Sayer v MJ Protective Services Group Pty Ltd
[2023] NSWPICMP 318
•12 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sayer v MJ Protective Services Group Pty Ltd [2023] NSWPICMP 318 |
| APPELLANT: | Noel Sayer |
| RESPONDENT: | MJ Protective Services Group Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 12 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor’s (MA) ratings of appellant worker’s impairment in several of the psychiatric impairment rating scale (PIRS) categories were wrong; whether MA erred by making a deduction under section 323(1); Held – MA’s ratings accorded with the evidence before him and were open to him to make; Appeal Panel found MA was correct to make deduction under section 323(1) for the proportion of the appellant’s impairment that was due to a pre-existing condition; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 April 2023 Noel Sayer 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 24 March 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
The appellant commenced employment as a business development manager with MJ Protective Services Group Pty Ltd, the respondent, on 24 October 2018. Due to events that occurred in his workplace thereafter until 22 March 2019 the appellant suffered a psychological injury.
Relying on a report of forensic psychiatrist Dr Thomas Oldtree Clark dated 18 August 2022 the appellant claimed compensation of $39,340 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 16% whole person impairment (WPI) that the appellant said resulted from his injury. The respondent’s insurer arranged for the appellant to be examined by consultant psychiatrist Dr Clayton Smith on 14 April 2021 and in a report of that date to the insurer Dr Smith advised he assessed the appellant had 6% WPI from his injury.
On 13 May 2021 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it disputed liability to meet his claim for compensation under s 66 of the 1987 Act. It advised him this was because Dr Smith had assessed him to have 6% WPI from his injury which was less than the 15% WPI he was required to have under s 65A(3) of the 1987 Act for him to be entitled to compensation for permanent impairment.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) on 24 March 2022 seeking determination of his disputed claim for compensation under s 66. A delegate of the President of the Commission referred the matter to the Medical Assessor. The Medical Assessor examined the appellant on 22 March 2023 and, as said earlier, issued a MAC on 24 March 2023. In that he certified he assessed the appellant had 7% WPI from his 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 worker to undergo a further medical examination. This is for two reasons. Firstly, 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 confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment. Secondly, absent the Appeal Panel finding error in the MAC, the Appeal Panel’s power to examine the appellant is not enlivened.[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 Medical Assessor recorded the following within the MAC, under the heading “Social activities/ADL”, regarding how the appellant’s injury affected the appellant’s function:
“Mr Sayer lives in a rental house with two housemates to assist with costs. He has little
contact with his housemates, who are busy with work and their lives.
He does most of the housework and is independent with shopping and cooking. He usually misses breakfast and often only has one other meal a day. He has a low-quality diet with an excess of high-calorie sugary foods.
He is careful regarding his hygiene and presents himself at work well-groomed and
professionally attired.
Mr Sayer has always been focused on his children and has had a limited social life.
However, he had a circle of friends and enjoyed barbecues, dinners and movies. He also socialised with his brothers.
He still has two friends but sees them infrequently, often refusing invitations. His contact with his brothers is also less. He still attends family meals for celebrations such as birthdays.
His new employer has regular social outings, usually inviting everybody to a local club. Mr Sayer has attended several functions in the last few months but is less comfortable and tends to leave early.
He is comfortable with local travel and further afield. Occasionally, he must travel for work; for example, he has driven to Tamworth in the last six months.
He has close relationships with his two children and two brothers. He sees friends less frequently but keeps in touch on social media. He has seen less of his son recently because his son is trying to develop his career. His daughter drops around most weekends, and they sometimes go to the cinema together. He has lost contact with some friends because of his social disengagement, but he has developed collegiate relationships with people in his new workplace.
He has needed to learn new information in his new role and found it more challenging. He no longer reads for pleasure. He enjoys science-fiction movies and serials such as National Treasure. He has no problems following the characters and plots.
He is interested in remote-controlled aircraft and is building fixed-wing models and a model helicopter, spending 3-4 hours each weekend on this hobby.
He has worked full-time since August 2020 as a concierge (customer liaison) at The Solution Specialists (Planit).”
The Medical Assessor also noted under the heading “Present symptoms” that the appellant reported his mood is generally okay but with a tendency to fluctuate such that some days he feels like a “lead balloon” and on others a “helium filled balloon”. The Medical Assessor noted that the appellant has periods of mood elevation lasting a few days during which he is more socially outgoing, has excessive energy and is more inclined to spend money. The Medical Assessor noted that the appellant reported subjective problems with concentration, attention and memory.
The Medical Assessor also noted that the appellant was psychiatrically well until he divorced his wife in 2005 and that subsequently he was diagnosed with mood and anxiety disorders, including generalised anxiety disorder, depression, cyclothymia and bipolar II disorder.
The Medical Assessor recorded the following findings from his mental state examination of the appellant:
“I assessed Mr Sayer by video with him sitting in his car. The connection quality was adequate for a comprehensive assessment over more than 60 minutes.
He presented as an overweight man, casually attired and well-groomed, wearing glasses and a long-sleeve shirt with a ‘Planit’ work logo.
His mood was euthymic, and his affect was reactive, consistent with his mood and congruent with the interview contents. He was open and friendly throughout the interview.
There was no evidence of any disorder of thought-form or perception.
He gave a detailed and coherent account with minor memory lapses.
At the end of the interview, when asked if he had anything else to add, he agreed that we had covered everything necessary.”
The Medical Assessor, using the criteria of the Diagnostic and Statistical Manual – 5th edition (DSM-5), provided a diagnosis for the appellant of Bipolar II disorder – current state euthymic. The Medical Assessor also provided an alternate diagnosis of adjustment disorder with mixed anxiety and depressed mood that had led to an exacerbation or relapse of his Bipolar II disorder.
The Medical Assessor completed the psychiatric impairment rating scale (PIRS) rating form in which he detailed and explained his ratings of the appellant’s impairment in the several PIRS categories. They were:
Self care and personal hygiene
2
Mr Sayer manages housework, including shopping and meal preparation. He attends to personal hygiene and presentation in a manner consistent with that of the general population. He eats a poor-quality diet and has gained 30 kg, leaving him morbidly obese with associated health risks.
Social and recreational activities
2
He occasionally sees friends and goes out to the movies with his daughter. He attends family celebrations but less frequently than before. In recent months, he has attended several work social events involving dinners at a local club. He is less comfortable and inclined to leave early.
Travel
1
He is independent with local travel and can travel further afield. He is comfortable doing so.
Social functioning
2
He has maintained good relationships with his children, brothers and two friends. He sees his brothers and friends less frequently and has lost some friends because of his social disengagement. He has developed collegiate relationships with his new workmates.
Concentration, persistence and pace
2
He has subjective difficulties with attention and memory. He has struggled to learn new information in the workplace but has successfully received positive feedback from his employer. He no longer reads for pleasure but can follow movies and TV serials with engagement with characters and plots. He spends 3-4 hours on the weekend on his hobby of building model aircraft. He gave a coherent and comprehensive account during my interview but showed some signs of a challenge remembering details..
Employability
2
He is working full-time in a new, less demanding, less stressful position than his previous one.
The Medical Assessor noted that the medium of these scores is 2 and that the aggregate is 11, which converted to 5% WPI.
The Medical Assessor compared his ratings with the ratings that Dr Clark and Dr Smith had made. The Medical Assessor observed that his ratings differed from Dr Clark with respect to self-care and personal hygiene, social and recreational activities, concentration, persistence and pace, and employability. The Medical Assessor observed that his ratings differed from those of Dr Smith with respect to self-care and personal hygiene and concentration persistence and pace.
The Medical Assessor noted that Drs Clark and Smith did not make a deduction under s 323 of the 1998 Act for any pre-existing conditions.
The Medical Assessor within part 10c of the MAC highlighted various parts of the clinical records of Southern Psychology, City West Medical Centre and psychiatrist Dr Anne Stephenson. The records of Dr Stephenson extended back to 2006. The records of the City West Medical Centre extended back to 2008.
The Medical Assessor observed that Dr Stephenson in a letter of 19 October 2006 had recorded “after considering bipolar disorder and attention deficit disorder, Mr Sayer felt clearly under labour of general anxiety with all the characteristics of feeling restless...”. The Medical Assessor noted on 14 March 2008 that Dr Stephenson said “after comings and goings, Mr Sayer’s obsessive compulsive disorder eventually has responded to Lexapro Escitalopram 60mg daily”. The Medical Assessor further noted that Dr Stephenson had said “mood swings meet the criteria of what was called cyclothymia, a non-psychotic type [obscured noted] or bipolar disorder”. The Medical Assessor noted that Dr Stephenson commenced the appellant on Lithium Carbonate. The Medical Assessor noted that
Dr Stephenson in a report of 23 July 2016 recorded the appellant had a history of depression with recent increased financial stress from management. The Medical Assessor noted that on 24 July 2019 Dr Stephenson offered a diagnosis for the appellant of “exacerbation of cyclothymic disorder with anxious distress (DSM-5:301.13) or bipolar disorder II; non-psychotic, with elements of obsessive-compulsive disorder (DSM-5:296.89)”. The Medical Assessor noted Dr Stephenson, on 26 February 2020, provided a diagnosis for the appellant of “exacerbation of cyclothymic disorder with elements of obsessive-compulsive disorder”.The Medical Assessor considered that Dr Stephenson regarded the appellant’s current illness as a progression of his pre-existing psychiatric condition. The Medical Assessor said however that he found no indicators of the appellant having “obsessive-compulsive disorder” and considered that the appellant’s “presentation and evolving diagnosis over the years before his workplace injury are consistent with bipolar II disorder”.
The Medical Assessor stated that in his opinion the appellant suffered a pre-existing condition of bipolar II disorder and that this had contributed to the appellant’s WPI from his injury. The Medical Assessor described this as a chronic condition that was exacerbated or relapsed due to the stress of the appellant’s work and the challenging environment in which the appellant worked. The Medical Assessor considered a proportion of the appellant’s permanent impairment from his injury was to be deducted under s 323(1) of the 1998 Act due to a pre-existing condition. The Medical Assessor said at part 11c of the MAC that “the extent of the deduction is difficult or costly to determine, so when applying the provisions of s323(2) I assessed the deductable proportion at one-tenth”.
When that was done the appellant’s WPI from his injury reduced to 4.5%. The Medical Assessor however considered that the appellant’s condition would worsen were his treatment to stop and, due to that, the Medical Assessor added 2% WPI to the 4.5% WPI, with the result that he assessed the appellant had 6.5% WPI form his injury, which rounded up to 7% 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’s submissions were that the Medical Assessor’s ratings with respect to all PIRS categories other than travel and concentration, persistence and pace were wrong.
With respect to self-care and personal hygiene, the appellant submitted that the Medical Assessor ought to have rated his impairment as Class 3 because his diet and significant weight gain results in a health risk that is hazardous such that he ought to be under the care of a family member to ensure a minimal level of nutrition.
With respect to social and recreational activities, the appellant submitted that the Medical Assessor ought to have rated his impairment as Class 3 because he sees his friends infrequently. The appellant submitted that the Medical Assessor based his rating on him seeing his friends “occasionally” which the appellant submitted misrepresents his situation. The appellant submitted that whilst he has attended several work social events, he did so at the prompting of his employer and had he not been prompted it is unlikely he would have gone to those events.
With respect to social functioning, the appellant submitted that the Medical Assessor ought to have rated his impairment as Class 3 because he has lost his circle of friends and the friends that he has he does not see as frequently.
With respect to employability, the appellant submitted that his current fulltime employment is in a less demanding position. The appellant submitted that he is unable to work in the same position as he previously did due to his psychological injuries. The appellant submitted that the Medical Assessor did not make reasonable enquiries regarding what was required of him in the position of which he is currently employed.
The appellant submitted that the Medical Assessor was wrong to make a deduction under
s 323(1). The appellant submitted that no deduction should have been made. The appellant referred to the report of Dr Stephenson dated 24 July 2019. In that Dr Stephenson noted that the appellant had maintained employment continuously since 2006 and that as a result of the nature and conditions of the appellant’s employment with the respondent he experienced significant exacerbation of pre-existing psychological symptoms. The appellant highlighted that he had a normal career before his injury and that his pre-existing condition did not impair his ability to work or his ability to perform activities of daily living. The appellant noted that Dr Stephenson reported that there was no evidence of clinical significant functional impairment prior to his employment with the respondent and that his mood disorder was controlled before he suffered a psychological injury in his employment with the respondent.The appellant also observed that Dr Clark did not make a deduction under s 323 when assessing his permanent impairment from his injury.
The appellant acknowledged he had a pre-existing condition since 2006 but submitted that that condition did not result in an impairment.
In reply, the respondent submitted that, with respect to the Medical Assessor’s ratings of the various PIRS categories that the appellant challenged, the Medical Assessor’s ratings were based on the evidence and adequately explained by the Medical Assessor and that the appellant has failed to provide any evidence to support his contention that the Medical Assessor’s assessment contains an error.
With respect to the issue of the deduction under s 323(1), the respondent submitted that the Medical Assessor explained his reasoning for applying a deduction and that a deduction of one-tenth was consistent with the medical evidence before him.
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 clauses 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. For each category a Medical Assessor must classify a worker’s impairment 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.
Clause 11.12 of the Guidelines includes a table for each of the PIRS categories in which examples are provided of how a worker’s injury might affect a worker’s capacity in the category to which the table relates. Clause 11.12 stipulates that “the examples of activities are examples only”. Hence, the examples are intended to provide guidance or assistance to a Medical Assessor in the task of rating a worker’s impairment in the relevant category. They are not prescriptive. What is important is whether the worker has no, mild, moderate, severe or total impairment in the particular activity or function.[2]
[2] Jenkins v Ambulance Service of NSW[2015] NSWSC 633 (Jenkins) at [65].
A Medical Assessor when rating a worker’s impairment in a PIRS category must rate the worker’s impairment at the time when the assessment is done. The assessment must be based on the information available to the Medical Assessor, which of course includes the history the Medical Assessor has obtained at the time of the assessment and the Medical Assessor’s clinical observations of the worker. The Medical Assessor is entitled to give pre-eminence to his or her clinical observation when rating the worker’s impairment.[3]
[3] Ferguson v State of NSW [2017] NSWSC 887 at [23] at [135]
To establish that a Medical Assessor has rated a worker’s impairment incorrectly in a PIRS category there must be more than a difference of opinion on the subject matter about which reasonable minds might differ.[4]
[4] Parker v Select Civil Pty Ltd [2019] NSWSC 140 at [66]; Coenradi at [136]
Consequently, in this matter, for the Appeal Panel to be satisfied that the Medical Assessor erred with respect to his classifications of the appellant’s impairment in the several PIRS categories about which the appellant contends there is error, the Appeal Panel must be satisfied that it was not open to the Medical Assessor to make the rating that he did based on the material before the Medical Assessor, including the history the Medical Assessor obtained and his clinical observations. In other words, the Appeal Panel must be satisfied that the material before the Medical Assessor could not support the Medical Assessor’s ratings.
The examples provided in Table 11.1 of the Guidelines, which relates to the PIRS category of self-care and personal hygiene, for a Class 2 and Class 3 impairment, are:
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
The reasons the Medical Assessor provided for rating the appellant’s impairment in this category as Class 2 correlate, in the Appeal Panel’s view, with the examples provided for that Class. They do not correlate with the examples provided for Class 3. The appellant is living independently without regular support and does not need prompting to shower or clothe himself. He prepares his own meals, although not necessarily healthy meals. He is receiving nutrition from the meals he does prepare and that is evident from his weight increase. The evidence does not substantiate, in the Appeal Panel’s view, that he requires outside assistance to ensure his hygiene or nutrition. In the Appeal Panel’s view it was open to the Medical Assessor on the material before him to rate the appellant’s impairment in this category as Class 2.
The descriptors for a Class 2 and Class 3 impairment provided in Table 11.2 of the Guidelines, which relates to the PIRS category of social and recreational activities, are:
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Again, the Appeal Panel considers it was open to the Medical Assessor on the material before him to rate the appellant’s impairment in this category as Class 2. The Medical Assessor had regard to the appellant having attended several work social events that involved dinners. He took account of the fact that the appellant was inclined to leave these events early. The Medical Assessor explained that the appellant attends family celebrations although less frequently than before.
The Medical Assessor noted that the appellant occasionally sees friends and goes to the movies with his daughters. The appellant contended that because the Medical Assessor obtained a history that he sees his friends infrequently, the Medical Assessor erred with respect to his classification. The Appeal Panel considers that there is really no significant difference in the meaning of the words infrequently and occasionally. Both denote something that does not occur often.
The Appeal Panel considers that the reasons that the Medical Assessor explained for rating the appellant’s impairment in this category more closely align with the examples for a Class 2 rating than Class 3. There is no evidence that the appellant requires prompting from those at his work to attend the social events at work. The Appeal Panel again considers that there is no error in the Medical Assessor’s exercise of his clinical judgment in assessing the appellant’s impairment in this category as Class 2. As said, his classification is supported by the material before him and has been explained adequately in the PIRS table.
The examples provided for a Class 2 and Class 3 impairment in Table 11.4 of the Guidelines, which relates to the PIRS category of social functioning, are:
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
The Appeal Panel again considers that it was open to the Medical Assessor to rate the appellant’s impairment in this category as Class 2. The material before the Medical Assessor did not support a rating of Class 3. The Medical Assessor explained the appellant maintains a good relationship with his two children, his brothers and also two friends that he has kept. The Medical Assessor noted that the appellant has lost friendships because of his social disengagement and now has only two friends with whom he maintains a relationship. The Medical Assessor also noted that the appellant has developed a collegiate relationship with his new work colleagues. There is no evidence of separation or domestic violence. The Appeal Panel considers that the Medical Assessor has not erred in exercising his clinical judgment by rating the appellant’s impairment in this category as Class 2.
The examples provided in Table 11.6 of the Guidelines, which relates to the PIRS category of employability for a Class 2 and Class 3 impairment are:
Class 2
Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3
Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
The Medical Assessor based his rating of the appellant’s impairment in this category as mild on the basis that the appellant can work fulltime but in a new and less demanding and less stressful position than with his employment with the respondent. The Appeal Panel does not accept the appellant’s submission that the Medical Assessor did not make reasonable enquiries regarding the demands on him in his present position. The Medical Assessor obtained a history sufficient to enable him to assess the appellant’s impairment in this category. The Appeal Panel considers that the reasons the Medical Assessor explained for his classification that the appellant’s impairment is mild in this category accord best with the examples provided for a Class 2 rating because the appellant is now working fulltime in a different environment.
The example for a Class 3 impairment, which as the Appeal Panel earlier noted, only provide guidance and are not prescriptive, were that a worker cannot work at all in the same position and can work in a position that requires less skill or is qualitatively different, less than 20 hours per week. The appellant is working fulltime, that is more than 20 hours a week in a different position. In the Appeal Panel’s view, that is a scenario that is significantly different from the examples provided for a Class 3 impairment. The Appeal Panel considers that it cannot be found that the Medical Assessor has incorrectly exercised his clinical judgment by assessing the appellant’s impairment in this category as being mild. The Medical Assessor was entitled to form that opinion for the reasons he explained based on the material before him. Again, it does not matter that other assessors may have come to a different conclusion, if it was open for the Medical Assessor to form the opinion he did based on that material, because, as said, a difference of opinion does not amount to an error.
The Appeal Panel also considers that the Medical Assessor did not make an error by finding that a proportion of the appellant’s impairment from his injury was due to a pre-existing condition, specifically bipolar II disorder – current state euthymic. Further, the Appeal Panel considers that the Medical Assessor was correct to assume, in accordance with s 323(2) of the 1998 Act, that the deduction was to be 10%.
There was a large body of evidence before the Medical Assessor, a lot of which he set out within the MAC, that revealed the appellant had a pre-existing condition. The Medical Assessor’s reasons for concluding that that condition contributed a proportion of the appellant’s permanent impairment from his injury was that the appellant’s injury exacerbated the condition or caused a relapse of it. In other words, the Medical Assessor found that without the appellant having that pre-existing condition, his permanent impairment from his work injury would not be as great as it is. This is simply because the permanent impairment he has from his injury is the consequence of the effect his injury has had on his pre-existing condition. His work injury made his pre-existing condition worse, and absent his having this pre-existing condition, it is likely his permanent impairment would not be as great as it currently is.
It is often the case with psychiatric injuries, such as this, that it is difficult, indeed almost impossible, to determine the exact extent to which a pre-existing psychiatric condition contributes to the permanent impairment a worker has from an injury. Given the chronicity of the appellant’s pre-existing condition, prior to his suffering his work injury, and the treatment he had over numerous years with respect to his pre-existing condition, an argument could be made that a deduction of 10% is at odds with the evidence. On the other hand, as the appellant noted in his submissions, he had been able to work and function notwithstanding his pre-existing condition. Absent his suffering a work injury, that may have remained the case, and that supports the assumption the Medical Assessor made that a deduction under s 323(1) of 10% is not at odds with the available evidence. A deduction had to be made under s 323(1) because, as the Medical Assessor found, and which the Appeal Panel considers he was correct to find, a proportion of the appellant’s impairment is due to his pre-existing condition. For the Appeal Panel and any other clinician, to find that the deduction ought to have been something other than 10% would merely be a matter of opinion, and as already explained, that is not an error.
Simply put, the Appeal Panel discerns no error in the MAC as a consequence of the Medical Assessor making a deduction under s 323(1) and assuming that that deduction, in accordance with s 323(2) was to be 10%.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 March 2023 should be confirmed.
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