Uniting (NSW Act) v Bradbury-Walsh
[2024] NSWPICMP 536
•2 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Uniting (NSW ACT) v Bradbury-Walsh [2024] NSWPICMP 536 |
| APPELLANT: | Uniting (NSW ACT) |
| RESPONDENT: | Belinda Bradbury-Walsh |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 2 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021, paragraph 1.32; allowance for the effects of treatment; Medical Assessor made allowance without providing reasons; Zoric v Secretary, Department of Education; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 April 2024 Uniting (New South Wales ACT) (Uniting) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Christopher Canaris, who issued a Medical Assessment Certificate (MAC) on 8 April 2024.
Uniting relies on the following grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in making an allowance for the effect of treatment. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Bradbury-Walsh was employed by Uniting as a local area coordinator in disability services. She suffered a psychological injury which is deemed to have occurred on 4 July 2019.
Using the Psychiatric Impairment Rating Scale (PIRS) the Medical Assessor assessed 22% whole person impairment (WPI) to which he added 1% “Adjustment for Treatment Effect”. He deducted one-tenth under s 323 of the 1998 Act for pre-existing impairment. The resulting assessment was 21% WPI.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Bradbury-Walsh to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in submissions prepared by its solicitor Mr Vrettos, Uniting submitted that the Medical Assessor erred in adding 1% for the effect of treatment to the WPI he assessed. It submitted that he provided no reasoning to support the addition and that he did not show that there had been effective long-term treatment which resulted in the apparent or total elimination of WPI. Instead the Medical Assessor noted that A/Prof Robertson had increased his assessment of WPI from 15% in 2020 to 22% in 2023. Uniting said that a new MAC should be issued certifying that Ms Bradbury-Walsh suffered 20% WPI.
In reply and in submissions prepared by Ms Grotte of counsel, Ms Bradbury-Walsh submitted that the Medical Assessor had addressed all of the elements of paragraph 1.32 of the Guidelines as described in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel)[1] (Peachey) and Zoric v Secretary, Department of Education[2] (Zoric). She said it was implicit in the history taken that the treatment had been long term and had continued since the injury. Ms Bradbury-Walsh submitted that there was a “compelling inference” in the Medical Assessor’s statement that without the treatment her impairment would be considerably greater was that it had been effective.
[1] [2020] NSWSC 781.
[2] [2024] NSWSC 131.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[3] the Court of Appeal held that an 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.
[3] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[4] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered the ground specifically raised by the appeal.
[4] [2021] NSWCA 304 at [26].
The MAC
The Medical Assessor summarised the circumstances of Ms Bradbury-Walsh’s injury. He said:
“She was referred to a psychologist ‘who wasn’t much chop’ and to a psychiatrist and was started on antidepressants. I noted from the documentation on hand that she was initially on desvenlafaxine. She is currently taking mirtazapine (an antidepressant with sedating properties) 15 mg at night, clonazepam (a benzodiazepine normally prescribed for epilepsy in her case used for anxiety, insomnia, and motor restlessness) 1 mg at night, clonidine (an antihypertensive drug with anxiolytic properties) 150 mg three times a day, agomelatine and other antidepressant) 50 mg at night, valproate (a mood stabiliser sometimes used to augment antidepressant medication) 500 mg at night, and escitalopram (an antidepressant) 30 mg at night.
She continues to see her psychiatrist, Dr Charles Austin-Woods, meeting with him on an as needed online and a psychologist, Carol Hayek every fortnight to once a month.
Currently, her mood is ‘not great – I have this feeling of impending doom – my sleep is a little better since I started on the mirtazapine … My eating has got worse – it’s forcing myself to snack – I drink lots of fluids though’. She sees herself as more anxious than sad, but admits to a lack of motivation, adding that she would ‘get a lot of tingling – muscle spasm… with the anxiety, I get the restlessness in my arms and legs… last week, I felt woozy a lot because I think I felt I was having palpitations – I was feeling a lot of nausea…’ She admitted to sometimes feeling as though life was not worth living, but after a significant overdose ‘saw what it did to my kids’ and so I would never try to take her life.”
The Medical Assessor set out the history he obtained about Ms Bradbury-Walsh’s background, general health, work history and social activities/activities of daily living. He diagnosed persistent depressive disorder (dysthymia) with anxious distress. The Medical Assessor considered that Ms Bradbury-Walsh had reached maximum medical improvement because she “has been continuously unwell for nearly 5 years during which time she has had treatment”. He said:
“I have assessed her with 21% whole person impairment. On the PIRS, she has 22% whole person impairment. I have deducted 1/10 yielding an impairment of 20%. I have added 1% to adjust for treatment effects as she is having extensive treatment without which her impairment would be considerably greater.”
The Medical Assessor summarised the other opinions in the file, noting reports from Dr Austin-Woods. He provided a lengthy description of the reports of A/Prof Robertson who saw Ms Bradbury-Walsh at the request of her solicitors including:
“In April 2020, he assessed her as having 17% whole person impairment with a 1/10 deduction for pre-existing impairment yielding a final whole person impairment of 15%. He made no adjustment for treatment effects. On review on 27 February 2023, he noted some improvement in her physical health but with a significant decline in her mental health with generalised anxiety, occasional panic attacks, excessive worry, feeling overwhelmed, and subjective intrapsychic tension while noting that she was ‘often triggered into paroxysms of severe anxiety with some dissociative symptoms including episodes of likely depersonalisation of the stress. He diagnosed a generalised anxiety disorder with comorbid depressive features which he considered remained consistent with a severe and permanent work-related exacerbation of her previous psychological disorder. He assessed her at 24% whole person impairment but deducted 1/10 for pre-existing symptoms yielding a final whole person impairment of 22%. ... He again made no adjustment for treatment effects.”
The Medical Assessor summarised other reports in the file which did not comment on the effect of treatment.
Medical evidence
Ms Bradbury-Walsh saw Dr Austin-Woods, psychiatrist, for the first time on 22 August 2019 and prepared a report to her general practitioner. He diagnosed post-traumatic stress disorder and depression and anxiety which were exacerbated by workplace conditions. His report to her solicitors dated 29 November 2022 repeats much of the earlier report. It says little about the nature of her ongoing treatment, though responds to Uniting’s medical evidence. Commenting on the opinion in Uniting’s reports that Ms Bradbury-Walsh was malingering, Dr Austin-Woods said:
“It is clear that there is both a medical and psychological component to Ms Bradbury-Walsh's chronic medical conditions (this is common in every patient with chronic health conditions), and I wonder how much this could have contributed to such results. I have seen her regularly after her claim was dismissed and I saw no significant change in her symptom report or functioning and I believe I can confidently conclude that she was not malingering.”
His clinical notes describe Ms Bradbury-Walsh’s treatment. In January 2020 she was admitted to hospital for treatment, following an overdose of medication. In March 2020 Dr Austin-Woods wrote to Uniting’s insurer and said that it was appropriate that she change her psychologist. He said that her symptoms were fluctuating and that he would need to see her for the following six months at least for ongoing review of her medication and for risk management.
In July 2020 Dr Austin-Woods noted that Ms Bradbury-Walsh was seeing a psychologist and her treatment was going well. In August 2020 her symptoms continued to fluctuate and he adjusted her medication.
In a report dated 23 May 2022 Dr Austin-Woods described an increased dose in one of Ms Bradbury-Walsh’s medications.
The notes from the psychologist Ms Hayek end in August 2023. In July she noted that Ms Bradbury-Walsh remained dysregulated.
A/Prof Robertson saw Ms Bradbury-Walsh at the request of her solicitor on 16 April 2020. At that time he considered that she had had appropriate treatment and that her injury was stable. He considered that she required and needed to consult a psychiatrist for ongoing review with her medication and that she required ongoing psychological treatment. He assessed 15% WPI.
A/Prof Robertson saw Ms Bradbury-Walsh again and reported on 27 February 2023. He said that she had enjoyed some improvement in her physical health, but:
“Ms Bradbury-Walsh reported decline in her mental health since our last consultation. She has experienced more consistent symptoms of generalised anxiety, including gastrointestinal symptoms; limited symptoms and occasional panic attacks; excessive worry and feeling easily overwhelmed; headache and; subjective intrapsychic tension. She is often triggered into paroxysms of or severe anxiety as well as some dissociative symptoms including episodes of likely depersonalization under stress.
Ms Bradbury-Walsh stated that she often experienced extremely unsettled sleep and often woke amid panic attacks and the previously noted vasovagal episodes, suggesting that she is experiencing nightmares. When placed in circumstances of interpersonal tension or reminders of her previous workplace difficulties, she experiences flashback episodes manifesting as unexplained intense fear or dread and feelings of being persecuted or harassed. Her consumption of clonazepam has increased and her treating psychiatrist has recently initiated therapy with low dose mirtazapine.”
And
“While Ms Bradbury-Walsh maybe on the cusp of a comorbid major depressive disorder there is little improvement to be expected over the next 12 months and as such her injuries are stable and unlikely to change over the next 12 months, indicating she has reached the point of maximal medical improvement for the purposes of evaluating WPI.”
On that occasion, A/Prof Robertson assessed 24% WPI from which he deducted one-tenth under s 323, resulting in an assessment of 22% WPI.
Ms Bradbury-Walsh’s solicitors provided A/Prof Robertson with the reports on which Uniting relied and he reported on 2 February 2024. He noted that “Dr Young and Ms Tyler accused your client of malingering”.
Despite his conclusion that Ms Bradbury-Walsh was overreporting her symptoms, Dr Young said in his report dated 5 May 2023:
“Ms Bradbury-Walsh reported that there have been “ups and downs” since last seen however there have been generally no substantive changes in her condition or functioning over the past two years. She said, ‘Some days are worse than others’ and said, ‘I don’t care if I live or die’.”
Dr Young assessed 24% WPI under the PIRS but deducted half under s 323 and 2% for “subsequent non-work stressors”. His basic assessment indicates a significant degree of impairment.
Adjustment for the effect of treatment
While Ms Bradbury-Walsh has undergone significant treatment, the reports in the file do not support the contention that that has resulted in an improvement in her condition.
Clause 1.32 of the Guidelines provides:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
The Medical Assessor did not disclose the path of his reasoning in making an allowance for the effects of treatment. He was required to do so. In State of New South Wales (NSW Department of Education) v Kaur[5] Campbell J referred to Wingfoot Australia Partners Pty Ltd v Kocak[6] said with respect to the task of the Medical Assessor:
“… 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.’”
[5] [2016] NSWSC 346.
[6][2013] HCA 43; 252 CLR 480.
The Medical Assessor in fact gave no reasons at all and we do not accept the submission that they can be implied, especially in the light of recent authority.
Discussing paragraph 1.32 Chen J said in Zoric:[7]
“The clause may thus be understood to involve, and require findings about, the following ‘steps’:
1)First, whether there has been effective long-term treatment of an illness or injury.
2)Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
3)Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.
These steps largely align with the analysis of Adamson J (as her Honour then was) in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [57] (‘Peachey’), and both parties accepted that a proper application of cl 1.32 of the Guidelines requires these steps to be addressed.”
[7] At [59]-[60].
His Honour went on:
“In relation to the first step, therefore, there needs to be a finding about the ‘illness or injury’ that results in permanent impairment and whether there has been effective long-term treatment of that ‘illness or injury’.
In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey at [52] as follows:
‘Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause…’
Further, in relation to the comparative exercise required by cl 1.32, the clause neither requires, nor authorises, a comparison between respective WPI scores at those times, nor does there need ‘to be a post-injury pre-treatment WPI score for the purposes of undertaking the necessary comparison’: Peachey at [53] and [56]. The explanation for this lies, at least in part, in the language of the clause: the focus of cl 1.32 is upon ‘permanent impairment’, not on its degree expressed as a percentage: Peachey at [54] citing Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 at [67].
In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
The medical evidence we have described above shows that there has been long term treatment of Ms Bradbury-Walsh’s psychiatric injury. While it has been effective to a degree in that Ms Bradbury-Walsh has not had any further hospital admissions and she says she is not suicidal, her overall psychological condition has deteriorated.
The paragraph does not apply merely because there has been long term treatment or even some improvement. It requires a much higher criterion – that the treatment has resulted in apparent substantial or total elimination of her impairment. It is clear that has not occurred here. Ms Bradbury-Walsh continues to take medication and to see her psychiatrist and psychologist. Her medication continues to be adjusted from time to time.
A/Prof Robertson’s WPI assessment has increased and Dr Young’s assessment is also significant. More importantly, A/Prof Robertson obtained a history of a decline in Ms Bradbury-Walsh’s functioning and considered that she may be on the cusp of developing co-morbid major depression in addition to generalised anxiety disorder with comorbid depressive features previously diagnosed – that is, a psychiatrist who had examined Ms Bradbury-Walsh on two occasions considered that the depressive component of her condition was worse.
The Medical Assessor’s own brief statement about treatment does not confirm that there has been an apparent substantial elimination of the impairment. Ms Bradbury-Walsh was at the time of the examination taking three anti-depressants.
For these reasons, we have determined that the MAC issued on 8 April 2024 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: | W1311/24 |
Applicant: | Belinda Bradbury-Walsh |
Respondent: | Uniting (NSW ACT) |
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 Christopher Canaris and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in 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) |
| Psychological and psychiatric injuries | 4.7.19 | Chapter 11 | N/A | 22% | 1/10th | 20% |
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
0
8
0