Secretary, Department of Education v Johnson

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Education v Johnson [2024] NSWPICMP 4
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Natalie Johnson
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	8 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; worker pleaded her case as the aggravation of a pre-existing condition and the Commission determined that employment was the main contributing factor to the aggravation of a disease; Medical Assessor did not consider a deduction under section 323; worker under active treatment for non-work related condition at the time of injury; deduction warranted; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 October 2023 the Secretary, Department of Education lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 September 2023.
The Secretary relies on the ground of appeal in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, the ground of appeal was made out. We conducted a review of the original medical assessment, limited to the ground 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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Johnson (nee Wighton) was employed by the Secretary as an Aboriginal Community Liaison Officer. She suffered a psychological injury as a result of a heavy workload and lack of support. She found the work confronting and was also asked to work as a Learning Support Officer. Ms Johnson attributed her injury to the nature and conditions of her employment in the period between 2015 and 1 February 2020, the date when she first took leave without pay. She claimed compensation on 24 May 2021. The injury is described in the Application to Resolve a Dispute as the aggravation of a pre-existing decision.
On 27 April 2023 a member of the Personal Injury Commission (the Commission) issued a Certificate of Determination in respect of Ms Johnson’s claim after a contested arbitration. Relevantly, the member determined that Ms Johnson suffered an injury as defined in s 4(b)(ii) of the Workers Compensation Act 1987 and that employment was the main contributing factor to the aggravation of an underlying condition.
The Medical Assessor assessed 22% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS). He said that Ms Johnson did not suffer a relevant pre-existing condition and did not make a deduction under s 323 of the 1998 Act.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Ms Johnson to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making our decision.
The parts of the MAC 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 we have considered them.
In summary, the Secretary submitted that the Medical Assessor made a demonstrable error in determining that there was no pre-existing condition – contrary to the Commission’s determination. The Secretary also submitted that the Medical Assessor erred in failing to appreciate that the history he recorded was contrary to that determination and in failing to make a deduction under s 323 of the 1998 Act. The Secretary submitted that we should determine that there is a contribution to the impairment from the pre-existing condition of a significant proportion and that a deduction should be made under s 323. No submissions were made as to the extent of the deduction.
In reply, Ms Johnson submitted, in submissions prepared by Mr Perry of counsel, that the Medical Assessor did not determine that there was no pre-existing condition but restricted his determination to whether there was a contribution from that condition. Ms Johnson submitted that the history taken by the Medical Assessor was not inconsistent with the Member’s determination and that the Medical Assessor was fully informed of her past.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.

The MAC

At the beginning of the MAC, the Medical Assessor said that the documents referred to him were those listed in the referral. The referral said that the Certificate of Determination was attached but the Medical Assessor did not mention the Member’s decision in the MAC. We consider that was a demonstrable error because it is clear from the face of the MAC that the Medical Assessor has not engaged with the Member’s findings. He also did not engage with the way Ms Johnson had formulated her case, as the aggravation of a pre-existing condition.
The Medical Assessor obtained the history that Ms Johnson started experiencing stress when her workload drastically increased in 2018 and that her mental health gradually worsened. He said:
“On further diagnostic clarification, it is evident Ms Johnson was experiencing adjustment disorder with mixed anxiety and depressed mood due to workplace stressors from early 2018. She denied any ongoing psychosocial stressors, physical ailments or addiction issues contributing to her presentation. Ms Johnson experienced worsening mental health when she decided to give up her job in late 2019. Ms Johnson received psychotropic treatment trial and ongoing psychological support, possibly from psychologist/mental health professionals in 2018 and 2019, which she found partially helpful.”
With respect to Ms Johnson’s past psychiatric history, the Medical Assessor said:
“Ms Johnson denied struggling with chronic mental health issues or receiving long-term psychotherapeutic input before 2018. She admitted to struggling with difficult life situations, although it never led her to experience pervasive anxiety or depressive symptoms requiring long-term psychotherapeutic input.”
When discussing her personal history the Medical Assessor said:
“Describing her premorbid personality (before 2018), Ms Johnson told me, ‘I used to be happy and outgoing and a social butterfly. I have always been a confident and dependent person’ as per the limited review, I was not able to elicit a history indicative of specific personality trait or deficits, contributing to Miss Johnson’s presentation.”
The Medical Assessor noted the documents he reviewed, limited to her statement, the reports of Dr Allan, qualified for Ms Johnson, and Dr Barrett, qualified for the Secretary. He observed that Dr Barrett considered Ms Johnson’s health stressors going back to early childhood and said that her general practitioner’s records “provide details of the treatment she received…” The Medical Assessor did not comment on those records. With respect to s 323 he said only that he had “not made any deduction for a pre-existing psychological injury” and there “is no deductible proportion.” He did not set out reasons for declining to make a deduction.
Though not relevant to the determination of the appeal, we note that the Medical Assessor did not set out the history he obtained with respect to Ms Johnson’s social activities and activities of daily living in the body of the report and only included brief reasons based on that history in the PIRS rating form.

The Certificate of Determination

The Medical Assessor’s failure to clearly show that he had regard to the Commission’s determination and, in particular, his to failure clearly set out his reasons for not making a s 323 deduction are errors. Reading the Member’s decision should have reinforced to the Medical Assessor that the injury relied on was the aggravation of a pre-existing disease and that the Member had found that Ms Johnson’s employment was the main contributing factor to the aggravation. Those findings meant that the Medical Assessor was required to carefully consider whether any proportion of the impairment assessed was due to that condition so that a deduction under s 323 was required. The findings required the Medical Assessor to explain in detail why he did not make a deduction but he did not provide an explanation.

Medical evidence

Ms Johnson said in her statement that she was recruited to her role as an Aboriginal Community Liaison Officer in 2015. There is no document in the file which clearly shows the date on which she commenced. A statement from Mr Dyson in the Reply says that she commenced in a permanent role in August 2016.
The file contains notes from Ms Johnson’s general practitioners dating back to February 2015. Ms Johnson consulted a practice in Mildura when she had formed a new relationship, with which her daughter was unhappy. An appointment was made for Ms Johnson to see a mental health nurse. On 20 April 2015 a mental health nurse diagnosed her with adjustment disorder and provided counselling. The notes suggest a very significant family rift. A Mental Health Care Plan was made by Dr Kazi on 13 August 2015, noting a diagnosis of adjustment disorder.
On 16 November 2017 Dr Delawari made a Mental Health Treatment Plan, recording a. diagnosis of anxiety and adjustment disorder. In the clinical notes Dr Delawati wrote that the cause of the condition was issues with Ms Johnson’s daughter.
On 28 February 2018 a nurse practitioner noted symptom levels consistent with “high level anxiety near OCD levels and moderate depression”. Ms Johnson disclosed childhood abuse. Ms Johnson was noted to be in a stable relationship and to have a high functioning job.
Those issues were discussed again on 1 March 2018 when the nurse practitioner noted that, among other things, Ms Johnson had “high anxiety with perfectionist traits” and described some depressive symptoms. Ms Johnson also “has a high powered job and taking on her student’s [sic] issues as her own; wants to ‘fix them all”, wants to protect them all. Pristiq was prescribed on 18 April 2018 and Ms Johnson reported improvement in her mood at the next consultation. She continued to take Pristiq throughout 2018. In late 2018 a nurse practitioner made referrals to other practitioners, noting that Ms Johnson had symptoms consistent with depression and anxiety, “most likely” due to menopausal changes.
In 2019 Ms Johnson began to consult another nurse practitioner, Ms Cupper and on 24 May 2019 she noted that Ms Johnson had not been attending work due to low mood and lack of motivation. The stressors included challenges with work, including “isolation from supports which are located in Broken Hill” and “[w]orking with families where children have behavioural issues and extensive family issues causes significant stress and burnout… In her personal life, there are issues with interpersonal relationships and again feeling responsible for others.”
Ms Cupper wrote a letter dated 27 May 2019 to support her in providing information to her employer. Ms Cupper said that Ms Johnson
“…has accessed counselling support via our service intermittently since 2015. She currently has a diagnosis of mixed anxiety and depression and is being treated with psychotropic medications for same. There is also some question as to whether her symptoms may also be related to pre-menopause. Ms Wighton is following up with her GP regarding this.
As a result of her mental health issues, Ms Wighton, at times has difficulties with day to day functioning…
Ms Wighton has identified that when her mood becomes low she often feels overwhelmed with the responsibility of her work and has limited support available locally. Due to her anxiety about performing well enough she will often take on additional roles and responsibilities to support schools, students and families as well as other staff members. In addition, the difficult cohort that Ms Wighton works with in supporting students and families can become emotionally overwhelming and potentially lead to a state of 'burn out'. Ms Wighton has identified she generally enjoys her work position and wants to maintain her employment however is concerned the impact her mental health is having on herself but also her capacity to perform her job to the best of her abilities…”
Contemporaneously, Ms Johnson consulted another medical service in Mildura and told Dr Bose that she was “very tired mentally, and can’t cope with her job and daily life and needs some time off to recover.” Dr Bose noted that she “has some relationship issues at home but they are now somewhat stable.”
Ms Johnson continued to work with difficulty in 2019 and ceased work in February 2020. When she completed a claim form in 2021 she nominated 28 May 2019 as the date of injury and described a difficult home visit to a family.
Dr Allan, psychiatrist, saw Ms Johnson at the request of her solicitors and reported on 22 February 2022. Though he was provided with the notes from Ms Johnson’s general practitioners summarised above, Dr Allan recorded that her difficulties began around 2018. She did not provide a history of past childhood trauma and denied recall of any mental health treatment before her workplace issues, though said she had some family counselling due to her daughter’s issues. Dr Allan noted that Ms Johnson previous experienced a work-related adjustment disorder with depressed and anxious mood. He noted that the general practitioners’ notes recorded various concerns about her personal circumstances, though Ms Johnson minimised those, and said she felt the precipitating factors were very much related to work. When specifically asked whether Ms Johnson suffered a disease injury to which employment was the main contributing factor, Dr Allan was said that there was no evidence to support the notion that she had a previous condition that was aggravated by work. He assessed 22% WPI and did not make any deduction under s 323.
Dr Barrett, psychiatrist, saw Ms Johnson on behalf of the Secretary and reported on 29 June 2022. Dr Barrett did not assess permanent impairment because she considered that Ms Johnson’s condition had not reached maximum medical improvement. Ms Johnson provided a history of the issues with her daughter in 2014, but said she did not require time off work. Dr Barrett said that, even though Ms Johnson denied any pre-existing condition, she did have pre-existing vulnerabilities as a consequence of her history in childhood and history of trauma and domestic violence as an adult. She said that those issues would have “increased her vulnerability to the effects of further trauma”.

Consideration

It is clear from the file that Ms Johnson had pre-existing, significant mental health issues when she commenced employment in 2015 or 2016, primarily related to her relationship with her daughter. A general practitioner had prescribed Pristiq which Ms Johnson was taking at the time she commenced employment and Mental Health Care Plans had been created in 2015 and 2017, before Ms Johnson gave any practitioner a history which implicated her employment in the aggravation of her condition.
Despite the Member’s findings, the Medical Assessor failed to turn his mind to the contribution of that pre-existing condition.
In Ryder v Sundance Bakehouse[2] Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[2] [2015] NSWSC 526 at [45].
In Marks v Secretary of Communities and Justice (No 2)[3] (Marks No 2), a case dealing with a psychological injury, Simpson AJ said:[4]
“It was contended (correctly) that it is not every case in which a pre-existing condition can be identified that will result in a deduction under s 323(1). It is always a matter for assessment whether any proportion of the impairment assessed is due to such a pre-existing condition. So much is uncontroversial and has long been recognised: see Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Cole v Wenaline Pty Ltd [2010] NSWSC 78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254; Ryder v Sundance Bakehouse [2015] NSWSC 526.
The more important question, … , is whether a pre-existing condition, notwithstanding that it is asymptomatic at the time of the injury in respect of which the assessment is undertaken, may, nevertheless, contribute to the degree of impairment. In respect of physical injuries, it has long been held that it can: Government Cleaning Service v Ellul (1996) 13 NSWCCR 344; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liquidation) [2013] NSWSC 365 at [91] and [95].
In the light of this consistent line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to ‘previous injury … or … pre-existing condition or abnormality’, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury. As noted in the preliminary reasons, the cases which have previously considered this question all related to physical injury. However, … , s 323(1) does not distinguish between physical and psychiatric or psychological injuries. It applies to all injuries equally.”
[3] [2021] NSWSC 616.
[4] At [15]-[17].

On the evidence in the file, Ms Johnson’s pre-existing condition was symptomatic at the time of the injury and was made worse by the injury. The notes of her treating practitioners reveal a downturn in her condition rather than the onset of a new condition. The aggravation is exemplified in Ms Cupper’s letter dated 27 May 2019. The adjustment disorder and anxiety Ms Johnson suffered contributed to the degree of impairment suffered – that is consistent with the Member’s findings and with the way Ms Johnson framed her own case. It did make a difference to the impairment suffered because it made her vulnerable to suffering greater permanent impairment as a result of the demands of her role.
Section 323(2) provides that if the extent of the contribution would be difficult or costly to determine, it is to be assumed that the extent of the deduction should be one-tenth.
While there is medical evidence as to Ms Johnson’s condition between the commencement of her employment and the injury, it is not possible to be precise as to the extent of the contribution. At the time of the injury, Ms Johnson was on medication though she told her treating practitioners that she felt much better as soon as she began taking Pristiq in 2018. It does not appear that any medication was prescribed before that date. Ms Johnson continued to work until her condition was aggravated by work in 2019. In May 2019, Ms Cupper suggested only that some accommodation from Ms Johnson’s employer was necessary. By the time she saw Dr Bose in 2019 and sought time off, her relationship issues were said to be stable. Very soon after, Ms Johnson’s condition deteriorated so that she was not able to continue working.
The medical evidence suggests that the contribution from the work issues waxed as her pre-existing condition waned. We consider that, from a perspective of hindsight, it is difficult to determine the precise extent of the deduction under s 323 and that it should therefore be one-tenth. The most salient issue in determining the amount of the s 323 deduction is the impact of the pre-existing injury on the actual level of impairment assessed. Thus a simple deduction of impairment existing prior to the workplace injury is insufficient because it does not adequately address the fact that a pre-existing anxiety disorder makes the sufferer more susceptible to further disorder and that disorder is more likely to lead to greater impairment. In this case we accept that a deduction of one-tenth appropriately reflects the impact of
the pre-existing injury. One-tenth of 22% is 2.2% resulting in 19.8%. Rounded under paragraph 1.26 of the Guidelines, the resulting WPI is 20%.
For these reasons, we have determined that the MAC issued on 7 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7430/22
Applicant:	Natalie Johnson
Respondent:	Secretary, Department of Education

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Aman Suman and issues this new Medical Assessment Certificate as to the matters set out in the 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	1 February 2020	Chapter 11	N/A	22%	1/10^th	20%
Total % WPI (the Combined Table values of all sub-totals)					20%

[2024] NSWPICMP 4

8 January 2024