905/17, Deputy President Lieschke, 5 June 2018) 139.
In a report dated 17 May 2017, which was admitted into evidence in Mr Paschalis’ case, the psychiatrist Dr Blakemore diagnosed a major depressive disorder with psychotic features which caused a permanent impairment resulting from the workplace insult. Dr Blakemore reported that Mr Paschalis did not appear to be suffering from a permanent impairment from any non-work-related condition. Dr Blakemore’s opinion was that the ‘disturbing ruminations’ which Dr Begg thought were exacerbating Mr Paschalis’ impairment were symptoms of Mr Paschalis’ very serious illness over which he had no control.
In a supplementary report dated 31 July 2017 Dr Blakemore accepted that Mr Paschalis had an underlying personality disposition to depression but observed that given the development of his depressive illness following the workplace insult that was a ‘statement of the obvious’. Dr Blakemore denied that an underlying personality vulnerability was an injury or a disability and that it could be considered an impairment which could be assessed for the purposes of the RTW Act. As to the first proposition, Dr Blakemore was entitled to give his medical opinion as to whether Mr Paschalis’ underlying personality vulnerability was an injury for clinical purposes. However, whether or not it was an injury for any purpose under the RTW Act involved a question of construction of that Act and the IAG.
Dr Blakemore expressed the opinion that the breakdown of Mr Paschalis’ marital relationship and the relationship with his sister were caused by the workplace insult and subsequent depression. Dr Blakemore disputed Dr Begg’s opinion that the depressive disorder resulting from the workplace insult was insufficient to explain the failure to re-establish the relationship with his wife. Dr Blakemore’s opinion was that the relationship breakdowns were related to the workplace insult. Dr Blakemore denied that there was any factual basis for Dr Begg’s opinion that 20 per cent of the WPI was due to non-work related factors.
A report of Dr Peter Farnbach, a consultant psychiatrist practising in Victoria, which was obtained for the purposes of clinical management by Mr Paschalis’ general practitioner, was also received into evidence but Dr Farnbach was not called to testify.
Dr Farnbach attended upon Mr Paschalis on 11 August 2015 remotely by audio‑visual means. In his report, Dr Farnbach commented on a ‘number of background issues affecting [Mr Paschalis’] presentation’. Dr Farnbach observed that Mr Paschalis was drinking too heavily in response to his marital difficulties over the preceding 15 years.
Dr Farnbach diagnosed an adjustment disorder with anxious and depressed mood which was significantly exacerbated by his prominent angry ruminations. I noted in [26] above that it was that condition which was first accepted by RTW as a compensable condition. Somewhat inconsistently, RTW contends in these proceedings that the condition so described is an unrelated pre‑existing one. Dr Farnbach also diagnosed a mild alcohol use disorder.
Dr Farnbach did not assess or report on the degree of any impairment in functioning resulting from those conditions and did not assess them in accordance with GEPIC. It would be surprising if Mr Paschalis suffered no impairment at all from the mild alcohol abuse disorder and perhaps the adjustment disorder, but the evidence is very sparse on the nature of that disorder, prior to the workplace insult. As Dr Begg testified, it is most unlikely that an assessment, if it had been undertaken before or shortly after the workplace insult, would have revealed a zero impairment. However, the relevant question was whether the impairment was as high as 20 per cent, or any percentage at all, if assessed in accordance with GEPIC. There was no evidence on which such an assessment could be made.
The decisions
The Deputy President found that:
·Mr Paschalis’ marriage had serious difficulties despite its outward stability, and that in the months prior to the incident he told colleagues that he wished to leave his wife.
·Prior to the incident Mr Paschalis drank alcohol to a harmful level but that his alcohol intake did not interfere with the successful completion of his period of probationary employment and his permanent employment thereafter.
·Mr Paschalis was vulnerable to psychiatric illness, but that vulnerability was not a pre‑existing or unrelated injury or condition.
·The workplace insult precipitated Mr Paschalis’ marital separation.
·Mr Paschalis’ other familial relationships broke down as a result of the workplace insult and were therefore not unrelated causes or conditions.
·Dr Begg had not diagnosed any unrelated depressive psychiatric illness or medical condition, a vulnerability is not an illness or medical condition.
The Deputy President construed the word ‘cause’ in s 22(8)(b) of the RTW Act widely, but accepted that it was limited by the IAG:
The word ‘cause’ in s 22(8)(b) of the RTW Act was on the face broader than injury or illness but the concept was limited by the Guidelines and a diagnosis of an injury was necessary before the GEPIC criteria could be applied to assess an impairment.
The Deputy President concluded that there was no rateable impairment due to a previous illness and that no deduction should be made.
The Deputy President explained that a different approach would have surprising consequences:[13]
Any deduction for mild impairment of thinking, perception or judgement due to personality factors, which is not the product of an illness or medical condition, is in reality a deduction for a contributing non-work factor to the one compensable mental illness. This approach would permit deductions for a host of personal vulnerabilities to psychological injuries such as age, gender, life history and low IQ. It would result in discounting of compensable illnesses or injuries in proportion to non-work contributing factors, but where there is no separate unrelated diagnosed illness or medical condition. In my view the scheme establishes a threshold for deduction of a separate diagnosable illness or medical condition that is assessable under the GEPIC. It does not permit deductions for any lesser form of contributing impairment.
[13] [2018] SAET 121, [108].
The Deputy President also rejected the respondent’s submission that there was a pre-existing alcohol use disorder based on Dr Farnbach’s report. The Deputy President observed Dr Begg gave no such opinion and that in any event no assessment of that impairment had been made.
The Deputy President then considered, in the alternative, whether Dr Begg’s assessment was correct on the premise that there was an unrelated or pre-existing impairment. The Judge rejected the respondent employer’s submission that Dr Begg’s estimate ultimately was a correct assessment of a prior impairment for the following reasons:[14]
The employer submits that the evidence demonstrates Dr Begg ultimately made the correct assessment, albeit by estimating the prior impairment. In my view this submission invites the Tribunal to evaluate the estimate based on its lay view of the evidence relevant to important medical issues, and to disregard the unambiguous terms of the Guidelines. I am not qualified to make that evaluation.
The guiding legal principles relevant to resolving this issue are clear. The Tribunal must follow the prescribed Guidelines, and there is no room for discretion regarding their application: GM Holden Ltd v Roberts. The Tribunal must not make a finding as to a WPI assessment which is not based on a proper assessment by an accredited expert assessor under the Act: The State of SA v Weeding.
(Citations omitted)
[14] [2018] SAET 121, [112]-[113].
The formal orders of the Deputy President were:
·Set aside decision of the respondent dated 15 November 2016 finding a 15 per cent whole person impairment.
·Determine the applicant to have a 35 per cent whole person impairment.
·Determine that the applicant is a seriously injured worker.
·Set aside the decision of the respondent dated 21 June 2017 discontinuing the applicant’s weekly payments.
·Order for arrears of weekly payments.
·The applicant to have the costs of the proceedings.
No formal order was made as to the determination of Dr Begg himself.
The essential reasons of the Full Bench of the South Australian Employment Tribunal were:
(1)Dr Begg did not diagnose a pre-existing psychiatric condition because he was reticent to give a personality disorder the status of a psychiatric diagnosis, but the Impairment Assessment Guidelines (the Guidelines) made under s 22(3) of the RTW Act requires a psychiatric diagnosis to be based on DSM‑5 using GEPIC.
(2)A personality disorder is a condition recognised by DSM-5. Accordingly, regardless of Dr Begg’s doubts about whether a personality disorder was a psychiatric illness, the RTW Act and the Guidelines proceed on that basis.
(3)Even though no psychiatric diagnosis of a pre-existing illness was made by Dr Begg or anyone else, there was a sound evidentiary basis for finding that Mr Paschalis had a pre-existing psychiatric illness or condition, namely the adjustment disorder with anxious and depressed mood and the mild alcohol use disorder diagnosed by Dr Farnbach.
(4)Dr Begg was entitled to have regard to the circumstances of the matter and Mr Paschalis’ pre-injury behaviour. While the Deputy President was entitled to have regard to the evidence of Dr Blakemore, the different conclusion arrived at by Dr Blakemore did not mean that Dr Begg erred insofar as he found contrary to Dr Blakemore, that the work insult alone did not account for the degree of Mr Paschalis’ depression.
(5)The fact that Mr Paschalis’ drinking did not interfere with his successful completion of employment probation and the fact that the marriage had not dissolved before the work insult were relevant to the question of the significant contribution of the work insult but neither qualification precluded there being a pre-existing impairment.
(6)It was open to Dr Begg to have regard to the earlier illness of which he was not aware at the time that he wrote the report.
(7)Even in the absence of a prior psychiatric diagnosis the phrase “unrelated injuries or causes” in s 22(8)(b) of the RTW Act extends to a condition that does not amount to a diagnosed psychiatric illness. A personality disorder or traits may be an unrelated cause of impairment even if not an illness. Even though paragraph 16.4 of the IAG requires a psychiatric diagnosis in order to make a WPI for a mental injury, no corresponding requirement exists in relation to disregarding or deducting a pre-existing impairment.
The following brief remarks on each of those steps follow from my analysis of the evidence and construction of s 22(8) of the RTW Act:
(1)Contrary to the Full Bench’s understanding of Dr Begg’s evidence, he was not reticent to, indeed he accepted, that, a personality disorder had the status of a psychiatric diagnosis in DSM-5 but he did not himself make that diagnosis of Mr Paschalis.
(2)The recognition of a personality disorder in DSM-5 did not mean that Mr Paschalis had a psychiatric disorder and there was no such diagnosis in the psychiatric evidence before the Deputy President.
(3)There was evidence that Mr Paschalis suffered a pre-existing adjustment disorder and a mild alcohol abuse disorder but there was no evidence about the nature of the former disorder, and neither any evidence of, and no psychiatric opinion on, the degree of impairment suffered by Mr Paschalis, if any, in accordance with GEPIC as a result of either or both of those disorders.
(4)It can be accepted that Dr Begg was entitled to have regard to all of the evidence in the case about Mr Paschalis’ condition before the workplace insult, but the Deputy President’s finding that the workplace insult alone accounted for Mr Paschalis’ depression necessarily demonstrated error in Dr Begg’s assessment because it necessarily entailed a conclusion that no part of Mr Paschalis’ major depression was due to, or caused by, a pre-existing or unrelated condition. The Full Bench proceeded from an acceptance of Dr Begg’s opinion, that the workplace insult could not alone have caused Mr Paschalis’ major depression, to a conclusion that there was an unrelated cause. That conclusion does not necessarily follow because the workplace insult may have aggravated the unrelated cause insofar as it was an illness or injury, and insofar as it was not, it need not be disregarded. In this particular case, the conclusion was contrary to the finding of the Deputy President that the workplace insult contributed to the breakdown of the familial relationships which were therefore related to the work injury.
(5)It can be accepted that Mr Paschalis might nonetheless have suffered an impairment, even though he was undertaking his employment duties and remained in a marital relationship, before the workplace insult. Dr Begg’s assessment was nonetheless vitiated by error, in that there was no evidence of the nature and extent of any pre‑existing impairment and no assessment of that impairment in accordance with GEPIC.
(6)It can be accepted that it was open to Dr Begg to have regard to the adjustment disorder and mild alcohol abuse disorder diagnosed by Dr Farnbach, but the diagnosis of a condition is only the necessary first step and not a sufficient basis on which to assess a deductable impairment.
(7)A personality dysfunction is not an illness and cannot be disregarded or deducted pursuant to s 22(8)(b) for the reasons I have given in paragraph [53] above.
This reasoning undermines the appellant’s submission that the word “disregarded” indicates that an assessment of impairment should be made without regard to any impairment from an unrelated injury or cause, even if it contributes to the worker’s present impairment.
Section 43A(9)(b) of the WRAC Act was intended to alter the law as described in Reilly v Workcover Corporation/MMI Workers Compensation (SA) Pty Ltd (Anglicare South Australia),[47] so as to ensure that lump sum compensation for non-economic loss was payable only in respect of the degree of permanent impairment suffered as a result of a compensable injury, and nothing else. Neilson concerned the application of s 49A(9)(b) under the repealed WRAC Act. As already mentioned, that section is identical to s 22(8)(b) of the current Act.
[47] Reilly v Workcover Corporation/MMI Workers Compensation (SA) Pty Ltd (Anglicare South Australia) [1999] SAWCT 93.
This leads to the question whether the introduction of s 22(8)(g), which had no analogue in the repealed WRAC Act, somehow altered the meaning of s 22(8)(b). In our opinion, that question should be answered in the negative. The reproduction of s 49A(9)(b) in the new Act as s 22(8)(b) suggests that the same meaning and effect was intended:[48]
Speaking generally, where provisions in earlier legislation are reproduced in later legislation, the same meaning and effect is generally intended. That assumption must of course yield to any difference in text or context.
[48] The State of South Australia (In Right of the Department for Health and Ageing (SA Ambulance Service)) v Dohnt [2021] SASCFC 33, [99]-[101] (Livesey J, with whom Kourakis CJ and Parker J agreed). See also Lennon v Gibson & Howes Ltd (1919) 26 CLR 285, 287 (Viscount Haldane, Viscount Finlay, Lord Dunedin and Lord Shaw): “In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent Statute in a similar connection”; Harrison v Melhem (2008) 72 NSWLR 380, [131] (Mason P with whom Spigelman CJ, Beazley and Giles JJA agreed); Attorney-General (NSW) v Melco Resorts and Entertainment Ltd (2020) 102 NSWLR 47 [72] (Bathurst CJ, Bell P and Gleeson JA).
The first respondent, who appeared solely to advance submissions about the construction and application of s 22 of the Act, submitted that ss 22(8)(b), 22(8)(g) and the Guidelines should be construed as “a complementary suite of provisions”. In particular, the introduction of s 22(8)(g) was intended to provide explication as to how the process of disregarding an impairment due to an unrelated injury or cause would be addressed in a case where any portion of one particular impairment is caused by a previous injury or condition. That is, each of ss 22(8)(b), 22(8)(g) and the Guidelines give effect to the same legislative intention, namely, that only impairment attributable to the relevant work injury will be assessed for compensation. The first respondent submitted that, in each case, the assessor must evaluate the extent to which impairment from the unrelated injury or cause plays a part in the worker’s current impairment and ensure that the unrelated impairment is not the subject of assessment.[49]
[49] Alcoa Holdings Limited v Lowthian [2011] VSC 245, [66], [73]-[75] (Forrest J).
In our view, these submissions must be accepted. They accord with the relevant legislative history and demonstrate that s 22(8)(g) was added to the s 22 assessment scheme, of which s 22(8)(b) already formed a part, so as to make clear the intended operation of the scheme. That, indeed, is consistent with the way in which the Guidelines have been drafted. It is permissible to have regard to the Act and Guidelines in order to “ascertain the nature of the scheme”, particularly where they “establish an interdependent regime”.[50]
[50] Marrone v Employers Mutual Ltd (2013) 116 SASR 501, [67]-[70] (White J, with whom Sulan J agreed): although “it is not appropriate to use delegated legislation for the purpose of construing the enactment under which the delegated legislation was made”.
The view just expressed regarding the operation of the statutory scheme can be seen in various parts of the Guidelines. Chapter 1.21 provides that injuries are to be assessed, not assessed or deducted, depending upon the circumstances. Chapter 1.22 explains that, where a worker has injuries to other body parts that are not to be assessed, those other injuries are not to be included in the assessment. That reflects s 22(8)(b). Chapter 1.23 requires that an unrelated or previous injury to the same part of the body as the work injury, but not related to the work injury, must be disregarded. This means that the current impairment attributable to both injuries must be assessed but that the degree of impairment attributable to the unrelated or previous injury must then be deducted. That reflects s 22(8)(g).
This view of the operation of the scheme is also reinforced by Appendix 1 to the Guidelines, which comprises notes for the requestor of the assessment. At page 117 of Appendix 1 it is made clear that “disregarded”, in respect of an injury which is to be disregarded, means calculated and then deducted. The same point is made in respect of the terms “unrelated injury” and “pre-existing condition or injury” at page 119 of Appendix 1.
The method of deduction is laid down in chapter 1.24 of the Guidelines. It requires the assessor to assess the permanent impairment of the affected part of the body by applying the methodology in the Guidelines, then deducting the permanent impairment percentage attributable to the previous or unrelated injury or cause. Only if there is no impairment from the previous or unrelated injury or cause will there be nothing to deduct. This is to be “appropriately documented” in the assessment report.
Chapter 1.29 of the Guidelines requires that a pre-existing injury be addressed by “objective evidence to support the assessment of impairment caused by that injury (e.g. clinical evidence, medical records and reports, the worker’s history, etc)”. Chapter 1.29 provides that the impairment rating of the pre-existing injury be determined by applying the methodology in the Guidelines. However, assessment of the impairment rating of the appellant’s pre-existing injury necessarily proceeds with some modifications. That is because the assessment of the current impairment involves a single clinical assessment made on the date of the assessment, which necessarily includes a proportion of permanent impairment resulting from any previous injury. Two “stand-alone” assessments are not required. By the date of assessment, the worker will typically be presenting with impairments from both the relevant injury and the pre-existing injury, and the assessor’s task of disentangling, so as to identify the extent of impairment from the work-related injury, will sometimes be difficult, if not compromised. Nonetheless, the statutory command remains clear: the impairment from the previous injury must be excluded from the WPI assessment, and therefore deducted.
Chapter 1.29, by referring to the calculation of the impairment rating for the pre-existing injury using the methodology in the Guidelines, is not to be interpreted as if it was a statutory provision, however it does, as with AMA-5, form an integral part of the scheme. Respectfully, we would adopt what was said in H J Heinz Company Limited v Kotzman by Kyrou J as applicable to the Act, the Guidelines and AMA-5 (referred to below as “the Guides”):[51]
The interpretation of the Guides is a question of law.[52] The determination of a level of impairment is a question of fact.[53]
It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law[54] and is a legislative document.[55]
However, the Guides is, as its title suggests, a guide.[56] It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic – or a lawyer’s precise – interpretation.[57] It is of paramount importance to be faithful to the Guides’ plain words.[58] The Guides should not be interpreted as if it was a statute.[59]
The use of the Guides is designed to promote precision, certainty and consistency.[60] Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.[61]
If there is any inconsistency between the …Act and the Guides, the …Act will prevail. If there is any inconsistency between the text in the Guides and an example which seeks to illustrate what is said in the text, the text will prevail.[62]
[51] H J Heinz Company Limited v Kotzman [2009] VSC 311, [24]-[28] (Kyrou J).
[52] Barnett v Transport Accident Commission (1999) 15 VAR 414, [30]; aff’d and reasons adopted in Barnett v Transport Accident Commission (2001) 34 MVR 26.
[53] Gillat v Transport Accident Commission (2003) 38 MVR 463, [27].
[54] Transport Accident Commission v Elworthy [2007] VSC 48, [20].
[55] State Trustees Ltd v Transport Accident Commission (2002) 6 VR 359, [25].
[56] Lake v Transport Accident Commission [1998] 1 VR 616, 626; Connelly v MMI Workers Compensation (Vic) Ltd (2003) 6 VR 555, [9].
[57] Lake v Transport Accident Commission [1998] 1 VR 616, 626; Connelly v MMI Workers Compensation (Vic) Ltd (2003) 6 VR 555, [9]; Transport Accident Commission v Elworthy [2007] VSC 48, [21].
[59] Martinez v Dynamic Engineering Construction Co Pty Ltd [2005] VSC 204, [10].
[61] Gillat v Transport Accident Commission (2003) 38 MVR 463, [47].
[62] Mountain Pine Furniture Pty Ltd v Taylor (2007) 16 VR 659, 669 [33].
Chapter 1.24 contemplates the assessment of a single WPI after the assessor has made the relevant deduction to account for previous injury.[63] To reiterate, two “stand-alone” assessments of WPI are not required.
[63] See also chapter 1.6 of the Guidelines.
In the case of a psychiatric impairment evaluation, chapter 16.15 (at [8]-[11]) addresses how pre-existing and continuing impairments and unrelated impairments are to be identified, and then excluded, when assessing the impairment due to pure mental harm relevant to a work injury. The inability to “assess” the impairment from a pre-existing psychiatric injury, at a time when a clinical assessment of the pre-work injury position is no longer possible, is addressed by the methodology set out in chapter 16.15.[64]
[64] As was contemplated by the Full Bench, Department for Health and Ageing v Neilson [2017] SAET 136, [50].
By this means, chapter 1.29 is satisfied insofar as it requires that the impairment rating of the pre-existing injury be determined by applying the methodology laid down in the Guidelines.
To summarise, when making an impairment assessment under the Act, the Guidelines and AMA-5, any impairment from an unrelated injury or cause is disregarded so as to ensure that the impairment assessment relates solely to that resulting from the compensable injury. It is not intended that impairments referable to an unrelated injury or cause will be included in any assessment.[65]
[65] Alcoa Holdings Limited v Lowthian [2011] VSC 245, [59]-[60]; Vegco v Gibbons [2008] VSC 363, [21]; Millane v Hacker & Greenberg [2003] VSC 72, [11].
This appears to be the general approach adopted by the Full Bench. Although it did not specifically address the interaction between ss 22(8)(b) and 22(8)(g), it did not err in law by conflating their subject matter as the appellant contends. We dismiss Ground 3.2 of the appeal.
Did the Full Bench misconstrue s 22(8)(b) of the Act?
The appellant submits that the Full Bench misconstrued s 22(8)(b) in that, to the extent there was an impairment from an unrelated injury or cause, the accredited assessor did not make an assessment of the degree of impairment resulting from the work injury in accordance with the Guidelines.
The appellant’s argument in support of this ground relied to a degree upon the proposed interpretation of the term “disregarded” in s 22(8)(b). He submitted that, by deducting from the WPI an estimated degree of impairment attributed to an unrelated cause, Dr Begg failed to apply the GEPIC methodology in the Guidelines, which required him to assess impairment resulting from the work injury, and only the work injury, because he failed to ignore any impairment from the unrelated cause.
As the appellant’s proposed interpretation of the term “disregarded” has been rejected, this argument must also be rejected. In any event, the Guidelines do not support the appellant’s contentions. Chapters 1.23 and 1.24 provide:
If the unrelated or previous injury is to the same part of the body as the work injury and is not related to the work injury, the requestor will ask the assessor to disregard the unrelated or previous injury, which means that the current permanent impairment attributable to both injuries is assessed but the degree of impairment attributable to the unrelated or previous injury is then deducted. …
If the requestor asks for any injuries to a part of the body to be ‘deducted’, the assessor assesses the permanent impairment of the affected part of the body by applying the methodology in the Guidelines then deducts the permanent impairment % attributable to such injury. …
These chapters envisage a two-stage process. First, a single evaluation of the worker’s WPI is conducted, taking into account the relevant work injury and any unrelated or previous injury, then the degree of impairment attributable to the unrelated or previous injury is subsequently to be deducted. Appendix 1 to the Guidelines, as set out above, provides further explication of the treatment of unrelated injuries and pre-existing conditions under the Guidelines:
Unrelated injury
An unrelated injury means any injury or cause that is not the work injury or relevant to that injury. Impairments from injuries or causes unrelated to the work injury are not to be included in calculating the degree of whole person impairment. When the assessor makes their assessment, the % impairment may include impairments from unrelated injuries or causes but the degree of permanent impairment attributable to these unrelated injuries or causes must be disregarded (i.e. deducted) and not included in the whole person impairment assessment. If there are known unrelated injuries or causes that are relevant to the work injury or injuries to be assessed, the requestor must advise the assessor by identifying the relevant injuries and requesting that the unrelated injuries or causes be disregarded (i.e. deducted).
Pre-existing condition or injury
A pre-existing condition or injury means a condition or injury that is not medically related to the work injury. The value of the % impairment attributable to these pre-existing conditions or injuries must be deducted in the summary table before giving the final WPI rating. If there are known pre-existing conditions or injuries, the requestor must advise the assessor by identifying the relevant injuries and requesting that any impairments arising from such injuries be deducted.
Chapter 16.15 provides 11-steps which summarise the procedure to be followed by an assessor in arriving at a WPI for a psychiatric injury:
1. Take a comprehensive history.
2. Do a mental state examination. This must be consistent with your scores in the table.
3. Write your opinion, incorporating a summary of the data leading to a diagnosis or diagnoses. Relate the diagnosis or diagnoses to the workplace injury or incident and comment on any diagnoses for which the employment was not the significant contributing cause.
4. Write a brief impairment formulation, explaining your rationale for your impairment scores.
5. Complete Worksheet Table 1 (the GEPIC table) including scoring both for the class and severity within the class.
6. Follow the instructions for determining the median class and median level of severity.
7. Use Worksheet Table 2 to refine the percentage range within the median class.
8. Determine the whole person impairment as a percentage.
9. Determine pre-existing and continuing impairments and unrelated impairments. Exclude those from consideration.
10. Determine impairment due to consequential mental harm, exclude that.
11. The final figure is the impairment due to pure mental harm relevant to the work injury.
Steps 1 to 8 concern the process by which the assessor arrives at the whole person impairment as a percentage. Step 9 then simply provides that the assessor must determine “pre-existing and continuing impairments and unrelated impairments” and “exclude those from consideration.” The fact that the exclusion occurs at the end of the assessment process, rather than at the beginning, further supports the view that a two-stage process involving the initial examination of the entire WPI, followed by a deduction for unrelated injuries or causes, must be undertaken. For these reasons, we dismiss Ground 3.3.
Did the Full Bench misconstrue or misapply s 22(8)(g) of the Act?
The appellant submits that the Full Bench misconstrued or misapplied s 22(8)(g) when determining whether there was a previous injury that caused the worker to suffer an impairment before the relevant work injury.
The Full Bench did not separately address s 22(8)(g) or chapter 1.29 and the appellant effectively says that it should have done so. Respectfully, the appellant’s contention fails to grapple with the approach adopted by the Full Bench, which accepted that the appellant’s personality disorder, originally presumed to exist by Dr Begg, was an unrelated cause for the purposes of s 22(8)(b). It is helpful to commence with the reasons of the Full Bench:[66]
Even if a prior psychiatric diagnosis had not been made, s 22(8)(b) of the RTW Act requires impairments from “unrelated injuries or causes to be disregarded”. The Deputy President approached that subject as follows:
The assessor has not identified a different illness, but has he identified a different cause? The term ‘cause’ is not defined, but is likely intended to have a broader meaning than injury. The context implies a cause, other than an injury or illness, which has given rise to an identifiable and assessable concurrent impairment. This may include a bodily or mental abnormality, such as a congenital defect, that is not the result of injury or illness, but which is still causing an impairment. It may refer to signs and symptoms which have not yet been diagnosed.
A condition that does not amount to a diagnosed psychiatric illness might still amount to an unrelated cause of impairment. A personality disorder to a clinician like Dr Begg who has reservations about treating the condition as a psychiatric diagnosis, may nonetheless cause impairment. The Deputy President was correct to observe that s 22(8)(b) refers to “cause” and not to a diagnosed or diagnosable psychiatric illness. There is nothing in s 22(8)(b) which precludes Dr Begg from taking into account a pre-existing impairment and making a deduction for it if considered appropriate. The plain language of s 22(8)(b) and the approach taken in Alcoa, Vegco and Neilson to provisions identical to s 22(8)(b) lead to that result.
However the Deputy President found in paragraph 87 of the judgment that the GEPIC criteria require that a diagnosis is required before an unrelated injury or cause can be disregarded.
Paragraph 16.4 of the IAG provides a psychiatric diagnosis is required in order to make a PIA for a mental injury. No corresponding requirement exists in relation to disregarding or deducting unrelated or pre-existing impairments in either ss 22(8)(b) or (g).
(footnote omitted).
[66] McMahon Services Australia Pty Ltd v Return to Work Corporation of South Australia & Paschalis [2019] SAET 199, [43]-[46].
In our opinion, the Full Bench was indeed correct to find that a condition that does not amount to a diagnosed psychiatric illness might still amount to an unrelated cause of impairment for the purposes of s 22(8)(b). A personality disorder, to a clinician like Dr Begg who had reservations about giving the condition a psychiatric diagnosis, may nonetheless cause impairment.
In a case where it may be accepted that the appellant had an unrelated injury or cause which caused pre-existing impairment for the purposes of s 22(8)(b), it is difficult to see why he did not also have, within the meaning of the Act, a previous injury due to a pre-existing condition that caused impairment before the work injury for the purposes of s 22(8)(g).
For these reasons, we dismiss Ground 3.4.1.
The essence of the appellant’s next submission is that, as there is no reference in s 22(8)(b) explaining how an unrelated injury or cause is to be disregarded, s 22(8)(g) explicitly provides that any deduction is subject to any provision to the contrary in the Guidelines and no deduction is required under the Guidelines. In this context, the appellant contends that chapter 1.29 is a provision “to the contrary”, because it requires that any impairment rating of a pre-existing injury “is determined by applying the methodology in the Guidelines.”
In contrast to the approach which permits consideration of the Act and Guidelines in order to “ascertain the nature of the scheme”,[67] where the Act provides for the modification of its own operation, delegated legislation may prevail “to some extent”.[68] Here, the appellant emphasises the necessity for the Act to yield to the Guidelines. However, whether that is so depends on the proper interpretation of the relevant chapter, having regard to the proper operation of the statutory scheme of which the chapter forms a part.
[67] Marrone v Employers Mutual Ltd (2013) 116 SASR 50, [67]-[70] (White J, with whom Sulan J agreed): although “it is not appropriate to use delegated legislation for the purpose of construing the enactment under which the delegated legislation was made”.
[68] O’Connell v Nixon (2007) 16 VR 440, [28] (Nettle JA), Plaintiff M47-2012 v Director-General of Security (2012) 251 CLR 1, [56] (French CJ).
Accordingly, in circumstances where the chapters of the Guidelines already set out above (i.e. 1.23, 1.24, 16.15 and Appendix 1) do not explain exactly how an assessment of pre-existing or unrelated impairments should be undertaken, it may be accepted chapter 1.29 provides clarification. However, for the reasons earlier given, any interpretation of chapter 1.29 that suggests two separate assessments for the relevant work injury and for any unrelated injury or cause, does not accord with the way in which an assessment is undertaken and must be rejected.
In Alcoa, Forrest J considered that, when undertaking the exercise of determining what matters it must disregard, the medical panel was not bound to apply AMA-5 (referred to below as “the Guides”) for two reasons:[69]
First, s 91(7)(c) does not mandate that such an assessment be carried out in accordance with the Guides. If the legislature had wished to impose such a requirement then it would have said so, as it did in s 91(7)(a) and s 91(7)(d) as well as in a number of the other provisions of s 91.
Secondly, to require an assessment would be patently unreal where the Panel was required to disregard an impairment of another body part. It would be a nonsense to require the Panel to utilise the Guides to conduct an assessment of the impairment of, say, a leg injury when the compensable injury was to the back. The obligation on the Panel under the Act is to disregard the unrelated impairment: it is not bound to carry out this exercise by a slavish application of the Guides (in particular clause 9).
[69] Alcoa Holdings Limited v Lowthian [2011] VSC 245, [68]-[69].
These observations are also pertinent to the South Australian scheme. The Act does not mandate that an assessment of an unrelated injury or cause be subject to an assessment under the Guidelines in the same way as the relevant work injury must be assessed. The difficulties expressed by Forrest J in his second observation are compounded by the problem already adverted to, namely, that it may be impossible to accurately assess injuries, particularly psychiatric injuries, under the Guidelines at a time long before the work injury, when relevant medical records or other evidence may no longer be available and the assessor may have little more than a history, or earlier documented histories, on which to rely.
In that kind of case, as the Full Bench observed, the independent assessor must estimate the degree of impairment that the unrelated injury or cause contributed to the overall WPI, relying upon the assessor’s expertise and whatever objective evidence remains available:[70]
In considering what part of Mr Paschalis’ overall impairment should be deducted, Dr Begg was required to estimate the likely prior level of impairment. He could not assess prior impairment in the sense ‘assess’ is used in the IAG and AMA5 because he did not conduct a clinical examination of Mr Paschalis before the work incident. That illustrates a difficulty with the approach taken by the Deputy President. Without undertaking a clinical examination of the patient before a PIA, it would not be surprising if an assessor did not want to make a pre-injury diagnosis given the assessor would not have examined the patient prior to the work injury.
Despite not making a pre-injury diagnosis, Dr Begg assessed pre-injury impairment. He did so having regard to the evidence about Mr Paschalis’ pre-injury behaviour. There may be some cases where despite the best efforts of an assessor, no reliable estimate of prior impairment can be made. However, in this case the assessor was sufficiently confident to estimate prior impairment and explained how he did so, and no error of approach is apparent.
[70] McMahon Services Australia Pty Ltd v Return to Work Corporation of South Australia & Paschalis [2019] SAET 199, [50]-[51].
Dr Begg was not required to make a separate assessment of the degree of impairment arising from the identified, pre-injury causes in accordance with the Guidelines. That process is neither practical nor warranted by GEPIC. Nonetheless, in his evidence Dr Begg explained how he made his 20 per cent assessment in accord with GEPIC. Of course, if a reliable previous WPI assessment were available, then it may well be used. Speaking generally, however, it was sufficient that the worker’s WPI was assessed in accord with the Act, the Guidelines and AMA-5 and, as part of that assessment, appropriate allowance for pre-existing impairment was made by way of deduction under GEPIC.
We dismiss Ground 3.4.2.
Conclusion
We would dismiss the appeal.
- AGLC
- Paschalis v Return to Work Corporation of South Australia [2021] SASCFC 44
- Case
- [2021] SASCFC 44
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court were whether the Full Bench of the South Australian Employment Tribunal had erred in law in its determination of Mr Paschalis' entitlement to compensation. Specifically, the court considered whether the Full Bench had correctly interpreted and applied the provisions of section 22(8)(b) and (g) of the Act, which allow for deductions from compensation for pre-existing conditions or unrelated causes of impairment. This included whether the Full Bench had made findings of fact without evidence, conflated different statutory provisions, and correctly applied the Impairment Assessment Guidelines in assessing the degree of impairment.
A majority of the Full Court, comprising Kourakis CJ, allowed the appeal. The Chief Justice reasoned that the Full Bench had exceeded its jurisdiction by finding that pre-existing conditions were the cause of an unrelated impairment without evidence. It was held that the Full Bench had conflated sections 22(8)(b) and (g), failing to recognise that a deduction under section 22(8)(g) is only authorised if the pre-existing condition was due to an injury. Furthermore, the court found that there had been no assessment of impairment in accordance with the Impairment Assessment Guidelines as required, and that it was incorrect to postulate the impairment a hypothetical worker would have suffered. The majority concluded that the Full Bench had erred in its construction of "unrelated cause" by extending it to impairments not resulting from an injury, and that any deduction exercise must involve an assessment of the degree of impairment flowing from any pre-existing condition or unrelated cause.
However, Livesey and Bleby JJ dissented, dismissing the appeal. The dissenting judges found that the Full Bench had not substituted its own findings of fact but had identified an error of law in the trial judge's approach. They held that it was permissible to have regard to the Act and the Impairment Assessment Guidelines to understand the scheme, and that a construction allowing compensation for impairments unrelated to the compensable injury was inconsistent with the Act's objects. The dissenting judges concluded that sections 22(8)(b) and (g) expressed the same legislative intention – that only impairment attributable to the work injury would be compensated – and that the Guidelines provided for a two-stage assessment process involving the deduction of impairment attributable to unrelated or previous injuries.
Orders
Orders of the court
Held per Kourakis CJ, allowing the appeal and setting aside the decision of the Full Bench:
1. The Full Bench exceeded its jurisdiction by finding, in the absence of any evidence to that effect, that the pre-existing conditions of an adjustment and alcohol abuse disorder were the cause of an unrelated impairment.
2. The Full Bench conflated the subject matter of ss 22(8)(b) and (g) and did not grasp that subparagraph (g) only authorises a deduction for pre-existing conditions if it was due to an injury.
3. In relation to subparagraph (g), there was no assessment of the impairment in accordance with the principles of the Impairment Assessment Guidelines as so required.
4. It was not correct to postulate the degree of impairment that the workplace insult would have caused a hypothetical worker who did not suffer losses from a subsequently contracted condition and deduct that from the actual WPI.
5. The Full Bench erred in its construction of the words “unrelated cause’” in s 22(8)(b) by extending them to impairments which are not the consequence of an injury.
6. When conducting a deduction exercise in relation to pre-existing or unrelated causes, there must be an assessment of the degree of impairment flowing from any pre-existing condition or any condition or injury resulting from an unrelated cause.
Held per Livesey and Bleby JJ, dismissing the appeal:
1. The Full Bench did not substitute or make a finding of fact contrary to that of the trial Judge. Rather, it identified an error of law in the trial Judge’s approach to the evidence.
2. It is permissible to have regard to the Act and the Impairment Assessment Guidelines referred to in the Act in order to ascertain the nature of the s 22 scheme, particularly where they establish an interdependent regime.
3. A construction of the Act that permits compensation for injuries or impairments arising from injuries or causes which have no relevant connection to a compensable injury is inconsistent with the objects and the scheme of the Act as a whole.
4. Sections 22(8)(b) and (g) express the same legislative intention: only impairment attributable to the relevant work injury will be assessed for compensation. The difference between the provisions is that s 22(8)(b) is limited in application to injuries or causes that are “unrelated” to the relevant work injury, whereas s 22(8)(g) may apply even where previous injuries are related to the relevant work injury in some way. The previous injury need not be a work injury and may arise “because of a pre existing condition”.
5. Where a pre-existing injury or cause leading to impairment is identified as affecting any assessment of a work injury impairment, the assessor must recognise the impairment flowing from that pre-existing cause or injury, evaluate it, and deduct it from the work injury assessment.
6. The Guidelines provide for a two-stage approach to the assessment of WPI, whereby the assessor must first assess the worker’s WPI taking into account both the relevant work injury and any unrelated or previous injury before deducting the degree of impairment attributable to the unrelated or previous injury.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.