Secretary, Department of Education v Kennaway
[2024] NSWPICMP 751
•1 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Education v Kennaway [2024] NSWPICMP 751 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Timothy Kennaway |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 1 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale (PIRS) categories because of an inadequate path of reasoning, namely employability and in addition, in respect of the deduction of one-tenth made under section 323; Held – Medical Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 June 2024 the employer, the Secretary, Department of Education (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 May 2024.
The appellant relies on the following ground 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 has conducted a review of the original medical assessment but limited to the grounds 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).
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 did not request that the worker undergo a re-examination. However, as a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.
EVIDENCE
Documentary 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.
Further medical examination
Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 11 September 2024 and reported to the Appeal Panel.
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. They are not repeated in full, but 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.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
o the degree of permanent impairment of the worker as a result of an injury (s319(c))
o whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
o whether impairment is permanent (s319(f))
o whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
· Date of injury: 31 January 2022(deemed)
· Body parts/systems referred: Psychiatric/Psychological
· Method of assessment: Whole person impairment -Teams Meeting-Videoconference”
The Medical Assessor issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological Injury | 31 January 2022(deemed) | Chapter 11 Guidelines 11.1-11.3 11.4-11.6 | Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6 | 19 % | 2 % | 17 % |
| Total % WPI (the Combined Table values of all sub-totals) | 17 % | |||||
The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
| Name | Timothy Kennaway | Claim reference number (if known) | W9174/23 |
| DOB | xxxx | Age at time of injury | 57 years |
| Date of Injury | 31 January 2022(deemed) | Occupation at time of injury | School Teacher |
| Date of Assessment | 19 April 2024 | Marital Status before injury | Single |
| Psychiatric diagnoses | Persistent depressive disorder (Dysthymia) |
| Psychiatric treatment | Psychotropic medications and psychotherapy, Treatment by GP and psychiatrist. |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 3 | Mr Kennaway doesn’t cook, gets takeaways and relies on meals on wheels. He does not change his sheet often and his mum does his laundry. Mr Kennaway is not good at cleaning the room; his brother and his wife help him in vacuuming the floor. Mr Kennaway showers every day, brushes daily and changes in clean clothes and is not dirty. He can’t live independently without regular support from his mother and siblings. | |||||||||
| Social and recreational activities | 2 | Mr Kennaway tries to do stamp collection, wants to go on exhibition, but does not have the motivation. He has trouble relating to others and can’t trust others. Mr Kennaway goes out for lunch, drives to the football and meets up with his nephew. He goes on his own, but it takes a lot of energy. He goes out to family events with his sister mostly and can enjoy the time. He is not as actively involved as he used to be before injury. He takes his mum out in the car and goes to café every day to get hamburger or fish and chips. | |||||||||
| Travel | 2 | Mr Kennaway drives locally on his own though it’s rare. He sometimes goes to do the stadium, may be once a week. He has been on long drive with his sister. He will go with his sister or mum if it’s a long drive. He may go to Katoomba and he has his sister with him. He gets anxious in traffic and does not go on holidays. He went for a camp trip for 2 days to Bendigo with mum and sister. His sister drove mostly as he was getting tired to drive. | |||||||||
| Social functioning | 2 | Mr Kennaway had 3 serious girl friends in the past. He was not in a romantic relationship even before the injury. Since the injury his family says that he is hard to get along, gets into arguments with sister and mum. He reported loss of some friendship, still has 2-3 good friends and meets once a year around Christmas. He has a very understanding and supportive family. | |||||||||
| Concentration, persistence and pace | 3 | Mr Kennaway has very poor concentration, tries to look on ABC or you tube. He may read one article and is mostly scanning through it. His focus lasts for 10 mins and gets distracted. He is disorganised, may jump between tasks, and is not listening to instructions by people. | |||||||||
| Employability | 5 | Mr Kennaway said, “I am keen to work”. “I can’t hold on a job; I think I am done and unemployable. I was looking for job as a teacher, at another school and different area. I am willing to work but I don’t think I can work in my current state of mind”. Mr Kennaway has no capacity to work and is not fit for any form of employment. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 3 | 3 | 5 | 2.5=3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 17 | 19 % | |||||
Pre-existing Impairment= 1.9 %
Adjustment for treatment effects= 0 %
Final Whole Person Impairment= 17 %”
The employer appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments he made under one of the PIRS categories, namely employability and in respect of the one-tenth deduction made under s 323 as follows:
(a) in assessing class 5 for employability when he should have assessed no higher than class 2, and
(b) in assessing a one-tenth deduction under s 323 when he should have assessed a deduction of one-half.
In summary, the respondent worker Timothy Kennaway (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that it was not clear that the Medical Assessor had considered all of the evidence before him and the path of reasoning was inadequate. The Appeal Panel was satisfied as to error because the history taken by the Medical Assessor was inadequate and did not support an adequate path of reasoning of the assessments made under the PIRS category of employability and in respect of the deduction made under s 323 of one-tenth. In these circumstances the Appeal Panel was satisfied as to error and considered a re-examination was necessary.
In these circumstances of a finding of error the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Nicholas Glozier was appointed to conduct the re-examination and he reported to the Appeal Panel as follows (emphasis in original):
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W9174/23 |
Appellant: | Secretary, Department of Education |
Respondent: | Timothy Kennaway |
Date of Determination: | 11 September 2024 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 11 September 2024 |
Mr Kennaway’s sister was present as a support worker but in the next room, in case he became distressed.
The worker’s medical history, where it differs from previous records
Mr Kennaway continues to consult Dr Davies every few months. Dr Davies has now moved to Morpeth and he sees him there, although generally travels with his mother as it is further away. He continues to take 30mg of Duloxetine the same medication he has now been on for over a decade without any apparent change or increase in his treatment over that time despite ongoing symptoms, impairment and specialist treatment. Mr Kennaway tells me is seeking to stop the medication because it makes him feel tired and lethargic. I noted these were significant symptoms for him and asked him if he had ever been tested for obstructive sleep apnoea given his size and a sleep pattern that would not be out of context with such a diagnosis. He takes eye drops for glaucoma, and Tamsulosin for prostatitis. He says he has no cardiometabolic abnormalities or requires any treatment. He suggested he is between 125kg and 130kg and noted he thought he’d put on weight. He was 133kg, according to his medical notes, back in 2016 just prior to his total hip replacement. He says his diet is not very good as he and his mother rely mainly on eating out or fast-food most days. He said during COVID he tried to support some local cafes and businesses and they continue to see these people for meals. He does no physical activity beyond “putting out the bins”. He engages in no other wellbeing activities beyond his hobby of philately.
Additional history since the original Medical Assessment Certificate was performed
He continues to live with his mother as he has done for approximately 10 years. He reported she is generally independent but he will do certain heavier activities and drives her to appointments etc although conversely says that he prefers if she drives with him when he goes places even on his own.
He goes to bed around 11pm, having watched his mother’s TV shows and then done some philately activities on his phone, e.g. he told me one of the current types of stamp press versions he has been searching for. It will take him some hours to fall asleep. He then wakes around 6am or 7am but then returns to sleep until around 11am. He has a broken sleep during the night, but not generally getting up apart from to go to the toilet. As such, although he believes he has a short sleep duration, he actually has a near-normal sleep duration with a very poor sleep efficiency spending 12 hours or so in bed and thus perceives a reduced duration. When he wakes he does his own basic self-care, e.g. teeth, washing, showering, shaving most days but does not eat breakfast. After the chores he and his mother will go out for lunch. He described most of the days as being ‘Groundhog Days.’ They may go to the beach but generally sit in the car, and then will may check his emails and do a few more chores before watching TV for the rest of the night.
On Mondays he has an hour-long Bible study Zoom with ‘Barry’, an elder from the church. He and his mother did not return regularly to the Jehovah’s Witness Hall following COVID. He has not engaged in any other regular religious activities apart from the yearly memorial around Easter time.
He has contacts with people for philately and is due to present one of his albums tomorrow in Canberra. He will not go there physically but took his album around to a senior member of Australian Philately who lives close by, who will take his album pages down to the philately show for him. He searches online, looking for specific stamps, and this is a key hobby of his, but does not do it for as long as he used to, finding that he struggles with concentration.
He is an avid Newcastle Knights fan. He has a season ticket with his nephew (he used to have it with his father and uncle but they are now deceased). He drives himself to home games, meeting his nephew there and enjoys being there, becoming quite engaged. He went to the game at the weekend which had a huge crowd. He has ‘football friends’ from others who have debentures but does not engage in any other social activities with them. He drinks very rarely and does not use any other substances.
He has not done any physical activities for many years. In his 40s he was involved in the more administrative aspects, e.g. within the cricket club, and even up until 2019 or so he was the president of the strata association but stopped that during his time off work, as his confidence ebbed away. He has lost interest and motivation for such activities. He can drive locally on his own but prefers to drive with his mother and has not gone any further for some time.
His brother lives in his own apartment and he sees him approximately weekly and has weekly contact with his sister. He says his family tell him he is somewhat irritable now and less pleasant to be with. He has not had an intimate relationship for a very long time.
He has not attempted any courses, believing that he would be unable to concentrate and focus. Neither has he returned to the TAFE volunteering that he did some years ago. He said that he felt unconfident in helping international students now and had not done so.
Regarding his employment, he said at the end of 2021 he was certified for eight hours a day, three days a week, and this had been increased slowly over the years although there had been no return to work since 2017. He feels that the department were deliberately trying not to provide him with duties over the several years since he last ceased work in 2017. I note his response to receiving the email stating that he had been dismissed in January 2022, and the distress this caused. Today I could not elicit any other substantial change in his impairment regarding living at home with his mother, what he did around the home, the limited social activities that he already had, or his travel at that time. These would appear to have been limited in a small extent at the time as he noted he had already withdrawn from many activities, did some chores around the home, a few other activities, but was much more engaged in his philately at the time.
As noted in his statement he found the phone call of 21 July 2022 instructing him to return to Erina quite coercive, particularly as this was a long-term restriction on his return-to-work plan. He then returned at Terrigal High School. He worked 5 weeks of term 3 of 2022. He noted he was co-teaching but stated that he became more confident with the co-teaching and making more contributions to the class and was hoping to have his return-to-work plan extended. I specifically asked him about any changes at home over that time and again he reported that he was ‘not so well’ with the same similar level of interaction at home with his mother, few friends, few social activities or hobbies beyond philately but was obviously driving himself much more frequently e.g. to and from work, making himself presentable for work and focusing and concentrating within the classroom in order to be able to do the co-teaching. He said that the sense of confidence improved and his feelings about his self and mood improved somewhat over that term.
When he attended for the first day of term four, he was presented with a fulltime 40-hour teaching load as part of this teaching placement at Terrigal High School. This was apparently meant to be unsupervised or supervised/observed by the regular classroom teacher but he had not been given any notice for preparation. I note his statement of what happened during that time including him leaving the school, ‘signing my computer back in the library, said goodbye to my HSIE colleagues, got sick in my car and drove out of the school car park.’ He has never returned since.
I specifically asked about the pay advice from late 2022 into early 2024. Over the first year these show him receiving 70 units, i.e. 70 hours, of workers' compensation payments and some payments for vacation. There are then fortnights when he received only sick or special leave. I note there are intermittent ‘fortnightly earnings’ of 14 or 21 units. Today he stated that this indicated the accrual of long service leave or holiday leave because he continued to be employed and does not reflect any actual teaching activities or attendance at the school (which of course would be verifiable). He noted there have been a couple of times when he received extra pay which he was surprised about, and that also this then led to difficulties as the pay was then claimed back. There are certainly examples of this; e.g. in the pay period of 21/07/23-3/08/23 it states he had fortnightly earnings indicative of 4 x 7-hour days but in the subsequent pay period these are claimed back as a prior period adjustment. There are further examples of this in subsequent months, e.g. being paid for 21 hours from the fortnight commencing 19/01/2024, only to have this pay adjusted and taken back the following pay period.
As such, this would support that the payslips show erroneous pay for hours not worked that was later claimed back. They do not provide evidence that he has actually been teaching but really rather support that he continues to be employed by NSW Education, which he acknowledged was the case. He also noted that he felt this was an unstable situation, not least because he continues to have a substantive position at Erina High School which is unable to be filled
Findings on clinical examination
Mr Kennaway was a large gentleman who was mildly anxious. He was quite fidgety and restless. He showed good focus and concentration throughout with specific recalls of dates, timings and places, and no problems with the pace or persistence of this assessment. There was no formal thought disorder. Although he describes himself as depressed, he does not appear to be pervasively miserable or tearful but certainly describes a loss of interest, loss of confidence, some self-blame although more blame of the Department. He has lost confidence in a range of activities and his ability to perform these, and also feels as though he has had his sense of identity as a teacher removed. He has little interest in social and other activities now. He can feel quite anergic during the day and has a poor sleep efficiency but normal, although broken, sleep duration. This would give the phenotype of an insomnia although his long sleep onset latency really reflects a terrible sleep efficiency and spending far too long in bed. He does not have panic attacks and his avoidance does not appear to be dramatically driven by anxiety or fears but rather lack of interest, energy and motivation. He does not feel hopeless for the future but sees himself as now existing in this state and function and wishes to be able to move on.
Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
Summary
Mr Kennaway’s condition currently would be best described as a Persistent Depressive Disorder given he barely meets the criteria for either of the two cardinal features of Major Depressive Disorder but has a number of other depressive syndrome features. His treatment appears not to have changed for over a decade, which is somewhat surprising, although he does not appear to particularly want any further treatment and is in fact trying to reduce treatment.
There really is no evidence supporting that Mr Kennaway can perform potentially remunerable activities in the workplace. He has not done so for a couple of years now and the payslip interpretation appears to be one of pay irregularities/documentation and then the department reclaiming these, which may not even be errors but rather reflect the way that accrued hours and leave whilst someone is employed but off work are paid. He has not done any volunteer work and really does nothing that would be potentially remunerable in the workplace given his anergia, lack of confidence etc. As such I would support the ascertainment by the MA.
In terms of section 323 deduction, he would appear to have been somewhat impaired prior to the events of 2022, only being certified to work slightly more than part-time, in part because of his difficulties with interaction and confidence. He would appear to have been able to travel to and from work as required and present himself. There do appear to be some social interaction difficulties.
Thus, the evidence would suggest that he was at least mildly impaired in three domains of the PIRS classes, and possibly four. Furthermore these impairments continue to be present today, although exacerbated by the injury. Considering how many functional areas were impaired previously, the other evidence e.g. the descriptions of his state by his treating psychiatrist Dr Davies over 2020-2022, and the descriptions by other IMEs, that a deduction of 2/10 best reflects the evidence of the degree of impairment his pre-existing condition contributes to his current impairment, as 1/10 is too small a proportion at odds with this extensive evidence. This current impairment would not be as severe or chronic had he already not been impaired prior to the injury of 2022.
As such I recommend that the Panel consider this a better reflection of the contribution of the pre-existing condition (which would appear to have been the same depressive syndrome with exactly the same treatment) to his current whole person impairment.
Signed: Professor Nicholas Glozier”
The Appeal Panel considers that the examination undertaken by Medical Assessor Nicholas Glozier was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Nicholas Glozier has provided in his report to the Appeal Panel, including the history as to the respondent’s ability to function in the PIRS category that has been challenged on appeal, namely employability. The Appeal Panel notes that Medical Assessor Nicholas Glozier had clear regard to the other evidence before him, has not relied on self -report alone and has used his clinical expertise on the day of assessment to make recommendations to the Appeal Panel about the assessments of the contested PIRS category. The Appeal Panel also notes Medical Assessor Nicholas Glozier’s findings on clinical examination of the respondent and his careful regard to the available evidence in respect of consideration of the contribution of the respondent’s pre-existing condition or abnormality to the overall level of permanent impairment assessed.
In respect of employability, Table 11.6 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job. |
| Class 2 | Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
| Class 4 | Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. |
| Class 5 | Totally impaired: Cannot work at all. |
The Appeal Panel considers that Medical Assessor Glozier has taken a careful and detailed history in respect of matters relevant to an assessment in the category of employability. He has taken the respondent’s self report into account but not relied on self report in isolation to the other evidence before him and has applied his clinical judgment to the assessment of employability, taking correct criteria into account.
For these reasons, the Appeal Panel adopts the findings of Medical Assessor Glozier on re-examination as follows:
“There really is no evidence supporting that Mr Kennaway can perform potentially remunerable activities in the workplace. He has not done so for a couple of years now and the payslip interpretation appears to be one of pay irregularities and mistakes and then reclaiming which may not even be a mistake but rather reflect the way that accrued hours and leave are paid and his ongoing employment. He has not done any volunteer work and really does nothing that would be potentially remunerable in the workplace given his anergia, lack of confidence etc. As such I would support the ascertainment by the MA.”
The Appeal Panel considers that the best fit is that the respondent worker is totally impaired at class 5.
What this means is that the class assessed by the Appeal Panel is in accordance with the class assessed by the Medical Assessor for the contested PIRS category of employability. This means that the overall level of whole person impairment at 19% as assessed by the Medical Assessor will be confirmed.
The appellant also challenged the extent of the deduction made by the Medical Assessor at one-tenth under s 323.
A deduction can only be made under s 323 if the pre-existing condition, abnormality or injury has contributed to the overall level of permanent impairment assessed. There is no challenge mounted in this appeal that a deduction should not have been made. The appellant challenged the extent of the deduction submitting that the available evidence supported a deduction to the extent of one-half. The respondent submitted that the deduction of one-tenth should be confirmed.
After taking a careful history and having regard to the other available evidence, and applying the correct approach to a deduction under s 323, Medical Assessor Glozier recommended to the Appeal Panel as follows:
“In terms of section 323 deduction, he would appear to have been somewhat impaired prior to the events of 2022, only being certified to work slightly more than part-time, in part because of his difficulties with interaction and confidence. He would appear to have been able to travel to and from work as required and present himself. There do appear to be some social interaction difficulties.
Thus, the evidence would suggest that he was at least mildly impaired in three domains of the PIRS classes, and possibly four. Furthermore these impairments continue to be present today, although exacerbated by the injury. Considering how many functional areas were impaired previously, the other evidence e.g. the descriptions of his state by his treating psychiatrist Dr Davies over 2020-2022, and the descriptions by other IMEs, that a deduction of 2/10 best reflects the evidence of the degree of impairment his pre-existing condition contributes to his current impairment, as 1/10 is too small a proportion at odds with this extensive evidence. This current impairment would not be as severe or chronic had he already not been impaired prior to the injury of 2022.”
The Appeal Panel adopts the findings and recommendation of Medical Assessor Glozier. This means that a deduction of two-tenths or one-fifth will be applied to the overall impairment of 19% gives 15.2% or 15% WPI after rounding.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 May 2024 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: | W9174/23 |
Applicant: | Timothy Kennaway |
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 Pane revokes the Medical Assessment Certificate of Medical Assessor Himanshu Singh 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological Injury | 31 January 2022(deemed) | Chapter 11 Guidelines 11.1-11.3 11.4-11.6 | Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6 | 19 % | 1/5 | 15.2 % |
| Total % WPI (the Combined Table values of all sub-totals) | 15 % (after rounding) | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0