Providence Medical Thornton Pty Ltd v Laroche
[2023] NSWPICMP 467
•21 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Providence Medical Thornton Pty Ltd v Laroche [2023] NSWPICMP 467 |
| APPELLANT: | Providence Medical Thornton Pty Ltd |
| RESPONDENT: | Jacinta Laroche |
| APPEAL PANEL | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Nicholas Glozier |
MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 21 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer alleges error by Medical Assessor in failing to make a deduction pursuant to section 323 for a prior injury; worker suffered previous psychological injury in 2010 leading to a Complying Agreement for a 16% whole person impairment (WPI) in 2014; save for a short period in 2018 worker treated with antidepressants consistently until the onset of the psychological illness caused by the subject injury; failure to make a deduction a demonstrable error; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 May 2023 Providence Medical Thornton Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 April 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Jacinta Laroche (the respondent) was employed by the appellant as a registered nurse at the Thornton Clinic in 2018. By her written statement of 13 February 2022, the respondent says that she was exposed to multiple stressors in that employment. She perceived that she was “undermined and belittled” by a senior nurse. The Clinic was “seriously lacking” in emergency equipment. She experienced the “near death” of a 6-week old baby in her care from respiratory arrest in circumstances where the Clinic “did not have basic equipment to care for her".
The respondent ceased work in mid-2019. She came under the care of her general practitioner, Dr Pienaar, who referred her to a psychologist, Amber Bates. Subsequently, she was treated by Dr Chatman, a general practitioner, a psychologist, Mitchell Pinchbeck and a psychiatrist, Dr Pothala.
Although the respondent attempted to return to work at the end of 2020, she ceased after a few months and has not been employed as a nurse since that time.
By her statement, the respondent says that she experienced a previous psychological injury in 2010 while employed by the Newcastle Private Hospital. She continues:
“In 2014 I received a lump sum payment for 16% WPI based on the report of Dr Greg Steele. QBE claim no. SF1055476154. With time I managed to recover from this injury and return to work.”
The appellant accepted liability for the respondent’s psychological injury deemed to have occurred on 13 June 2019 and paid her compensation pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act).
On 13 August 2021, the respondent saw Dr Michael Hong, a consultant psychiatrist, at the request of her solicitor for the purposes of assessing her entitlement to permanent impairment compensation pursuant to s 66 of the 1987 Act.
Dr Hong diagnosed post-traumatic stress disorder. He expressed the opinion that this condition was:
“related to workplace bullying and a major workplace incident involving a baby who could have died in her care.”
He expressed the opinion that the respondent suffered 22% whole person impairment (WPI) as a result of the psychological injury. He made no deduction for a pre-existing condition.
While Dr Hong took a history of the respondent’s previous psychiatric injury, he stated:
“She has gained full remission, and described good psychological functioning generally and was off treatment around 12 months before the subject injury. I have not applied a deduction.”
The respondent had previously seen Dr Vickery, a psychiatrist, at the request of the appellant’s insurer. By his report of 22 April 2020, Dr Vickery expressed the opinion that the respondent suffered post-traumatic stress disorder as a result of her conflict with the senior registered nurse in the course of her employment.
Dr Vickery saw the respondent again on 6 December 2021 and provided a further report dated 30 December 2021. Dr Vickery recorded the respondent was to undergo eye movement desensitisation and reprocessing therapy with a psychologist. He stated that this was likely to reduce her WPI. Accordingly, he recommended review in 12 months following the eye movement treatment. He stated that the respondent’s injury had not reached maximum medical improvement (MMI). He, therefore, did not assess WPI.
The difference of opinion between Dr Hong and Dr Vickery as to MMI and WPI gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the medical dispute to Dr Lam-Po-Tang for assessment. It is from his MAC that the appellant brings this appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. The sole issue in dispute is whether a deduction should be made for a pre-existing medical condition in accordance with s 323 of the 1987 Act. The panel has before it the applicant’s statement, the history recorded by the Medical Assessor and qualified medical practitioners and the clinical records of the applicant’s treating general practitioner from 2 January 2013. In those circumstances, the panel formed the view that a further medical consultation with a specialist member of the panel would not materially assist its enquiry.
EVIDENCE
The Appeal Panel has before it all the documents which were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full, but have been considered by the Panel.
The sole error alleged by the appellant is that the Medical Assessor failed to make a deduction pursuant to s 323 of the 1998 Act to reflect the contribution made by the respondent’s prior psychological injury to her impairment.
The appellant referred to the reports of Dr Bench, a psychiatrist, dated 27 January 2014, by which he assessed the respondent as suffering 15% WPI to which he added 1% for the effect of treatment as a result of a psychological injury on 20 July 2010 when employed by the Newcastle Private Hospital. It also referred to the settlement of the respondent’s claim against the Newcastle Private Hospital by complying agreement for 16% WPI and the respondent’s subsequent treatment for the sequelae of that injury.
After referring to aspects of the MAC, the appellant continued:
“The Appellant submits that the MA failed to record a history of the respondent’s earlier settlement of 16% WPI or the prior evidence from Dr Bench, and has relied solely on the history provided by the respondent. The Appellant submits the MA has given inadequate consideration to the respondent’s pre-existing condition.”
The appellant further submitted that the Medical Assessor had failed to consider the evidence of Dr Piennar which demonstrated that the respondent was prescribed Effexor XR between 2013 and 2018, shortly before she commenced her employment with the appellant. It submitted that this was “at odds with the history provided by the Respondent to the MA on examination”.
The appellant referred to the reasoning of the Supreme Court in Cole v Wenaline Pty Ltd[1] and Marks v Secretary Department of Communities and Justice,[2] and of the Court of Appeal in Campbelltown City Council v Vegan.[3] It submitted that the appeal could be determined on the papers without a re-examination of the appellant.
[1] [2010] NSWSC (Cole).
[2] [2002] NSWSC 306 (Marks).
[3] [2004] NSWSC 1129.
The respondent worker submitted that the appellant had “failed to identify” the application of incorrect criteria. She also submitted that no demonstrable error was “readily apparent” from the MAC.[4]
[4] See Merza v. Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 (Merza).
The respondent referred to the reasoning of the Supreme Court in those judicial review cases which suggested the “pre-eminence” of the observations made by the Medical Assessor on the day of the assessment. She argued that:
“The appellant simply prefers those parts of the history that suggest a deduction from the WPI to reflect a pre-existing condition while ignoring those parts of the material that do not assist its argument.”
The respondent argued that the Medical Assessor had taken a detailed history of the worker’s condition including the previous psychiatric illness. She also argued that the fact that the respondent was diagnosed with adjustment disorder 10 years previously was not relevant to her development of post-traumatic stress disorder. She submitted that:
“There is no evidence that at the time the applicant commenced employment or sustained this injury that she was suffering any impairment that would warrant a deduction under s 323 of the 1998 Act.
The MA accepted, clearly, that the worker was a high functioning individual with a responsible position before ultimately decompensating as a consequences [sic] of its rigours in the dramatic fashion that ultimately unfolded in March 2021.”
The respondent also relies on the complete absence of medical evidence in the appellant’s case which contends that the respondent’s WPI should be reduced by reason of the pre-existing injury.
In addition to the reasoning of Schmidt J in Cole, the respondent referred to the reasoning of Campbell J in Fire & Rescue NSW v Clinen[5] and Ryder v Sundance Bakehouse.[6] She submitted that there was no evidence of a symptomatic condition pre-existing her ultimate decompensation in March 2021.
[5] [2013] NSWSC 629 (Clinen).
[6] [2015] NSWSC 526 (Ryder).
The respondent also referred to the fact that the Medical Assessor’s opinion mirrored that contained in the medico-legal report of Dr Hong, which the Medical Assessor had plainly read and considered in reaching his diagnoses and in determining whether there should be a deduction pursuant to s 323 for a pre-existing condition or abnormality.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made. This sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in its application.
In Campbelltown City Council v Vegan,[7] the Court of Appeal held that the appeal panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[7] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[8] An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace v Australia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the Medical Assessor without first identifying error.
[8] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the Medical Assessor to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Ltd V Kocak[9] that it is only necessary for the MAC to explain the actual path of reasoning of the Medical Assessor in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[9] [2013] HCA 43.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation Legislation; see, for example, El Masri v Woolworths Ltd.[10]
[10] [2014] NSWSC 1344.
The Medical Assessor recorded the following history relevant to the application of s 323:
“In 2010, following a workplace injury with another employer, Ms Laroche consulted a psychologist. She saw a psychiatrist for the purposes of an IME but not the treatment. The first psychiatrist Ms Laroche has ever consulted for treatment was Dr Pothala 18 months prior to the IME. Ms Laroche denied being prescribed any other anti-depressants other than Venlafaxine.”
Subsequently, the Medical Assessor recorded that the respondent was prescribed Venlafaxine 75mg daily at the time of her psychological injury in 2010 which she continued until 2016. He recorded that following the injury, she spent around 18 months out of work and returned to the workplace in a general practice setting in 2018.
In addressing the deduction, if any, to be made for the proportion of the impairment due to previous injury or pre-existing condition, the Medical Assessor stated:
“Based on the report of Ms Laroche that treatment for her 2010 injury persisted for a year (in the case of psychological treatment, and until 2016, in the case of Venlafaxine). She reported no ongoing symptoms at the time she began working in her new role in 2018, and was not receiving any psychiatric or psychological treatment, nor was she on any psychotropic medication. As such, no deduction was applied for the 2010 injury.”
Dr Bench’s report of 27 January 2014 recorded the following under the heading “Mental Status Examination”:
“She described her recent mood as ‘when I’m left alone I’m good.’ Her observed emotional tone however was wholly constricted within the anxious and dysphoric range as noted above, she had significant anxiety from the outset of the evaluation including exhibiting typical symptoms of air hunger. She was also tearful during the latter half of the evaluation. There was no overt delusional material elicited. She was appropriately preoccupied with the matters at hand.”
By his report Dr Bench reviewed a number of earlier specialist medical reports, including those of Dr Vickery and Dr Steele, which are not before the Panel in these proceedings. By a report of 23 May 2013, Dr Vickery, a psychiatrist, diagnosed panic disorder and agoraphobia. He apparently thought that the respondent had suffered an aggravation of an underlying condition “but the aggravation had ceased sometime ago”. By contrast, Dr Steele, who also diagnosed panic/anxiety disorder with agoraphobia assessed the respondent as suffering 19% WPI.
In addressing the “likely prognosis”, Dr Bench stated:
“The claimant’s prognosis is very poor. She has had inadequate psychiatric and psychological treatment thus far. She continues to engage in significant avoidance, thus precluding an improvement in her symptomatology. It would appear that this is one of the reasons for the cessation of her therapy. She has been under-treated with her anti-depressant medication. In this context, unless she has more intensive psychiatric and psychological treatment, it is the evaluator’s opinion her ongoing symptomatology and dysfunction is likely to persist and potentially on a lifelong basis. With more appropriate psychiatric and psychological treatment, she could have significant improvement in her symptomatology.”
There is no doubt in this case that the respondent suffered both a previous psychiatric injury and a pre-existing psychiatric condition. In 2014, it was agreed between the respondent and her then employer, on the basis of the opinions of Dr Steele and Dr Bench, that she suffered 16% WPI as a result of the injury in 2010. The critical question is whether that injury contributed to the impairment certified by the Medical Assessor in the employ of the appellant. The Medical Assessor diagnosed the respondent to have the symptoms of post-traumatic stress disorder and major depressive disorder.
Unfortunately, the seemingly simple language of s 323 has given rise to a significant body of case law addressing the steps which an assessor or panel should consider before making a deduction for the proportion of an impairment that is due to a pre-existing injury or condition. In Pereira v Siemens Ltd [2015],[11] Garling J considered some of the important principles to emerge from the case law at [81] to [90]. Omitting footnotes, his Honour said this:
[11] NSWSC 1133 (21 August 2015).
“The assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses: Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq)[2013] NSWSC 365 at [89]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33]; Ryder v Sundance Bakehouse [2015] NSWSC 526 at [40].
82.The process encompassed by s 323 requires the application of each of the following steps before reaching the ultimate conclusion of the existence of a pre-existing injury which has an impact on the assessment of the injury the subject of the worker’s claim.
83.The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
84.The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
85.The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase “pre-existing condition or abnormality” is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
86.A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
87.The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
88.It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].
89.Next in dealing with the application of s 323, the extent of the contribution, if any, of the pre-existing condition to the current impairment must be assessed in order to fix the deductible proportion. If the extent of the deductible proportion will be difficult or costly to determine, an assumption is made that the deductible proportion will be fixed at 10%, unless that is at odds with the available evidence: s 323(2) of the 1998 Act.
90.Each of these steps, and considerations, is a necessary element of a determination that an assessed whole person impairment is to be reduced by a deductible proportion by virtue of the application of s 323 of the 1998 Act.”
The clinical record of the respondent’s general practitioner and the medical reports from the qualified psychiatric specialists in respect of the 2010 injury convey a different history of her pre-injury functioning than that recorded by the Medical Assessor. When Dr Bench saw the respondent on 27 January 2014 he found impairment in all six of the categories in the psychological injury rating scale (PIRS) including moderate impairment in the categories of Social and recreational activities, Concentration persistence and pace and Employability, indicative of a significant long term impairment arising from that psychiatric injury. He recorded that she did not engage in any social activities and reported an inability to read for a more than a few minutes or to follow a simple recipe. While Dr Steele’s report is not in evidence, it is obvious from his assessment of WPI that he also found significant impairments in, at least, several of the PIRS categories. These opinions are not consistent with a significant remission of the respondent’s symptoms in the years following the 2010 injury.
As recorded above, Dr Bench expressed the opinion that the respondent’s psychiatric prognosis was “very poor.” The Medical Assessor does not refer to this evidence in his MAC. However, in the opinion of the panel, Dr Bench’s prognosis is borne out by the subsequent clinical record. Contrary to the history recorded by the Medical Assessor, Dr Pienaar regularly prescribed Effexor until May 2018, when a note records “a planned reduction” in the use of defects or by 37.5 mg monthly, with a further prescription in July 2018. From the records it is apparent that the worker ceased this medication in August 2018. Only six months later, she presented to her general practitioner, who recorded “Anxiety. long consult discussed situation home teenager children, issues with ex-partner, work, due to move house in 3months”. Her long-term antidepressant was reinstated. Throughout the period leading up to mid-2018, there are numerous references in the doctor’s notes to “anxiety” and “increased anxiety” which necessitated a short-term increase in the dose of Effexor.
Dr Hong also records that the respondent reported symptoms of post-traumatic stress disorder as a result of conflict following the end of first marriage in 2016, although he appears to have misread the general practitioner records given his assertion ‘she was probably off antidepressant medication for about 12 months before Providence’.
The psychiatric diagnosis which the Medical Assessor attributed to the subject injury, post-traumatic stress disorder and major depression, is different to the diagnosis of Dr Bench, who diagnosed panic disorder with agoraphobia and an adjustment disorder in 2014. However, the medical practitioners on the panel concluded that the applicant’s present illness demonstrated many of the characteristics of the prior injury, including significant anxiety and panic attacks. While the applicant’s current condition was caused by circumstances in her employment with the appellant there are features which strongly suggest in no small part a recrudescence of her prior injury.
In these circumstances, the panel has no doubt that the previous injury/pre-existing condition contributed to the impairment certified by the Medical Assessor. The long psychiatric history following the prior injury is a cause of the respondent’s present impairment. It is also probable that it has significantly increased the level of impairment flowing from the subject injury. The failure of the Medical Assessor to make a deduction for a prior injury or pre-existing condition constitutes a demonstrable error. The Medical Assessor has not satisfactorily explained the actual path of his reasoning in the context of the evidence in this case, which strongly suggests a significant causative role for the prior injury.
Both the Medical Assessor and Dr Hong were impressed by the fact that the applicant had ceased medication prescribed following the previous injury and prior to the onset of symptoms associated with the injury the subject of these proceedings. While that is an important consideration, it is clear from the case law reviewed above that it cannot be determinative of whether a proportion of the impairment is due to a pre-existing condition or prior injury. Further, as discussed above, the general practitioner’s notes included in the ARD establish that the respondent was regularly prescribed a moderate dose of the anti-depressant Venlafaxine over many years with the last recorded script being July 2018.
Having concluded that a deduction was necessary the panel turned to the extent of the deduction. While there are features of the evidence that suggest the need for a more significant reduction, the panel noted that the s 323 issue was not addressed by the respondent’s qualified psychiatrist. The panel accepted that the respondent had been asymptomatic for a short period at the time of commencing work for the appellant. Bearing these matters in mind, the panel concluded that it was difficult to reach a conclusion as to the precise deductible proportion and that a deduction of 1/10th should be made pursuant to s 323(2).
For these reasons, the Appeal Panel has determined that the MAC issued on 17 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W379/23 |
Applicant: | Jacinta Laroche |
Respondent: | Providence Medical Thornton Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Lam-Po-Tang and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological | 13.6.2019 | Chapter 11, page 6, table 11.8 | Not Applicable | 15% | 1/10th | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
13
0