Westpac Banking Corporation v Thorpe
[2024] NSWPICMP 721
•17 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Westpac Banking Corporation v Thorpe [2024] NSWPICMP 721 |
| APPELLANT: | Westpac Banking Corporation |
| RESPONDENT: | Anna Thorpe |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 17 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submits that the Medical Assessor erred in failing to make a deduction pursuant to section 323 where the evidence supported such a deduction being made; the Medical Assessor erred in making an adjustment for the effects of treatment; the respondent submits that no errors were made and also agrees with the appellant that the Medical Assessor erred in making an adjustment for the effects of treatment; re-examination required; evidence of a pre-existing disorder; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 June 2024 Westpac Banking Corporation lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 May 2024.
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 the worker should undergo a further medical examination because the Panel has determined that the Medical Assessor erred in failing to consider relevant documents or fully consider the evidence relating to any alcohol use disorder.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker on 9 October 2024 and reported to the Appeal Panel.
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 Medical Assessor erred in failing to make a deduction pursuant to s 323 of the 1998 Act where the evidence supported such a deduction being made. In addition, the Medical Assessor erred in making an adjustment for the effects of treatment.
In reply, the respondent submits that no errors were made, adding:
“In order to make a deduction it is insufficient to merely identify a pre-existing condition it is also necessary to show how that condition contributes to the impairment that is in the assessments.”
The respondent also agrees with the appellant that the Medical Assessor erred in making an adjustment for the effects of treatment.
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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on
19 November 2019.The Medical Assessor obtained the following history:
“In summary of the documentation provided:
The claimant was employed by Westpac in 2012 as a Business Banker. It was documented that in December 2017, her manager got on the phone with her and was yelling for approximately 40 minutes about having left work early. The documents indicated that she had a significant workload and was working long hours. She documented having won multiple awards nationally because of her work. The documents noted that she had to reapply for her role in November 2018 and that she continued to fear her manager.
Things escalated to the point where she needed six weeks of leave. On her return, she had a different manager and things improved significantly. It was documented that by Easter 2019, she was under more stress as she was dealing with more distressed clients and suffered a septic abscess because she was neglecting her health. She then received negative feedback about her work. The documents noted that at the time she ceased work, she felt depressed and anxious, had difficulty sleeping, and lost 25 kg in weight. She was diagnosed with major depressive disorder by Dr Sinha and was prescribed escitalopram.
Her last day of work was 01/11/2019.
The claimant’s report of the injury of 19/11/2019 (as dated in the PIC documentation):
The claimant said her bosses were aggressive, standing over her continuously, blaming her for things not under her control. She felt badgered and blamed. She felt threatened to lose her job if she did not do what she was told. She said the stress early on was on and off, but two managers in particular made it difficult for her.
She reported that in 2017 she had nausea, anxiety and a 30kg weight loss. She said that she had many problems around then such as being physically unwell. The claimant stated that she was unaware at the time of what was happening with her mental health until she attended her GP and discussed it with him.
She said that her sleep has been poor since 2019 due to the anxiety from work. She said that by 2019, her mental health was “terrible” and her anxiety and sleep worsened. She reported using increasing amounts of alcohol to manage her mental health symptoms. She had to take two months off to try to manage that. She said that she returned to work but then developed septicaemia and then by around September 2019 she was in the hospital.”
“Current Symptoms” were noted as:
“Mood Symptoms:
Mood – When asked about her mood over the last few weeks she could not express how her mood has been. When asked about their depressed mood, she reported feeling anxious all the time. Anhedonia – She does not have an interest in many activities nowadays. Appetite - She said that 3 to 4 days per week her appetite was poor due to anxiety. On the other days, she has a good appetite. Now her weight fluctuates by small amounts that she could not quantify. Sleep – She reported waking between 2 and 3 am and cannot sleep afterwards. If she is anxious, she goes to bed early. Fatigue – She stated that she does not experience fatigue and does not nap during the day. Concentration – She said that her concentration is poor. Suicidal – She said that she has never been suicidal.
Anxiety Symptoms:
Frequency – She said that anxiety episodes occur all the time 5 to 6 days a week. Some days she does not have any anxiety at all if she does not have anything to do or go anywhere. Duration – She said that anxiety symptoms can last all day until she goes to bed. Triggers – She stated that anxiety episodes were triggered by going to town, going near Westpac, being around people in general, listening to the news, and having calls from telemarketers trigger her. When asked how these were all related to work, she said that these were reminders of what she had to do at work such as attending crowded events, using the phone, and being under stress. Improved by – To improve anxiety, the claimant said going to sleep, going home, or spending time with her animals. The claimant reported that symptoms of anxiety include increased heart rate, shortness of breath, shaking, psoriasis flare-ups, sweating, shaking, nausea, and gastrointestinal symptoms.
Psychosis:
The claimant denied any psychotic symptoms. The documentation on 20/01/2020 that the claimant was staying in her car at the back of her friend’s place worried about going home because her boss knew where she lived. When asked about this, she said that her boss owned guns and at the time, she thought he was going to harm her. Those worries lasted only one day and she recalled going home after that.
Alcohol Use:
She said that she did not drink until 30 years of age and after that, she only drank a glass of wine once a week. The 2019 documentation noted that she drank 1 bottle of wine a day. She said that she was drinking more when working because of the stress. She said that all of 2019 was a blur. She said that when she is having a good day, she drinks 1 glass of wine. On a bad day, she drinks 3-4 glasses. She does not drink 3 days per week. She could not recall when she reduced to that level.”
The Medical Assessor then set out details of the respondent’s present treatment. He noted “past treatment” as follows:
“She was previously taking escitalopram 20mg daily and chlorpromazine for acute agitation at times. She could not recall how many other medications or the names of medications she had tried in the past.”
The Medical Assessor then noted “Details of any previous or subsequent accidents, injuries, or conditions” as follows:
“The claimant denied experiencing any psychiatric or psychological disorder before the work-related injury. The claimant denied any prior engagement with mental health services or admissions to mental health units. The claimant also denied ever having any history of previous self-harming behaviours, suicide attempts or harm towards others.”
The Medical Assessor continued:
“The claimant denied any substance use.
On 17/11/2019, Dr Mason’s referral letter reported that her mother had depression. When asked about that, the claimant said her mother only experienced one depressive episode. That occurred following the death of her 3-year-old son, the claimant’s half-brother from her mother’s second marriage.
In 2023, the documentation indicated legal issues related to 3 civil court cases. One was concerning a building works dispute, and another was related to an assault that she had been charged with. The claimant said those were all resolved, and there were no ongoing legal issues.
She married in 2011 and separated amicably in 2018. She thought the stress and work hours led to them not seeing much of each other.”
As regards Ms Thorpe’s activities of daily living, the Medical Assessor said:
“Current living situation: The claimant reported living alone.
Self-care and personal hygiene: Bathing: She said that she is independent of her self-care. Cooking: The claimant said she cooks once a week or twice a week depending on the degree of anxiety. On the days she does cook, she makes enough to see her over a few days. Sometimes friends bring meals over. Household chores: She reported that she does not do chores except for the dishes occasionally. She has a cleaner twice a week to do laundry, cleaning, and dishes. Shopping: She stated that she goes shopping once every 2 or 3 days a week. Sometimes she has shopping brought by friends. The claimant said the last time she was independent in all these areas was around 2019.
Social and recreational activities:
Hobbies: She said she gets joy from her work on the farm, spending time with her animals, riding her motorbike, or going for a drive with a friend. Frequency of socialising: She said she last went out socialising years ago. It was only when trying to get more detail about this that she stated that she attended the Dawn Service Anzac Day 2024 alone. After the service, she then went to the club alone and stayed for 1½ hours before leaving. She said that she might have spoken very briefly to some people, but could not recall. The claimant said that a support person is not needed to go out.
Travel:
She said that she drives 2 km to town once or twice alone. Her friend lives 20km away. She would go with her friend. The claimant said that a support person is not required to travel she does not drive as much now due to anxiety. She said driving on winding busy roads reminded her of the commute to work that she used to do. The documentation states that since the injury she had been able to travel.
Social functioning:
Relationship with her partner: She said she is not in a romantic relationship currently. She said her previous relationship ended in 2022 after 5 years together because he could not manage her anxiety. She denied any domestic violence in the relationship. Relationship with children: She stated that she has a 19-year-old daughter and an 8-yearold son. The last she saw her son was when he was 3 years old. She said that her daughter is not talking to her because of something unrelated to the injury. Relationship with siblings: The claimant said she has a good relationship with her siblings and speaks to them a couple of times a month. Relationship with parents: She reported that she speaks to her mother twice a week and that her relationship with her father is good. Relationship with friends: She stated she talks to 2 or 3 friends a couple of times a month. She said she used to have many friends but around 2019 deleted her social media.
Concentration persistence and pace: Her favourite pastime pre-injury was reading but she cannot read at all nowadays because her concentration is poor. She looked at her mobile phone and said she currently has 6,470 unread emails. She did not read them because it reminded her of having had the pressure of reading emails at work.
Employability: Work: The claimant said she works on her 17-acre farm. Volunteering: She said that she helps her friend to help him on his farm because he helps her on her farm. Hours per week: The claimant thought she could work up to 8 or 12 hours one day a week but on some days does not do any work at all. When asked about the barriers to returning to employment, she said that her poor concentration, difficulty being around people, and difficulty going to town were barriers. She said that she feared going back into a stressful work situation.”
Findings on mental state examination were reported as follows:
“Appearance: The claimant appeared her stated age and was well groomed. Her blonde hair was neat. She wore makeup, a necklace and clean clothing. Behaviour: There was no psychomotor disturbance and she appeared slightly anxious in her chair and showed her hands which were slightly tremulous to demonstrate her anxiety. There was good eye contact with the videoconference camera. Speech: Speech was spontaneous and was normal in volume, rate, rhythm, and prosody. Mood: When asked about her mood, she was unable to give a word to describe it except to say she was anxious. Affect: Her affect was warm, reactive, and appropriate, with a restricted range. Thought form: The thought form was logical with no formal thought disorder noted. Thought content: The main themes were about the effects of the injury on her life. She found working with her animals to be therapeutic. She reported that anxiety was caused by being around people and having reminders of her workplace with Westpac. There were no delusions noted. There were no suicidal thoughts. Perceptions: There was no perceptual abnormality described and she did not appear to be responding to any abnormality on observation. Cognition: Formal testing of cognition was not performed. The claimant attended the assessment at the correct time with her support person. A reasonable history was obtained, although she sometimes struggled with providing details.”
The Medical Assessor diagnosed:
“Persistent Depressive Disorder with anxiety - as there have been persistent depressive symptoms exceeding the minimum 2 years duration. Symptoms include dysphoric, anxious mood, anhedonia, poor appetite, poor sleep, and poor concentration.”
He added:
“The claimant appeared generally consistent in her presentation. However, she struggled with providing details at times. She said that she had not gone out socialising since 2019 but then when put to her that the documentation indicated that she has had social interactions since then, she reported that she went out on Anzac Day 2024.”
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition, or abnormality?” the Medical Assessor said: “No.”
The Medical Assessor assessed 15% WPI.
He then turned to consider the other medical opinions and material before him. We do not intend to set that out in detail here, but will refer to that evidence, where relevant, in due course.
In summary, the Medical Assessor said:
“My assessment of 15% WPI is below Dr Allan’s assessment. In contrast to Dr Young’s assessment, the claimant during this assessment with me (09/05/20224) appeared reliable and did not appear intoxicated. My reasoning for each specific domain is to be found within the PIRS. A summary of my PIRS assessment is as follows: PIRS classes were 2,2,2,3,3,3 thus the aggregate was 15 and 15% WPI with 0% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 15%.
2 February 2021, 30 November 2021, 18 January 2023 - IME, Medical Reports, Dr Martin Allan, Psychiatrist PIRS classes were 2,3,2,4,3,5 thus the aggregate was 19 and 24% WPI with 0% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 24%.
10 May 2023, 27 October 2023 - IME, Medical Reports, Dr Peter Young, Psychiatrist A PIRS was not completed because of the marked inconsistencies in the history.”
The appellant’s submissions
The submissions are as follows:
(a) The Medical Assessor failed to have adequate regard to the clinical notes of Heritage Medical, particularly the report of Dr Elissa Calderwood contained therein, which detailed the worker's pre-existing anxiety and alcohol dependency.
(b) The Medical Assessor failed to have adequate regard to the IME evidence of
Dr Alan and Dr Young which both refer to the worker previously meeting the criteria for alcohol use disorder.(c) The Medical Assessor did not have adequate regard to the worker's significant psychopathology predating the work injury and consequently did not make a deduction for pre-existing impairment pursuant to s 323 of the 1998 Act.
(d) The worker self-reported to the Medical Assessor that she did not drink until
30 years of age, and after that, only drank one glass of wine once a week. The worker denied sustaining any psychiatric or psychological disorder before the work-related injury.(e) However, as contained in the clinical records of Heritage Medical, Dr Elissa Calderwood recorded the following on 15 October 2018:
“1.That the Worker was attending at the request of her father who was worried the Worker was ‘killing herself’. The Worker advised that she felt fine and did not usually see doctors.
2.The Worker reported having anxiety ever since she was a child and that she self-medicates with alcohol. The Worker reported consuming one bottle of wine per night, for the past ten years. She did not consider this to be a problem, and stated she enjoys it. The Worker also reported smoking approximately 30 cigarettes per day.
3.The Worker advised that she was not interested in seeing a psychologist as she has friends she can talk to.
4. The Worker reported that she was going through a divorce, and although it was stressful, she stated she was feeling better since her husband moved out. The Worker mentioned losing 15kg which she attributed to being happier.”
(f) The Medical Assessor summarised that on 18 January 2023 Dr Allan, the worker's own independent psychiatrist, "noted that she previously met the criteria for an alcohol use disorder."
(g) This was further considered in the report of Dr Young dated 10 May 2023, which observed as follows:
(i)the worker presented with a history of the development of psychological symptoms in the context of perceived bullying which occurred in relation to performance deficits that had been noted by her managers in her former role at Westpac. There were marked discrepancies between the Worker's description of events and that provided in other documents including employer statements;
(ii)at the time the worker developed her psychological symptoms, she had a previous diagnosis of alcohol use disorder and likely alcohol dependence was present. This was most likely the explanation for the deficits in performance which came to the attention of her managers and is also consistent with her continuing lack of insight regarding these issues, and
(iii)the worker was diagnosed with alcohol use disorder and that, given the worker's inconsistent, vague, and unreliable history and reports regarding her functioning, her WPI could not be reliably assessed.
(h) The Medical Assessor, by summarising the above treating and independent medical evidence between pages 8 and 11 of the MAC, specifically and unreasonably chose to disregard same when assessing the applicability of a s 323 deduction for previous injury or pre-existing condition or abnormality.
(i) The Medical Assessor should have apportioned the worker's permanent impairment to her pre-existing alcohol dependency and anxiety and the worker's divorce, being a non-work related incident/event that has occurred subsequent to the work injury and which was unrelated to the worker's employment, so as to have assessed the impairment that arose as a result of the injury only.
(j) The appellant further refers to the decision in Marks v Secretary, Department ofCommunities and Justice (No 2) [2021] NSWSC 616. The following was noted:
“s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to “previous injury ... or ... pre-existing condition or abnormality”, whether or not the preexisting condition or abnormality is symptomatic at the time of injury.
There is nothing in s 323(1) that authorises exclusion of asymptomatic preexisting conditions as causative or partially causative of a subsequent impairment.”
(k) The Medical Assessor did not apply a deduction for pre-existing condition or injury to the assessed impairment pursuant to s 323(1) of the 1998 Act. The Medical Assessor did not provide reasoning for this conclusion.
(l) This assessment is arbitrary and unreasoned at best. The worker's treating evidence, appellant's independent evidence and worker's independent evidence collaterally demonstrate a clear spectrum of pre-existing and non-work- related psychological impairment anxiety onset in childhood, to alcohol use disorder and divorce.
(m) The appellant recognises the observations of the Medical Appeal Panel in Kitanovska v Coles Group Limited [2016] NSWWCCMA 90 at [43] (Kitanovska): "Assessments are not recorded and an AMS is under no obligation to repeat verbatim the conversation held during the course of the assessment. An AMS is required to use his clinical judgment and experience in the assessment process, utilising all the materials referred to him and is presumed to have asked relevant questions, and recorded those responses that were germane to his enquiry. There is a presumption of regularity that accompanies the actions of an administrative decision maker, of whom the AMS is one."
(n) However, such a presumption only stands if, as quoted in Kitanovska above, the Medical Assessor has utilised "all the materials referred to him." On page 7 of the MAC, the Medical Assessor purported to have given consideration to the medical evidence summarised above. The appellant respectfully submits that, if same were to be true, the logical outcome would be for the Medical Assessor to have applied a s 323 deduction to the assessed impairment in circumstances where the treating and independent evidence all demonstrate a material contribution of the applicant's pre-existing psychological condition to her presenting symptoms for the purposes of ascertaining the degree of work-related impairment.
(o) The appellant notes the High Court's decision in Wingfoot Australia PartnersPty Ltd v Eyup Kocak [2013] HCA 43 in which it was observed at [55]: "The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows”. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.
(p) The Medical Assessor’s omission of the medical evidence summarised above in assessing whether or not a s 323 deduction is warranted is inconsistent with such a standard and has resulted in an erroneous calculation of 15% WPI.
(q) The history is not inconsistent with the application of a standard 10% deduction of the WPI calculated from the PIRS table.
In supplementary submissions dated 25 July 2024, the appellant said:
(a) The respondent has previously made submissions in opposition to the [appeal]. In those submissions, the respondent submitted:
(i)the report of Dr Young refers to a report from an unnamed GP which purported to say that the respondent presented in 2018 drinking a bottle of wine a day had done so for 10 years;
(ii)the respondent denies this history and the veracity of the clinical record referred to is unknown, and
(iii)the clinical record did not form part of the material filed by the appellant.
(b) On 8 July 2024, a delegate of the Personal Injury Commission (Commission) issued a decision pursuant to s 327(4) of the 1998 Act referring the appeal to a Medical Appeal Panel for determination. In making that decision, the delegate noted as follows: "I note the appellants refer to a report of Dr Elissa Calderwood dated 15 October 2018, which is said to be relevant to the existence of a pre-existing condition. This report was not in the documents referred to the Medical Assessor and the appellant has not provided any explanation as to why they ought to be admitted in these proceedings. The Medical Appeal Panel will consider whether this additional report ought to be considered by it."
(c) Having regard to the above, the appellant makes the following submissions.
(d) The consultation note of Dr Calderwood (incorrectly referred to in the appellant's submissions in support of an appeal as a report) is dated 15 October 2018 and forms part of the clinical records of Heritage Medical Centre.
(e) The respondent's Index references "Clinical records of Heritage Medical Centre". These records were admitted into evidence in the course of these proceedings as an annexure to the respondent's Application to Resolve a Dispute. However, only a select extract of said notes was provided, namely the consultation notes for the period 11 June 2021 to 3 January 2024 and associated documents. The respondent's Index did not state that only select clinical notes were included in that annexure. On that basis it was assumed by the appellant that the entirety of those records had been put into evidence by the respondent.
(f) The clinical records of Heritage Medical Centre for the period 15 October 2018 to 9 December 2022 were provided to Dr Young for his review. This included the consultation note which the appellant seeks to rely upon.
(g) The clinical records of Heritage Medical Centre were not annexed to the appellant's Reply to the Application to Resolve a Dispute as it was assumed that they formed part of the Application to Resolve a Dispute.
(h) The appellant has since filed an Application to Admit Late Documents enclosing the clinical records sought to be admitted.
(i) The appellant submits that there is no prejudice to the respondent nor denial of procedural fairness if these clinical records are provided to the Medical Appeal Panel. They are the respondent's own clinical records and have been always available to her. Further, the clinical records are explicitly referred to in the report of Dr Young dated 10 May 2023 which was served on the respondent on
11 October 2023.(j) Further, the appellant submits that the probative value of the clinical records sought to be admitted far outweighs any claimed prejudice to the respondent. In this last respect, at no stage prior to the present appeal did the respondent raise any objection to Dr Young's reference to and reliance on the consultation note in question. The respondent has been on notice since at least 11 October 2023 that the appellant relies upon the history given by the respondent to Dr Calderwood on 15 October 2018. On that basis, there can be no prejudice to the respondent.
(k) The appellant submits that it is in the interests of justice these records should be reviewed by the Medical Appeal Panel as same are clearly relevant to the claim. Further a selective version of the records is not representative of the complete clinical picture that is relevant for the Medical Appeal Panel's consideration.
(l) A failure to provide the clinical records sought to be admitted to the Medical Appeal Panel would be highly prejudicial to the appellant and contrary to the objectives of the Commission as articulated in Section 3 of the Personal Injury Commission Act 2020 and allow for all relevant matters to be determined at one time.
The respondent’s submissions
The submissions are as follows:
(a) The Medical Assessor was aware of the prior alcohol use noting that the 2019 document noted that she drank one bottle of wine a day. She said that she was drinking more when working because of the stress. In her statement of
23 March 2024 the respondent says that during the troubles she was having at Westpac through 2017 and 2018 she was using alcohol to cope with her stress and drinking around four standard drinks most evenings a week. The use of alcohol in 2019 was a consequence of the injury developing and not evidence of any pre-existing condition.(b) Dr Allan had access to the clinical notes from Moss Street Medical Centre. He recorded that at first the respondent was consuming alcohol three to four days per week in the quantity of around four standard drinks. He found that the respondent had a fluctuant alcohol misuse disorder. As he found that there was no evidence of non-work-related factors contributing to her condition he must have considered that the alcohol misuse was a result of the work stressors.
(c) Dr Allan assessed a 19% WPI and made no deduction pursuant to s 323. There is no doubt that he considered the question as he expressly found 0% pre-existing impairment.
(d) When Dr Allan examined the respondent again in January 2023 she no longer met the criteria for alcohol misuse disorder. As the condition no longer existed it is difficult to see how it would contribute to the current WPI in any event.
(e) Dr Young does refer to a report from an unnamed GP which purported to say that the respondent presented in 2018 drinking a bottle of wine a day had done so for 10 years. The respondent denies this history. The GP is not identified however it is clear that Dr Young had some clinical record. The veracity of the clinical record is unknown. Further the supposed clinical record did not form part of the material filed by the appellant.
(f) The Medical Assessor expressly referred to the report of Dr Young. He found that in contrast to that report the respondent appeared reliable and did not appear intoxicated.
(g) It is noted that the material now being referred to was in the possession of the appellant at the time of the s 78 notice but was not disclosed with any of the notices. It follows that pursuant to s 73 of the 1998 Act and Regulation 41 the report cannot be relied upon to dispute the claim.
(h) It follows that the reference to the clinical record in Dr Young’s report also cannot be relied upon. It is not permissible to do indirectly that which is prohibited directly.
(i) Without the actual clinical record there is no evidence of any condition that pre-dates the commencement of employment with the appellant. Dr Young’s conclusion made in reliance on that record was therefore unsupported by any evidence.
(j) All of the evidence of alcohol misuse is that it is a response to the work stress.
(k) The appellant refers to a report of Dr Elissa Calderwood dated 15 October 2018. That record is said to be in the notes of Heritage Medical Centre.
(l) The notes of Heritage Medical Centre appear at pages 101 to 120 of the Application to Resolve a Dispute. Those records date from 11 June 2021 and do not include any reports records or reports from Dr Calderwood and do not include any record from 2018.
(m) There was no evidence before the Medical Assessor of any pre-existing condition. In particular any record from Dr Calderwood was not part of the evidence before the Medical Assessor and is not part of the evidence in these proceedings.
(n) It is also relevant that the Medical Assessor diagnosed a persistent depressive disorder with anxiety. He did not diagnose an alcohol misuse disorder. This conclusion is consistent with the opinion of Dr Allan. As has already been submitted if there is no longer an alcohol misuse disorder it cannot logically be contributing the impairment that currently exists.
(o) In order to make a deduction it is insufficient to merely identify a pre-existing condition it is also necessary to show how that condition contributes to the impairment that is currently being assessed.
Discussion
Dealing firstly with the appellant’s supplementary submissions regarding the Heritage Medical Centre, the Panel accepts those submissions.
As the appellant pointed out:
“The Respondent's Index references ‘Clinical records of Heritage Medical Centre’. These records were admitted into evidence in the course of these proceedings as an annexure to the Respondent's Application to Resolve a Dispute. However, only a select extract of said notes was provided, namely the consultation notes for the period 11 June 2021 to 3 January 2024 and associated documents. The Respondent's Index did not state that only select clinical notes were included in that annexure. On that basis it was assumed by the Appellant that the entirety of those records had been put into evidence by the Respondent.”
In addition, the appellant said:
“The consultation note of Dr Calderwood is dated 15 October 2018 and forms part of the clinical records of Heritage Medical Centre.
The clinical records of Heritage Medical Centre for the period 15 October 2018 to 9 December 2022 were provided to Dr Young for his review. This included the consultation note which the Appellant seeks to rely upon.
The clinical records of Heritage Medical Centre were not annexed to the Appellant's Reply to the Application to Resolve a Dispute as it was assumed that they formed part of the Application to Resolve a Dispute.
The Appellant has since filed an Application to Admit Late Documents enclosing the clinical records sought to be admitted.”
Given that the full records were subsequently filed in the Commission we see no prejudice to the respondent particularly as they were referred to by Dr Young in his report.
The Panel has accepted those records into the evidence we have before us.
Although the appellant did not seek a re-examination of Ms Thorpe, the Panel identified errors in the MAC referred to above, such that much of both parties’ submissions are no longer relevant.
Dr Michael Hong of the Panel re-examined Ms Thorpe on 9 October 2024 and reported to the Panel as follows:
“Update history
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Thorpe confirmed the history contained in the MAC and that she joined Westpac in 2012 as a business banker and stopped working in November 2019. She suffered depression and anxiety as a result of her employment, and her condition has not changed since the assessment in May 2024.
She reported she suffered recurrent septicaemia due to stress and was hospitalized in 2019, and she has not had it in 2024.
Ms Thorpe was married for 5 years and they separated in 2018. She then had a de facto partner but that relationship subsequently ended and she said they are still friends.
She said she smokes 10 to 20 cigarettes a day and she doesn't drink regularly now, except on Christmas and birthdays she might have cocktails. In terms of past alcohol consumption, she was very vague and said she cannot remember.
In terms of past psychiatric history, I began by discussing that the Panel have read the GP records and noted a previous psychiatric history.
We discussed the GP record from Heritage Medical Centre. She said she was not aware of this information being supplied to the PIC as part of the appeal. She said her main GP was Dr Mason and she saw another doctor there but cannot remember anything in detail. She was not aware of the entry from Dr Elisa Calderwood dated
15 October 2018 and therefore I read the entire entry to her. Ms Thorpe does not believe she attended at her father's request or that he's worried she's killing herself. She said she separated from her husband and it was amicable and there was no problem or stress relating to it. I asked her whether she lost 15kg because she was happier after her marital separation. She said she had no idea.I asked about the GP recorded alcohol history that she drinks a bottle of wine every night in the past 10 years, that she doesn't think it's a problem and enjoys it. She said she does not remember saying that but does not believe it is a correct history.
I asked her whether she has suffered anxiety since she was a child and used alcohol as self-medication. She said she doesn't remember.
She confirmed the other history in that entry is accurate except for the alcohol and past anxiety history.
Regarding legal issues, she said she has no legal matters.
· Present treatment:
Ms Thorpe has not taken psychotropic medications for a long time now as she had side effects with them. The last time Ms Thorpe consulted a psychologist was in June 2024, with Joanne Ratcliffe. She is not having any treatment now.
· Present symptoms:
In terms of recent psychological symptoms, Ms Thorpe said her anxiety and depressive symptoms have not changed since May 2024, and the main problem is her anxiety and panic attacks. She said her depression goes with it hand in hand. She said she does not do anything, because there are many triggers and it is easier to stay home and crowds, driving, and people would increase her anxiety.
She has been forgetful and said she goes into the kitchen and forget why she was there. She said she had a photographic memory in the past.
She described having poor sleep with middle insomnia, generally only sleeps 3-4 hours. She denied anger problems. She does not have suicidal ideation.
She said her weight has been the same in 2024, around 50s kg and she lost 30kg due to work stress and has not regained her weight, and she is 174cm. We discussed 15kg weight loss after her marriage ended as she felt happier and I noted her ambiguous response.
· Social activities/ADL
Ms Thorpe lives on her own on a 20-acre property and said she moved there 2 or 3 years ago. She has about 100 animals on the property, with dogs, chickens, quails, goats, donkeys and 2 miniature horses. She said they are too small to be ridden, unless with a buggy. She would ride horses on a nearby property that a friend owns. She rides a motorcycle on her property. Ms Thorpe said she breeds sheep and goats, for consumption and not as a business.
Ms Thorpe said she stays on the veranda, looks after her 100 animals, and she checks they have enough food, and if there are babies, she checks them and tags them.
She said she has a main friend who comes during the week and calls almost daily. She said she does not have many friends, and confirmed she has 2 girlfriends in Orange, 4 hours away and they visit her occasionally and they talk regularly on the phone.
She said she does not have contact with her siblings, she said because they all have their own lives and since she moved away to her property in 2-3 years ago, they have not had much contact since. Her mother calls sometimes. She has not seen her father for years, because she does not get along with her stepmother.
She has 2 children, 20 years old daughter and 8 years old son. She said her relationship with her daughter is poor and they do not talk now, as her daughter wanted her birth certificate (Ms Thorpe's certificate) for her daughter's passport, but she did not give it to her. She explained it is too far for her to drive there to give her the certificate and she worries about posting her birth certificate due to identity fraud, so she would not post it.
She said after her work injury, she could not look after her son and moved out on her own, and his father is looking after him.
She was married 7 years and the marital relationship ended a few years ago and then she had another partner, but that relationship ended because he is very social but she is no longer social. They separated at the end of 2021 or 2022 and they are still friends now.
She said she only drives 1-2 hours a day and struggles to drive to Orange, or Sussex Inlet, where her daughter is now. She said her anxiety prevents her from driving further.
She mows the lawn and does gardening, uses the tractor for planting the field. She
goes shopping and picks up mail from town, once a month. Her friend also goes for her.
She skips showers for a day sometimes. She has a stable weight and eats regularly overall, and does not need prompting with her self-care or personal hygiene. She cooks and prepares simple foods.
2. Findings on examination
Ms Thorpe was assessed by video. She was at home in an outdoor area during the assessment. She wore a collared shirt and was smoking during the assessment. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was moderately restricted in her affect range and reactivity. She spoke spontaneously. She was not thought disordered.
Summary
Ms Thorpe developed a psychological injury with anxiety and depressive symptoms as a result of her employment, consistent with a Persistent depressive disorder with anxiety, and the psychological injury has not resolved since the previous assessment by the Medical assessor.
There was a pre-existing condition, which was consistent with an Alcohol use disorder and an anxiety disorder (such as Generalized anxiety disorder), and she had consumed excessive an amount of alcohol, for a long time, which is associated with anxiety symptoms, and this led to concerns from her family and she was counselled by her GP. Because Ms Thorpe said she has no memory of the past psychiatric history, the Panel accepted the GP entry as accurate, as the other history in that entry was accurate, and the Panel accepted her GP took that history from her, and there is no reason to think the doctor confused her with another patient, or fabricated her past history related to her anxiety or alcohol intake.
She does not have an Alcohol use disorder now.
She has a pre-existing anxiety disorder, which contributes to her current psychiatric impairment, as anxiety continues to be a significant component of her psychological condition and impairment. Had she not had a pre-existing anxiety disorder, her current impairment would not be as great. The contribution from her pre-existing psychiatric condition to her current impairment is a minor one, as she was capable of working despite previous symptoms, and so the Panel applied a one-tenth deduction.
The Panel found her impairment generally consistent with the Medical assessor, except in self-care and personal hygiene, as she reported good self-care and personal hygiene now.
Table 11.8: PIRS Rating Form
| PIRS Category | Class | Reason for Decision |
| Self-care and personal hygiene | 1 | Ms Thorpe's self-care and personal hygiene is good now and there is no deficit or minor deficit, attributable to the normal variation in the general population. She generally eats regular meals and maintains a stable weight, and showers daily, occasionally not shower for one day. She attends to all self-care and personal hygiene without prompting, and can cook and shop on her own. |
| Social and recreational activities | 2 | She has occasional social recreational activities on her own on the farm and with her friend on a nearby farm. Overall, she has been fewer recreational activities since her injury and avoids large social gatherings due to her anxieties. |
| Travel | 2 | Ms Thorpe has anxiety and said she can only drive 1-2 hours a day and not long distances. |
| Social functioning | 3 | Ms Thorpe's relationship with her partner ended and they are still friends. She is anxious and socially avoidant, and ceased contact with most of her friends. She has maintained a few long-term friendships. The relationship with her children have declined and she said she cannot look after her son. |
| Concentration, persistence and pace | 3 | Ms Thorpe described having poor concentration and does not read anymore, and does not have any intellectually demanding tasks day-to-day. |
| Employability | 3 | She can manage lower stress employment at around 20 hours per week. She can no longer manage her pre-injury duties. She spends time more than 20 hours per week on farm related activities a week. |
| Score | Median Class | ||||||||
| 1 | 2 | 2 | 3 | 3 | 3 | =3 | |||
| Aggregate Score Impairment | Total | % | |||||||
| + | + | + | + | + | 14 | 13 | |||
Pre-existing injury
One-tenth
Final WPI
12%
The Panel agrees with the findings, reasons and assessments made by Medical Assessor Hong.
For these reasons, the Appeal Panel has determined that the MAC issued on
15 May 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: | W2592/24 |
Applicant: | Anna Thorpe |
Respondent: | Westpac Banking Corporation |
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 Yu-Tang Shen 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) |
| 1. Psychological | 19/11/2019 | 11, page 54 | 14, pg 361-365 | 13% | 1/10th | 12% |
| Total % WPI (the Combined Table values of all sub-totals) | 12% | |||||
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