Secretary, Department of Education v O'Sullivan
[2021] NSWPICMP 211
•8 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Education v O’Sullivan [2021] NSWPICMP 211 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Liam Dempsey O’Sullivan |
| APPEAL PANEL: | Member Jane Peacock |
| DATE OF DECISION: | 8 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; respondent appealed in respect of the extent of the deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998; complaint that the Medical Assessor (MA) had not had regard to all of the available evidence; the MA has clearly been cognizant of the expert opinions that the worker had a pre-existing condition; the MA for clearly expressed reasons was not of the view that the condition was one of bipolar disorder; the MA has exercised his clinical judgment on the day of assessment taking into account his mental state examination and he has had due regard to the other evidence that was before him without needing to refer to every piece of evidence; Held - the clinical judgment exercised by the MA on the day of assessment was open to him on the evidence and his reasoning disclosed no error; he does not need to refer to every piece of evidence; his clinical assessment that any pre-existing disorder has not contributed to the level of permanent impairment assessed was open on a review of all of the evidence; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 August 2021 the Secretary, Department of Education lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Patrick Morris, a MA, who issued a Medical Assessment Certificate (MAC) on 12 July 2021.
Secretary, Department of Education (the appellant) relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the 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 seek that Liam Dempsey O’Sullivan (the respondent) worker be re-examined by a MA member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel, for the reasons discussed below, did not find error. Absent error, the Appeal Panel has no power to require a worker to be re-examined: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
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 MA as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
§the degree of permanent impairment of the worker as a result of an injury (s319(c))
§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))
§whether impairment is permanent (s319(f))
§whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
·Date of injury: 3 July 2017 – deemed
·Body parts/systems referred: Psychiatric/Psychological disorder
·Method of assessment: Whole Person Impairment”
The MA issued a certificate certifying a 22% whole person impairment (WPI) as a result of injury deemed to have occurred on 3 July 2017.
The MA did not make a deduction under s 323 in respect of any pre-existing, condition, abnormality or injury.
The employer appealed. There was no complaint on appeal about the overall level of permanent impairment assessed of 22% WPI. The complaint on appeal relates to the deductible proportion only.
In summary the appellant submitted on appeal as follows that the MA made a demonstrable error and an assessment on the basis of incorrect criteria. In particular it was submitted that the MA did not make any reference to the history provided by Dr Hill (GP) to Dr Rawley (psychiatrist) in the referral letter dated 20 July 2017. This history was recorded as the worker having a long history of depression from his late teens. This history was not referred to and it was submitted that “given an absence of any reference to the history taken by Dr Hill in the MAC that ether has been a failure by the MA to consider all relevant and significant material and on this basis there ought to be a finding of demonstrable error.”
In summary the respondent submitted that the MA did not err or make an assessment on the basis of incorrect criteria and that the MAC should be confirmed.
The MA took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr O’Sullivan said he commenced working as a school counsellor-in-training at Tenterfield in 2016. He was initially told that he would have a supervisor in the same town but found out that he would be working on his own with his supervisor two hours away in Inverell. He had felt under great stress from beginning work because of this lack of support. He was told that he ‘just had to cope’. He said that his supervisor was not supportive to him. He also felt under pressure because he was on a scholarship and if he did not progress he said he would have to pay back $100,000. He also felt very upset as he was not able to help children who were in distress, including those who were self-harming. He said that it got to a stage where he would hide in the school toilets so the children would not find him. He became very depressed and thought of driving into trees to commit suicide. One night he went for a walk and began crying uncontrollably and thought about jumping in front of a truck. He came back home and told his wife, and she took him to a GP in Warwick who put him off work on a medical certificate. He has not returned to work since then. He went to see a GP in Warwick because he did not want anyone in Tenterfield to know that he could not cope with his work.
Mr O’Sullivan said his GP started him on antidepressant medication and referred him to see a psychologist via telehealth. He changed to a GP in Stanthorpe who referred him to a psychiatrist Dr Rawling whom he saw via telehealth consultations. He said Dr Rawling changed his medications, but his depressive symptoms did not improve. Mr O’Sullivan said he and his family moved to Brisbane at the end of 2017 to be closer to family support. He said he was admitted to Belmont Private Hospital in 2018 but only spent 5 to 7 days there. He had ECT but felt very uncomfortable about it and did not want to continue with the ECT. He said this led to a breakdown in his relationship with his treating psychiatrist and he changed psychiatrist to Dr Matthews whom he continues to see on a weekly basis. Mr O’Sullivan said he was seeing a psychologist Dr David Walters and had about eight to 10 sessions with him until three or four months ago. Mr O’Sullivan said for the past 18 months he has been attending a weekly group therapy program run at Toowong Private Hospital covering topics such as depression, anxiety, mindfulness and acceptance and commitment therapy. He has found these sessions of benefit.
Mr O’Sullivan said that he has had episodes of elevated mood on four or five occasions in response to commencing antidepressant medications. He reports no episodes of elevated mood since the beginning of 2021.
· Present treatment:
Mr O’Sullivan takes the medications Quilonum (lithium) 450mg at night, Prazosin 1mg at night, Mirtazapine 30mg at night, Lexotan four tablets daily and Seroquel 100mg one tablet at night for severe anxiety. He has been on these medications for two or three years. He has also been taking Valium 5mg on-and-off for a number of years but is now taking eight tablets a day for the past three weeks because of severe anxiety. He said that about three months ago his psychiatrist Dr Matthews commenced him on another antidepressant medication Fluvoxamine at a dose of one and three-quarter tablets a day. Mr O’Sullivan continues to see his treating psychiatrist Dr Matthews on a weekly basis. He attends a weekly group therapy program at Toowong Private Hospital.
· Present symptoms:
Mr O’Sullivan reports feeling depressed most of the day every day. He describes feeling sad, empty, hopeless and worthless. He is frequently tearful. He gets almost no pleasure or enjoyment in life. He describes ‘comfort eating’ and has gained 40kg in weight. His sleep is poor but is now better with the medication particularly Mirtazapine that he takes in the evening. He describes very low energy levels and feeling tired all through the day. He reports reduced motivation. He complains of very poor concentration and memory and said that he can only read for about five or 10 minutes before losing concentration. He is very indecisive and relies on his wife and mother to make decisions for him. He feels hopeless and that life is not worth living and has suicidal thoughts every day but has not made attempts.
Mr O’Sullivan reports feeling extremely nervous almost all the time and is always worried and thinking something ‘bad’ will happen to him or his family.
· Details of any previous or subsequent accidents, injuries or condition:
Mr O’Sullivan reported being in good psychological health prior to his work problems beginning in 2016. He said that in his early 20s he got into a habit of flicking the light switches on and off. He saw a psychologist on one occasion who gave him some advice and his symptoms improved, and he did not require any further treatment.
· General health:
Mr O’Sullivan said he drinks about one can of beer per week. He said he does not smoke cigarettes or use illicit drugs. He reports being in reasonable physical health.
· Work history including previous work history if relevant:
Mr O’Sullivan was born in Brisbane. He completed year 12 at school. He then worked in a menswear store for a few months. He then completed a teaching degree at TAFE. He worked as a primary school teacher on-and-off for four or five years while he was trying to qualify for the professional golf tour. He then worked with his father in his financial planning business for three years. He then ran a program at Boys Town for vulnerable children for five years. He then worked for one year teaching at a primary school at Inverell for the NSW Department of Education in 2015 before commencing work as a school counsellor-in-training in Tenterfield in 2016. He has not returned to work since stopping that job in August 2017.
Mr O’Sullivan married at the age of 32. His wife works as a midwife. They have two sons aged 10 and eight years.
· Social activities/ADL:
Mr O’Sullivan lives in his own home in Brisbane with his wife and two sons. He said that his wife, mother and mother-in-law do all the shopping, cooking, cleaning and clothes washing. He said that he used to help a lot with these chores. He occasionally puts a steak on the BBQ. He requires prompting from his wife to shower and change his clothes on a daily basis, otherwise he will not do this. He said that he is not interested at all in his personal appearance. He said that he is only able to drive in his local area. Otherwise he relies on his wife and father to drive him because of his anxiety. He will occasionally go with his wife at her prompting to watch their son play sport on the weekend.
Mr O’Sullivan attends a personal trainer three times a week on the advice of his doctors to help him lose weight as he is pre-diabetic.”
The MA conducted a mental state examination and made a diagnosis as follows:
“In my opinion Mr O’Sullivan has the psychiatric condition of Major Depressive Disorder with anxious distress according to DSM-5 diagnostic criteria. Despite stopping work in 2017 and having intensive psychiatric treatment including a wide range of antidepressant medications his condition remains severe and disabling.
· consistency of presentation
Mr O’Sullivan was consistent in his presentation of his history and symptoms. He did not appear to be either exaggerating or minimising his clinical condition.”
The MA assessed an overall level of impairment of 22% WPI about which there is no complaint on appeal.
The MA did not make a deduction under s 323 with the following explanation:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
No. Mr O’Sullivan reports being in good psychological health before his work problems began in 2016.”
The MA made brief comment on the other material that was before him and explained where his opinion differed from that of other experts whose reports were in evidence as follows:
“I note a report on Mr O’Sullivan by Dr Glen Smith, psychiatrist dated 27 May 2019. Dr Smith gave Mr O’Sullivan the diagnosis of Persistent Depressive Disorder, with anxious distress, with Persistent Major Depressive Episode, which is effectively the same diagnosis I have given Mr O’Sullivan. In this report Dr Smith gave Mr O’Sullivan a whole person impairment rating of 22% which is the same rating that I have given Mr O’Sullivan.
I note another report on Mr O’Sullivan by Dr Glen Smith, psychiatrist dated 24 February 2020. Dr Smith continued to give Mr O’Sullivan a diagnosis of Persistent Depressive Disorder, with anxious distress, with Persistent Major Depressive Episode. In this report Dr Smith gave Mr O’Sullivan a whole person impairment rating of 24%. Where Dr Smith differed from me was in his rating for Social Functioning where he rated Mr O’Sullivan a Class 3 whereas I rated him a Class 2. I rated Mr O’Sullivan a Class 2 as despite there being significant strain in his relationship with his wife, they are still together with no episodes of separation or domestic violence. Mr O’Sullivan reported to me that there has been some improvement in his relationship with his wife over the past several months.
I note a report on Mr O’Sullivan by Dr Trevor Lotz, psychiatrist dated 22 February 2018. Dr Lotz made a diagnosis of Major Depressive Disorder with ‘possibly covert Bipolar Disorder’ in Mr O’Sullivan, whereas I have made the diagnosis of Major Depressive Disorder with anxious distress.
I note a report on Mr O’Sullivan by Dr Trevor Lotz, psychiatrist dated 26 July 2019. In this report Dr Lotz made a diagnosis of Bipolar Affective Disorder (depression) in Mr O’Sullivan. I did not make the diagnosis of Bipolar Affective Disorder as I note the only times that Mr O’Sullivan’s has had episodes of elevated mood was in response to antidepressant treatment and the episodes stopped as soon as the treatment was withdrawn.
I note a report on Mr O’Sullivan by Dr Trevor Lotz, psychiatrist dated 14 May 2020. In this report Dr Lotz made diagnoses of Bipolar Affective Disorder and Major Depressive Disorder, treatment resistance, in Mr O’Sullivan. Dr Lotz then made a whole person impairment rating Mr O’Sullivan of 24% but deducted the percentage he attributed to what he considered a pre-existing disorder of Bipolar Affective Disorder of 17% to give a final PIRS rating of 7%. In the assessment of the various PIRS categories the only difference I had with Dr Lotz’s rating was for Social Functioning where I rated Mr O’Sullivan a Class 2 for the reasons I have outlined above. I am not of the opinion that Mr O’Sullivan had a pre-existing psychiatric condition and therefore have not made any deduction as a result.
I note a report on Mr O’Sullivan by his treating psychiatrist, Dr Brad Matthews dated 28 October 2020. In this report Dr Matthews noted that he first saw Mr O’Sullivan on 19 February 2018. Dr Matthews noted that in treatment Mr O’Sullivan has had antidepressant medications from every class of antidepressants and has also had 30 treatments in a course of Transcranial Magnetic Stimulation with limited benefit. Dr Matthews also noted that Mr O’Sullivan has had individual psychological therapy and ongoing group psychotherapy at Toowong Private Hospital. Dr Matthews made the diagnosis of Bipolar Affective Disorder ‘purely as a result of the observed mood elevation that has occurred in response to antidepressant pharmacotherapy’ or alternatively Major Depressive Disorder in Mr O’Sullivan. I have made the diagnosis of Major Depressive Disorder with anxious distress in Mr O’Sullivan. Dr Matthews also wrote ‘…there is scant and poor evidence of any pre-existing mood disorder…his lack of any impairment and a good level of functionality in the 21 years before his work-related injury, certainly support the notion of absence of any pre-existing mood disorder’.
It is well settled that a deduction under s 323 can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed.
The MA did not refer to the referral letter from the GP (Dr Hill) to Dr Rawling psychiatrist sated 20 July 2017. However, the MA does not need to refer to every price of evidence in his reasons. Here the MA has clearly been cognizant of the expert opinions that the worker had a pre-existing condition. The MA, for clearly expressed reasons, was not of the view that the condition was one of bipolar disorder. The MA has exercised his clinical judgment on the day of assessment taking into account his mental state examination and he has had due regard to the other evidence that was before him without needing to refer to every piece of evidence. The clinical judgment exercised by the MA on the day of assessment was open to him on the evidence and his reasoning disclosed no error. He does not need to refer to every piece of evidence. His clinical assessment that any pre-existing disorder has not contributed to the level of permanent impairment assessed was open on a review of all of the evidence including the clinical note of Dr Hill and the referral letter to Dr Rawley dated 20 July 2017. There is insufficient evidence that the applicant suffered any psychological condition prior to the work injury that impaired him or required ongoing treatment prior to the work injury upon which it could be said that it contributed to the level of permanent impairment assessed as a result of the work injury.
The MA has very clearly explained why he does not consider that the worker had a persistent psychological condition that pre-existed the work injury and contributed to the level of permanent impairment assessed as a result of the work injury. On a review of all of the evidence, the Appeal Panel can discern no error in the MA’s reasoning
For these reasons, the Appeal Panel has determined that the MAC issued on 12 July 2021 should be confirmed.
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