Transport for NSW v Naysmith
[2023] NSWPICMP 228
•29 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Transport for NSW v Naysmith [2023] NSWPICMP 228 |
| APPELLANT: | Transport for NSW |
| RESPONDENT: | Kane Naysmith |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 29 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in failing to make a deduction pursuant to section 323; Panel found that the worker had a significant pre-existing condition but was nonetheless able to work for many years; Panel considered that on the whole of the evidence a 30% deduction was appropriate; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 March 2023 Transport for NSW (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Andrew McClure, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 10 February 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the 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).
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 initially, the appellant did not request any re-examination however, in submissions it was stated that: “The appellant seeks that the worker be re-examined by a different Medical Assessor and/or in the alternative, the MAC should be reviewed on the papers by the Medical Appeal Panel.”
The Panel is satisfied that we have sufficient evidence before us to enable us to determine this appeal without any re-examination of Mr Naysmith.
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.
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 MA erred in failing to make a deduction for a pre-existing condition pursuant to s323 of the 1998 Act.
In reply, Kane Naysmith (the respondent) submits that no errors were made.
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 respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury on 3 March 2021
The MA obtained the following history:
“Symptoms began, according to the applicant, several years before the nominated injury date. He had started work in the emergency road patrol in January 2011. He says that he worked long hours and actually held two roles and was on-call ‘24 hours a day, every day of the year’ as both supervisor of five depots and 26 staff and acting traffic supervisor of the Newcastle region.
He claims that he started work at 7am in Sydney daily, then at 12 had to leave to arrive in Newcastle by 1pm and work until 9pm.
He also states that he was ‘harassed’ and micromanaged by his manager, Terry McKay.
In 2018 he was admitted to hospital on the Central Coast on cardiac monitoring after having a panic attack on the freeway. He thought that he was having a heart attack. The diagnosis was ‘exhaustion.’ He was dehydrated, and needed fluid replacement in hospital. He was told to rest. His boss, however, allegedly told him to come to work at 7am the following morning and he was once again on-call that night.
He complained about filling two roles at once but was allegedly told that he could not fill a supervisor’s role unless he did so.
He says that his job also required that he attend traffic accidents, mostly on the M1 (F3) Freeway. He states that he saw a number of fatalities. He began to have nightmares about these, and daytime intrusive memories.
There is one particular traffic accident that stands out. This was a head-on collision on the freeway. A male driver was arrested by police, ‘at least six of them.’ None of the police there had handcuffs. Three officers allegedly lay on the driver and eventually suffocated him. The official cause of death, however, was a methamphetamine overdose. The applicant can recall this individual being highly agitated and calling out ‘I’m on fire.’
Mr Naysmith commenced psychological counselling approximately two years ago, referred by his GP, Dr Michael Malek. He may even have started, in fact, before departing on sick leave on the nominated date of injury. He is now seeing a psychiatrist and a psychologist.
In recent years he has tried a number of antidepressants, possibly including escitalopram and duloxetine, and currently agomelatine.
The applicant has been aware of symptoms of anxiety and depression since his first panic attack in 2018. His doctor has prescribed him ‘Valium’ (diazepam) to be taken if a panic attack impends, and it does so roughly twice a week. In the last week, he says, the panic attacks have been coming daily. He is not aware of any precipitant but on directed questioning is able to identify crowded places and delays (e.g. traffic jams and queues). His telephone is now always on silent mode as he would jump whenever it rang. Telephone calls would almost always indicate some emergency situation on the freeway. He says that he has had to change his telephone number as his boss was ‘threatening to come to…(his) house.’
His mood has been low and he has experienced thoughts of suicide with two attempts. His sleep has been broken and there are regular vivid, sometimes frightening, dreams. He has lost his appetite and has been lacking motivation. There has been little improvement despite treatment.
On the nominated day of injury Mr Naysmith had attended a meeting at the Sydney office. He states that he cannot remember the details. There was apparently an argument with a manager. This may have related to the fact that the applicant was unable to apply for his supervisor’s position as he was only acting in the role. He walked out and left work, travelling back to his home on the Central Coast, but the drive is a ‘blur.’ He denies any alcohol use. He apparently attempted to pick up his youngest daughter from her school but she was distressed. Police were called when he allegedly assaulted his ex-wife Shelley. Police were said to have video footage of the event. On the following day Mr Naysmith woke in hospital, handcuffed to the bed with little memory of the past 24 hours. He was charged with assaulting police. Apparently three officers had been injured.
There was also, around that time, an attempt at suicide. Mr Naysmith says that he was apprehended running naked on the road, attempting to be running over.
There was a second episode with police, in which he was charged with resisting arrest, early last year. He had attempted to harm himself by cutting. An ambulance was called but he declined to accompany the officers to hospital, instead taking a ‘Valium’ and going to bed. However police arrived soon after. Mr Naysmith was sprayed with OC spray, which agitated him more, and taken into custody, charged with resisting arrest and assaulting police.
In Court he pleaded guilty, as recommended by his solicitor. A conviction was recorded. He was placed on a bond to be of good behaviour for some 18 months (expiring late last year). He had to follow all medical directions and abstain from alcohol and all drugs.
Mr Naysmith has also had a Community Corrections Order and had to attend the Probation Office regularly.
His ex-wife, meanwhile, has had an Apprehended Violence Order issued which prevents Mr Naysmith from seeing his daughters, who live with her. This case has gone to Court several times but been adjourned and Mr Naysmith says that he can no longer afford the legal fees. There is a further hearing later this year.
Mr Naysmith actually sent gifts to his daughters for Christmas (2022) as well as a ‘Happy Christmas’ SMS. He alleges that he was arrested for breaching his wife’s AVO and was ‘locked up on Boxing Day.’ He says that eventually he consented to the AVO but ‘without admissions’ and it expires around mid-2023 however the Order has been ‘split’ to cover his children. He has to apply to the Family Court to see the younger two (aged almost 11 and almost 15) but cannot afford this. He states that his ex-wife had refused mediation.
Despite various documentary entries in the file, Mr Naysmith denies significant substance use. He states that he has never used illicit substances. He claims that Dr Weir ‘lied’ in his notes taken in June 2021. He had asked for a prescription for diazepam. His regular doctor was unavailable. Dr Weir accused him of overusing codeine (for a chronic lower back and neck injury) which Mr Naysmith denied.
The request for diazepam was refused. Dr Weir’s notes indicate that Mr Naysmith admitted during this consultation drinking up to a bottle of vodka a day for the past two years. The applicant strenuously denies making any such admission. He never drank more than ‘a couple at night on days off’ and currently would have two drinks a night and no more.”
After setting out details of Mr Naysmith’s present treatment regime, the MA then noted present symptoms as follows:
“Mr Naysmith has persistent depression though this tends to fluctuate ‘like a rollercoaster.’ Enjoyment is rare and he does not experience pleasure. He continues to have suicidal thoughts but there have been no further attempts. There are vivid, and often distressing, ‘very strange…’ dreams most nights. The head-on accident on the freeway (described above) often features. The applicant also experiences regular ‘blackouts.’
He has panic attacks ‘at least once or twice a week’, and lately daily, requiring diazepam. They can occur without a precipitant. The sight of police is a particular trigger. He had no criminal history prior to 2021. Mr Naysmith insists that he is being ‘targeted’ now by police.
He lacks motivation. His ‘carer’ does all the housework and usually cooks his evening meal. The garden and lawns are tended by a contractor. The applicant showers himself, but not daily, and may or may not wear clean clothes (he picks up whatever is on the floor). He cleans his teeth if he remembers.
He says that he has been ‘bloating’ after meals and has therefore reduced his food intake, losing 5-10kg as a result. He has lost his motivation to exercise and has not attended a gymnasium in several months.
Generalised anxiety is ongoing and, according to Mr Naysmith, whereas once he could ‘multi-task,’ he is now ‘overwhelmed…(if he has) more than one thing on a day.’ His sister, he says, to whom he is now quite close, manages his task list for him.
He describes poor concentration. He is easily distracted. He can work on a computer for half an hour at the most. He goes out rarely and has stopped socialising. He says that he has not seen any of his friends since Christmas 2021 and avoids making telephone calls.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition,” the MA said:
“The applicant denies any previous history of psychiatric disorder; however he had a somewhat disrupted and traumatic childhood. He says that he was often ‘beaten with a belt’ for misdemeanours. He was also verbally, but not sexually, abused.
Mr Naysmith’s early years were spent in Cabramatta. His parents separated when he was aged 12. He moved out initially to a relative’s property on the south coast, returning a year or two later to live with his mother in Parramatta. She then moved with her work (Corrective Services) to Lithgow. He stayed with a family friend but moved to Lithgow to finish years 11 and 12 of high school. He lived with his mother there for about a year but she was ‘mentally abusive.’
He recalls that his father, the son of Ukrainian refugees, was a very strict man and there were occasional fist fights between his parents. He was able to ‘escape’ the family home by being a competitive swimmer. Indeed he claims to have competed in USA at the age of 12.
The family structure consists of the parents (both now deceased) and an older sister living not far away on the Central Coast, who has ‘been there’ for him since his troubles started. Their bond is much deeper now.
There is a history of physical injury in approximately 2010 when Mr Naysmith was working as a diesel mechanic. He says that he has been diagnosed as having a disc lesion in the neck and two in the lumbar spine. He has intermittent pain which he had been managing by attending a physiotherapist and a chiropractor, doing his own hydrotherapy and exercising regularly. He would use ‘Panadeine Forte’ and denies abusing this. He used it intermittently. He ‘never asked for Endone or anything.’
He states that he has taken no ‘Panadeine Forte’ since at least October. A spinal surgeon has offered him fusion but there are ‘no guarantees.’ He says that he also has a Chronic Regional Pain Syndrome of the left arm.
It was after this injury that Mr Naysmith left his career as a mechanic and started work for the Ministry of Transport.”
The MA then set out details of Mr Naysmith’s general health and the impact of his condition on his activities of daily living, set out in the Psychiatric Impairment Rating Scale, (PIRS) table attached to the MAC.
Findings on mental state examination were reported as follows:
“The applicant presented as a bearded and balding man of approximately his stated years. He was comfortably sat in his loungeroom at the home of his ex-partner/‘carer.’ He managed the software without difficulty. Both video and audio signals were of high quality.
The applicant provided a somewhat vague history, particularly where dates and sequences of events were concerned. He also reported amnesic episodes, e.g. for several hours on the nominated date of injury.
Mr Naysmith described his mood as depressed and his affect (objective emotional state, minute-to-minute) was also depressed and reduced in reactivity. There were no ‘positive’ emotions displayed.
There was occasional anxiety. There was no evidence of psychosis.”
In summarising the injuries and diagnoses, the MA said:
“Mr Naysmith does have a history of a turbulent, disrupted and somewhat abusive childhood, which is known to be a risk factor for later personality vulnerabilities and/or psychiatric disorder (particularly depression and substance use). The sentencing judge’s remarks refer to a report by forensic psychiatrist, Dr Sidorov, however this unfortunately has not been provided (though much of little relevance has been).
That psychiatrist’s opinion was that Mr Naysmith most likely has Borderline Personality traits, if not a Borderline Personality Disorder, on the basis of his emotional dysregulation, substance misuse (though this is disputed by the applicant), anger outbursts and difficulties in relationships. Considering the longitudinal history, this diagnosis may well be accurate though more information is required.
What does seem clear is that since at least early 2021, Mr Naysmith has had an ongoing psychiatric disorder relatively resistant to treatment, characterised by regular panic attacks and associated avoidance, as well as a depressed mood, thoughts of (and attempted) suicide, lack of enjoyment, sleep disturbance, change in appetite and low motivation.
His symptoms are consistent with:
·Panic Disorder
·Chronic Major Depressive Episode.”
As regards Mr Naysmith’s consistency of presentation, the MA said:
“The applicant strenuously denies heavy use of alcohol, which has been documented in the GP clinical file. He tends to minimise his own active role in his negative interactions with the law. He describes amnesia for these episodes yet he was able to give the history, to at least one of the assessing or treating doctors, that in a meeting on the nominated injury date, there was a loud confrontation with his manager (which he told me today he could not recall).
The report of Dr Aman Suman to HWL Ebsworth Lawyers (17 June 2022) quotes a report by Dr Sidorov (not made available to me) as indicating ‘previous offences of break and enter and stealing from 1992.’ However the applicant denied any previous criminal history – and, interestingly, such is not mentioned by the sentencing Magistrate.”
The MA assessed 22% WPI and made no deduction for any pre-existing condition. He said:
“The information to date indicates no previous injury, pre-existing condition or abnormality (the breakdown of the applicant’s marriage was undoubtedly a significant stressor but – up until the ‘self-inflicted’ complications resulting in loss of access to his daughters – that situation had been stable for several years).”
The MA then turned to consider the other medical opinions and documents he had and said:
“In the writer’s opinion the file of documents (a total of 570 pages) was unreasonably large. Furthermore neither the applicant nor the respondent had made any effort to bookmark individual reports and other relevant documents. Succinct summaries of the parties’ submissions were notable by their absence.
Handwritten notes, 16 June 2018 (possibly of psychologist, Geoff Orme) – presents after a panic attack, ‘depressed. Not suicidal.’ There are notes of further sessions on 13 December 2018, 11 March 2019, 19 June 2019, 19 July 2019, 11 September 2019. (At the latter consultation by telephone, ‘depressed. Not travelling well.’ Later contacted – has seen general practitioner and been prescribed Zoloft.)
NSW Ambulance Report, 3 March 2021 – ‘altered conscious state.’ Seen at Gosford Police cells, having been earlier ?assaultive [sic] requiring OC spray. ‘Minimal police at station as many are GDH due to injuries from pt. Pt spitting at door, hitting it with his elbows and kicking, swearing at all officers, aggressive +++. Pt requiring transport to GDH for further assessment and management. Able to briefly administer 100mg IM Ketamine before patient striked (sic).’ A second dose was given. ‘Police later stating history of ETOH [alcohol], cocaine and steroids all are potential.’
The applicant’s first statement dated 14 May 2021…
Seen by Dr Sidorov, psychiatrist, on 30 April 2021. He had been off work for about two months at the time of preparing this statement with a significant decrease in salary. Current medication is Mirtazapine 30mg at night. The ‘stress’ of his situation had caused his relationship with Kathy Ross to break down and he had been homeless and sleeping in his car for 3-4 weeks.
Court transcript, 28 May 2021, R v Kane Naysmith…There is evidence of a ‘dysfunctional childhood.’ Mr Naysmith recalled when he was aged 12 that his father had attempted to shoot him. A psychiatrist has made a diagnosis of Borderline Personality Disorder and Alcohol Use Disorder. The Magistrate did conclude that ‘Mr Naysmith is effectively of good character’ but given the severity of the offences (one involving an eight-year-old child), she was not disposed to use the mental health provisions in section 32 of the Act. He was sentenced to an 18-month Good Behaviour Bond, one of the conditions of which was ‘no alcohol and no drugs that are not prescribed by a doctor.’
Handwritten notes, possibly of psychologist, Rose Cantali, 11 June 2021 – ‘emotional regulation issues. Zero-100 – feeling…can’t control. Feeling frustrated. Feeling suicidal. Some self-harming behaviour, punches self, not coping. Can’t sleep.’ There is a lengthy typed treatment plan with diagnoses ‘PTSD’ (with little evidence for this produced) and ‘symptoms of depression (Dysthymia)’…
GP clinical file (Grace Medical Centre), Dr Oliver Weir, 16 June 2021…
Discharge letter from Dr W Ranasinghe, 15 October 2021, to Dr Malek – there had been improvement on medication but still quite anxious, sleeping intermittently, ‘bad dreams on and off.’ Now ‘reasonably stable’…
Reports x2 Dr Abdal Khan to Turner Freeman Lawyers, 12 February 2022 – refers to a report from a treating psychiatrist, Dr Ranasinghe (19 August 2021). An extract from that report refers to the meeting on the index date, the altercation with teachers at his daughter’s school, a suicide attempt and police involvement. There was now an AVO and an 18-month Good Behaviour Bond. Diagnosis – Major Depressive Disorder with Anxious Distress. Whole person impairment – 24%.
However I disagree with my colleague’s impairment class rating in the domain of Travel. While Mr Naysmith does avoid leaving his home, he is able to travel unaccompanied, at least over short distances in the local area, if required to do so.
Gosford Hospital Emergency Department ‘discharge referral’ 20 February 2022 – diagnosis ‘altered mental status.’ He had ‘refused all treatment or further input’…
Referral to Dr Saker, 23 February 2022 (Dr Michael Malek). Attempted self-harm 19 February 2022 (swallowing razor blades) but stopped by his housemate Kathy Ross. Transferred to hospital, ‘forcefully subdued by several police incl. pepper sprayed’…
Report of psychiatrist Dr Aman Suman to HWL Ebsworth Lawyers, 17 June 2022 – ‘limited information’ with ‘significant inconsistency…compared to the details available in the attached documents.’ Traumatic incident 3 March 2021 – ‘handcuffed by police and taken to hospital and later into custody. …He started experiencing panic attacks as he thought about the incident.’ He had seen Dr Ranasinghe, and subsequently Dr Stuart Saker and was now prescribed Agomelatine and Quetiapine and attending TMS sessions. Dr Suman has had access to a report prepared by Dr Alexey Sidorov dated 13 May 2021 diagnosed Borderline Personality Disorder and ‘Alcohol Use Disorder as per the DSM-V (sic).’ It was notable that the history dated back to 2010. There was an ‘abusive and traumatic childhood.’ This had involved ‘significant violence particularly by his father and substance use by both his parents. …There is a significant family history of mental illness and development of alcohol dependence from a young age. …History of significant relationship problems…significant emotional instability and episodes of disorganised and erratic behaviour.’ Interestingly the Police FACTS sheet had indicated ‘previous offences of break and enter and stealing from 1992.’
Dr Suman has made a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. I disagree with my colleague’s diagnosis. He currently does meet DSM-5 diagnostic criteria for both Panic Disorder and Major Depression and these diagnoses ‘supercede’ an Adjustment Disorder. Employment has been a significant contributing factor. The applicant’s condition has not yet reached maximum medical improvement and he may well respond to further treatment over the next 12 months.
Mr Naysmith’s supplementary statement of 26 July 2022…
Stuart Saker (undated) ‘referred patient assessment and management plan…’The assessment is brief. He refers to ‘nightmares and flashbacks about these incidents’ on the freeway. He feels depressed with lack of enjoyment and low energy and motivation and poor concentration. He had previously tried Duloxetine and Escitalopram; ‘he was depressed in 2010 due to pain from his back.’ Dr Saker has made a diagnosis of Post-Traumatic Stress Disorder and Major Depressive Disorder. I agree with the latter but not the former. The applicant’s prominent avoidance and negative affects and increased arousal are in fact consistent with the combination of Panic Disorder and Major Depression, of which he has a number of salient features. Nightmares are a common accompaniment of Major Depression.”
The appellant makes the following submissions:
(a) The MA failed to apply a deduction (being a deduction greater than 10%) on account of previous injury, pre-existing condition(s) or abnormality as required by section 323(1) of the 1998 Act.
(b) The MA did not have sufficient regard to the worker's significant personal, family and psychosocial history.
(c) The MA concluded that the worker suffered from 'nil' relevant previous injuries, pre-existing conditions, or abnormalities despite prior diagnoses with Borderline Personality Disorder, Alcohol Use Disorder and Depression.
(d) The MA stated that the report of Dr Alexey Sidorov dated 13 May 2021 was not made available to him, despite that the subject report was included in the appellant's Reply.
(e) The MA failed to consider the report of Dr Sidorov dated 13 May 2021. The MA also failed to have regard to the psychiatric diagnoses contained in that report despite the worker's own reliance on that report to demonstrate a mental health condition in the context of criminal proceedings in which the worker was involved.
(f) The MA failed to consider any ongoing psychological impact arising from the worker's chronic pain condition.
(g) The MA failed to address and, if appropriate, deduct any proportion of the worker's condition arising from his physical condition. That is, the MA has failed to address and make a deduction on account of any secondary psychological condition which is not compensable pursuant to s 65A of the Workers Compensation Act 1987 (1987 Act).
(h) The MA failed to address and, if appropriate, deduct any proportion of the worker's condition arising from litigation neurosis.
(i) The appellant submits that a deduction greater than 10% should have been applied by the MA as a deduction of 10% (and the absence of any deduction at all) is clearly at odds with the available evidence. The evidence in this case is extensive and comprehensive. It demonstrates a significant and longstanding psychosocial history, as well as various mental health diagnoses that may presently persist and may be impacting the worker's current psychological condition.
(j) The MA himself acknowledged that the worker 'does have a history of a turbulent, disrupted and somewhat abusive childhood' and opined that this is 'known to be a risk factor for later personality vulnerabilities and/or psychiatric disorder (particularly depression and substance use)' Nevertheless, the MA concluded that there were 'nil' relevant previous injuries, pre-existing condition(s) or abnormalities.
(k) Dr Sidorov diagnosed the worker with 'Personality Disorder of the Borderline Type' and 'Alcohol Use Disorder'. In response to this opinion, the MA stated, 'considering the longitudinal history, this diagnosis may well be accurate though more information is required'. The MA has clearly acknowledged the potential validity Dr Sidorov's diagnostic opinion but took no further steps to verify or dispute this diagnosis.
(l) It should be noted that Dr Sidorov's report was obtained and tendered by the worker in the context of Local Court Proceedings following the incident of 3 March 2021 on which date the worker allegedly assaulted his wife and, separately, attempted to commit suicide. In those proceedings, the worker himself sought to have the relevant issues dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (now repealed) which enables the Court to direct a defendant who suffers from a mental health condition into the care of a medical practitioner rather than dealing with the defendant through the criminal system. During those proceedings, the Magistrate accepted those diagnoses, as demonstrated in the hearing transcript. Therefore, the MA's conclusion, that there is no relevant pre-existing condition, in light of the worker's own reliance on such provisions due to the diagnoses of Borderline Personality Disorder and Alcohol Use Disorder is clearly at odds with the available evidence.
(m) Turning to the diagnosis of depression, the appellant notes the MA's reference to this diagnosis made in 2010 due to pain from the worker's back. During his assessment of the worker, the MA also took a history of intermittent pain which the worker had been managing. Furthermore, the appellant refers to the report of Dr Suman in which the doctor took a history of the worker's struggle with chronic pain issues for which he has relied on painkiller tablets since 2010. That history was taken on 16 June 2022.
(n) It appears that the worker's chronic pain issues persisted to the extent that the worker continued to require treatment until at least 15 April 2021 when he presented to Dr Hassanin…a further consultation note dated 25 February 2021 demonstrates that the worker presented to Dr Hassanin seeking Panadeine Forte and Valium for his back pain and anxiety.
(o) The treating evidence clearly indicates that there is a causal relationship between the worker's chronic pain condition as well as his mental health condition…where the MA has taken a history of those issues, the causal relationship between the worker's chronic pain and psychological condition should have been addressed in the MAC.
(p) The MA failed to assess the proportion of the worker's current psychological condition that is attributable to a physical condition and to exclude that proportion from the worker's overall WPI assessment. In this regard, the appellant refers to section 65A(1) of the 1987 Act which provides: 'No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.'
(q) Whether or not the worker's marital situation had in fact stabilised at some stage, the events leading up to and occurring on 3 March 2021 denote the very absence of stability in the worker's family life at the relevant time.
(r) Furthermore, the MA has indicated that the resulting family law proceedings (of which the MA has taken a detailed history) are ongoing.
(s) Noting these events occurred around the time of the work incidences and noting that the associated proceedings have also continued to date, the MA ought to have considered the impact of the worker's family situation on his mental health condition. The failure of the MA to do so is particularly significant considering the only stressor taken into account (and ultimately dismissed) by the MA when addressing any previous injury, pre-existing condition, or abnormality, was his marital relationship.
(t) The MA does not appear to have considered or addressed whether any proportion of the worker's current condition arises from the Family Court proceedings or the criminal proceedings themselves.
(u) In the event any proportion of the worker's current psychological symptoms arise from these proceedings, the appellant submits that this proportion of the worker's condition has resulted from 'litigation neurosis', which is not compensable pursuant to Karathanos v Industrial WeldingCo Ltd [1973] 47 WCR (NSW) 79 at [80].
The Panel has carefully considered all of the evidence.
We agree with the thrust of the appellant’s submissions to the extent that a deduction is warranted for reasons that follow.
To begin with, we note the report of Dr Alexey Sidorov dated 13 May 2021 at page 136 of the appellant’s Reply. He was seen for assessment on 30 April 2021.
It is therefore unclear why the MA failed to refer to it.
It was prepared in the context of Mr Naysmith’s hearing at Wyong Court on 28 May 2021.
Dr Sidorov obtained the following history:
“On 2 March 2021 he had a meeting at work and was told that he will no longer work in the supervisor role. It was explained to him that he could not apply due to the restructure of the company. He stated that he does not have a very good recollection of the meeting and the rest of the day was not very clear…The next thing he remembers was being in the Courthouse the next day…He was told that he was trying to commit suicide and he was resisting arrest. He was pepper sprayed by police and was charged with resist arrest during which he injured four police officers. He reiterated that he still cannot remember the incident…
Mr Naysmith reported that he was stressed currently, particularly about the possibility of going to gaol, as well as losing his job. He described feeling on edge and uptight all the time…
He is hopeful he does not have to go to gaol and that he can keep his job. He experiences nightmares every night, at times with bizarre content. They are not necessarily related to anything he had seen before.
He described that his anxiety is mainly related to his employment, children and Court and the uncertainty of everything.
Mr Naysmith described flashbacks and nightmares relating to the accidents on the highway and it wakes him up. He has been experiencing these symptoms for about four years. He has not had any psychological input for this. The first time he saw a counsellor was after the alleged offences in March 2021. He also reported anxiety and depression related to not being able to see his children. He said it plays on his mind all the time. He has not seen them since Boxing Day 2020. He is involved in an ongoing custodial dispute, and he has spent significant amounts of money on Court. He described experiencing pressure at work in his role as supervisor. He stated that he has felt threatened that his job may be taken if he makes a mistake. He said that he is always stressed that he might lose his job. He described having to be on call for five years, 24 hours per day, seven days per week even when he on leave. He explained that he could not decline the requests to work out of fear for losing his job. He described that his mood has generally been stable until the last few years…
He started working for Transport NSW [in 2011] patrolling the M1 Motorway for accidents. He enjoyed this role. He described witnessing a lot of injuries and accidents over the years and still remembers them. He had been married for twelve years and separated in 2019. He recalled that there were significant issues in the relationship for the last couple of years….He has been in his current relationship for about ten months.
I note the information contained in your email of instruction. You state that Mr Naysmith has a history of depression dating back to 2010 and has been prescribed medication. You note Mr Naysmith’s abusive and traumatic childhood. You note that Mr Naysmith’s treatment plan can be supervised by his regular general practitioner, Dr Michael Malek of Grace Medical Care.
I reviewed the chronology for Mr Naysmith. The outline of his upbringing where he was exposed to significant violence particularly by his father and substance use by both of his parents are documented. There is significant family history of mental illness and development of alcohol dependence from a young age. I note a history of significant relationship problems. I note a history of significant emotional instability and episodes of disorganised and erratic behaviour…
I note the GP mental health plan by Dr Malek. I note depression and anxiety from 2010 which Mr Naysmith described as being related to losing his job as a mechanic secondary to back pain. I note the diagnosis of Mixed Anxiety and Depression in the GP mental health plan as well as suicidal ideations. I note documentation of drinking alcohol seven days per week up to ten standard drinks per day.
Based on the account presented by Mr Naysmith and review of associated documents, he meets the diagnostic criteria for Borderline Personality Disorder as per DSM-5…
Mr Naysmith also meets the diagnostic criteria for Alcohol Use Disorder as per DSM-5.
The requirements of Section 32 of the Mental Health (ForensicProvisions) Act 1990, paragraph 1(a) were considered. It is evident that Mr Naysmith is suffering from a mental condition… for which treatment is available in a mental health facility. Specifically, Mr Naysmith attracts the diagnoses of Borderline Personality Disorder and Alcohol Use Disorder…”
In summary, it is clear from this report that Mr Naysmith had “depression and anxiety from 2010 which Mr Naysmith described as being related to losing his job as a mechanic secondary to back pain.”
In addition, the notes from Dr Malek’s practice record that on 25 February 2021, prior to the incident in March 2021, Mr Naysmith “Came today for scripts for panadine forte and valium for his back pain and anxiety informed him about the side effects and addiction behaviour advised him to see Dr Malek to consider long term management for his anxiety…”
When Dr Ranasinghe saw Mr Naysmith on 12 August 2021 he said:
“Impression - It appears that he is going through a depressive episode after losing the job, no contact with his children and uncertainty. Adjustment disorder is a differential diagnosis. Unable to confirm whether he had traits of a personality disorder.”
A GP Mental Health Plan dated 22 February 2020 reported:
“Hx. of Depression/Anxiety since 2010… Previously on Zoloft in 2015… Work Supervisor for emergency services- enjoys work most days… Admits to some suicidal thoughts. No plans or attempts. Admits to self-harm. Risk of Self Harm: Moderate…”
Dr Suman saw the respondent on 17 June 2022. He prepared a thorough and detailed report on the same date. He said:
“Mr Naysmith provided me with limited information. There is significant inconsistency in the information he offered compared to the details available in the attached documents.
Mr Naysmith told me that he suffered a back injury in 2010… Mr Naysmith told me he was placed on light duties following his back injury. He decided to switch jobs from working as a mechanic in mine to his recent position with NSW Transport in 2011. Mr Naysmith told me that he trialled antidepressant medication for approximately four months. He told me he ceased the treatment as he did not experience any clinical benefit… He denied receiving psychological input in 2010.
Mr Naysmith told me he took up the job with NSW Transport in 2011…Mr Naysmith highlighted that he enjoyed his job. He told me, ‘as a part of the job, I attended fatal accidents on the road. I felt I was handling it well. I received counselling support from work following these accidents’. As per the detailed review, I was not able to elicit evidence indicative of Mr Naysmith’s struggling with his mental health from 2011 onwards. I was not able to elicit any history of posttraumatic stress disorder or Mr Naysmith suffering from pervasive anxiety or depressive symptoms adversely affecting this social, occupation or general functioning at the time…
He denied any mental health input or psychotropic treatment trial between 2013 to 2021. The information he provided differs from the clinical record where it stated that Mr Naysmith struggled with his mental health in 2015 and later following his relationship breakdown in 2017 - 2018. He required treatment under General Practitioner Mental Health Plan.
On further diagnostic clarification, it is evident that Mr Naysmith had been struggling with the increased workload from around 2020 onwards. He denied any other stressors, although clinical notes indicate that he was also struggling with significant pain issues, requiring a Codeine-based treatment by his general practitioner. Mr Naysmith denied a history of alcohol use disorder between 2019 to 2021. He told me that he tried to manage pain symptoms by going to the gym and using regular massage therapy. Mr Naysmith's presentation indicates that him experiencing significant stress related to his work, although he continued in his role with nil significant breaks… He told me that he occasionally would see a counsellor (he could not provide details).
Mr Naysmith told me that around late 2020 and early 2021, he became aware of structuring at the workplace. He told me, ‘I was already stressed with work issues. I came to know about restructuring and wanted to get clarification’. Mr Naysmith said he discussed his position/role with his supervisor. He said, ‘my boss reassured me that I would be able to secure a supervisor position. I felt pressured at the time’.
Mr Naysmith told me that he met with the new CEO of the company on 3 March 2021. He (new CEO) told me that I could not apply for the job as the job was only for the qualified supervisor’. Mr Naysmith highlighted, ‘I had a mental breakdown’. He told me that he does not remember what happened after that…”
Dr Suman then set out details of the subsequent events.
It is clear to us that Mr Naysmith was not entirely honest in the information he provided to Dr Suman given the other evidence to which we (and Dr Suman) referred. That is also evidenced by the following matters noted by Dr Suman, namely:
“Mr Naysmith denied any mental health issues prior to March 2021, although as highlighted in my report he appears to have struggled with a mix of anxiety and depressive symptoms requiring input from his general practitioner, psychologist and previous psychotropic treatment trial going back to 2015 (possibly earlier). Mr Naysmith's clinical notes also indicate he was experiencing self-harm ideation in the context of psychosocial stressors requiring input from a psychologist. His clinical records also highlight problems with anger management and & his engagement with health practitioners.
Mr Naysmith denied use of illegal drugs. He denied any history of alcohol use disorder or gambling disorder. The clinical document provides information about the possibility of alcohol use disorder. Clinic notes also indicate the possibility of him using excessive pain medication, as highlighted in his general practitioner records.
Mr Naysmith denied being involved in any criminal activities. Dr Alexey Sidorov's report indicates that he was previously engaged in criminal activities. He has also struggled with anger issues…”
Dr Suman concluded:
“Considering all available information, I am of the opinion that Mr Naysmith’s employment is to be considered a substantial contributing factor to his psychological injury…
Mr Naysmith’s employment factors are considered to be contributing 50% to his psychological injury. The events including Mr Naysmith being arrested on 3 March 2021 and the related trauma contributed to around 30% of the psychological injury. Mr Naysmith’s (possible) personality vulnerability factor, alcohol use and his struggle with his ex-partner (and inability to see his kids) contributed to the rest of his psychological injury (20%).”
Mr Naysmith was diagnosed by Dr Sidorov with Borderline Personality Disorder and Alcohol Use Disorder.
Dr Ranasinghe also considered that Mr Naysmith possibly suffered from “traits of a personality disorder.”
Such disorders in our view have contributed to Mr Naysmith’s condition, even though he was able to work.
Dr Cameron in a report dated 29 September 2021 focussed on the current “WorkCover” claim. The only other information he received documented under “PREVIOUS WORKCOVER CLAIMS” was as follows:
“Noted from referral: Physically, he sustained a neck injury in 2010 and was on ADT briefly. He was admitted to hospital 3 years ago with a possible panic attack or dehydration due to work and exhaustion.”
Again, Mr Naysmith has failed to provide full details of his past history to Dr Cameron.
In a report dated 24 November 2018, Dr Banerjee noted “previous anxiety and depression”.
In a report dated 11 September 2019, Dr Abadir said:
“Kane has been feeling down for the last few months (since December 2018 after splitting with wife and being unable to see his children as frequently as before), also the split incurred him the loss of everything - he is in tears and feels down He is seeing a psychologist (supplied by work) every 2/12. Mood described as negative, affect is congruent, having suicidal thoughts (last was last night - no plans, so far)…”
Dr Abadir organised a GP Mental Health Plan on the same date.
On 22 February 2020 Dr Malek wrote:
“Thank you for seeing Kane Naysmith for an opinion and management regarding worsening Anxiety/Depression. Increasing panic attacks with suicidal ideation and history of self-harm in the past. See attached MHCP…”
Mr Naysmith was referred to a psychologist for treatment.
In short, there is abundant evidence that Mr Naysmith suffered from a number of pre-existing conditions. He has a cluster B personality disorder, likely a borderline personality disorder as suggested by Dr Suman. He also suffers mood problems that could be characterised as a persistent depressive disorder.
As the MA described it, Mr Naysmith had: “ pre-existing emotional dysregulation, substance misuse (though this is disputed by the applicant), anger outbursts and difficulties in relationships.”
In these circumstances, as we said earlier, a deduction is certainly warranted.
Having said that, we make a number of points below as regards the extent of that deduction.
As the respondent pointed out:
“The MA accepted, clearly, that the worker was a high functioning individual with a responsible position he had held for 10 years before ultimately decompensating as a consequences of its rigours in the dramatic fashion that ultimately unfolded in March 2021.”
That may be somewhat overstating the position, but Mr Naysmith has undoubtedly worked for much of his adult life.
In his initial statement dated 14 May 2021 he said:
“l finished High School in year 12 and since leaving school I did a four year apprenticeship as a mechanic. I did a couple of years study and got qualifications as a diesel mechanic.
Prior to working for Transport NSW I worked for a company called OEMS as a Diesel mechanic for underground mining. I worked with the company for about 4 years. Prior to that I was a mechanic and supervisor for the Ford dealership at Central Coast Ford.
I started working for Transport NSW in 2011…”
He added: “I am separated from my wife, Shelley Naysmith and we have three daughters who are 15 years old, 13 years old and 9 years old.”.
Mr Naysmith was married for many years. He apparently separated from his wife (according to Dr Adadir) in December 2018.
There is no record of any specific problems with his marriage prior to this time.
It is noted that the MA observed: “The applicant has been aware of symptoms of anxiety and depression since his first panic attack in 2018.”
The problems documented by the various doctors we have identified above, seem to have escalated since the incident in March 2021.
As the MA noted:
“He apparently attempted to pick up his youngest daughter from her school but she was distressed. Police were called when he allegedly assaulted his ex-wife Shelley. Police were said to have video footage of the event. On the following day Mr Naysmith woke in hospital, handcuffed to the bed with little memory of the past 24 hours…”
Of more significance was his statement that:
“Since at least early 2021, Mr Naysmith has had an ongoing psychiatric disorder relatively resistant to treatment, characterised by regular panic attacks and associated avoidance, as well as a depressed mood, thoughts of (and attempted) suicide, lack of enjoyment, sleep disturbance, change in appetite and low motivation.”
In short, it seems to us that the meeting on 3 March 2021 was the catalyst for more serious marital problems culminating in court proceedings which apparently are ongoing.
Although not entirely clear from the evidence, despite the separation in December 2018, there does not appear to have been any significant problems resulting from that separation.
For these reasons, the Panel is of the view that a 30% deduction is appropriate in the circumstances of this particular case.
That results in a final WPI of 15.4%, rounded to 15%.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 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: | W4663/22 |
Applicant: | Kane Naysmith |
Respondent: | Transport for NSW |
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 Andrew McClure 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) |
| 1. Psychological injury | 3/03/21 | Chapter 11, pp 55-60 | 14 | 22% | 30% | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
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