Secretary, Department of Communities and Justice v Brown
[2022] NSWPICMP 57
•22 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Communities and Justice v Brown [2022] NSWPICMP 57 |
| APPELLANT: | Secretary, Department of Communities and Justice |
| RESPONDENT: | Deborah Brown |
| APPEAL PANEL: | Member Paul Sweeney Dr Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 22 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Employer appeals from deduction of 1/10th from whole person impairment (WPI) pursuant to section 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in respect of symptomatic pre-existing psychological condition; it submitted that the Medical Assessor (MA) erred in failing to consider and apply the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Chapter 11.10; alternatively, MA erred in failing to give reasons for application of section 323(2) of the 1998 Act; Marks v Department of Communities considered; Held- that the evidence before the MA did not permit an assessment of pre-existing WPI in accordance with the Psychiatric Impairment Rating Scale; the MA was correct to find it was” difficult” to so and apply a 1/10th deduction; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 November 2021, the Secretary, Department of Communities and Justice (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Andrew McClure, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 26 October 2021.
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,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Deborah Brown (the respondent) commenced employment as a Court Officer with the appellant in February 2000. It is accepted that during her employment she was exposed to interpersonal conflict and subjected to excessive workloads. She was also placed in situations where she felt unsafe.
On the evening before she was to return to work following the January holiday break in 2020, the respondent attempted suicide. She was admitted to the Dubbo Base Hospital and subsequently discharged and admitted to the hospital’s mental health program.
The respondent’s general practitioner, Dr Weyand, also referred her to the Northside Cremorne Clinic where she was treated as an inpatient for a period of three weeks from late January 2020. She was readmitted to that clinic in August 2020 following a significant deterioration in her psychological health. Subsequently, she has remained under the care of her general practitioner. With the exception of a short trial of cleaning work, she has not returned to employment.
The appellant accepts that the respondent suffered psychological injury arising out of and in the course of her employment. She has received weekly payments of compensation during her absences from work. By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
On 3 February 2021, the respondent was assessed by a consultant psychiatrist, Dr Frank Chow, at the request of her solicitor. He diagnosed a major depressive disorder. He assessed whole person impairment (WPI) in accordance with the PIRS Rating Form as 19%. He added 2% for the treatment effect. Thus, he expressed the opinion that the respondent suffered 21% WPI. He made no deduction for a pre-existing condition pursuant to s 323 of the 1998 Act
On 27 May 2021, the respondent saw Dr Peter Young, a consultant psychiatrist at the request of the solicitor for the respondent. The doctor also took a history of major depression which had aggravated a prior condition caused by the death of her partner in 2010. He assessed 6% WPI and also added 2% for the treatment effect. Thus, he expressed the opinion that the respondent suffered 8% WPI as a result of her psychiatric injury.
The difference of opinion between Dr Chow 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 of the Personal Injury Commission (Commission) referred the matter to Dr McClure for assessment. Dr McClure assessed 17% WPI in accordance with the PIRS Rating Form. He deducted 2% WPI from this figure to reflect his opinion that the appellant’s previous psychiatric condition resulting from the death of her partner contributed to her psychiatric impairment. In making that deduction, he referred to s 323(2) of the 1998 Act.
PRE-EXISTING CONDITION
Each of the specialist psychiatrists who have examined the respondent have recorded a history that she experienced psychiatric symptoms following the death of her partner in 2010. By her statement, the respondent says this:
“In 2010, I witnessed my partner of 10 years being hit by a car. I later had to make the decision to turn off life-support and he passed away. I took 3 weeks off work to grieve the loss of my partner and subsequently attended counselling sessions to manage the grief of my loss. After attending counselling sessions, I was able to find a way to cope and manage his loss. I confirm this did not have any ongoing impact upon my capacity to work or ability to engage in employment duties or my activities of daily living.”
The appellant submits that the MA erred in applying s 323(2) of the 1998 Act and in deducting 10%. If the issue of a pre-existing condition had been approached in accordance with law, a larger deduction should have been made. It, therefore, appeals from the determination of the MA.
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 WorkCover Medical Assessment Guidelines 2006.
As a result of the preliminary review, the panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a further examination of the worker by a member of the panel.
As the issue raised on this appeal concerned the application of s 323(2) and the Guidelines to a previous injury or condition, the panel concluded that a further examination would not further elucidate the issues in dispute. Each of the three psychiatrists who had examined the respondent had recorded a history. The respondent’s statement and the notes of her treating general practitioner and treating psychiatrist were in evidence. In those circumstances, it was unlikely that a re-examination would elicit any further history relevant to a deduction for a previous condition.
EVIDENCE
The appeal panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the MAC given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the appeal panel.
In summary, the appellant submits that the MA erred in failing to apply Chapter 11.10 of the Guidelines and in failing to give adequate reasons for his reliance on s 323(2) of the 1998 Act.
The appellant noted that on examination the MA had found that the respondent had a probable past history of post-traumatic stress disorder with residual symptoms of sleep disturbance and nightmares which commenced shortly after her partner’s death in 2010. He also made a finding that these symptoms were a “continuing component of her current condition”. The appellant argues that having made that finding it was incumbent on the MA to apply Chapter11.10 of the Guidelines.
The appellant referred to Marks v Secretary of Communities and Justice (No. 2) [2021] NSWSC 616 (Marks) in which Simpson J held that paragraph 11.10 was ultra vires and invalid, as it was in conflict with s 323(1) of the 1998 Act, where the relevant pre-existing condition was asymptomatic. By contrast, the clear finding of the MA in this case was that the pre-existing condition was symptomatic. Accordingly, following the reasoning in Marks, it was obligatory to apply paragraph 11.10.
The appellant then canvassed the respondent’s psychological history in the context of the PIRS categories. It surmised that if Chapter 11.10 was applied the respondent “warranted a score of Class 2 for both ‘Self-care and personal hygiene” and ‘Concentration, persistence and pace’”. That would result in a determination that her pre-existing condition “would amount to 1% WPI”. The submission continued:
“In light of the history recorded by the MA and applying paras 1.32 and 11.8, the appellant submits that the level of pre-existing impairment should be increased by 2% WPI due to the effects of treatment. As such, the total impairment related to the pre-existing condition would be 3% WPI (2% WPI plus 1% WPI). In accordance with paragraph 11.10, this must be deducted from the assessment of 17% WPI, which would equate to 14% WPI.”
Secondly, the appellant submitted that as it was obligatory for the MA to make an assessment applying Chapter 11.10, he had “an obligation to provide adequate reasons for his decision” to deduct 10% in accordance with s323(2). The appellant referred to the instruction on the obligation to give reasons set out in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (Wingfoot) and in Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan). The appellant submitted that the brief statement by the MA that the deduction was “difficult or costly to determine” did not demonstrate the actual path of his reasoning.
The appellant also relied upon the decision of a medical appeal panel in Austbrokers RIS Pty Ltd v Davy [2021] NSWPICMP 197 (Austbrokers). In that case, the panel stated:
“In the present case it is clear that Mr Davy did suffer a pre-existing condition, and the MA thus needed to explain why the provisions of chapter 11.10 had not been considered”.
The respondent submitted that the final sentence of Chapter 11.10 “expressly contemplates that situations will arise where the degree of pre-existing impairment cannot be assessed”. The Guidelines cannot take precedence over the 1987 Act. The final sentence of Chapter 11.10 plainly is intended to “include impairments that cannot be assessed” because it is “difficult or costly to do so”. The submission continues:
“It is submitted that Dr McClure did not use incorrect criteria. He generally used the correct criteria as he clearly used the applicable section (sic) 11. This is confirmed by the words he used in his Certificate where on page 12 he refers to “chapter 11, pp55-60” and perhaps more obviously by his use of table 11.8 PIRS Rating Form and his class assessments for the various PIRS categories set out on pages 13-25 of his certificate.”
The appellant submitted that once the MA had reached the conclusion that it was “difficult or costly” to determine pre-existing WPI, it would have been an “error to then attempt to perform the calculation task that the appellant asserts he had an ‘obligation’ to undertake.”
In respect of the assertion that the MA failed to give reasons, the respondent argued that reasons do not “need to be extensive”. It submitted that on a consideration of the reasoning process of the MA, it is apparent that he gave appropriate reasons for his decision.
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 [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. 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.
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 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.”
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
By the Application to Resolve a Dispute, the respondent alleged that the cause of her psychological injury was as follows:
“Throughout the course of her employment, for a period of approximately 20 years, the applicant was subject to bullying and harassment by management, whereby she was constantly put in difficult and uncomfortable situations, felt ignored and dismissed by her managers, provided with insufficient support and was overworked with long hours and no assistance.
As a result of the nature of her employment, the applicant developed a psychological injury.”
It is evident from the clinical notes of the respondent’s general practitioner, that the respondent complained of psychological symptoms as a result of her employment as early as 2009. On the assumption that the injury description referred to above is a personal injury, as stated in the Application and not one to which ss 15 or 16 of the 1987 Act applies, the appellant has conceded that the cause of the respondent’s psychological condition was repeated trauma throughout the entirety of her employment. In those circumstances, it is difficult to envisage that the injury in 2010 is a previous injury or pre-existing condition. It occurred concurrently with the psychological injury and did not pre-date it. It may be otherwise if the respondent suffered from a disease which was aggravated by her employment in accordance with s 16. But that is not what is pleaded.
As the parties did not raise this issue in their submissions, the panel chose not to pursue it further. Nonetheless, accepting that Chapter 11.10 applies there is an obvious difficulty in this case in determining the precise time at which the appellant should be assessed for a pre-existing psychological condition.
The MA took the following history relevant to a previous injury or pre-existing condition:
“Depressive symptoms were of gradual onset, up to 10 years ago. The applicant’s GP whom she visited regularly with gastrointestinal symptoms and/or migraines, one day asked her if she was depressed. She acknowledges that her sleep had been disturbed “for many years” with both initial and broken sleep. She would wake with racing thoughts, or after a nightmare. Nightmares often depicted work scenes, or the death of her former partner in a road accident in 2010.”
Under the heading “Present Symptoms” the following appears:
“The applicant acknowledges improvement with treatment but remains symptomatic. Her mood is still ‘flat’ but she has no suicidal thoughts. Nightmares are infrequent now. When they come, as before they depict work events and the fatal accident of her ex-partner.”
The MA concluded that the respondent had a “pre-existing prolonged grief reaction with features of Post-Traumatic Stress Disorder”. He stated:
“Residual symptoms were very mild at the time of the index injury, however Ms Brown’s continuing anxiety, sleep disturbance and occasional nightmares represent this residue and are a continuing component of her current condition.”
The approach of the MA is consistent with that expressed by Dr Himalee Abeya, a psychiatrist who saw the respondent, at the request of her employer, on 22 February 2019. She recorded that the incident in 2010 had:
“given rise to symptoms suggestive of a post-traumatic stress disorder and some clear and longer term grief-related issues.”
Dr Abeya expressed the opinion that the respondent’s PTSD-related symptoms were “mostly in remission with some low-grade anxieties still present”. There were no current depressive symptoms. She continued:
“Diagnostically her presentation is compatible with a past post-traumatic stress disorder which is now partially in remission with some low-grade residual symptoms. She would benefit from re-engaging with her treating psychologist as this would assist with reducing these symptoms and reducing the chance of future relapse.”
Having reviewed the entirety of the medical material in evidence the panel concurs with the finding of the MA that it is “difficult” to assess the respondent’s pre-existing condition in accordance with the PIRS rating scale as mandated by Chapter 11.10. To attempt to do so is to embark on an exercise in speculation.
The appellant suggests that the respondent’s pre-existing condition can be assessed at 1% by the application of the PIRS. It argues that Class 2 is “warranted” in the categories of Self-care and Concentration, persistence and pace. But, with the exception of a few weeks following the incident in 2010, the evidence does not suggest that respondent experienced symptoms or restrictions on her activities which would permit an assignment of Class 2.
In respect of Self-care Table 11.1 provides the following examples of interference with activities that are relevant to a finding of 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.”
In respect of Concentration, persistence and pace, Table11.5 provides the following examples of Class 2:
“Mild impairment: can undertake a basic retraining course, or a standard course at slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes then feels fatigued or develops headaches.”
The respondent’s evidence in respect of her condition is quite incompatible with these examples. By her statement the respondent says that until she was overwhelmed by aspects of her employment and experienced a major depression, she was able to work without “difficulties with my concentration abilities or memories”. She says that she was well organised in both her work and personal life would read books and newspapers and extensive Court documents each day.
In respect of the self-care, the respondent says that prior to her decompensation she was able to perform a full day’s work. She adds:
“When I came home from work, I was able to shower, cook dinner, and spend time with my husband. Previously, I was able to complete all household chores around the home without any issues”
Even if it was assumed that the respondent’s evidence was unreliable, there remains a complete absence of evidence to enable an assignment of Class 2. It cannot be denied that the respondent worked in a responsible job, which required her from time to time to work extended hours during long Court sittings and the attendant travel. As there is no evidence that she experienced a difficulty with self-care, it is unlikely that her psychological impairment is consistent with Class 2.
If it was possible to assign a class, in respect Self-care and personal hygiene on the basis of the evidence available, the panel would assign Class 1. That is also true of Concentration, persistence and pace self-care and personal hygiene. There is simply no evidence that the respondent occasionally looked unkempt, missed meals or relied on take-away food as a consequence of any pre-existing condition relating to the death of her former partner. Again, the respondent’s evidence is that, after a short absence from work, her self-care was unaffected by residual grief or post-traumatic stress disorder resulting from the death of her partner.
Lastly, the appellant submits that 2% should be added to the assessment made pursuant to paragraph 11.10 for the effects of treatment. In accordance with Chapter 1.32 it provides:
“Where the effect of long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%.”
On the basis of the MA’s findings, it is evident that despite medication the respondent continued to have sleep disturbances and occasional nightmares as a long-term consequence of the 2010 incident. As it is not evident that she suffered permanent impairment prior to her decompensation resulting from the work injury, it is entirely inapt to conclude “that medication has resulted in substantial or total elimination of her permanent impairment”. It has not been established that the respondent had permanent impairment, in this case WPI as assessed in accordance with the PIRS rating scale, as a result of her previous injury or pre-existing condition. Thus, one cannot conclude that medication has eliminated her permanent impairment.
Furthermore, the panel notes that the worker received only very intermittent prescriptions of benzodiazepine sleeping tablets. These are not a treatment for the pre-existing condition the MA identified and treatment guidelines for Post Traumatic Stress Disorder expressly warn against their use. As such the panel can discern no significant ‘long-term treatment’ of the worker for her pre-existing condition.
In the opinion of the panel, the appellant has attempted to conjure a pre-existing WPI with no regard for the evidence. An analysis of the evidence leads inexorably to the conclusion is that it is simply not possible to utilise Chapter 11.10 and the PIRS scale to assess permanent impairment prior to the injury. The MA was correct to find that it was “difficult” to determine the extent of the respondent’s pre-existing impairment. The appellant’s first ground of appeal must fail.
It is true that the MA did not refer to Chapter 11.10 of the Guidelines in carrying out his assessment. The respondent argued that, as the MA referred to Chapter 11 on several occasions in the MAC, it cannot be assumed that he overlooked clause 10. That may be so. But it is also plausible that the MA did not consider the application of this clause. In conformity with the reasoning in Austbrokers that may constitute error.
It is also arguable that the MA did not give appropriate reasons for utilising s 323 (2) to make a deduction of 1/10th. It was not incumbent upon him to comply with the standard of reasons required by Vegan. That case concerned the obligation to give reasons of an appeal panel. Patently, the obligation of an MA to provide reasons is a lesser one. The matter is evenly balanced. It is, however, unnecessary to closely examine it.
If the MA failed to give reasons for his deduction, it is clear from the discussion above that there were good and sound reasons why he should have applied a 1/10th a deduction. There was no evidence to enable him to determine pre-existing permanent impairment by the application of PIRS in accordance with Chapter 11.10.
In the circumstances of the case, where the MA had found that the pre-existing condition contributed to the respondent’s WPI, it was appropriate to make a 1/10th deduction in accordance with the ultimate sentence of Chapter 11.10 and s 323(2) of the 1998 Act. The errors made by the MA do not alter the outcome. The panel has concluded on a review of the evidence that the deduction made by the MA was appropriate. No other option was available.
For these reasons, the appeal panel has determined that the MAC issued on 26 October 2021 should be confirmed.
Paul Sweeney
Member
Nicholas Glozier
Medical Assessor
Patrick Morris
Medical Assessor
22 March 2022
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