Sanity Music Stores Pty Ltd v BFL
[2023] NSWPICMP 109
•27 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sanity Music Stores Pty Ltd v BFL [2023] NSWPICMP 109 |
| APPELLANT: | Sanity Music Stores Pty Ltd |
| RESPONDENT: | BFL |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychiatric injury; whether Medical Assessor’s (MA) ratings of respondent’s impairment in several of the psychiatric impairment rating scale (PIRS) categories were open to be made based on the evidence, including the history the MA obtained and his findings from examination; whether MA properly considered whether pre-existing condition contributed to respondent's permanent impairment; Held – Appeal Panel found error in Medical Assessment Certificate (MAC) with respect to three PIRS categories and section 323 deduction; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 December 2022 Sanity Music Stores Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 December 2022. The medical dispute that the Medical Assessor assessed related to the degree of permanent impairment of BFL, the respondent, resulting from a psychological injury she suffered due to incidents to which she was exposed in her employment as a retail assistant with the appellant between 23 October 2008 and
25 May 2011.The appellant relies on the following grounds for 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 (the 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
During the period of her employment with the appellant, the respondent was subjected to sexually abusive behaviour by her store manager, which resulted in her suffering a psychological injury. Prior to commencing her employment with the appellant, the respondent had been subjected to sexual abuse by her biological father when she was aged between 8 and 12. The respondent suffered a depressive disorder due to that earlier sexual abuse but as at the time she commenced her employment with the appellant, she was not suffering symptoms.
Subsequent to the respondent ceasing employment with the appellant she has been employed by several other organisations at various times including the Newcastle City Council, Hobart City Council, Joblink and the University of Newcastle. At the time the Medical Assessor assessed the respondent, she was working part time at WIRE as a lead trainer.
At some time, probably, around 2014, the respondent enrolled at the University of Newcastle to study the courses necessary to qualify for a Bachelor of Social Science. She was conferred with that degree in February 2018. She has also obtained a Diploma of Event Management and a Certificate IV in youth work and a Certificate IV in training and assessment.
Subsequent to the respondent ceasing her employment with the appellant, the respondent has had two long term relationships lasting three years on average. Her most recent relationship ended in 2019.
Around 28 December 2019, the respondent claimed compensation from the appellant for her injury The respondent’s insurer advised the respondent with respect to that claim that it disputed that she was entitled to compensation for her injury. It advised her that it did not consider that an injury arose during the course of her employment with the appellant. It also advised her that it considered she was not entitled to compensation because she failed to give notice of her injury within the time prescribed by s 254 and s 261 of the 1998 Act.
On 3 July 2020 the respondent was examined by psychiatrist Dr Ash Takyar at the request of her solicitors. In a report dated 7 July 2020 addressed to the respondent’s solicitors
Dr Takyar provided a diagnosis for the respondent’s injury of post-traumatic stress disorder and major depressive disorder. He advised he had assessed the respondent had 24% whole person impairment (WPI) from her injury which included a 2% WPI uplift for the moderate effect that the respondent’s treatment had over time. Dr Takyar noted that the respondent had a prior history of a psychiatric condition related to her early life sexual abuse, from which Dr Takyar said the respondent had recovered. Dr Takyar advised that “there is no applicable deduction, as there was no active prior psychological condition” at the time the respondent commenced employment with the appellant.Relying on that report of Dr Takyar, the respondent’s solicitors wrote to the appellant’s insurer on 14 July 2020 advising it that the respondent would commence proceedings in the Workers Compensation Commission (which was the predecessor of the Personal Injury Commission (Commission)) seeking an award for weekly payments of compensation from
1 October 2009, an award for compensation for medical expenses and award for compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $41,250 for 24% WPI. The respondent’s solicitors enclosed with its letter a copy of Dr Takyar’s report of 7 July 2020. It is implicit from the respondent’s solicitors’ letter of
14 July 2020 that the respondent was claiming that the respondent was liable to pay the compensation that was outlined in her solicitors’ letter and was seeking that the appellant pay that compensation to her voluntarily, failing which she would institute proceedings in the Commission. The date upon which the respondent’s solicitors wrote to the appellant’s insurer became, with respect to the respondent’s claim for compensation for permanent impairment, the date on which the respondent was deemed to have suffered her injury in accordance with either s 15 or s 16 of the 1987 Act.Following the respondent’s solicitors writing to the insurer on 14 July 2020, the insurer wrote to the respondent advising her that it disputed that she was entitled to compensation for permanent impairment from her injury. It advised her that it disputed her claim based on
s 254 and s 261 of the 1998 Act as well as s 4, s 33, s 59 and s 60 of the 1987 Act. That advice did not clearly articulate in any concise or clear way for the respondent the basis upon which it denied liability, but in substance, it was for the same reasons as detailed in its letter of 20 January 2020.On or around 22 April 2022 the respondent filed with the Commission an Application to Resolve a Dispute seeking determination of her claims for compensation. The appellant filed a Reply to that application, in which it noted that the respondent’s claim for compensation was disputed as per the dispute notices it had previously sent, being the correspondence of 20 January 2020 and 20 July 2020.
The Appeal Panel observes that subsequent to the appellant filing its reply it arranged for psychiatrist Dr Alan Doris to undertake a “file review” relating to BFL. Based on that review Dr Doris concluded that the respondent had major depressive disorder with anxious distress that is recurrent. He said that the respondent’s illness had been recurrent since late 2011. He noted that the disorder is such that it relapses and remits. He expressed the view that the respondent’s employment with the appellant was not the main contributing factor to her psychological condition.
It is apparent that following receipt by the appellant’s solicitors of that report discussions ensued between them and the respondent’s solicitors which culminated in the parties’ respective solicitors signing Consent Orders that the matter be remitted to the President for referral to a Medical Assessor for assessment of the respondent’s WPI from a psychological injury the date of which was deemed to have occurred on 14 July 2020. A delegate of the President duly issued that referral on 14 October 2022. As said above, the Medical Assessor issued the MAC in response to that referral on 5 December 2022. In that he certified he had assessed the respondent had 19% WPI from her injury.
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 respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal and correct the errors the Appeal Panel found the MAC contained.
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.
The MAC
The Medical Assessor detailed in the history he obtained from the respondent the events that occurred within her employment with the appellant that gave rise to her injury. He recorded the prior sexual abuse the respondent’s father had perpetrated upon her as a child. He summarised the respondent’s working history subsequent to the respondent concluding her employment with the appellant. He noted the qualifications the respondent had obtained through tertiary education subsequent to the respondent ceasing her employment with the appellant.
Under the heading “social activities/ADL”, the Medical Assessor recorded the following:
“She lives alone in Melbourne, and moved down to Melbourne in 2018. She is estranged from her parents and older sister. She has a couple of friends, whom she doesn't do much with them as she doesn't leave the house. Her closest friends are in Newcastle. She usually enjoyed cooking, which she has re-visited during the COVID-19 lockdown.
She likes cooking, though she doesn't prepare meals as she would be cooking for herself, and mostly relies on take-away or simple meals. This has been up and down, depending on if she was living with someone else.
She said she goes out to comedy shows which she enjoys, maybe once or twice a year, and sometimes she goes to the movies. She sometimes goes to brunch or dinners, perhaps twice a month, with her most recent ex-partner Michael.
She has a car and drives to the shops, and if she needs to, she can drive with a lot of panic attacks and may get Michael to drive her there, due to anxiety of the "unknown".
She has lost contact with her father, due to the history of abuse. She has had conflict with her mother regarding boundaries, as her mother was in the impression she would visit more frequently, and putting boundaries was difficult, so that she has had to cut their relationship for now. She has had a complicated with her sister, as she has maintained contact with her father.
She has a couple of friends, but she never initiates social contact. She has had a couple of relationships, and has maintained contact with her most recent friends.
She has been finding her current work hard, with not being more efficient or persisting with her work for longer. She enjoys it when she does a good job though. She denied any work performance issues and said that her employer ‘likes’ her.”
The Medical Assessor recorded the following under the heading “findings on physical examination”:
“She was an over-weight young woman who engaged in the assessment, and was forthcoming with her responses.
Her mood has been low, and anxious, and she was reactive, with some periods of distress and tearfulness discussing her history.
She was articulate with intact prosody, and logical in her thinking.
She had ongoing death ideations, with period suicidal ideations, negative beliefs about herself and significant anxious cognitions about her work and life.
She had no paranoia. There was no evidence of perceptual disturbance.
She was alert, and complained of difficulties with her concentration.”
The Medical Assessor diagnosed the respondent’s injury to be major depressive disorder and post-traumatic stress disorder.
In accordance with [11.11] of the Guidelines he rated the respondent’s impairment in the several categories that comprise the psychiatric impairment rating scale (PIRS). In the PIRS rating form attached to the MAC he set out his ratings and his reasons for his ratings, which were as follows:
25. PIRS Category
Class
Reason for decision
Self care and personal hygiene
2
She likes cooking, though she doesn't prepare meals
as she would be cooking for herself, and mostly relies on take-away or simple meals. This has been up and down, depending on if she was living with someone else.
Social and recreational activities
3
She said she goes out to comedy shows which she
enjoys, maybe once or twice a year, and sometimes
she goes to the movies. She sometimes goes to
brunch or dinners, perhaps twice a month, with her
most recent ex-partner Michael.
Travel
2
She has a car and drives to the shops, and if she
needs to, she can drive with a lot of panic attacks and may get Michael to drive her there, due to anxiety of the "unknown".
Social functioning
4
She has lost contact with her father, due to the history of abuse. She has had conflict with her mother regarding boundaries, as her mother was in the impression she would visit more frequently, and
putting boundaries was difficult, so that she has had to cut their relationship for now. She has had a
complicated with her sister, as she has maintained
contact with her father. She has a couple of friends,
but she never initiates social contact. She has had a
couple of relationships, and has maintained contact
with her most recent friends.
Concentration persistence and pace
3
Her concentration has been "not great", and she
struggles with concentrating with her work for up to an hour before feeling tired, but would otherwise be able to scroll on TV or on the phone. She finds that her motivation has been poor and takes effort to do much.
Employability
3
She is currently working part-time (2 days a week
across the whole week, with a request to increase to 3 days soon) for WIRE for the past18 months. She has been finding her current work hard, with not being more efficient or persisting with her work for longer. She enjoys it when she does a good job though. She denied any work performance issues and said that her employer "likes" her.
The Medical Assessor correctly recorded that the median of those scores was 3 and that the aggregate was 17. Consistent with Table 11.7 of the Guidelines, the Medical Assessor noted those scores converted to 19% WPI.
In response to the standard question at 8.e. of the MAC, being “is any proportion of loss of efficient use or impairment of whole person impairment, due to a previous injury, pre-existing condition or abnormality?”, the Medical Assessor responded “yes, there is a pre-existing history of anxiety and depressive symptom, but to a lesser extent, and lesser degree of disability”. At 11.a. of the MAC he expressed his view that the respondent previously suffered “psychological distress, non-specific”. He said at 11.e. of the MAC that there was nil contribution from that to the respondent’s WPI from her injury. He said at 11.c. that “there is no deductable proportion”.
As noted above, the Medical Assessor assessed the respondent’s permanent impairment from her injury was 19% WPI.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by not rating the respondent’s impairment in the PIRS category of Social and Recreational Activities as 2, that is mild, and that is because the respondent is able to go out occasionally without a support person.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in the category of Social Functioning as 4, that is severe, and ought to have been rated it as Class 2 because the rating of the Medical Assessor did not accord with the history he obtained.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in the category of Concentration, Persistence and Pace as Class 3, that is moderate, and ought to have rated it as Class 2. The appellant submitted that the respondent was able to maintain employment after ceasing her employment with the appellant in intellectually demanding roles. The appellant noted that the respondent was able to complete a Bachelor of Social Science in February 2018 whilst working casually. The appellant submitted this reflected a Class 2 rating in Concentration, Persistence and Pace.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in the category of Employability as Class 3. The appellant submitted that the correct rating should have been Class 2. The appellant submitted that the respondent’s previous employment and current ongoing employment demonstrates a capacity to work such that her impairment in this category is less than moderate.
The appellant submitted that a degree of the respondent’s impairment was due to subsequent and unrelated relationship and situational factors and the Medical Assessor ought to have apportioned part of the respondent’s WPI to these factors and not to the respondent’s injury.
The appellant also submitted that the Medical Assessor did not consider how the respondent’s prior injury contributed to her permanent impairment.
In reply, and in summary, the respondent submitted that the classes of impairment specified in Table 11.1-11.6, which Tables relate to the various PIRS categories, are not rigid, arbitrary or descriptive but “set out examples to be applied by an MA only, based on his/her own skill and judgment”. The respondent submitted that if the conclusion the Medical Assessor reached was open to him then that is not an error.
With respect to the Medical Assessor’s rating in the category of Social Functioning, the respondent submitted that the appellant was dissecting aspects of the history the Medical Assessor obtained. The respondent submitted that the decision of the Medical Assessor must be read as a whole. The respondent submitted that the Medical Assessor undertook an examination of her and the material before him, including the various expert evidence, before settling on the class he assigned. The respondent submitted that no error of process or reasoning can be established.
The respondent submitted that the appellant’s argument with respect to Medical Assessor’s assessment for the category of Social and Recreational Activities was misconceived. The respondent submitted that the Medical Assessor’s task was to assess whether her injuries sustained prevented her from undertaking social and recreational activities. The respondent submitted that the Medical Assessor’s classification of her impairment was open to him.
With respect to the category of Concentration, Persistence and Pace, the respondent submitted that her condition has waxed and wane, but historical facts cannot take precedence over current facts. The respondent submitted that the assessment was to be done based on how she presented on the day of her examination by the Medical Assessor and that the appellant in its submissions had focused on an aspect of the past that best suited its purpose.
With respect to the category of Employability the respondent submitted that at the time of assessment she was working less than 20 hours a week and was finding her role hard. The respondent submitted that the Medical Assessor’s rating of her impairment in this category was open to him.
The respondent submitted that no deduction under s 323 could be made, based on the relevant case law.
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.
An assessment of a worker’s impairment resulting from a psychiatric injury is, in accordance with [11.11] and [11.12] of the Guidelines, done by reference to the effect the worker’s injury has in six categories of activity and function. Together these comprise the PIRS. Within each category a Medical Assessor is required to classify a worker’s impairment in the particular category as either no impairment, minor impairment, mild impairment, moderate impairment, severe impairment or total impairment. A Medical Assessor is required to allocate a score for each category with 1 being no impairment through to 5 which is total impairment.
The Guidelines contain a table for each of the PIRS categories. Examples of how a worker’s function may be affected are set out in these tables for each class of impairment. These examples are intended to provide guidance to a Medical Assessor as to how to rate a worker’s impairment in the relevant category. What is important is that part of the description of each class in the PIRS regarding the level of impairment, that is whether there is no deficit, mild impairment, moderate impairment etc. The Guidelines at [11.12] clearly instruct that “the examples of activities are examples only”.
Garling J in Jenkins v Ambulance Service of NSW[1] held:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[1] [2015] NSWSC 633 at [65].
As the respondent has submitted, a demonstrable error in a MAC is not established by an Appeal Panel, which is an expert panel, having a different opinion than the Medical Assessor with respect to the Medical Assessor’s rating of a worker’s impairment in a particular category. To establish an error the Appeal Panel must be satisfied that the Medical Assessor has incorrectly rated the worker’s impairment in the particular category and that it was not open to the Medical Assessor to make the rating he or she did.[2] In other words the Appeal Panel must consider that the Medical Assessor’s evaluation of the material before the Medical Assessor, which includes a history the Medical Assessor has obtained from the worker and the Medical Assessor’s findings from his or her examination of the worker, do not support the Medical Assessor’s rating.
[2] Ferguson v State of NSW [2017] NSWSC 887 at [24]; Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [70].
In this matter, the Appeal Panel considers that the Medical Assessor has incorrectly evaluated the material with respect to the respondent’s impairment in the categories of Social and Recreational Activities, Social Functioning and Concentration, Persistence and Pace and assessed the respondent’s impairment in each of these categories incorrectly. The Appeal Panel considers that it was not open to the Medical Assessor, based upon the reasons he provided, to conclude that the respondent’s impairment in the category of Social and Recreational Activities was moderate, that her impairment in the category of Social Functioning was severe, and that her impairment in the category of Concentration, Persistence and Pace was moderate.
With respect to Social and Recreational Activities, the Appeal Panel notes that the respondent goes to comedy shows that she enjoys and has brunches and dinners with her most recent partner. This is not a situation where the respondent must rely on a support person or needs to be prompted by a support person to engage in social activities. The situation is that the respondent is regularly engaging in social activity and attending comedy shows from which she derives enjoyment. In the Appeal Panel’s view, given those factors, it was not open to the Medical Assessor to conclude the respondent’s impairment is moderate. In evaluating this material the Appeal Panel considers that the only conclusion to be made was that the respondent’s impairment is mild, that is a Class 2 impairment.
With respect to Social Functioning, the Appeal Panel observes that the reason the respondent has lost contact with her father is because of the sexual abuse he perpetrated upon her as a child. Further, the respondent’s difficulties with her relationship with her sister also arise because her sister maintains contact with her father. The Appeal Panel notes that the respondent’s relationship with her mother has become strained and she has conflict with her mother. The Appeal Panel observes that the respondent maintains contact with most of her recent friends. The Appeal Panel considers that an evaluation of those factors indicates that the respondent’s impairment in social functioning is not severe. The Appeal Panel considers it was not open to the Medical Assessor to conclude that the respondent’s impairment was severe. These factors correspond with a Class 3 rating, arguably even a Class 2 rating. They do not correspond with a severe impairment. It was not open to the Medical Assessor to conclude that, based on the matters he detailed in the MAC, that the respondent’s impairment in social functioning was severe. The Medical Assessor erred by doing so. The Appeal Panel considers that the correct classification was moderate, that is a Class 3 impairment.
With respect to the category of Concentration, Persistence and Pace the Appeal Panel notes that the Medical Assessor found that the respondent was articulate and engaged during the assessment and was logical in her thinking throughout the assessment. He found that she was alert, although he noted that she complained of difficulties in her concentration. The Medical Assessor stated in the PIRS rating form that the respondent’s concentration was not great and that she struggles with her work. The Appeal Panel notes that the respondent’s work requires her to facilitate and coordinate external training for her employer. The Appeal Panel considers that when those factors are weighed it was not open to the Medical Assessor to rate the respondent’s impairment in this category as moderate. In the Appeal Panel’s view, it can be inferred from the fact that the respondent is required in her employment to facilitate and coordinate external training that she would be able to undertake a basic retraining course. The Appeal Panel considers that the material in this case does not substantiate that the respondent would be unable to read newspaper articles, find it difficult to follow complex instructions, type long documents or follow patterns. In other words, the Appeal Panel considers there was no basis for the Medical Assessor to rate the respondent’s impairment as moderate. He ought to have rated it as mild, that is Class 2.
With respect to the category Employability, the Appeal Panel considers there is no error in the Medical Assessor’s rating of the respondent’s impairment as moderate. The respondent is presently limited to no more than 20 hours a week. That correlates with a moderate impairment.
In summary, with respect to the Medical Assessor’s ratings of the respondent’s impairment in the categories of Social and Recreational Activities, Social Functioning and Concentration, Persistence and Pace, the Medical Assessor erred by not rating the respondent’s impairment as, respectively Class 2, 3, and 2, because based on the material before the Medical Assessor and the respondent’s presentation at examination, the Appeal Panel considers it was not open to the Medical Assessor to assess the respondent’s impairment otherwise.
Overall, after review by the Appeal Panel, the appellant had the following impairment ratings, classes 2, 2, 2, 3, 2 and 3, a total of 14 and median of 2.
The Appeal Panel also considers that the Medical Assessor erred by not making a deduction under s 323(1) for a pre-existing condition the respondent had at the time she commenced her employment with the appellant on 23 October 2008.
The evidence establishes, in the Appeal Panel’s view, that the respondent had a pre-existing depressive disorder at the time she commenced her employment with the respondent. That was as a consequence of the sexual abuse her father perpetrated on her when she was aged 8 to 12. It manifested in symptoms when she was between the ages of 15 to 17. She provided a history to her general practitioner on 28 November 2011 that during those years she had periods of low mood and was anxious. She was near 18 at the time she commenced her employment with the appellant but at that particular point in time she was not suffering depressive symptoms or anxiety.
It does not matter that a pre-existing condition is asymptomatic at the time a worker suffers a work place injury.[3] What matters is whether the pre-existing condition, on the available evidence, can be found to contribute to the assessed WPI of the worker, in the sense that the pre-existing condition makes a difference to the outcome of the worker in terms of the degree of permanent impairment resulting from the work injury.[4]
[3] Pereira v Siemens Ltd [2015] NSWSC 1133 at [86].
[4] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45], Pereira at [87].
The respondent’s injury in this case occurred as a consequence of sexual abuse to which she was subjected in her employment with the appellant between 23 October 2008 and
25 May 2011. The symptoms of that injury as at the time the Medical Assessor assessed the respondent were such that her injury was diagnosed as a major depressive disorder and post-traumatic stress disorder.The respondent before she commenced employment with the appellant had a depressive disorder that had manifested in symptoms of low mood and anxiety over a number years, but was not manifesting in symptoms at the time she commenced employment with the appellant. Such a condition will wax and wane over time depending on stressors to which a person afflicted with it is exposed.
In the present case, the Appeal Panel considers that the current presentation of the respondent is due to both the depressive disorder she suffered as a consequence of the sexual abuse from her father and the events that occurred in her work with the appellant. In other words, in the Appeal Panel’s view, a degree of the respondent’s present permanent impairment is due to the illness she suffered due to the sexual abuse of her father and a degree is due to the illness she suffered as a consequence of the sexual abuse and harassment to which she was subjected in her workplace with the appellant. Her current condition is due to both of these matters. In the Appeal Panel’s view, her current condition in terms of her permanent impairment would not be as severe if she had not suffered the earlier depressive illness due to the sexual abuse from her father.
Consequently, that pre-existing condition, although not symptomatic at the time she commenced her employment with the appellant, makes a difference to her outcome relating to her permanent impairment. Because of that, a deduction ought to have been made under s 323(1) for the proportion to which it contributes to her current permanent impairment. In this case however, it is just near impossible to determine exactly what that contribution would be and hence, in accordance with s 323(2) the Appeal Panel assumes it is 10%, which is not at odds with the evidence.
The Appeal Panel does not accept the appellant’s submission that a proportion of the respondent’s permanent impairment ought to be apportioned to stressors that occurred in her life subsequent to her ceasing her employment with the appellant. As a consequence of the injury the respondent suffered in her employment with the appellant, she has been rendered less able to cope with any stresses to which she has been exposed subsequent to that employment. Any progression or worsening of symptoms due to subsequent stressors can therefore, based upon common law principles of causation, be attributed to the injury she suffered with the appellant.[5]
[5] Secretary, NSW Dept of Education v Johnson [2019] NSWCA 321 at [55].
For these reasons, the Appeal Panel has determined that the MAC issued on
5 December 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.For these reasons, the Appeal Panel has determined that the MAC issued on
5 December 2022 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: | W2544/22 |
Applicant: | BFL |
Respondent: | Sanity Music Stores 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 Dr Yu-Tang Shen 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) |
| Psychiatric disorder | 4/7/2020 | Chapt 11 | 7% | 1/10 | 6% | |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
0
7
0