State of New South Wales (Mid North Coast Local Health District) v Hennessey

Case •

[2024] NSWPICMP 219

•

11 April 2024
DETERMINATION OF APPEAL PANEL
CITATION: State of New South Wales (Mid North Coast Local Health District) v Hennessey [2024] NSWPICMP 219
APPELLANT: State of New South Wales (Mid North Coast Local Health District)
RESPONDENT: Deborah Irene Hennesey
APPEAL PANEL
MEMBER: Marshal Douglas
MEDICAL ASSESSOR: Michael Hong
MEDICAL ASSESSOR: Graham Blom
DATE OF DECISION: 11 April 2024
CATCHWORDS: 

WORKERS COMPENSATION - Whether respondent suffered a subsequent condition; whether Medical Assessor (MA) had regard to deterioration of respondent’s impairment due to stressor to which respondent was exposed subsequent to her injury; whether MA had proper regard to clinical records of the respondent’s treating psychiatrist; Appeal Panel held the respondent did not suffer a subsequent condition, that the appellant’s permanent impairment resulted from her injury, and that the MA had regard to all the evidence; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 18 December 2023 the State of New South Wales (Mid North Coast Local Health District) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 November 2023.

  2. 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, and

    ·        the MAC contains a demonstrable error.

  3. The delegate is satisfied that, on the face of the application, 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) for appeal on which the appeal is made.

  4. 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 s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

  5. 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

  1. Deborah Irene Hennesey, the respondent, commenced employment with the appellant in 2008 as a clinical psychologist. Due to events that occurred between 2010 and 30 January 2021 she suffered a psychological injury. She has been treated by psychiatrist Associate Professor Savio Sardinha for her injury. The respondent had been consulting Associate Professor Savio Sardinha for chronic fatigue syndrome and related anxiety, cognitive and emotional difficulties consequent upon an Epstein Barr viral infection, prior to her suffering her psychological injury.

  2. On 30 November 2022 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 22% whole person impairment (WPI). The respondent’s solicitors indicated that the respondent relied upon a report of psychiatrist Dr Glen Smith dated 28 November 2022 in support of her claim and they provided the insurer with a copy of that report with their correspondence.

  3. The appellant’s solicitors organised for the respondent to be examined by psychiatrist Dr Abhishek Nagesh on 1 March 2023 so as to respond to the respondent’s claim. In a report dated 14 March 2023 Dr Nagesh advised he assessed the appellant had 19% WPI. He also advised that he apportioned 80% of that to the respondent’s psychological injury and 20% to the respondent’s chronic fatigue syndrome “and her parent’s ill health”. The history Dr Nagesh obtained included the respondent’s mother had dementia and that the respondent had reported that this had not made her depressed or anxious. Dr Nagesh nevertheless found that her parent’s ill health was a contributing factor to her psychiatric presentation.

  4. On 29 May 2023 the insurer wrote to the respondent notifying her under s 78 of the 1998 Act that it disputed she was entitled to compensation under s 66 of the 1987 Act, on the basis that it had not received a “finalised opinion” from Dr Nagesh. It advised her that it was of the view that the degree of her permanent impairment is “currently unascertainable”.

  5. The Appeal Panel notes that following that, Dr Nagesh issued two supplementary reports to the appellant’s solicitors dated 7 June 2023 and 10 July 2023. He indicated in his report of 7 June 2023 that the appellant’s solicitors had asked him to consider whether there was a basis to apportion part of the respondent’s permanent impairment to a deterioration in her condition that the appellant’s solicitor had said had been caused by a complaint that had been made about the respondent to “AHPRA”, which the Appeal Panel notes is the acronym for the Australian Health Practitioner Regulation Agency. Dr Nagesh responded that the respondent’s depressive and anxiety symptoms had become worse in the context of a complaint having been made to AHPRA but he also said that that deterioration in her depressive and anxiety symptoms had not contributed to her impairment and hence these was no basis to apportion any part of her permanent impairment to the deterioration caused by the AHPRA complaint.

  6. It would seem from his report of 10 July 2023 that following his report of 7 June 2023 the appellant’s solicitors provided him with the clinical notes of Associate Professor Sardinha and asked whether these would change his opinion regarding whether any part of the respondent’s permanent impairment should be attributed to the AHPRA complaint. Dr Nagesh noted that Associate Professor Sardinha had recorded that the respondent felt stressed after she was interviewed by the Health Care Complaints Commission and had been preoccupied by wanting to prove that she was not the anonymous complainant. Dr Nagesh further noted that Associate Professor Sardinha had also recorded the respondent remained agitated with racing thoughts. Dr Nagesh said there had been a significant deterioration in the respondent’s mental state since the complaint to AHPRA and because of that he attributed 20% of the respondent’s WPI to the AHPRA complaint.

  7. It is unclear whether those further reports of Dr Nagesh were provided to the respondent, but in any event subsequent to Dr Nagesh providing them to the appellant’s solicitors, the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation for permanent impairment from her psychological injury. The matter found its way to Commission member Ms Rachel Homan who, with the consent of the parties, remitted it back to the President so that it could be referred to the Medical Assessor to assess the medical dispute between the parties relating to the degree of the respondent’s permanent impairment from her injury deemed to have happened on 30 January 2021.

  8. Thereupon the medical dispute was referred to the Medical Assessor to assess.

  9. The Medical Assessor examined the respondent on 15 November 2023. The history he obtained relating to the occurrence of the respondent’s injury was that the respondent’s most significant problems in her workplace occurred after June 2020 and related to interactions the respondent had with another member of staff in the period to January 2021. The Medical Assessor did not detail in the history he obtained the complaint that had been made about the respondent in November 2021 to AHPRA.

  10. The history the Medical Assessor obtained also included that the respondent had a pre-existing condition of a relapsing depressive disorder and anxiety disorder, which related to her older sister dying of anorexia nervosa. The Medical Assessor noted that the respondent had been treated by Professor Beaumont for that who diagnosed her with dysthymia associated with prolonged grief.

  11. The Medical Assessor assessed the respondent’s impairment by reference to the criteria of Chapter 11 of the Guidelines. He assessed she had an overall permanent impairment of 19% WPI. No challenge has been made regarding that. He also assessed that a proportion of her permanent impairment was due to her pre-existing condition. That pre-existing condition was recurrent depressive disorder and generalised anxiety. The Medical Assessor assumed in accordance with s 323(2) that the deductible proportion for that for the purposes of s 323(1) was 10%. The Medical Assessor also noted the respondent had a further pre-existing condition of attention deficit disorder but considered this did not contribute to the respondent’s permanent impairment.

  12. Consequently, the Medical Assessor assessed, and certified, that the degree of the respondent’s permanent impairment from her injury deemed to have happened on 30 January 2021 was 17% WPI.

  13. The challenge the appellant makes to the MAC in its appeal is that the Medical Assessor did not apportion any part of that to a deterioration of the respondent’s condition that it says occurred following the complaint that was made about the respondent to AHPRA. It also challenges the s 323 deduction of 10%, suggesting it was at odds with the evidence.

PRELIMINARY REVIEW

  1. 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.

  2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established either of the grounds for appeal on which she relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]

    [1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

  1. 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

  1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

  2. In summary, the appellant submitted that the Medical Assessor erred by failing to take a history relating to the complaint about the respondent to AHPRA. The appellant submitted that the Medical Assessor failed to have adequate regard to the notes of Associate Professor Sardinha who had detailed a deterioration in the respondent’s symptoms after the respondent became aware of the AHPRA complaint. The appellant submitted that the Medical Assessor failed to have adequate regard to the reports of Dr Nagesh, the last two of which also detailed a deterioration in the respondent’s symptoms after the complaint had been made about her to AHPRA.

  3. The appellant submitted that the Medical Assessor should have apportioned part of the respondent’s permanent impairment to the deterioration caused to the appellant from the complaint about her to AHPRA, which was a non-work-related incident and which occurred subsequent to her work injury and the appellant submitted the Medical Assessor erred by failing to address and deduct if appropriate any proportion of the respondent’s impairment that was due to her subsequent deterioration.

  4. The appellant also submitted that the Medical Assessor should have made “a deduction greater than 10%” because “a deduction of 10% is clearly at odds with the available evidence”. The Appeal Panel assumes that this submission of the appellant relates to the deduction the Medical Assessor made under s 323(1) of the 1998 Act. The appellant did not identify in its submissions what the evidence was that suggested that the assumption the Medical Assessor made under s 323(2) was wrong.

  5. In reply, the respondent facilely submitted that the Medical Assessor is an experienced assessor and his findings were based on various considerations, the respondent’s presentation and the medical reports before him and, having conducted numerous psychiatric assessments, his opinion should be preferred.

FINDINGS AND REASONS

  1. 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.

  2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

  3. It is obvious to the Appeal Panel that the Medical Assessor did have regard to the clinical records of Associate Professor Sardinha and also to the reports of Dr Nagesh. It is obvious because he referred to them in the MAC. The Appeal Panel considers that the Medical Assessor detailed sufficiently in the MAC of what was relevant from that material for the assessment he had to make of the degree of the respondent’s permanent impairment from her injury.

  4. The Appeal Panel considers that it would have been preferable for the Medical Assessor, for the sake of completeness, to detail in the MAC the stressor to which the respondent was exposed her subsequent to her injury in the form of the complaint about her in November 2021 to AHPRA. This did have an impact on her symptoms. However, it did not result in the respondent suffering a psychiatric condition that was distinct from her workplace injury. It did not result in her suffering any new symptoms, but it did have some impact on severity of her symptoms that she had been suffering as a consequence of her workplace injury. The Panel noted Dr Abhishek Nagesh gave the same opinion in his first supplementary report but in his second supplementary report, he changed his opinion but did not explain why, only that he concluded she had suffered a deterioration, without discussion of her symptoms or impairment.

  5. An impairment of a worker can have multiple causes.[2] Here the permanent impairment the respondent had was primarily a consequence of the injury she suffered on 30 January 2021, but also, although to a much lesser extent, the stressor to which she was exposed in November 2021. Further, common law principles of causation in tort are to be applied when assessing the degree of permanent impairment a worker has from an injury.[3] And because of that, no part of the respondent’s permanent impairment can be apportioned to the subsequent stressor in November 2021.

    [2] Calman v Commissioner of Police [1999] HCA 60 at [38]-[40] This case concerned an incapacity from an injury, but the principle extends to an impairment from an injury; AZQ Pty Ltd v Cooke [2009] HCA 28 at [25]; Cluff v Dorahy Bros (Wholesale) Ptd Ltd [1979] 2NSWLR 435.

    [3] Secretary, NSW Department of Education v Johnson [2019] NSWWCA 321 at [55].

  6. In this case the respondent’s symptoms from her work injury were exacerbated or worsened from the subsequent stressor to which she was exposed in November 2021. That worsening of her symptoms would necessarily not have occurred had she not suffered her injury. There is a direct causal connection between any flare up or worsening of her symptoms from that subsequent stressor and the injury she suffered in her workplace. This is not a situation that a discrete part of the respondent’s permanent impairment can be attributed to the subsequent stressor. Both events, but principally her work injury, have combined together to result in her current permanent impairment. Consequently, her presentation at the time of assessment by the Medical Assessor in terms of her functioning in the PIRS, is causally connected to her work injury and hence, the degree of her permanent impairment as assessed by the Medical Assessor is to be attributed to that work injury.[4] The Appeal Panel consequently determines that the assessment by the Medical Assessor that the degree of permanent impairment of the respondent from her injury was 17% does not involve error.

    [4] Johnson at [17] and [126]

  7. The Appeal Panel also considers the Medical Assessor was correct to assume in accordance with s 323(2) of the 1998 Act that the deductible proportion to be made under s 323(1) was 10%. He concluded from the evidence before him, including the history he obtained, that the respondent was high-functioning at the time of her injury and that her pre-existing depression and anxiety had relapsed and contributed to her symptoms and impairment. He was correct to conclude that. Whilst the Medical Assessor did not explicitly state in the MAC that it would be difficult or costly to determine precisely the contribution the respondent’s pre-existing recurrent depression and anxiety made to her permanent impairment from her injury, it is apparent, it seems to the Appeal Panel, that the Medical Assessor was of that view, and the Appeal Panel agrees with that. The Appeal Panel considers the assumption the Medical Assessor made under s 32392) was not at odds with the evidence that the respondent was a high functioning individual prior to her injury, notwithstanding her pre-existing condition, and the serious and substantial decompensation she suffered due to her injury.

  8. The Appeal Panel finds that the Medical Assessor has applied the correct criteria to assess the degree of the respondent’s permanent impairment from her injury.

  9. For these reasons, the Appeal Panel has determined that the MAC issued on 20 November 2023 should be confirmed.


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