Secretary, Department of Communities and Justice v Lewandowski
[2023] NSWPICMP 500
•6 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Communities and Justice v Lewandowski [2023] NSWPICMP 500 |
| APPELLANT: | Secretary, Department of Communities and Justice |
| RESPONDENT: | Deborah Lewandowski |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
DATE OF DECISION: | 6 October 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; remittal from Supreme Court of employer appeal against psychiatric assessment of 17%; whether Medical Assessor (MA) erred in failing to make a deduction pursuant to section 323; Held – MA extracted large tracts of evidence, much of which was concerned with the subject injury which was irrelevant, as injury had been admitted; amongst that evidence was unchallenged account of the applicant being victim of an armed robbery at a restaurant, and having time off work as a result; subject injury concerned the failure by the employer to comply with return to work plans, and bullying and harassing the claimant; contemporary evidence ad idem that claimant suffering a post-traumatic stress disorder as a result of the robbery; substantive report of claimant’s medico-legal expert not lodged, but an advocative summary of it by solicitor; Marks v Secretary, Department of Communities and Justice explained by Camden Council v Hale; Cole v Wenaline and Elcheikh considered and applied; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 April 2022, Secretary, Department of Communities and Justice, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 March 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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 18 January 2022 an amended referral was made to the Medical Assessor seeking an assessment of WPI caused by psychological injury that occurred on a deemed date of 15 June 2018.
Ms Lewandowski was had been working for the respondent since 2011. She had experienced bullying and harassment in 2012 and again in 2014.
On 20 January 2018, she was a victim in an armed robbery where she feared for her life. She had some time off and returned to work in April 2018. However, due to the pressure of her workload and the failure of her employers to support her, she developed her psychological condition and resigned, having been bullied and harassed by management. She ceased work on 15 June 2018.
The Medical Assessor found that Ms Lewandowski had suffered 17% 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.
The appellant employer did not request that Miss Lewandowski be re-examine by a Medical Assessor who is a member of the appeal panel. For the reasons given below, the panel did not need to re-examine Miss Lewandowski. The issue in dispute is the application of s 323 of the 1998 Act and all the necessary evidence is before us. A re-examination would not have assisted our deliberations.
EVIDENCE
Documentary 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 parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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. 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 appellant employer submitted that there had been a failure to properly apply the provisions of s 323 of the 1998 Act.
The MAC
As indicated, the Medical Assessor took a history that Ms Lewandowski, whilst socialising in her community, was the victim of an armed robbery in which she feared for her life. The Medical Assessor noted that Ms Lewandowski had sought medical and psychological treatment and returned to work on light duties.
In describing previous accidents, injuries or conditions the Medical Assessor said, relevantly:[1]
“Ms Lewandowski reported she was 11 years of age when she was a victim of childhood sexual abuse. The accused was charged, and the case was heard in court without the accused being convicted.
Ms Lewandowski reported she had sought psychological treatment and advice about the time of separation form her second husband. She was treated with the SSRI Sertraline and had a severe allergic skin reaction to this medication.
….
Ms Lewandowski had lodged her first psychological work-related injury claim whilst employed with this employer in about 2012. She reported being bullied and harassed whilst working in Bourke, NSW. The claim was declined. Ms Lewandowski reported that the bullying and harassment continued however she did not formally complain until after leaving work in June 2018.”
[1] MAC page 4.
In his summary at [7] of the MAC the Medical Assessor noted:
“Ms Lewandowski was a single woman who was recovering from being attacked in a restaurant in January 2018. She had expected that her employer would honour the return-to-work plan. Ms Lewandowski’s more senior manager failed to follow the return-to-work plan. Ms Lewandowski became overwhelmed with an unmanageable workload. ...”
In the last paragraph of his summary, the Medical Assessor said:
“In my medical opinion Ms Lewandowski did not have a pre-existing psychological / psychiatric impairment prior to the onset of this work-related injury. She had been resilient to her childhood hardships. Ms Lewandowski had been able to work whilst suffering from other medical hardships. Ms Lewandowski had moved closer to medical centres so she could continue to work prior to the onset of this work-related injury. At the time of this assessment Ms Lewandowski was more than 10 years breast cancer free. During the divorce from her second marriage in 2010, Ms Lewandowski sought psychological and psychiatric treatment. She recovered from this loss without impairment.”
In relating the facts on which the assessment was based at [9] of the MAC, the Medical Assessor said relevantly:
“[Ms Lewandowski] …was a victim of an armed robbery in January 2018…”
At the end of that summary, the Medical Assessor said:
“Ms Lewandowski had no pre-existing psychological impairment prior to the onset of this work-related injury.”
He stated at [10a] in giving his opinion and assessment:
“Ms Lewandowski was unfit to work in her primary substantive role as a Community Corrections Officer. She had failed to return to any lesser workplace role. Ms Lewandowski’s Posttraumatic stress disorder DSM5 Code 309.81 was exacerbated by her employer.”
He also said in the same paragraph:
“Ms Lewandowski had not suffered from a pre-existing psychological impairment.”
In explaining his calculations at [10b] the Medical Assessor said:
“Ms Lewandowski had no pre-existing psychiatric condition. No deduction was made for this reason”.
At [10c] the templated question reads; “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.”
The Medical Assessor noted Ms. Lewandowski's statement dated 21 April 2020. He related the following from that statement:[2]
“3. On Saturday 20 January 2018, | was dining with a friend at a Thai Restaurant in Coffs Harbour when a male came into the Restaurant and held the Restaurant up with a knife. There were a number of people in the Restaurant. Whilst it was being held up and when the offender Ieft, he went through the kitchen. We could hear the kitchen staff screaming and I feared that they were being hurt. We all left the Restaurant by the front door and stood waiting in the Lane next to the Restaurant for the Police to arrive. It was at this time the offender then came back past the group. The offender was arrested by Police later that evening.
….
5. The holdup however had upset me and on Monday 22 Jan 2018, I was sent home from work at CHCC due to being in a distressed state. I found it difficult to perform my work with offenders as it made me think of the holdup.
6. In the days following, | sought medical and psychological treatment and took leave from my work both Sick Leave (8L) and Leave Without Pay (LWOP). I provided supporting medical certificates from 22 January 2018 till 20 April 2018 to my employer. | was experiencing nightmares and flashbacks of the armed holdup. I would startle easily. I was fearful of being held up again.
7. In consultation with my employer, my General Practitioner (GP) and my psychologist, l returned t0 my usual occupation on 23 April 2018 on a graduated Return To Work Plan (RTWP). l thought that my employer would support me and follow my RTWP.
13. Ms Moloney would not listen to any thing I tried to say and terminated the meeting with no offer to assist me or even listen to what | had to say. I left the meeting on the verge of tears and felt upset in the stomach. As I exited her office, I noticed that she was directly behind me. | felt intimidated by her behaviour.”
[2] MAC page 10.
The Medical Assessor then reproduced from paragraph 21 the details of the subject injury, a total of 12 paragraphs.
The Medical Assessor noted another statement by Ms Lewandowski of 30 July 2021. He reproduced at length a further statement of a colleague, Ms Rochelle Tu’ithi of 27July 2021, which again concerned the details of the admitted injury.
The Medical Assessor then referred to correspondence from the Associate Director of Ms Lewandowski's solicitors, Ms Jody Thurgood, which gave a hearsay opinion about what the medico-legal specialist retained by Ms Lewandowski, Dr Oldtree Clark, had diagnosed. The Medical Assessor summarised Ms Thurgood’s opinion as to why Dr Wendon’s opinion should be disregarded. (We interpose to observe that we are at a loss to understand why such advocacy about injury causation was included, when it had been admitted by the respondent.)
The Medical Assessor then considered an actual report of Dr Thomas Oldtree Clark of 5 May 2020. He noted that a 17% WPI had been assessed by Dr Oldtree Clark together with an adjustment of 1% for the effects of treatment to make the total 18%.
The Medical Assessor considered the report of Ms Jennifer Grant, clinical psychologist, dated 11 July 2019, and recited parts of that report which related to treatment. The Medical Assessor noted, however, that Ms Grant had said that Mr. Lewandowski identified two “primary concerns,” one of which was:
· hypervigilance, avoidance, fatigue, feelings of despair, flashbacks and sleep disturbance related to her exposure to the armed robbery.
The medical officer then considered the report of treating psychiatrist Dr Alan Doris dated 13 February 2019, again choosing to repeat Dr Doris’ report verbatim. Dr Doris recorded Ms Lewandowski’s prior history, including the detail that when the perpetrator of the sexual assault had not been convicted, Mr Lewandowski had appeared in the witness box to identify him.
Dr Doris noted, in the third paragraph reproduced by the Medical Assessor:[3]
“Deborah came to Coffs Harbour in 2014. She described having a very positive relationship with her manager and feeling very good about her work. In January 2018 she was in a restaurant in Coffs Harbour when a young man with a knife robbed the establishment causing Deborah to be in fear of her life. She appears to have had a typical trauma reaction in the weeks following this and returned to work in April. She started seeing her psychologist, Jennifer Grant, in March and a return-to-work plan was developed.”
[3] MAC page 14.
The Medical Assessor also reproduced Dr Doris' diagnosis, which read:[4]
“Deborah appears to have developed post-traumatic stress disorder in the months following being in a restaurant while an armed robbery was taking place. She continues to have symptoms consistent with post traumatic stress disorder. Deborah also appears to have developed a major depressive episode in recent months which is of moderate to severe severity.”
[4] MAC page 15.
The Medical Assessor consulted the clinical notes of the medical of the Coffs Harbour Medical Centre. One entry that he reproduced was as follows:[5]
[5] MAC page 15.
“Surgery consultation recorded by Dr Lois Oliver on 02/02/2018
…
traumatised by altercation at thai restaurant
knife was pulled on her
then lost it at work the following Monday
off work can't cope
seen psych but can't remember much
…
needs rest
advise 2 weeks off and do nothing
..”
The Medical Assessor noted on 13 June 2018 a further entry by Dr Oliver:
“back at work full time not managing well
stress levels increased and getting palpitations, chest tightness, memory loss, lack of concentration, agitation
some PTSD symptoms as well ….”
The notes reproduced by the Medical Assessor on 18 June 2018 read:
“psychological breakdown again with anxiety
manager at work allegedly not complying to return to work plan and so finding she is over pressured again …”
Amongst other material the Medical Assessor also noted an entry by Ms Yvette Greenhalgh, clinical psychologist of 14 February 2018:
“I have provided Deb with psycho education regarding Post Traumatic Stress Disorder …”
The Medical Assessor also noted a decision made by an Assessor at the Commission of Victims Rights pursuant to the Victims’ Rights and Support Act 2013 made on 26 August 2020. What the Medical Assessor reproduced was:[6]
“2. I have determined that Ms Lewandowski was a primary victim of an act of violence under section 19 and 20 of the Victims Rights and Support Act 2013…
6. According to the application form, Ms Lewandowski was the victim of robbery committed by an alleged offender. The violence occurred on 20 January 2018 at Coffs Harbour, …”
[6] MAC page 17.
The Medical Assessor reproduced the description by Ms Lewandowski of the act of violence as reproduced by the Commissioner.
The Medical Assessor also reproduced large tracts of a report by Dr Roger Wenden, psychiatrist. He noted the history taken by Dr Wenden that Ms Lewandowski’s supervisor had not followed the return-to-work plan with regard to her previous sick leave following her witnessing the robbery at the Thai restaurant, which terrified her and from which she developed a posttraumatic stress disorder.
The Medical Assessor reproduced Dr Wenden’s opinion as to causation which was that Ms Lewandowski has suffered an aggravation of post-traumatic stress disorder for which she was treated by a psychologist, Ms Yvette Greenhalgh.
The Medical Assessor referred to a further report dated 23 November 2020 from Dr Wenden where Dr Wendon noted:[7]
“The earlier PTSD has contributed to her incapacity to work.”
[7] MAC page 20
The Medical Assessor referred to other reports which are not relevant for present purposes.
The templated [11] is entitled ‘Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality’. The Medical Assessor said:
“There is no deductible proportion”.
SUBMISSIONS
Appellant employer
The appellant employer referred to the history of the subject injury and noted that Ms Lewandowski had been subjected to an armed robbery and was diagnosed for post-traumatic stress disorder, as a result of which she went on sick leave. She returned to work on a Return-to-Work plan which was developed on 21 May 2018 with the objective of return to full duties by 4 June 2018.
The appellant employer noted that Ms Lewandowski resigned on 15 June 2018 and subsequently alleged that the resignation was due to bullying and harassment as well as a failure by the employer to follow the requirements of her return-to-work plans.
Essentially the appellant employer submitted that the Medical Assessor had failed to apply the provisions of s 323 of the 1998 Act, and that the failure to make a deduction was at odds with the available evidence and indeed the Medical Assessor’s own history.
The appellant employer kindly reproduced the terms of s 323 of the 1998 Act and also referred to chapters 1.27 and 1.28 of the Guides.
We were referred to the well-known and uncontroversial authority regarding the application of s 323 as explained by Schmidt J Cole v Wenaline Pty Ltd.[8]
[8] [2010] NSWSC 78
We were also referred to Marks v Secretary, Department of Communities and Justice.[9] In that case the appellant employer submitted that the relevant test was not whether the respondent was symptomatic prior to the work injury, as prescribed by Chapter 11.10 of the Guides, but whether the pre-existing condition had contributed to the overall level of impairment caused by the work injury, provided by s 323 of the 1998 Act, as we understood the submission.
[9] [2021] NSWSC 306
The appellant employer further submitted:
· the Medical Assessor had noted earlier bullying and harassment in 2012;
· the Medical Assessor had diagnosed a condition of post traumatic stress disorder, and
· the Medical Assessor had diagnosed post traumatic stress disorder noting that it was exacerbated by her employer in 2018.
The appellant employer referred to Ms Lewandowski’s statements, neither of which made any reference to any pre-2018 events had been causative of her condition.
Further, the medico-legal report of Dr Oldtree Clarke also failed to mention any pre-2018 events.
The appellant employer submitted moreover that the Medical Assessor had erred in failing to consider the contribution that any impairment caused by the arm robbery in January 2018 may have made to the overall impairment caused by the subject injury.
We were referred to the extracts reproduced in the MAC, which we have referred to, of Ms Lewandowski’s statement as to the effects of that event.
The appellant employer submitted that it was clear that Ms Lewandowski herself accepted that the psychological symptoms that arose from the armed robbery prevented her from being able to do her normal duties when she returned to her employment.
The appellant employer submitted that the diagnosis of her GP Dr Lois Oliver clearly related her psychological condition to the armed robbery. It was accepted that she returned to work on a Return-to-Work plan because of her condition, it was submitted.
Ms Lewandowski had sustained a significant psychological injury as a result of the armed robbery, the appellant employer argued, but the Medical Assessor did not address or identify the symptoms experienced by Ms Lewandowski in relation to this injury.
With regard to the ground of incorrect criteria the appellant employer referred to Marks in support of the submission that the deduction is to be made even if a pre-existing psychological injury is dormant at the time of the injury.
The respondent
The respondent submitted that the Medical Assessor had undertaken the assessment of Ms Lewandowski in accordance with the governing legislation and guidelines. It was evident from the detail of the MAC that the Medical Assessor had considered Ms Lewandowski’s history and the subject injury.
It was clear that the Medical Assessor considered the medical evidence from the detail of his MAC, it was submitted. We were referred to the relevant pages.
It was submitted that the Medical Assessor’s explanation acknowledged Ms Lewandowski having been exposed to bullying and harassment in 2011 and being further exposed to the armed hold up in January 2018, but nonetheless in his view Ms Lewandowski had no pre-existing psychological impairment.
We were referred to the Medical Assessor’s unequivocal statement that no deduction was required.
Ms Lewandowski accepted there should be a deduction from an assessment of permanent impairment in relation to a subject injury where any proportion of that impairment was due to a previous injury.
Ms Lewandowski argued that the Medical Assessor did not find that she had suffered a pre-existing post traumatic stress disorder condition due to bullying and harassment in 2011.
We were referred to Marks and a submission was made that, applying the principles in Marks to a Medical Assessor’s assessment, it is evident that the Medical Assessor had not only considered whether Ms Lewandowski was symptomatic due to “any prior injury” but that he had also considered whether any contribution to the prior impairment had been made “due to any vulnerability from pre-existing condition.” There was no error in this finding it was submitted and Ms Lewandowski then referred to a report by Dr Peter Whetton, psychiatrist, advising us to treat the report “with caution”. Dr Whetton, the appellant said, had also found that a deduction was inappropriate.
We were also referred to the report of Dr Oldtree Clark, who also made no deduction.
Ms Lewandowski submitted that the Medical Assessor had considered her previous allegations of bullying and harassment but did not make any diagnosis as to any previous psychological injury she might have sustained at that time. There was, it was argued, no evidence before the Medical Assessor to that affect, as the evidence relied on by the employer had been considered by the Medical Assessor.
Ms Lewandowski submitted that it was clear that the Medical Assessor had regard to all of the evidence before him. It was submitted that the appellant employer had not addressed why it considered the assessment was incorrect when its own medico-legal advisor made the same determination, namely that no deduction was applicable.
DISCUSSION
This matter has come before the Panel as a result of a remittal by Griffith AJ in Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 which set aside the decision of an earlier Medical Appeal Panel, and remitted the case to be redetermined according to law.
Unusually, it is not necessary to refer specifically to evidence that was before the Medical Assessor because as has been seen, he extracted the relevant material himself.
In Western Sydney Local Health District v Chan[10] Adams J found that a Medical Assessor (“AMS” as they were then called) was bound, following the High Court authority of Wingfoot Australia Partners Pty Ltd v Kocak,[11] to explain his path of reasoning in his determination.
[10] [2015] NSWSC 1968 at [13].
[11] [2013] HCA 43; 252 CLR 480.
Both parties referred to the decision of Marks v Secretary, Department of Communities and Justice[12] in their submissions. The purport of such references was opaque, with respect, and both failed to refer to Marks v Secretary, Department of Communities and Justice(No 2).[13] These decisions were considered in Camden Council v Hale[14] in which it was determined that:
“….The whole of cl 11.10 of the Guides is inconsistent with s 323 of the 1998 Act and invalid.”
[12] [2021] NSWSC 306.
[13] [2021] NSWSC 616.
[14] 2022] NSWPICMP 339.
Section 323 of the 1998 Act provides relevantly:
“323 DEDUCTION FOR PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note : So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
…”
It is common ground that Ms Lewandowski was dining with a friend on 20 January 2018 when the restaurant she was dining in was held up by a man with a knife. The Medical Assessor acknowledged both the event and its medical sequalae by reference to many different accounts, as we have indicated. There is no dispute that Ms Lewandowski’s time off work until 23 January 2018 was caused by the post traumatic stress disorder the incident had caused.
Moreover, the evidence extracted by the Medical Assessor confirmed that the cause of Ms Lewandowski’s subject impairment was the failure by the appellant employer to support her and follow her Return-to-Work plan. This led to Ms Lewandowski being bullied and harassed by her employer, as well as being given an overwhelming workload. Again, that evidence was reproduced by the Medical Assessor in somewhat puzzling detail, given that the subject injury has been admitted. The Medical Assessor did not, with respect, appear to appreciate that there was no need to traverse all the evidence as to the actual injury referred to him. Indeed, it may be that the mass of detail he gave in a most thorough determination diverted him from considering the proper application of s 323.
We note Ms Lewandowski’s reliance on the opinion of Dr Oldtree Clark that there should be no deduction for pre-existing impairment. That assessment was contained in Dr Oldtree Clark’s report dated 5 May 2020, which was entitled “Impairment Assessment”.[15] Dr Oldtree Clark had simply filled in the Permanent Impairment Rating Scale (PIRS) form and indicated a 0% WPI after the words:
“Less pre-existing impairment (if any). There is no evidence of a pre-existing psychiatric condition, which would cause significant impairment.”
[15] Appeal papers page 78.
We find that to be a curious statement in view of the diagnosis Dr Oldtree Clark gave in the same form of a “post-traumatic disorder,” which is not a diagnosis in any diagnostic classification system. The circumstances of Ms Lewandowski’s subject injury – the bullying and harassment described in the evidence – is not consistent with a post traumatic condition. The appropriate diagnosis is of an Anxiety Disorder. A post-traumatic stress disorder follows from a traumatic event that must by definition be an exposure to “actual or threatened death, serious injury or sexual violence” in the DSM5 diagnostic classification system, which in the workplace is more commonly found with first responders, and defence personnel. However traumatic events that may constitute a post traumatic stress disorder Criterion A stressor can occur in many situations. It is an applicable diagnosis in Ms Lewandowski’s case with respect to her being involved in the armed robbery she witnessed on 20 January 2020 whilst dining.
More curiously we find that Dr Oldtree Clark’s opinion on the medico-legal aspects of the case was not before the Medical Assessor. Dr Oldtree Clark’s report of 5 May 2020 was clearly a supplementary report. A further remarkable aspect regarding Dr Oldtree Clark’s involvement was the lodging of an email from the Associate Director of the solicitors giving a hearsay account of Dr Oldtree Clark’s opinion in a report of 5 May 2020 – presumably the substantive report. If Ms Thurgood was correct, the diagnosis by Dr Oldtree Clark was of “an aggravation and exacerbation of [Ms Lewandowski’s] post traumatic disorder.”[16]
[16] Appeal papers page 36.
That diagnosis is consistent with the facts before the Medical Assessor, the causal traumatic event being Ms Lewandowski’s exposure to the armed robbery. The bullying and harassment later encountered served to aggravate and exacerbate that pre-existing condition as she was returning to work after several months of having been impaired by that condition. In that context it is difficult to comprehend why Dr Oldtree Clark thought there was no pre-existing psychiatric condition, and without the substantive report there is no explanation for that opinion. It is an ipse dixit.
In any event the report of the treating psychiatrist Dr Doris confirms the relationship of the post-traumatic stress disorder to that event, which he described as a “typical trauma reaction in the weeks following…” Further, Ms Lewandowski’s inability to return to work was explained by the entry of 2 February 2018 recorded by GP Dr Lois Oliver that Ms Lewandowski had been traumatised by the event and needed 2 weeks off – as again the Medical Assessor noted.
Further support to the effect of the trauma of the robbery on 20 January 2018 was that Ms Lewandowski only remained at work until 14 June 2018 after resuming on light duties on April 2018, and never returned to full duties. Furthermore she commenced psychological treatment for the post traumatic stress disorder arising from the robbery in March 2018, just month before attempting to return to work, after which time she developed her work related injury.
Moreover, the Medical Assessor stated plainly that:
“Ms Lewandowski’s Posttraumatic stress disorder DSM Code 309.81 was exacerbated by her employer. The exacerbation of her PTSD caused her to have a permanent primary psychological impairment in her capacity to work due to the severity of her assessable psychological symptoms alone….”
In the Supreme Court, Griffiths J referred to Cole v Wenaline Pty Ltd, and the analysis of s 323 carried out therein by Schmidt J. Griffiths J said:[17]
“52. [Schmidt J] affirmed those principles in Elcheikh and summarised the relevant steps to be taken under s 323 at [126]:
As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
• Firstly, what the extent of the resulting impairment is.
• Secondly, whether the pre-existing condition contributed to the impairment.
• Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
[17] Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 at [52].
The Medical Assessor, whilst recognising the relevant facts concerning Ms Lewandowski’s pre-existing post traumatic stress disorder, did not explain why her post traumatic stress disorder did not contribute to the impairment he assessed from the subject injury. His failure to do so was a demonstrable error, and a failure to give adequate reasons, and the MAC must be revoked.
The evidence is undisputed that Ms Lewandowski was suffering a previous injury in the form of a post traumatic stress disorder. It also establishes that she was not well when she returned to work. She was not asymptomatic prior to returning to work, and she had a whole range of anxiety and avoidance symptoms which were reflected by the Medical Assessor in his PIRS chart as still being extent when he assessed her.
In the travel category, the Medical Assessor said, inter alia, that Ms Lewandowski’s anxiety was too severe for her to travel to distant and unfamiliar places.[18] In the concentration, persistence and pace category a number of avoidant symptoms were recorded[19] and anxious distress and avoidance of all work-related tasks were a large part of the reason that Ms Lewandowski’s employability rating was given as severe.[20]
[18] Appeal page 24.
[19] Appeal page 25.
[20] Appeal page 25.
Anxiety and avoidance behaviour are core clinical characteristics of post traumatic stress disorder.
The Medical Assessor noted that Ms Lewandowski had therapy for EMDR as part of her treatment.[21] EMDR stands for eye movement desensitisation and reprocessing. This treatment is given to people who suffer post traumatic stress disorder.
[21] Appeal pages 3, 9 and 24.
It follows that the pre-existing post traumatic stress disorder did contribute to the impairment caused by the subject injury, and there is no shortage of evidence to establish that a significant proportion of that impairment currently rated by the Medical Assessor was contributed to by the pre-existing post traumatic stress disorder. a one tenth deduction under s 323(2) is clearly at odds with the evidence. We allow a deduction of 25%.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 March 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4107/21 |
Applicant: | Secretary, Department of Communities and Justice |
Respondent: | Deborah Lewandowski |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr John Baker 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) |
| Psychological injury | 15/06/2018 (deemed) | Chapter 11 | Chapter 14 | 17% | 1/4 | 13% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
7
0