The CEO Group Australia Pty Ltd v Ceonradi
[2021] NSWPICMP 72
•19 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | The CEO Group Australia Pty Ltd v Ceonradi [2021] NSWPICMP 72 |
| APPELLANT: | The CEO Group Australia Pty Ltd |
| RESPONDENT: | Anthony Ceonradi |
| APPEAL PANEL: | Member Jane Peacock Professor Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 19 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; respondent appealed in respect of the extent of the deduction under section 323; Medical Assessor (MA) found significant pre-existing conditions, but the MA made a deduction of one-tenth on the basis that the extent of the deduction for pre-existing conditions would be too difficult to calculate; Held- the Panel was satisfied as to error as there was a significant amount of evidence before the MA and obtained by him on examination demonstrating that a one tenth deduction for the contribution of the pre-existing conditions to the current whole person impairment (WPI) was inadequate and at odds with the available evidence; the Permanent Impairment Guidelines, 4th edition, at paragraph 11.10 state that a suitable method is to estimate the pre-existing impairment and deduct this from the current WPI; the Panel calculated the pre-existing impairment in accordance with Paragraph 11.10 and deducted the pre-existing impairment from the overall level of WPI; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 December 2020 the CEO Group Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 23 November 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.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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 MA 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 following matters were referred for assessment under s 319 of the 1998 Act:
· Date of Injury: 4 November 2016
· Body part/s referred: Psychological - see injury details section of the application and the worker’s statement
· Method of assessment: Whole Person Impairment
The MA 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) |
| Psychological | 4 November 2016 | Chapter 11, pages 60-68 | Chapter 14 | 17% | 1/10 | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
The assessment was conducted under the Permanent Impairment Rating Scale (PIRS) of which the MA recorded his findings as follows:
Table 11.8: PIRS Rating Form
| Name | Anthony Coenradi | Claim reference number (if known) | |
| DOB | 20 September 1985 | Age at time of injury | 30 years |
| Date of Injury | 4 November 2016 | Occupation at time of injury | On remand |
| Date of Assessment | 4 November 2020 | Marital Status before injury | Single |
| Psychiatric diagnoses | Post-Traumatic Stress Disorder Organic Mood Disorder Mild intellectual impairment and learning disability Alcohol induced mood and psychotic symptoms Intermittent Explosive Disorder |
| Psychiatric treatment | Mr Coenradi was treated by his local medical practitioner and mental health team. He was treated with psychiatric medication. He had not been admitted to psychiatric hospital or drug and alcohol rehabilitation by his own preference not to accept this type of treatment. |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision |
| Self-Care and personal hygiene | 3 | Mr Coenradi stated that his self-care and personal hygiene was poor. His dental hygiene was poor with him not cleaning his teeth daily. He no longer attended to his basic personal hygiene needs. He would wait until he was told by Doug and Marg to “clean up”. Even with prompting he would often not shower more than three days per week. He stated that his nutrition had been poor with him relying on Doug and Marg to bring food 3-4 times per week. He did not cook. He did not clean his department of housing bedsitter. |
| Social and recreational activities | 2 | Mr Coenradi had continued to follow NRL football. He had watched the State of Origin Game 1 prior to this assessment. He stated that he had lost a friend due to them arguing over the ownership of a part filled cask of wine. He was not interested in walking, spending time with Marg and Doug or finding new friendships. |
| Travel | 2 | Mr Coenradi preferred not to drive due to his use of alcohol. He would become anxious and agitated when leaving his home. He had been able to walk locally to his medical centre and to Doug and Marg’s home in an emergency. He said he was able to drive to local and familiar locations. He was too anxious to use public transport as he was fearful of others in the vehicle with him. |
| Social functioning | 3 | Mr Coenradi reported that his relationship with his now ex-partner was permanently ended. She had moved to a small town in Victoria with her son. He said he had also recently lost a friend when they had an argument about who owned a part filled cask of wine. His is overseen by Doug and Marg. He finds their supervision of him difficult and there is severe tension in his relationship with them. |
| Concentration, persistence and pace | 2 | Mr Coenradi reported that he could not concentrate to cook or follow any recipe he had been taught in the past. He said he was able to watch NRL Football. He was not able to remember names of his favourite player or the captain of each team. He was able to organize to put time aside to watch the game. He was interested in the whole game and what happened on the field. |
| Employability | 4 | Mr Coenradi was assessed as being erratic in his capacity to find work or maintain work in the mainstream. He might be able to due 1 to 2 days work in supported employment. |
Score Median Class
| 2 | 2 | 2 | 3 | 3 | 4 |
| 3 |
Aggregate Score Impairment Total WPI = 17%
| 2+ | 2+ | 2+ | 3+ | 3+ | 4 |
| 16 |
The MA made a deduction under s 323 of the 1998 of one-tenth to take account of pre-existing abnormality, condition or injury. The MA reasoned as follows in this regard:
“In my medical opinion Mr Coenradi suffered from the following pre-existing conditions:
·Mild intellectual impairment and learning disability as evidenced by needing education in a special school and having reading, writing, spelling and maths specific learning difficulties.
·Alcohol induced mood and psychotic symptoms as evidenced by the prior history of ongoing alcohol consumption prior to the onset of the injury.
·Organic Mood Disorder as evidenced by difficulty adjusting to the use of insulin prior to the injury
·Intermittent Explosive Disorder as evidenced by being expelled from school in Year 4.
The assessment of these pre-existing conditions would be very complex, so a 1/10th deduction had been made in accordance with current guidelines.”
The one-tenth deduction reduced the overall level of impairment from 17% to 15% assessed by the MA as a result of the referred injury.
The extent of the deduction under s 323, namely one-tenth, is the subject of complaint on appeal. In summary, the appellant submitted that the MA by limiting the deduction to one-tenth failed to take into account, or failed to adequately take into account, “the scope and severity of the respondent’s extensive pre-existing and premorbid psychological injuries”.
The appellant also complains about the assessments under PIRS in respect of social functioning and employability.
In summary, the respondent submitted that the MAC should be confirmed as the MA has not made a demonstrable error or made an assessment on the basis of incorrect criteria.
There is a significant amount of evidence before the MA and obtained by him on examination demonstrating that a one tenth deduction for the contribution of the pre-existing conditions to the current whole person impairment is inadequate and at odds with this evidence. The guidelines at paragraph 11.10 state that a suitable method is to estimate the pre-existing impairment and deduct this from the current WPI. Paragraph 11.10 provides as follows:
“Pre-existing impairment
11.10To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
In the MAC the MA identifies a complex psychiatric history with the following pre-existing conditions:
· Mild intellectual impairment and learning disability
As evidenced by needing education in a special school and having reading, writing, spelling and maths specific learning difficulties.
• Alcohol induced mood and psychotic symptoms
As evidenced by the prior history of ongoing alcohol consumption prior to theonset of the injury.
• Organic Mood Disorder
As evidenced by difficulty adjusting to the use of insulin prior to the injury
• Intermittent Explosive Disorder
As evidenced by being expelled from school in Year 4.
The MAC records the following pre-existing impairments:
· Self-Care and Personal Hygiene: Drinking ½ a 4 litre cask of wine per day (not part of the normal variation of alcohol use in the population), and having such poor management of his diabetes that he was found in a diabetic coma at work, but living on his own is a mild impairment (Class 2).
· Social and Recreational Activities: These appeared to be limited to drinking alcohol, some “difficulty gambling on poker machines”, following NRL (and continuing to do so after the assessment) and spending time with his partner but “returned to custody” for some reason after the police attended: a mild impairment (Class 2)
· Travel: No information provided except for never having been in an accident: Class 1
· Social Function: Having a relationship with a partner with whom he did not live but relations so strained with her extended family that they called the police when he visited (possibly indicative of an AVO). He would fight people and there is no mention of any friendships: at the least a mild impairment. (Class 2)
· Concentration, persistence and pace: There is no mention of him doing any cognitively demanding activities either prior to or after the incident but a documented pre-existing impairment in cognitive function “Mild intellectual impairment and learning disability” and a cognitively impairing level of alcohol abuse. Again at the very least a mild impairment. (Class 2)
· Employability: Mr Coenradi had not been employed since 2013, 3 years prior to the incident which seems to be the same as described currently “erratic in his capacity to find or maintain work” – at least a moderate impairment and likely more severe. (Class 3)
These are the assessments under PIRS which the Panel is able to calculate from the MAC itself in respect of the level of permanent impairment that pre-existed the injury. That is, the MAC itself supports a pre-existing impairment of at least (2, 2, 1, 2, 2, 3 = 12, median class 2) which equates to 6% arising from the worker’s chronic, and in one case life-long,
pre-existing psychiatric conditions (including substance abuse and intellectual impairment). Notwithstanding some more severe impairments described elsewhere in the evidence the panel finds that the pre-existing impairment of 6% supported by the evidence described within the MAC is compatible with an approximately 1/3 contribution of the pre-existing conditions to the current level of WPI assessed by the MA. Accordingly, the deduction under s 323 will be 1/3 from the overall leave of WPI of 17% assessed by the MA. This leaves 11% WPI assessed to result from the injury on 4 November 2016.For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
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 Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr John Baker 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 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) |
| Psychological/ Psychiatric | 04/11/2016 | Chapter 11, pp 55-60 | 14 | 17% | 1/3th (6%) | 11% |
| Total % WPI (the Combined Table values of all sub-totals) | 11% | |||||
Jane Peacock
Member
Professor Nicholas Glozier
Medical Assessor
Dr Patrick Morris
Medical Assessor
19 May 2021
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