Ribucan v NRG Cleaners Pty Ltd
[2023] NSWPICMP 689
•20 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ribucan v NRG Cleaners Pty Ltd [2023] NSWPICMP 689 |
| APPELLANT: | Elma Dela Cruz Ribucan |
| RESPONDENT: | NRG Cleaners Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 20 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Assessment of permanent impairment; appellant suffered from a psychological injury; Medical Assessor (MA) made a deduction under section 323(1) of one-third for proportion of appellant’s permanent impairment he found was due to a pre-existing psychological condition that he considered had relapsed due to physical injuries the appellant suffered shortly before her psychological injury; whether MA erred by doing so; Appeal Panel found Medical Assessor did not err; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 October 2023 Elma Dela Cruz Ribucan, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 October 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground 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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as a cleaner in January 2017 with NRG Cleaners Pty Ltd, the respondent. She developed pain in her upper limbs due to the work she did. This was diagnosed as a physical injury, in regards to which she made a claim for workers compensation on 16 July 2020. The pain that she developed caused her a lack of sleep and to her suffering depressive symptoms. Prior to the commencement of her employment with the respondent, she had also suffered from depressive symptoms and anxiety.
After she made her claim for workers' compensation for her physical injury, both the owner and the manager of the respondent applied pressure for her to return to work and also, after she had returned to work, applied pressure on her to perform duties for which, as a consequence of her physical injury, she did not have the capacity to do. As a consequence of the stress from that action of the respondent she suffered a psychological injury, which was deemed to have occurred on 16 July 2020.
The appellant’s solicitors organised for the appellant to be examined by psychiatrist
Dr Joanne Holdaway on 9 August 2022. On 12 September 2022 Dr Holdaway reported to the appellant’s solicitors on several matters relating to the appellant’s injury. These matters included the degree of permanent impairment that Dr Holdaway had assessed the appellant had from her injury, which was 19% whole person impairment (WPI).On 16 September 2022 the appellant’s solicitors wrote to the respondent’s solicitors advising them that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% WPI. The appellant’s lawyers provided the respondent’s solicitors with a copy of Dr Holdaway’s report of
12 September 2022 to support the appellant's claim.The respondent’s solicitors thereupon organised for the appellant to be examined by psychiatrist Dr Nadeem Anwar on 21 October 2022. In a report dated 9 November 2022
Dr Anwar advised that the appellant’s injury “is a secondary psychiatric disorder due to workplace physical injuries and pain”. On 24 November 2022 the respondent’s insurer wrote to the appellant notifying her under s 78 of the 1998 Act that it disputed she was entitled to compensation for permanent impairment from her psychiatric injury. It advised her its reason for disputing her entitlement was because it believed her permanent impairment resulted from a secondary psychiatric injury. It referred to s 65A(1) of the 1987 Act which stipulates compensation is not payable for permanent impairment that results from a secondary psychiatric injury.The appellant then instituted proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation for permanent impairment. The matter was referred to a Senior Member, namely Ms Elizabeth Beilby, who determined that the appellant suffered a primary psychological injury. Senior Member Beilby remitted the matter to the President of the Commission to refer it to a Medical Assessor to assess the appellant’s WPI from her primary psychological injury. That referral was done on 1 May 2023 by a delegate of the President.
Medical Assessor Andrews in response to that referral examined the appellant on
13 September 2023 and, as noted above, issued the MAC on 15 September 2023. In that he certified that he assessed appellant’s degree of permanent impairment was 17% WPI. He also certified that one third of that permanent impairment was due to a pre-existing condition. He made a deduction under s 323(1) of the 1998 Act on account of that and certified that the degree of the appellant's permanent impairment from her psychiatric injury deemed to have occurred on 16 July 2020 was 11% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal relates to the Medical Assessor’s conclusion that the proportion of her permanent impairment that was due to a pre-existing condition was one third.
Relevant to that matter the Medical Assessor noted under the heading “Details of any pervious or subsequent accidents, injuries or conditions” that the appellant had developed “a secondary psychological injury” because of chronic pain and associated limitations and that this secondary psychological injury preceded the appellant’s primary psychological injury. The Medical Assessor indicated that because the appellant’s secondary injury was “pre-existing” he would account for it with “other issues pertaining to pre-existing conditions”.
The Medical Assessor also noted that the appellant acknowledged she had depression following the breakdown of her marriage in 2016 and that she took antidepressant medication for eight months. The Medical Assessor noted that the appellant denied other mental health problems but the Medical Assessor observed that there was evidence that the appellant had more prolonged problems than she had acknowledged.
The Medical Assessor summarised the evidence relating to the appellant’s earlier mental health problems within part 10c of the MAC. He noted therein that the records of the appellant’s general practitioner (GP) described the appellant having long-standing sleep problems in 2013 and returning a score in 2014 in the Depression and Anxiety Stress Scale (DASS) that indicated moderate depression, severe anxiety and severe stress. The Medical Assessor noted that the GP recorded that when the appellant was 11 years old she drank and smelt gas in an attempt to commit suicide and that when she was 17 years old she self-harmed with a knife because her father had made her upset.
The Medical Assessor noted that it was mentioned in the GP’s records in May 2016 that the appellant had severe depression, extreme severe anxiety and extremely severe stress. The Medical Assessor noted there were similar observations in the GP’s records through to January 2017.
The Medical Assessor said, when summarising the appellant’s injury, that the appellant had been “unwell for several years, warranting a diagnosis of persistent depression”. The Medical Assessor said that appellant had “a pre-existing mood and anxiety disorder, which relapsed as a secondary psychological disorder due her pain and disability”. The Medical Assessor said that the appellant’s “pre-existing condition was significantly exacerbated by her perception of being bullied and harassed in the workplace following her making a Workcover claim and as she attempted to return to work”.
The Medical Assessor said within part 8e of the MAC that the appellant “had a pre-existing mood and anxiety condition, likely a relapsing depressive disorder with anxiety”. The Medical Assessor said that that pre-existing condition “relapsed or was exacerbated by her physical injury that challenged her ability to continue in her work role”. The Medical Assessor also said that the appellant’s perception of being bullied and harassed upon her making a Workcover claim “significantly exacerbated her condition and accounts for most of her presentation today”. The Medical Assessor said that had the appellant “been adequately supported in the workplace, she would have much less impairment now”.
At part 11a of the MAC the Medical Assessor repeated that the appellant had long-standing mood and anxiety problems and developed a psychological injury because of her physical injuries. The Medical Assessor said that the appellant’s “secondary injury may have initially been characterised as an adjustment disorder with anxiety and depressed mood, but evolved into a relapse of her pre-existing depression with anxiety, which is now a persisting depressive disorder with an ongoing major depressive episode and anxious distress”. In answer to a standard question at part 11b of the MAC, relating to whether any previous injury or pre-existing condition or abnormality of a worker directly contributes to a workers’ permanent impairment, the Medical Assessor said that the “appellant’s condition would be less severe and her impairment reduced but for the pre-existing conditions”.
In part 11c of the MAC the Medical Assessor expressed his opinion that the deductible proportion, for the purpose of s 323 (1) of the 1998 Act, is one third and he provided the following reasons for his opinion:
“(i) There is significant evidence that Ms Ribucan had long-standing mental health
problems before her physical injuries.
(ii) Her physical injuries caused a significant relapse or exacerbation of the pre-existing
problems.
(iii) He secondary psychological injury arose before her perception of bullying and
harassing behaviour from her employer, which constitutes part of the pre-existing
injury.
(iv) Despite some improvement, she has continued problems with chronic pain and
physical limitation and continued contribution from this to her mental health problems.
(v) There is no scientific way to determine the exact proportion of each contribution.
(vi) Relying on my experience and expertise as a psychiatrist, I consider that one-third of her current impairment is due to pre-existing conditions.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant referred in her submissions to several of the relevant authorities relating to
s 323 of the 1998 Act and the authorities relating to the extent of the reasons a Medical Assessor is to provide to explain his or her assessment of a worker’s permanent impairment. The appellant also summarised the principles to be drawn from those authorities.The appellant submitted that the Medical Assessor did not properly apply s 323(1) and (2) of the 1998 Act. The appellant submitted that her previous psychiatric condition occurred four years prior to the primary psychological injury she suffered in her employment with the respondent and that her symptoms from her pre-existing psychiatric condition had ceased two years before her primary psychiatric injury. The appellant submitted that her primary psychiatric injury emerged almost immediately upon her suffering her physical injury and her making a claim for compensation in relation to her physical injury.
The appellant submitted that the Medical Assessor did not provide sufficient reasons for his conclusion that her pre-existing mood and anxiety disorder had relapsed into a secondary psychological disorder due to her pain and disability and also did not provide sufficient reasons for his conclusion that her pre-existing condition was significantly exacerbated by her perception of being bullied and harassed in the workplace.
The appellant submitted that the Medical Assessor did not provide any explanation for concluding that the deduction to be made under s 323(1) was one third. The appellant submitted that the Medical Assessor’s conclusion that it was scientifically impossible to determine the contribution of her pre-existing to her permanent impairment required him to assume, in accordance to s 323(2), that the deductible portion was 10%. The appellant submitted that because there was more than one conclusion regarding what the deductible portion should be under s 323(1) that the Medical Assessor was required to explain why he made a one third deduction. The appellant submitted that the deduction the Medical Assessor made was an arbitrary deduction because it was not based on any proper analysis or scientific thought process.
In reply, the respondent submitted that the Medical Assessor was not required to provide lengthy or elaborate reasons for his conclusion and that his assessment was based upon his examination and the available evidence. The respondent submitted that the Medical Assessor provided sufficient reasoning as to why he decided to apply one third deduction under s 323(1).
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The Appeal Panel considers that the appellant’s summary of authorities and the principles to be drawn from those authorities relating to the requirements of s 323 of the 1998 Act and to the reasons a Medical Assessor is required to give to explain his or her assessment is accurate. The Appeal Panel would add one point to that summary and that is that when discerning the reasons a Medical Assessor has provided in a MAC to explain his or her assessment of workers’ permanent impairment, the MAC must be read as a whole. That flows from the principle that the reasons of a Medical Assessor are not to be read with a hypercritical approach and are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[2]
[2] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]; see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; Trustees of the Maronite Sisters of the Holy Family T/as Our Lady Of Lebanon School v Carpenter [2013] NSWSC 1149 at [33] (that decision relates to the reasons an Appeal Panel is required to provide, but principle applies equally to the reasons a Medical Assessor is to provide).
The Appeal Panel does not agree with the appellant’s submission that the Medical Assessor applied s 323(1) and (2) of the 1998 Act incorrectly. Further, the Appeal Panel considers, when the MAC is read as a whole, the Medical Assessor cogently explained his reasons for finding that the appellant had a pre-existing condition, that this pre-existing condition contributed to the appellant’s post-injury permanent impairment such that a deduction was required to made under s 323 (1) on account of it, that assuming the deductible proportion was 10% would be contrary to the evidence, and that the deductible proportion for the purpose of s 323(1) was one third.
The Medical Assessor set out in the MAC the appellant’s prior psychopathology, which stemmed back to her youth when she had episodes of attempting suicide and self-harm. The Medical Assessor also noted that the GP had recorded in 2013 that the appellant had long-standing sleep problems and that the DASS scores recorded by the GP indicated she was then moderately depressed and had severe anxiety and severe stress.
The Appeal Panel also observes that in a mental health treatment plan the appellant’s GP completed on 16 November 2013 he provided a diagnosis for the appellant of depression. The GP also noted within that plan that the appellant had a history of post-partum depression.
The history the Medical Assessor detailed in the MAC also included the appellant having depression in 2016 following the breakup of her marriage. The Medical Assessor noted that there was mention in the GP’s records of the appellant having severe depression and extreme anxiety and extremely severe stress in May 2016 and that there were further similar observations through to January 2017 in the GP’s records and then no mention of anxiety or depression until July 2020.
The Appeal Panel observes too that the GP’s records that were before the Medical Assessor contained the scores the appellant provided for a DASS 21 on 25 May 2016 and these indicated extreme severe depression and extreme severe anxiety and extreme severe stress.
The GP notes of Dr Khanom on 28 July 2020 records that the worker “had H/O (history of) depression and was on meds last year from other GP”, indicating ongoing treatment for depression in the year prior to the injuries.
The Medical Assessor concluded, based upon the report of Dr Holdaway dated
12 September 2022, that the appellant experienced psychological symptoms due to her pain and physical restrictions and that this occurred before the respondent’s employees’ response to the appellant’s workers compensation claim relating to her physical injury. The Medical Assessor referred to paragraphs of Dr Holdaway’s report upon which he based his conclusion. In the second of those paragraphs Dr Holdaway noted that the appellant had reported to her that she developed trouble with her sleeping due to the pain in her upper limbs and that this affected her mood and made her feel depressed.
The Appeal Panel observes too that under the heading “summary” in her report,
Dr Holdaway noted that during the period when the appellant was progressively developing pain in her upper limbs the appellant experienced depressive symptoms. Further,
Dr Holdaway noted on page 9 of her report that the appellant’s depressive episode appeared to have begun in the context of her physical injury but deteriorated due to the respondent’s response to her compensation claim for her physical injuries, as noted by the Medical Assessor.Based on that evidence, the Appeal Panel considers it was open to the Medical Assessor to conclude that the appellant had a pre-existing condition at the time she suffered her primary psychological injury and that that condition was a pre-existing mood and anxiety disorder that had relapsed as a consequence of her physical injury. That is, it relapsed due to the progressive development of the pain symptoms the appellant experienced in her upper limbs.
The Medical Assessor was also correct, for the reasons he explained, to conclude that the appellant’s primary psychological injury was a significant exacerbation of that pre-existing condition. It does not matter that the relapse of her pre-existing condition from her physical symptoms only occurred shortly before the stressors that resulted in a significant exacerbation of her relapsed condition. The fact is that the condition was pre-existing and it did contribute to her post-injury permanent impairment and hence s 323(1) had to be applied by the Medical Assessor. His conclusion on this is not devoid of support from the material that was before him, specifically the history he obtained which in part was based on the history Dr Holdaway obtained.
The Appeal Panel’s paraphrase of the Medical Assessor’s explanation for the appellant’s pre-existing condition contributing to the appellant’s permanent impairment subsequent to her suffering her work related psychological injury is, when the MAC is considered as a whole, that at the time at which the appellant was subjected to the stressors that generated her work related primary psychological injury her pre-existing depressive and anxiety condition, which had existed for a long time, had already relapsed and was symptomatic. At the time she lodged her compensation claim for her physical injuries and also the time she subsequently returned to restricted duties, she was symptomatically unwell and the consequence of the stressors to which she was subject due to her employer applying pressure on her to return to work early and to work beyond her physical capacity thereafter worsened her symptoms. This action of the respondent made the degree of the appellant’s permanent impairment worse than it otherwise would have been. Without her having a pre-existing condition and without the relapse of that condition consequent upon her physical ailment, the degree of her permanent impairment would not have been nearly as severe.
The Appeal Panel considers that the Medical Assessor has also adequately explained his conclusion that it was difficult to determine the extent of the deduction to be made under
s 323(1) of the 1998 Act for the contribution that the appellant’s pre-existing condition made to the permanent impairment she had from her primary psychological injury. His explanation was that there is “no scientific way to determine the exact proportion” . The Appeal Panel agrees with that conclusion.The Appeal Panel also considers that, again when the MAC is read as a whole, the Medical Assessor adequately explained why assuming the deductible proportion for the purposes of
s 323(1) is 10% is at odds with the evidence. Again paraphrasing the Medical Assessor, his explanation was that the appellant’s pre-existing condition was long-standing and the relapse or exacerbation of that pre-existing condition consequent upon the physical injury the appellant suffered prior to her primary psychological injury was significant. That is, it resulted in her becoming symptomatic which impaired her function. The Medical Assessor found that the relapse or exacerbation of her symptoms “challenged her ability to continue in her work role”. That indicates, in the Appeal Panel’s view, that the Medical Assessor was of the view that there had been a serious impact upon the appellant’s functioning from the relapse of the appellant’s pre-existing condition due to the development of her physical injury. The Appeal Panel considers that the Medical Assessor was right to be of that mind.In the Appeal Panel’s view, it was open to the Medical Assessor, based on the matters he highlighted and for the reasons he explained, to conclude that assuming the contribution the appellant’s pre-existing condition made to her permanent impairment following her primary psychological injury was 10% was at odds with the evidence.
The Appeal Panel also considers that the Medical Assessor, and again when the MAC is considered as a whole, explained his reasons for why he considered the deductible proportion for the purposes of s 323(1) of the 1998 Act is one third. He indicated that he exercised his experience and expertise as a specialist psychiatrist to come to that conclusion. The factors upon which he exercised his clinical judgement as a psychiatrist were the same as those that led him to conclude, correctly in the Appeal Panel’s view, that
s 323(2) could not be engaged. That is, the factors were that the appellant’s pre-existing psychopathology was long-standing and that there was a significant relapse of that pre-existing condition due to the physical injury the appellant suffered prior to her suffering her primary psychological injury and that that relapse significantly affected the appellant’s function with respect to her capacity to work.It is to be noted that Dr Holdaway did not give consideration to whether any proportion of the appellant's permanent impairment was due to her pre-existing condition. Dr Anwar considered that the proportion was 10%, but did not articulate any reason for that opinion.
The fact that Dr Anwar did express a different view on this issue than the Medical Assessor’s assessment, means that more than one conclusion was open on the issue. Consequently, the Medical Assessor was provided to give some explanation for his conclusion that the deductible proportion was one third.[3] As the already explained, the Appeal Panel considers the Medical Assessor has done that in this case. The Appeal Panel considers that it was open to the Medical Assessor to come to that conclusion. His conclusion was not devoid of support from the evidence.
[3] Campbelltown City Council v Vegan & ors [2006] NSWCA 284 at [122]; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34].
For these reasons, the Appeal Panel has determined that the MAC issued on
15 September 2023 should be confirmed.
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