Secretary, Department of Communities and Justice v Freckelton - [2024] NSWPICMP 235

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Communities and Justice v Freckelton [2024] NSWPICMP 235
APPELLANT:	Secretary, Department of Communities and Justice
RESPONDENT:	Julie Freckelton
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	19 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) assessed the injury the subject of the referral; whether MA failed to distinguish a condition the appellant alleged the respondent suffered; Appeal Panel held that the evidence did not support the appellant had suffered a separate condition; Appeal Panel held MA assessed the injury that had been referred for assessment; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 December 2023 the Secretary of the 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 Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 December 2023.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

Julie Freckelton, the respondent, commenced employment as a caseworker for the appellant in 2005. On 1 February 2022, relying on a report of Dr Abdal Khan dated 21 November 2021, she made a claim for compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% whole person impairment resulting from a psychological injury she suffered in her employment with the appellant. Dr Khan, who had examined the respondent by video conference on 18 November 2021, set out a history in his report of several incidents that the respondent had described to him that had occurred in her employment. Those circumstances commenced with an incident in 2008 after the respondent had returned from maternity leave which the respondent had described as bullying. The final incident occurred on 9 March 2020 when the respondent conducted a home visit involving a child pulling knives on family members, which triggered distressing memories for the respondent.
To respond to the respondent's claim, the appellant's solicitors organised for her to be examined on 30 May 2022 by psychiatrist Dr Graham Vickery. In a report of 12 July 2022
Dr Vickery confirmed that the respondent had suffered a psychological injury that he diagnosed was major depressive disorder with anxious distress. Dr Vickery said that injury “is a primary injury on the basis of the history provided”. Dr Vickery also said that the respondent’s injury was a “personal injury such that there was a sudden or defined change in pathology in March 2020”.
The history that Dr Vickery detailed in his report included, in the main, the same circumstances that the respondent had described to Dr Khan and that Dr Khan had detailed in the history in his report. However, Dr Vickery recorded the final incident was a meeting on 5 March 2020 in which the respondent said she was given a particularly complicated client who had assaulted people with a knife and that this triggered memories for her of a past knife incident. Dr Vickery noted that the respondent said she felt she was being criticised at that meeting and that she was distressed and in pain because it went on for so long. Dr Vickery did not detail in the history in his report the home visit the respondent undertook on
9 March 2020.
In his report of 13 July 2022 Dr Vickery said that he expressed the view that the respondent had not undertaken appropriate treatment by a psychiatrist and had not reached maximum medical improvement.
In a statement the respondent signed on 10 July 2020, the respondent described that at a meeting on 5 March 2020 between her and another employee of the appellant an assessment that the appellant had done previously relating to a child who had a propensity to use knives was discussed. The respondent said she was told she would need to add further detail regarding her assessment with respect to that child. The respondent described not being provided support with respect to the complex needs of the family of the child and felt she was ignored by her colleague. The respondent also provided brief details in her statement of the home visit she conducted on 9 March 2020. She had previously visited that home on 6 March 2020. She said that following those visits she experienced persistent poor sleep and had unexpected and upsetting memories and felt in fear all the time. She said that when she conducted the home visit on 9 March 2020 she was having heart palpitations and was in extreme distress and was unable to focus or concentrate. She subsequently consulted a psychologist on that day whom she had previously consulted in 2019 for pain management.
Following receipt of Dr Vickery’s report, the appellant's solicitors wrote to the respondent's solicitor on 3 August 2022 providing then with a copy of Dr Vickery's report and advising them that based on Dr Vickery's opinion, the respondent had not reached maximum medical improvement and was “not entitled to lump sum compensation at this time”.
The respondent then initiated proceedings in the Personal Injury Commission (Commission) seeking determination by the Commission of her claim for compensation for permanent impairment from her injury. Under the heading “injury details” in the Application to Resolve a Dispute that she filed to initiate those proceedings, she described her injury was a “disease”. She particularised date of injury as “9/03/2020”. She ticked the box for “deemed date”. She provided the following description of her entry and how it arose:
“At the time of injury, the Applicant was employed by the Respondent as a Child Protection Caseworker, situated at the Auburn Community Services Centre.
Throughout the course of her employment, for a period of approximately 16 years, the Applicant was subject to traumatic events and interpersonal conflicts with management in the form of bullying, harassment, violence, excessive workloads and unrealistic expectations.
As a result of the nature and conditions of her employment, the Applicant developed a psychological injury, diagnosed as post-traumatic stress disorder and major depressive disorder.”
In its Reply to the respondent's Application of Resolve a Dispute, the appellant contended that the respondent was unable to prosecute a claim relating to an injury in the nature of a disease because she had not made a claim for compensation for such an injury. The appellant contended that the respondent had sustained a compensable personal injury for the purpose of s 4 and 9 A of the 1987 Act and that the appellant had accepted the respondent had suffered such an injury.
The Commission referred the matter to one of its Members, namely Mr Michael Moore, who on 18 May 2023, with the consent of the parties, made several determinations including the following:
“The application to resolve a dispute is amended by amending the ‘Type of Injury’
section of the application to read ‘Personal Injury under section 4(a) of the Workers
Compensation Act 1987.’ The application is further amended by deleting the tick in the box marked ‘Deemed Date’.”
Thereafter the matter was referred to the Medical Assessor to assess several medical disputes that were described in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the degree of permanent impairment of the worker as a result of an injury
(s319(c))
 whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 9 March 2020
Body part/s referred: Psychiatric / psychological disorder
Method of assessment: Whole person impairment”
The Medical Assessor was provided with a copy of Member Moore's certificate determination dated 18 May 2023.
The Medical Assessor provided the following summary in the MAC of the respondent's injury and his diagnosis of it:
“Ms Freckleton had no prior psychiatric disorders. She developed psychological symptoms which have persisted since 2019 due to several issues that (sic: at) work, including management related issues, exposure to traumatic cases, being assaulted and the last event was on 9 March 2020.
Her symptoms are consistent with Post-traumatic stress disorder and Major depressive
disorder, she has had psychologist treatment and psychotropic medications, and her
treatment has remained the same for a long time now. There is no plan for further treatment or change in treatment. She does not intend to consult a psychiatrist; this has been discussed with her. She does not want to have ECT or TMS, and she has completed all treatment she is willing to engage with. Therefore, I consider her condition to have stabilised and MMI reached.”
The history the Medical Assessor detailed in the MAC relating to the occurrence of the respondent's injury included that the respondent had experienced intermittent bullying and had experienced stress symptoms since she commenced her employment. The Medical Assessor also noted the respondent had not experienced persisting psychopathology from that and had never required help.
The Medical Assessor noted that the respondent commenced experiencing some psychological symptoms, which he did not specify, at the end of 2019. He recorded in some detail the incident on 9 March 2020 in which the respondent made a home visit. He described the respondent reporting that there was a lot of tension and aggression in the household and that she had learned of further reports of aggression and a child pulling knives on her family and stabbing her 3 year-old sister. He recorded that the respondent reported that the child had threatened to stab her and that the respondent recalled having panic attacks and palpitations. He recorded that the respondent could not continue working after this incident and that she commenced psychological and psychiatric treatment after the incident.
The Medical Assessor assessed the respondent's impairment by reference to the Psychiatric Impairment Rating Scale provided within Chapter 11 of the Guideline. Based on his ratings of the respondent’s impairment in the several categories comprising that scale, he assessed the appellant had 24% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established either of the grounds for appeal on which she relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; 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.

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 did not assess the degree of the respondent's permanent impairment from the injury that was the subject of the medical disputes that had been referred to the Medical Assessor for assessment. The appellant referred to the certificate of determination recording Member Moore's determination and specifically the determination Member Moore made amending the Application to Resolve a Dispute. The appellant highlighted that the Medical Assessor was required to assess the respondent’s permanent impairment from a personal injury sustained on 9 March 2020. The appellant submitted that the Medical Assessor’s assessment related to a condition that the Medical Assessor “understood to be multifactorial and with onset of symptoms prior to
9 March 2020”.
The appellant submitted that the Medical Assessor wrongly had regard to circumstances in the respondent's employment that had occurred from 2005. The appellant submitted that “to the extent that the [Medical Assessor] has identified the personal injury on 9 March 2020 as giving rise to further distress and symptoms, the [Medical Assessor] failed to distinguish between any such personal injury and the condition he describes as having persisted since 2019 (by way of alternate diagnoses or otherwise)”. The appellant submitted that the respondent’s personal injury should have been distinguished from the respondent’s other condition that had persisted since 2019, and that had that been done a deduction under
s 323 of the 1998 Act should have been made for the pre-existing condition.
In reply, the respondent submitted that no amendment was made to the Application to Resolve a Dispute regarding how her injury occurred and the only amendment related to the nature of the injury in that it was described as a personal injury and not a disease injury. The respondent submitted that a personal injury does not need to be a frank injury. The Appeal Panel understands that the respondent’s reference to a “frank injury” is a reference to an injury that occurred in a single incident. The respondent submitted that her case has always been that she suffered a personal injury as a consequence of repeated incidents affecting her psych and mental state and that her psychological injury manifested on 9 March 2020. She submitted that was the opinion of both Dr Khan and Dr Vickery. The respondent submitted that “the appellant is confusing a s4(a) personal injury with a frank injury”. Essentially, the respondent was submitting that the appellant was conflating both types of injury.
The respondent submitted that the Medical Assessor issued a MAC in accordance with the medical dispute referred to him and identified the date of injury as 9 March 2020. The respondent highlighted that the Medical Assessor referred to the incident on 9 March 2020 and her reaction to that. The respondent highlighted that the Medical Assessor noted that she had not experienced persisting psychopathology prior to 9 March 2020 and never required help. The respondent submitted that the Medical Assessor did not state that she had developed a pre-existing condition or injury. The respondent submitted that there is no evidence of any previous injury or pre-existing condition at which would require the application of s 323 of the 1998 Act.

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.
There is nothing within the evidence that was attached to the respondent's Application to Resolve a Dispute and the appellant's Reply to that that reveals the respondent had suffered a psychiatric injury prior to the incident on 9 March 2020 where she undertook a home visit involving a child that had a history of using knives to harm others. Whilst the respondent may have had symptoms of a psychological nature in reaction to stressors to which she was previously exposed in her work, there is no evidence to indicate that any of those symptoms crossed a threshold that would enable a diagnosis of a psychiatric condition to be made.
Simply said, there is no evidence of the respondent suffering a psychiatric condition before
9 March 2020. What the evidence reveals is that following the event on 9 March 2020 the respondent decompensated into an acute stress reaction that precipitated a psychiatric illness. What then occurred was a stepwise decline into injury.
The stressors to which the respondent was exposed prior to 9 March 2020 may have been factors that contributed to the occurrence of her injury on 9 March 2020, in that they may have made her more vulnerable to suffering a psychological injury on 9 March 2020, but the evidence, in the Appeal Panel’s view, clearly establishes that it was the event on
9 March 2020 that was the most significant factor in the respondent suffering psychiatric injury, which the Medical Assessor diagnosed as post-traumatic stress disorder and major depressive disorder.
The Medical Assessor did assess the medical disputes that were referred to him in that his assessment related to the injury the respondent suffered on 9 March 2020. He issued a Medical Assessment Certificate in response to that referral.
Given the evidence did not establish the respondent had suffered a psychiatric illness prior to her injury on 9 March 2020, the Medical Assessor was correct to conclude that the respondent did not have a pre-existing condition. Consequently, s 323 (1) of the 1998 Act, as the respondent correctly submitted, could not be engaged.
For these reasons, the Appeal Panel has determined that the MAC issued on
4 December 2023 should be confirmed.