State of New South Wales (Southern NSW Local Health District) v Atkins

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (Southern NSW Local Health District) v Atkins [2021] NSWPICMP 241
APPELLANT:	State of New South Wales (Southern NSW Local Health District)
RESPONDENT:	Jeanette Atkins
APPEAL PANEL:	Member William Dalley Dr Julian Parmegiani Dr Douglas Andrews
DATE OF DECISION:	23 December 2021
CATCHWORDS:	WORKERS COMPENSATION- Allegation of error with respect to application of section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); the Medical Assessor noted pre-existing persistent depressive disorder and alcohol misuse disorder; 1/10 deduction applied pursuant to section 323 of the 1998 Act on the basis of pre-existing anxiety and depression; allegation of error by way of failure to take into account the alcohol misuse disorder; the Panel Medical Assessors agreed that alcohol misuse disorder may exacerbate depression, but it is not appropriate or possible to separately assess contribution to impairment; it was the depressive component that led to the contribution rather than the consumption of alcohol; any contribution to extent of impairment measured in the PIRS areas of function following the subject injury did not break the chain of causation and did not warrant deduction, applying the reasoning in Secretary, New South Wales Department of Education v Johnson; Held - the deduction assessed was appropriate in the circumstances and no error was demonstrated; Medical Assessment Certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 September 2021 the State of New South Wales (in right of the Southern NSW Local Health District) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 August 2021.
The State of New South Wales (Southern NSW Local Health District) (the appellant) relies on the following grounds of appeal under section 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 grounds 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 section 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, 4^th ed 1 April 2016 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The respondent to this appeal, Jeanette Atkins, commenced employment in 2016 as a Medical Administrative Officer with the Southern NSW Local Health District (represented in these proceedings as the State of New South Wales).
Ms Atkins suffered a psychological injury as a result of a number of incidents in the workplace. The injury was deemed to have occurred on 26 June 2020. Ms Atkins consulted her general practitioner and was referred to a psychologist for counselling. Attempts to return to work under different conditions were unsuccessful
Ms Atkins was examined by a psychiatrist, Dr Peter Young, at the request of the insurer in September 2020. Dr Young assessed Ms Atkins as having suffered an aggravation of a persistent depressive disorder. Dr Young also noted a long-term history of Alcohol Misuse Disorder which contributed to the exacerbation of depressive symptoms.
In March 2021 Ms Atkins was assessed by a psychiatrist, Dr Richa Rastogi, at the request of Ms Atkins’s legal advisers. Dr Rastogi diagnosed Ms Atkins as suffering an exacerbation of a Major Depressive Disorder with Alcohol Misuse Disorder as a comorbidity. Dr Rastogi assessed Ms Atkins as suffering 15% whole person impairment (WPI). She made no deduction for any pre-existing condition, abnormality or previous injury.
Ms Atkins’s solicitors made a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 in accordance with the report of Dr Rastogi.
Ms Atkins was again assessed by Dr Young on 6 May 2021. Dr Young maintained his diagnosis of persistent depressive disorder and alcohol use disorder. He felt that Ms Atkins had not achieved maximum medical improvement but, at the request of the insurer, assessed Ms Atkins as suffering 13% WPI as a result of the subject injury.
The insurer denied liability for lump-sum compensation on the basis that Ms Atkins had not reached maximum medical improvement and that the level of impairment was below the relevant threshold.
An Application to Resolve a Dispute was filed in the Commission and consent orders were made for referral of the dispute to the Medical Assessor. Ms Atkins was examined by the Medical Assessor on 20 August 21. The Medical Assessor diagnosed an exacerbation of a Persistent Depressive Disorder with intermittent Major Depressive episodes and a pre-existing Alcohol Use Disorder, unrelated to her employment.
The Medical Assessor diagnosed Ms Atkins as suffering 17% WPI at the time of examination. The Medical Assessor assessed Ms Atkins as having a pre-existing condition and deducted one tenth for that pre-existing condition, assessing 15% WPI (after rounding) resulting from the subject 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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because neither of the grounds of appeal was made out.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor had failed to consider the impact of Ms Atkins’s pre-existing alcohol use disorder in making his assessment of deduction to be made pursuant to section 323 of the 1998 Act. The Medical Assessor had not provided reasons for making no deduction in respect of the alcohol use disorder and that the alcohol use disorder should have been separately considered.
The respondent submitted that there was no basis on the evidence to conclude that any proportion of the WPI assessed by the Medical Assessor was due to the alcohol use disorder and therefore no requirement for the Medical Assessor to consider the alcohol use disorder. The Medical Assessor had agreed with Dr Young’s diagnosis, accepting that there was a pre-existing alcohol use disorder, but it did not follow that this contributed to the impairment assessed upon examination.

FINDINGS AND REASONS

The procedures on appeal are contained in section 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[1] 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.
[1] [2006] NSWCA 284.
The Medical Assessor recorded a history of workplace incidents which led to the subject injury. He noted a history of excessive alcohol consumption and the history of drinking 6 to 10 standard drinks, three times per week, noting this had increased after the stressful incidents in the workplace commenced. The Medical Assessor noted the effects of heavy drinking with a number of falls whilst intoxicated. He noted that Ms Atkins reported developing a tolerance to alcohol, requiring greater consumption for the same effect.
The Medical Assessor noted the history of employment in the ACT Public Service from 1984 to 2006 after which Ms Atkins moved to Tathra on the New South Wales south coast, working for the Bega Valley Shire Council between 2007 and 2016. She had then worked as a security guard for a time and then commenced working in medical administration in 2018.
The Medical Assessor recorded Ms Atkins’s psychological history:
“In my opinion Ms Atkins has had an exacerbation of her Persistent Depressive Disorder with intermittent Major Depressive episodes, with current episode according to DSM-5 diagnostic criteria. Ms Atkins gives a history of recurrent Depressive episode since the age of 28 or 29 including having had treatment supervised by a psychiatrist in Canberra for two or three years and being on antidepressant medication over much of the intervening period. Her current Major Depressive episode was precipitated by the work stress she experienced in her employment at Southern NSW Local Health District in the period from March 2020 until she stopped work in February 2021. Despite stopping work her condition remains clinically significant.
Ms Atkins also has an Alcohol Use Disorder which predated her work-related problems. I am not of the opinion her Alcohol Use Disorder is unrelated to her work injury.”
Paragraph 8e of the MAC is as follows:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes. Ms Atkins has had a Persistent Depressive Disorder since the age of 28 or 29. The work stressors exacerbated this condition caused to develop a Major Depressive episode as part of that condition. I believe a 1/10 deduction for this pre-existing condition is appropriate.”.
The Medical Assessor recorded that he agreed with Dr Rastogi’s diagnosis of “Persistent Major Depressive Disorder with Exacerbation and Alcohol misuse Disorder”. In considering the assessment performed by Dr Rastogi, the Medical Assessor explained:
“Dr Rastogi did not make a deduction for a pre-existing condition whereas I have made a deduction to take into consideration the fact that she had a long history of Persistent Depressive Disorder and was on antidepressant medication at the time of the work stressors began. Dr Rastogi did note that ‘There is history of chronic low-grade depression since adolescent years but formally diagnosed at the age of 28 years. She received counselling and saw psychiatrist. She was commenced on antidepressant Sertaline and has trailed (sic – trialled) other antidepressants on and off with brief periods of unmedicated’”.
The Medical Assessor noted that Dr Young diagnosed “temporary exacerbation of Persistent Depressive Disorder and long-term history of Alcohol Misuse Disorder” which the Medical Assessor said were “similar to the diagnoses I have given Ms Atkins”.
The Medical assessor also noted that, in his report dated 7 June 2021, Dr Young had recorded:
“Ms Atkins reported at my initial assessment that she had past history of depression and ongoing symptoms of dysthymia. She did not report that these symptoms caused any more than perhaps at most mild impairment in social and recreational functioning and social and recreational activities domains of the PIRS.
Applied to the PIRS table this would result in a 1% deductible WPI from the figure of 13% from my previous report, noting also that I did not consider her to have reached MMI at that time.”
Section 323 of the 1998 Act provides:
“323 DEDUCTION FOR PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(1)     In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note : So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4)     The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
Note : Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.”
The appellant appropriately accepts that the extent of the deduction pursuant to section 323 “is difficult and costly to determine in terms of the prior PDD (Persistent Depressive Disorder)” but submits “we consider that the MA [Medical Assessor] has erred in his failure to consider whether the AUD [Alcohol Use Disorder] ought also to result in a deduction under section 323 of the WIMA [the 1998 Act]”.
The Panel takes the view that the Medical Assessor was aware of, and considered, all of the pre-existing psychiatric conditions: “persistent depressive disorder” and “alcohol use disorder”. He deducted one tenth of his determined WPI to cover the contribution of both these diagnoses. Alcohol use disorder may cause or exacerbate depression or anxiety, and it is not possible or appropriate to determine the exact contribution of each pre-existing condition. It is sufficient to note that the pre-existing conditions taken together contributed to Ms Atkins’ impairment in a meaningful way.
The Panel considers that the consumption of alcohol is not the factor that contributes to the level of psychological impairment assessed. Rather, it is the pre-existing depression and anxiety that contribute to the impairment assessed on examination.
As noted by the Medical Assessor, Ms Atkins reported problems commencing in June 2020. Dr Young[2] and Dr Rastogi[3] recorded the somewhat earlier onset of stress in March 2020. The point in time when it is necessary to consider the existence of a pre-existing condition or previous injury needs to be established but, in the present case, there does not appear to be any difference in Ms Atkins’s psychological state in the period between March 2020 and June 2020.
[2] Application to Resolve a Dispute (ARD) page 133.
[3] ARD page 151.
It appears from the history provided to Dr Young that Ms Atkins noted increased stress from March 2020:
“Ms Atkins reports that since March this year she has experienced an increase degree of stress at work due to changes attributable to the current pandemic situation. … She said that, despite this, she was able to cope and continue to function well until June this year when her work partner was replaced with a casual staff member who was not familiar with the processes and systems.”
The Panel accepts that the workplace stressors that led to the onset of Ms Atkins’s psychological condition may well have commenced in March 2020 but there is no discernible difference in the assessment of the contribution that the pre-existing condition made to the overall level of impairment considered either in March 2020 or June 2020.
The appellant submits that:
“Dr Young, qualified for the Appellant employer, took a history of the Worker drinking up to 8 standard drinks per day with 2 alcohol free days per week, and that her GP says her drinking is not a problem. However, he does not take a history of falls, of tremors or that her GP recommends alcohol rehabilitation.
With that history in mind, we submit that the PIRS assessment has to be considered, and we would submit that as a matter of common sense, such a degree of alcohol consumption would arguably impact on the worker’s general function, including her personal care, her concentration, and had travel and any ability to drive.”.
The Panel does not accept that submission. The history of falls and tremors postdates the subject injury and the legislation does not provide for any deduction in respect of any increase in the level of impairment due to factors after the subject injury unless a new incident occurs sufficient to break the chain of causation.[4] No such incident can be found in the evidence available to the Medical Assessor.
[4] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (Johnson).
The evidence before the Medical Assessor included the history of steady employment up to the time of the subject injury. There is no suggestion that the areas of function which are to be assessed for the purpose of Chapter 11.11 of the Guidelines were significantly impacted by Ms Atkins’s consumption of alcohol prior to the subject injury.
The diagnosis of “alcohol misuse disorder” is made upon the basis of a cluster of symptoms which include symptoms which can also be described as “depression” and “anxiety”. There is a degree of crossover in the different diagnoses. In the case of Ms Atkins, it is likely, as a matter of clinical judgment, that it is the effects of pre-existing depression and anxiety that contribute to the overall level of impairment.
The fact that Ms Atkins was able to function in the workplace and maintain normal relationships with her partner prior to the subject injury, indicates that the extent of the contribution was not substantial.
The MAC establishes that the Medical Assessor was well aware and accepted that Ms Atkins had pre-existing psychological conditions which included alcohol misuse disorder. The Medical Assessor agreed with the two independent medical experts, Dr Rastogi and Dr Young as to the diagnosis of these conditions and arrived at a similar conclusion to that of Dr Young with respect to the deduction to be made in respect of those conditions.
The fact that Dr Young was not aware of the increased level of problems associated with the increase in the level of alcohol consumption following the subject injury does not bear upon the extent of the deduction to be made pursuant to section 323 as explained in Johnson.
The Panel is satisfied that the Medical Assessor has applied the appropriate criteria in assessing the deduction to be made pursuant to section 323 of the 1998 Act and no demonstrable error appears from review of the MAC and the supporting evidence.
The Panel considers that, in not specifically referring to alcohol misuse disorder with respect to consideration of the deduction to be made pursuant to section 323, the Medical Assessor appropriately noted the presence of this comorbidity prior to the subject injury but, in considering the effects of the pre-existing depression and anxiety, the Medical Assessor was also considering the relevant aspects of the alcohol misuse disorder which might be thought to bear upon the areas of function in the Psychological Impairment Rating Scale.

For these reasons, the Appeal Panel has determined that the MAC issued on 31 August 2021 should be confirmed.

[2021] NSWPICMP 241

23 December 2021