Snaidero v Australian Home Care Services Pty Ltd
[2023] NSWPICMP 514
•16 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Snaidero v Australian Home Care Services Pty Ltd [2023] NSWPICMP 514 |
| APPELLANT: | Narelle Joan Snaidero |
| RESPONDENT: | Australian Home Care Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 16 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Medical Assessor (MA) apportioned appellant’s permanent impairment between work injury and subsequent stressors to which appellant was exposed and which worsened her impairment; whether MA erred by doing so; Appeal Panel held Medical Assessor did err; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 August 2023 Narelle Joan Snaidero, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 March 2023.The appellant relies on the following grounds for 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, and
· the MAC contains a demonstrable error.
On 8 December 2023 a delegate of the President of the Personal Injury Commission (Commission) extended the time within which the appellant could lodge her appeal. The delegate was also satisfied, on the face of the application, that at least one ground for 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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 s328 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).
RELEVANT FACTUAL BACKGROUND
The appellant was employed by Australian Home Care Services Pty Ltd. She suffered a psychological injury as a consequence of her employment. She was assessed by consultant psychiatrist Dr Ben Teoh to have 15% whole person impairment (WPI). She claimed compensation from the respondent’s insurer pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from her injury.
The insurer arranged for the appellant to be examined by consultant psychiatrist Dr Alexy Sidorov, following it receiving the appellant’s claim. He assessed the appellant had 9% WPI from her injury. The insurer denied liability to meet the appellant’s claim.
The appellant then commenced proceedings in the Commission seeking determination of her disputed claim for compensation for permanent impairment. Given there was medical dispute between the parties, a delegate of the President referred the matter to the Medical Assessor to assess that medical dispute, which was described in the referral in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM 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 April 2017
Body part/s referred: Psychiatric / psychological disorder
Method of assessment: Whole person impairment”
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor provided the following summary in the MAC of the appellant’s injury and his diagnoses of her injuries:
“Ms Snaidero is a 46-year-old woman with symptoms consistent with a DSM-V diagnosis of persistent depressive disorder. She reported depressed mood and loss of pleasure in previously enjoyed activities for most of the day for more days than not for at least two years. She described insomnia, low energy, apathy, low self-esteem, poor concentration and depressive thoughts, including self-doubt and self-recrimination, feelings of worthlessness and feeling burdensome on others. She has never been without the symptoms described above for more than two months at a time. She has sometimes met the criterion for a major depressive disorder with melancholic features. She has symptoms of anxious distress, including fear of losing control, difficulty concentrating because of rumination and worry, and feeling keyed up or tense. There is associated functional impairment.
The first episode of major depressive disorder was caused by the circumstances of her
employment at Australian Home Care. Her symptoms improved to the subclinical range
after she started treatment with sertraline, which was stopped prematurely, and she
relapsed two months later while rehabilitating and returning to work. The initial depressive episode that had initially responded well to sertraline relapsed. It was some time before she resumed medication, by which time she had become treatment resistant.
Her capacity to cope with work subsequently fluctuated, and she had difficulties with her medications. She had marked cognitive symptoms caused by both the direct effects of major depression and by treatment with tricyclic antidepressants and selective serotonin reuptake inhibitors. Non-work-related stressors contributed to subsequent fluctuations in her mental health, particularly as they were thematically related to the problems she had dealt with when she developed the initial injury with Australian Home Care, namely carer burnout.
Her symptoms remain in the moderate range, with fluctuations. She has disengaged from treatment with her psychiatrist. Treatment has been adequate, evidence-based and consistent with treatment algorithms for managing treatment-resistant depression.
Treatment has been assertive, and she has reached maximum medical improvement. The presence of symptoms of anxious distress is typically a poor prognostic indicator associated with treatment resistance, longer duration and a poorer prognosis.”
The Medical Assessor rated the appellant’s impairment in the several categories of behaviour and activity comprising the Psychiatric Injury Rating Scale (PIRS), and detailed his ratings and reasons for the them in the PIRS rating form within the MAC. Neither party has taken issue with his ratings.
The Medical Assessor observed the median of his ratings was Class 3 and that the aggregate of his ratings was 15, which converted to 15% WPI. The Medical Assessor also said in the MAC that he had added 1% WPI “for treatment effect”. He said that an adjustment for the effects of treatment was warranted because the appellant had successfully returned to work in some capacity which he said was “a positive and substantial functional outcome”. The Appeal Panel observes that neither party took issue with the Medical Assessor making that adjustment for the effects of treatment.
Hence, the Medical Assessor assessed that the appellant’s total permanent impairment at the time of assessment was 16% WPI. The Medical Assessor however apportioned only 80% of that to the appellant’s work injury. He apportioned 20% to what he described as subsequent stressors that caused an aggravation of the appellant’s injury. His explanation for doing that was as follows:
“A 20% apportionment is required for the impact of subsequent stressors causing an
aggravation of the injury. I am satisfied that Ms Snaidero recovered on sertraline, stopped her medication prematurely and relapsed soon after in the context of working with other employers. If she had remained on antidepressants, she might have continued working and coped with the demands of the roles with Centacare and Save The Children. The temporal relationship between stopping medication and relapsing is convincing, particularly considering the severity of the major depressive episode during her employment with Australian Home Care and the haste with which medication was withdrawn soon after she entered remission.
The primary injury remains the injury sustained with Australian Home Care and is the more substantial contributor to whole person impairment. However, the contribution of
subsequent stressors (including work and non-work related as detailed) was substantial and greater than 10%. I assess their relative contribution to her whole person impairment at 20%.”
The Medical Assessor accordingly certified the appellant had 13% WPI from her work injury.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because neither party challenged the history the Medical Assessor obtained or challenged the Medical Assessor’s findings from his mental state examination of the appellant. What is at issue in this appeal is whether the Medical Assessor was correct to apportion the permanent impairment he assessed the appellant has between her workplace injury and what he described as subsequent stressors. That is not an issue in regards to which the Appeal Panel requires any further clinical data such that it would need to examine the appellant to obtain that data.
The appellant in her Application for Appeal requested the opportunity to present oral submissions to the Appeal Panel. Rule 128(2) of the PIC Rules permits an Appeal Panel to determine the proceedings solely on the basis of the written application. PIC7 stipulates similarly. The appellant did not indicate in her written submissions what element or aspect of this matter could not be addressed in her written submissions such that a hearing ought to be convened for her to make oral submissions. The Appeal Panel considers that she has sufficiently addressed the issue about which she has a grievance in her written submissions and, given that, and given that she has not indicated why it is necessary to have a hearing, the Appeal Panel declines her request to hold a hearing.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by apportioning part of her permanent impairment to subsequent stressors. The appellant submitted that the Medical Assessor assessed her impairment not as it was at the time she presented for assessment but on the basis of what her impairment would have been but for the relapse of her psychiatric illness due to her work with Centacare and Save the Children.
The appellant submitted that the Medical Assessor misapplied the law relating to causation because the Medical Assessor did not consider whether her workplace injury materially contributed to her whole person impairment. The appellant submitted that, in accordance with Secretary, New South Wales Department of Education v Johnson,[1] common law principles of causation apply to the assessment of the degree of permanent impairment a worker has resulting from an injury.
[1] [2019] NSWCA 321 (Johnson).
The appellant submitted that absent the Medical Assessor finding a “novus actus interveniens” as a consequence of her employment with Centacare and Save the Children Fund the Medical Assessor was wrong to make a “deduction” of the order of 20%.
The appellant further submitted, relying on Calman v Commissioner of Police[2] and Cluff v Dorahy Bros. (Wholesale) Pty Ltd,[3] that it did not matter that subsequent events may have contributed to her impairment because consistent with the authority of Calman and Cluff, an impairment can have multiple causes and so long as her work injury is a cause of her impairment then no deduction can be made for those subsequent events.
[2] [1999] HCA 60 (Calman).
[3] [1979] 2NSWLR 435 (Cluff).
The appellant further submitted that insofar as the Medical Assessor did not engage with the authority of Johnson, Calman and Cluff, he failed to provide adequate reasons for his assessment.
In reply, the respondent submitted that the Medical Assessor did not make any deduction from the permanent impairment he assessed the appellant to have on account of a previous injury or pre-existing condition or abnormality. The respondent submitted that the appellant’s contention that the Medical Assessor incorrectly applied a deduction under s323 is unfounded.
The respondent submitted that the appellant’s submissions do not demonstrate that it is readily apparent from the MAC that the Medical Assessor made an error with respect to his assessment of the medical dispute. The respondent submitted that the Medical Assessor’s apportionment of the appellant’s permanent impairment between her work injury and other factors was not an error. The respondent submitted that as to whether there was a novus actus interveniens was a legal issue and was not within the power of the Medical Assessor to determine.
The respondent submitted that the Medical Assessor considered all post injury employment and personal factors pertaining to the appellant and the Medical Assessor “appropriately apportioned a degree of the appellant’s impairment to reflect these factors”.
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 for appeal on which the appeal is made.
The Appeal Panel did not comprehend any of the submissions the appellant made to include a submission that the Medical Assessor applied s 323(1) of the 1998 Act. Rather, the gist of the appellant’s submissions was that the Medical Assessor ought to have applied common law principles of causation when determining whether the impairment he assessed the appellant to have, that is 16% WPI, resulted from her work place injury. The appellant contended, in substance, that because her workplace injury made a material contribution to her current permanent impairment, the Medical Assessor was wrong to reduce her impairment on account of other factors that also contributed to her impairment. The appellant essentially made that same submission, in different expressions, on numerous occasions throughout her submissions, but her complaint, at its heart, is that all of her impairment should be attributed to her work injury based on common law principles.
The Appeal Panel agrees with the appellant’s submissions.
The relevant provisions of the 1998 Act do not require a Medical Assessor to apportion the degree of permanent impairment a worker may have between a workplace injury and other factors that contribute to the permanent impairment, except in the circumstance described in s 323(1) of the 1998 Act. That circumstance is where a proportion of a worker’s permanent impairment from an injury is due to a pre-existing condition or previous injury. That is not the case here, and the Medical Assessor was clearly cognisant of that. That is apparent because he said at Part 8.e of the MAC that no proportion of the appellant’s permanent impairment was due to a previous injury, pre-existing condition or abnormality. He also said at Part 11.a of the MAC that there was to be no deductible proportion for a pre-existing condition or previous injury. He did not detail anywhere in the MAC that the appellant had a pre-existing condition.
As the appellant submitted common law principles or causation in tort are to be applied to determine the degree of permanent impairment a worker has from an injury.[4] Further, as the appellant also submitted an impairment a worker has can have multiple causes.[5]
[4] Johnson at [55].
[5] Calman [38]-[40], this case concerned an incapacity from an injury, but the principle extends to an impairment from an injury; ACQ Pty Ltd v Cooke [2009] HCA 28 at [25]; Cluff.
In this case, as the history the Medical Assessor obtained reveals, the appellant did achieve significant symptomatic resolution of her injury with treatment. She subsequently relapsed, however, when exposed to subsequent stressors. In other words, the subsequent stressors to which the appellant was exposed aggravated the symptoms from her workplace injury, resulting in deterioration of her function and consequently increasing her impairment.
In the Appeal Panel’s view, the evidence before it, which includes the history the Medical Assessor obtained, demonstrates that the increase in the appellant’s impairment that occurred following her exposure to subsequent stressors would not have occurred if she had not suffered the first injury. In such a circumstance there remains a causal connection between the appellant’s present permanent impairment and her workplace injury.[6]
[6] Johnson at [70]; State Government Insurance Commission v Oakley (1990) 10MVR 570; [1990] Aust Courts Reports 81-003.
Given that, the Medical Assessor erred by excluding a proportion of the permanent impairment he assessed the appellant to have on account of the stressors to which the appellant was exposed subsequent to her injury. There is no statutory mandate to do that. It was contrary to the common law principles of causation, which the Medical Assessor was required to apply when assessing the appellant’s permanent impairment from her injury.
Given that the Medical Assessor made that error, the Appeal Panel is required to correct it. The Appeal Panel assesses the 15% WPI the Medical Assessor assessed the appellant has to be the result of her injury. As mentioned above the Medical Assessor also increased the permanent impairment he assessed the appellant has by 1% WPI on account of the effects of treatment. It would seem that the Medical Assessor purported to do so pursuant to paragraph 1.32 of the Guidelines. That allows a Medical Assessor to increase the permanent impairment the assessor has assessed the worker to have where long term treatment has resulted in a substantial or total elimination of the worker’s permanent impairment and the worker would likely revert to the original degree of permanent impairment if treatment was withdrawn.
In this case, however, at the time the appellant’s permanent impairment from her injury was assessed there was neither substantial nor total elimination of her permanent impairment. Hence, paragraph 1.32 ought not to have been engaged by the Medical Assessor when assessing the degree of the appellant’s permanent impairment from her injury. However, given that neither party has raised that as an error, the Appeal Panel is unable to correct that error.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 March 2023 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: | W8109/22 |
Applicant: | Narelle Joan Snaidero |
Respondent: | Australian Home Care Services Pty Ltd |
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 Clayton Smith 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) |
| Psychological | 3 April 2017 | Chapter 11 | - | 16% | - | 16% |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0
3
0