Secretary, Department of Education v Johnston
[2021] NSWPICMP 228
•2 December 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Education v Johnston [2021] NSWPICMP 228 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Heidi Johnston |
| APPEAL PANEL: | Member John Wynyard Dr Michael Hong Professor Nicholas Glozier |
| DATE OF DECISION: | 2 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against 1% award pursuant to Chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guides) for treatment; Held – Medical Assessor did not refer to the guideline and his uplift where there had only been a mild improvement in the worker’s psychiatric condition clearly mistaken; the wording of Chapter 1.32 of the Guide to be read ejusdem generis; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 September 2021 Secretary, Department of Education, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 24 August 2021.
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 ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 5 July 2021 this matter was referred to the MA for an assessment of WPI caused by a psychological injury which occurred on a deemed date of 13 April 2018.
The injured worker was employed as an administration officer who sustained her psychological injury when she was bullied whilst working at James Fallon High School in Albury.
Ms Johnston commenced at the school in October 2015 and ceased in April 2018. She was originally referred for an assessment of WPI by the MA earlier in 2021. A MAC had been issued on 16 February 2021 which certified that the degree of permanent impairment resulting from Ms Johnston’s injury was not then fully ascertainable.
The matter was re-referred to the MA who issued his current MAC as indicated, on 24 August 2021.
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 WorkCover Medical Assessment Guidelines 2006.
The appellant employer did not seek to have the respondent worker re-examined by a member of the Appeal Panel and as the matter involves a discrete issue as to the meaning of a guideline, such a re-examination was not required.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that 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 that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
In his second MAC the MA assessed a 21% WPI. From this he deducted 1/10th pursuant to
s 323 of the 1998 Act but then allowed a 1% treatment uplift which resulted in the same amount of 21%.The appeal is limited to the decision by the MA to allow the extra 1% for treatment effect.
MAC
In his MAC of 16 February 2021 the MA took a history that the worker initially saw a psychologist Mr Joel Harris in November 2016 where she had about five to eight sessions. She subsequently started to see Dr Susette Sowden, which treatment began around 2019, and whom Ms Johnston was then seeing every four to six weeks.
The MA said:[1]
“Ms Johnston had been prescribed fluoxetine 80mg (the full dose of this SSRI) prior to her work injury and stated that she had been on the medication for many years (see below). She stated that four months ago her GP changed her to venlafaxine XR (an SNRI, antidepressants usually require at least two or three months for efficacy to commence) and she is currently prescribed 300mg. She noted that her prior antidepressant was commenced “in my mid to late 20s”.
Her medication is prescribed by her GP but she also noted that her GP had referred her to psychiatrist, Dr Saxena (she was not sure of Dr Saxena’s first name) in Melbourne. She stated that she had not been to Melbourne because of the pandemic and did not think she could drive down by herself. She was not sure if Dr Saxena provides Telehealth consultations. She reported that her GP had changed her antidepressant because ‘I told him it wasn’t working’.”
[1] Appeal papers page 244.
The MA noted a prior condition commencing between 1990 and 1995 for which Ms Johnston was prescribed Fluoxetine. She had been taking Fluoxetine 80mg since that time.
The MA noted that when Ms Johnston first saw Mr Harris in 2016 her mental state was in partial remission through her medication.
The MA at that time noted that Ms Johnston had been on long standing antidepressant medication but that it had changed four months before to venlafaxine XR.
The MA said[2]:
“Antidepressants typically require 2-3 months at least for efficacy to commence and given the antidepressant was commenced around four months or so ago it is my view that the antidepressant needs to be prescribed for at least 9-12 months overall before I would consider it stable. …”
[2] Appeal papers page 247.
The MA noted although her GP had referred Ms Johnston to a psychiatrist, there had not been any psychiatrist found at that stage.
In his MAC of 24 August 2021 the MA took a consistent history, noting that she continued to see Dr Sowden on a four to six week basis. The MA said[3]:
“She stated that she had realised subsequently when she went to the pharmacy after the original examination of her that she had not commenced on venlafaxine XR in November 2020 as she had reported, but had been on the medication for six or seven months at the time of the review but did not know that at that time. She continues on venlafaxine XR 300mg. She sees her GP every four weeks. She stated that the psychiatrist she had been referred to in Melbourne did not provide treatment via telehealth. Ms Johnston stated that her lawyer had referred her to another psychiatrist in Sydney but she has not been able to get an appointment with them [sic] either.”
[3] Appeal papers page 12.
On mental state examination the MA noted that Ms Johnston subsequently realised that she had been commenced on her previous antidepressant earlier than she had stated at the last review with the MA[4]. The MA recorded that Ms Johnston “experiences suicidal ideation on a monthly basis these days but denied any acute self harm or suicidal ideation intent or plans”.[5]
[4] Appeal papers page 14.
[5] Appeal papers page 15.
In finding that Ms Johnston’s condition was now stable, the MA said[6]:
“Ms Johnston has now been prescribed venlafaxine XR consistently since the last review of her in February 2020 and she reported at this review that she had not commenced it in November 2020 as she had reported at the last review but earlier had been on it for some 6-7 months. She had been referred to a psychiatrist in Melbourne who did not conduct telehealth treatment and stated that her lawyer had recommended a psychiatrist in Sydney but had not been able to get an appointment with her. It is my view that she has had reasonable treatment which I would now consider to be sufficient to deem the condition as stabilised.”
[6] Appeal papers page 16.
In referring to his earlier MAC the MA said[7]:
“The original MAC of 16 February 2021 was re-reviewed. I noted that Ms Johnston had a pre-existing longstanding major depressive disorder without anxiety and through the course of her work injury her mental state worsened; I diagnosed an aggravation of the major depressive disorder and a new generalised anxiety disorder and noted that she presented in a manner that was consistent with her history. I determined that her condition was not stabilised due to a change four months prior of her longstanding anti-depressant fluoxetine to venlafaxine XR. I re-reviewed my file review and noted Ms Johnston’s statement and the prior history of depression in the context of an abusive marriage between the ages of 20 to 24 with anti-depressant therapy and that she had continued taking medication since that time as a preventative measure. noted that she had never seen a psychiatrist or psychologist in that period. She returned to work when her daughter was three as there was no impact from psychiatric symptoms.”
[7] Appeal papers page 16.
In his Table 2 assessment certificate the MA said:[8]
“A one-tenth deduction has been applied for the pre-existing psychiatric history, which was treated on high dose fluoxetine at 80mg, reducing impairment to 20%. However, in considering treatment effect given she had 5-8 sessions with her first psychologist and has since continued with 4-6 weekly treatment with Dr Sowden along with high dose SNRI treatment (venlafaxine XR 300mg) since (what is now clear) April or May 2020 and sees her GP monthly and it is my view that a 1% treatment uplift for mild effect is appropriate, which has been applied and increases the overall impairment to 21%.”
SUBMISSIONS
[8] Appeal papers page 18.
The appellant employer submitted that the reason given by the MA for the adding of 1% WPI was apparent only in the above note in the Table 2 certificate.
We were referred to the relevant guideline at Chapter 1.32 of the Guides. It was submitted that the MA had erred because he had not compiled with its terms.
The appellant employer submitted that the MA had recorded continuing significant functional impairment and psychiatric symptomatology. The diagnosis remained a Generalised Anxiety Disorder as well as an aggravation of pre-existing depressed condition.
The appellant employer submitted that although the injured worker has been in receipt of long term treatment for depression, there had never been any significant functional impairment until the subject injury, which could be implied from the MA’s agreement with the insurer’s qualified expert, Dr Clayton Smith.
The appellant employer submitted that the history showed that Ms Johnston had been taking medication since at least April 2020 without any improvement, and certainly not effective enough to allow her to regain independence in her daily functioning, or to engage in any employment. There was no statement in the MAC that the MA considered that the treatment had resulted in the apparent substantial or total elimination of permanent impairment, he had simply advised that the treatment had caused a ‘mild effect’ on Ms Johnston’s condition.
Accordingly, the criteria for the application in Chapter 1.32 had not been fulfilled and the MAC ought therefore be revoked.
Respondent’s submissions
The respondent’s submissions were prepared by Mr Ross Stanton of Counsel. He noted that the ground of appeal was that the criteria had not been appropriately applied in the circumstances of the matter, rather than an assertion that some other criteria ought to have been applied.
Mr Stanton then referred to Chapter 1.32 and the MA’s reasons at Table 2 for making the assessment of the extra 1% for treatment effect, which we have copied above.
Mr Stanton noted that there had been a change of medication four months prior to the original MAC, on 16 February 2021, and that six months later - the date of the present MAC - that treatment was continuing. Mr Stanton noted that Ms Johnston continued to experience the symptoms detailed by the MA.
Mr Stanton submitted that the language of Chapter 1.32 was “somewhat awkward” and endeavoured to persuade us that its import was that the MA was required to consider whether there would be a higher degree of impairment if the treatment was withdrawn.
He submitted that the word “substantial” should be interpreted to mean the “opposite of imaginary or illusory”. As seen in that light, the word “substantial” only introduced a requirement that any long-term treatment would result in a reduction of impairment that was “real and not illusory”.
In order to make that assessment, Mr Stanton submitted, it was necessary for the MA to use his “clinical judgment”. He referred to UGL Rail Services Pty Ltd v Attard[9] where Davies J observed that the assessment of percentage WPI was undoubtedly a matter for clinical judgment and ought not be cavilled with. This indeed, Mr Stanton submitted, was what the appellant was attempting to do.
[9] [2016] NSWSC 911.
The submissions of the appellant employer were an example of such cavilling. Mr Stanton said that the submission in any event ignored the fact that the MA considered that it had been effective “to a degree”, as he described the effect as “mild”.
This, Mr Stanton argued, was the reason that the MA applied only a 1% uplift when he had a discretion to apply up to 3%.
We were also referred to Marina Pitsonis v Registrar Workers Compensation Commission[10]. That, it was argued, was authority for the proposition that some matters did not warrant any specific comment by a MA.
[10] (2008) NSWCA 88 (Marina Pitsonis).
Mr Stanton argued that the appellant employer was not complaining about a lack of evidence, but a lack of detail. An error could not be established, Mr Stanton submitted, simply by asserting that an MA could have explained additional matters in the MAC.
DISCUSSION
We are grateful for the submissions of Mr Stanton but are unable to agree with his construction of the relevant guideline.
Chapter 1.32 of the Guides provides:
“1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
We reject the construction that Mr Stanton would have us place on the terminology of the guideline. The words are clear that in order for the uplift to apply, there must have been an effective long-term treatment that resulted in apparent substantial or total elimination.
We note Mr Stanton did not refer us to any authority that would enable us to interpret the word “substantial” as meaning “not imaginary or illusory”. The words must be read together with the phrase in which they appear, which is “apparent substantial or total elimination”. They must be read ejusdem generis. We note that Mr Stanton did not discuss the words “or total elimination” in his submissions.
We note that the MA did not refer to the relevant guideline. It would appear that he was mistakenly of the view that it could be applied if there was any successful treatment, even if its effect was mild.
The word “substantial” must be read in conjunction with the words “or total elimination”. The proper construction of Chapter 1.32 is that where there is an apparent substantial elimination, or a total elimination, of the applicable WPI, further compensation can be paid. Where an injured person is under treatment which has not substantially eliminated his/her entitlement to WPI, there is no point in awarding additional compensation to that which is already available under Chapter 11 of the Guides. Chapter 1.32 is designed to compensate a person who, whilst still suffering an illness, has his/her entitlement reduced or eliminated as a result of long-term effective treatment.
There was no evidence before the MA that there was any long-term effective treatment that had resulted in apparent substantial or total elimination of Mrs Johnston’s permanent impairment.
We are also unable to agree with Mr Stanton’s proposition that the mistaken awarding of additional compensation by the MA was of such insignificance that the MA had no need to explain his reasoning. The submission that we could assume that the MA had used clinical judgement is self-evidently incorrect, in view of the explicit and technical language of Chapter 1.32 of the Guides.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 August 2021 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 Ash Takyar 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) |
| Psychiatric/ psychological disorder | 13 April 2018 (deemed) | Chapter 11, pages 60-68 | Chapter 14 | 22% | 1/10 | 20% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
John Wynyard
Member
Dr Michael Hong
Medical Assessor
Professor Nicholas Glozier
Medical Assessor
1 December 2021
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