Stilloni v Campbelltown City Council
[2021] NSWPICMP 20
•12 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Stilloni v Campbelltown City Council [2021] NSWPICMP 20 |
| APPELLANT: | Suzanne Stilloni |
| RESPONDENT: | Campbelltown City Council |
| APPEAL PANEL: | 12 March 2021 |
| DATE OF DECISION: | Ms Deborah Moore Dr Julian Parmegiani Dr Douglas Andrews |
| CATCHWORDS: | WORKERS COMPENSATION- Accepted error in the manner in which the assessor calculated the final WPI%; the assessor calculated 15% WPI, deducted one-tenth which he rounded to 13% WPI instead of 14% WPI; appellant submitted no pre-existing condition to warrant a deduction; Held- Panel accepted ample evidence to support the deduction; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 cited; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 October 2020 Suzanne Stilloni lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 September 2020.
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).
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.
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.
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 as follows:
a. The assessor erred in finding that the applicant had a pre-existing injury at the time of the subject incident.
b. The assessor erred in assessing the pre-existing injury at 10% of the total impairment (i.e 1.5% WPI).
c. The assessor erred in rounding the deduction up to 2%, when the assessor ought to have subtracted that from the assessed 15% WPI.
In reply, the respondent accepts that the MAC “does contain a demonstrable error in relation to the application of the SIRA Guidelines relating to rounding” but submits that no other errors have been made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor (MA) for assessment of whole person impairment (WPI) in respect of a Psychiatric/Psychological disorder resulting from a date of injury of 8 August 2014.
The MA obtained the following history:
“Ms Stilloni had worked at Campbelltown Council as a family outreach worker for about 11 years on a full-time basis, and stopped work in 2015…
In terms of work stress, Ms Stilloni reported that when her manager transferred to another section she had an acting manager and she was bullied over a few months, leading to her stopping work. At the time she stopped working she recalled she was constantly crying, she could not cope. She recalled her two managers started questioning why she was still seeing a psychiatrist and wanted her to stop and to sign a document that she would stop having treatment with a psychiatrist or psychologist, but she would not because she felt she was still psychologically unwell and needed ongoing treatment. Ms Stilloni recalled she had mediation at work but could not continue working. Ms Stilloni's manager made disparaging comments. Whilst the claim was being investigated, she disclosed her sexual assault at 16, which caused an exacerbation in her mental state disturbance and she began to consume alcohol excessively, leading to an admission to Northside Macarthur Clinic under Dr Cross following an episode of self-harm.
Very early in my assessment, Ms Stilloni apologised for having a poor memory and not being able to remember many things, and I also noted that the other doctors had noted her persisting memory problems. On specific enquiry, Ms Stilloni told me that she had some problems with her memory before the bullying started, but it was ‘not bad’, and her memory problem has become quite significant since the workplace bullying and that she has lost her confidence. In terms of the nature of her memory problem, she said that she would run off track, she would forget things that were said to her, and she would get into a conversation with people and forget what she had been saying. Normally, she likes to read books; however, she would forget what she has read and she said she has to write everything down, otherwise she could not remember who the characters were in the book. Ms Stilloni has not read any books for about eight months and said that when she was reading books eight months ago, she could only focus on reading for about 20 minutes at a time, and that she would have to make notes as she read the book.
Ms Stilloni completed a Certificate 4 in Disabilities in 2019. This was meant to be an 18-month course, but it took her three years. This was done through Open College and involved only online studies with no face-to-face component. She said that she could not do the work as she could not focus, her memory was poor, and her doctor had written a number of medical letters for special consideration and applied for extension. She did not recall having had exams, and the course was passed on the basis of writing essays. When Ms Stilloni did her study, she said she would study five hours a day, three days a week, but she could not sit down for long because of a degenerative back problem. She could only sit down and study for an hour at a time.”
After documenting her present treatment, the MA noted present symptoms as follows:
“Ms Stilloni reported that the biggest problem now is her memory, and her memory has deteriorated in the years after she ceased work and her memory is overall at a similar level in the past 12 months. She also said that she is frustrated and angry that everything has been taken from her and she does not have a job anymore. On specific enquiry, Ms Stilloni reported experiencing the following symptoms:
• Depressed mood.
• Impaired memory and concentration.
• She felt she has lost confidence in her ability.
• Suicidal ideation has ceased.
• Her weight has been stable recently and she eats regularly now. She lost weight previously after bullying and harassment.
• Anxieties and worries about her future.
• Disrupted sleep.
• Being quiet and withdrawn.
Ms Stilloni denied being irritable, ever having experienced symptoms of psychosis, hypomania or mania.”
The MA then took details of her past psychiatric history as follows:
“Ms Stilloni reported that she was a victim of domestic violence when growing up, and she witnessed her father who had alcohol problems being violent.
At age 16 years Ms Stilloni was assaulted, and her mother wanted her to go into a hospital because she was suffering flashbacks and nightmares. She said she consulted a counsellor some time later. The perpetrator came after her when they were living on a farm, and she was told he had a rifle and was looking for her, and she had to go into hiding.
Ms Stilloni's recollection of her psychological health over the years is patchy, and it appears that she functioned at an adequate level in the workplace.
The next major episode was when Ms Stilloni separated from her partner and she took a few antidepressant medications including Lexapro. She said that she then felt recovered and she confirmed she was off Lexapro for maybe six months, before the bullying at work started. She also told me that before the bullying started her normal manager would say things like she was ‘too sensitive’ and thought that she had interpersonal problems with some of the people she worked with. She thought some people at work made her anxious.
Ms Stilloni did not think she had any psychological problems for about six months before the bullying started.
In terms of past psychological treatment, Ms Stilloni consulted an EAP counsellor from the council, and she did not know how long this was before the bullying started.
Before the bullying at work started, Ms Stilloni said she liked to read books. She also enjoyed dancing with a group of girlfriends. They would go to an RSL Club or the Catholic Club to dance regularly.
Ms Stilloni did not think she had major problems with intrusive memories of the assault at age 16 in the years before the bullying at work started. She recalled that in the context of her WorkCover claim, there was an investigator who was ex-police officer who came to take a statement from her over 5½ hours. She told Ms Stilloni that she had to tell the truth otherwise it would come out in court, and Ms Stilloni recalled that she then disclosed about her sexual assault at age 16 years, and then she started having flashbacks and nightmares about the assault and she decompensated after that. Psychologically she had not fully recovered since.
Ms Stilloni had suffered back injury with disc problems in 2014 and lodged a WorkCover claim.
Ms Stilloni had a car accident before the bullying and harassment, but could not tell me how long ago it was. She said she had some soft tissue injury in her back and no psychological injuries.
Ms Stilloni's daughter has an eating disorder and depression.”
As regards her social activities and activities of daily living (ADL’s) the MA said:
“Ms Stilloni is living by herself. She has two adult daughters and a grandson, and she sees them intermittently, usually every few weeks. Ms Stilloni spends her time playing with her dogs and watching television. She performs housework every day, but could not tell me how long she performed the housework. Since COVID-19 she has been avoiding going to the shops and only goes about once a week to do her groceries. Ms Stilloni sees her daughters and grandson maybe once every few weeks. She has contact with her sister by phone. Ms Stilloni avoids most of her friends and the only contact is with one friend living in Goulburn. They talk a lot on the phone, and they meet in person maybe once every two weeks. They will get together and drink tea and talk. Ms Stilloni said that she has a male friend she had known for many years who comes to help her, but not regularly. They are not in a partnership.
Ms Stilloni was married and divorced in 2002. She had been with a partner for 5½ years, and they separated many years ago, and she has had few partners since then. I asked Ms Stilloni whether she had a partner at the time of the bullying and harassment problem at work, and she was not sure. I note Associate Professor Robertson wrote, Ms Stilloni reported extensive dissociative memory loss for childhood. She had a relationship for six years, ending in 2011 and discovered her partner was abusing drugs, and she had been single for about two years.”
Findings on mental state examination were reported as follows:
“Ms Stilloni was assessed by videolink. Ms Stilloni was alone and was at her daughter’s home during the assessment. I assessed Ms Stilloni from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audiovisual recording of the assessment.
Ms Stilloni appeared overweight and was reasonably well-groomed. She was generally disorganized. She engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. She was moderately restricted in her affect range and reactivity. She replied after a delay at times, and struggled to think quickly. She spoke spontaneously. She was not thought disordered and exhibited significant difficulties with dates and details, and this was evident all through the assessment. Her response rate was clearly slow and impaired.”
The MA summarised the injury as follows:
“Ms Stilloni has an extensive history of trauma in her early life and developed depression and Post-traumatic stress disorder. She had needed treatment previously and took a few antidepressant medications over time. She had been off Lexapro for about six months, she may or may not have been in counselling at the time of the workplace bullying. Ms Stilloni gave a history that she had memory problems prior to the bullying issues and no major depression/anxiety problems, and that her manager commented that she appeared quite sensitive in the workplace.
Ms Stilloni described being bullied by an acting manager over a few months, and during the investigation for WorkCover and the disclosure of the sexual assault at age 16, she started suffering flashbacks/nightmares of that sexual assault again. She drank alcohol excessively and this led to a self-harm episode and her only psychiatric admission. Ms Stilloni had a number of physical injuries and had been prescribed analgesics and also diazepam, and the medications are suspected to have impacted on her memory, and those medications have been discontinued. She continues to experience significant memory problems and has never been formally diagnosed as having an independent cognitive disorder, such as dementia.
There are a variety of psychiatric diagnoses in her records over time, and my preferred diagnosis is a Persisting Depressive Disorder. For the purpose of this assessment, Major Depressive Disorder, Persisting Depressive Disorder, Adjustment disorder or Post-traumatic stress disorder are not significantly different. She does not have an alcohol use disorder or a medication-induced cognitive disorder now. I have not diagnosed a subsequent psychological injury or an independent cognitive disorder.
Ms Stilloni's psychological condition has clearly stabilised from a work injury perspective, I consider MMI has been reached.”
The MA then turned to consider a number of other matters as follows:
“WPI ratings:
Associate Professor Robertson completed a WPI with the final rating being 17% with 1% added for treatment effects. He believes that there is no deduction for a pre-existing injury as Ms Stilloni has a pre-existing vulnerability only.
Associate Professor Robertson rated Ms Stilloni's self-care as a 2 and wrote Ms Stilloni has reduced self-care and that she has regular ‘pyjama days’ and omits to shower, she prepares her meal and was trying to consume a balanced diet in attempt to lose weight.
Dr Glen Smith noted Ms Stilloni's self-care and that she sometimes forgets to shower but always brushes her teeth morning and night, and independently prepares her meals and cleans her property. Dr Nagesh, 4 November 2019 wrote Ms Stilloni is quite independent. She is able to cook, clean and shop and plans to join a group to increase her social interaction. It is not appropriate to base my assessment on a single entry and I have not relied on Dr Glen Smith or Dr Nagesh’s entry to make my assessment.
In my assessment, Ms Stilloni reported to me that she had no problems with her self-care, she prepares her own meals and consumes a balanced diet. She said she had lost some weight as a result of bullying and harassment, and her weight has been stable for many months. She said that she is “fairly independent”. She still wears pyjamas at home regularly and said that this is because of COVID restrictions and having no visitors, and if she has to go out or she has visitors she will dress “casually and appropriately”. Ms Stilloni reported that she eats regularly and showers regularly now. In my opinion, this is consistent with a rating of 1.
There is no addition for treatment effects, as Ms Stilloni has not gained substantial or total remission with treatment.
Regarding Ms Stilloni's pre-existing injury:
I noted that there is an extensive trauma history and certainly she has had various treatment over time. She had taken a few antidepressant medications, and the last antidepressant was stopped six months before the bullying at work started. In my opinion, 6 months was not a long time, and I do not believe she had achieved full remission before the subject injury. Furthermore, Ms Stilloni reported that she had memory problems before the bullying started. Her memory impairment is pre-existing, concurrent and ongoing, as she described that her memory had further deteriorated after she ceased work, and generally stable in the past 12 months. I believe a deduction has been made, and in my opinion, a one-tenth deduction is reasonable for her pre-existing condition.
Concurrent psychological injury:
Turning to the question whether Ms Stilloni has a concurrent psychological condition for which another deduction has been made, Ms Stilloni gave me a history of pre-existing memory problems and this was also concurrent to her work injury and continued to the present day. Dr Glen Smith and Dr Lonie’s assessments suggested she has an independent cognitive disorder, or at least a cognitive disorder caused by her medications. In my assessment, she confirmed that her treating team has never diagnosed dementia or an independent cognitive disorder, and she was no longer on medications that could cause cognitive impairment, and therefore the most likely explanation is that Ms Stilloni had pre-existing memory problem as a result of her pre-existing psychological disorder, and that she developed further memory problems as a result of workplace problems. There were contributions from a period of excessive alcohol (which only became a problem as a result of work) and from her analgesic medication and benzodiazepine for a period of time. I do not believe the evidence supports an independent cognitive disorder and therefore I have not made a deduction.
I noted the supplied documents:
Neuropsychological report 4 March 2019 by Dr Jane Lonie advised that Ms Stilloni has medication induced mild neurocognitive disorder. She continued to endorse extremely high levels of depression and anxiety in the self-reports. She does not currently have the necessary cognitive ability to undertake identified vocational roles. Dr Lonie also noted Ms Stilloni was taking diazepam 5 mg three to four times a week and has been on diazepam for the last four years, Lyrica 300 mg twice a day commenced four years ago. Dr Glen Smith, 12 May 2019, noted that Ms Stilloni described very poor concentration and memory and does not read, as she cannot remember. Ms Stilloni commented on Dr Lonie’s neuropsychological assessment report, assessing her IQ at 69, and felt distressed by that. She stopped drinking alcohol two years ago. She had had an admission in 2015 after being intoxicated and self-harmed. She was taking diazepam 10 mg twice a week, temazepam 40 mg twice a week, pregabalin 150 mg twice daily. Dr Glen Smith diagnosed persistent depressive disorder and noted that she described her mood being generally stable but having aggravation of anxiety and depression in 2014 due to comments made by her manager about the way she walked. He advised Ms Stilloni's condition is likely multifactorial - a genetic component, traumatic childhood and teenage years, thyroid disease, aggravation of depression in the context of previous relationship/family conflict and later social isolation, personality vulnerability characterised by interpersonal sensitivity, inability to find new employment resulting in aggravation of worthlessness and low self-esteem, excessive caffeine and abuse of benzodiazepine likely worsened her anxiety, her recurrent back pain likely contributed to worsened depressive symptoms.
Dr Glen Smith noted Dr Lonie’s report and advised a cerebral MRI scan would be recommended to exclude other causes of Ms Stilloni's cognitive impairment. Her predominant impairment is due to her cognitive impairment at this point.
Dr Smith, 26 July 2019, advised Ms Stilloni has not reached MMI. She may reach MMI in six months if she can cease the medication pregabalin and benzodiazepine.
Dr Smith, 23 January 2020, noted Ms Stilloni does not drink alcohol and ceased benzodiazepine. She denied problematic opioid use. She was on pregabalin 25 mg twice daily, with a plan to stop in the next week. Ms Stilloni was alert and oriented. She could not attempt serial 7s. She had very poor planning drawing the clock face. He advised she still has persistent depressive disorder with intermittent major depressive episode and is not currently in an episode. Her cognitive impairment contributes to her functional impairment and it is not clearly solely attributable to a mood disorder. He advised the predominant cause of Ms Stilloni's impairment is her cognitive impairment. Given the cessation of benzodiazepine and reduction and pending cessation of pregabalin but persisting cognitive impairment, he advised her cognitive impairment is not clearly predominantly related to workplace injury, and he advised no WPI assessment can be undertaken. He noted Ms Stilloni's self-care and that she sometimes forgets to shower but always brushes her teeth morning and night and independently prepares heals and cleans her property.”
When asked: “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 MA replied: “ Yes, there was a pre-existing condition, which contribute to a proportion of the loss and impairment.”
The MA then turned to consider the other medical opinions and documents, stating as follows:
“Ms Stilloni’s statement had been noted. She was assaulted aged 16 by a friend of a friend, and the person had threatened to kill her parents and chop them up if she did not go back to his house. He physically assaulted Ms Stilloni and threw her against a wall. After her divorce she had a partner for five and a half years and separated four years ago. She went through counselling with EAP and took Lexapro. She took Lexapro again in August 2014 due to the issues with the council. She has had a few short term relationships, but she is very careful with whom she chooses to be with. She advised she stopped taking Lexapro maybe six months before work stress, and began taking it again in August 2014 due to work stress. She has a number of physical problems and RSI…
In terms of past psychiatric history, Associate Professor Robertson noted a complex trauma history with Ms Stilloni's father and also a sexual assault incident, and there is possible PTSD as a result. She reported extensive dissociative memory loss for childhood. She had a relationship for six years, ending in 2011 and discovered her partner was abusing drugs, and she had been single for about two years at the time of assessment. Professor Robertson diagnosed persistent depressive disorder, and with regard to the iatrogenic complications, the cessation of benzodiazepine and reduction in pregabalin seemed to resolve the matter, and he does not believe this is any longer an issue. In other words, Associate Professor Robertson does not believe that Ms Stilloni has an independent memory disorder as her current medications were no longer impacting on her cognitive functioning as Dr Glen Smith had advised.
Dr Truong, GP 17 February 2015, noted the rude comments made by Ms Stilloni's acting manager. She suffered major depressive disorder with anxiety. He advised she had major depression before, but she was stable until the early 2014 event at work…
30 July 2018, Ms Evelyn Walker, Treating Psychologist had written to Centrelink in support of the DSP application. She was undertaking study as part of therapy and a return to work plan. CBT had been provided.
Dr Mark Cross, treating psychiatrist 25 October 2016, noted Ms Stilloni was on Lyrica 300 mg twice daily and that she reported study is going fairly well, working on assignments. When she gets to the fifth module she can return to work placement. He recommended reduction of Lyrica to 150 mg…
Dr Nagesh, 15 April 2020, at this point noted that previously Ms Stilloni relied on benzodiazepine and pregabalin, and this was ceased because of the suspicion she has early cognitive impairment from these medications.
Dr Nagesh, 28 August 2018, noted a history of major depression and anxiety many years ago and so at 16, because of sexual assault she suffers from PTSD…”
The MA assessed WPI of 15%, from which he deducted one-tenth, and rounded his assessment to 13%.
As we said earlier, the respondent concedes that the AMS should have deducted the one-tenth proportion from 15% and then rounded the remaining impairment of 13.5% up to the next whole number of 14% in accordance with the Guidelines.
We agree.
The principal issue then is whether there was a pre-existing injury or condition that warranted any deduction pursuant to s323 of the 1998 Act.
The appellant submits that the MA found that the applicant had an “extensive trauma history…..and various treatment over time.”
The pre-existing injuries apparently related to “domestic violence growing up; a sexual assault that occurred at age 16, and the breakup of a relationship.”
It is submitted that the appellant “confirms the above factual matters, however denies that it can be concluded that she was subject to ‘extensive trauma’”.
Reference is made to the decisions in Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole) and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 (Elcheikh). The appellant also makes reference to the decision in Fire and Rescue v Clinen [2013] NSWSC 629, where the following was said:
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s. 323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice… it was necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case.”
The appellant added:
“In this case, it is not disputed, that the applicant had not sought treatment for the domestic violence or sexual assault for many years prior to the subject injury. It only resurfaced during an interview pertaining to the subject injury. Any ‘trauma’ therefore could not constitute an injury. Further, any consultations flowing from the interview were properly attributable to the subject injury.
As to the marriage break up, counselling and medication was taken. However, such is clearly distinct from the subject injury. Such is commonplace in society and was evidently self-limiting. The applicant ceased such treatment 6 months prior to the subject incident and was functioning well at work and at home.
Dr Hong’s conclusion that ‘6 months was not a long time, and I do not believe she had achieved full remission before the subject injury’, is speculative, conjectural, and not based on any documentary evidence.
Dr Hong has failed to: a. Diagnosis what specifically the applicant was suffering from and the extent of it at the time of the injury. b. Provide adequate reasons justifying this belief. c. Provide any scientific literature to identify how long was actually required for the injury to have remitted. d. Define what a ‘full remission’ actually is.
The applicant was not suffering a pre-existing injury at the time of the subject injury. The absence of treatment, combined with her ability to work and her activities of daily living strongly support this contention.”
In response, the respondent submits:
“The AMS recorded in considerable detail at page two of the MAC the major events in the appellant’s life which contributed to the appellant’s past psychiatric history. He also records in some detail the history of treatment the appellant had undergone, confirming she had been off Lexapro for “maybe six months” before the bullying at work started. Even before the bullying started the AMS outlines issues in the appellant’s psychological profile which made her anxious. She had consulted an EAP counsellor but did not know how long this was before the bullying started…
The AMS rightly concluded the appellant has an extensive history of trauma in her early life and she developed depression and Post-traumatic stress disorder. She gave a history of memory problems prior to the bullying issues…
The AMS notes the appellant’s memory impairment was pre-existing, concurrent and ongoing. Therefore, the AMS provides justification for a one-tenth deduction being reasonable for her pre-existing condition.
The evidence before the AMS demonstrated there were other causes for the impairment suffered by the appellant, being the prior psychiatric conditions and the ongoing memory impairment, which was admitted to by the appellant and was documented by Professor Robertson, in addition to the difficulties in the appellant’s personality profile which were referred to by the AMS.
The respondent disputes the appellant’s submission the AMS’ conclusion that ‘6 months was not a long time, and I do not believe she had achieved full remission before the subject injury’ is speculative and conjectural. There is no requirement that the AMS’ determination must be based upon documentary evidence. The AMS must decide that is in accordance with the whole of the medical evidence and the clinical findings before him.
Similarly, there is no requirement an AMS must address the matters the appellant refers to in paragraph 16 of her submissions (the criticism Of Dr Hong we have noted in the preceding paragraph). Paragraph 11.10 of the SIRA Guidelines contains no such requirement. It is the worker’s level of functioning that is relevant to the determination of the pre-existing impairment.
The respondent submits the AMS has appropriately considered the evidence he obtained from the appellant and by reference to her statement and the material filed by the parties, in concluding that a one-tenth deduction was appropriate to reflect the proportion of the appellant’s impairment that is due to the previous injury, condition or abnormality.”
We agree with the respondent’s submissions and make the following additional observations.
At the outset, we consider that the MA prepared a thorough and detailed MAC following his lengthy consultation with the appellant.
The evidence relating to the appellant’s pre-existing condition was extensive, and referred to by most of the medical practitioners whose reports and notes the MA considered.
For example, as he noted:
“Dr Smith, 23 January 2020… he advised her cognitive impairment is not clearly predominantly related to workplace injury…
Dr Nagesh, 28 August 2018, noted a history of major depression and anxiety many years ago and so at 16, because of sexual assault she suffers from PTSD…”
In other words, the appellant’s cognitive impairment her treating doctor considered was both pre-existing and current. Similarly with Dr Nagesh who considered that in August 2018 she was still suffering from PTSD, long after the assault in question.
Contrary to the appellant’s submission, she was clearly receiving treatment for these problems both prior and subsequent to the workplace injury.
In our view, there was ample evidence of pre-existing and ongoing psychological problems which contributed to the impairment found by the MA.
The appellant was symptomatic prior to the work incidents.
Given the nature and extent of the pre-existing condition, consequent upon the sexual assault and domestic violence incidents in particular, and the apparent long-term consequences, we agree with the MA that “six months was not a long time” and we accept his opinion that the appellant had not achieved full remission.
We point out that mere disagreement with the assessment of an MA is not a proper basis for appeal.
As Part 2 of the Guidelines state:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant history and all available relevant medical information…”
It is clear from the detailed MAC of the AMS that he took into account all of the factors referred to in the Guidelines.
Finally, noting the authorities to which the appellant refers, we also point out what the Court of Appeal said in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254, namely:
“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 this case, even if the appellant could have been regarded as asymptomatic prior to the work injury, in our view there was ample evidence to support the conclusion that her pre-existing condition contributed to her impairment.
For these reasons, the Appeal Panel has determined that the findings by the MA as regards a deduction were supported by the evidence.
The only error was in the manner in which he calculated the WPI after making the deduction.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 September 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
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 Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Michael Hong 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 | 8/8/20 14 | 11, page 55-60 | 11 | 15% | One-tenth | 14% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
Deborah Moore
Member
Dr Julian Parmegiani
Medical Assessor
Dr Douglas Andrews
Medical Assessor
12 March 2021
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5
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