Sutherland Shire Council v Dixon
[2023] NSWPICMP 261
•13 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sutherland Shire Council v Dixon [2023] NSWPICMP 261 |
| APPELLANT: | Sutherland Shire Council |
| RESPONDENT: | Suanne Rae Dixon |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 13 June 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant employer alleged error in respect of the extent of deduction the Medical Assessor (MA) made under section 323; the MA made a deduction of one-tenth; the Appeal Panel was not satisfied as to error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 March 2023 Sutherland Shire Council (the appellant) 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 28 February 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the 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.
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) 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.
The appellant did not request that the worker be re-examined. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could discern no error and absent a finding of error, the Appeal Panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
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 matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
§ the degree of permanent impairment of the worker as a result of an injury (s319(c))
§ whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
§ whether impairment is permanent (s319(f))
§ whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of injury: 31 May 2022 – deemed
Body parts/systems referred: Psychiatric/ Psychological Disorder
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | ||
| Psychiatric/ Psychological | 31 May 2022 (deemed) | Chapter 11 WorkCover Guidelines | n/a | 19% | Nil | 19% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||||
The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
| Name | Suanne Rae Dixon | Claim reference number | W6735/22 |
| Date of Birth | Xxxx | Age at time of injury | 56 years |
| Date of Injury | 31 May 2022 - deemed | Occupation at time of injury | 16. Senior Receptionist |
| Date of Assessment | 22 February 2023 | Marital Status before injury | De Facto Relationship |
| Psychiatric diagnoses | Persistent Depressive Disorder with anxious distress with persistent major depressive episode |
| Psychiatric treatment | Sees treating psychiatrist 3-4 weekly; sees treating psychologist 3-4 weekly. Takes medications Venlafaxine-XR 300mg in the morning, Lamotrigine 300mg in the morning. |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision | |||
| Self Care and personal hygiene | 2 | Mild impairment. Ms Dixon is able to live independently. She does her own cooking, housecleaning and clothes washing but her partner has to do all the shopping because she is too anxious to go to the shops herself. She showers and changes her clothes regularly, however, she is now less interested in her personal appearance than previously. She occasionally skips meals. | |||
| Social and recreational activities | 3 | Moderate impairment. Ms Dixon generally remains quiet and withdrawn at home. Her only outing is going with her partner to a local farmers’ market every few months to do vegetable shopping, but they go very early in the day to avoid crowds. She has lost interest in socialising with friends, horse riding, ten pin bowling and going for dinners and outings. She walks her dog by herself around her local area twice daily, in the early morning and late in the evening, so that she does not have to see other people. | |||
| Travel | 2 | Mild impairment. Ms Dixon is only able to drive the short distance to see her GP at the local shopping centre and the 12-15 minutes drive on a known route to see her psychiatrist on a 3-4 weekly basis. For longer distances she relies on her partner to drive because of her severe anxiety and fear of having a car accident. | |||
| Social functioning | 2 | Mild impairment. Ms Dixon reports some strain in her relationship with her partner. They sleep in separate rooms and there is very little intimacy now between them. However, there have been no separations or domestic violence. She said her son moved out of home because of stress in their relationship but their relationship is better now that he has moved out. She has lost a number of friendships due to her social withdrawal but has kept in contact with some friends via Zoom, text and telephone calls. | |||
| Concentration, persistence and pace | 3 | Moderate impairment. Ms Dixon complains of very poor concentration and being forgetful. She said that she can only read a page before losing concentration and forgetting what she has read and needing to re-read it. She finds it difficult to focus on jobs she needs to do around the home. She is not able to follow complex cooking recipes anymore because of her reduced concentration. She had some problems in remembering details of her past history which was evident at the assessment. | |||
| Employability | 5 | Totally impaired. In my opinion, Ms Dixon is not able to work at all because of the severity of her psychological symptoms including her reduced energy and motivation, poor concentration, marked anxiety and social avoidance. I note that she has not worked at all since December 2019. | |||
| Score | Median Class | ||||
| 2 | 2 | 2 | 3 | 3 | 5 | 2.5 rounded up to 3 |
| Aggregate Score Impairment | Total |
| +2 | +2 | +2 | +3 | +3 | +5 | = 17 |
| Impairment Percentage WPI from Table 11.8: | 19% |
| Less pre-existing impairment if any: | nil |
Final Impairment % WPI: | 19% |
The Medical Assessor did not make a deduction under s 323 in respect of a pre-existing condition or abnormality.
The employer appealed. The appeal concerns only the Medical Assessor’s failure to make a deduction under s 323. In summary, the appellant submitted that the Medical Assessor erred in this regard as follows:
(a) the Medical Assessor failed to appropriately identify, consider and give appropriate weight to the evidence as to the workers pre-existing psychological impairment sustained prior to the subject work injury;
(b) the Medical Assessor failed to consider the workers inconsistent reporting when addressing the s 323 deduction, and
(c) the Medical Assessor failed to appropriately consider and apply s 323 in respect of a deduction relating to the workers pre-existing psychological distress prior to the subject work injury.
In summary, Ms Suanne Rae Dixon (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories and when making a deduction under s 323. A deduction under s 323 can only be made if any pre-existing injury, abnormality or condition has contributed to the level of permanent impairment assessed.
The Medical Assessor took a history which was broadly consistent with the other evidence before him. The Medical Assessor recorded as follows:
“Ms Dixon said she commenced working for Sutherland Shire Council in 2004 in a permanent part-time position for 33.5 hours per week. She said in 2016 she had issues with her Team Leader at that time who she said bullied her and several of the other staff. Complaints were made about this Team Leader who was subsequently dismissed. She said things returned to normal for her at work until a new Team Leader named Ben commenced work in September 2017. She said that two weeks after he started work, he tried to change her working hours and conditions without proper processes being followed. Ms Dixon complained to her manager who did not allow this to occur. After this Ms Dixon said that Ben made life difficult for her at work. She said that she was excluded from ‘coffee runs’. She said that she was not invited to lunches with other staff. She said that Ben would come and talk with other staff in hushed tones near her desk, and he would laugh at her which then made her feel very uncomfortable. She also felt that he micromanaged her. She felt increasingly stressed. In November 2017, she saw her GP, Dr Worth, who referred her to a psychologist, Ms Shona Cassell, on a mental health care plan. She has continued to see Ms Cassell for treatment since then. She said at that time her GP also commenced her on an antidepressant medication, Venlafaxine-XR, initially at a dose of 75mg daily.
Ms Dixon reports continuing to feel stressed and anxious at work until on 28 November 2019 she had what she described as a ‘breakdown’ at work. She said that Ben had not allowed her to have a lunchbreak and at 4.00pm she told him that she needed to take a break to eat. Ben then sent her an email telling her that she was not allowed to eat at the front desk even though she had not been doing that. She felt increasingly stressed and anxious and had symptoms of light-headedness, a sense of unreality, blurred vision, dry mouth and feeling nauseous which in retrospect appeared to have been a panic attack. She could not remember clearly what happened that day. She took a day off work and returned to work for about 2½ weeks before the Personnel Manager told her that she was being stood down as Ben had made a complaint that she had threatened him. She contacted her Union who supported her in a meeting with the General Manager, but she subsequently resigned from work on 25 February 2020.
In December 2019, Ms Dixon said her GP increased her dose of Venlafaxine-XR and in April 2020 she was referred to see a psychiatrist, Dr Farrar. Dr Farrar has gradually increased her dose of Venlafaxine-XR and she has been on 300mg a day since September 2022. Dr Farrar also tried her on Melatonin and Seroquel medications to help her sleep at night but this had not been effective. Dr Farrar has also been treating her with Lamotrigine, now at a dose of 300mg daily as well. Ms Dixon said she has continued to see her psychologist via Zoom consultations about every 3-4 weeks over this period of time.
Ms Dixon reports her symptoms fluctuate but have been relatively stable for the past 12 months.
· Present treatment:
Ms Dixon sees her treating psychiatrist, Dr Farrar, in person every 3-4 weeks. She sees her treating psychologist, Ms Shona Cassell, every 3-4 weeks via Zoom consultations.
Ms Dixon takes the medications Venlafaxine-XR 300mg in the morning and Lamotrigine 300mg in the morning.
· Present symptoms:
Ms Dixon reports feeling very anxious and preoccupied with what happened to her at her work. She feels depressed most of the time and is frequently tearful. She spends a lot of time just lying on her bed. She reports having very little pleasure or enjoyment in her life. She has lost interest in socialising with friends, horse riding, ten pin bowling and has stopped being involved in the strata committee of where she lives. She stopped going to the gym regularly which she used to enjoy. Her appetite is poor and she has lost 15kg in weight. She reports a reduced energy and reduced motivation. Her sleep is poor. She describes feeling fearful of leaving her home. She feels guilty that she did not stand up more to the Team Leader at her work. Her concentration is very poor and she said she can only read about a page before forgetting what she had just read. She finds it very difficult to focus on completing tasks around the home and her memory is very poor. She feels hopeless and that she has ‘no purpose’ in life but does not have any suicidal thoughts. She reports a significantly reduced libido.
Ms Dixon reports feeling restless and edgy and anxious most of the time, and that she startles easily. She has physical symptoms of heart palpitations and also grinds her teeth which has caused damage to her teeth. She describes worrying ‘all the time’ about many things which affects her ability to concentrate.
· Details of any previous or subsequent accidents, injuries or condition:
Ms Dixon said that in 2009 she had a period of grief counselling from a psychologist, Tom Ford, after her grandmother died. She said that the counselling from Mr Ford helped her cope with her grief and she was able to continue working and was functioning well socially and occupationally. She did not take any medications at that time.
I discussed with Ms Dixon a file note written by Dr S Rajan in her GP file notes dated 22 July 2014 which referred to her feeling anxious and stressed and being referred to a psychologist. Ms Dixon was firmly of the opinion that this file note could not have referred to her and was totally inaccurate in its details.
Ms Dixon reported no previous workers’ compensation claims.
· General health:
Ms Dixon reported being in reasonably good general physical health and taking no other medications apart from those for her psychiatric condition.
She said she does not drink alcohol, smoke cigarette or use illicit drugs.
· Work history including previous work history if relevant:
Ms Dixon was born in Terrigal on the Central Coast of NSW. She completed Year 12 and the Higher School Certificate. She completed a Certificate III in business administration at St George TAFE. She worked for Rockdale Council in a secretarial position for five years as well as working as a bar attendant in the evening. She then worked as the manager of her husband’s construction company for about eight years until the marriage broke down. She then worked for the Hard Yakka company as a receptionist on a part-time basis for about four years before she joined Sutherland Shire Council in 2004.
Ms Dixon has not worked at all since December 2019.
· Social activities/ADL:
Ms Dixon said she married at the age of 22 and that marriage lasted 10 years. She has one son aged 29 to that marriage and he lives in Tasmania. She has one grandson.
Ms Dixon has been with her current partner for 27 years. They have no children. Her partner owns his own automotive business. She said her partner only moved in to live with her in January 2020 after she had her ‘breakdown’, and he had stopped working to be able to support her more.
Ms Dixon said that she lives in her own home in Woronora Heights and her partner is living with her. She said her partner now does the shopping as she is too anxious to go to the shops herself. She does all the cooking, housecleaning and clothes washing. She does not leave her home for any social or recreational activities, apart from every few months going to a local farmers’ market to shop for vegetables with her partner very early in the day before there are many people at the market. She showers and changes her clothes most days. She is now less interested in her personal appearance than previously. She is able to drive to see her psychiatrist in Kogarah which takes her 12-15 minutes on a 3 to 4 weekly basis and also the shorter drive to see her GP in Engadine. For longer distances, she relies on her partner to drive her because of her severe anxiety and fear of having a car accident. She said that her partner is supportive but they now sleep in separate bedrooms and there is no intimacy in the relationship now.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Ms Dixon was a well-groomed woman who looked younger than her stated age with blonde hair and wearing a simple necklace. She was pleasant and cooperative but very tense in her manner. Her speech was of normal rate and flow. Her mood was both depressed and anxious with little reactivity in affect. There was no formal thought disorder and no psychotic symptoms. She was alert and oriented and able to answer questions appropriately. There were difficulties for her in recalling details of the chronology of her work history.”
The Medical Assessor made a diagnosis as follows:
“● summary of injuries and diagnoses:
In my opinion, Ms Dixon has the psychiatric condition of Persistent Depressive Disorder with anxious distress with persistent major depressive episode according to DSM-5 diagnostic criteria.
This condition emerged as a result of work stressors that Ms Dixon experienced in her working with Sutherland Shire Council from September 2017 until she stopped work in December 2019. Despite not working since then and having intensive psychiatric and psychological treatment, her condition has remained severe and disabling.
· consistency of presentation
Ms Dixon was consistent in the presentation of her history and symptoms. She did not appear to be exaggerating or minimising her clinical condition.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. These assessments are not the subject of complaint on appeal.
The Medical Assessor made no deduction under s 323 and this is the subject of complaint on appeal.
The Medical Assessor had regard to the other evidence that was before him upon which he made brief comments:
“I note a report on Ms Dixon by Dr Ash Takyar, psychiatrist, dated 10 August 2020. Dr Takyar gave Ms Dixon the diagnoses of Generalised Anxiety Disorder, Panic Disorder with agoraphobia and Major Depressiv Disorder.
I note a report on Ms Dixon by Dr Glen Smith, psychiatrist, dated 9 April 2022.
Dr Smith gave Ms Dixon the diagnosis of Persistent Depressive Disorder, with persistent major depressive episode, with anxious distress. I have given Ms Dixon the same diagnosis as Dr Smith.Dr Smith gave Ms Dixon a whole person impairment rating of 22%. Where he differed from me was in his rating for Travel where he rated Ms Dixon a Class 3 whereas I have rated Ms Dixon a Class 2 as she is still able to drive by herself to visit her GP in a local shopping centre and also the 12–15 minutes drive from her home to Kogarah on a known route to see her psychiatrist every 3-4 weeks.
I note a report on Ms Dixon by Dr Graham Vickery, psychiatrist, dated 16 June 2020. Dr Vickery gave Ms Dixon the diagnosis of Adjustment Disorder.
I note a further report on Ms Dixon by Dr Vickery dated 18 August 2022. In this report Dr Vickery gave Ms Dixon the diagnosis of Persistent Depressive Disorder in partial remission and Panic Disorder with Agoraphobia, whereas I have given Ms Dixon the diagnosis of Persistent Depressive Disorder with anxious distress with persistent major depressive episode.
In his report dated 18 August 2022 Dr Vickery gave Ms Dixon a whole person impairment rating of 11%. Where he differed from me was in his rating for Self-care and personal hygiene where he rated Ms Dixon a Class 1, whereas I have rated Ms Dixon a Class 2 as she reports not being able to shop for herself due to her marked anxiety and relying on her partner to do the shopping. She reports skipping meals at times due to her poor appetite and also being much less interested now in her personal appearance than previously. Dr Vickery rated Ms Dixon a Class 3 for Travel whereas I have rated her Class 2 for the reasons I have outlined above. Dr Vickery rated
Ms Dixon a Class 1 for Social Functioning whereas I have rated her a Class 2. I rated Ms Dixon a Class 2 as she reports that there has been some strain in the relationship with her partner and that there is significantly reduced intimacy and they sleep in separate bedrooms. There was stress in her relationship with her son and he moved out, but now their relationship has improved. She has lost a number of friendships due to her social withdrawal. Dr Vickery rated Ms Dixon a Class 2 for Concentration, Persistence and Pace whereas I have rated her a Class 3. I rated Ms Dixon a Class 3 as she reports only being able to read a page before losing concentration and needing to re-read the material. She reports not being able to cook from complex recipes anymore due to her reduced concentration and reports not being able to focus on jobs that she needs to do around the house because of her reduced concentration. There was some impairment in her memory noted during the assessment. Dr Vickery rated Ms Dixon a Class 3 for Employability whereas I have rated her a Class 5. I rated Ms Dixon a Class 5 as, in my opinion, her psychiatric symptoms are so severe and disabling that she is not able to work at all. I note that she has not worked at all since December 2019.Dr Vickery made a 100% deduction as he believed her current condition was not directly due to her employment and that there was 0% work related whole person impairment.
I note a report written by Dr Soney Jakob, GP, dated 19 August 2020 in which she gave Ms Dixon a diagnosis of ‘anxiety disorder triggered by stress at workplace’.
I note a referral letter from Dr Soney Jakob to Dr Anna Farrar, psychiatrist, regarding Ms Dixon dated 6 April 2020. Dr Jakob wrote, ‘…She used to work at Sutherland Council till 25 February 2020 due to alleged workplace bullying and harassment which started form [sic] 2016. She has had anxiety and a breakdown as a result of which she resigned. A Workcover has been initiated and she is seeing a psychologist.’ Dr Jakob noted that she had prescribed Ms Dixon the medications of Venlafaxine-XR at a dose of 112.5mg daily.
I note a letter written by Ms Dixon’s treating psychiatrist, Dr Anna Farrar, to her GP, Dr Jakob, dated 21 April 2020. Dr Farrar gave Ms Dixon the diagnoses of Anxiety Disorder/ Panic Disorder and comorbid Mood Disorder. She continued Ms Dixon on the Venlafaxine 112.5mg she was taking and added Melatonin at night to help with sleep. She noted that Ms Dixon was already seeing the psychologist, Ms Shona Cassell, for therapy.
I note a report on Ms Dixon by her treating psychiatrist, Dr Farrar, dated 6 August 2020. Dr Farrar noted that at that stage Ms Dixon was taking the medications Venlafaxine 150mg and Quetiapine 25mg at night. Dr Farrar then made the diagnoses of Generalised Anxiety Disorder, Panic Disorder and Depressive Disorder in Ms Dixon.
I note a series of letters from Dr Farrar to her GP, Dr Jakob, outlining Ms Dixon’s treatment history. The most recent letter was dated 9 September 2022 in which
Dr Farrar gave Ms Dixon the diagnoses of Anxiety Disorder/Panic Disorder and comorbid Mood Disorder. Dr Farrar noted that she was increasing the Venlafaxine dosage that Ms Dixon was taking from 225mg daily to 300mg daily and continued her on the Lamotrigine 300mg in the morning.I note Ms Dixon’s General Practice file notes. As previously referred to, I have noted a GP file note written by Dr S Rajan dated 22 July 2014 in which it was written, ‘…High stress levels, and anxiety levels…recent death of her father, and mum diagnosed with cancer… separated from partner who has gambling problems, …financial issues and son with drug problems…panic attacks, poor sleep and anxiety symptoms, easily tearful. Wants to see a psychologist, Kerry Brown.’
Ms Dixon maintained that this file note must have been written in error and was not referring to her. She said that her life circumstances at that time were not as written in that file note, and she said she did not see a psychologist named Kerry Brown, at that time.
I note a file note by Dr Charan Jeet dated 26 April 2016 in which was written, ‘…Stressed at work recently, feels increased breathing rate’. Ms Dixon related this episode to stressors that she was having at work with the Team Leader who was subsequently dismissed.
I note a file note written by Dr Charan Jeet Arora 16 January 2019 in which was documented, ‘…Anxiety attack Monday and Tuesday…missed work due to flare up… booked with psychologist for follow up… feels bit better, worried not to relapse at work’. It was written, ‘…Reason for contact: Anxiety’. I note a script for Efexor-XR 75mg was written.
I note a file note written by Dr Charan Jeet Arora dated 20 February 2020 in which was documented, ‘…Anxiety worsened by workplace bullying – stress – under care of psychologist…with psychologist since 2017…bullying at workplace since 2017 initially by one manager and now with another manager’.
I note a file note written by Dr Charan Jeet Arora dated 29 February 2020 in which was documented, ‘…Has pre-existing anxiety which was initially started in around 2016 due to behaviour of team leader before current team leader. No improvement in symptoms – feels really better after resigning. Thought of going back to work with same leader gives her goosebumps, nausea, anxiousness’. It was noted that Ms Dixon was then referred to a psychologist and psychiatrist.
The Medical Assessor has had clear regard to the other medical evidence and opinion that was before him on the question of the s 323 deduction. Dr Smith, the independent medical expert (IME) qualified on behalf of the worker, made no deduction. Dr Vickery the IME qualified on behalf of the appellant, deducted 100%. The panel notes that
Dr Vickery initially opined in 2020, having seen the factual investigation, that ‘It is my opinion Ms Dixon's employment is the main contributing factor to the psychological injury’ and determined that ‘there was no reported aggravation of a pre-existing or underlying condition.’ In his report of 2022 he then opined that Ms Dixon’s employment is no longer the main contributing factor to her current injury but that it is caused by ‘litigation stressors’. He made a 100% deduction for causation as he believed her current condition was not directly due to her employment (which is not compatible with the guidelines for making a deduction for any pre-existing condition) and continued to opine that ‘there was no reported aggravation of a pre-existing or underlying condition.”The Medical Assessor is required to reach his own independent opinion. He has had clear regard to the evidence in the form of clinical notes which was before him.
A deduction can only be made if a pre-existing condition, abnormality of injury has contributed to the level of permanent impairment assessed. This depends on the evidence before the Medical Assessor and the exercise of clinical judgment by the Medical Assessor. In this case the available evidence establishes no more than transient psychological difficulties in response to the stressors of life and which lead the worker to consult a general practitioner (GP) from time to time and which on the available evidence do not amount to a pre-existing psychological condition or abnormality that has contributed to the level of permanent impairment assessed by the Medical Assessor as a result of the work injury. Even if the consultation of 22 July 2014 and subsequent referral had been made, Ms Dixon’s failure to follow this up (as evidenced by the lack of communication from any psychologist as well as her own denial) and the lack of any further GP consultations for mental health issues until the commencement of the workplace injury in 2016 confirms there was no pre-existing diagnosable condition.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 February 2023 should be confirmed.
0
2
0