Secretary, Department of Education v Egan
[2023] NSWPICMP 277
•16 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Education v Egan [2023] NSWPICMP 277 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Janet Egan |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 16 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Whether Medical Assessor (MA) disregarded the respondent’s impairment and symptoms from a secondary psychological injury when assessing the respondent’s permanent impairment from a primary psychiatric injury; Appeal Panel found the MA had not, but when the respondent’s impairment and symptoms from a secondary psychological injury are disregarded, there is no difference in the outcome; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 April 2022 the Secretary of the Department of Education, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John J Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 March 2023.
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 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 (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
Janet Egan, the respondent, commenced employment in 1999 with the appellant as a support officer, working at the Kirrawee Public School. On 20 October 2015 a male student ran into her and knocked her over. The student laid on top of her and screamed. As a consequence of that incident the respondent suffered physical injuries to her lumbar spine, cervical spine, left upper extremity and right upper extremity and also a primary psychological injury.
The respondent claimed compensation in the amount of $58,638.96 from the appellant under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 23% whole person impairment (WPI) resulting from her physical injuries and, in the alternative, claimed compensation of $54,820 for 22% WPI from her primary psychological injury.
With respect to the claim she made in the alternative for compensation for permanent impairment from a primary psychological injury, the respondent relied on a report of psychiatrist Dr Richa Rastogi, dated 27 August 2021, to support her claim. Dr Rastogi had examined the respondent on that date and diagnosed that the respondent had Major Depressive Disorder with Anxiety and post-traumatic Stress Disorder (PTSD). Dr Rastogi expressed her view in her report that the respondent’s current impairments were related to psychological sequalae stemming from post-traumatic stress disorder with Major Depression and not from physical impairments. Dr Rastogi also said that the respondent’s “depression is contributed by vocational issues, loss of role and identity and perpetuated by pain and physical limitations”. Dr Rastogi assessed the respondent had 22% WPI resulting from her psychiatric injury.
The Appeal Panel observes that the medical dispute that the Medical Assessor assessed, and which the appellant has appealed, relates to the respondent’s claim for compensation for her primary psychological injury. With respect to that, the insurer advised the respondent in a notice it issued to her on 28 October 2021 under s 78 of the 1998 Act that it disputed she was entitled to compensation under s 666 of the 1987 Act because her permanent impairment from her injury did not exceed 15% WPI. The insurer advised he respondent that her permanent impairment needed to exceed that threshold in accordance with s 65A(3) of the 1987 Act in order that she for her to be entitled to compensation for permanent impairment from a primary psychological injury.
The insurer had before issuing that notice to the respondent, had the respondent assessed by psychiatrist Dr Yajuvendra Bisht on 17 February 2021. Dr Bisht provided a report with respect to his examination on 22 March 2021 in which he advised he assessed the respondent had 7% WPI based on his rating of the respondent’s permanent impairment under the psychiatric impairment rating scale (PIRS). He the expressed the view that the respondent’s psychological injury comprised both a primary injury from the incident in October 2015 and a secondary injury from her physical injuries that occurred in the same incident. He said that “there is no objective tool of delineating the proportion and impact of the two components and the worker has continued to suffer from substantial ramifications of the physical injury, and has needed extensive treatment, including a recent pain management programme”. He advised that based on that he concluded “that the proportionate contribution of the two components is 50 percent each”. He consequently advised that he assessed the respondent’s permanent impairment from her primary psychological injury was 4% WPI.
In its notice of 28 October 2021, the insurer advised the respondent that in denying liability for her claim for compensation for permanent impairment from her psychiatric injury, it relied on Dr Bisht’s report.
The Appeal Panel observes, for completeness, that the insurer also denied it was liable to pay the respondent compensation under s 66 of the 1987 Act for permanent impairment from her physical injuries.
On 24 November 2021 the respondent initiated proceedings in the Personal Injujry Commission (Commission) seeking determination of her disputed claim for compensation under s 66. The matter was referred to a Commission member, namely Ms Jacqueline Snell, who, with the consent of the parties, remitted to the President both the respondent’s claim for compensation for permanent impairment resulting from her physical injury and her alternate claim relating to her primary psychological injury, so that the President could refer those claims to medical assessors.
The appellant sought that the terms of the referral to the Medical Assessor to assess the respondent’s claim for permanent impairment from the respondent’s primary psychological injury include the following term:
“The matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of WPI (if any) resulting from primary psychological injury suffered on 20 October 2015 bearing in mind the [respondent] continues to suffer the effects of a secondary psychological (pain) condition.”
The Member declined to direct that such a term be included in the referral. The appellant then sought leave to appeal to the Commission constituted by a presidential member against the member’s decision not to include such term in the referral. On 23 November 2022 Acting Deputy President Geoffrey Parker refused the appellant leave to appeal against the interlocutory decision of Member Snell.[1]
[1] [2022] NSWPICPD 45 (Egan’s case).
It is apparent that a referral was then issued to the Medical Assessor, who examined the respondent on 28 February 2023 and, as said, issued a MAC in response to that referral on 16 March 2023. In that he certified that the respondent had 19% WPI from her injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.
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 Medical Assessor set out in the MAC the history he obtained regarding the occurrence of the respondent’s primary psychological injury and physical injuries. He recorded that the respondent reported experiencing acute pain and had concern about the injury to her neck and back. He recorded that the respondent noticed her dominant left hand was not as strong as she had expected.
The Medical Assessor noted that the respondent had chosen not to use opiates to manage her pain due to the complications from those medications. The Medical Assessor noted that the respondent reported that her physical condition was managed by her general practitioner (GP) and her medical team and that at the time he assessed the respondent, the respondent was taking paracetamol and Voltaren Topical to control her pain. The Medical Assessor noted that the respondent reported to her treating endocrinologist that she knew how to manage her pain. The Medical Assessor recorded that the respondent had not been referred to a pain management clinic or a pain management program.
The Medical Assessor further noted that the respondent suffered osteoporosis and fragility fractures and that the respondent reported being mindful of not causing fragility fractures.
The Medical Assessor set out at length in the MAC the psychological symptoms that the respondent currently suffers.
The Medical Assessor provided the following extensive “summary of injuries and diagnoses”:
“In my medical opinion Mrs Egan’s work-related injury using DSM5 psychiatric criteria is condition:
• Persistent depressive disorder with persistent depressive episode with anxious distress DSM5 code 300.4; with comorbid
• Posttraumatic stress disorder
Mrs Egan’s depressive disorder was the most clinically apparent condition at the time of this assessment. She had suffered persistent depression since the onset of this primary psychological injury until the date of this assessment. She reported that her panic, anxious distress, nightmares and hypervigilance with startling had improved slowly with psychological treatment.
Mrs Egan reported that she remained irritable, agitated and suffered from a profound sense that ‘nothing’ in her life was interesting or pleasurable. She was anhedonic. She had failed to recover from her primary psychological injury sustained in the workplace.
Mrs Egan advised that her first thoughts as the child charged her was that she might die or never recover from her injuries. She knew that she had osteoporosis prior to the primary psychological injury and she felt immediate pain as she was forced to the ground by the boy screaming in a violent rage.
Mrs Egan reported that the boy was known to have entered early puberty as part of his complex intellectual disability. He was also about her size and weight at the time he attacked. She reported recurrent flashbacks of the attack as well as severe panic attacks that will leave her frozen prior to slowly resolving.
Mrs Egan failed three attempts to return to work. Each attempt was terminated due to severe anxiety, avoidance of the site of injury and inability to sustain trust with the intellectually disabled children in her care. She advised she left the workplace as she was psychologically unable to manage the erratic behaviour of the children, whilst fearing future attacks and permanent injury to her person.
Mrs Egan had no pre-existing psychological or psychiatric conditions.
Mrs Egan suffers from a known metabolic bone disease diagnosed and treated by A/Prof. Terry Diamond. Fragility fractures are clinically well known and have been confirmed by A/Prof Diamond in relation to Mrs Egan’s physical condition. Pain from her osteoporotic fractures is clinically known and Mrs Egan’s use of Paracetamol, a conservative pain relief pharmacotherapy, as well as the use of exercise to strengthen bone and muscle function to minimise pain and maintain maximum physical functioning, is not consistent of an individual with a diagnoseable DSM5 code 300.82 Somatic Symptom Disorder with predominant pain.”
The Medical Assessor’s ratings of the respondent’s impairment in the various PIRS categories, and his explanation for them, were as follows:
Self care and personal hygiene
3
Mrs Egan was unable to live independently at the time of this assessment. She relied on her husband to prompt her to shower daily. He would prompt her to maintain her selfcare and personal hygiene. Mrs Egan had stopped preparing her own meals. She relies on pre-prepared food made by her husband. She did not assist with the cleaning of the house. She did not assist with laundry duties. She was dishevelled with unwashed and uncombed hair. She was agitated, tearful and irritable during the assessment.
Social and recreational activities
2
Mrs Egan stated that she no longer became involved in extended family events. Mrs Egan continued her attendance at the local heated swimming pool to perform deep water aqua aerobics. She attended less frequently and found the activity no longer pleasurable.
She held annual membership to the heated pool. At the time of this assessment, she had no current membership. She had not attended for the last two weeks. Mrs Egan advised her plan was to attend once each week in a similar frequency as she had during the last six months. Mrs Egan no longer enjoyed reading novels. She no longer enjoyed watching movies on Netflix.
Travel
2
Mrs Egan reported that she was able to drive at to and from the heated pool as this was a short and familiar journey. Mrs Egan no longer travelled outside of 15 minutes to the local pool or medical services. She was capable of walking to the corner shop that was a brief walk alone.
Social functioning
2
Mrs Egan reported that the relationship with her husband was strained. She stated that her libido was low. She described having verbal arguments with her husband. Mrs Egan advised she was irritable and would have angry outbursts when distressed by her primary psychological injury symptoms. Mrs Egan reported that her relationship with her adult daughters was also strained. She described that her relationship with her grandchildren was no longer as enjoyable as it had been.
Concentration, persistence and pace
3
Mrs Egan no longer organised the family finances. She reported she made frequent errors when attempting to pay bills online. She no longer types as she finds the use of a keyboard too complex. Mrs Egan described no longer having interest in the news. She could not read for more than a brief article. She no longer read novels for pleasure. She could not follow the story arc or character developments as she could have easily done prior to the onset of this primary psychological injury.
Employability
5
Mrs Egan was unfit to return to her primary substantive role with this employer at any time in the future. Mrs Egan had not been successful in re-training to work in a lesser role for her employer or any other employer.
Mrs Egan was medically retired due to the severity of her primary psychological injury on 23 November 2021. Mrs Egan was totally impaired for all employment available in the Australian jobs market due to the psychological symptoms caused by this primary psychological injury, alone.
The Appeal Panel notes that neither party raised any issue with the Medical Assessor’s ratings of the respondent’s impairment in the several PIRS categories.
The Medical Assessor observed that the medium of the scores of his ratings was 3 and that the aggregate of his score was 17. In accordance with Table 11.7 of the Guidelines, that converted to 19% WPI.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by not considering whether the respondent had any impairments or symptoms from a secondary psychological injury. The appellant submitted that Egan’s case at [43] establishes that a Medical Assessor must comply with s 65A(2) of the 1987 Act when assessing the degree of permanent impairment of a worker from a psychological injury, which requires a Medical Assessor to have no regard to impairment and symptoms from a secondary psychological injury. The appellant submitted that the Supreme Court in Mercy Connect Ltd v Kiely[2] held that in order for a Medical Assessor to comply with s 65A(2) the Medical Assessor must firstly calculate the entire permanent impairment of a worker from the “entire psychological condition” and then, in the same manner, calculate the permanent impairment resulting from the secondary psychological injury and deduct the latter from the first. The appellant submitted that it was incumbent upon the Medical Assessor to form a conclusion as to whether a “secondary psychological injury existed in order to comply with s65A(2) of the 1987 Act”.
[2] [2018] NSWSC 1421 (Kiely).
The appellant submitted that in order for the Medical Assessor to comply with s 65A of the 1987 Act the Medical Assessor was required to determine whether the symptoms from each of the two psychiatric diagnoses he made were the result of the physical injury the respondent suffered on 20 October 2015. The appellant submitted that a portion of the respondent’s depressive disorder was secondary in nature because it was related to the respondent’s physical injury and that the Medical Assessor ought to have concluded that a significant percentage of the respondent’s impairment related to that depressive disorder and should have made “a sizeable deduction”.
The appellant referred to a MAC that Dr Todd Gothelf issued on 13 January 2023 relating to the respondent’s physical injuries. That document is not before the Appeal Panel. The Appeal Panel assumes that this MAC was issued in response to a referral the President, or one of his delegates, would have made in accordance with the Direction of Member Snell relating to the respondent’s claim for compensation for permanent impairment from her physical injuries. The appellant referred to the following that Dr Gothelf recorded in that MAC relating to the symptoms the respondent suffers currently from her physical injury:
“Ms Egan rated the neck pain as a four on a scale of zero (no pain) to ten (the worst pain imaginable) and [sic] and travels down to the left shoulder. The pain worsens with certain activities.
Ms Egan stated she has lower back pain which is around four out of ten and radiates to the back of both legs down to the ankles. She has no other symptoms.
The left shoulder pain rated about a three and has been worsening since the fall. The pain never improved. The pain is worse when using the arm.
Ms Egan stated she has some problems with her wrist which came from an exercise. Both wrists hurt from the exercises and the wrists are painful today”.
The Appeal Panel notes that the respondent did not challenge in her submission that Dr Gothelf had issued a MAC relating to her physical injuries and in which he recorded that she suffered the above symptoms from her physical injuries. Given that, the Appeal Panel infers the respondent reported to Dr Gothelf that she suffered those symptoms from her physical injuries.
The appellant submitted that the Medical Assessor in this case did not have regard to that evidence and had he done so, as well as the reports of Dr Rastogi and Dr Bisht, he ought to have concluded that the respondent suffers from both a primary and secondary psychological injury within the meaning of s 65A of the 1987 Act.
The appellant submitted that the existence or otherwise of a secondary psychological condition was part of the medical dispute that arose between the parties and that the Medical Assessor was required to determine that particular dispute in order to resolve the dispute. The appellant referred to Skates v Hills Industry Ltd[3] and submitted that a medical dispute is crystallised by the correspondence exchanged between the parties and not by what is stipulated by the terms of the referral to the Medical Assessor.
[3] [2021] NSWCA 142.
In reply, the respondent submitted that the Medical Assessor, when assessing the degree of her permanent impairment, dealt with her primary psychological injury. The respondent submitted that it is clear from the MAC that the Medical Assessor considered her symptoms and impairment resulted from that primary psychological injury. The respondent submitted that the appellant was questioning the Medical Assessor’s evaluation that was made in a clinical setting. The respondent referred to Ferguson v State of New South Wales & Ors[4] in which Campbell J referred with approval to a decision of a Medical Appeal Panel in the matter of NSW Police Force v Daniel Wark[5] that held that the clinical observations of a Medical Assessor cannot be underrated. The respondent further noted that in Ferguson’s case Campbell J also referred with approval to the decision of Jenkins v Ambulance Service of New South Wales[6] in which, at [52], Garling J observed that the Guidelines at clause 1.5(a) provided that an assessment of permanent impairment involves a clinical assessment on the day of assessment.
[4] [2017] NSWSC 887 (Ferguson’s case).
[5] [2012] NSWWCAAMA 36.
[6] [2015] NSWSC 633.
The respondent submitted that it is not readily apparent from the MAC that the Medical Assessor’s assessment of her permanent impairment involved any error in the Medical Assessor’s clinical assessment on the day of assessment.
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.
Section 65A(2) of the 1987 Act reads as follows:
“In an assessment of degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.”
The term “primary psychological injury” is defined in s 65A(5) to mean a psychological injury that is not a secondary psychological injury. The term “secondary psychological injury” is defined in that same sub-section to mean a psychological injury to the extent that it arises as a consequence of or secondary to a physical injury.
The history the Medical Assessor obtained relating to the respondent’s physical injuries included that the respondent suffered acute pain in her neck and back at the time of injury and experienced a weakness in her dominant left hand. The history obtained included that the respondent initially took Celebrex to manage bone pain and that she avoided the use of opiates. The history included that the respondent was never referred to a pain management clinic or pain management system. The history the Medical Assessor obtained also included that the respondent manages her pain with over the counter medications such as paracetamol and Voltaren gel, which she applies as required.
The Medical Assessor detailed extensively the psychiatric symptoms the respondent currently suffers and the impact that these have on her function. The Medical Assessor expressed the view that all the symptoms relate to the primary psychological injury that occurred as a consequence of the event on 20 October 2015. In other words, the Medical Assessor neither found that any of the respondent’s psychiatric symptoms or her impaired function consequent upon them, resulted from her physical injuries, nor apparently considered whether they arose from a psychiatric disorder caused by those physical injuries.
The Appeal Panel notes that in accordance with s 325(2) of the 1998 Act, a Medical Assessor is required to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. The reasons the Medical Assessor must provide to meet this requirement do not need to be comprehensible to a person with no medical expertise. In a circumstance where an assessment or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it, a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.[7]
[7] Vitaz v Westform (NSW) Pty Ltd [2011] 254 at [34]; Campbelltown City Council V Vegan & Ors [2006] NSWCA 284 at [121]-[122].
In the Appeal Panel’s view it is apparent from the documents the appellant filed in the Commission with its reply to the respondent’s Application to Resolve a Dispute that it contended that the respondent had a secondary psychological injury, within the meaning of s 65A(5) of the 1987 Act. It also contended that the respondent had impairment and symptoms resulting from a secondary psychological injury. It provided evidence in the form of Dr Bisht’s report to support that contention. In that circumstance, it seems to the Appeal Panel that the Medical Assessor ought to have engaged more with the evidence relating to the respondent’s physical injuries, and specifically that pertaining to whether or not the respondent had any psychiatric symptoms emanating from her physical injuries. He ought to have provided some reasons why he considered that all of her psychiatric symptoms related to her primary psychological injury and not at all to her physical injuries, given it was a contested issue. Insofar as the Medical Assessor did not do so, the MAC contains a demonstrable error.
That said however, the Appeal Panel considers that that error, when corrected, does not change the result in this matter.
As the Medical Assessor recorded, the respondent experienced symptoms of pain from her physical injuries and a weakness in her left dominate hand. She managed these symptoms with over the counter medication. The Medical Assessor noted that the respondent reported to her treating endocrinologist that she was able to manage her pain. Dr Gothelf recorded that the respondent rated her neck and back pain as 4 out of 10 on an analogue scale. Dr Gothelf recorded that her pain worsens with certain activities. Dr Gothelf recorded that the respondent experienced pain in her wrist when exercising.
In the Appeal Panel’s view what this reveals is that the respondent is able to manage and deal with her pain and limitations from her physical injuries. In the Appeal Panel’s view that does not indicate the respondent would have any significant psychological injury from the pain and physical injury limitations. Potentially these may contribute an element to her persistent depressive disorder but such a contribution would be minor in the Appeal Panel’s view.
In the Appeal Panel’s view the matters that the Medical Assessor set out in the PIRS Rating Form attached to the MAC for his ratings of the respondent’s impairment in the several PIRS categories can arise almost entirely from the respondent’s post-traumatic stress disorder, which is a primary psychological injury. Possibly the respondent’s weakness in her left dominant hand may impact on her ability to prepare her own meals and her ability to assist with the cleaning of her house and her ability to do laundry duties, which were some of the many factors the Medical Assessor relied on to rate the respondent’s impairment in the category of Self Care and Personal Hygiene. But even if those particular factors were disregarded then in the Appeal Panel’s view the respondent’s impairment in this particular category would still be rated as Class 3 because she still requires her husband to prompt her to shower and to maintain her self care and personal hygiene, and these relate to her post-traumatic stress disorder that is her primary psychological injury.
Simply put, if any symptoms relating to a secondary psychological injury the respondent suffered were disregarded, which symptoms may have resulted in a minor contribution to a persistent depressive disorder, and if any impaired function from such symptoms or any limited function due to her physical injuries are also disregarded, then her WPI from her primary psychological injury of post-traumatic stress disorder and Major Depressive Disorder is still 17%.
The Appeal Panel also observes that in Keily her Honour Harrison AsJ in obiter dicta propounded what she described as a “two-step process” by which a Medical Assessor could abide the mandate of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step is to assess the overall degree of permanent impairment of a worker in accordance with clauses 11.11 and 11.12 of the Guidelines. The second step is to assess separately the worker’s permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former.[8]
[8] Kiely at [96].
The Appeal Panel considers that if such a process were adopted in this matter the result would also be the same. That is the overall degree of the respondent’s permanent impairment is 17% WPI, as assessed in accordance with clauses 11.11 and 11.12 of the Guidelines. If the respondent’s impairment due to the minor contribution her physical symptoms make to her depressive disorder were to be assessed in accordance with those same clauses, then the result would be 0% WPI. The latter deducted from the former results in 17% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 March 2023 should be confirmed.
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