The GEO Group Australia Pty Ltd v Chalmers
[2023] NSWPICMP 353
•26 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | The GEO Group Australia Pty Ltd v Chalmers [2023] NSWPICMP 353 |
APPELLANT: SECOND APPELANT: | The GEO Group Australia Pty Ltd State of New South Wales |
| RESPONDENT: | Wesley Cvelbar Chalmers |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 26 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act1998; inmate in prison psychologically injured by a fire in his cell; whether Medical Assessor (MA) assessment of 15% erroneous; whether section 323 applies; Held – MA applied wrong test; opioid disorder and frequent incarceration past history common ground; Medical Assessment Certificate revoked and 1/5th deduction applied pursuant to section 323; Cole v Wenaline Pty Ltd, Ryder v Sundance Bakehouse and Pereira v Siemens Ltd considered and applied. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 March 2023 The GEO Group Australia Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
24 February 2023.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 MAC contains a demonstrable error.
Mr Wesley Cvelbar Chalmers (the respondent to the appeal) was an inmate at Parklea Correctional Facility. Mr Chalmers alleges he suffered psychological injury on 28 July 2016.
Mr Chalmers falls within the class of persons defined in Part 2A of the Civil Liability Act 2002 (the Civil Liability Act) as “an offender in custody”.
The GEO Group Australia Pty Ltd, was the management company in charge of Parklea Correctional Centre at the time of Mr Chalmers’ injury. The State of New South Wales, is a “protected defendant” as defined in Part 2A of the Civil Liability Act.
Section 26C of the Civil Liability Act provides that Mr Chalmers has no entitlement to damages unless his injury results in a degree of permanent impairment assessed as at least 15 % whole person impairment. Pursuant to s 26D of the Civil Liability Act the assessment of whole person impairment is to be conducted in accordance with Division 2 of Part 2A of the Civil Liability Act and Part 7 of Chapter 7 of the 1998 Act.
Dr Gerald Chew, psychiatrist, was appointed as the Medical Assessor and provided a Medical Assessment Certificate dated 24 February 2023. Mr Chalmers was assessed as having a 15% whole person impairment as a result of the injury.
On 10 March 2023, The GEO Group Australia Pty Ltd, lodged an Application to Appeal Against a Decision of Medical Assessor. The appeal was lodged on the ground that the MAC contains a demonstrable error (s 327(3)(d)).
On 13 March 2023, the State of New South Wales, lodged an Application to Appeal Against Decision of Approved Medical Assessor. The State of New South Wales adopted the submissions of The GEO Group Australia Pty Ltd in support of its application to appeal. The Commission registered the appeal M2-673/21.
On 31 March 2023 the respondent, Wesley Cvelbar Chalmers, lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor.
This decision deals with both Matters numbered M1-673/21 and M2-673/21.
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.
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). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 22 November 2022, following Consent Orders made on 16 March 202, the delegate to the President referred this matter to a Medical Assessor for assessment of whole person impairment caused by psychological/psychiatric disorder caused by injury on about
28 July 2016.Mr Chalmers was an inmate at Parklea Correctional Centre when he suffered his psychological/psychiatric injury, which had been caused when he was trapped in a cell which was on fire.
The Medical Assessor found that Mr Chalmers suffered from a post-traumatic stress disorder, and, as indicated, certified 15% WPI.
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.
The appellants sought to have Mr Chalmers re-examined by a Medical Assessor who is a member of the Appeal Panel. As the issue in this case relates to whether the provisions of
s 323 of the 1998 Act (s 323) apply, the relevant evidence is before us, and a re-examination would not be of further assistance.
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 which 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.
As indicated, the issue for determination in this appeal relates to the determination by the Medical Assessor not to make any deduction from the impairment assessed for the contribution of impairment caused by a prior injury, or a pre-existing condition or abnormality pursuant to s 323.
The MAC
The Medical Assessor left the column for deductions pursuant to s 323 blank in his Table 2 Certificate, and confirmed the assessment as 15% WPI.[1]
[1] MAC page 5.
At [4] of his MAC the Medical Assessor recorded a consistent account of the circumstances of Mr Chalmers’ injury when he was trapped in his cell which was on fire. As to any pre-existing condition, the Medical Assessor said:
“Details of any previous or subsequent accidents, injuries or condition: an additional significant stressor has been his son with a rare terminal genetic condition who requires significant care.
He also has had a significant opioid use disorder. This impacted his life until treatment with methadone around 2006.
…..
Work history including previous work history if relevant: has not worked since 2016. Prior to this he says that he worked for his uncle in an adhoc basis. Prior to heroin use issues in his early 20’s he completed a plumbing apprenticeship and worked as a plumber.”
At [10c] he considered the reports of other specialists. He noted that Dr Parmegiani had found there to be a 15% WPI however had made a deduction pursuant to s 323 of the 1998 Act of 7%.
The Medical Assessor said:[2]
“I disagree with pre-existing impairment. There was some prior functional impairment due to heroin use disorder however this has been treated and in remission with little impact on function.
PIRS assessment is similar. I preferred Dr Parmegiani for employability as he is able to
perform some productive activities such as looking after his son. I preferred De Junger for concentration as the impairment is mild. I preferred Dr Jungfer for social functioning as there has been a separation from his long term partner.”
SUBMISSIONS
[2] MAC page 3.
The appellants
The appellants submitted that the Medical Assessor had erred in failing to make any deduction pursuant to s 323(1) of the 1998 Act.
We were taken to Mr Chalmers’ medical history. The appellants noted that there was no evidence of any cardio respiratory disease as a result of the incident, and kindly referred to the relevant evidence. After three years, the appellants submitted, Mr Chalmers had still not attended an appointment arranged for him with a consultant respiratory physician. Moreover Mr Chalmers had continued to smoke regularly despite his claimed difficulties with breathing. There was a childhood history of asthma from age five or six which apparently Mr Chalmers grew out of by the age of 10.
The appellants pointed to Mr Chalmers’ dysfunctional family life, his sporadic work history and his health problems as a result of drug use which had also resulted in constant encounters with the criminal justice system.
The appellants also noted that Mr Chalmers had a 10 year old son under his care who was suffering from a progressive and ultimately terminal neurological condition called Sanfilippo disorder type III.
He submitted that this could reasonably be viewed as having an impact on Mr Chalmers’ psychological health.
The appellants referred to the medical records which showed that Mr Chalmers had suffered psychological symptoms prior to the date of the accident. The evidence showed that since at least 1 May 2015 Mr Chalmers had been suffering from anxiety and depression.
It was also relevant, the appellants argued, that Mr Chalmers had been a substance abuser for much of his adult life and the abuse included addiction to heroin and methamphetamines.
Mr Chalmers had been on the methadone program for a prolonged period which had necessarily impacted on his lifestyle and recreational habits and had a negative impact on
Mr Chalmers’ mental health, it was submitted.Further, medical records showed Mr Chalmers as suffering from hepatitis C, and had been in receipt of treatment for that condition since early 2016.
Medical evidence also showed that Mr Chalmers had been suffering from lethargy and diminished concentration since April 2014, these symptoms being caused by hepatitis C. We were again referred to the relevant evidence.
The appellant argued it should reasonably be viewed as having an impact on his psychological and psychiatric health negatively.
Further, the notes from Mr Chalmers’ GP recorded an incapacity for work dating back to
May 2013 due to a DVT, related to his prior intravenous drug use and subsequent methadone treatment and hepatitis C.An inference could reasonably be made that this premorbid disability and consequential inability to work would have materially impacted on Mr Chalmers’ psychological and psychiatric health in a negative way.
It followed the appellant argued that the Medical Assessor had fallen into error by not making any deduction pursuant to s 323. Whilst contending that at the very least a deduction should be made pursuant to s 323 (2), the appellant nonetheless submitted that there was sufficient evidence before the MA to make a deduction pursuant to s 323(1).
The appellant sought a re-examination by a member of the Appeal Panel.
The respondent
Mr Chalmers referred to A Nobile & Son Ltd v Naylor.[3] It was submitted that the following steps were relevant:
· the impairment be assessed at the time of presentation;
· prior injuries or pre-existing conditions should be identified, and
· if any, it should be determined whether a proportion of the total impairment caused by the subject injury is due to the prior injury or pre-existing condition.
[3] [2019]NSWWCCMA 144.
It was argued that if the latter proposition was established, then the Medical Assessor had to determine the appropriate deduction. This determination it was argued, could not be made on the basis of assumption or hypothesis.
Mr Chalmers argued that the appellant had not challenged the total WPI assessed at 15% nor than the appropriate diagnosis was post-traumatic stress disorder. We were referred to various factual findings made by the Medical Assessor with regard to that total.
Mr Chalmers acknowledged that the Medical Assessor had identified pre-existing issues, referring firstly to his son’s need for significant care due to his illness, secondly to his significant opioid use disorder that had impacted his life until his methadone treatment in 2006, and thirdly it was submitted that Mr Chalmer’s completion of a plumbing apprenticeship and did some work as a plumber in his early 20s was relevant.
Mr Chalmers referred to the Medical Assessor’s comments at [10], reproduced above, to submit that the Medical Assessor had properly determined in the negative whether these matters contributed to the impairment assessed on the day of the consultation with the Medical Assessor. It was submitted that the Medical Assessor’s statement that Mr Chalmers’ heroin use disorder was “in remission with little impact on function” demonstrated that he had formulated his decision and reasoning “in line with s 323(1)”.
DISCUSSION
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
We endorse the description referred to by the respondent of the three stages required to be considered in the application of s 323 in A Nobile & Son Ltd v Naylor. The Medical Appeal Panel in that case acknowledged the leading authorities by referring to Cole v Wenaline Pty Ltd [2010] NSWSC78, Ryder v Sundance Bakehouse [2015] NSWSC526 and Pereira v Siemens Ltd [2015] NSWSC 1133.
We do not agree, however, that the Medical Assessor applied those principles in his application of the section. The test for whether a deduction is appropriate or not is whether any impairment from the identified pre-existing condition has contributed to the impairment caused by the subject injury, which we shall refer to as the ‘base line impairment.’ (The respondent spent some time addressing the base line impairment, but it has not been challenged).
The Medical Assessor’s reason for not applying the provisions of s 323 was somewhat perfunctory, with respect, and appeared to be based on an incorrect assumption. His reasoning appeared to be that some functional impairment due to the pre-existing condition had to be proven. This, if that were his intention, was incorrect. In Ryder Campbell J discussed that proposition. His Honour considered such a submission before him at [36] and considered the relevant authorities. He found at [41]:
“….Where the issue is whether any proportion of the permanent impairment resulting from the work injury is due to a pre-existing condition, it is not necessary that the condition, pre-injury, of itself, would have given rise to a rateable percentage impairment by application of the diagnosis-related evaluation of impairment prescribed by the WorkCover Guides.
….
[43]….. the section is engaged if the pre-existing condition… is a concurrent necessary condition, with the work injury, of the degree of permanent impairment.”
Whether any impairment caused by the pre-existing condition has contributed to the base line impairment or not is thus dependent on a wider enquiry than simply whether there was any “functional impairment”. The test is not whether the pre-existing condition had “little impact on function”.
The relevant facts were discussed by both Dr Patricia Jungfer, who was Mr Chalmers’ medico-legal expert and Dr Julian Parmegiani, who had been retained for the appellants. Both experts were Consultant Psychiatrists.
Dr Jungfer reported on 20 July 2020.[4] She noted Mr Chalmers’ history of heroin use since he was 18, and his methadone treatment of 10 years. She noted that Mr Chalmers was first imprisoned at 20 and had been imprisoned about 20 times regarding his drug use, never for more than one year. The longest Mr Chalmers had ever worked, she recorded, was a period of 18 months.
[4] Appeal papers page 31.
Dr Jungfer noted that Mr Chalmers had been with his partner for 17 years, and that they had two children, one of whom had a serious genetic disorder and was significantly incapacitated.
Dr Jungfer diagnosed a major depressive illness, with a pervasive disturbance of mood, lack of initiative, motivation, reduced anhedonia, and sleep impairment. In conjunction with that condition, Dr Jungfer noted a range of post-traumatic stress symptoms, although
Mr Chalmers did not meet the diagnostic threshold for a post-traumatic stress disorder. She thought he had a “subsyndromal post-traumatic stress disorder”.[5][5] Appeal papers page 40-41.
In considering the question of causation, Dr Jungfer said:
“When considering the aetiological factors for Mr Chalmers’ presentation, the post-traumatic stress symptoms are solely as a consequence of the events that occurred at the Parklea Prison in June 2016. In terms of the major depressive illness, the predominant contributing factor are the events that occurred at the time at the Parklea Prison in June 2016 although I note that the symptoms have deteriorated over time.
Contributing factors could be the deterioration of his son from his primary neurological condition.”
Dr Jungfer, after assessing a base line impairment of 17% WPI said:[6]
“Since the injury there has been a decline in his son’s health. Mr Chalmers did not think he had changed functionally. It is probable that as the post-traumatic stress symptoms became less severe that the increased depression has masked the partial recovery from the post-traumatic stress disorder.”
[6] Appeal papers page 45.
Dr Parmegiani reported on 19 November 2020. He recorded that Mr Chalmers was a heroin user between ages 17 to 29, when he went on the methadone program. Dr Parmegiani noted that Mr Chalmers’ relationship with his partner had ceased some 2 1/2 years before, but he continued to live with her intermittently. Dr Parmegiani also noted that Mr Chalmers’ son’s genetic condition was terminal.
Dr Parmegiani recorded that Mr Chalmers had a past psychiatric history. He had been ordered by the courts to attend drug treatment programs and to attend regular counselling over the years. He had variously been prescribed Zoloft and Naltrexone. Dr Parmegiani noted that two years before, Mr Chalmers had undergone treatment for hepatitis C.
Dr Parmegiani noted that on mental state examination that Mr Chalmers was coherent in his thinking, and was orientated in time, place and person. Dr Parmegiani observed that
Dr Jungfer had not rated Mr Chalmers’ psychiatric impairment prior to the subject injury.
Dr Parmegiani thought that Mr Chalmers’ poor work history, despite being on methadone, indicated a pre-existing impairment of adaption. Mr Chalmers did not maintain a healthy lifestyle, and supplemented his methadone dose with illegal drugs, Dr Parmegiani found.
Mr Chalmers accordingly had a pre-existing impairment in self-care.Dr Parmegiani stated that Mr Chalmers was an unreliable historian, and that a psychiatric diagnosis required a reliable history. In his report of 17 December 2020 Dr Parmegiani diagnosed a post-traumatic stress disorder on a background of pre-existing substance use disorder and maladaptive personality traits.
Dr Parmegiani assessed a base line impairment of 15%. He deducted 8%, leaving a 7% entitlement. He said he made ‘discounts’ for:
i.Mr Chalmers’ pre-existing drug use and addiction;
ii.Mr Chalmers’ self care and personal hygiene;
iii.Mr Chalmers’ social and recreational activities;
iv.Mr Chalmers’ concentration persistence and pace, and
v.Mr Chalmers’ employability.
The last four discounts were made in respect of an adjustment made to categories within the psychiatric impairment rating scale (PIRS) by which the base line assessment is made, and the first discount appeared to be in relation to Mr Chalmers’ pre-existing condition or abnormality of drug use and addiction. However, each discount within the PIRS categories was made for the same reason.
There was no distinction between the histories taken by any of the experts, although that taken by the Medical Assessor were somewhat abbreviated. All recognised that
Mr Chalmers had become addicted to heroin at a young age, and was on the methadone program. All recognised that he had been in and out of prison many times – 20 occasions were mentioned by Dr Jungfer.The contemporaneous evidence also supports that background.
It is apparent that Dr Jungfer did not turn her mind to s 323 and the requirement that there be a deduction if a pre-existing condition created an impairment that contributed to the base line impairment. She referred to any potential functional effect that illness of Mr Chalmers’ son might have caused (finding none), but did not turn her mind to whether Mr Chalmer’s impairment might have been contributed to by his prior drug use, which constituted the psychiatric condition of a substance abuse disorder, or his many imprisonments, again reflecting the impairment and sequelae of this disorder.
Dr Parmegiani however, as indicated, did consider that issue. His methodology was somewhat obscure, as the Guides require that impairment be assessed as the claimant presents on the day of the consultations. The reason given for the discount he gave in each category – Mr Chalmers’ prior history of drug use - as a matter of practice should be deducted after the baseline impairment is assessed. Dr Parmegiani found a base line of 15%, and should have deducted the 8% pursuant to s 323(1) as being the impairment that was due Mr Chalmer’s pre-existing condition.
Having said that, we agree with Dr Parmegiani’s reasoning. Mr Chalmers has, and continues to have, an opioid use disorder. The effect of such a disorder combined with its associated sequelae of Mr Chalmers’ frequent incarceration, and breakdown of the intimate aspect of his relationship with the mother of his son, reflects a pre-existing condition-related impairment which intensified and exaggerated the impairing effect of the trauma (seen in his post-traumatic stress disorder) he undoubtedly suffered at the time of the fire.
The effect of Mr Chalmers’ opioid disorder is evident in his ongoing inability to maintain consistent employment, that pre-existed his 2016 incarceration. This reflects the impairing effect of this substance abuse disorder in the PIRS category of adaptation and employability. Further his pre-existing substance abuse disorder had also impaired the relationship with the mother of his child, and to some degree this continues. His current impairment in the domain of social functioning is contributed to by his pre-existing impairment in this domain.
The total deduction made by Dr Parmegiani we find however to be excessive, and in the light of all the evidence, find a 1/10h deduction to be appropriate. This is not at odds with evidence before the Medical Assessor and any more precise deduction would be impossible to determine.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 February 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | M1-673/21 and M2-673/21 |
Applicant: | The GEO Group Australia Pty Ltd |
Respondent: | Wesley Cvelbar Chalmers |
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 Medical Assessor Dr Gerard Chew 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) |
| Psychiatric/ psychological | On or about 28 July 2016 | Chapter 11 Page 54 | - | 15% | 1/10th | 13.5 = 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
2
0