Walsh v Inner West Council [2022] NSWPIC
[2022] NSWPIC 418
•27 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Walsh v Inner West Council [2022] NSWPIC [2022] NSWPIC 418 |
| APPLICANT: | Maree Walsh |
RESPONDENT: | Inner West Council |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 27 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to psychological injury; applicant argues the respondent is estopped from asserting a dispute under sections 4, 4(b), 9A, 11A(3) and 11A of the 1987 Act because of previous Certificate of Determination; Consent Orders entered into between the parties wherein the respondent agreed to pay the applicant weekly compensation for a closed period with an award for the respondent thereafter and agreed to pay section 60 (1987 Act) expenses with an award for the respondent thereafter; parties provided written submissions in relation to the estoppel argument; the respondent disputes that there is an issue estoppel arising from the Certificate of Determination- Consent Orders; Held — the respondent is estopped from relying on sections 4, 4(b), 9A, 11A(3) and 11A of the 1987 Act; Bouchmouni v Bakhos Matta t/as Western Red Services and Manpower Pty Ltd v Harris applied; Jaffarie V Quality Castings Pty Ltd considered; the lump sum claim is remitted to the President for referral to a Medical Assessor to assess the permanent impairment in relation to the psychological injury sustained in the course of employment with the respondent from the nature and conditions of employment from 1 April 2018 to 11 December 2019 with a deemed date of injury of 11 December 2019. |
| DETERMINATIONS MADE: | 1. The respondent is estopped from relying on ss 4, 4(b), 9A, 11A(3) and 11A of the Workers Compensation Act 1987 as a result of the Certificate of Determination - Consent Orders dated 27 May 2020. 2. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as a result of psychological injury sustained in the course of employment with the respondent from the nature and conditions of employment from 1 April 2018 to 11 December 2019, with a deemed date of injury of 11 December 2019. 3. The documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute and Reply. |
STATEMENT OF REASONS
BACKGROUND
Ms Maree Walsh was employed by the respondent, Inner West Council, as a parking officer. She alleges she sustained a psychological injury in the course of her employment. Her claim for compensation in these proceedings is confined to lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
In her Application to Resolve a Dispute (ARD) she alleges her date of injury was 1 April 2018 and the injury description is “Nature and conditions of employment as a Parking Officer from 1 April 2018 to 11 December 2019 involving incidents of bullying, harassment and verbal abuse by co-workers and incidents of verbal threats, intimidation and stalking by members of the public.”
On 3 August 2021 the respondent’s workers compensation insurer, StateCover Mutual Limited (the insurer), issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in response to the lump sum claim which was made on 9 March 2021[1]. The insurer denied liability asserting that:
[1] ARD p 50.
“1. Statement of matters in dispute
The matters in dispute are:
i. StateCover does not accept you are suffering a psychological or psychiatric condition within the meaning of section 11A (3) of the 1987 Act.
ii. StateCover does not accept you are suffering from a psychological injury arising out of or in the course of employment within the meaning of section 4(a) of the 1987 Act.
iii. StateCover does not accept employment was a substantial contributing factor to the alleged psychological injury within the meaning of section 9A of the 1987 Act.
iv. If you have a psychiatric disorder and the psychiatric disorder is a disease, StateCover does not accept the disease was contracted or aggravated, accelerated, deteriorated or exacerbated course of employment and StateCover does not accept employment was the main contributing factor to the contraction or aggravation, acceleration, deterioration or exacerbation of the disease within the meaning of section 4(b) of the 1987 Act.
v. StateCover does not accept you are suffering or have suffered from total or partial incapacity for work as a result of a compensable work-related injury to entitle you to receive weekly compensation benefits under section 33 of the 1987 Act.
vi. StateCover does not accept the medical or related treatment for which compensation is claimed is reasonably necessary medical or related treatment resulting from injury compensable under sections 59 and 60 of the 1987 Act.
vii. If it is established you sustained a work-related psychological injury satisfying the requirements of sections 4(a) and 9A or 4(b) of the 1987 Act (which StateCover disputes), StateCover asserts the injury was wholly or predominantly caused by reasonable action or proposed action by the Council employer with respect to performance appraisal or discipline or both and, therefore, no compensation is payable by operation of section 11A(l) of the 1987.
viii. StateCover disputes you have any entitlement to compensation under section 66 of the 1987 Act.
ix. Based on the opinion of Dr Leonard Lee, StateCover also raises an issue as to whether your testimony is reliable and can be accepted.”
This notice also set out the reasons for the disputing liability. In the section of the notice headed “details of decision” it is stated that:
“This is a further dispute notice in addition to StateCover previous dispute notices dated 3 March 2020, 30 March 2020 and 15 April 2020 which still stand and StateCover continues to rely on all the grounds and reasons for disputation outlined in the earlier dispute notices and in StateCover's reply in previous proceedings 2314/20 in the former Workers Compensation Commission.[2]”
[2] ARD p 52.
However, in the proceedings 2314/20 before the Workers Compensation Commission (WCC), after the abovementioned dispute notices were issued and the reply filed, those proceedings were settled between the parties. The settlement was recorded on 27 May 2020 in the Certificate of Determination-Consent Orders that were issued by the WCC. The contents of that consent order is reproduced below:
“By and with the consent of the parties, the determination of the Commission in this matter is as follows:
1. The respondent is to pay the applicant weekly compensation of $1,240.57 under s 37 from 18 March 2020 to 26 May 2020.
2. Award for the respondent on the claim for weekly compensation after 27 May 2020.
3. The respondent is to pay the applicant's s 60 expenses not exceeding $2,000 on production of accounts, receipts and/or valid Medicare Notice of Charge. Otherwise award for the respondent on the claim for s 60 expenses.
The following is not a determination of the Commission, however I note that the parties have agreed:
A. The applicant resigns her employment with the respondent effective 26 May 2020.
B. The respondent agrees it will not seek credit for any payment of sick leave made since 18 March 2020.”
On 9 November 2021 Ms Walsh’s solicitor sought a review of the insurer’s notice dated 3 August 2021 and forwarded them a supplementary statement of Ms Walsh dated 14 September 2021, file of Mahendran Nepal and supplementary report of Dr Allan dated 27 October 2021[3].
[3] ARD p 59.
On 23 November 2021 the insurer served a review notice pursuant to s 287A of the 1998 Act essentially repeating their earlier declinature, albeit giving additional reasons for their decision[4].
[4] ARD p 63.
On 8 February 2022 Ms Walsh requested a review of this decision, serving report of Dr Allan dated 3 February 2022[5].
[5] ARD p 71.
On 22 February 2022 the insurer issued a further decision again disputing liability[6] and giving reasons why Dr Allan’s opinion was not accepted by them, largely because the insurer asserts the doctor has not properly engaged with the evidence about the full extent of Ms Walsh’s pre-injury longstanding psychiatric illness leading to the insurer not accepting his opinion about causation and whether Ms Walsh suffers from a compensable work-related injury.
[6] ARD p 75.
On 1 March 2022 Ms Walsh’s solicitors filed her ARD in the Personal Injury Commission (the Commission). On 23 March 2022 the Reply was filed.
PROCEDURE BEFORE THE COMMISSION
At the telephone conference before me on 1 April 2022 Mr Greg Horan, counsel appeared for Ms Walsh. Mr Mick Franco, solicitor appeared for the respondent. Mr Horan raised the issue of estoppel, arguing that by virtue of the prior Certificate of Determination - Consent Orders in matter 2314/20 the insurer cannot now seek to place in issue liability under ss 4 (a), 4(b), 9A and 11A of the 1987 Act. Mr Horan urged me to refer the lump sum claim for assessment of permanent impairment by a Medical Assessor whereas Mr Franco argued that an arbitration hearing should be held, and he gave notice of his intention to seek leave to cross-examine Ms Walsh. Mr Horan objected to this course of action and submitted the estoppel argument should be determined first. I accepted this submission and ordered the parties file written submissions relating to the estoppel argument.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) the ARD;
(b) Reply;
(c) written submissions of the applicant dated 12 April 2022;
(d) written submissions of the respondent dated 6 May 2022. and
(e) written submissions of the applicant in reply dated 11 May 2022.
Oral evidence
There is no oral evidence.
FINDINGS AND REASONS
A helpful summary of the relevant legal principles relating to consent orders and estoppel is contained in Bouchmouni v Bakhos Matta t/as Western Red Services[7] where, after referring to relevant authorities, Roche DP found:
“I draw the following conclusions from the above authorities:
(a) consent orders create res judicata estoppels, but only to the extent of what was ‘necessarily decided’ (Habib at [186]);
(b) to determine what was ‘necessarily decided’, the Commission will closely examine the pleadings and particulars, the s 74 notice, and the legislation, because that material forms part of the mutually known facts and assists in objectively determining the ‘genesis’ and ‘aim’ of the orders (Isaacs at [75]; Spencer Bower at [39]; DTR Nominees at 429);
(c) consent orders should be construed by reference to what a reasonable person would understand by the language the parties have used in the orders, having regard to the context in which the words appear and the purpose and object of the transaction (Cordon Investments at [52]);
(d) where the words in the consent orders are ambiguous, or susceptible of more than one meaning, extrinsic evidence is admissible to show the facts which the negotiating parties had in their minds (Codelfa at 350), but such evidence is not admissible to contradict the language of the orders when it has a plain meaning and is not ambiguous or susceptible of more than one meaning (Codelfa at 352);
(e) prior negotiations that tend to establish objective background facts which were known to both parties and the subject matter of the consent orders will be admissible (Codelfa at 352);
(f) evidence of prior negotiations that are reflective of the parties’ actual (subjective) intentions is not receivable (Codelfa at 352), and
(g) the interpretation of consent orders is not governed by the parties’ subjective beliefs or understandings about their rights and liabilities. It is an objective test of what a reasonable person would understand by the language in which the parties have expressed their agreement (Toll at [40]; Cordon Investments at [52]).”[8]
[7] [2013] NSWWCCPD 4, Bouchmouni
[8] The citations for the cases referred to by Roche DP are Habib v Radio 2UE Pty Ltd [2009] NSWCA 231, Isaacs v Ocean Accident & Guarantee Corporation Ltd & Winslette (1958) SR (NSW) 69; (1957) 75 WN (NSW) 48, The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3rd ed, 1996, DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) CLR 423, Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184, Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165.
The respondent agrees that a previous consent order between the same parties may give rise to an estoppel on the issue of injury. However, it argues that situation can only arise if the consent orders are “capable giving rise to an intelligible finding of fact”.
The respondent submits in Ms Walsh’s case the consent orders provide no certainty as to the finding of injury. I do not accept this submission. For the respondent to agree to pay weekly compensation and s 60 expenses, I find there necessarily, when viewed objectively, had to be an acceptance of a psychological injury which was relied upon Ms Walsh in those proceedings. Otherwise there would have been no basis for the payments to be made.
At [93] in Manpower Pty Ltd v Harris[9] Roche DP found:
“The Commission is a statutory tribunal and has only those powers conferred on it by the relevant Workers Compensation Acts (the 1987 Act and the 1998 Act) and the Workers Compensation Commission Rules 2010 (the Rules) (Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley [2006] NSWCA 235; 5 DDCR 61). The right to compensation under the 1987 Act only arises if a ‘worker’ has received ‘an injury’ (s 9 of the 1987 Act) arising out of or in the course of his or her employment (s 4 of the 1987 Act) and to which employment was a substantial contributing factor (s 9A of the 1987 Act). The right to weekly compensation only arises if incapacity for work (total or partial) results from the injury (s 33 of the 1987 Act). The Commission has no jurisdiction to order the payment of compensation unless it makes a finding on each of these matters, or the employer expressly or impliedly admits them.”
[9] [2011] NSWWCCPD 10, Manpower.
Applying Manpower I find that the respondent impliedly admitted Ms Walsh had sustained an injury arising out of or in the course of her employment and the disputes in relation to the provisions in ss 4, 4(b), 9A, 11A(3) and 11A were no longer being pressed otherwise there would have been no jurisdiction for the Commission to order the payment of compensation.
The respondent at [6] of its submissions concedes that the pleadings in the current matter “replicate the 2020 proceedings in terms of date, nature and circumstances of the alleged injury.”
However, at [22] the respondent submits that the description of injury used in the ARD, referring to “’nature and conditions of employment’ takes the matter nowhere”, relying on the decision of Toplis v Coles Group Ltd t/as Coles Logistics[10] . Deputy President Roche stated in Toplis that the phrase “nature and conditions” is not a term used in the New South Wales workers compensation legislation and said the phrase was “unhelpful”, however, he did not find “it takes the matter nowhere”.
[10] [2009] NSWWCCPD 70 at 65, Toplis.
Neilson J had earlier stated in Mirkovic v Davids Holdings Pty Ltd[11]:
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’.
It is used in this place [the then Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, eg repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity.”
[11] (1995) NSWCCR 656 at 667, Mirkovic.
While Roche DP in Toplis has urged parties not to use this phrase, I find the use of it does not render a claim meaningless nor does it (as the respondent submits) “takes the matter nowhere”. As Neilson J acknowledged the phrase is often used as a shorthand way of distinguishing a disease type injury from a so-called “frank injury” under s4(a) of the 1987 Act. The phrase has been used by the Court of Appeal in many cases such as Switzerland Insurance WC (NSW) Ltd v Burley[12] and Wyong Shire Council v Paterson[13]. It is evident from the respondent’s dispute notices that they understood the psychological injury claim being made, indeed they refer to the date of the alleged injury as the “deemed date of injury of 11 December 2019”.
[12] [1996] NSWCA 512
[13] [2005] NSWCA 74.
Before the respondent settled the earlier proceedings it had issued many dispute notices. They are dated 3 March 2020[14], 30 March 2020[15] and 15 April 2020[16].
[14] Reply p 1.
[15] Reply p 16.
[16] Reply p 25.
As Roche DP found in Bouchmouni, to determine what was ‘necessarily decided’, the Commission will closely examine the pleadings and particulars, the s 74 notice, and the legislation, because that material forms part of the mutually known facts and assists in objectively determining the ‘genesis’ and ‘aim’ of the orders (Isaacs at [75]; Spencer Bower at [39]; DTR Nominees at [429]). I note the reference to s 74 notice is a reference to the insurer’s dispute notice and s 74 has been replaced in that regard by s 78 of the 1998 Act.
In Ms Walsh’s submissions in reply at [4] her counsel refers to the contents of the s 78 dispute notice dated 15 April 2020 and submits the 4th page of the notice clearly identified the contentions of each party in relation to the “injury”. The insurer identified that Ms Walsh’s allegation of injury was that bullying and harassment during her employment with the respondent led to the development of symptoms consistent with an adjustment disorder with depressed and anxious mood. The insurer also identified that its contention was that Ms Walsh was not suffering from any psychological or psychiatric disorder within the meaning of s 11A (3) of the 1987 Act based upon the opinion of the insurer’s medico-legal psychiatrist, Dr Lee.
Section 11A(3) provides that “a psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder”.
I find that the substance of the injury being relied upon by Ms Walsh in the earlier proceedings was a psychological injury that she alleged was work related. Notwithstanding, that the respondent had disputed that injury in the dispute notices dated 3 March 2020, 13 March 2020 and 15 April 2020, it agreed in the Consent Orders to pay Ms Walsh compensation for weekly compensation and medical expenses and as found above, that could only have been in relation to her alleged psychological injury.
In the earlier proceedings the insurer’s dispute notices went further than just disputing whether Ms Walsh had a definable psychological injury, they also alleged in the alternative the factual basis of Ms Walsh’s claim was disputed and accordingly, liability under s 4(b) of the 1987 Act was placed in issue. Furthermore, the insurer raised a defence under s 11A. The notice dated 3 March 2020 goes into considerable detail about these issues.
The review notices dated 30 March 2020 and 15 April 2020 maintain the declinature and add to the abovementioned issues, ss 4 and 9A of the 1987 Act. In the latter notice reference is also made to the report of Dr Allen dated 26 March 2020, in considerable detail as illustrated by the passages copied below:
“3. Dr Allen said you reported various previous mental health issues, including eating disorders throughout your teenage years which required hospitalisation over 5 to 6 years. He also recorded a history of previous incidents of domestic violence and sexual assault, the most recent being in 2017. Dr Allen then said that any past psychological injuries you had been experiencing had completely resolved by the time you commenced employment at The Council. He said you “explicitly deny” the presence of any symptoms of PTSD or depression at the time of your commencement with the Council.
4. He then went on to say that you experienced bullying and harassment during your time at the Council, which led to the development of symptoms consistent with adjustment disorder with depressed and anxious mood. He said you have no capacity for work due to your adjustment disorder. He did not think any of your past health issues were causative of your current incapacity for work.
5. StateCover has since requested a supplementary report from Dr Leonard Lee. Dr Lee was provided with additional clinical notes which were not previously available to him, as well as the report of Dr Allen.
6. Dr Lee maintained his previous opinion and said you have underlying dysfunctional personality traits. The additional material did not cause him to change his mind as to whether you are objectively anxious or depressed. Dr Lee therefore confirmed his previous opinion you are not suffering from any psychological or psychiatric disorder within the meaning of section 11A(3).
7. In the event it is accepted you suffered a psychological injury, Dr Lee does not accept employment events could be considered the main contributing factor to the alleged psychological injury. While he said it was possible your interactions with some of your colleagues at work could have aggravated your underlying condition, he does say these employment events or incidents where the main contributing factor to the contraction or aggravation of your psychological condition.
8. Further, the medical reports you submitted with your previous request for a review indicate you complained to your GP in August 2019 about issues relating to your employment, however, your allegations of bullying, harassment and unfair treatment relate to events from about September 2018 to 9 December 2019.
9. The medical records do not disclose any reports of psychological distress or complaints about any alleged bullying and/or harassment prior to August 2019.
…
13. We therefore still consider the medical evidence submitted does not support your employment was the main contributing factor to the alleged psychological or psychiatric disease. The clinical notes previously submitted as well as the report of Dr Allen do not satisfy the “main contributing factor” test required by section 4(b) of the 1987 Act.
14. In the event it is found you are suffering a psychological injury, we do not accept the injury is work-related or that your employment was the main contributing factor to the contraction and/or aggravation of the disease. We say any psychological injury you may be suffering is due to the extensive history of psychological distress in the context of eating disorders, violent relationships and sexual assaults dating back to your teenage years.
15. Alternatively, if you are found to be suffering a work-related psychological injury within the meaning of sections 4(a) and 9A or 4(b), we say you are not entitled to receive any compensation by operation of section 11A(1). The reasons for the dispute concerning section 11A(1) were outlined in considerable detail in our initial section 78 notice dated 3 March 2020.”
Ms Walsh in her original submissions, and those in reply, submits that the Consent Orders in the earlier proceedings created issues estoppel as to the issues of injury and the liability matters raised in the defence of the proceedings under s 11A. Ms Walsh submits that the respondent cannot relitigate those issues. I accept those submissions because it is evident from the dispute notices issued before the Consent Orders, that issues under ss 4, 4(b), 9A, 11A and 11A(3) of the 1987 Act had all been raised. The respondent also had knowledge of Ms Walsh’s prior mental health conditions.
The respondent’s further argument is that there can be no estoppel because there had been a substantive change in diagnosis by Dr Allen. Ms Walsh submits that it is not uncommon that a psychiatric diagnosis evolves such as when an adjustment disorder progresses to a major depressive disorder. It is submitted by Ms Walsh that the aspects of diagnosis are properly matters for a “medical dispute” pursuant to s 319 of the 1998 Act and it is not an opportunity for a party to relitigate issues.
Once a referral is made to a Medical Assessor to assess permanent impairment it is a necessary first step for the Assessor to make a diagnosis. Chapter 11.3 of the NSW Compensation Guidelines for the Evaluation of Permanent Impairment – Fourth Edition (the permanent impairment guidelines) provides the psychiatrist needs to confirm that the psychiatric diagnosis is the injured worker’s primary diagnosis. Chapter 11.9 requires the Assessor to consider co-morbid features such as, but not limited to, bi-polar disorder, personality disorder, substance abuse and to determine whether they are directly linked to the work-related injury, or whether they were pre-existing or unrelated conditions. Chapter 11.10 sets out the way to measure pre-existing impairment.
The role of the Member of the Commission, as distinct from a Medical Assessor, has been discussed in many cases. In a psychological injury case once a work-related primary psychological injury has been found, and if the respondent has not established a defence under s 11A, then the Member usually remits the lump sum claim to the President for referral to a Medical Assessor.
In Ms Walsh’s case the crux of her argument is by virtue of the resolution of the earlier proceedings by the Certificate of Determination - Consent Orders dated 27 May 2020 the respondent has in effect conceded that there was a work-related psychological injury.
Compensation was ordered to be paid to Ms Walsh by virtue of the Consent Orders. The respondent submits at [24] that it could on the face of the Consent Orders contend that the current proceedings are not maintainable as injury had in fact been resolved or been subsumed by pre-existing factors by 26 May 2020, given the awards in the respondent’s favour at the conclusion of the short, closed period award. However, I find that the award for the respondent in respect of weekly compensation after 27 May 2020 does not mean there is no “permanent impairment”, it can only mean there is no “incapacity” for employment after that date. Similarly, the award for the respondent in respect to s 60 expenses cannot be construed to mean there is no “permanent impairment” because “entitlement to medical expenses” and “permanent impairment” are different concepts.
The difference in the concepts between “incapacity” and “permanent impairment” was discussed by Roche DP in Jaffarie V Quality Castings Pty Ltd[17]. He stated at [24]:
“The Arbitrator refused the reconsideration application, apparently without having seen the respondent’s submissions, because he considered himself bound by Greater Taree City Council v Moore [2010] NSWWCCPD 49 at [98]– [103] (Moore), which discussed and applied Peric, WorkCover New South Wales v Evans [2009] NSWWCCPD 95 (Evans) and Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 (Waretini). He noted Haroun and said that, given his finding that the effect of Mr Jaffarie’s injury to his lumbar spine had ceased, there was no medical dispute for referral to an AMS.”
[17] [2014] NSWCCPD 79. I note the Court of Appeal revoked part of the decision in 2014 decision in Jaffarie but only as to the finding of no injury to the thoracic spine see: [2015] NSWCA 335, the passages I have quoted were not overturned.
After considering in detail many subsequent authorities to those referred to in the passage above, Roche DP concluded at [279]:
“It should now be accepted that an Arbitrator’s finding, when dealing with a claim for weekly compensation or for medical expenses, that the effect of the injury has ceased does not determine the claim for lump sum compensation for whole person impairment as a result of the injury. That question must be remitted to the Registrar for referral to an AMS.”
However, it should be borne in mind that this decision in Jaffarie was made before the Workers Compensation Legislation Amendment Act 2018 which repealed s 65(3) of the 1987 Act. The authorities discussed by Roche DP did place emphasis on the operation of s 65(3), which precluded the Commission from awarding permanent impairment compensation unless there had been an assessment of the permanent impairment by an Approved Medical Specialist (now termed a Medical Assessor).
The repeal of s 65(3) and the adding s 322A to the 1998 Act means that the Commission can “award” permanent impairment compensation without a referral to a Medical Assessor. However, this does not mean that a Member can “assess” the degree of permanent impairment. The permanent impairment guidelines are unchanged, and they require at Chapter 1.40 that the assessment is to be undertaken by a registered medical practitioner recognised as a medical specialist and at Chapter 1.6 based on clinical assessment as they present on the day of assessment taking into account the relevant medical history and all available information. In practice there will be limited situations where a Member would award permanent impairment compensation without having an assessment by a Medical Assessor. This has been done where an applicant had an assessment of permanent impairment and the respondent had no assessment[18], where both parties’ doctors assessed the same degree of permanent impairment[19] and also where there was an estoppel precluding the applicant relying on knee replacement surgery and a nature and conditions injury with the remaining permanent impairment being determined by the Member to be below the threshold for lump sum compensation[20].
[18] Thompson v Bernipave Pty Ltd [2020] NSWWCC169.
[19] Boga V Carpet Call (Vic) Pty Ltd t/as Carpet Call [2019] NSWWCC 127.
[20] Etherton v ISS Property Services Pty Limited [2019] NSW WCCPD 53
The respondent argues that there will be no issue estoppel in situations capable of change and relies upon the change in diagnosis by Dr Allan of an adjustment disorder in his report dated 26 March 2020 to that in report dated 2 March 2021, post-dating the Consent Orders, of a schizo-affective disorder. However, at [35] of its submissions the respondent acknowledges that Dr Allen when finding Ms Walsh suffers from a schizo-affective disorder found it “relates to workplace difficulties causing an enduring aggravation of her [pre-existing] underlying condition.” The respondent also refers to Dr Allen in March 2020 noting a pre-existing major depressive disorder which he considered was in remission at the commencement of her employment and he diagnosed a work related adjustment disorder independent of her past health issues. The respondent argues that any evolution of a major depressive disorder is thus the evolution of a pre-existing condition.
The respondent submits that the significance of the change in the nature of the injury relied upon by Ms Walsh and the reason why it precludes any estoppel arising is highlighted by a consideration of the concept of injury as it impacts on the determination of rights and obligations in the Workers Compensation jurisdiction. In support of this submission the respondent relies on the decision in Department of Juvenile Justice v Edmed[21] at [26] to [27] drawing on observations by Neilson J in Lyons v Master Builders Association of NSW[22].
[21] [2008] NSWWCCPD 6, Edmed.
[22] (2003) 25 NSWCCR 423, Lyons.
The respondent submits that the previous Consent Orders were based on a different psychopathology to the condition now being asserted and thus it is a very different injury being relied upon. The respondent asserts this is an entirely different injury. However, I find that this submission glosses over the fact that Dr Allen still finds there is a work related psychological injury.
In his report dated 2 March 2021 Dr Allen specifically addresses the argument of the insurer that his diagnosis has altered he explains:
“The initial symptoms presented were entirely consistent with an adjustment disorder with depressed and anxious mood. In an evolution of her condition by the time of her second review showed the presence of major depressive disorder with psychotic features.
The author of that correspondence stated that I ‘also provided a differential diagnosis of schizophrenia which is not a work-related injury’. This appears to be a reductionist statement entirely misunderstanding the condition and potential causes of the presentation.
Clearly stressors may precipitate such a condition and therefore the development of a schizophrenic illness could itself be entirely related to the work and the stressors experienced there.
It is unclear to me, why anyone would believe that extreme stressors as are described by Ms Walsh could not have precipitated such a condition. This comment makes little sense from my psychiatric perspective and while clearly the. adjustment disorder diagnosis had progressed to one of chronic major depressive disorder, this ‘alteration’ in diagnosis should instead be seen as what it is - that being an evolution of a severe and enduring mood problem. It is naive to think otherwise.
From a medical perspective, being comprehensive in consideration of differential diagnosis is good practice, and indeed if I was to not consider schizophrenia as a diagnosis, then I would consider my report was not comprehensive.
They furthermore comment that in ‘March 2021 he's changed his opinion again’.
The previous psychotic symptoms that I had referred to in September 2020 had been furthermore assessed and managed by the Community Mental Health Services and by that time a diagnosis of schizoaffective disorder was entirely apparent.
Whilst I feel it is self-explanatory, how this building stress dating back to her work place injury had led to her ultimate contact with the Bankston Community Mental Health Service, I will reaffirm here that as regards in a ‘causal linkage’ the origin of Ms Walsh's psychiatric difficulties was related to the problems described in her workplace and the evolution and worsening severity of those symptoms which ultimately met the DSM-5 criteria for a schizoaffective disorder has its origin in the problems described in the workplace.”[23]
[23] ARD pp 128-129.
Dr Allen further explains in answer to question 1 that the origin of Ms Walsh’s stressors began within the workplace and the severity of her symptoms and apparent resistant to treatment which led to the worsening presentation which ultimately met the criteria of a schizoaffective disorder. Dr Allen explains this condition as being a severe psychiatric condition combining significant symptoms of a psychotic nature alongside mood problems. He adds “this is evidence of the severity of her condition rather than evidence that she does not have a work-related condition.”
In his report dated 3 February 2022 Dr Allen stresses the background of mental illness does not mean there is no work injury. He acknowledges the issues in 2014 and finds this does not mean she necessarily would not have developed worsening health issues but for the experiences she had at work. He adds had she had marked and enduring psychotic, delusional, paranoid or referential ideation she would not have been able to engage in any workplace. Dr Allen says the fact that she was able to establish employment is evidence of improvement in her mental state, and she remained well until the workplace events.
Ms Walsh’s counsel submits at [20] of his submissions in reply that there have been no additional workplace incidents or events since Ms Walsh became incapacitated and left the workplace on 9 December 2019 and no further workplace incidents since the Consent Orders on 27 May 2020. It is argued that Dr Allen’s change in diagnosis is not evidence of a new injury for the purposes of s 4 of the 1987 Act but just reflects the evolution that occurs in psychological injury cases. I accept this submission.
The respondent had the reports of Dr Lee dated 27 February 2020 and 7 April 2020 before entering into the Consent Orders on 27 May 2020. They relied upon Dr Lee’s opinion in the declinature notices. Notwithstanding his opinion that there was no work-related psychological injury, in his second report he does allow that there could have been some aggravation of her underlying dysfunction,[24] nonetheless the respondent they settled the claims in the earlier proceedings. In Dr Lee’s subsequent reports he finds she has borderline personality traits, but he does not accept she suffered an injury.
[24] Reply p 178.
Ms Walsh’s counsel quotes various authorities and argues that the insurer is estopped from disputing liability for the injury but not estopped from contending that Ms Walsh has no impairment from the injury or that level of that impairment, whether 15% is reached. It is argued that the aetiology of her condition and the evolution in the diagnosis are matters that should be assessed by a Medical Assessor. I agree with this submission and note it is consistent with the permanent impairment guidelines, discussed earlier.
I find that a reasonable objective person considering the Consent Orders and the preceding lengthy and detailed dispute notices, would understand by the language the parties have used in the orders, that the insurer was no longer relying on the matters it disputed about ss 4, 4(b), 9A,11A(3) and 11A. It not only agreed to pay weekly compensation and medical expenses, but also obtained awards for the respondent. There is also the notation that the applicant agreed to resign her employment. I find having regard to the context in which the words appear in the Consent Orders, the purpose and object of the transaction was for the respondent to compromise its hitherto held position and no longer dispute the “liability issues”. It is of some relevance that the insurer is experienced and was legally represented at the telephone conference when the Consent Orders were agreed.
Accordingly, I propose to remit the lump sum claim to the President to be referred to a Medical Assessor to assess permanent impairment from psychological injury as a result of injury in the course of employment with the respondent from the nature and conditions of employment from 1 April 2018 to 11 December 2019, with a deemed date of injury of 11 December 2019. The documents to be referred to the Medical Assessor are those attached to the ARD and Reply.
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