Secretary, Department of Communities and Justice v Lewandowski
[2022] NSWPICMP 288
•15 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Communities and Justice v Lewandowski [2022] NSWPICMP 288 |
| APPELLANT: | Secretary, Department of Communities and Justice |
| RESPONDENT: | Deborah Lewandowski |
| APPEAL PANEL: | Member Paul Sweeney Medical Assessor Patrick Morris Medical Assessor Michael Hong |
| DATE OF DECISION: | 15 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Employer appeals against determination of whole person impairment for an accepted work injury alleging error in the failure of the Medical Assessor (MA) to make a deduction for prior injury or pre-existing condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); alleged that a deduction should have been made for a prior injury in the employ of the respondent which was not part of the medical dispute referred for assessment and in respect of non-work related condition resulting from a robbery in a restaurant; Held – there was no evidence that a prior employment injury materially contributed to the worker’s post-traumatic stress disorder; conversely, the MA erred in failing to consider or give reasons why he did not make a deduction in respect of the condition resulting from the armed robbery; section 323 of the 1998 Act reassessed by the Panel; Marks v Secretary, Department of Communities and Justice considered; determination of MA reduced by 1/10th to reflect the contribution of the armed robbery to the respondent’s impairment. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 April 2022, 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 John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 2 March 2022.
The Secretary, Department of Communities and Justice (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 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, 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 Lewandowski (the respondent) was formerly employed by a statutory predecessor of the respondent, the Department of Corrective Services, where she commenced as a probation and parole officer at the Bourke District office on 4 January 2011. During 2012, she developed anxiety and depression for which she sought medical treatment and lost time from work. While she made a claim on her then employer for workers compensation, she subsequently withdrew it.
By the time the respondent saw Dr Himalee Abeya, a consultant psychiatrist, at the request of her employer on 30 January 2013, she described:
“Feeling quite stable in her mood at present and said that she no longer had any difficult symptoms of anxiety.”
Dr Abeya accepted that there may have been a time in 2012 when the respondent “could have been considered” for a psychiatric diagnosis. However, she found that the respondent presented at examination with a normal mental state. She opined that there was “nothing to suggest an ongoing major psychiatric illness at present”. She also considered that the respondent was fit for work from a psychiatric perspective. She did, however, state that it may be advisable for her to have further sessions with a psychologist “to improve her ability to cope with stress”.
The respondent’s statement served in these proceedings makes no reference to her employment at Bourke or any difficulties in her subsequent employment at Coffs Harbour Community Corrections (CHCC). Rather, she states that she “thoroughly enjoyed” her job and was proud of the work that she was performing.
The respondent says that on 20 January 2018 she was dining at a restaurant in Coffs Harbour when a male entered the premises with a knife. She continues:
“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 came back past the group. The offender was arrested by police later that evening.”
While the respondent attended work on the following Monday, she states that she was distressed and found it difficult to perform her work. She sought medical and psychological treatment and was absent from work until 20 April 2018. She states:
“I was experiencing nightmares and flashbacks of the armed hold-up. I would startle easily. I was fearful of being held-up again.”
On 23 April 2018, the respondent returned to work on a return to work plan. She states that she “settled back into my role”. She stated that she was “no longer anxious about attending work” and was “again enjoying” her work.
On 14 May 2018, a new manager was appointed to CHCC, Ms Kathy Moloney. The respondent states that Ms Moloney allocated an excessive case load to her during the following weeks. She was also criticised for her timeliness and under-performance at work. She was told that if she could not increase her workload she would be put on a “performance plan”.
During the following weeks the respondent says she was criticised by Ms Moloney on several occasions for the manner in which she performed her work. On 11 May 2018, she was required to work back alone to make up time for arriving at work 15 minutes late. During this period she said that she “felt unsafe” and was “very anxious”. Being in the office by herself and going to her car in the dark caused her “distress”.
Subsequently, she encountered Ms Moloney and other members of staff using toy pistols and she states that:
“This behaviour caused me to feel threatened and I felt significant anxiety.”
The respondent said that she felt overwhelmed and unable to cope with Ms Moloney’s constant demands and “judgmental supervision”. She was constantly criticised for not completing her work.
On 14 June 2018, the respondent attended her psychologist, Ms Grant, who she had previously seen in respect of a diagnosis of post-traumatic stress disorder (PTSD) following the incident at the Thai restaurant in January 2018. She states that by this time she was experiencing difficulty breathing and was “shaking and crying”.
On the following day, there was a further confrontation with Ms Moloney in which she was told that she was not working “to the level” Ms Moloney required. During that confrontation she informed Ms Moloney that she would resign from her job.
It is common ground that as a result of the nature of her work with the appellant the respondent worker suffered a psychological injury. She has not returned to work. Her general practitioner, Dr Oliver referred her to a psychiatrist, Dr Alan Doris. Dr Doris recorded, in a report of 18 January 2019, that the respondent:
“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 PTSD. Deborah also appears to have developed a major depressive episode in recent months which is of moderate to severe severity.”
By these proceedings, the respondent worker claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The respondent’s claim is based upon an assessment of whole person impairment (WPI) performed by Dr Thomas Oldtree Clark, a consulting psychiatrist, on 5 May 2020. Dr Clark expressed the opinion that the respondent suffered 17% WPI as a result of employment injury. He diagnosed PTSD. He stated:
“There is no evidence of a pre-existing psychiatric condition, which would cause significant impairment.”
Dr Peter Whetton, a psychiatrist, examined the respondent worker at the request of the appellant and provided a report dated 23 November 2020. Dr Whetton diagnosed the respondent as suffering from a chronic adjustment disorder with anxiety and depressed mood. He assessed 8% WPI as a result of the employment injury. In respect of the earlier incident at the Thai restaurant he noted:
“There was the earlier history of development of Post-Traumatic Stress Disorder. However she describes herself as being excited to return to work and coping adequately until the advent of Ms Moloney who as she put it, got me while I was wounded””.
Dr Whetton expressed the opinion that the applicant suffered from two conditions, PTSD and chronic adjustment disorder. However he stated that:
“The aggravation of the PTSD has not been persistent, and the bulk of her symptoms now are not related to the earlier PTSD but to the Adjustment Disorder.”
The difference of opinion as to the extent of WPI between Dr Clark and Dr Whetton gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. The delegate of the President referred the dispute to Dr Baker for a determination of the respondent’s WPI. It is from his assessment of WPI that the appellant appeals.
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 panel determined that it was not necessary for the worker to undergo a further medical examination.
The appellant did not submit that the respondent should be examined by a doctor who was a member of the panel for the purpose of this appeal. However the respondent worker indicated that the matter could not be determined on the papers which may suggest that she sought a further medical examination, if the panel found error in the initial MAC.
After reviewing the evidentiary material, the panel concluded that as the real issue in dispute was whether there should be a deduction pursuant to s 323 of the 1998 Act for a pre-existing condition, a further medical examination was unlikely to assist in determining the dispute. The panel has before it the evidence in report form from the psychologists who treated the respondent worker after the incident in January 2018 and after the subsequent events at her place of employment. It has the reports of Dr Doris, her treating psychiatrist.
The panel also has the notes of the respondent’s general practitioner and the statement of the respondent dealing with the course of events between the incident in January 2018 and 2020. Finally, it has the histories recorded by two psychiatrists who saw the respondent for the purposes of these proceedings. In those circumstances, it appeared highly improbable that fresh historical material capable of affecting the outcome of this appeal could be obtained from the worker at a further consultation.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents which are 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 medical certificate given by the Medical Assessor 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. The essential basis of the appeal is the failure of the MA to make a deduction pursuant to s 323 of the 1998 Act. However, the appellant also asserts that the MA misconceived or misconstrued the injury referred for assessment.
The appellant asserts that the “absence of a deduction is at odds with the available evidence and the MA’s own conclusions”. It submits that a deduction ought to have been made to account for the respondent’s reported past history of work-related psychological injury and a discrete non work related injury arising from the armed robbery in January 2018. In support of this contention, the appellant relies on aspects of the respondent’s evidence and the evidence of her general practitioner, Dr Oliver. It submits that the evidence before the MA established that the respondent had “sustained a significant psychological injury in response to the armed robbery event”. It further submits that the MA has not provided any reasons:
“to support his view that her injury arising from that event is not contributing to her level of incapacity”.
The appellant argues that given the evidence relating to the January 2018 incident, it was incumbent upon the MA to provide “sufficient reasons” for his conclusion that a pre-existing condition was not contributing to the respondent’s impairment.
After referring to the reasoning of Simpson JA in Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 (Marks) the appellant alleges that the MA had incorrectly interpreted the legal principles relevant to s 323. This was demonstrated by the MA’s statement that the respondent “had no pre-existing psychological impairment prior to the onset of this work-related injury”. It concluded its submissions by submitting:
“that the respondent’s PTSD arising from the January 2018 armed robbery was, at the very least, continuing to make her more vulnerable to psychological injury such as that which materialised in the context of her employment.”
The respondent submitted that the MA had considered the entirety of the medical evidence and the history he obtained from her. On the basis of this evidence, he had concluded:
“that despite the respondent having been exposed to bullying and harassment in 2011 and more recently at the beginning of 2018 due to the armed hold-up, that the respondent had no pre-existing psychological impairment prior to the onset of her work-related injury”.
The respondent also argued that in accordance with the principles in Marks the MA had considered whether vulnerability caused by a pre-existing condition contributed to her impairment and found that it did not.
The respondent notes that, in his report of 23 November 2020, Dr Whetton specifically stated that a deduction for a pre-existing condition pursuant to s 323 was inappropriate. This was also the opinion of Dr Clark. The qualified psychiatrist on both sides of the record, therefore expressed opinions on the s 323 issue consonant with that formed by the MA following his examination.
The respondent rejects the appellant’s assertion that Dr Baker had erroneously considered aspects of the respondent’s employment with the appellant from 2011 and concluded that she suffered a psychological injury at that time. A fair reading of his report provides no basis for the assertion that he found that the respondent’s “injury commenced in or around 2011”. In respect of the issue of incorrect criteria, the respondent again notes that the appellant’s submission is not supported by the medical evidence on which it relied before the MA.
As Dr Baker’s reasoning supported his determination on the issue of a possible deduction pursuant to s 323, the appellant had not established either a demonstrable error or incorrect criteria and the appeal must be dismissed.
DISCUSSION AND FINDINGS
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 sub-s 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 Australia Partners PtyLtd v Kocak [2013] HCA 43 (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).
DISCUSSION AND FINDINGS
The injury referred for assessment
The appellant asserts that in determining WPI the MA misconceived the nature of the injury referred for assessment. The circumstances of the injury referred were confined to the short period of employment between the respondent’s return to work in April 2018, following her absence as a result of a psychological condition caused by the incident on 20 January 2018, and the cessation of her employment on 15 June 2018.
Resolution of this issue is merely academic as the panel has concluded that the MA did not find that the applicant suffered injury as a consequence of her work prior to 2018. The panel notes, however, that there was no such obvious temporal limitation in the description of injury referred for assessment by the delegate of the President following orders made by a member at a conference. As the MA recorded, at the commencement of the MAC, the medical dispute was referred for an assessment of WPI for psychological injury which was deemed to have occurred on 15 June 2018. Plainly, the MA could not have readily gleaned from the nature of the referral or the material before him that the allegation of injury was limited to a short period of exposure to psychological stressors during 2018.
While it is true that the medical dispute referred for assessment is to be identified by reference to the pleadings, the correspondence between the parties, and the medical evidence which gives rise to the dispute, a perusal of those documents in this case may not have left the MA with the clear impression that the injury was limited in time to events in the course of the respondent’s employment in 2018 c.f. Skates v Hills Industries Ltd [2021] NSWCA 142 (14 July 2021). In these circumstances, it would not be possible to characterise a certification of permanent impairment based on a consideration of periods of employment before 2018 as either a demonstrable error or the application of incorrect criteria.
The respondent appears to concede that the injury alleged was confined to the stressors experienced by between April and 15 June 2018. It submitted that the MA had not determined that events before 2018 materially contributed to the respondent worker’s permanent impairment. While it is not beyond doubt, the panel accepts the respondent’s submission on this issue. While the MA has recorded the entirety of the respondent’s psychological history, it is unlikely that he found events prior to January 2018 were causative of her impairment
After dealing with the earlier history, the MA recorded the following:
“Ms Lewandowski reported that whilst socialising in her community she was a victim of an armed robbery. She stated she feared for her life. She stated she did not know the perpetrators. Ms Lewandowski had sought medical and psychological treatment as she had when she divorced her second husband. She returned to work in her primary substantive role in April 2018. She reported she became the target of further bullying and harassment by her senior manager.
Ms Lewandowski reported that her circumstances continued to decline as she was allocated over 200 cases to manage. Ms Lewandowski reported that she was overwhelmed with the impossible workload. She declined in her mental state as her employer had failed to comply with the return-to-work plan. She reported that she developed severe anxiety and became depressed in her mood. Her condition deteriorated markedly, and by 15 June 2018 she was not fit for work in any capacity. She stated she was bullied and harassed out of her job.”
The MA diagnosed that the respondent suffered from PTSD. The respondent submitted that he attributed this condition to the respondent’s employment with the appellant after her return to work following the incident in the restaurant in January 2018. The panel accepts that submission. That approach is consistent with the medical evidence summarised by the MA in the MAC.
The respondent had complained to Dr Abeya in 2013 of “perceived lack of support” at work. There is nothing in the doctor’s report, however, to suggest that the worker suffered from post-traumatic stress disorder at that time. On the contrary, Dr Abeya expressed the opinion that at the time of consultation the respondent did not suffer from a recognisable psychiatric condition.
There is no suggestion in the respondent’s evidence that she sought medical treatment for a psychological condition between 2013 and 2018. On the contrary, when she saw Dr Doris on 13 February 2019, she described having “a very positive relationship” with her manager prior to 2018 and that she “feeling very good about her work”. The fact that the respondent performed and enjoyed her routine employment over a long period without medical treatment is not consistent with her employment prior to 2018 being causative of her impairment.
In the opinion of the panel, the appellant has not proven that the MA erred in going beyond the temporal boundaries of the injury that he was asked to assess. Equally, the contention that the MA erred in not making a deduction pursuant to s 323 of the 1998 Act in respect of the respondent’s psychological condition in 2012, 2013 and 2014 must also fail. There is no compelling evidence that the stressors to which the respondent was exposed at that time materially contributed to the onset of PTSD in 2018 or materially contributed to the impairment certified by the MA. The evidence referred to in the preceding paragraph negates the likelihood of a causal connection between the respondent’s work prior to 2018 and the PTSD diagnosed by the MA.
Section 323 is a provision which excludes a worker from obtaining compensation to which she might otherwise be entitled pursuant to s 66. It is, therefore, necessary for an employer seeking the benefit of the section to point to evidence which would support a finding that a pre-existing condition or prior injury materially contributed not only to the injury but also to permanent impairment. There is no evidence in this case that the respondent’s exposure to stressors in her prior employment caused or materially contributed to her impairment. Neither Dr Clark nor Dr Whetton, the qualified psychiatric specialists, attribute the respondent’s impairment to this period of employment. In those circumstances this aspect of the appellants claim must fail.
January 2018 incident
The MA referred to the incident in January 2018 on several occasions He does not, however, appear to consider whether it is relevant from the perspective of s 323. In dealing with the question of a pre-existing condition, he says this:
“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 in her childhood. Ms Lewandowski had been able to work while 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.”
The evidence before the MA undoubtedly established that the respondent suffered symptoms of PTSD as a result of the incident in the Thai restaurant in January 2018. When the respondent’s general practitioner, Dr Oliver, saw her on 2 February 2018, she certified the respondent as being unfit for work. from 2 February 2018 and stated that the reason for her visit was PTSD. When Ms Greenhalgh, a clinical psychologist, saw the respondent on 14 February 2018, she provided her with “education regarding post-traumatic stress disorder”. Dr Alan Doris noted that:
“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 PTSD. Deborah also appears to have developed a major depressive episode in recent months which is of moderate severity.”
Ms Grant, the respondent’s treating psychologist recorded the following:
“In the weeks after the event, Deborah said she was experiencing nightmares, flashbacks, exaggerated startle responses, and tried to avoid going anywhere outside, imagining that an armed person would assault her at any time stop on the Monday after the event, Deborah went to work as usual with her duties as a Parole Officer involve close contact with perpetrators of violence stop within a couple of hours, Deborah said she was overwhelmed with fear and was advised to go home. Deborah did not work again until late April”.
There is also evidence from the specialist psychiatrists retained by the appellant that the respondent worker suffered PTSD as result of the injury in the Thai restaurant, although Dr Whetton thought that the effects of the incident had receded and played little or no part in the impairment at the time of his assessment. Dr Wendon, who saw the applicant on 15 March 2019, expressed the opinion that the stressors at work between April and June 2018 caused an exacerbation of the PTSD.
It is unclear from a reading of the MAC whether the MA considered this incident when addressing whether a deduction should be made pursuant to s 323. In the opinion of the panel, the MA has failed to consider whether this incident materially contributed to the respondent’s impairment. If he did consider the question, he has failed to provide reasons for his decision. There is simply no explanation of the basis on which he concluded that the effects of this injury did not contribute to the respondent's permanent impairment. As there is error in the MAC, it is necessary for the panel to address the issue of whether there should be a deduction pursuant to s 323 for the prior injury and, if so, the extent of the deduction.
A consideration of the contemporaneous medical evidence suggests that it is probable that at the time of onset of the respondents PTSD she remained symptomatic as a result of the incident at the Thai restaurant in January 2018, although there had been a considerable improvement in her symptoms over the previous several months. The contemporaneous medical evidence demonstrates that the on her return to work the respondent suffered exacerbations of that condition. Her fear of remaining alone in the office in the early evening, her reaction to Ms Moloney and her colleagues are playing with toy pistols, and her need to have support when attending offender’s homes may be examples of such an exacerbation.
The respondent has argued that the specialist psychiatric evidence does not support a deduction as both Dr Clark and Dr Whetton declined to discount the applicant’s permanent impairment for a prior injury. Dr Whetton approached the classification of the applicants of psychological illness on a different basis to the MA who diagnosed PTSD. He opines that the respondent suffered from a PTSD as result of the January 2018 robbery but this has gradually abated and she suffers from a Chronic Adjustment Disorder and Anxiety and Depression solely or largely as a result of work injury deemed to have occurred on 15 June 2018. It is not open to the panel to prefer Dr Whetton’s approach to that of the MA. Thus, the respondent’s injury is the aggravation of a pre-existing disease in accordance with s 16 of the 1987 Act.
Accepting that the respondent suffers from PTSD, the panel concluded that there was little doubt that the Thai restaurant incident continued to play a causative role in her condition after she returned to work. It must also be accepted that the condition improved considerably while the applicant was off work and but for the stressors at work to which she was exposed to between April and June 2018 may have largely abated. On the basis of the evidence available, however, it is difficult to conclude that the incident plays no role at all in the respondent’s condition or, more importantly, in her impairment. Rather, the panel would conclude on the probabilities that it continues to play a minor part in the causation of the respondent’s impairment.
As the applicant was symptomatic with PTSD at the time of her work injury it is necessary to consider paragraph 11.10 of the Guidelines in accordance with the reasoning in Marks. While the panel accepts that the PTSD as result of the Thai restaurant incident was a minor or background causative factor, the circumstances of the case and the evidence available do not readily facilitate the assessment of pre-existing WPI in accordance with the PIRS . Measuring the respondent’s pre-existing impairment in accordance with the PIRS is entirely speculative. There is no clear evidence which addresses the PIRS scales at the time of her return to work. In the circumstances, the panel concluded that it is difficult to assess the pre-existing impairment in accordance with the PIRS and that the appropriate deduction should be 1/10th.
It is for the employer to adduce or point to evidence which establishes the necessity, and the extent of the deduction pursuant to s 323. The panel reiterates that the respondent has not adduced evidence which would support a greater deduction in this case. On the contrary, the opinion evidence on which it relies does not support any deduction being made. Accordingly, the panel has concluded that an appropriate deduction is 1/10th.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 March 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
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 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 June 2018 (deemed) | Chapter 11 pages 60-68 | Chapter 14 | 17% | 1/10th | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Paul Sweeney
Member
Michael Hong
Medical Assessor
Patrick Morris
Medical Assessor
0
7
0