Secretary (Department of Education) v McGrady
[2022] NSWPICMP 484
•29 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary (Department of Education) v McGrady [2022] NSWPICMP 484 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Sarah Jean McGrady |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 29 November 2022 |
CATCHWORDS: | wORKERS cOMPENSATION - Applicant sustained primary psychological injury; Medical Assessor assessed applicant as having a whole person impairment (WPI) of 15%; deducted one-tenth for pre-existing injury, condition or abnormality; added 1% WPI for the effects of treatment resulting in 14.5% WPI; rounded up to a total of 15% WPI; Panel held that the Medical Assessment Certificate (MAC) contained a demonstrable error in relation to the addition of 1% WPI for the effects of treatment as the modifier in chapter 1.32 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 is only available where there has been effective long-term treatment that has resulted in “apparent substantial or total elimination” of the relevant impairment; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 September 2022 the Secretary, Department of Education (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Christopher Bench, Medical Assessor (the MA) and issued on 7 September 2022.
The respondent to the appeal is Sandra Jean McGrady (Ms McGrady).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds 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 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms McGrady developed a primary psychological injury in the course of her employment with the appellant as a school teacher.
Ms McGrady commenced proceedings in the Commission claiming 16% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 20 September 2019.
The matter was referred to the MA, on 2 March 2022 for assessment of WPI of
Ms McGrady’s psychological injury on or deemed to have occurred on 20 September 2019.The MA examined Ms McGrady on 25 March 2022 through video link.
On 25 March 2022, the MA issued a MAC in which he assessed Ms McGrady as having an overall WPI of 13%. The MA deducted one-tenth for pre-existing injury, condition or abnormality, which resulted in 10.7% WPI. The MA then applied Chapter 1.32 of the Guidelines and made a 2% adjustment for the effects of treatment, which resulted in a total assessment of 13% WPI.
Ms McGrady lodged an Application to Appeal Against Decision of Medical Assessor and in the alternative made an application for reconsideration.
On 21 June 2022, the delegate of the President referred the matter back to the MA for reconsideration under s 329 of the 1998 Act.
On 7 September 2022, the MA issued a further Medical Assessment Certificate (MAC). The MA the
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 Ms McGrady be re-examined by a MA who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms McGrady to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for both of the medical assessments and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out 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.
The appellant’s submissions include the following:
(a) The MAC contains demonstrable error and evidence of use of incorrect criteria in relation to the addition of 1% WPI for the effects of treatment (Chapter 1.32 of the Guidelines).
(b) The MA added 1% WPI with the explanation that there has been a partial remission of Ms McGrady’s symptomatology and functioning “provoked by evidence-based psychiatric and psychological treatment”. The MA opined that such treatment gains would likely be lost if she was to cease such treatment. He stated “…it is the evaluator’s opinion there is a 1% adjustment for the effects of treatment indicated for a mild elimination of the deficits provoked by her work injury.”
(c) The MA offered no other reasoning for the addition of 1% WPI. The MA applied an incorrect test and in so doing fell into demonstrable error.
(d) The addition of an additional degree of impairment as an adjustment for the effect of treatment is subject to Chapter 1.32 of the Guidelines. The threshold or gateway for the MA to increase the percentage of WPI was that there had been effective long-term treatment which resulted in apparent substantial or total elimination of the permanent impairment.
(e) The MA recorded continuing significant functional impairments and psychiatric symptomatology. He also recorded that as the worker’s depressive symptoms have been present for greater than two years she now met criteria for diagnosis of Persistent Depressive Disorder with Anxious Distress.
(f) It was clear that despite the treatment being provided including the recent medication changes, there has only been mild improvement (paragraph 10, page 7 of the MAC). That mild improvement has not improved employability, which according to the MA, had decreased since his initial assessment.
(g) There was nowhere to be found in the MAC any evidence that the MA considered that the treatment had been effective in resulting in the apparent substantial or total elimination of permanent impairment, nor any expression of opinion in that regard. In fact, the clear statement by the MA was that there has only been mild improvement by reason of treatment.
(h) The evidence fell short of fulfilling the criteria for effective long-term treatment resulting in apparent substantial or total elimination of Ms McGrady’s permanent impairment and that the MA fell into error by making an allowance of 1% where the threshold permitting him to increase the degree of impairment was not met.
(i) If the error identified in this appeal is correct, that the MAC should certify 14% WPI.
(j) The MAC dated 7 September 2022 be revoked and a new MAC issued based on the evidence and applying the correct criteria in relation to Chapter 1.32 of the Guidelines.
Ms McGrady‘s submissions include the following:
(a) In light of the observations provided by the MA in the MAC there was ample evidence supplied as to why the application of Chapter 1.32 of the Permanent Impairment Guidelines was applicable.
(b) In the previous MAC dated 25 March 2022 the MA indicated an adjustment for the effects of treatment of 2% as indicated on page 13 of the original MAC. This was reduced to 1% by the MA in the MAC under appeal. Chapter 1.32 provides that where there is effective long term treatment of an illness or injury results in apparent substantial or total elimination of the claimants permanent impairment, that the claimant is likely to revert to the original degree of permanent impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. Emphasis should be placed on the word substantial in the context of Chapter 1.32 and it was clear from the reasoning of the MA that should the psychiatric treatment be withdrawn there would be a deterioration of the symptoms given the consistent history of long term treatment set out in the MACs dated 25 March 2022 and 7 September 2022. It was noted that at page 3 of the original MAC dated 25 March 2022 the MA took the following history: “The applicant has been off her anti-depressant medication for the last two months. ‘I felt ok’.” History taken since that time was a worsening of the symptoms which then culminated in her being prescribed a new medication in the form of Agomelatine. This was evidence that if Ms McGrady’s medical treatment, psychiatric overview and medication were changed that she would suffer a relapse in her symptoms, noting the improvement that she has sustained since the consumption of that medication.
(c) Ms McGrady had clearly been under long term medical treatment as per evidence of the history taken by MA in the MAC dated 25 March 2022 where he noted treatment in late 2019 from Jackson Hill, psychologist and subsequently Dr Helen Lockey. Subsequent treatment with Dr Bush, general practitioner was set out the earlier MAC which included prescription of Sertraline.
(d) Chapter 1.32 of the Guidelines has a definite role to play with regard to the effects of treatment for a primary psychiatric injury. Ms McGrady relied on the decision of Secretary, Department of Communities and Justice v Marks [2021] NSWPICMP 200, paragraph 6, while the appellant relied on the decision of Secretary, Department of Education v Johnston [2021] NSW PICMP 228. There was no proper articulation by the appellant as to how the factual circumstances of that decision accorded with the present situation involving Ms McGrady.
(e) Chapter 1.32 of the Guidelines needed to be read
“as a whole that is there is apparent substantial or total elimination of the claimant’s permanent impairment, then the claimant is likely to revert to the original degree of impairment if the treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2 % or 3%. This is following the implementation of affective [sic] long term treatment.”
There has been effective long term treatment based on the history taken in both MACs and the material attached to the “application upon reply” and that the original degree of impairment would increase if the treatment was withdrawn. It was clear from 10A of the MAC dated 7 September 2022 that Ms McGrady had shown some improvement since commencing the new anti-depressant six to eight weeks ago with a mild improvement in anxiety. There was a good long term history of treatment including pharmacological intervention and this satisfied the criteria of the operation of Chapter 1.32 of the Permanent Impairment Guidelines.
(f) The matter should be re-referred to the MA for reconsideration of Chapter 1.32, if necessary to provide additional guidance to the Appeal Panel as to the MA reasoning process in applying Chapter 1.32.
(g) Alternatively, the MAC be confirmed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The MAC
On page 3 of the MAC under “History relating to the injury”, the MA wrote:
“The appellant noted having consulted with her general practitioner Dr Kettle who diagnosed depressive disorder and treated her with the anti-depressant sertraline. She was referred to the psychologist Jackson Hill, who also diagnosed depressive disorder. She changed psychologist to Soraya Motala. Ms Motala diagnosed Posttraumatic Stress Disorder as a result of the bullying and harassment. (Comment: The appellant confirmed she was not subjected to any physical threats or assaults). She has a new general practitioner Dr Joshua Bush, who has diagnosed Posttraumatic Stress Disorder…
The appellant noted having been referred to a psychiatrist after the previous assessment. She has consulted with Dr Benjamin Hadikusumo commencing in July 2022. She was unsure of the diagnosis. Dr Hadikusumo added Domion (agomelatine). She has seen Dr Hadikusumo on two occasions. The anti-depressant was increased about two to three weeks ago. She has a follow-up appointment with her psychiatrist in October. She has never had a psychiatric admission.
• Present treatment:
Mental health care monitoring: Dr Joshua Bush
Psychiatric supervision: Dr Hadikusumo
Psychotherapy: Soraya Motala
Vocational rehabilitation: The Rehab Group
Current medications:
Agomelatine 50 mg po nocte
Diazepam 5 mg po nocte prn (less than weekly)
…
She is unaware of any current or proposed changes to her psychiatric or psychological treatment.
• Present symptoms:
The appellant noted there has been some ‘slight’” improvement in her symptoms, ‘I think they’re calming me down more.’ She has required less diazepam since starting the agomelatine.
The appellant described her recent mood as ‘ups and downs … when I’m down, it’s just my inability to get up and clean up and be productive’. Her sleep is impaired – she has initial insomnia. She is sleeping about six to eight hours per night. Her appetite is ‘awful at the moment … I just can’t stop eating at the moment’. The appellant noted she has put on about four to five kilograms. The appellant complained of low motivation. She is not sticking to her routines. Her energy is ‘pretty low … no energy. I'm not exercising’. Her libido is ‘on and off … probably most times off’. She has not had any suicidal ideation.
The appellant noted her anxiety has been ‘okay’. She has panic attacks ‘not often. I'm at home most of the time. I'm not venturing out’".
Under “Details of any previous or subsequent accidents, injuries or conditions”, the MA noted that Ms McGrady had reported having had a number of other depressive episodes for which she has been treated with anti-depressant medications at other times prior to the work injury.
The MA made a diagnosis of Persistent Depressive Disorder with anxious distress. He wrote:
“The appellant greatly increased her use of alcohol as a result of the work injury. She was consuming alcohol at a level known to be injurious to one’s mental and physical health. She repeatedly failed to cut down her use of alcohol in spite of attempts to do so. She noted she has decreased her alcohol use; however she continues to drink a bottle of champagne two to three times per week. In this context, her Alcohol Use Disorder is in partial remission”.
At 10 of the MAC under “Reasons for Assessment” the MA noted:
“The appellant was commenced on a new anti-depressant medication six to eight weeks ago. There has been a mild improvement in her anxiety since its commencement. There have been no other recent changes to her psychiatric and psychological treatment. She is unaware of any current or proposed changes to her psychiatric or psychological regimen. She has had chronic depression and anxiety for over three years. It is evident there has been some fluctuation in her symptoms and functioning over the past two years since ceasing work. She has engaged in evidence-based psychiatric and psychological treatment that has only ever provoked a partial remission of her symptomatology. Given such, with a reasonable degree of medical certainty, it is the evaluator’s opinion, her whole person impairment is unlikely to change by more than 3% whole person impairment in the next twelve months in spite of the recent medication change and in this context, her whole person impairment has stabilised to reach maximum medical improvement.
…
It is the evaluator's opinion there has been a partial remission of the appellant's symptomatology and functioning provoked by evidence-based psychiatric and psychological treatment. The improvements are evident in her unlimited capacity to travel and concentration. Nonetheless, there has been a waning of the improvement previously seen in her relationship with her husband and employment capacity. With a reasonable degree of medical certainty, it is the evaluator’s opinion such treatment gains would likely be lost if she was to cease such treatment. The appellant agreed she is not functioning at the same level as a the time of the earlier evaluation. Using best clinical judgment, it is the evaluator's opinion there is a 1% adjustment for the effects of treatment indicated for a mild elimination of the deficits provoked by her work injury”.
On page 9 of the MAC, the MA commented: “The previous adjustment for the effects of treatment was related to the cessation of mental health care monitoring from her general practitioner and psychotherapy with Ms Motala”.
Discussion – effects of treatment
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
The appellant submitted that the MAC contains demonstrable error and evidence of use of incorrect criteria in relation to the addition of 1% WPI for the effects of treatment (Chapter 1.32 Guidelines).
As noted above, the MA determined that the assessment should be increased by a further 1% WPI for the effects of treatment.
Chapter 1.32 of the Guides, which 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.”
Paragraph 1.32 of the Guidelines is in the introduction under “Part 2 – Principles of Assessment” and does not only apply to psychiatric injuries.
The Guidelines at 11.8 relate to Psychiatric Injuries but the paragraph headed “Effects of Treatment” is concerned with whether the injury is stable and not with the estimation of impairment.
Under “present treatment” the MA noted that Ms McGrady took the following medications: Agomelatine 50mg po nocte, Diazepam 5mg po nocte prn (less than weekly).
He described present treatment as being mental health care monitoring by Dr Joshua Bush, psychiatric supervision by Dr Hadikusumo, and psychotherapy with Soraya Motala. The MA noted that Ms McGrady had “engaged in evidence-based psychiatric and psychological treatment that has only ever provoked a partial remission of her symptomatology”.
Ms McGrady told the MA that she had noted some “slight” improvement in her symptoms, saying “I think they’re calming me down more.” The MA noted that she had required less diazepam since starting the agomelatine.
The Appeal Panel noted that Dr Hong made a 1% adjustment for the effects of treatment stating, “she has gained mild substantial improvement with treatment, and without her antidepressant medication she would be more impaired”.
The MA expressed the opinion that there has been a partial remission of Ms McGrady’s symptomatology and functioning provoked by evidence-based psychiatric and psychological treatment. He wrote:
“The improvements are evident in her unlimited capacity to travel and concentration. Nonetheless, there has been a waning of the improvement previously seen in her relationship with her husband and employment capacity. With a reasonable degree of medical certainty, it is the evaluator’s opinion such treatment gains would likely be lost if she was to cease such treatment. The appellant agreed she is not functioning at the same level as a the time of the earlier evaluation. Using best clinical judgment, it is the evaluator's opinion there is a 1% adjustment for the effects of treatment indicated for a mild elimination of the deficits provoked by her work injury”.
Ms McGrady relied on the decision of Secretary, Department of Communities and Justice v Marks [2021] NSWPICMP 200 (Marks), paragraph 6. This matter had been remitted back from the Supreme Court following a determination by Simpson AJ, which revoked the Appeal Panel’s prior determination in respect of a disallowance of 2% for the effects of treatment pursuant to Chapter 1.32 of the Guidelines on the basis that the 2% WPI awarded had been revoked by the Appeal Panel without giving procedural fairness to Mr Marks. The Appeal Panel determined that “Her Honour’s judgment restored the 2% WPI to Mr Marks, so that he is now entitled to the 16% WPI rounded up.”
This decision in Marks does not, in the view of the Appeal Panel, assist Ms McGrady as it related to a question of procedural fairness and not to the application of Chapter 1.32 of the Guidelines.
The modifier in Chapter 1.32 of the Guidelines is only available where there has been effective long-term treatment that has resulted in “apparent substantial or total elimination” of the relevant impairment. The Appeal Panel did not accept that Ms McGrady’s permanent impairment had achieved either substantial or total elimination by virtue of her treatment. The test was not whether treatment has resulted in an improvement in mental health or even a significant reduction in impairment. To qualify for this additional WPI it must be shown that the treatment has resulted in a substantial or total elimination of the permanent impairment that is apparent. Ms McGrady is suffering from an impairment of 15% WPI and it is not apparent that the impairment has been either substantially or totally eliminated.
There was no history of any substantial or total elimination of her symptoms and/or permanent impairment. Although the treatment has resulted in some “partial remission of her symptomatology” and a “mild elimination of the deficits provoked by her work injury”, it did not meet the apparent substantial or total elimination criterion in the Guidelines. The Appeal Panel considered that no adjustment for the effects of treatment can be made in this case as there has not been an apparent substantial or complete elimination of permanent impairment. The Appeal Panel concluded that the MA used incorrect criteria in relation to the addition of 1% WPI for the effects of treatment (Chapter 1.32 Guidelines) and erred in making an adjustment for the effects of treatment. Accordingly, the 1% WPI for the effects of treatment will be revoked.
In summary, the MA made an assessment of 15% WPI in respect of a psychological injury. The MA then made a one-tenth deduction pursuant to s 323 of the 1998 Act. Therefore, the assessment of total WPI by the MA was 13.5 % WPI which is rounded up to 14% WPI. The MA added 1% WPI for the effects of treatment, which resulted in a total of 15 % WPI (14.5 % rounded up to 15%). The Appeal Panel have revoked the 1% WPI adjustment for the effects of treatment made by the MA. Therefore, the assessment of total WPI by the Appeal Panel is 14% WPI in respect of the injury on 20 September 2019.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 September 2022 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
Matter Number: | W6016/21 |
Applicant: | Sandra Jean McGrady |
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 Dr Christopher Bench 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) |
| 1.Psychological/Psychiatric disorder | 20/09/19 | Chapter 11, pages 54-60, paragraphs 11.1 to 11.20 | 15% | one tenth | 14% (13.5% rounded up to 14%) | |
| Total % WPI (the Combined Table values of all sub-totals) | 14% WPI | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
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