Siemens Healthcare Pty Ltd v Flower

DETERMINATION OF APPEAL PANEL
CITATION:	Siemens Healthcare Pty Ltd v Flower [2024] NSWPICMP 308
APPELLANT:	Siemens Healthcare Pty Ltd
RESPONDENT:	Glenn Flower
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological Injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of a one-tenth deduction under section 323; there was no basis upon which to make a section 323 deduction beyond one-tenth and the Appeal Panel can discern no error in the failure by the Medical Assessor to make a deduction greater than one-tenth for reasons which were adequately explained and correspond to a correct evaluation of the evidence that was before him; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 February 2024 the employer Siemens Healthcare Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 January 2024.
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 assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that the worker undergo a re-examination. 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.

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

It is noted that the delegate’s decision refers to the respondent employer not having filed a notice of opposition. The Appeal Panel notes there is a notice of opposition included with the papers referred to the Appeal Panel.
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):
· Date of injury: 4 August 2021
· Body parts/systems referred: Psychiatry/psychological disorders
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)
1. Psychological Injury	4/08/2021	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	17%	1/10	15 %
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					15 %

The employer appealed. There is no complaint on appeal about the overall level of permanent impairment assessed of 17%. The appeal concerned only the extent of the deduction under s 323. The Medical Assessor made a one-tenth deduction to take account of pre-existing injury, condition or abnormality. In essence, the appellant submitted the deduction was inadequate.
In summary the appellant submitted that the Medical Assessor made an assessment on the basis of incorrect criteria and made demonstrable errors when assessing a deduction of one-tenth for reasons which included the following:
(a)    he failed to have regard to the worker’s significant psychosocial history;
(b)    he failed to have adequate regard to the clinical notes of the worker’s treating general practitioner (GP) Dr Carpenter who recorded that the workers symptoms were often fluctuating;
(c)    he failed to have adequate regard to the opinion of the worker’s treating psychiatrist Dr Griskalitis who opined that the worker had a “long standing low threshold to be distressed and irritated”;
(d)    he failed to have adequate regard to the clinical notes of the worker’s treating psychologist Dr Smith who opined that the worker presented with avoidant traits and borderline personality features which predisposed him toward workplace conflict;
(e)    he erred in applying the one-tenth deduction after having acknowledged that the available evidence was that the deductible proportion was large and a deduction of one-tenth would be at odds with the available evidence, and
(f)    he failed to adequately consider and/or refer to any of the clinical records of
Dr Carpenter, Dr Smitha and Dr Griskalitis and as such did not “take any note of the vulnerabilities identified by the applicant’s treating doctors in respect of the applicant’s mental heath”.
The appellant went onto submit as follows:
“even if the Medical Assessor’s commentary that the applicant persisting symptomology was stable prior to the work related incident is assumed to be correct, this of itself does not mean that there would be a deduction of one -tenth as per s 323(2) of the 1998 Act. There was no shortage of medical evidence before the Medical Assessor regarding the workers pre-existing condition and the evidence was at odds with the Medical Assessor conclusion that a one-tenth deduction should be made”.
The appellant submitted that they sought relief as follows:
“The MAC should be revied on the papers by the medical appeal panel (MAP) with reference to the history recorded in the clinical notes of Dr Carpenter, DR Griskalitis and Dr Smith and a deduction of greater than one -tenth should be applied pursuant to section 323 of the 1998 Act.”
In summary, the worker employer, Mr Glenn Fowler (the respondent), submitted that the Medical Assessor did not err and nor did he make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor.
The Medical Assessor recorded the following history of injury and history of a pre-existing condition as follows:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Flower grew up in Wagga, his dad was an accountant and mum taught singing and did part time job. Mr Flower became electrical contractor in Wagga and left home at the age of 24 years, moved to Sydney, got job in GEC in lighting industry, progressed to work, and got a degree in business. He shifted few companies, worked for Phillips, became marketing operations manager, shifted to Phillips medical, in the role of NSW sales manager, and ended up at Siemens Healthcare Pty Ltd.
He is currently residing mainly at his home, with wife (Charlotte) who works , he doesn’t have children, and has 3 dogs at home.
Mr Flower told me that his job was very stressful, and had difficult interactions talking to his boss about several issues. He was responsible for creating computer program, create data, and had tough couple of years esp 2021 due to COVID-19. It was a very difficult and stressful year for the organisation due to extraordinary amount of sales the business was writing.
In 2021, the business wrote significant number of sales. Mr flower was working in a high-pressure environment and felt under a great degree of stress throughout the year, which led to deterioration of his mental health. One of the stressful events that happened was that his manager modified the escalation prices across a range of equipment in the online quote and contract system for New Zealand. This was done without consulting Mr Flower, and he came across these changes when he couldn’t figure out the reason that the prices weren’t matching his memory. Mr flower spoke to spoke to his manager about this, and he became quite agitated with him.
Mr Flower was investigating price discrepancy on an MRI product in New Zealand where he could not get the prices to match. He rang his manager and discovered that the MRI product codes in the system had been modified. He went through the product codes with his manager and found numerous changes had been made, his manager became quite agitated and angry at him questioning the changes he had made, and he swore black and blue that some of the changes were not made by him.
On August 2, 2021, when the company was in lock down because of Covid, Mr Flower was involved in a team's meeting with his managers. They were having some discussions about engineers completing job information correctly and there were some discussions about other service providers entering the market. Mr Flower had previous experience in another company about these things and was speaking about his opinion, but they were dismissed by his manager. The meeting was getting too robust, and it was then decided to terminate the meeting for another occasion. After the meeting Mr Flower started to feel unwell and panicked.
At the meeting Mr Flower got agitated, upset and meeting was called off, that was his last day at work as well. Mr Flower had a panic attack, took some tablets, rang his doctor and he asked to come and see him. Mr Flower had some mental health problems before hand and thought he was doing alright. Mr Flower felt betrayed and couldn’t do anything. From that day, no one has tried to talk to him and no interaction with his employer.
Mr Flower has suffered from depression and anxiety and thought that he was doing ok, was seeing psychologist, and had some medication to help him. His symptoms got aggravated as things at work changed, with high amount of pressure, stress at work, operating at a level of arousal, and feeling stuffed out. It was very busy, with very harsh deadlines, on the day he just lost it.
Mr Flower told me that his symptoms got aggravated, he was not sleeping, started to have panic attacks, heart rate was going through the roof, experienced breathing problems, tight chest, sometimes he had to spend time in bed. He was trying to manage things on his own, it started 1-2 years before that, when in the year of COVID company asked them to take 1 day a week as a day off to use their accumulated leaves and so he didn’t have a decent break for last few years as most of the leaves were used up. At home Mr flower was pacing up and down and his wife was trying to settle him. His wife took off his mobile phone and assisted him to go to bed. He took some medication to help him settle down and sleep. This medication was prescribed by his doctor, Dr David Carpenter in 2017 and was called ‘Kalma’ and he would take 0.5 mg as required in case of feeling stressed or having panic attack.
·    Present treatment:
Mr Flower has psychology sessions every 3 weeks. He has not seen a psychiatrist earlier; his GP manages his medication. He has seen Dr Al Griskaitis, Psychiatrist in 2018, impression was he doesn’t meet criteria for major depression or personality disorder but did have some Borderline Personality Traits. He was advised to continue Vortioxetine 30 mg, Sodium Valproate 100 mg BD to 200 mg mane. He was advised to undertake meditation, reduce alcohol and psycho educated on the model of ‘the distress cycle’.
·    Present symptoms:
Mr Flower told me that he has created a little bubble, developed a different way of living, pushed away everything that causes anxiety. He lives in a bubble and feels safe there, does his household chores, Thursday does his gardening, does little errand at home, lives very close to shops and look after those things, goes out always with his wife for lunches.
Yesterday had a panic attack, it can be few times a month, may be better if not getting stressed, mood is ok most days when at home by self. His sleep is disrupted at night, may wake up in middle of night and has difficulty to fall asleep, gets some sleep in the day. He complained of poor motivation and ok in energy if exhausted may just stop to do anything at home and take rest. His appetite is up and down as well. No agoraphobic symptoms were reported by him.
·    Details of any previous or subsequent accidents, injuries or condition:
Mr Flower was first diagnosed with anxiety and depression before his issues at work, in 2015, and was put on medications.
He has been on following medications:
Epillim 300 mg
Brintellex 20 mg
Mesalazine
Temazepam and diazepam when needed.
Does breathing exercises when needed
·    General health:
Mr Flower had ulcerative colitis, and 75% of bowel was removed.
·    Drug and alcohol history:
Mr Flower drinks alcohol on a regular basis, he may have a bottle of wine a night, if not sleeping and it helps him to sleep and relax. He tries not to drink but may drink most nights in a week, no illicit drug use was reported.
·    Work history including previous work history if relevant:
Mr Flower has worked in GEC in lighting industry, progressed to work, and got a degree in business. He shifted few companies, worked for Phillips, became marketing operations manager, shifted to Phillips medical, in the role of NSW sales manager, and ended up at Siemens Healthcare Pty Ltd. He has not applied for workers compensation claim in the past.
·    Family History:
Mr Flower had no significant family history.
·    Social activities/ADL:
Mr Flower does some bits and pieces in his house, attends to vacuum, laundry, washing the dogs, and gardening. He enjoys when he goes out with his wife to the restaurant, has a good relationship, enjoys chats with her, enjoys sitting out in the backyard, spending time with dogs, goes to dog beach and enjoys that, as well.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Mental state examination done through video conference.
Mr. Flower was a 59-year-old male, who was well kempt and dressed appropriately, appeared clean and well groomed. He was cooperative and rapport was well established. Good eye to eye contact maintained and had spontaneous speech. Mood was up and down and had a restricted affect. There was no formal thought disorder and no symptoms of psychosis. He denied thoughts of self-harm or suicide. He was uncertain about his future and was worried how things have changed. He was oriented and had clear sensorium. He struggles to focus and finds hard to organize himself to do activities.”
The Medical Assessor summarised the injury and diagnosis as follows:
“summary of injuries and diagnoses:
In my opinion, the principle diagnosis is Adjustment Disorder with depressed and anxious mood, chronic type. The diagnosis is based on the presence of :
1. Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.
2. Significant impairment in social, occupational, or other important areas of
functioning.
Alcohol use disorder”
The Medical Assessor considered the worker consistent in his presentation both in examination and consistent with the other documentary evidence that was before him:
“consistency of presentation
His presentation was quite consistent as mentioned in the documents and during the examination process.”
The Medical Assessor explained that in his assessment he had taken account of the following:
“The review of documents, history and mental state examination of Mr Flower.”
The Medical Assessor had regard to the other evidence that was before him and made brief comments as follows:
“Dr Nabil Malik, psychiatrist in his IME report on 06 December 2021, made a diagnosis of adjustment disorder with mixed anxiety and depressed mood and I agree with the diagnosis.
Dr Nabil Malik, psychiatrist in his IME report on 22 March 2023, made a diagnosis of major depressive disorder with anxious distress and I differ with the diagnosis. I have made a diagnosis of adjustment disorder with mixed anxiety and depressed mood-chronic type. Dr Malik made a WPI rating of 17 %. In my opinion the WPI is 15 %, my assessment differs mainly in category of Employability (class 4) for the reasons mentioned below in the table. He also warrants an adjustment for pre-existing condition, and I have made a deduction of 1/10 to WPI score.
Dr Frank Chow, psychiatrist in his IME report on 19 April 2022, made a diagnosis of chronic adjustment disorder and I agree with the diagnosis.
Dr Frank Chow, psychiatrist in his IME report on 06 January 2023, made a diagnosis of chronic adjustment disorder and I agree with the diagnosis. Dr Chow made a WPI rating of 22%. In my opinion the WPI is 15 %, my assessment differs mainly in category of Social functioning (class 2), and Employability (class 4) for the reasons mentioned below in the table. He also warrants an adjustment for pre-existing condition, and I have made a deduction of 1/10 to WPI score.”
Dr Nabil Malik, psychiatrist in his file review report on 07 August 2023, made a WPI rating of 13 %. In my opinion the WPI is 15 %, my assessment differs mainly in category of Employability (class 4) for the reasons mentioned below in the table. He also warrants an adjustment for pre-existing condition, and I have made a deduction of 1/10 to WPI score. I don’t believe he warrants a deduction of 30% as mentioned by Dr Malik as his symptoms were stable before the injury and he was functioning well and able to hold a job.”

The Medical Assessor then set out the following in respect of the deductible proportion:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
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.”
When the MAC is read as a whole and in consideration of the reasoning applied by the Medical Assessor at various other points in his MAC, particularly when he addresses the opinion evidence of the IMEs qualified on behalf of the parties and as set out above, it is very clear to the Appeal Panel that the above sentence is so at odds with the rest of the MAC and that it is expressed erroneously. It is clear from the rest of the MAC that the Medical Assessor considered that a one-tenth deduction was not at odds with the available evidence.
The Medical Assessor is required to reach an independent opinion based on the exercise of his own clinical expertise and judgment. The Appeal Panel noted that the Medical Assessor explained that his opinion that there should be a deductible proportion from the opinion of
Dr Chow the IME qualified on behalf of the worker who made no s 323 deduction and the Medical Assessor further very clearly explained why his opinion in regard to the extent of the deductible proportion differed from the revised opinion of Dr Mallik. The Medical Assessor clearly explained as follows:
“He also warrants an adjustment for pre-existing condition, and I have made a deduction of 1/10 to WPI score. I don’t believe he warrants a deduction of 30% as mentioned by Dr Malik as his symptoms were stable before the injury and he was functioning well and able to hold a job.”
Whilst the issue of whether a pre-existing condition is asymptomatic at the time of injury is a factor to be taken into account, it is not determinative but rather the Medical Assessor must use his own clinical expertise and judgment having due regard to the history taken and the other clinical and opinion evidence before him.
The appellant refers to the Medical Assessor failing to have adequate regard to the following:
(a)    the clinical notes of the worker’s treating GP Dr Carpenter who recorded that the workers symptoms were often fluctuating;
(b)    the opinion of the worker’s treating psychiatrist Dr Griskalitis who opined that the worker had a “long standing low threshold to be distressed and irritated”, and
(c)    he failed to have adequate regard to the clinical notes of the workers treating psychologist Dr Smith who opined that the worker presented with avoidant traits and borderline personality features which predisposed him toward workplace conflict.
It must be remembered that it is not the contribution to injury that is taken into account in making a s 323 deduction but it is the contribution to the level of permanent impairment assessed that is the relevant test. That is, vulnerabilities in personality to workplace conflict, or whether that conflict results in an injury, are not relevant. What is relevant is the contribution of the pre-existing condition, abnormality or injury to the overall level of permanent impairment assessed as a result of injury.
A deduction can only be made under s 323 if the pre-existing condition has contributed to the overall level of permanent impairment assessed. The permanent impairment assessment is based upon rating of the psychiatric impairment rating scale (PIRS) categories. The evidence, including the evidence referred to in the appellant’s submissions, shows that the worker had a pre-existing psychological condition that resulted in fluctuating levels of impairment over time before injury but which at the time of injury was stable and not resulting in impairment. It does not establish anything other than some limited social impairment at various times prior to injury. However importantly at the time of injury the Medical Assessor notes, consistent with the other evidence before him, that the workers psychological symptoms were stable and he was functioning well and able to hold a job. Neither is there any information about the characteristics of his current symptoms or associated impairment that would indicate the pre-existing condition made a more substantial contribution to the latter. A thorough review of the clinical and medical opinion that was before the Medical Assessor does not establish anything other than the correctness of taking the pre-existing condition into account and that a deduction of one-tenth as not at odds with the available evidence before the Medical Assessor. There was no basis upon which to make a s 323 deduction beyond one-tenth and the Appeal Panel can discern no error in the failure by the Medical Assessor to make a deduction greater than one-tenth for reasons which were adequately explained and correspond to a correct evaluation of the evidence that was before him.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 January 2024 should be confirmed.

[2024] NSWPICMP 308

22 May 2024