Secretary, Department of Education v Mansfield
[2024] NSWPICMP 523
•30 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Education v Mansfield [2024] NSWPICMP 523 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Jonathon Mansfield |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 30 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; whether Medical Assessor (MA) erred in deducting 20% for pre-existing conditions when his reasons referred to a deduction of 30%; whether the MA erred by including in his assessment impairment caused by a previous injury; whether he erred by taking into account medical reports not referred to him for consideration; whether he failed to take into account the opinion of an independent medical expert relied on by the appellant; whether he failed to engage with a previous Medical Assessment Certificate (MAC) of Approved Medical Specialist in respect of a previous psychological injury; whether he erred in failing to give reasons for assessing a deduction of 20%; Held – MA failed to give reasons for assessing a deduction of 20%; MAC revoked; deduction of 1/10th made. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Yeates dated 2 February 2024. He assessed a 19% whole person impairment (psychological) resulting from injury on 22 February 2023 (deemed date) (the 2023 injury), from which he made a deduction (variously described as 2/10th or 3/10th) for pre-existing conditions of alcohol use disorder and persistent depressive disorder, and for the effects of previous psychological injury in 2018. He arrived at 16% whole person impairment.
The parties agree that a deduction of 2/10th, if made, should have resulted in an assessment of a 15% whole person impairment, that the assessment of 16% represented an error of calculation, and that the Medical Assessment Certificate should be amended accordingly.
The appellant employer alleges additional errors, namely:
(a) that at [11] of his reasons the Medical Assessor determined that there should be a deduction of 3/10th, which was inconsistent with his findings elsewhere that it should have been 2/10th, and which merited an assessment of 13% whole person impairment,
(b) that he erroneously combined the effects of a previous psychological injury deemed to have occurred on 1 June 2018 (deemed date) (the 2018 injury) with the effects of the 2023 injury, in determining at [11] that 8/10th of the injury is due to workplace factors;
(c) that he took into account medical reports of Dr Clayton Smith dated 20 June 2019 and Dr Martin Allan dated 14 September 2018 which, though referred to in the Medical Assessment Certificate of Dr Bench as being excluded from the material provided to him, were not in evidence in the proceedings or referred to him for assessment;
(d) that he failed to take into account relevant material, namely the report of Dr Barrett on which the appellant had relied;
(e) that he failed to engage with the Medical Assessment Certificate of Approved Medical Specialist Bench dated 16 June 2020, who had assessed 8% whole person impairment as a result of a previous psychological injury on 1 June 2018 (the 2018 injury), and
(f) that he failed to provide adequate reasons for making the deduction he did for a pre-existing condition, and both demonstrably erred and applied incorrect criteria by failing to deduct 8% whole person impairment assessed by Dr Bench from the assessed impairment of 19% to arrive at 11% whole person impairment, in accordance with [11.10] of the Guidelines.
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
The following history appears from the reasons of Member Sweeney issued on 11 December 2023 in these proceedings, which are referred to below, and is supported by the evidence before the Appeal Panel:
(a) In 2001, Mr Mansfield commenced employment with the appellant Department as a high school teacher in social sciences.
(b) In 2012, he was posted to Katoomba High School.
(c) In 2018 he claimed workers compensation for the 2018 psychological injury which had been caused by workplace stressors, including being required to teach business studies in which he lacked expertise, and to educate himself on the subject in order to do so.
(d) In November or December 2018, Mr Mansfield returned to work after the 2018 injury.
(e) On 11 April 2019, he was informally placed on a teacher improvement program and went off work from 12 April 2019.
(f) On his return to work on 19 July 2019, he was formally placed on a teacher improvement program. After completing about two weeks of it, he went off work again on 9 September 2019.
(g) By letter dated 21 May 2021, the Department notified him that his performance was unsatisfactory, and that it was considering disciplinary action against him, and invited him to show cause why he should not be dismissed and his name placed on a list of those not to be employed by the Department.
(h) On 24 September 2021, the Department terminated his employment and placed him on a list of teachers who were not to be employed. He has not been able to work since.
In 2020, Mr Mansfield had commenced proceedings 1562/20 in the Workers Compensation Commission seeking compensation for whole person impairment as a result of the 2018 injury. He was referred for assessment to Approved Medical Specialist Bench. By a Medical Assessment Certificate dated 16 June 2020, Dr Bench diagnosed Persistent Depressive Disorder with anxious distress and Alcohol Use Disorder, and assessed an 8% whole person impairment (psychological) as a result of injury on 1 June 2018 (deemed date).
That assessment was later confirmed on appeal by a Medical Appeal Panel.
Also in 2020, Mr Mansfield commenced proceedings 4355/20 in the Workers Compensation Commission, claiming weekly compensation as a result of the 2018 injury. The matter came before Arbitrator Homan for determination. An award of weekly compensation was made by Certificate of Determination dated 20 November 2020, accompanied by written reasons.
In 2023 Mr Mansfield commenced these proceedings W4091/23 in the Personal Injury Commission (the Commission), seeking compensation for a 22% whole person impairment (psychological) as a result of the 2023 injury. He relied on the assessment of Dr Potter dated 1 February 2023, though we note that Dr Potter added a further 1% for treatment effect to arrive at 23% whole person impairment. Liability was disputed, and the claim came before Member Sweeney for determination.
At [1] of his Certificate of Determination dated 11 December 2023, Member Sweeney determined:
“The applicant suffered psychological injury being an exacerbation or aggravation of a pre-existing disease within s 4b (ii) of the Workers Compensation Act 1987 as a result of the circumstances surrounding his dismissal by the [respondent] on 24 September 2021.”
He then remitted the matter for assessment of “the applicant’s psychological injury deemed to have occurred on 22 February 2023 as a result of his employment before that date bearing in mind the previous injury certified by Dr Bench in the Medical Assessment Certificate of 16 June 2020”.
At [63] of his reasons, Member Sweeney explained that section 16 of the Workers Compensation Act 1987 deemed the injury to have occurred on 22 February 2023, when the claim for permanent impairment was made, rather than the date of dismissal on 24 September 2021, which had been pleaded as the deemed date in the Application to Resolve a Dispute.
The “circumstances surrounding his dismissal” referred to in the Certificate of Determination at [1] were described as follows in the accompanying reasons for decision (citation omitted, emphasis added):
“83. I also accept injury caused by the circumstances surrounding the termination of the applicant’s employment is an injury which ‘consists in’ the aggravation of a disease in accordance with the reasoning of Hodgson JA in Rail Services Australia v Dimovski. It, therefore, attracts s 16. That is because it cannot be confined to one psychological stressor that occurred on 24 September 2021. Rather, as is apparent from the report of Mr Reed referred to above, the process of termination occurred over several months in 2021, and possibly before. and is best characterised as a series of psychological stressors culminating in the applicant’s dismissal.”
Mr Reed was the worker’s treating psychologist. A [58] of his reasons, the Member quoted the following passage from Mr Reed’s letter of 27 August 2021:
“The threat to dismiss Mr Mansfield, and further, to place his name on a list of persons not to be employed in the New South Wales Government Schools has deeply distressed Mr Mansfield and further exacerbated his psychological injury.”
That letter was before the Medical Assessor. In the preceding sentence, Mr Reed described what he meant by the ‘threat to dismiss Mr Mansfield’:
“Mr Mansfield has recently forwarded to me a letter from Mr Mark Anderson, Relieving Director, Employee Performance Professional and Ethical Standards dated 21 May 2021. The letter indicates that Mr Anderson is considering dismissal of Mr Mansfield based upon the outcomes of the Teacher Improvement Program conducted by Mr Mansfield's Principal, Mrs Boyall in April 2019.”
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient information in the papers to enable the Appeal Panel to make its own assessment after identification of the error below.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. The appellant’s submissions are summarised briefly above.
In reply, Mr Mansfield (the respondent) submits in summary as follows:
(a) The Medical Assessor determined that a deduction of 2/10th was appropriate.
(b) He gave “detailed reasons” for his conclusion.
(c) He had before him the reasons of Member Sweeney, the Medical Assessment Certificate of Dr Bench, and the subsequent decision of the Medical Appeal Panel.
(d) It would have been incorrect for the Medical Assessor simply to deduct the 8% whole person impairment assessed by Dr Bench. His task was to make his own decision based on the evidence before him including his findings on examination, which he did.
FINDINGS AND REASONS
(a) Amount of deduction made
In the table attached to his Medical Assessment Certificate, Medical Assessor Yeates indicated that he assessed a 19% whole person impairment, from which he deducted 2/10th to arrive at 16% whole person impairment.
As indicated, the parties agree this represented a mathematical error capable of correction by substituting a final whole person impairment of 15%.
The appellant submits, correctly, that the deduction of 2/10th was inconsistent with the following passage at [11b]:
“In my opinion the deductible proportion is 3/10th ….”
It submits that the inconsistency demonstrates error requiring that the Medical Assessment Certificate be set aside, and replaced by an assessment of 13% whole person impairment, representing an assessment of 19% whole person impairment less 3/10th.
However, as the respondent concedes, at various other places in his reasons, the Medical Assessor has referred to a deduction of 2/10th, consistently with his assessment in the table. These are to be found once at [10a], twice at [10b], and once at [11b(e)]. The fact that there was a reference to 3/10th on only one occasion, and that on all other occasions (including the table) there was a reference to 2/10th comfortably satisfies us that the reference at [11b] to 3/10th is likely to have been a typographical or clerical error, intended to mean 2/10th.
So interpreted, the reasons do not disclose relevant error of any kind.
(b) Reference to “8/10th of the injury”
At [11b], the Medical Assessor found as follows, among other things – emphasis added:
“e) By arriving at a deduction of 2/10th, I acknowledge both the effects of:
i. The previous workplace injury
ii. The pre-existing alcohol use disorder and engagement with psychological services from 2012 predated both injuries. In my opinion, ongoing heavy alcohol use exacerbates the persistent depressive disorder.
f) This acknowledges 8/10th of the injury from workplace factors.”
The appellant submits that this demonstrates error, because “8/10th represents the contribution of both injuries (that is, in 2018 and 2023) when he was charged [sic] with assessing impairment resulting only from the injury in 2023. To the extent that there was a contribution to the impairment from the 2018 injury this should have been a deduction made pursuant to S323.”
Having regard to the context in which the passage appears, we interpret the Medical Assessor to mean:
(a) that a deduction of 2/10th should be made for pre-existing conditions which were present as early as 2012, and
(b) that the balance of 8/10th of current impairment results only from the 2023 injury.
That injury was found by the Member to consist of an aggravation or exacerbation of the previous injury.
In other words, the Medical Assessor meant “8/10th of current impairment” rather than “8/10th of the injury”. The reference to “workplace factors” must mean workplace factors since the injury of 2018. Read any other way, the sentence would be irrelevant to the task of determining an appropriate deduction pursuant to s 323, as he was there doing.
So interpreted, the passage does not disclose error of any kind.
(c) Medical reports of Dr Smith and Dr Allan
At [10c] the Medical Assessor referred briefly to medical reports of Dr Clayton Smith and Dr Martin Allan. The appellant submits that he erred in doing so, because those reports were not among the material referred to him.
Of Dr Clayton Smith, he said:
“Dr Clayton Smith opined that the circumstances in Mr Mansfield’s working life have led to a persistent depressive disorder and linked it with workplace bullying factors.”
The Certificate of Determination and reasons issued by Arbitrator Homan on 20 November 2020 were among the material referred to the Medical Assessor. At [39] to [43] of her reasons, the arbitrator summarised in detail the contents of a medico-legal report by Dr Clayton Smith dated 20 June 2019. That summary indicated that Dr Smith had diagnosed persistent depressive disorder as a result of exacerbation of pre-existing chronic anxiety and depression, resulting from bullying at work, and being placed on a teacher improvement program.
It is a reasonable inference that the Medical Assessor was informed by the arbitrator’s summary of Dr Clayton Smith’s opinion. We draw that inference. The Medical Assessor was entitled to have regard to all the material referred to him, including the arbitrator’s reasons. He did so. We cannot discern error of any kind.
Of Dr Allan, the Medical Assessor said:
“Dr Martin Allan, noted a diagnosis of major depression which developed in 2012, of which there was a 2018 exacerbation.”
The Medical Assessment Certificate of Dr Bench dated 11 June 2020 was among the material referred to the Medical Assessor. At page 12, Dr Bench referred to an undated report of Dr Martin Allan diagnosing Major Depressive Disorder which had arisen in 2012 due to personal stressors and which had been exacerbated recently.
We infer that the Medical Assessor derived his understanding of Dr Allan’s opinion from the contents of the Medical Assessment Certificate of Dr Bench. He was entitled to do so. We cannot discern of any kind. This ground fails.
(d) Alleged failure to consider relevant medical evidence: Dr Barrett
The appellant employer relied on the report and assessment of Dr Barrett dated 9 May 2023. She diagnosed persistent depressive disorder and alcohol use disorder as a result of the 2018 injury, which was subsequently exacerbated when Mr Mansfield was placed on a teacher improvement program and when his employment was terminated.
Dr Barrett did not offer an assessment of whole person impairment. The insurer did not ask her to do so, unless she concluded that “the worker sustained a new psychological injury as a result of the termination of his employment [on] 24 September 2021”.
At page 11 of her report, the doctor explained:
“It is not my view that Mr Mansfield suffered a new psychological injury as a result of termination of his employment on 24 September 2021. Instead I consider he has experienced chronicity of the previous psychiatric disorder, persistent depressive disorder and alcohol use disorder from 2017 or 2018, but that these conditions were likely further exacerbated after termination of his employment on 24 September 2021, which was the final stage of the performance management process which he had objected to, as a form of bullying and is reported to have caused his 2017/2018 condition.”
It was the task of the Medical Assessor to assess whole person impairment as a result of injury on 22 February 2023 (deemed date), and to provide reasons for that assessment. The Medical Assessor provided detailed reasons for assessing each and every one of the Psychiatric Impairment Rating Scales (PIRS) in the PIRS Table attached to his Medical Assessment Certificate. Where his assessment differed from that of other assessors, he was under a duty to give reasons why.
Dr Barrett did not provide any assessment, for the reasons given above. Her diagnoses, and their ultimate causes, accorded with the views expressed by the Medical Assessor. Her description of the 2023 injury as an exacerbation of a pre-existing injury or condition was entirely consistent with Member Sweeney’s determination of 11 December 2023 that, “The applicant suffered psychological injury being an exacerbation or aggravation of a pre-existing disease within s 4b (ii) of the Workers Compensation Act 1987 as a result of the circumstances surrounding his dismissal by the on 24 September 2021.”
The Medical Assessor was required to assess whole person impairment as a result of that injury. He accepted that the injury had occurred. His views did not differ in any material respect from the views expressed by Dr Barrett, save that he accepted (as he was required to do, though Dr Barrett did not) that the aggravation or exacerbation amounted to injury.
As Dr Barrett did not assess whole person impairment, the Medical Assessor was not required to give reasons for arriving at a different assessment.
At [5.22] of its submissions, the appellant candidly admits that it is unable to identify how the omission to refer to Dr Barrett’s report can have materially affected the outcome. In our view, it cannot have done so, for the reasons given above. In all the circumstances, we are not satisfied either that the Medical Assessor was under a duty to explain why his views differed from those of Dr Barrett, or that any failure to do so can have affected the outcome. This ground fails.
(e) Alleged failure to engage with the assessment of Dr Bench
Dr Bench’s Medical Assessment Certificate of 16 June 2020 was before the Medical Assessor. He referred to it specifically at [10c] of his reasons and summarised its contents. The Medical Assessor explained that, whereas Dr Bench found no evidence of pre-existing alcohol use disorder or depressive symptoms prior to the 2018 injury, Dr Yeates took a history of both from 2012 in the context of personal stressors.
We are left in no doubt that the Medical Assessor had regard to Dr Bench’s findings, and understood them.
The appellant submits that the Medical Assessor “did not sufficiently engage with” the Medical Assessment Certificate of Dr Bench. The appellant does not explain what it means by sufficient engagement, save to say that the Medical Assessor failed to explain “why it did not represent the best evidence of extent of the worker’s impairment as a result of the previous injury”. This appears to be a submission of error with respect to the s 323 deduction. That deduction is dealt with below.
So far as this ground of appeal relates to an alleged a failure to have regard to material evidence, or to appreciate its meaning, we are not satisfied that the Medical Assessor either failed to have regard to Dr Bench’s views or to understand them. This ground fails.
(f) Failure to explain the deduction of 2/10th
Having identified a previous injury and pre-existing conditions, it remained for the Medical Assessor to determine whether that injury or those conditions contributed to impairment and, if so, to determine the amount of the deduction with reasons. As indicated, he deducted 2/10th for pre-existing alcohol use disorder and persistent depressive disorder, caused by both personal stressors from 2012 and the 2018 psychological injury. He gave the following reasons at [11b] – emphasis added:
“The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
i.Alcohol use disorder - heavy alcohol use since 2012 which commenced in the aftermath of a serious psychosocial stressor predating [the 2018 and 2023 injuries].
ii.Persistent depressive symptoms pre-dating either the 2018 or the 2021 claim subsequent to the serious psychosocial stressor of a false allegation by his ex-partner.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 3/10th [sic] for the following reasons:
i.There are observable psychosocial sequelae consequences of alcohol use in the history that predate Mr Mansfield’s initial and subsequent claim.
Alcohol use disorder as a standalone diagnosis can induce depressive states, including fulminant major depression in isolation. In Mr Mansfield’s case, it is difficult to disentangle the persistent depressive disorder symptoms, which share many elements of the psychiatric sequelae of alcohol use disorder. Mr Mansfield’s alcohol use is to the level where withdrawal symptoms are present when alcohol is not taken. Thus, these symptoms need to be considered as a synergistic relationship, with alcohol driving low mood and low mood and anxiety symptoms driving continued alcohol use. The deduction for alcohol use disorder and persistent depressive disorder hinge on Mr Mansfield’s history of:
a)A severely stressful event in 2012 where he was falsely accused of sexual abuse of his own children, subject to a police investigation, humiliated at his workplace by police arrival with the principal’s permission.
b)His own account of his daily heavy alcohol use from that point on up to the present, including intermittent recreational drug use.
c)Mr Mansfield’s account that he has been unable to maintain a relationship due to drug and alcohol use and had, his work excluded, a lower level of function than before 2012.
d)The effect of the previous injury and the assessment of the degree of the new injury sustained on 24th September 2021, which the Member demarcates from the initial injury in 2018.
e)By arriving at a deduction of 2/10th, I acknowledge both the effects of:
i.The previous workplace injury
ii.The pre-existing alcohol use disorder and engagement with psychological services from 2012 predated both injuries. In my opinion, ongoing heavy alcohol use exacerbates the persistent depressive disorder.
f)This acknowledges 8/10th of the injury from workplace factors, including recognition of the degree of functional maintenance.
Central to this case is the degree to which Mr Mansfield’s function deteriorated beyond the injury he claimed in June 2018. That is, I am satisfied there was a deterioration in the pre-existing persistent depressive disorder, which was a function of the September 2021 injury. The extent of this deterioration is accounted for in my calculations. However, it would not be in keeping with the available evidence to deduct only 1/10th, given the extent of the pre-existing injury.”
This passage indicates that a deduction of 2/10th was made for the effects of two pre-existing conditions which resulted from personal stressors experienced in and from 2012 – namely, alcohol use disorder and persistent depressive disorder – and for the effects of the 2018 injury; that the aggravation or exacerbation that constituted the 2023 injury caused a deterioration in the pre-existing persistent depressive disorder; that the amount of the deduction was difficult to determine; that “the available evidence is that the deductible proportion is large” and is therefore at odds with a deduction of one-tenth; and that a deduction of 2/10th is supported by the evidence.
Reasons were given for all those conclusions except the last. The Medical Assessor does not explain why, given that the deductible proportion is “large” and is therefore at odds with a deduction of 1/10th, a proportion greater than 2/10th should not be applied – for instance, reflecting the assessment of 8% whole person impairment as a result of the 2018 injury made by Dr Bench on 11 June 2020. We note that at [5.25] of its submissions the appellant concedes that the Medical Assessor was not bound by that assessment.
The reasons for selecting 2/10th, as distinct from some greater fraction, are not apparent. The Medical Assessor has not disclosed his path of reasoning sufficiently to enable to Appeal Panel to discern whether or not the conclusion was affected by error. This amounts to an inadequacy of reasons, requiring that the certificate be set aside.
Assessment of deduction
On appeal, there is no challenge to the assessment of 19% whole person impairment made by the Medical Assessor before deduction.
There is also no challenge to the Medical Assessor’s findings at [7] that, due to personal stressors from 2012, there were pre-existing conditions of alcohol use disorder and adjustment disorder (which has since developed into persistent depressive disorder), and a decline in function due to the 2018 workplace injury.
Accordingly, we accept that there is a 19% whole person impairment as a result of the 2022 injury, and that there were pre-existing conditions of alcohol use disorder and adjustment disorder due to personal stressors, and a previous injury, being the 2018 psychological injury.
We consider that the pre-existing conditions and the 2018 injury currently contribute to whole person impairment because, in the absence of the exacerbation and aggravation of those conditions by the events of 2021 which were found by Member Sweeney to caused the 2023 injury, the psychological effects of that injury are likely to have been less than they are now, and whole person impairment would be less than currently assessed.
A deduction is only available to the extent that impairment results from a previous injury or pre-existing condition, and not from injury itself. Member Sweeney found at [63] of his reasons that the circumstances surrounding the termination of employment on 24 September 2021 aggravated a pre-existing persistent depressive disorder. We accept, and are satisfied, that the termination of employment on that date, together with the circumstances surrounding it, aggravated and exacerbated the worker’s pre-existing condition of persistent depressive disorder, and that the aggravation caused an increase in symptoms and permanent impairment. That increase is attributable to the 2023 injury and not to the pre-existing conditions.
We consider that the amount of the deduction is difficult to determine because:
(a) the Medical Assessor found that only the persistent depressive disorder had been aggravated by the 2023 injury, though the pre-existing alcohol use disorder persisted;
(b) on 20 November 2020 Arbitrator Homan found at [112] to [119] of her reasons that, since 1 November 2019, the applicant had had no work capacity as a result of the 2018 injury, in combination with events which occurred on his attempts to resume work in 2019 such as being placed on the teachers improvement program, and
(c) those events occurred well prior to the stressors of 2021 which, as Member Sweeney found, constituted the 2023 injury.
There is no issue that the events of 2021 aggravated or exacerbated the effects of the 2018 injury. That was the determination of Member Sweeney on injury, which binds the parties. The issue on assessment is what part of current impairment is due, not to the 2023 injury, but to the combination of the pre-existing conditions and the 2018 injury. In circumstances where the worker was already totally incapacitated for work before the injurious events of 2021, that is difficult to determine.
We note Arbitrator Homan’s finding at [105]-[106] of her reasons that events which occurred following the appellant’s returns to work in 2019 (which included being placed on the teachers improvement program) significantly contributed to the subsequent periods of incapacity, and her observation that those events may have constituted a further injury which was not the subject of claim. However, she found unequivocally at [113] that incapacity from 1 November 2019 onward resulted from the 2018 injury.
As the amount of the deduction is difficult to determine, a deduction of 1/10th is available unless it is at odds with the evidence. There is no medical evidence before us which distinguishes between the impairment caused solely by the injurious events of 2021 and the impairment caused by the combination of the pre-existing two disorders and the 2018 injury. That is because the assessments and reports of Dr Bench, Dr Teoh on whose opinion the worker relied, and Dr Clayton Smith on whose opinion the insurer relied, all pre-dated the events of 2021.
Dr Barrett examined the worker on 27 April 2023. In answer to the question whether “this is a discrete and new psychopathology resulting in a psychological disorder that is caused by the termination of the worker’s employment on 24 September 2021”, she responded:
“No. It is clear that Mr Mansfield was already experiencing symptoms of both persistent depressive disorder and alcohol use disorder, as well as ongoing substance use prior to termination of his employment. The history he provides is of persistent symptoms, without remission, since at least 2017 or 2018 up until the time of termination. … there was no break in the causal nexus between the causes of his condition onset in 2017 or 2018 and his current condition.
I would accept that the termination of his employment was experienced as a further loss and stressor which had exacerbated the condition that had been persistent since 2017 or 2018, but does not represent a new psychiatric condition.”
The last sentence is consistent with Member Sweeney’s finding on injury.
Because she did not consider the pathology to be ‘discrete and new’, Dr Barrett did not assess whole person impairment resulting from the 2023 injury, let alone apportion impairment between it and the 2018 injury. She did, however, take a detailed history which relevantly included the following:
“On the basis of his performance management process, his employment was eventually terminated. He stated since then his symptoms have ‘spiked’ although he acknowledges there was no period of remission of his symptoms from 2018 onwards. Since the termination, he has a sense of, ‘No escape, no way out, no solution’ and there has been a further increase in his alcohol and substance use.”
This is at the very least medical evidence which supports a significant increase in symptoms and impairment as a result of the 2023 injury, over and above that caused by the pre-existing conditions and 2018 injury.
So far as we can tell from the report, she does not otherwise distinguish between the effects of the 2023 injury and the pre-existing conditions and 2018 injury.
In his report of 1 February 2023, independent psychiatrist Dr Potter assessed a 22% whole person impairment as a result of the 2023 injury at the request of the appellant’s solicitor. He did not distinguish between impairment caused by the 2018 injury and that caused by the 2023 injury, but he did note that there had been a deterioration in the appellant’s impairment since the assessment of Dr Bench.
Mr Reed’s letter of 27 August 2021 is evidence that that the appellant employer’s letter of 20 May 2021, which as Member Sweeney found, formed part of the circumstances surrounding the termination of Mr Mansfield’s employment which constituted the 2023 injury, “deeply distressed Mr Mansfield”.
Certificates of Capacity issued from 3 June 2021 to 18 October 2021 are attached to the Reply. They describe incapacity for work as a result of injury in June 2018. Though some refer to events as late and 2021 and 2022 under the heading “treatment/medication type and duration”, they do not provide assessments of permanent impairment, nor do they distinguish between the combined effects of the 2018 injury and pre-existing conditions on the one hand and those caused by the 2023 injury. We would not expect otherwise, given their purpose.
None of this evidence, though brought into existence after the commencement of the dismissal process which was found to have caused the 2023 injury, is inconsistent with a deduction of 1/10th, because, even though some of them evidence an exacerbation of symptoms as a result of the dismissal process, none otherwise distinguish between its effects and the effects of the 2018 injury and pre-existing conditions.
For all those reasons, in our view the available evidence is not at odds with a 1/10th deduction.
Even if, contrary to our finding, such a deduction was at odds with the Medical Assessment Certificate of Dr Bench, in recognition of the respondent’s submissions on the point it would be unsafe to deduct the 8% whole person impairment assessed by him, because that would involve an assumption that there had been no improvement in the worker’s condition at all from the date of his assessment on 11 June 2020 and 25 May 2021, when the evidence discloses that Mr Mansfield was distressed by the commencement of the dismissal process which constituted the 2023 injury.
The evidence of Mr Mansfield’s various returns to work despite the effects of the 2018 injury indicate that his symptoms waxed and waned, notwithstanding the ongoing effects of the 2018 injury and the pre-existing conditions. In those circumstances, even though the appellant remained off work from 1 November 2019, we are not in a position to assume (for find) that there was no improvement at all up to May 2021, in the absence of positive medical evidence to that effect.
For all those reasons, and accepting the parties’ agreement that the Medical Assessment Certificate issued on 2 February 2024 contains a mathematical error, the Appeal Panel revokes the Medical Assessment Certificate, and issues the attached Medical Assessment Certificate.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4091/23 |
Applicant: | Jonathon Mansfield |
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 Yeates 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 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 | 22/02/23 (deemed date) | 19 | 1/10th | 17 | ||
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Jonathon Mansfield | Claim reference number (if known) | |
| DOB | 29/10/1976 | Age at time of injury | 45 years |
| Date of Injury | 22/2/23 | Occupation at time of injury | Teacher |
| Date of Assessment | 12/02/2024 | Marital Status before injury |
| Psychiatric diagnoses | 1.Persistent depressive disorder | 2.Alcohol use disorder | |
| 3. | 4. | ||
| Psychiatric treatment | Psychotherapy | ||
| Is impairment permanent? | Yes | No (circle one) | |
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 2 | Mr Mansfield does not bathe everyday or brush his teeth. He washes his clothes once per week. He can live independently but misses meals and is reliant on takeaway or meals prepared by his mother. | |||||||||
| Social and recreational activities | 2 | Mr Mansfield socialises 2-3 times per week with friends in some capacity, often to drink alcohol. He is socially shunned in many situations due to the false allegations he has endured.. | |||||||||
| He plays basketball on an organised team but reports he arrives smelling like alcohol and cannot participate as he did in the past | |||||||||||
| Travel | 2 | Mr Mansfield drives locally. He can travel to Sydney on the train or by car to see his father. He does not travel further afield for holidays or similar. | |||||||||
| Social functioning | 3 | Mr Mansfield is unable to form or sustain long-term intimate relationships. He has lost multiple partners due to addiction issues. He does not care for any dependents. His ex spouse cares for his children. | |||||||||
| Concentration, persistence and pace | 3 | Mr Mansfield cannot concentrate on complex tasks or instructions. He struggles to concentrate on anything more complex than televised sport. He has not trained in a new area or taken any courses. | |||||||||
| Employability | 5 | Mr Mansfield cannot work at all and has not worked since the injury and termination. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 3 | 3 | 5 | =3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| +2+2 | +2 | +3 | +3 | +5 | 17 | 19 | |||||
Less 1/10th deduction for pre-existing injury and pre-existing conditions namely alcohol use disorder and persistent depressive disorder secondary to multiple causes elaborated above.
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