Secretary, Department of Transport v Wills
[2023] NSWPICMP 259
•13 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Secretary, Department of Transport v Wills [2023] NSWPICMP 259 |
| APPELLANT: | Secretary, Department of Transport |
| RESPONDENT: | Virginia Wills |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 13 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological Injury; appellant employer alleged error in respect of the extent of deduction the Medical Assessor (MA) made under section 323; the MA made a deduction of one-tenth; the Appeal Panel found that a deduction of one-tenth was at odds with the available evidence of a chronic pre-existing psychological condition; Held – Medical Assessment Certificate revoked; a deduction of one-third accorded with the available evidence. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 March 2023 Sutherland Shire Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 February 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 be re-examined. 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 although the Appeal Panel found error, there was sufficient material before it for a determination to be made.
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.
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):
§ 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: 11 November 2021 (deemed) - disease
· Body parts/systems referred: Psychiatric/ Psychological Disorder
· Method of assessment: Whole Person Impairment”
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) | |
| Psychiatric/ Psychological | 11/11/2021 (deemed) | Chapter 11 WorkCover Guidelines | n/a | 24% | 2.4% rounded down to 2% | 22% | |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | ||||||
The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
| Name | Virginia Wills | Claim reference number | W5418/22 |
| Date of Birth | xxxx | Age at time of injury | 59 years |
| Date of Injury | 11 November 2021 (deemed) | Occupation at time of injury | 16. Head of Investigations, Fraud & Corruption |
| Date of Assessment | 15 February 2023 | Marital Status before injury | Divorced |
| Psychiatric diagnoses | Persistent Depressive Disorder with anxious distress with persistent major depressive episode |
| Psychiatric treatment | Takes medications Zoloft 150mg in the morning, Temazepam 10mg when required for sleep and Valium 5mg when required for severe anxiety/panic symptoms. Sees treating psychologist fortnightly; sees GP 3-4 weekly. |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision | |||
| Self Care and personal hygiene | 3 | Moderate impairment. Ms Wills relies on the support of her sister and brother-in-law with whom she now lives to be able to live independently. They do all the shopping, cooking, house cleaning and clothes washing for her. She does not cook for herself at all whereas she used to enjoy cooking. Her appetite is poor and she frequently skips meals. She said she needs prompting from her sister to shower and change her clothes regularly. | |||
| Social and recreational activities | 4 | Severe impairment. Ms Wills remains at home and does not go out at all for social or recreational activities. She has lost interest in going out to play soccer, going out for meals or coffee or going to the theatre with friends. She does not go out at all with her sister and brother-in-law whom she lives with. She said her niece comes to visit her on a weekly basis with her baby. If people she does not know come to her house she will withdraw to her bedroom upstairs until they leave. | |||
| Travel | 2 | Mild impairment. Ms Wills reports feeling very anxious when driving but if needed she can drive herself to see her psychologist whose office is in another part of Sydney. However, she much prefers to be driven there by her sister or niece if they are available because of her severe anxiety when driving. | |||
| Social functioning | 2 | Mild impairment. Ms Wills reports still having a good relationship with her sister and brother-in-law with whom she lives and her son in Queensland but she has said that she has lost all her friendships due to her social withdrawal. | |||
| Concentration, persistence and pace | 3 | Moderate impairment. Ms Wills complains of poor concentration and being frequently forgetful. She said that she can only read for up to 10 minutes but forgets what she has read and needs to re-read the material. She is not able to follow the plot of movies anymore and has stopped watching them. She found it very difficult to prepare documents for her solicitor for her compensation case and said it took her 20 times longer than normal to do this preparatory work. | |||
| Employability | 5 | Totally impaired. In my opinion, Ms Wills is not able to work at all because of the severity of her depressive and anxiety symptoms including her marked social withdrawal, poor concentration, reduced motivation and energy, marked levels of agitation and frequent panic attacks. I note that she has not worked at all since March 2020. | |||
| Score | Median Class | ||||
| 2 | 2 | 3 | 3 | 4 | 5 | 3 |
| Aggregate Score Impairment | Total |
| +2 | +2 | +3 | +3 | +4 | +5 | = 19 |
| Impairment Percentage WPI from Table 11.8: | 24% |
| Less pre-existing impairment if any: | 2.4% rounded down to 2% |
Final Impairment % WPI: | 22% |
The Medical Assessor made a one-tenth deduction under s 323 in respect of a pre-existing condition or abnormality.
The employer appealed. The appeal concerns only the extent of the deduction under s 323. In summary, the appellant submitted that the Medical Assessor erred in this regard by failing to have proper regard to the clinical evidence before him and failing to determine the extent of the deduction on the evidence that was available. The appellant submitted that a deduction of 75% should have been made.
In summary, Ms Virginia Wills (the respondent) submitted that the Medical Assessor did not err 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 assessment of impairment under the PIRS categories and when making a deduction under s 323. A deduction under s 323 can only be made if any pre-existing injury, abnormality or condition has contributed to the level of permanent impairment assessed.
The Medical Assessor took a history which was broadly consistent with the other evidence before him. The Medical Assessor recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Wills said she commenced working as Head of Investigations for Fraud & Corruption for the NSW Department of Transport in July 2001. She said her work problems began in 2018. She said at that time she ran a team of 6-7 investigators (all were ex-Police officers). She said one employee, Mr Jay, had issues with her second-in-command, Mr Kinney, and one day he ‘lost it’ and was uncontrollably angry in her office and went off work on sick leave. She tried to reach out and support him but she said Mr Jay subsequently made a complaint of bullying against her and her team. She said that this was investigated by an independent legal firm and all the allegations were found to be unfounded. Later in 2018 Mr Jay returned to work but again ‘lost it’ a number of times at work. Ms Wills said she spoke to the Human Resources Department, senior management and also a doctor at work who advised that Mr Jay should be stood down from work. However, Ms Wills said her senior management was reluctant to act on this advice. Mr Jay then made a complaint to ICAC and the Department of Transport about her and her team. She said an investigation was commenced by Transport for NSW on 18 March 2020 and she and her whole team were stood down immediately and ‘marched out’ of their offices. She said a long legal battle ensued and her employment was terminated in November 2020. However, an out of court settlement was agreed to by the NSW Department of Transport in May 2022. Ms Wills said her last day of work was on 18 March 2020 and she has not returned to work since then.
After being stood down in March 2020, Ms Wills saw her GP who increased her Sertraline dosage from 100mg daily to 150mg daily. He also prescribed Temazepam 10mg for her to take when required for insomnia and Valium 5mg for her to take if she had severe anxiety or panic symptoms. She said her GP referred her to psychologist, Ms Nell Zanberg, whom she had seen previously. She has continued to see
Ms Zanberg for weekly to fortnightly therapy since then. She has never been referred to a psychiatrist and does not want to see one herself.Despite stopping work and despite the treatment she has received, she has continued to feel very depressed and anxious.
· Present treatment:
Ms Wills takes Zoloft 150mg in the morning. She takes Temazepam at night for sleep but only uses this very occasionally now. She takes Valium 5mg when needed for severe anxiety or panic symptoms and said she takes this about twice a week.
She sees her psychologist, Ms Nell Zanberg, every fortnight currently and sees her GP every 3-4 weeks.
· Present symptoms:
Ms Wills reports feeling pervasively sad and depressed. She described her life as a ‘nightmare’. She feels hopeless and says she has ‘no purpose in life’. She feels that life is not worth living but does not have any suicidal thoughts because of her concerns for her son. She reports having no pleasure or enjoyment in life. She is much more tearful than previously. She has very poor self-esteem. She has a reduced appetite and has lost 17kg in weight in the past two years. She reports a reduced energy and motivation and has lost interest in activities she used to enjoy such as playing soccer and socialising with friends.
Her sleep is very poor even with Phenobarbitone medication which she takes for a tremor. She only has about four hours sleep per night. She reports reduced concentration and says she now can only read for less than 10 minutes but even then, forgets what she has read and needs to re-read the material. She feels anxious, edgy and stressed, and suffers with panic symptoms including heart palpitations, a fear of dying, profuse sweating, nausea and vomiting which occur about two or three times a week. She worries frequently and finds it difficult to distract herself from her worries.
Ms Wills reports that her symptoms have been relatively stable over the past 12 months.
· Details of any previous or subsequent accidents, injuries or condition:
Ms Wills confirmed that she started taking the antidepressant medication Celapram in 2004 for depressive and anxiety symptoms related to a marital breakdown. She was also referred to a psychologist, Ms Nell Zanberg, at that time. She continued to take Celapram until the medication was changed to Zoloft in 2016 after she was admitted for several months to Royal North Shore Hospital with a physical illness. Over this period of time, she continued to see Ms Zanberg on-and-off when she had episodes of depression or anxiety in relation to stress. In 2014, she saw Ms Zanberg after a neighbour of hers had died at her home and her son had had a lot of behavioural difficulties after that as he was present at the time of the neighbour’s death.
Prior to her work problems beginning in 2018, Ms Wills confirmed that she was taking the antidepressant medication Zoloft at a dose of 100mg daily. However, she was then functioning very well, coping very well with her demanding work, living by herself, playing women’s soccer on a weekly basis, going out to cafés for meals and to theatre shows with a group of friends and also going on weekends away with friends.
Ms Wills reported no psychological symptoms during her 20-year career from 1981 to 2001 with the Australian Federal Police.
· General health:
Ms Wills said she was diagnosed with a head tremor in 2017 and sees a neurologist for treatment. She is currently taking Phenobarbitone at a dose of 90mg at night. She has been diagnosed with sleep apnoea and has been using a CPAP machine for approximately three years. She has been diagnosed with hypertension and was admitted to the Mater Hospital last year for three weeks because of uncontrollable hypertension, and she now takes four to five medications to control her blood pressure. She takes Metformin for elevated blood sugar levels and Rosuvastatin for hypercholesterolaemia.
Ms Wills said she now drinks one or two glasses of wine most nights. She said she used to drink about three or four large glasses of wine per night but over the last 12 months since she has started taking Phenobarbitone she has reduced her alcohol consumption significantly.
Ms Wills said she has been smoking on and off since the age of 20 but started smoking again in around 2020 and now smokes 20-25 cigarettes per day. She does not use illicit drugs.
· Work history including previous work history if relevant:
Ms Wills was born in Sydney. She completed Year 12 and the Higher School Certificate. She immediately joined the Australian Federal Police in Canberra in January 1981 and worked there for 20 years. She did community policing in Canberra for two years and then became a detective. She had worked in organised crime, in the drug unit, in the intelligence unit, in the major crime and fraud squad and did a lot of undercover work.
Ms Wills was promoted to Detective Sergeant before she left the Australian Federal Police in 2001 and joined the NSW Department of Transport as the Head of Investigations, Fraud & Corruption.
During her time working for the Australian Federal Police she reported no psychological symptoms or symptoms indicative of Posttraumatic Stress Disorder.
· Social activities/ADL:
Ms Wills married in 1992 to an Australian Federal Police Officer and this marriage lasted approximately 15 years. She has had no long-term relationships since this marriage broke up. She has one son aged 24 who lives on the Gold Coast in Queensland.
Ms Wills moved in to live with her sister and brother-in-law at their home in North Rocks three years ago. She said that they do the all the shopping, cooking, house cleaning with the help of a cleaner, and clothes washing for her. She said that she does not cook at all now whereas she used to love to cook.
Ms Wills does not go out at all now for any social or recreational activities whereas she used to enjoy playing women’s soccer, going out for meals, coffee and theatre dates with a group of friends and also going on weekends away with a group of friends.
She keeps in contact with her son by text or phone calls. She reports having a good relationship with her son and sister and brother-in-law whom she lives with. She has lost contact with all her friends now. She said her niece comes to visit the home once a week with her one-year-old baby.
She used to walk her dog until her dog died last year. She is able to drive herself to see her psychologist if she needs to but prefers her sister or niece to drive her if they are available because she is very anxious when driving. She reports requiring prompting from her sister to shower and change her clothes regularly.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Ms Wills was a bespectacled woman who looked older than her stated age, with brown hair and wearing no makeup or jewellery. She was cooperative but tense and frequently tearful in the interview. A head tremor was noticeable at times during the assessment. Her speech was of normal rate and flow. Her mood was pervasively depressed and anxious. Her affect was appropriate to her mood with limited reactivity. There was no formal thought disorder and no psychotic symptoms.
Ms Wills was able to focus for the duration of the assessment and answer questions appropriately.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
In my opinion, Ms Wills has the psychiatric condition of Persistent Depressive Disorder with anxious distress with persistent major depressive episode according to DSM-5 diagnostic criteria. This condition emerged as a result of work-related stressors that Ms Wills experienced in her period working for the NSW Department of Transport from 2018 onwards. Despite not working since March 2020 and having regular psychological therapy and being treated with antidepressant medication, her condition has remained severe and disabling.
Ms Wills has also developed a co-morbid Tobacco Use Disorder but, in my opinion, this is not contributing to her level of permanent impairment.
· consistency of presentation
Ms Wills was consistent in the presentation of her history and symptoms. She did not appear to be exaggerating or minimising her clinical condition.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. These assessments are not the subject of complaint on appeal.
The Medical Assessor considered that MMI had been reached noting:
“Yes. Ms Wills reports that her symptoms have been relatively stable for the past 12 months. She has been having intensive psychological therapy on a weekly to fortnightly basis since March 2020 and has also been on the maximal dose of the antidepressant medication Zoloft 200mg daily for a significant period of time. In my opinion, her condition is well-stabilised and unlikely to change substantially in the next year with or without further medical treatment.”
The Medical Assessor made a one-tenth deduction under s 323 and this is the subject of complaint on appeal.
The Medical Assessor explained the deduction as follows:
“Is any proportion of loss of efficient use or impairment or whole person impairment,
due to a previous injury, pre-existing condition or abnormality?
Yes. Ms Wills reported a history of having taken antidepressant medications, initially Celapram and later Zoloft, from 2004 onwards as well as having intermittent courses of psychological therapy from Ms Nell Zanberg in relation to stressors she was experiencing. At the time her work problems began in 2018, she was functioning well in her occupational and social areas of functioning but was continuing to take Zoloft at a dose of 100mg daily. Therefore, in my opinion, a one-tenth deduction for a pre-existing condition is indicated in these circumstances.”
The Medical Assessor had regard to the other evidence that was before him upon which he made brief comments:
“I note a report on Ms Wills by Dr Christopher Canaris, psychiatrist, dated 4 February 2021. Dr Canaris gave Ms Wills the diagnoses of Major Depressive Disorder and Alcohol Use Disorder. I have given Ms Wills the diagnosis of Persistent Depressive Disorder with anxious distress with persistent major depressive episode because of the length of time she has had her depressive symptoms and the prominent anxiety symptoms. Ms Wills has significantly reduced her alcohol consumption and I am not of the opinion she currently has an Alcohol Use Disorder.
I note a further report on Ms Wills by Dr Canaris dated 21 September 2021 in which he continued to give Ms Wills the diagnosis of Major Depressive Disorder.
Dr Canaris gave Ms Wills a whole person impairment rating of 22%. Where he differed from me in his ratings was for Social and recreational activities where he rated Ms Wills a Class 3. I have rated Ms Wills a Class 4 as she reports not leaving the home at all for any social or recreational activities either by herself or accompanied by family members. If her niece visits her home she will stay in the room with her and her baby, but if people she does not know visit the home she will withdraw to her upstairs bedroom until they leave. Dr Canaris did not make a deduction for a pre-existing condition whereas I have made a one-tenth deduction for her pre-existing condition of treated depression and anxiety for which she was taking medication at the time her work problems commenced.
I note a report on Ms Wills by Dr Peter Young, psychiatrist, dated 1 March 2022. Dr Young gave Ms Wills the diagnoses of Persistent Depressive Disorder, Generalised Anxiety Disorder, Panic Disorder and Alcohol Use Disorder. I have given Ms Wills the one diagnosis of Persistent Depressive Disorder with anxious distress with persistent major depressive episode which captures her combination of depressive and anxiety symptoms. As stated previously, I do not believe that Ms Wills currently has an Alcohol Use Disorder as she has been able to significantly reduce her alcohol consumption.
Dr Young gave Ms Wills a whole person impairment rating of 19%. Where he differed from me was in his ratings for Self-care and personal hygiene where he rated Ms Wills a Class 2. I have rated Ms Wills a Class 3 as, in my opinion, she relies on the support of her sister and brother-in-law to live independently. She is living with them now and they do all the cooking, shopping, house cleaning and clothes washing. She frequently skips meals and has lost a lot of weight. She said she requires prompting from her sister to shower and change her clothes regularly. Dr Young gave Ms Wills a Class 3 rating for Social and recreational activities whereas I have rated her a Class 4 for the reasons I have outlined above. Dr Young did not make a one-tenth deduction for a pre-existing condition which I have made for the reasons I have outlined above.
I note Ms Wills’ general practice file notes which date back to 2004. These confirm the history of her being prescribed initially Celapram, and then from 2016 Sertraline antidepressant medication. I note that she was also referred from time to time to the psychologist, Ms Nell Zanberg, for courses of psychological therapy for symptoms of stress and depression. The GP file notes which run through to September 2022 corroborate the history given to me by Ms Wills of her pre-existing condition.
I note a report dated 22 September 2020 which I believe was likely to have been written by Ms Wills’ GP, Dr Ashley Collard, although his name is not actually on the report.
Of relevance, the GP wrote: ‘Virginia Wills has been my patient since mid 2004. In that time I have seen her for numerous medical conditions, and also for prior episodes of stress relating to the breakdown of her marriage and issues regarding the single parenting of her son, who has had complex problems of his own. I am of course not at liberty to divulge medical details of third parties, but I am quite clear that despite other periods of adversity the patient has never had such a protracted and unremitting period of poor mental health.’
The GP also wrote: “Her low mood has documentation back to 2006, and she has been on some form of antidepressant for most of that time.”
The GP continued: ‘…The pertinent stressor actually pre-dates the current presentation significantly, having initially been provoked by the original commencement of formal complaint by the prior employee in mid 2018. This was one of the reasons for seeing a psychologist at that time, as the situation caused her considerable discomfort, which has persisted until this time.’
The GP documented : ‘…The patient first attended regarding the current episode of low mood and anxiety on 20 March 2020.’
This letter also confirms that Ms Wills had a pre-existing condition of depression and anxiety requiring treatment for many years prior to her work problems beginning in 2018.”
The appellant points out that the IME qualified on their behalf Dr Young, in fact opined that the work injury was temporary exacerbation only of her underlying condition.
The Medical Assessor further explained the deduction of one-tenth under s 323 as follows:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO
PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Prior long history of episodes of depression and anxiety for which she was continuously on antidepressant medication from 2004 and having intermittent periods of psychological therapy from a psychologist, Ms Nell Zanberg up until her work problems began in 2018.
At the time her work problems began in 2018, she reported being asymptomatic of her psychiatric condition, functioning well socially and occupationally but was continuing to take the antidepressant medication Zoloft 100mg daily.
b. 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:
Ms Wills’ pre-existing condition of treated and asymptomatic depression and anxiety is likely to have exacerbated her psychological reaction to her work stressors while working at the NSW Department of Transport from 2018 until she stopped working in March 2020 and to have contributed to her current level of permanent impairment.
The extent of the deduction is difficult or costly to determine so in applying the provisions of S.323(2), I assess the deductible proportion as one-tenth which is not at odds with the available evidence.”
A deduction can only be made if a pre-existing condition, abnormality of injury has contributed to the level of permanent impairment assessed. This depends on the evidence before the Medical Assessor and the exercise of clinical judgment by the Medical Assessor. In this case the available evidence establishes the deduction of one-tenth made by the Medical Assessor does not take proper account of the chronicity of the workers pre-existing psychological condition prior to the work injury. The worker had a long term pre-existing psychiatric condition for which she was receiving treatment. The Appeal Panel notes that the worker, after injury, is being treated by the maximum dose of anti-depressant medication Zoloft at the maximum dosage of 200mg daily. Prior to injury and as a result of her pre-existing condition she had been taking a therapeutic dose 100mg daily of Zoloft for some years. She had treatment for depression (as well as anxiety and stress) from 2004, with mental health entries recorded in her general practitioner’s notes in every single year since, with different antidepressant medications, psychologists consultation in 2017 prior to the start of work stress. In 2018, she had a change in antidepressant medication and a mental health care plan. The evidence reveals the chronicity of the workers prior condition and she had almost never been free from psychopathology for over a decade. She experienced a significant decompensation of this condition as a result of the work injury. The chronicity and similarity of the pre-existing condition has contributed to the overall level of permanent impairment assessed and the Panel noted her pre-existing injury was not a minor contribution. Having reviewed all of the evidence, a deduction of one-tenth is at odds with the available evidence and the Appeal Panel is satisfied that the available evidence supports a deduction of one-third to take into account the contribution of the pre-existing condition to the level of permanent impairment assessed by the Medical Assessor as a result of the work injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 February 2023 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: | W5418/22 |
Applicant: | Virginia Wills |
Respondent: | Secretary, Department of Transport |
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 Patrick Morris 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) | |
| Psychiatric/ Psychological | 11/11/2021 (deemed) | Chapter 11 WorkCover Guidelines | n/a | 24% | 1/3 | 16 | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | ||||||
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