Secretary, Department of Communities and Justice v Bowland

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Communities and Justice v Bowland [2023] NSWPICMP 40
APPELLANT:	Secretary, Department of Community and Justice
RESPONDENT:	Jacqueline Bowland
Appeal Panel
MEMBER:	Paul Sweeney
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	9 February 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer alleges error in Medical Assessor’s (MA) Psychiatric Impairment Rating Scale (PIRS) classification for travel and social functioning and in his failure to make a section 323 deduction for a pre-existing psychological condition; as worker had a chronic psychological condition before injury as evidenced by treatment with Sertraline, MA erred in failing to make a deduction to reflect this condition; Panel assesses deductible proportion as 1/10^th.; Held – there was no error in MA’s classification of travel and social functioning; while the descriptors were spread across the classes and different opinions were possible this did not constitute either demonstrable error or the application of incorrect criteria; Jenkins v Ambulance Service of New South Wales considered; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 October 2022, the Secretary, Department of Community and Justice (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 (MA), who issued a Medical Assessment Certificate (MAC) on 26 September 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Between 2018 and January 2021, Jacqueline Bowland (the respondent) was employed as a casual Youth Officer at the appellant’s Acmena Youth Justice Centre. It is common ground that she suffered a psychological injury in the course of her employment as a result of interpersonal conflict and perceived bullying and harassment.
On 7 July 2020, the respondent consulted her general practitioner, Dr Bradshaw, for anxiety. He prescribed Sertraline and suggested counselling. While the respondent was appointed as a permanent Youth Officer on 4 January 2021, she continued to experience bullying and harassment from fellow employees. On 22 January 2021, she again consulted Dr Bradshaw, who diagnosed adjustment disorder with mixed anxiety and depression. She was treated with Fluoxetine and was certified as unfit for work.
When the respondent’s symptoms did not improve Dr Bradshaw referred her to Peter Jenkins, a psychologist who has continued to treat her psychological condition. Subsequently, she was referred to Dr Ivor Hodgson, a psychiatrist, who diagnosed depression. Despite treatment with psychotropic medication, psychological counselling, and exercise therapy, her condition did not improve.
On 17 February 2022, Dr Peter Young, a psychiatrist, provided a report to the appellant’s insurer. He noted that the respondent fell within the severe range on a Depression Anxiety Stress Scales (DASS-21) assessment. He recommended an escalation of anti-depressant therapy and psychological treatment. He expressed the opinion that the respondent had not reached maximum medical improvement.
On 2 March 2022 Dr Robert Gertler, a psychiatrist provided a report to the respondent’s solicitor by which he diagnosed her as suffering from a major depressive disorder. He assessed the respondent’s whole person impairment (WPI) in accordance with the Psychiatric Injury Rating Scale (PIRS) prescribed by the Guidelines. He concluded that the respondent had achieved maximum medical improvement. He expressed the opinion that the respondent suffered 19% WPI as a result of her psychological injury. He made a deduction pursuant to s 323 of the 1998 Act in respect of a pre-existing condition of 10%.
By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The difference of opinion as to WPI between Dr Gertler and Dr Young gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the dispute to Dr Yu-Tang Shen for assessment. It is from his MAC that the appellant brings this appeal.

PRELIMINARY REVIEW

The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a re-examination of the worker by a member of the panel. While the panel found prima facie error in the MA’s failure to make a deduction for a pre-existing medical condition pursuant to s 323 of the 1998 Act, it was unable to find error in his classification of the PIRS categories of travel and social functioning as alleged by the appellant.
In those circumstances, the panel concluded that it would not be assisted by a further medical examination. The panel had before it the statements of the respondent, the history recorded by the MA and two qualified psychiatrists, and the clinical notes of the respondent’s general practitioner, Dr Bradshaw. It was, therefore, highly improbable that a further examination would provide additional evidence relevant to the application of s 323 of the 1998 Act.

EVIDENCE

The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

Those parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of the decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated here in full, but have been considered by the appeal panel.
In summary, the appellant submitted that the MA erred or applied incorrect criteria in respect of his classification of the PIRS categories of travel and social functioning and in his failure to make a deduction for a pre-existing condition pursuant to s 323 of the 1998 Act. It submitted that the MA fell into error by failing to consider “the evidence before him to enable a proper history to be obtained prior to arriving at the overall WPI %”.
In respect of travel the appellant submitted that the assessment of a moderate impairment or class 3 was inconsistent with aspects of the evidence. It referred to the respondent’s statement of 18 May 2022 where she referred to “rarely” driving. It submitted that:
“There is a clear distinction between someone not being able to drive and someone who rarely drives, the latter in effect supporting the worker being able to drive.”
The appellant also submitted that the MA had not “engaged in proper enquiry” to enable him to understand the circumstances in which the respondent was able to drive. It noted that its qualified specialist, Dr Young noted that the respondent was able to attend medical appointments or “other necessary arrangements”. It also referred to the opinion of Dr Gertler, who classified the respondent as falling within class 2 in respect of travel.
In respect of social functioning, the appellant submitted that the MA should have assessed a class 2. It submitted that the history taken by the MA at the assessment was inconsistent with other evidence including the respondent’s statement where she recorded that “her daughter does the groceries for her and she relied on her to perform the household chores”. The MA also recorded that the respondent remained “friends with most of her ex-partners” and they were usually on amicable terms.
The appellant also invoked the opinion of Dr Gertler, the respondent’s qualified doctor who assigned class 2 for social functioning.
Finally, it referred to an entry in the records of the respondent’s general practitioner dated
11 January 2017 where it was noted that she was:
“isolated from friends especially males as a result of what is referred to as the worker being in an unhealthy relationship.”
The appellant submitted that this evidence established that the respondent’s separation from friends “was due to a previous relationship and not the workplace”.
In respect of s 323, the appellant referred to several authorities from the New South Wales Court of Appeal and the Supreme Court. These included D’Aleo v Ambulance Service of New South Wales[1] and Cole v Wenaline Pty Ltd[2] and Vitaz v Westform (NSW) Pty Ltd.[3]
[1] NSWCA, 12 December 1996, (unreported).
[2] [2010] NSWSC 78.
[3] [2011] NSWCA 25 (Cole).
Against that background, the respondent referred to entries in the clinical records of the Queen Street Clinic between 23 February 2000 and 22 August 2002 in which there are references to panic attacks and depression and the prescription of Serzon and Zoloft. The respondent submitted that similar entries were recorded “consistently throughout the years”. It referred to entries on 11 January 2017 and 7 July 2017 where the general practitioner had recorded that the respondent had been exposed to stressors in her private life and that she had suffered “mental deterioration”. The appellant submitted:
“that on a background of considerable medical history identifying a pre-existing condition, particularly symptoms amounting to very many years and resulting from various non-work-related factors, a deduction of 30% should apply in the circumstances with respect to s 323 of the 1998 Act.
Alternatively, should a MAP find that it is too costly or too difficult to attribute a particular deduction then 10% should apply in these circumstances which is what
Dr Gertler has found as part of his assessment.”
In respect of the alleged error in the category of travel, the respondent noted that the MA recorded a history that she did not drive. She had an accident in June 2001 because she could not concentrate on the task of driving. The respondent submitted:
“The assertion in her statement at paragraph 40 ….. states that she ‘rarely drives because of her poor concentration, she is afraid she might have an accident’. Clearly, she is not capable of driving and should not be driving. If this was a factor in any ‘travel” category the respondent would not seem as capable of driving. The driving matter is irrelevant, the MA accepted that she cannot travel by herself so reinforcing a Class 3 in the category of travel”
The respondent also submitted that the fact that the respondent attended medical examinations was not relevant to assigning a class in the category of travel.
In respect of social functioning, the respondent argued that the appellant’s reliance on her daughter “doing her shopping” was misplaced. It was a description of their relationship in the past. It did not describe their relationship at the time of the medical assessment as she had argued with her daughter and turned her out of her house.
The fact that she remains on good terms with her ex-partners did not detract from her evidence that she only sees one person a month, Melissa and “never leaves the house”.
In respect of the alleged error concerning s 323, the appellant referred to Chapter 11.10 of the Guidelines. In order to make a deduction for a pre-existing condition it was necessary for an assessor to make a PIRS assessment of the worker in her pre-injury state and deduct it from the impairment found to result from injury. There was “no evidence of a WPI for any pre-existing condition”.
The MA clearly turned his mind to the question of a pre-existing condition but “found no evidence of the prior condition contributing to the respondent’s” WPI. Accordingly, there was no error in respect of s 323.

FINDINGS AND REASONS

Section 328(2) of the 1998 Act provides that an appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[4]. The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in its application.
[4] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan[5], the Court of Appeal held that the appeal panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[5] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[6]. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[6] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia partners Pty Ltd v Kocak[7] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[7] [2013] 252 CLR 80.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd[8].
[8] [2014] NSWSC 1344 (26 September 2014).

Travel

The MA gave the following reasons for assigning class 3 for travel:
“She does not drive, as she had poor concentration and drove into the back of a car, around June or July 2021. She doesn’t go to the local shops and orders online. She had visited her parents before Christmas 2021, when her son drove her, and she went there for dinner and back again.”
The MA noted that Dr Gertler, the respondent’s qualified psychiatrist had classified her as class 2 for travel. He stated that he assigned class 3 as the respondent was now “more dependent on online orders” rather than visiting the local shops.
Table 11.3 of the Guidelines provides the following descriptors of activities which are indicative of class 2:
“Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
The following are indicative of class 3:
“Moderate impairment: cannot travel away from own residence without support person. Problem may be due to excessive anxiety or cognitive impairment.”
Dr Gertler who saw the respondent on 28 February 2022 assigned class 2 for travel. He recorded that she was “able to leave home if necessary but is anxious when doing so”.
In his report of 17 February 2022, Dr Young recorded:
“She described herself as "agoraphobic" however the anxiety that she experiences occurs in relation to encountering others from her workplace or other members of the community who she fears may make negative judgement or comments about her due to the content of the emails that have been circulated about her. She said as a result of this she remains home unless she is required to go to medical appointments or other necessary engagements.”
By her statement, the respondent recounted that she had been diagnosed with agoraphobia. She stated that she had severe “panic attacks when trying to leave the house”. She also recounted that she rarely drove because of poor concentration.
Unsurprisingly, the evidence in respect of travel is not straightforward. Aspects of it suggest class 2 while other aspects suggest class 3. There are many cases where the descriptors are spread across the classes. In such cases it is for the MA to carry out the task of classification exercising his expertise and clinical judgement. In Jenkins v Ambulance Service of New South Wales,[9] Garling J said this at [64]:
“Equally, the boundaries between the classes are not of themselves bright line boundaries.
In my opinion, it is to misread the WorkCover Guides to require, as the plaintiff’s submission would, that the AMS can only proceed either by using the examples in the table solely as the basis for a rating, or as the minimum basis for a rating.
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.”
[9] [2015] NSWSC 63 (26 June 2015).
The MA recorded a comprehensive history of the development of the respondent’s illness and its impact on her activities of daily living. The actual path of his reasoning in assigning class 3 is quite clear. There is evidence which the MA accepted which lends itself to a finding of class 3. Certainly, the fact that the respondent does not drive and does her shopping online fall into this category.
Another medical specialist might emphasise other aspects of the evidence and assign a different classification. That, however, does not establish demonstrable error. The MA’s determination is in the range of permissible outcomes. In the opinion of the panel the appellant’s argument that there is an important distinction between “rarely” and “never” driving is merely cavilling with the MA’s classification rather than proof of error.

In the opinion of the panel neither the different opinion of Dr Gertler nor the other criticisms of the MA made by the appellant prove demonstrable error or the application of incorrect criteria.

Social functioning

The MA gave the following reasons for assigning class 3 in this PIRS category:
“She has lost a lot of friendships and sees no-one, except for Melissa, once a month. They sit together to watch TV or touch base. She has maintained relationships with her sons, talking to them all the time. She has had a break-up with her daughter Cassie, as her daughter felt there was a lot of pressure to do everything for her, such as cooking and cleaning for her and “lost it”, became frustrated at her and she had to throw her daughter out as it had become aggressive.”
The level 11.4 of the Guidelines provides the following descriptors of activities which are indicative of class 2:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The Table provides the following descriptors suggestive of 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.”
Dr Gertler gave the following reasons for assigning class 2 for social functioning:
“remains close to her immediate family but has tended to avoid contact with friends”
The MA noted Dr Gertler’s classification. He stated:
“She has lost a lot of friends, and also had ruptured her relationship with her daughter, which I attribute due to carer stress arising from her daughter’s care of her due to the work-related injury, hence I have assessed her as a Class 3 for social functioning.”
The MA’s classification finds some support in the opinion of Dr Hodgson. On
29 September 2021, the respondent’s treating psychiatrist addressed the issues of the activities of daily living in a report to the appellant’s insurer. He said this:
“Ms Bowland’s current capacity/ability to complete activities of daily living, hobbies, engagement in social outings, drive and work are all significantly decreased. She is markedly impaired compared to her baseline, and all of these activities are severely limited to the extent that she is accessing support for these activities. I would therefore describe her impairment as severe.”(Panel’s italics)
The evidence suggests that the appellant’s daughter was only relative whom she saw regularly as her younger son lives on the Gold Coast and her eldest son in the Northern Territory. In those circumstances, the ruptured relationship with her daughter is of significance. The respondent’s most important relationship is “severely strained” if not at an end.
In the opinion of the panel, it was open to the MA in the circumstances to assign class 3 for social functioning. Again, it is probable that the descriptors are spread across the classes. If the panel had the power to deal with the matter de novo, it might reach a different conclusion. However, there is no error or the application of incorrect criteria.

Section 323

The MA records that the respondent denied any previous psychological conditions or symptoms prior to working for the appellant in 2018. He records:
“She said that prior to starting work with Juvenile Justice, her mood was good, and she cannot recall having any significant problems with sleep, and her appetite was normal and she was fit and had no anxiety.”
The MA noted some inconsistency in the respondent’s psychiatric history in that it differed from the general practitioner’s notes. However, she passed a “performance validity test” and it is evident that he accepted her evidence. The MA concluded that no part of the impairment was due to a pre-existing condition.
The MA gave no explanation as to why his opinion on this issue differed from that of Dr Gertler, who had concluded:
“Ms Bowland does have a long history of anxiety and depression which has required intervention over the years usually with the use of anti-depressant medication. As such it would be appropriate in my opinion to make a one 10^th deduction for pre-existing injury.”
This fact, standing alone, however, would not constitute error for the reasons given in Wingfoot.
In the MAC, the MA recorded entries in the respondent’s Patient Healthcare record relevant to pre-existing condition:
“She felt harassed at work and people wanted to get rid of her on 20 October 2017. She had some depressive symptoms on 7 August 2017, and had previously been on Sertraline at the time. She was having anxiety and stress on 18 January 2017, due to contact with partner, and commenced on Sertraline and Propranolol. She had a controlling partner. She had previously been on Sertraline for years, from 29 June 2015, for stress and anxiety. She had been stressed in 2013, and was being threatened by her father-in-law, with a house break, and death benefit [sic]. She had been on Sertraline at the time, due to depressive symptoms, and her partner was killed in May 2013 via MVA. She had had previous PND, with Sertraline treatment for the previous 7 years in 2011. She was on Sertraline in 2008 for depressive symptoms, due to social stressors. In 2005, she had a history of anxiety and panic, with neurological symptoms, and was on Sertraline. She had symptoms of anxiety from 2001, and was previous on Dothep 75mg.”
The panel confirmed the history, including the prescription of Sertraline for long periods in the past from the Patient Healthcare Record. It noted that some 12 months before she commenced work with the appellant, the respondent saw Dr Ian Ray on 7 August 2017. He recorded that she had been referred to Kerri Dennis, a psychologist, who she did not “find in any way helpful”. She reported:
“initial insomnia, decreased appetite, weight loss, teary, social withdrawal, decreased physical activity.”
The panel concluded that this evidence proved beyond doubt that the respondent suffered a pre-existing psychological condition which necessitated the use of Sertraline over extensive periods of time in the past. This history of regular prescription of psychotropic medication goes back to 2001. While the respondent worker denied previous psychological conditions or symptoms prior to working for the respondent, that evidence must be regarded as unreliable in view of the content of the clinical record. The regular prescription of Sertraline is only consistent with a psychological illness
In the circumstances, the panel is unable to understand the path of reasoning by which the MA concluded that no proportion of her assessed WPI is attributable to that pre-existing condition. That constitutes an error in accordance with the reasoning in Wingfoot. The panel accepts that it is necessary for the appellant to prove that the pre-existing contributed to the impairment in accordance with the reasoning in Cole and resulted in an increased level of impairment.[10] The specialist psychiatrists on the panel were in no doubt that the long history of chronic psychological problems evidenced by treatment with Sertraline must have contributed to her present impairment. Equally, it is highly probable that it has increased the level of WPI resulting from the injury.
[10] Ryder v Sundance Bakehouse [2015] NSWSC 526 (7 May 2015).
The difficulty arises in assessing the deductible proportion that should be made for that pre-existing condition. The panel considered the possibility of rating the deductible proportion on the PIRS in accordance with Chapter 11.10 of the Guidelines. It concluded, however, that in the absence of reliable information from the respondent as to her pre-injury health and given the dearth of information in the clinical notes of her general practitioner at the time of the commencement of work for the appellant that the percentage pre-existing impairment on the PIRS could not be assessed. Any attempt to assign classes to the categories at the time of her commencement of work as a Youth Officer would be entirely speculative.
In those circumstances, the panel concluded that it should assess the deduction at 1/10^th in accordance with Ch 11.10 and s 323(2) of the 1998 Act. The panel considered that a 1/10^th deduction was not at odds with the available evidence. At the time of onset of her present illness, the respondent was employed on a full time basis and able to undertake relatively demanding work. Presumably, she was also able to travel to and from work. On the evidence which the MA accepted her present illness was engendered by her work. After this deduction, the assessed WPI is 22%.
For these reasons, the Appeal Panel has determined that the MAC issued on
26 September 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:	W4276/22
Applicant:	Jacqueline Bowland
Respondent:	Secretary, Department of Community and justice

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 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 injury

24 January 2020

Chapter 14,

Page 361

24%

1/10^th

22%

Total % WPI (the Combined Table values of all sub-totals)

22%

[2023] NSWPICMP 40

9 February 2023