Swat v Southern Metropolitan Cemeteries Land Manager
[2024] NSWPICMP 336
•29 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Swat v Southern Metropolitan Cemeteries Land Manager [2024] NSWPICMP 336 |
| APPELLANT: | Eddie John Paul Swat |
| RESPONDENT: | Southern Metropolitan Cemeteries Land Manager |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 29 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; section 323; worker had history of episodes of depression; whether worker suffered from a pre-existing condition or had a genetic vulnerability; Held – evidence of previous bouts of depression constituted more than a vulnerability; Matthew Hall Pty Ltd v Smart and Fire & Rescue NSW v Clinen distinguished; consideration of psychiatric impairment rating scale of travel; worker was working as a courier; consistent with class 1 impairment; no error or incorrect criteria; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 February 2024, Mr Swat (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 February 2024.
The appellant relies on the following ground 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.
However, it is noted that whilst in form the appellant relies solely on the above ground, including in the heading to each submission made, in substance the submissions refer to demonstrable error as an alternative.
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).
BACKGROUND
Mr Swat (referred to in the MAC as Mr Paul) was employed by Southern Metropolitan Cemeteries Land Manager (the respondent), as a manager for capital works. He alleges that the work environment was toxic which ultimately resulted in him suffering a psychological injury which was deemed to have occurred on 5 February 2021. The history of the events that led to Mr Swat’s injuries is set out in the MAC in some detail, as well as in his statement.
Mr Swat made a claim for lump sum compensation which eventually proceeded through the Personal Injury Commission (Commission). He was referred to a Medical Assessor, who assessed whole person impairment of 14%, which included a deduction of pre-existing condition of 1/10th.
Mr Swat appeals against that assessment on the basis that the assessment was made on the basis of incorrect criteria. This allegation is directed to two aspects of the assessment, being:
(a) the deduction made by the Medical Assessor pursuant to s 323 of the 1998 Act, and
(b) the Medical Assessor’s application of the psychiatric impairment rating scale (PIRS) scale of “travel”.
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 Procedural Direction PIC7.
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 there was sufficient material before the Appeal Panel to determine the matter, and the Appeal Panel is not satisfied that the appellant has demonstrated that the assessment was made on the basis of incorrect criteria or that the MAC contains a demonstrable error.
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 erred in making a deduction pursuant to s 323 of the 1998 Act, as the deduction was made on the basis of a vulnerability to depression, which was not relevant. The appellant also refers to an alleged incorrect history of taking of Prozac shortly before the commencement of employment, which is inconsistent with the evidence contained in the notes of the treating general practitioner.
The appellant’s second ground of appeal relates to the Medical Assessor’s assessment of the PIRS of travel. The appellant submits that the Medical Assessor erred in attributing class 1 for travel, on the basis that the appellant can only drive to jobs nearby, constructing the Medical Assessor’s reasons to draw such an inference.
In reply, the respondent submits that the appellant has not disputed that he had a history of depression prior to the work injury, and that the comments in the context of a genetic vulnerability should be accepted to be a conclusion that the appellant had a pre-existing abnormality. The respondent also submits that the question of whether or not the appellant was taking Prozac in 2018 is irrelevant, as the Medical Assessor was not required to confirm that the appellant was symptomatic or was taking medication at the time of injury. The relevant question is whether the pre-existing condition contributed to the level of impairment.
In relation to the alleged error in respect of the assessment of travel under the PIRS, the respondent submits that the submission is conjecture on the part of the appellant, and there is nothing to suggest that the reasons for assessment in this scale should include further words.
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 Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 (Burton), the Court of Appeal confirmed that the Appeal Panel is not limited to the ground held by the President to have been made out pursuant to s 327(3), but cannot look for errors which are not part of the grounds of appeal (per Basten JA at [26]).
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 alleges that the assessment was based on incorrect criteria in two ways, with reference to the deduction made pursuant to s 323 of the 1998 Act and the assessment in the PIRS of travel. In accordance with Burton, the Appeal Panel’s consideration will be limited to those issues.
As set out above, the appellant’s form and majority of submissions refer solely to s 327(3)(c) of the 1998 Act, being the ground of appeal of incorrect criteria, although it is noted that the submissions also refer to demonstrable error as an alternative. The respondent submits the references to demonstrable error are irrelevant and ought to be dismissed.
The Commission is not a tribunal of strict pleadings, and must do justice between the parties according to the substantive merits of the case. It is clear that the submissions of the appellant are targeted to the ground of appeal of “incorrect criteria”, with reference made to “demonstrable error” in the alternative. Although pleaded in an imprecise and somewhat confusing way, taking substance over form, the Appeal Panel is satisfied that both grounds are intended to be relied on by the appellant. Given that the allegation of demonstrable error is pleaded in the alternative, and the respondent has responded to the substance of the appellant’s submissions, there is no prejudice to the respondent to this construction.
The terms “incorrect criteria” and “demonstrable error”, being the basis of the appeal lodged by the appellant, are not defined in legislation. In Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88, Mason P (McColl JA, Bell JA agreeing) agreed with Basten JA, who in Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284 stated that incorrect criteria “must refer to such matters as the tests set out in the Guidelines, where they are applicable”. This raises the question as to whether s 323 of the 1998 Act constitutes “criteria” for assessment, although on the basis that deduction is covered in the Guidelines (at 1.27-1.28 and 11.10), it is sufficient to conclude that there are criteria within the Guidelines that must be applied by the Medical Assessor when making a deduction, and if those criteria are applied incorrectly, then a ground of appeal may be made out.
In Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, the following was stated about demonstrable error:
“a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist” (at [86])
Ground 1 – deduction pursuant to s 323
As per the above, this ground is on the basis that the Medical Assessor has made a deduction on the basis of a vulnerability, and that the MAC contains an incorrect history in relation to Prozac which has caused the Medical Assessor to apply incorrect criteria.
The Medical Assessor deals with s 323 at Part 11 of the MAC:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Mr Paul has a past history of depression in 2011 and 2012. He also saw a Psychologist in 2018 and was on the medication Prozac at that time.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) There is considerable evidence to suggest that depression is a highly recurrent disorder and a past history of depression in Mr Paul’s case shows an underlying vulnerability that could be genetic in nature and these vulnerabilities might have predisposed him to have another depressive episode.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.”
Earlier, in the body of the MAC, the Medical Assessor records the following history in relation to the appellant’s previous mental health issues:
“He reported that he saw a Psychologist in the context of his divorce and reported feeling depressed. He saw the Psychologist for a year and was prescribed Prozac and was on Prozac for less than three years. He denied being on antidepressants or seeing a Psychologist at the time of the incidents at his workplace.
He was in a motor vehicle accident and in another incident, he tripped and fell over. He added that his employers were not giving him work and he was in pain in the right arm. He fractured his arm when he was working and tripped. He had some mental health issues at that time as well.”
Both parties have referred to some relevant caselaw in relation to s 323 of the 1998 Act, including Cole v Wenaline Pty Ltd [2010] NSWSC 78 and Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder). There does not appear to be any disagreement as to the relevant test to be applied for the purposes of applying a deduction. Justice Campbell, in Ryder, summarises the application succinctly:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.” (at [54])
There are, in essence, three steps to determining whether a deduction should be made pursuant to s 323. Firstly, determine the extent of impairment following the work injury. Secondly, determine whether a proportion of that impairment is due to a previous injury, or pre-existing condition or abnormality. Thirdly, determine the extent or proportion of that contribution.
Here, the Medical Assessor has appropriately applied the above test. She has firstly determined Mr Swat’s impairment following the work injury, assessed at 15% whole person impairment.
Secondly, the Medical Assessor has determined that a pre-existing condition exists, being a past history of depression.
Thirdly, the assessment of the contribution from that pre-existing condition was assessed at one tenth.
The appellant raises two issues with the assessment made. The first is in relation to the identified pre-existing condition, being on the basis of a “predisposition” rather than a pre-existing condition that made the worker’s impairment higher than it would otherwise have been.
It is true that the Medical Assessor has observed that Mr Swat has “an underlying vulnerability that could be genetic in nature and these vulnerabilities might have predisposed him to have another depressive episode”. The appellant submits that the Medical Assessor has concluded that there might have been a vulnerability rather than determining that there was one.
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor has erred. It proceeds on a narrow reading of the words in quoted at Part 11 of the MAC, focusing on the causative element of the statement made by the Medical Assessor, rather than the identified existence of a pre-existing condition. Accepting the appellant’s submission would involve reading the MAC with a fine toothcomb with an eye keenly attuned to error, which is not how reasons should be read (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6).
Likewise, the Medical Assessor has not proceeded on the basis of a hypothesis. She has identified a pre-existing condition, being a past history of depression, and explained how it contributes to impairment (creating a vulnerability that predisposed Mr Swat to further depressive episodes). The previous incidents of depression, undisputed by the appellant, are evidenced in the material considered by the Medical Assessor.
This is not a circumstance, as occurred in Fire & Rescue NSW v Clinen [2013] NSWSC 629 and Matthew Hall Pty Ltd v Smart [2000] NSWCA 284, where the Medical Assessor has proceeded to make a deduction on the basis of a predisposition, or the genetic likelihood of a condition developing. Those cases can be distinguished on the basis that Mr Swat had previous episodes of depression, and that material is identified in the evidence before the Medical Assessor. The Appeal Panel is of the view that the Medical Assessor’s commentary concerning the potential genetic nature of the depressive episodes suffered by Mr Swat concerns how they were caused, and is not identification of a pre-existing condition. As such, the Medical Assessor has not applied incorrect criteria.
In summary, the Appeal Panel is satisfied that the Medical Assessor has appropriately identified the existence of a pre-existing condition, being a past history of depressive episodes, has explained how that has contributed to impairment (by making Mr Swat more vulnerable to further episodes) and has determined the extent of that contribution. This is the precise criteria envisioned by s 323 of the 1998 Act and as explained in the relevant caselaw, discussed above.
The other aspect of the appellant’s challenge on this ground is the Medical Assessor’s allegedly incorrect reference to the taking of Prozac in 2018. The appellant submits that the Medical Assessor was here saying that the appellant was on Prozac shortly before commencing employment. The appellant submits that he was on Prozac at the time of his divorce in 2011 for less than three years, and in 2019/2020. In response, the respondent refers to the clinical notes of Engadine Medical Centre, noting an extensive history of being prescribed Prozac, undisclosed in the appellant’s statement. This history dates back to 2000, and in 2010 it is recorded that the appellant had “depression most of life”.
The Appeal Panel accepts that there is no reference in the clinical notes to the taking of Prozac in 2018. There is, however, a series of references to attendance on a psychologist during 2018 relating to issues at work, a history that the Medical Assessor has recorded. There is also an undisputed history that the appellant was taking Prozac for a number of years during his divorce.
To accept that the incorrect record of taking of Prozac in 2018 has led the Medical Assessor to err would again be reading the MAC minutely and keenly attuned for error. It would also ignore the other incidents of mental health issues properly recorded in the history taken by the Medical Assessor, including in 2011 and his work-related issues in 2018, which led to his attendance on a psychologist for a period. Whilst the recording of Prozac in 2018 may be an error, it does not amount to a demonstrable error as the Appeal Panel are satisfied that it has not resulted in any impact on the assessment of impairment undertaken by the Medical Assessor. Alternatively, the Appeal Panel is satisfied that it was open to the Medical Assessor to make the finding in relation to the deduction she made, regardless of the incorrect record of taking of Prozac in 2018, in circumstances where there are significant other records of mental health issues dating back to 2000.
The Appeal Panel is also of the view that an incorrect recording of Prozac (if it were more than a slip or typographical error) does not amount to “incorrect criteria”, as the Medical Assessor was not applying criteria at that time, and none has been referenced by the appellant in submissions.
Accordingly the Appeal Panel does not accept that this ground of appeal is made out and the deduction made pursuant to s 323 of the 1998 Act is confirmed.
Ground 2 – travel
The appellant refers to the following finding on page 5 of the MAC: “He is able to drive to nearby jobs and is able to drive for his work.” This history is repeated in the PIRS table, supporting a finding of class 1 impairment.
The appellant submits that in constructing the sentence, the Medical Assessor was intending to convey a meaning that the appellant cannot drive to jobs that are not nearby. On this reading, the Medical Assessor identified an impairment corresponding to class 2. The appellant also suggests that Dr Chow, who prepared a report on behalf of the appellant, made the same error as the Medical Assessor.
The respondent submits that the appellant provides no explanation, other than the construction urged above, as to why class 2 should be applicable. The respondent also submits that suggesting that Dr Chow made the same mistake is nonsensical. The respondent notes that the consistency of medical opinion of the three doctors who have assessed the appellant (Dr Chow, Dr Saboor, and the Medical Assessor) is that the appellant fits within class 1 impairment for this PIRS.
The appellant accepts the respondent’s submissions.
The construction urged by the appellant involves interpreting a meaning into words that are on their face, clear. The appellant can drive to nearby jobs. He drives for his work. There is nothing in this record to suggest that the appellant cannot drive to jobs that are not nearby. It is also clear that he is performing this role without supervision.
The two classes of relevance for this submission in the PIRS are set out as follows:
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2
Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Even if the construction argued for by the appellant was accepted (i.e. that the Mr Swat can only drive, for his employment, to “nearby jobs”), that does not fit within class 2. The examples provided in class 2 (mindful that they are examples only) refer to visiting a neighbour and travelling to shops.
The Appeal Panel is of the view that working as a driver involves driving to new environments without supervision, even if those are relatively “nearby”. The travel would also involve more than visiting familiar areas such as shops and neighbours.
It is also noted that all of the medical experts who have assessed Mr Swat are in agreement as to this PIRS, placing him into class 1. In those circumstances, extensive reasons are not required and there is a level of intuition to an assessment, consistent with Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43]. The appellant’s submissions suggest that Dr Chow also erred in his assessment by placing Mr Swat in class 1. The respondent suggests that this submission is nonsensical. The Appeal Panel agrees that the submission cannot take the matter very far as the appellant has commenced and litigated proceedings relying on the report of Dr Chow, and had opportunity to clarify that aspect of his assessment at any point.
It is also noted that a finding of class 1 in a PIRS is not “zero impairment” as the appellant’s submissions suggested. It is a finding of “No deficit or minor deficit attributable to the normal variation in the general population”. That finding is consistent with the history taken by the Medical Assessor and the medical opinions before her. Accordingly, the Medical Assessor has not applied incorrect criteria, nor does the MAC contain a demonstrable error.
Conclusion
For the above reasons, the Appeal Panel has determined that the MAC issued on 1 February 2024 should be confirmed.
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