State of New South Wales (Hunter New England Local Health District) v Fred
[2021] NSWPICMP 40
•7 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Hunter New England Local Health District) v Fred [2021] NSWPICMP 40 |
| APPELLANT: | State of New South Wales (Hunter New England Local Health District) |
| RESPONDENT: | Sonia Fred |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Douglas Andrews Professor Nicholas Glozier |
| DATE OF DECISION: | 7 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Applicant sustained a psychological injury in the course of her employment as a midwife; she had two earlier episodes of depression and was still having psychological and psychotropic treatment at the time of her employment with the respondent; AMS assessed 22% WPI and made no deduction for pre-existing condition; Held- Appeal Panel found that the AMS erred in failing to provide adequate reasons for concluding that no proportion of the current WPI was due to a pre-existing condition; the Appeal Panel concluded that a deduction of one-tenth should be made pursuant to section 323; MAC revoked; Appeal Panel assessed 22% WPI less 2.2% WPI resulting in an assessment of 19.8% which was rounded up to 20% WPI. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 February 2021the State of New South Wales (Hunter New England Local Health District) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Taktar, an Approved Medical Specialist, who issued a Medical Assessment Certificate (MAC) on 7 January 2021.
The respondent in the appeal is Sonia Fred (Ms Fred).
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).
RELEVANT FACTUAL BACKGROUND
Ms Fred developed a primary psychological injury in the course of her employment as a midwife at John Hunter Hospital with the deemed date of injury being 26 September 2017.
The matter was referred to the AMS, Dr Ash Takyar, on 28 October 2020 for assessment of whole person impairment (WPI) of the appellant’s psychological disorder attributable to the injury on 26 September 2017 (deemed).
The AMS examined the appellant on 9 December 2020 and assessed 22% WPI in respect
of the psychological disorder resulting from the injury deemed to have occurred on 26 September 2017.
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 Workers compensation medical dispute assessment guidelines.
Neither party sought an opportunity to make oral submissions to the Appeal Panel. The Appeal Panel does not consider it would benefit by hearing oral submissions from the parties. The Appeal Panel shall therefore determine the Appeal without an Assessment Hearing.
The appellant did not request that Ms Fred be re-examined by a Medical Assessor, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms Fred to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS 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 AMS 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.
The appellant’s submissions include the following:
· The AMS did not apply any deduction for a pre-existing psychological injury to Ms Fred's assessable impairment pursuant to s 323 of the 1998 Act.
· The AMS's failure to apply a deduction for previous psychological injury amounted to a demonstrable error and/or that his assessment was made on the basis of incorrect criteria.
· The AMS noted that Ms Fred had suffered depression in the year 2000 or 2001 following a relationship breakdown and bankruptcy and the notes indicated that she saw psychologist, Ms Karen Edwards. The AMS noted Ms Fred reported that in her first depressive episode of around 2000 or 2001, she recovered rather quickly within “a month or two” and with her second episode of 2003, she recovered completely after two months but remained on the antidepressant and continued to intermittently and then sporadically saw her psychologist. The AMS reported Ms Fred said that before the work injury, she had no active depressive or anxiety symptoms and enjoyed normal energy, enjoyment, concentration and memory and slept around eight hours a night.
· Despite recording the above history of significant pre-existing psychological symptomology, the AMS failed to apply a deduction for previous psychological injury to the current assessable impairment.
· In doing so, the AMS failed to provide any explanation as to Ms Fred’s significant pre-existing psychological injury had not contributed to her assessable impairment, noting she remained on medication following her second depressive episode in 2003 (at the very least, an antidepressant) and continued to intermittently and then sporadically attend upon her psychologist.
· It appeared the AMS proceeded on the mistaken assumption that Ms Fred’s alleged recovery from any pre-existing psychological injury amounted to a finding that her pre-existing psychological condition did not contribute to her assessable impairment. In making such a finding, the AMS placed undue weight on Ms Fred’s self-reporting that she had recovered from any pre-existing psychological injury. This finding was without foundation and was contradicted by the medical evidence as well as the history provided to the AMS, particularly, noting that Ms Fred remained on medication following her second depressive episode in 2003 (at the very least, an antidepressant) and continued to intermittently and then sporadically attend on her psychologist. This was a demonstrable error.
· A deduction of at least one tenth, if not greater, should be applied to Ms Fred’s current assessable impairment for pre-existing psychological injury.
The respondent’s submissions include the following:
· The evidence in the proceedings did not support the assertion by the appellant that a deduction be made pursuant to s 323 of the 1998 Act.
· The statement of Ms Fred dated 7 September 2020 (Application to Resolve a Dispute (ARD) pp 1-23) and curriculum vitae (ARD pp 24-27) provided evidence of Ms Fred’s pre-injury level of functioning.
· Ms Fred had a depressive episode in 2000/2001 (described in pars 29-34 of her statement) and in 2001-2003 (described in pars 38-47 of her statement).
· Ms Fred provided further evidence in her statement at pars 55 to 62 and 66, 67, 70, 89, 91, 92 and 94 concerning her life and work after 2003 including overseas travel, meeting her now husband in 2011 and getting married in 2014.
· Ms Fred’s statement and curriculum vitae provided evidence of her employment history, professional development and skills, and showed that she was highly functioning without any impediment to her social, personal or professional life. The evidence did not depict Ms Fred as suffering “significant pre-existing psychological symptomology”. The evidence did not show any pre-existing condition or abnormality which contributes to the impairment.
· For a deduction to be made under s 323 of the 1998 Act, there must be evidence that there is a pre-existing injury, condition or abnormality and that this contributes to the impairment [Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole) and that “assumption will not suffice” [Fire & Rescue NSW v Clinen 92013) NSWSC 629].
· The submissions of the appellant did not point to any evidence that established that a pre-existing condition which contributed to the impairment existed and/or was not considered by the AMS. The admission by Ms Fred that she sought treatment for psychological issues did not automatically require the AMS to make a deduction under s 323. There must be evidence supporting a deduction to be made.
· The approach to be taken with s 323 with psychological injury is set out in Paragraph 11.10 of the Guidelines.
· The decision in Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) provides further guidance in assisting an AMS assessing whether or not to make a deduction under s 323.
· The submissions filed by the appellant did not point to any evidence of symptomology which would support or justify or require the deduction under s 323 or how any pre-existing condition would make a difference to the outcome in terms of degree of impairment resulting from the work injury. The appellant did not provide any evidence that any pre-existing condition affected functioning prior to the work injury.
· The AMS on p 8 of the MAC described Ms Fred as presenting as someone “who is highly functioning prior to the injury, resilient and enjoyed her work”.
· The appellant submitted that the AMS placed undue weight on Ms Fred’s self reporting. However, without producing evidence to contradict or at least create doubt as to Ms Fred’s evidence, the AMS was correct in accepting it.
· The AMS rejected Dr Miller’s opinion. The appellant did not dispute the decision of the AMS to reject Dr Miller’s opinion. The appellant did not point out what medical evidence contradicted this decision.
· A nil deduction under s 323 is supported by the evidence and such a finding was open to the AMS. The AMS correctly assessed WPI having regard to the Guidelines and appropriate authorities.
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.
Though the power of review is far ranging it is nonetheless confined to the matters that can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS certificate is binding. Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In this matter the Registrar has determined that he is satisfied that at least one of the grounds of appeal under s 327(3)(d) was capable of being made out, in relation to the AMS’s application of s 323 of the 1998 Act.
Discussion
The Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
On p 4 of the MAC under “Details of any previous or subsequent accidents, injuries or condition”, the AMS wrote:
“Ms Fred did not describe any subsequent accidents, injuries or conditions unrelated to her work injury, but did report that she had suffered depression in the year 2000 or 2001 following a relationship breakdown and bankruptcy and the notes indicate that she saw psychologist, Ms Karen Edwards. She stated that she was seen intermittently, initially weekly then fortnightly and then monthly before sessions moved to every six months. She was prescribed citalopram (an SSRI) from 2000 to 2003 and when she was in the UK in 2003, began to wean off it with a GP in London but relapsed, returned home and was restarted on the medication and never ceased it as she did not want to relapse again. Ms Fred stated that she was on the medication for around 10 years. She reported that in her first depressive episode of around 2000 or 2001, she recovered rather quickly within ‘a month or two’ and within her second episode of 2003, she recovered completely after two months but remained on the antidepressant and continued to intermittently and then sporadically saw her psychologist. Just before the work injury, Ms Fred had no active depressive or anxiety symptoms and enjoyed normal energy, enjoyment, concentration and memory and slept around eight hours a night. She rated her mood pre-injury at 7-8/10 (where 1 is most depressed, 10 is most elated and 7-8 reflects euthymic mood).”
On p 6 of the MAC, under “Summary of injuries and diagnoses” the AMS wrote:
“Ms Sonia Fred is a 50-year-old female who had an inactive, but prior history of what was described as depression and possibly anxiety. She had an initial episode in the year 2000 or 2001 and recovered quickly within one or two months of antidepressant therapy. She was in remission on treatment and decided to wean her medication in 2003, but had a further episode and she returned to Australia from the United Kingdom, recommenced medication and found that she was able to recover within around two months but chose to remain on medication from that point to prevent further relapse. She saw a psychologist, with sessions gradually spacing out until they continued every six months for maintenance, but described enjoying normal mood without any active depressive or anxiety symptoms and she described normal psychosocial and occupational functioning and good resilience prior to the work injury commencing.
On review, Ms Fred presents with symptoms consistent with a DSM-5 post-traumatic stress disorder and a major depressive disorder as a result of the work-related trauma exposure, including exposure in a high-risk pregnancy team to deceased babies. Her condition is stable and permanent at the current time and she has had extensive treatment under two different psychologists, a treating psychiatrist for around three years and is prescribed a combination of two antidepressants, including one at a higher than usual dose, as well as adjunctive clonidine and amitriptyline, and her condition is permanent and stable and not likely to change by more than 3% in the next year with or without medical treatment.”The AMS on pp 7-8 of the MAC under “My opinion and assessment of whole person impairment” wrote:
“Ms Fred’s condition is stable and permanent at the current time and she has had
extensive treatment under two different psychologists, a treating psychiatrist for around three years and is prescribed a combination of two antidepressants, including one at a higher than usual dose, as well as adjunctive clonidine and amitriptyline, and her condition is permanent and stable and not likely to change by more than 3% in the next year with or without medical treatment.
In making that assessment I have taken account of the following matters:-
• matters of clinical history, mental state examination and documentation provided, including medical reports.
More specifically, I note the opinions of various psychiatrists. I agree with the previous treating GP, Dr ReVelle, who diagnosed PTSD, which is also the diagnosis provided by psychiatrist, Dr Michael Hong (March 2018) who diagnosed PTSD, major depressive disorder and alcohol use disorder. I agree with the diagnosis of post-traumatic stress disorder and major depressive disorder, but Ms Fred’s alcohol consumption is now in remission because she was able to significantly reduce her alcohol intake after a month long inpatient hospital admission in November 2018. I have also reviewed the report of Dr Anthony Dinnen. His report is missing some pages and therefore, his diagnosis is not clear. I have also reviewed the opinion of Dr Miller. I disagree with her diagnosis as I did not feel that there was any credible evidence of a longitudinal personality disorder.
Rather, Ms Fred presented as someone who is highly functioning prior to the injury,
resilient and enjoyed her work. I note the comments of other practitioners and it is not my view that she would meet the diagnostic criteria for borderline personality disorder under the DSM-5 and I further note that personality assessment is best completed longitudinally and that assessing personality is quite fraught cross-sectionally…”
On p 9 of the MAC, the AMS referred to Ms Fred’s statement and wrote:
“A statement of Ms Fred was reviewed. It noted a prior depressive episode in 2000 or 2001 in the context of bankruptcy and a relationship breakdown and it noted that she saw a psychologist in Penrith (Ms Karen Edwards) and that she continued to see her ‘on and off’ for a number of years and that she continued to see her for maintenance to help stay well. It described the context of her injury, symptoms and other difficulties.”
The appellant submitted that the AMS’s failure to apply a deduction for previous psychological injury amounted to a demonstrable error and/or that his assessment was made on the basis of incorrect criteria.
Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133 summarised at [81]-[90] the steps to be taken by a decision maker in respect of s 323 of the 1998 Act as follows:
“81. The assessment required by s 323 is one which must be based on fact, not assumptions or hypotheses: Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liq) [2013] NSWSC 365 at [89 (Elcheikh)]; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 at [33]; Ryder v Sundance Bakehouse [2015] NSWSC 526 at [40] (Ryder).
82. The process encompassed by s 323 requires the application of each of the following steps before reaching the ultimate conclusion of the existence of a pre-existing injury which has an impact on the assessment of the injury the subject of the worker’s claim.
83. first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
84. The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38] (Cole); Elcheikh at [126].
85. The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase ‘pre-existing condition or abnormality’ is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen).
86. A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
87. The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
88. It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].
89. Next in dealing with the application of s 323, the extent of the contribution, if any, of the pre-existing condition to the current impairment must be assessed in order to fix the deductible proportion. If the extent of the deductible proportion will be difficult or costly to determine, an assumption is made that the deductible proportion will be fixed at 10%, unless that is at odds with the available evidence: s 323(2) of the 1998 Act.
90. Each of these steps, and considerations, is a necessary element of a determination that an assessed whole person impairment is to be reduced by a deductible proportion by virtue of the application of s 323 of the 1998 Act.”
Schmidt J said in Cole at [30] that:
“[T]he assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality.”
In Ryder at [45] Campbell J observed that:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
In Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 25 the Court said at [43]:
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
Clause 11.10 of the Guidelines states:
“Pre-existing impairment
11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The Appeal Panel reviewed the evidence in this matter.
The AMS made a diagnosis of a post-traumatic stress disorder and a major depressive disorder. The AMS noted that Ms Fred had suffered depression in the year 2000 or 2001 following a relationship breakdown and bankruptcy and saw psychologist, Ms Karen Edwards initially weekly, then fortnightly and then monthly before sessions moved to every six months. The AMS reported that Ms Fred was prescribed citalopram (an SSRI) from 2000 to 2003 and that when she was in the UK in 2003, “began to wean off it with a GP in London but relapsed, returned home and was restarted on the medication and never ceased it as she did not want to relapse again”. Ms Fred stated that she was on the medication for around 10 years. The AMS noted that Ms Fred chose to remain on medication from that point in 2003 to prevent further relapse and saw a psychologist, with sessions gradually spacing out until they continued every six months for maintenance.
In her statement dated 7 September 2020, Ms Fred’s statement wrote:
“96. In January 2013 I moved to NEWCASTLE and commenced working for the HUNTER NEW ENGLAND AREA HEALTH SERVICE.
97. When I commenced there I was working in the Birth unit.
98. I was working as a midwife.
99. When I moved to NEWCASTLE we lived at BLACKSMITHS in rented for 12 months.
100. In 2014 we bought our current house in about February /March 2014 just before our WEDDING.
101. When I moved to NEWCASTLE I began attending SWANSEA CHANNEL MEDICAL PRACTICE.
102. I was getting my scripts for CIPRAMIL from this practice.
103. I was seeing JENNIFER THOMPSON at CHARLESTOWN.
104. I would see her once every couple of months to help with my feeling of being overwhelmed.”
In a report dated 3 March 2020, Dr Dinnen wrote:
“Past History:
The patient told me she suffered from depression when she was young. She was married ‘very young’, at 24, but they broke up three or four years later. Her husband had a business but that failed and they lost their home and car. They were living in Penrith at the time. She left him to stay with her parents in Penrith and then had treatment. ‘I was crying and I didn't stop for a week.’ She was diagnosed as suffering from depression and was treated with medication. She saw her local doctor intermittently through the years. At the time, she also saw a psychologist, someone who is ‘really nice’. That was Karen Edwards, who helped her a lot. However, she only had two weeks off work and was able to return to work at the time.
With regard to the medication, the patient told me she tried to withdraw it some years later, when she felt well. That was under medical supervision. However, she relapsed and then resumed treatment.
Pre-existing Impairment
None - see comments in the major report. There is no evidence of impairment, even though there was a pre-existing condition prior to the last three years or so. No adjustment should be made to the assessment for the current condition.”
In a report dated 17 June 2020, Dr Miller wrote:
“Ms Edwards reported previous contact with four different psychologists. She stated that in 2001, she saw Ms Karen Edwards in Penrith after her husband's bankruptcy. She stated that she saw this psychologist sporadically for twelve years and received
Cognitive Behaviour Therapy (CBT).”
In a report dated 12 March 2018, Dr Hong wrote:
“Ms Fred has a long history of mental health· symptoms, chiefly depression and anxiety. She reported a period of trauma growing up, between the ages of 5 and 13.
The perpetrator eventually passed away. Ms Fred first entered therapy in her 20's and sought psychological treatment again around 1999, after the collapse of her first marriage. She described stress at the time because her ex-husband had mismanaged their business, and she lost everything. In a similar time, she had a few miscarriages. Ms Fred consulted a psychologist and recalled being off work for four weeks at this time, Ms Fred started taking Cipramil to help her manage depression and anxiety symptoms. She was told that she suffered a major depressive disorder.
She subsequently felt well for a few years and then went to London to work. Ms Fred was working in a stressful environment, requiring long hours and she did not have much support in the UK. She consulted a GP with the aim of stopping her Cipramil. However, after a few months of being off Cipramil 20 mg, Ms Fred decompensated and became depressed again. By May 2003 she had returned to Australia and started consulting the same psychologist, Karen Edwards. She was Cipramil again [sic].After some time, Ms Fred was able to recover from this depressive episode. During her depressive episode, Ms Fred recalled that she could not function, she was not eating, and she did not even have the energy to brush her hair. Her personal hygiene deteriorated. She was never irritable.
Between 2004 and 2016 Ms Fred remained psychologically well and continued to take Cipramil 20mg. She continued to consult Karen Edwards a few times each year - during periods when she felt stressed.
After Ms Fred was married the second time she moved to Newcastle and then started consulting Jennifer Thompson, another psychologist, usually a few times a year.
Ms Fred has suffered recurrent depression and anxiety symptoms in the context of a number of traumatic events. She also has a strong genetic history of psychiatric illness. Ms Fred had been previously stabilised on an antidepressant medication and had benefited from intermittent but irregular consultation with a psychologist over the years. When Ms Fred tried to come off antidepressant medication she decompensated rapidly, and with the recommencement of the antidepressant medication, she was able to gain psychological remission. Ms Fred remained well since around 2004.
In the past 12 months Ms Fred reported that in the context of working in a stressful work environment, chronic staff shortage and reduced clinical support, and at the same time being exposed to a number of high-risk pregnancies and foetal deaths, she has gradually deteriorated with the re-emergence of depression and anxiety. Ms Fred developed a number of new psychiatric symptoms. She was subsequently diagnosed with Post Traumatic Stress Disorder. With treatment, she has only gained limited improvement and remains significantly impaired.”
The Appeal Panel noted the AMS found that Ms Fred had an inactive, but prior history of what was described as depression and possibly anxiety. He reported that just before the work injury, Ms Fred had no active depressive or anxiety symptoms and enjoyed normal energy, enjoyment, concentration and memory and slept around eight hours a night. She rated her mood pre-injury at 7-8/10 (where 1 is most depressed, 10 is most elated and 7-8 reflects euthymic mood). In answer to the question “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the AMS responded “No”.
The Appeal Panel was satisfied that Ms Fred had a pre-existing condition, namely, depression and anxiety and that this condition did not fully resolve. Ms Fred had two prior episodes of significant psychological illness or conditions before the work injury which related to events between April 2015 and 26 September 2017 (deemed date of 26 September 2017). Since the two prior episodes of psychological illness Ms Fred had to continue on Cipramil to help her manage symptoms of depression and anxiety and to prevent remissions. Ms Fred also continued to see a psychologist regularly and said in her statement that when she moved to Newcastle, where she commenced employment with the appellant, she began to see Jenifer Thompson once every couple of months. The Appeal Panel was satisfied that this was evidence of an actual pre-existing condition rather than a predisposition or susceptibility. The Appeal Panel inferred that the medication and regular consultations with a psychologist were necessary in order for Ms Fred to stabilise her pre-existing condition and stay well.
In circumstances where Ms Fred clearly had prior episodes of depression and anxiety and continued to take Cipramil and saw a psychologist regularly, the Appeal Panel considered that the AMS failed to provide adequate reasons for concluding that no proportion of the current WPI was due to a pre-existing condition.
It is necessary to next consider to what extent, if any, the pre-existing psychological condition contributes to the current impairment, assessed at 22% whole person impairment by the AMS. At [95] in Elcheikh it was stated that “An asymptomatic condition may or may not contribute to a resulting impairment”. Having regard to the statements in Elcheikh, it is necessary to consider the evidence as to the actual consequences of the pre-existing conditions.
Dr Hong, in his report dated 12 March 2018, noted that when Ms Fred tried to come off antidepressant medication she decompensated rapidly, and with the recommencement of the antidepressant medication, she was able to gain psychological remission. He reported that Ms Fred remained well since around 2004.
Dr Dinnen, in his report of 3 March 2020, considered that there was no evidence of impairment, even though there was a pre-existing condition prior to the last three years or so. He concluded that no adjustment should be made to the assessment for the current condition.
As noted above the AMS stated that Ms Fred reported that her first depressive episode was around 2000 or 2001, and the second episode in 2003 from which she recovered completely after two months but remained on the antidepressant and continued to intermittently and then sporadically saw her psychologist. The AMS noted that just before the work injury, Ms Fred had no active depressive or anxiety symptoms and enjoyed normal energy, enjoyment, concentration and memory and slept around eight hours a night.
Ms Fred stated that when she moved to Newcastle in January 2013, she got scripts for Cipramil from the Swansea Channel Medical Practice. She stated that she saw her psychologist at Charlestown every couple of months “to help with my feelings of being overwhelmed”.
The Appeal Panel finds the assertions that prior to this work injury Ms Fred was well, there was no evidence of impairment and she had no active depressive or anxiety symptoms needs to be viewed in the context of Ms Fred taking medication and having consultations with a psychologist every couple of months. So while she may have been well, in the sense that she was able to work and function, she was still having psychological and psychotropic treatment over a period of at least 12 years.
The Appeal Panel is of the opinion that the pre-existing condition was more likely than not on the balance of probabilities to have contributed to the Ms Fred’s current impairment. Therefore, the Appeal Panel finds a deduction is required for the pre-existing condition.
The final step is for the Appeal Panel to consider the amount of the appropriate deduction. Section 323(2) of the 1998 Act provides that if the extent of the deduction is difficult or costly to determine then it has to be assumed the appropriate deduction is one tenth unless this assumption is at odds with the available evidence. The Appeal Panel finds in this matter the extent of the deduction is difficult to determine and the appropriate deduction is one tenth.The Appeal Panel considers that a deduction of one tenth is not at odds with the available evidence. In summary, the Appeal Panel finds there is basis for a deduction under s 323 of the 1998 Act and the AMS erred in failing to make the same.
For these reasons, the Appeal Panel has therefore determined that the MAC dated 7 January 2021 given in this matter should be revoked. The new Medical Assessment Certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Ash Takyar and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body part or system | Date of injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological/psychiatric disorder | 26/09/2017 (deemed) | Chapter 11 | Not Applicable | 22% | 1/10th | 19.8% (rounded up to 20%) |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
Carolyn Rimmer
Member
Dr Douglas Andrews
Medical Assessor
Professor Nicholas Glozier
Medical Assessor
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