Secretary Department of Communities and Justice v Taane (nee Ashton)
[2023] NSWPICMP 100
•21 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary Department of Communities and Justice v Taane (nee Ashton) [2023] NSWPICMP 100 |
| APPELLANT: | Secretary Department of Communities and Justice |
| RESPONDENT: | Rhianan Taane (nee Ashton) |
| Appeal Panel | |
| MEMBER: | Brett Batchelor |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nick Glozier |
| DATE OF DECISION: | 21 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer pursuant to section 323(3)(c)-(d); the appellant claimed that the Medical Assessor (MA) had made an assessment on the basis of incorrect criteria and/or made a demonstrable error in applying a 10% deduction pursuant to section 323 rather than providing a pre-injury assessment of impairment, applying a 10% deduction pursuant to section 323 when such a deduction is ‘at odds with the available evidence’, and failing to consider impairment that was not as a result of the injury but due to concurrent and subsequent personal stressors; detailed examination of the applicant’s evidence and medical evidence, summarised comprehensively and in detail by the MA, and the Independent Medical Examiner reports of the parties; finding that that because of the respondent worker’s long-term memory impairment, the MA was correct in his clinical opinion that it was not possible to accurately assess her whole person impairment (WPI) at the time she commences work with the appellant, or prior to the reported development of psychiatric symptoms in the course of that employment; finding that the extent of the deduction for pre-existing injury condition or abnormality was difficult or costly to determine, and that the MA had not failed to consider that impairment was not as a result of the workplace injury but due to concurrent and subsequent personal stressors; finding that the 1/10th deduction from the 19% WPI assessed by the MA was correct; Held – Medical Assessment Certificate affirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 January 2023 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 John Lam-Po Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 December 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 (the 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).
RELEVANT FACTUAL BACKGROUND
In 2013 Rhianan Taane (Ms Taane/the respondent) commenced work as a corrections officer with the appellant. She suffered psychological injury arising out of or in the course of her employment on 20 December 2018, the date on which she ceased work with the appellant.
Ms Taane had a history of psychiatric symptoms and treatment from her teenage years, for which she received treatment apparently from a paediatrician, rather than from a child and adolescent psychiatrist. At around the age of 16 she was enrolled in a dialectic behaviour therapy (DBT) programme run by James Fletcher Hospital, Newcastle. Ms Taane completed a second such programme through James Fletcher Hospital over a period of 12 months in a year that she could not recall, but while she was working for Hungry Jack’s.
Ms Taane reported that she had never consulted a psychiatrist prior to commencing work with the appellant, and no prior history of physical or psychiatric injury workers compensation claims, not any other types of compensation claims.
After the cessation of work in December 2018 Ms Taane consulted her general practitioner, Dr Jon Pauley, and was referred for urgent review through the Maitland Mental Health Team. She underwent extensive treatment thereafter, which is set out in detail in [4] of the MAC under “HISTORY RELATING TO THE INJURY”.[1] There is also included therein a history of the traumatic break up of her first marriage in 2017 involving physical violence and culminating in the deportation of her husband to New Zealand. A second relationship ensued in 2020 which broke up in about 2022.
[1] Appeal Papers (AP) p 23.
The respondent has not returned to any kind of paid or voluntary work since the cessation of her employment with the appellant in 2018. She currently lives with her mother who assists with the care and upbringing of her two children.
The Medical Assessor assessed the respondent as suffering from 19% whole person impairment (WPI) from which was deducted 1/10th (2%) for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act, resulting in 17% WPI as a result of injury on 20 December 2018.
PRELIMINARY REVIEW
The 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 Panel determined that it was not necessary for the worker to undergo a further medical examination because although the appellant requested that the respondent be re-examined by a Medical Assessor who is a member of the Panel, it considers that there is sufficient material in the AP on which to base its decision. The respondent submits that the appeal can be decided by the Panel solely on the basis of the written application and the written notice of opposition lodged.
EVIDENCE
Documentary evidence
The 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 MAC 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. They are not repeated in full, but have been considered by the Panel. In summary, they are as follows.
Appellant
The appellant submits that the Medical Assessor has made an assessment on the basis of incorrect criteria and/or has made a demonstrable error in:
(a) applying a 10% deduction pursuant to s 323 of the 1998 Act rather than providing a pre-injury assessment of impairment;
(b) applying a 10% deduction pursuant to s 323 of the 1998 Act when such a deduction is ‘at odds with the available evidence’, and
(c) failing to consider impairment was not as a result of the injury but due to concurrent and subsequent personal stressors.
The appellant relies on [11.10] of the Guidelines and refers the comment of the Medical Assessor at [11 c.] of the MAC[2] that Ms Taane reported long term memory impairment, as evidenced by discrepancies in her employment histories in the few years prior to the commencement of her employment with the appellant. For this reason, the Medical Assessor expressed his clinical opinion that it was not possible to accurately assess her current WPI at the time she commenced work at or prior to the reported development of psychiatric symptoms around 2018. The appellant notes that therefore, the Medical Assessor has not provided an assessment of impairment associated with the pre-existing condition on the basis that the respondent could not give an accurate history of it.
[2] AP p 36.
The appellant submits that the Medical Assessor was aware that the respondent had a pre-existing borderline personality disorder (BPD), and notes that having regard to:
(a) the contents of the respondent’s statement dated 25 July 2022 in respect of pre-existing psychological conditions, stressors and diagnosis;
(b) the medication she was prescribed as a result of those pre-existing conditions;
(c) the clinical records of the respondent’s long term general practitioner, Dr Pauley;
(d) the references therein to domestic violence, abuse and assaults, and the ‘messy divorce’;
(e) the reference in the clinical notes to weight loss gastric sleeve surgery undergone by the respondent, problems with sleep, and increased anxiety, and
(f) that there was no suggestion that the sexual harassment experienced by the respondent in the workplace was associated in any way with the personal factors referred to above and for which she was being prescribed Pristiq,
there were assessable impairments of all categories of the psychiatric impairment rating scale (PIRS) categories, particularly in the context of social functioning, concentration, persistence and pace, and employability. The appellant says that it was not required of the Medical Assessor that any such assessment be perfect or definitive, and that the assessment could have been completed based on the clinical records available to him, the statement of the respondent and other available evidence concerning her exchanges with her fellow officers during the relevant period. The appellant also submits that the respondent has “…a chequered employment history and her employment with the Appellant was terminated for reasons of misconduct rather than injury”.
The appellant submits that for the reasons summarised above and otherwise disclosed in the historical evidence available to the Medical Assessor, the assumption adopted by the Medical Assessor pursuant to s 323(2) of the 1998 Act has been inappropriately applied as if is at odds with the available evidence.
In support of its submission that that the impairment sustained by the respondent was not as a result of the work injury but due to concurrent and subsequent personal stressors, the appellant submits that the Medical Assessor has failed to distinguish the relevant co-morbid features and their relationship to the impairment assessed. The appellant submits that the pre-existing personal stressors continued to affect the respondent after she sustained her injury, and that impairment as a result of the interpersonal difficulty with her ex-spouse is not impairment as a result of the injury.
Respondent
In reply, the respondent submits that there is no demonstrable error in the assessment of the Medical Assessor, noting his clinical opinion that it was not possible to accurately assess the respondent’s WPI at the time she commenced employment prior to 2018. The Medical Assessor noted inconsistencies in the respondent’s reporting of her employment history in the years preceding her work for the appellant as an evidentiary example of her long-term memory impairment.
The respondent notes that she was also examined by Professor Derrick Silove, consultant psychiatrist, who produced a report dated 15 October 2021[3] in which the Professor also indicated inconsistencies in the respondent’s history which impeded his assessment.
[3] AP p 439.
The respondent submits that the Medical Assessor provides proper reasons as to why the extent of the deduction pursuant to s 323 of the 1998 Act is too costly or difficult to determine having regard to all of the available evidence, and that this approach discloses no error in his approach.
The respondent submits that the appellant fails to articulate how the deduction is at odds with the available evidence.
The respondent notes that the appellant concedes that the Medical Assessor had before him ‘…significant evidence of the respondent’s pre-existing psychological condition’, details of which are described on pp 6 and 7 of the MAC.
The respondent notes the review by the Medical Assessor of numerous documents pertaining to her pre-existing psychological condition, including that of Dr Allison Dowe, Registrar in Psychiatry at Hunter Valley Mental Health Service dated 6 March 2019.[4] This report addresses the respondent’s developmental trauma and mental health treatments undertaken in her adolescent years.
[4] AP p 120.
The respondent submits that specific reasons were given by the Medical Assessor (at pp 14-15 of the MAC[5]) as to how the information mentioned above was applied, and why the Medical Assessor concluded as he did.
[5] AP pp 35-36.
The respondent refers to the assessment of Dr Jeff Bertucen, consultant psychiatrist, in his report dated 24 November 2021,[6] containing an assessment of 22% WPI and a deduction therefrom of 10% for her pre-existing psychiatric conditions, resulting in a final assessment of 20% WPI.
[6] AP p 131.
The respondent submits that the Medical Assessor clearly outlines why his assessment has differed slightly from that of Dr Bertucen, noting that the overall assessment of the Medical Assessor is otherwise consistent with Dr Bertucen’s findings, which constitutes the only other assessment of her impairment.
In respect of the appellant’s submission that it is a demonstrable error that the Medical Assessor has “assessed impairment as a result of the respondent’s personal and family circumstances as being impaired as a result of the injury”, the respondent says that it is difficult to understand this appeal point. She submits this is an incorrect analysis of the Medical Assessor’s application of the PIRS which at Table 11.4, requires the assessor to rate the respondent’s level of social functioning, which extends to that of her familial and personal relationships.
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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (see Siddik v Workcover Authority of NSW[7] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[8]).
[7] [2008] NSWCA 116.
[8] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan[9] 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.
[9] [2006] NSWCA 284.
Section 323(2) deduction
Section 323(2) of the 1998 Act provides:
“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.”
Clause 11.9 of the Guidelines provides:
“11.9 Consider comorbid features (eg bi-polar disorder, personality disorder, substance abuse) and determine whether they are directly linked to the work-related injury, or whether they were pre-existing or unrelated conditions.”
Clause 11.10 of the Guidelines provides:
“11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The Medical Assessor gives his clinical opinion that it was not possible to accurately assess the respondent’s WPI at the time she commenced work, or prior to the reported development of psychiatric symptoms around 2018, due to the respondent’s long-term memory impairment. This was evidenced, according to the Medical Assessor, by discrepancies in her employment history in the few years prior to the commencement of her work with the appellant.
The Medical Assessor’s recording of the respondent’s previous work history appears on p 7 of the MAC.[10] He noted that the respondent’s employment history in the several years prior to Ms Taane’s commencement as a corrections officer differed from that provided in her statement.[11]
[10] AP p 28.
[11] AP p 51.
Professor Silove examined the respondent on 27 September 2021 and produced a report dated 15 October 2021. He noted major inconsistencies between the history that Ms Taane provided and the documentation that accompanied the letter of request for his report. The main areas of inconsistency are referred to at the top of p 11 of his report,[12] and he said “…cast doubt on the veracity of the history and impact in a major way on my examination of Ms Taane and the inferences I can draw”.
[12] AP p 449.
Notwithstanding this observation, Professor Silove accepted that if the events of a sexually abusive nature occurred in Cessnock Prison, those experiences would meet criterion A of post-traumatic stress disorder, and that the symptoms as recounted by the respondent subsequent to the alleged events are consistent with the remaining criteria for post-traumatic stress disorder. The Professor also found that the severe physical trauma that she experienced during the period of domestic violence that occurred prior to the separation from her husband was likely to be an added causative factor in relation to her post-traumatic stress disorder and depression, or at least a major aggravating factor.
Professor Silove also noted the history of BPD recorded by Dr Gauci consistent with a history of alleged childhood sexual abuse. He said that persons with BPD are more likely to have post-traumatic stress disorder and periods of severe depression.
Professor Silove found patchy deficits in the respondent’s short term memory which the respondent dated to the course of ECT (electro-convulsive therapy). The Professor said that while it is possible that the head injury during domestic violence is relevant, he considered that less likely than the long courses of ECT as the main factor leading to memory problems. The combined effect of the medications taken by the respondent could also be contributing to the short term memory problems.
It is accepted that the respondent suffered the psychological injury for which she was assessed by the Medical Assessor. Professor Silove found that, notwithstanding the inconsistences noted in his report and accepting that Ms Taane was exposed to the sexual harassment in Cessnock Prison reported by her, there is a low probability that the alleged injury would have happened anyway at or about the same time or stage of the respondent’s life if she had not been at work or had not worked in that employment.
The Medical Assessor referred to Professor Silove’s report in the MAC, the inconsistencies noted by him, and his concerns regarding Ms Taane’s complex medication regime. The Medical Assessor concurred with these concerns and also with Professor Silove’s recommendation that Ms Taane’s treatment plan be subject to independent review. The Medical Assessor noted that the Professor was not asked to provide a WPI assessment and accordingly did not provide one.
In his History Relating to The Injury at [4] of the MAC, and Reasons for Assessment commenting on other medical opinions and findings submitted by the parties at [10 c.] of the MAC, the Medical Assessor records a comprehensive and accurate history of the respondent’s medical treatment. This includes reference to the report of Professor Silove dated 15 October 2021 referred to above.
The Medical Assessor notes that the respondent has consulted Dr Pauley for around 10 years and continues to see him on a face-to-face basis every month.
The clinical notes of Dr Pauley are in evidence, progress notes of which cover the period from 11 June 2015 – 18 October 2022.[13] These notes include reference to the difficult relationship in which the respondent was in with her husband, incidents of domestic violence, and medication review. The Panel is of the view that contents of these notes do not contain evidence of cognitive impairment, and are insufficient to assess any degree of impairment as a result of the pre-existing BPD referred to therein. Although they contain description some symptoms and psychosocial stressors they do not contain adequate information about functioning and impairment upon which base a pre-impairment calculation.
[13] AP pp 761 – 828.
The Medical Assessor refers to the two reports of Independent Medical Examiner (IME)
Dr Jeff Bertucen, dated 15 February 2021[14] and 24 November 2021.[15] The Medical Assessor noted that in the first report Dr Bertucen diagnosed major depressive disorder and “chronic personality disorder (borderline type)”, and added that “a case could be made for a long standing chronic complex post traumatic stress disorder”. Dr Bertucen did not consider that the respondent’s condition had stabilised and did not assess WPI.[14] AP p 123.
[15] AP p 131.
In the second report of Dr Bertucen, the doctor said that Ms Taane’s condition had stabilised and calculated an initial WPI score of 22%. With a deduction of 1/10th made for pre-existing psychiatric conditions, the final assessment of 20% WPI as a result of injury. Dr Bertucen did not however give any reason for his deduction of 1/10th for a pre-existing condition, simply stating, “WPI of 22% minus 10% for a pre-existing condition”.[16]
[16] AP p 134.
The Medical Assessor then considered the report of IME Associate Professor Robert Kaplan, consultant psychiatrist, dated 14 April 2022, noting that he diagnosed the respondent with BPD, persistent depressive disorder and possible post-traumatic stress disorder. The Medical Assessor then said of Associate Professor Kaplan’s report:
“A/Prof Kaplan did not provide a whole person impairment score in Ms Taane's case. The basis for this is outlined in the response to Question 4.2 in his report, citing uncertainty as to whether the ‘claimant's work injury is the main/substantial cause of her condition’, and noting that the report by Professor Silove qualified his opinion on the basis of whether or not Ms Taane's allegations were accepted, and noting inconsistencies in the history provided.”
The Medical Assessor then said:
“It is my opinion that Ms Taane's psychiatric symptoms did worsen substantially from 2018 onwards, whilst employed as a corrections officer. The basis for this opinion is that after this time, she began to require psychiatric inpatient treatments, and number and scope of psychiatric treatments provided, both psychological and pharmacological, increased substantially. These include regular reviews by a consultant psychiatrist, group-based programs, stimulation therapies such as TMS and ECT, and different classes of psychotropic medications. Additionally, Ms Taane's function deteriorated from 2018 onwards, in that she has not returned to the workplace, moved back to live with her mother, and has become considerably more reliant on her mother for a range of functions.”[17]
[17] AP p 35.
The Panel is therefore left with the opinions of Dr Bertucen and the Medical Assessor on the degree of WPI suffered by the respondent as a result of injury on 20 December 2018. Neither Dr Silove nor Associate Professor Kaplan provided such an assessment, and therefore did not comment on any degree of WPI that should be deducted for pre-existing injury, condition or abnormality. Dr Silove gave his opinion subject to the qualification that the respondent’s history of sexual abuse in the workplace is accepted, and Associate Professor Kaplan noted this qualified acceptance.
The Medical Assessor has given a comprehensive overview of the respondent’s condition, injury and treatment and accepts her reported long-term memory impairment, a well-recognised, if uncommon sequala, of ECT. The Panel also notes that:
(a) notwithstanding the difficulties experienced by the respondent whilst she was employed by the appellant;
(b) her history of pre-existing BPD;
(c) the treatment she received prior to the commencement of her employment with the appellant, and
(d) the traumatic break up of her marriage which included domestic violence,
the respondent was able to continue in that employment until obliged to cease work due to injury, and with the assistance of her mother was able to look after her two young children.
Having regard to all of the evidence, the Panel is of the view that the extent of the deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act would be difficult or costly to determine, and that 10% of the WPI assessed by the Medical Assessor of 19% should be deducted, resulting an assessment of 17% WPI as a result of injury on
20 December 2019.
Is the s 323(2) deduction at odds with the available evidence?
The Panel further determines that, for the reasons previously outlined, the s 323 deduction was not at odds with the evidence before the Medical Assessor of her pre-injury functioning and summarised in the MAC. There was significant social support, she possessed self-care, travel and cognitive capacity sufficient for work, and the breakup of her marriage was not the result of a psychiatric injury but rather domestic violence.
Failure to consider impairment that was not as a result of the injury but due to concurrent and subsequent stressors
The co-morbid features from which the respondent suffered are referred to in the report of Professor Silove dated 15 October 2021. Relevant parts of his report are referred to at [39] – [43] above. The Professor found that:
(a) persons with BPD are more likely to have post-traumatic stress disorder and periods of severe depression;
(b) a possible head injury as a result of domestic violence was relevant, but less likely than the long courses of ECT, as the main factor leading to memory problems;
(c) the combined effect of the medications taken by the respondent could also be contributing to the short term memory problems,
but that nevertheless
(d) subject to his qualification as to acceptance of the respondent’s evidence of sexual harassment within the workplace, she did suffer the psychological injury complained of.
The Medical Assessor accepts that due to Ms Taane’s long-term memory problems, it was not possible to accurately assess her WPI at the time she commenced work, or prior to the reported development of psychiatric symptoms around 2018.
Dr Bertucen in his report dated 15 February 2021 recorded the respondent’s long standing pre-existing sequelae of psychological instability which had been diagnosed as BPD at the age of 16, the treatment she received for this condition, sporadic substance abuse from which she abstained when she discovered that she was pregnant with her first child, and that at the time of commencement of her employment at Cessnock Jail the respondent’s mental state was relatively stable. He found that, given the origins of the alleged BPD, a case could be made for a long standing chronic post-traumatic stress disorder, which had been aggravated by the alleged sexual harassment. Dr Bertucen expressed the view that the alleged sexual harassment (if true) had been the substantial contributing factor to the respondent’s current mental illness.
The Panel does not accept that the Medical Assessor failed to consider the WPI sustained by the respondent was not as a result of the workplace injury, but due to concurrent and subsequent personal stressors.
For these reasons, the Appeal Panel has determined that the MAC issued on
8 December 2022 should be confirmed.
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