The Geo Group Australia Pty Ltd v Cicerkofski

Case •

[2023] NSWPICMP 641

•

5 December 2023
DETERMINATION OF APPEAL PANEL
CITATION: The GEO Group Australia Pty Ltd v Cicerkofski [2023] NSWPICMP 641
APPELLANT: The GEO Group Australia Pty Ltd
RESPONDENT: Jason Cicerkofski
APPEAL PANEL
MEMBER: Jacqueline Snell
MEDICAL ASSESSOR: Nicholas Glozier
MEDICAL ASSESSOR: Ash Takyar
DATE OF DECISION: 5 December 2023
CATCHWORDS: 

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; alleged error due to failure to adhere to paragraph 11.10 of the WorkCover Guidelines and alleged error to deduct 20% under section 323 with suggestion assessment the pre-existing psychological condition was “too costly to determine”; Held – Medical Assessment Certificate confirmed; consideration of tension between paragraph 11.10 of the WorkCover Guidelines and section 323.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 9 August 2023 the GEO Group Australia Pty Ltd (GEO Group) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 July 2023.

  2. 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.

  3. 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.

  4. 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.

  5. The assessment of permanent impairment is generally 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)

RELEVANT FACTUAL BACKGROUND

  1. Jason Cicerkofski (Mr Cicerkofski) was an inmate at Parklea Correctional Centre.
    Mr Cicerkofski suffered psychological injury on 5 March 2018. Mr Cicerkofski 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 was the management company in charge of Parklea Correctional Centre at the time of Mr Cicerkofski’s injury.

  2. Section 26C of the Civil Liability Act provides that Mr Cicerkofski has no entitlement to damages unless his injury results in a degree of permanent impairment assessed as at least 15% whole person impairment (WPI) and pursuant to s 26D of the Civil Liability Act the assessment of WPI 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.

  3. On 13 February 2023 Mr Cicerkofski lodged an Application for Assessment by Medical Assessor in respect of a threshold dispute for offender in custody damages claim and as noted, Dr Suman, psychiatrist, was appointed as the Medical Assessor and provided a MAC dated 12 July 2023.  The Medical Assessor assessed Mr Cicerkofski with 18% WPI resulting from injury sustained on 5 March 2018.

PRELIMINARY REVIEW

  1. 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.

  2. The GEO Group did not request that Mr Cicerkofski be re-examined by a Medical Assessor who is a member of the Appeal Panel.

  3. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Cicerkofski to undergo a further medical examination.

EVIDENCE

Documentary evidence

  1. 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

  1. 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

  1. Both parties made written submissions. They are not repeated in full but have been carefully considered by the Appeal Panel.

  2. In summary, the GEO Group in essence submits that with reference to s 327(c) and s 327 (d) of the 1998 Act the Medical Assessor made a demonstrable error by failing to adhere to paragraph 11.10 of the Guidelines by failing to assess the WPI sustained by Mr Cicerkofski resulting from his pre-existing condition in circumstances where such WPI can be assessed by reference to significant clinical evidence presented to the Medical Assessor. The GEO Group quibbles with the Medical Assessor’s deduction of 20% under s 323 (1) of the 1998 Act in that the GEO Group submits the Medical Assessor was bound by the Guidelines to undertake a psychiatric impairment rating scale (PIRS) assessment of the pre-existing psychological condition suffered by Mr Cicerkofski so as to enable assessment of WPI and was in error to suggest assessment of the pre-existing psychological condition suffered by
    Mr Cicerkofski was “too costly to determine”.

  3. In reply, Mr Cicerkofski in essence submits that while the Medical Assessor was alerted to the complicated pre-existing psychological condition by Mr Cicerkofski it was not unreasonable for the Medical Assessor to exercise his clinical judgement and expertise to not adhere to paragraph 11.10 of the Guidelines and make deduction of 20% under s 323 (1) of the 1998 Act.

FINDINGS AND REASONS

  1. 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.

  2. In New South Wales Police Force v Registrar of the Workers Compensation commission of New South Wales[1] Davies J considered the form of the words used in s 328(2) of the 1998 Act and said “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those demonstrable errors identified by a party in its submissions.

    [1] [2013] SC 1792.

  3. Although in Campbelltown City Council v Vegan[2] the Court of Appeal held that an Appeal Panel is obliged to give reasons, where there are disputes of fact and it may be necessary to refer to evidence or other material on which findings are based, the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, while it is necessary to explain why one conclusion is preferred, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

    [2] [2006] NSWCA 284.

Considerations

  1. In submission, complaint is made by the GEO Group that the Medical Assessor failed to adhere to paragraph 11.10 of the Guidelines by failing to assess the WPI sustained by
    Mr Cicerkofski resulting from his pre-existing condition in circumstances where such WPI can be assessed by reference to significant clinical evidence presented to the Medical Assessor; complaint is made by the GEO Group that the Medical Assessor made a deduction of 20% WPI under s 323 (1) of the 1998 Act in circumstances where the Medical Assessor was bound by the Guidelines to undertake a PIRS assessment of the pre-existing psychological condition suffered by Mr Cicerkofski so as to enable assessment of WPI, and complaint is made by the GEO Group that the Medical Assessor suggested assessment of the pre-existing psychological condition suffered by Mr Cicerkofski was “too costly to determine”.

  2. Firstly, we consider it useful to note the guideline provisions and legislative provisions central to complaint made by the GEO Group.

Guidelines

  1. Section 376 of the 1998 Act relevantly provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury.

  2. With reference to the provisions of Chapter 1 of the Guidelines:

    (a)    paragraph 1.6 provides that the task of the Medical Assessor was to clinically assess Mr Cicerkofski as he presented on the day of the assessment considering Mr Cicerkofski’s relevant medical history and all available relevant medical information to determine the degree of permanent impairment resulting from injury sustained on 5 March 2018. In calculating the degree of permanent the Medical Assessor is to identify and calculate deduction for pre-existing injury/condition;

    (b)    paragraph 1.27 provides that the degree of permanent impairment resulting from any pre-existing injury/condition should not be included in the final calculation of permanent impairment if such permanent impairment is not related to the compensable injury. The Medical Assessor is to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury, and

    (c)    paragraph 1.28 provides that in assessing the degree of permanent impairment resulting from the compensable injury, the Medical Assessor is to indicate the degree of impairment due to previous injury, pre-existing condition, or abnormality.  The proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the Medical Assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.

  3. With reference to Chapter 11 of the Guidelines:

    (a)    paragraph 11.1 provides for the method of assessing psychiatric impairment, and

    (b)    paragraph 11.10 provides:

    “To 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.”

Section 323 of the 1998 Act

  1. Section 323 of the 1998 Act relevantly provides:

    “(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 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;

    (3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter, and

    (4)     The Guidelines may make provision for or with respect to the determination of the deduction required by this section.”

  2. Secondly, we consider it useful to note authority relevant to both assessment of any deduction to be made in accordance with s 323 of the 1998 Act and any inconsistency between s 323 of the 1998 Act and paragraph 11.10 of the Guidelines.

  3. The approach to be taken by a Medical Assessor in assessing any deduction to be made in accordance with s 323 of the 1998 Act was considered by Schmidt J in Cole v Wenaline Pty Ltd (Cole):[3]

    “… the section is directed to a situation where there is a pre-existing injury, pre-existing condition, or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition, or abnormality caused or contributed to that impairment.

    Section 323 does not permit that assessment be made based on an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition, or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 232(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment.’ Even then, that assumption is displaced, if it is odds with available evidence.

    … That is a matter of fact to be assessed on the evidence led in each case.”

    [3] [2010] NSWSC 78.

  4. The making of a deduction in accordance with s 323 of the 1998 Act was also considered by Campbell J in Ryder v Sundance Bakehouse (Ryder):[4]

    “What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expenses) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality.”

    [4] [2015] NSWSC 526.

  5. In Marks v Secretary, Department of Communities and Justice (No 2)[5] (Marks No 2) Simpson AJ relevantly discussed tension arising between s 323 of the 1998 Act and paragraph 11.10 of the Guidelines. Simpson AJ stated:

    “The proposition that a guideline inconsistent with statue could take precedence is contrary to authority.

    …

    There is nothing in either s 376 of s 323(4) that authorises the issue of guidelines that are inconsistent with a provision of the WIM Act. It is implicit, even if not expressly stated, in any conferral of power to make regulations, guidelines, or any other kind of delegated legislation (if that is what guidelines are) that the exercise of the power be consistent with the provisions of the legislation under which the power is conferred. So much is explicit in s 323(4), on which the plaintiff placed some weight. Subsection (4) authorises the State Insurance Regulatory Authority to make provision “for or with respect to the determination of the deduction required by his section” (emphasis added). That leads inexorably back to subs (1), construed in accordance with established authority.

    I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid.”

    [5] [2021] NSWSC 616.

  6. The decision in Marks (No 2) establishes that paragraph 11.10 of the Guidelines is inconsistent with s 323(1) and invalid in circumstances where there is a pre-existing but asymptomatic condition. Subsequently a Medical Appeal Panel in Camden Council v Harle[6](Harle) considered the issue in circumstances where there is a pre-existing symptomatic condition rather than a pre-existing asymptomatic condition, with determination that paragraph 11.10 of the Guidelines is inconsistent with s 323(1) of the 1998 Act and invalid in circumstances where there is a pre-existing symptomatic condition.  In reaching such determination the Medical Appeal Panel discussed at some length the focus on paragraph 11.10 of the Guidelines in Marks (No 2) and also discussed at some length the focus on s 323 of the 1998 Act in Cole, Elcheikh v Diamond Formwork (NSW) Pty Ltd[7] and Ryder. Although we are not bound by the Medical Appeal Panel’s determination in Harle we have no quibble with the Appeal Panel’s reasoning and determination that paragraph 11.10 of the Guidelines is inconsistent with s 323(1) of the 1998 Act and invalid in circumstances where there is a pre-existing symptomatic condition.

    [6] [2022] NSWPICMP 339.

    [7] [2013] NSWSC 365.

  7. We consider it is useful to note at this point too that Campbell J described the task of the Medical Assessor in State of New South Wales v Kaur:[8]

    “In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:

    ‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’

    Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

    ‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”

    [8] [2016] NSWSC 346.

Review of the Medical Assessment Certificate

  1. Relevant to the history of the injury Mr Cicerkofski sustained on 5 March 2018 the Medical Assessor recorded in part:

    “Mr Cicerkofski told me that he had been doing well in his mental health and general functioning before being placed in custody in 2016. He told me, ‘This was my second custody. I was doing okay. I was not on any medication or seeing a psychiatrist/psychologist before I was placed in custody. In custody, I was stressed because of usual stressors although I did not see a psychologist/psychiatrist in gaol or receive any antidepressant treatment.’ Mr Cicerkofski was not forthcoming related to illegal drug use in custody. He told me that he was initiated on Methadone substitution after the assault in March 2018.

    …

    Mr Cicerkofski highlighted that he had been struggling with the physical injuries from the first assault. The second assault led to him experiencing significant anxiety and distress, ‘I could not sleep at night. I was having nightmares. All the while, it was three-man attacking me.’ Mr Cicerkofski told me he would wake up early due to nightmares. ‘I couldn’t go back to sleep.’ Mr Cicerkofski told me that he preferred staying in the cell. He told me, “I was experiencing anger, embarrassment, and anxiety all the time. I was not sure how to handle it.” Mr Cicerkofski told me that the traumatic event kept playing in his mind. ‘I couldn’t stop it. It was getting hard for me to deal with it.’ Mr Cicerkofski told me that he would experience severe discomfort in his tummy. ‘I would start feeling like throwing up. I have continued to have that feeling to date.’

    Mr Cicerkofski told me that he avoided any social interaction since the incident. He told me, ‘I was worried about my safety.’ Mr Cicerkofski experienced a gradual decline in his mood following the second assault. He tried committing suicide ‘I tried hanging myself in the custody cell.’ Mr Cicerkofski told me that he did not disclose it to anyone till it was discovered by one of the correctional officers. Mr Cicerkofski told me that he was accordingly referred to the Correctional Centre Clinic, where he started receiving treatment ‘I was started on Avanza (antidepressant) and Olanzapine (antipsychotic). They later started me on Methadone’. Mr Cicerkofski highlighted that he was later moved to Long Bay Prison Hospital to manage his mental and physical health stressors.

    Mr Cicerkofski told me that from 2018 till his release in 2020, he continued to struggle with severe anxiety and avoidance behaviour. He continued to experience nightmares and recurrent flashbacks of the incident, ‘I had never experienced that before. I did not know how to deal with it.’

    …

    Mr Cicerkofski told me that he continued to experience nightmares and flashback related to the assaults he experienced in custody. He told me that he continued to comply with his medication and other illegal drugs. ‘I was using marijuana and heroin in addition to my medication to numb myself.’ Mr Cicerkofski told me that he preferred staying at home as he felt unsafe leaving his place. He told me that he would experience severe nausea and retching if he were to remember about the assault.

    On further diagnostic clarification, it is evident that Mr Cicerkofski has continued to struggle with post traumatic stress disorder symptoms since being assaulted in custody in March 2018. He continued to experience fluctuating mental health despite psychotherapeutic input in custody and following his release from custody. While in the community, he continued to rely on excessive illegal drugs in addition to the psychotherapeutic input he received. His mental health stressors affected his ability to get involved in a romantic relationship and his general functioning. Since release from custody, he has relied on his mum, who has provided ongoing support and care. He has avoided taking on any work commitments, “I feel anxious around men.”

  1. Relevant to the past psychiatric history of Mr Cicerkofski, the Medical Assessor recorded:

    “Mr Cicerkofski denied receiving long-term psychotherapeutic input before 2018.

    Mr Cicerkofski told me that he overdosed when he was 18. ‘It was a relationship breakdown. I did not see a psychiatrist or try psychotropic medication after that event.’

    Mr Cicerkofski told me that he had been stressed during his previous incarceration, ‘I was started on Avanza 15mg halfway through the incarceration. I stopped it once I was released.’

    Mr Cicerkofski’s description indicates him struggling with mixed anxiety and depressive symptoms in the context of any psychosocial stressors. He presents with limited coping abilities and experiences affective dysregulation (personality deficits).”

  2. Relevant to the personal history of Mr Cicerkofski, the Medical Assessor recorded in part:

    “Mr Cicerkofski told me that being involved with illegal drugs and having a criminal record prevented him from getting a job. As per the limited review, it is evident that
    Mr Cicerkofski struggled to manage relationship stress and extensive illegal drug use. Diagnosing his personality structure based on one assessment is difficult, although the information available does indicate an antisocial personality disorder. Clinical notes do indicate the possibility of borderline personality traits, although I have not been able to clarify this diagnosis as per the review today.”

  3. Relevant to his discussions with Mr Cicerkofski’s mother, the Medical Assessor recorded:

    “I contacted Ms Jackie Cicerkofski on 11th July 2023 to gather collateral information about Mr Jason Cicerkofski’s early development and mental health issues. I wanted to gather detailed information about

    -     pre-existing mental illness (before incarceration in 2016),

    -     his functioning (before his incarceration in 2016), and

    -     calculate a PIRS before 2018

    Ms Cicerkofski told me that Mr Jason Cicerkofski did not struggle with any mental health issues during his early childhood/teenage years. She denied a history indicative of his struggling with conduct disorder issues or any criminal charges in his teens. She was somewhat vague in regard to his illegal drug abuse, although she denied a history of alcohol use disorder.

    Ms Cicerkofski told me that Mr Jason Cicerkofski moved out of his family home in his early 20s. He would generally stay at his dad’s place and with his girlfriend. She had little information about his functioning and vocational achievement during his early 20s. I was not able to elicit detailed information to come to a conclusion about Mr Jason Cicerkofski’s mental health diagnosis, functioning or calculate PIRS before 2018.”

  4. The Medical Assessor recorded in some detail his review of the medical information provided to him, which included the reporting of Dr Canaris and A/Prof Davies in their capacity as independent medical examiners, the reporting of Ms Martin-Smith in her capacity as
    Mr Cicerkofski’s treating psychologist, and the reporting of Dr Pryor in his capacity as
    Mr Cicerkofski’s treating neurologist.  Of note is that the Medical Assessor recorded that
    Dr Canaris had provided assessment of 24% WPI with deduction of 1/10th for pre-existing condition, resulting in a 22% WPI, and A/Professor Davies had ultimately provided assessment of 17% WPI with deduction of 7% WPI for pre-existing condition, resulting in a 10% WPI. The Medical Assessor also noted the two statements provided by Ms Cicerkofski dated 4 August 2021 and 9 August 2021. He said of these statements that
    Ms Cicerkofski:

    “… has provided details of the changes she had noticed since Mr Jason Cicerkofski was released from prison. She has highlighted a history indicative of significant self-neglect and excessive anxiety since.” 

  5. The Medical Assessor provided summary and opinion:

    “Mr Cicerkofski is a young gentleman living with his mum at his mum’s place in Connells Point.

    Mr Cicerkofski provided me with a history of his struggle with polysubstance abuse since he was 18. He has been involved with significant criminal activity leading to two incarcerations. History does indicate polysubstance use disorder and antisocial personality disorder. Mr Cicerkofski had previously received short term input from mental health clinicians, although I was not able to elicit any history of pervasive mood or anxiety disorder before March 2018.

    Mr Cicerkofski was assaulted twice in custody in March 2018. He decompensated following the second assault, where he was subjected to sexual assault. Mr Cicerkofski’s presentation since then indicate him struggling with classic post-traumatic stress disorder symptoms. He had received psychotherapeutic input in custody and following his discharge in 2020 Mr Cicerkofski experienced fluctuating mental health with little improvement despite assertive psychotherapeutic input. Since being discharged from custody, he has relied on psychotropic treatment and illegal drug use.

    Mr Cicerkofski’s recent presentation indicates his ongoing struggle with post-traumatic stress disorder. He has struggled with his activities of daily living and household chores, requiring increasing care input from his mum.

    It is to be noted that Mr Cicerkofski had struggled with mood and behaviour disturbance secondary to personality deficits and polysubstance use disorder before 2018. His presentation since the assault in March 2018 does indicate the diagnosis of post-traumatic stress disorder, which has added to his mental health stressors, i.e., post-traumatic stress disorder symptoms are in addition to Mr Cicerkofski’s struggle with antisocial personality disorder and extensive polysubstance abuse.

    Mr Cicerkofski responded partially to the psychotherapeutic input he received. His recent presentation indicates ongoing post-traumatic stress disorder symptoms.

    Overall, as per the review today, I am of the opinion that Mr Cicerkofski’s presentation/symptoms satisfy the criteria:

    -     Post traumatic stress disorder

    -     Antisocial personality disorder

    -     Polysubstance disorder.”

  6. The Medical Assessor then provided comment relevant to his deduction for the proportion of the impairment due to previous injury or pre-existing condition or abnormality:

    “a. In my opinion, the worker suffers from the following relevant previous injuries, pre-existing conditions, or abnormalities:

    (i)   Antisocial personality disorder and Polysubstance use disorder.

    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 matters taken into account in 10a, and in the following ways:

    (ii) Antisocial personality disorder and Polysubstance use disorder increased his vulnerability to experiencing mood and anxiety disorder. Polysubstance use disorder is a perpetuating factor towards his current presentation.

    c. The extent of the deduction is difficult or costly to determine, although there is enough evidence to indicate that the pre-existing mental health issues significantly increased Mr Cicerkofski’s vulnerability to experiencing a psychological injury when exposed to a traumatic life event.

    Note – while there is enough evidence indicative of pre-existing mental health issues before March 2018, it has been difficult to ascertain WPI before March 2018. Hence, I have made a deduction of 20% of the final WPI score, as highlighted below. I have considered 20% as a reasonable deduction considering Mr Cicerkofski’s pre-existing complex mental health issues, as highlighted above.”

  7. In providing assessment of 22% WPI, the Medical Assessor made deduction of 4% WPI for pre-existing injury, condition, or abnormality, resulting in 18% WPI. The Medical Assessor relevantly explained:

    “Note – I do not have enough collateral information to ascertain Mr Cicerkofski’s pre-existing functional deficits (related to his mental health issues) before March 2018. Although his pre-existing complex mental health issues indicate a deduction of more than 10%. I have deducted 20% of the WPI score, which is a clinically reasonable and relevant deduction for a pre-existing psychological condition.”

Review of the treating medical evidence

  1. It is evident from the medical information made available by Mr Cicerkofski’s treating practitioners that he has a history of opiate and crystal methamphetamine use, overdose, a suicide attempt in 2012 in the context of a relationship breakdown, and psychological fragility following an earlier assault in 2017 during incarceration. It is evident that Mr Cicerkofski suffers from multiple sclerosis, having been diagnosed as a child, with his condition deteriorating during his incarceration. It is also evident that Mr Cicerkofski found his childhood difficult, with his parents divorcing while he was quite young and with reported bullying at school.

  2. It is clear from the medical information made available by Mr Cicerkofski’s treating practitioners that Mr Cicerkofski has a complex history of pre-existing psychological fragility compounded by extensive use of and dependence on crystal methamphetamine since the age of 18 years. While Mr Cicerkofski is an unreliable historian, the Medical Assessor was aware of this and requested corroborative evidence from Ms Cicerkofski addressing Mr Cicerkofski’s pre-existing psychological condition.

Review of independent medical evidence

Dr Canaris

  1. Dr Canaris had the opportunity to assess Mr Cicerkofski on 18 January 2022. Dr Canaris provided a report dated 18 January 2022. Dr Canaris recorded a history of injury occurring on 5 March 2018, subsequent treatment, and sequelae. Although Dr Canaris provided no specific past psychiatric history, he reported an admitted history of school truancy, illicit drug use, and problems with the law, which he considered raised “the possibility of an antisocial personality disorder diagnosis or at least antisocial personality traits”. Dr Canaris also said of Mr Cicerkofski that “he may well have had a pre-existing substance use disorder”.

  2. In providing assessment of WPI resulting from injury, Dr Canaris provided an assessment of 24% but added:

    “Although he presents himself as normally functioning before his incarceration, it would be prudent given that he may have a history of pre-existing substance use disorder to deduct 1/10 from this yielding a final Whole Person Impairment of 22%.”

Associate Professor Davies

  1. A/Prof Davies had the opportunity to assess Mr Cicerkofski on 7 September 2022. A/Prof Davies provided two reports. A/Prof Davis’ initial report is dated 6 October 2022 and his subsequent report is dated 3 May 2023. In his initial report A/Prof Davies recorded a history of injury occurring on 5 March 2018, subsequent treatment, and sequelae. A/Prof Davies provided a medical history, which included diagnosis of multiple sclerosis with recent exacerbation and diagnosis of attention deficit disorder. A/Prof Davies also noted Mr Cicerkofski’s history of substance abuse, overdose, and prior incarceration.  In response to specific questioning, A/Prof Davies described Mr Cicerkofski as suffering from depression and substance abuse prior to his recent incarceration during which he suffered assault and injury.

  2. In his subsequent report, following review of further treating medical information,
    A/Prof Davies accepted such further medical information “allows a better estimate regarding Mr Cicerkofski’s functioning” prior to the assaults occurring during his recent incarceration, and provided assessment of 7% WPI for pre-existing injury which is to be subtracted from his assessment of 17% WPI, providing 10% WPI.

Consideration

  1. In essence, complaint is made by the GEO Group that (a) the Medical Assessor failed to adhere to paragraph 11.10 of the Guidelines by failing to assess the WPI sustained by
    Mr Cicerkofski resulting from his pre-existing condition in circumstances where such WPI can be assessed by reference to significant clinical evidence presented to the Medical Assessor, (b) the Medical Assessor made a deduction of 20% WPI under s 323 (1) of the 1998 Act in circumstances where the Medical Assessor was bound by the Guidelines to undertake a PIRS assessment of the pre-existing psychological condition suffered by Mr Cicerkofski so as to enable assessment of WPI, and (c) the Medical Assessor suggested assessment of the pre-existing psychological condition suffered by Mr Cicerkofski was “too costly to determine”.

  2. We have carefully reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusion. We have also carefully reviewed the medical evidence provided by Mr Cicerkofski’s treating practitioners and the independent medical examiners who were provided with the opportunity to psychiatrically assess him.

  3. While A/Prof Davis reported that on his reception into incarceration in 2014
    Mr Cicerkofski reported feelings of “depression, hopelessness and despair”, on assessment Mr Cicerkofski told the Medical Assessor that he had been doing well in his mental health and general functioning before being incarcerated in 2016, which was his second period of incarceration, his first having been in 2014.  The Medical Assessor reported Mr Cicerkofski had told him:

    “This was my second custody. I was doing okay. I was not on any medication or seeing a psychiatrist/psychologist before I was placed in custody.”

  4. While it is apparent Mr Cicerkofski had previously been assaulted in custody prior to March 2018, which is noted by Dr Spira, who had the opportunity to neurologically review Mr Cicerkofski on or about 7 June 2017, Mr Cicerkofski makes no mention of this assault to either Dr Canaris, A/Prof Davis of the Medical Assessor on assessment. The gaol clinical records indicate that in late 2017 Mr Cicerkofski was anxious, with panic attacks and “bad dreams” during the period following this earlier assault and was diagnosed with post-traumatic stress disorder in September 2017. The gaol clinical records indicate Mr Cicerkofski was prescribed methadone in 2017 and continued to present at the gaol medical centre with complaint of psychological problems throughout late 2017 and into early 2018.  As such, we consider Mr Cicerkofski symptomatic at the time he sustained his psychological injury on 5 March 2018.

  5. We accept then that prior to Mr Cicerkofski sustaining psychological injury on 5 March 2018, there is no doubt he suffered a pre-existing psychological condition (which is accepted by the Medical Assessor, Dr Canaris and A/Prof Davies,) and we accept that prior to Mr Cicerkofski sustaining psychological injury on 5 March 2018, Mr Cicerkofski remained symptomatic.

  6. It follows we are of view that the Medical Assessor has made no demonstrable error by failing to adhere to paragraph 11.10 of the Guidelines as submitted by the GEO Group.  In circumstances where we are of the view that in Mr Cicerkofski’s case paragraph 11.10 of the Guidelines is inconsistent with s 323(1) of the 1998 Act and invalid, we do not accept the GEO Group’s submission that the Medical Assessor erred because of (a) his failure to adhere to paragraph 11.10 of the Guidelines which required him to assess the WPI sustained by Mr Cicerkofski resulting from his pre-existing condition in circumstances where such WPI can be assessed by reference to significant clinical evidence presented to him and (b) he made a deduction of 20% WPI under s 323 (1) of the 1998 Act in circumstances where he was bound by the Guidelines to undertake a PIRS assessment of the pre-existing psychological condition suffered by Mr Cicerkofski so as to enable assessment of WPI.

  7. Neither do we accept the GEO Group’s submission that the Medical Assessor erred because he formed the view assessment of Mr Cicerkofski’s pre-existing condition was “too costly determine” in circumstances where there was significant clinical evidence presented to the Medical Assessor to enable him to undertake an assessment of pre-injury impairment using the PIRS. While the clinical evidence demonstrates Mr Cicerkofski was symptomatic prior to suffering injury on 5 March 2018 (to a large extent from the earlier assault he suffered in or about 2017) there is no evidence as to the level of impairment arising from that pre-existing psychological condition.

  8. Relevant to such “significant clinical evidence”, in submission the GEO Group made specific reference to “clinical records, other materials and Dr Suman’s interview with the plaintiff’s mother” and noted the Medical Assessor had reference to Southern Neurology Clinical Records, Amara Psychological Clinical Records, St George Hospital Clinical Records, and Prince of Wales Hospital. While it is true the material made available to the Medical Assessor demonstrated Mr Cicerkofski suffered both a pre-existing psychological condition of significance and polysubstance abuse, following review of such material we comprehend the Medical Assessor’s difficulty in undertaking a PIRS assessment of the pre-existing psychological condition suffered by Mr Cicerkofski. In undertaking an assessment of impairment of the pre-existing psychological condition using the PIRS, the Medical Assessor would be required to address specific areas of Mr Cicerkofski’s functional impairment (being self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability), and we are of the view that a number of these functional impairments are not readily apparent from the material available to the Medical Assessor.  We are of the view that although assessment of impairment relevant to self-care and personal hygiene may be possible, assessment of social and recreational activities, social functioning, concentration, persistence and pace, and employability and travel is not possible while a person is incarcerated, as was Mr Cicerkofski.

  9. We do not accept the GEO Group’s submission that the Medical Assessor “either had to undertake the effort of calculating the plaintiff’s pre-morbid PIRS, or if too costly or difficult, deduct a blanket 10%”. Section 323(2) of the 1998 Act provides for an assumed deduction of 10% in circumstances where the extent of a deduction under s 232 “will be difficult or costly to determine” unless such assumption “is at odds with the available evidence.” The Medical Assessor explained that while “it has been difficult to ascertain WPI before March 2018”, a view with which we concur, he is of the view there is sufficient evidence of Mr Cicerkofski’s pre-existing “complex mental health issues” (which he identified in terms of “antisocial personality disorder and Polysubstance use disorder”) to enable deduction of 20% WPI, a view with which we also concur.  As the GEO Group correctly submits there was “significant clinical evidence” before the Medical Assessor relevant to Mr Cicerkofski’s pre-existing psychological condition and while such evidence may not have been sufficient to enable assessment of impairment by the Medical Assessor using PIRS, we consider such evidence clearly supports the deduction of 20% made by the Medical Assessor and such evidence is at odds with an assumed deduction of 10%. 

CONCLUSION

  1. For these reasons, the Appeal Panel has determined that the MAC issued on 12 July 2023 should be confirmed.


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

0

Campbelltown City Council v Vegan [2006] NSWCA 284
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Ryder v Sundance Bakehouse [2015] NSWSC 526