Wright v State of New South Wales (Fire & Rescue NSW)
[2024] NSWPICMP 857
•12 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wright v State of New South Wales (Fire & Rescue NSW) [2024] NSWPICMP 857 |
| APPELLANT: | Grant Wright |
| RESPONDENT: | State of New South Wales (Fire & Rescue NSW) |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 12 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in 5 respects, namely the MA did not apply the psychiatric impairment rating scale (PIRS) properly, he made a deduction for pre-existing pathology for a disease injury when all pathology associated with that injury had to be assessed as a single injury, the MA made a deduction for pre-existing pathology which exceeded the current pathology which is nonsensical, the MA failed to give adequate reasons, and the MA erred in his assessments with respect to the PIRS categories of Travel and Concentration, persistence and pace; complex medical and legal issues; the appellant had been assessed for a prior injury with another employer and paid compensation; the appellant argued it was an aggravation of a disease; Medical Appeal Panel rejected the appellant’s submissions; State Government Insurance Commission v Oakley and Secretary, New South Wales Department of Education v Johnson considered; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 September 2024 Grant Wright (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 21 August 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 not undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal, for reasons we shall set out more fully below.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits as follows:
(a) the MA did not apply the Psychiatric Impairment Rating Scale (PIRS) properly;
(b) he made a deduction for pre-existing pathology for a disease injury, when all pathology associated with that injury had to be assessed as a single injury;
(c) the MA made a deduction for pre-existing pathology which exceeded the current pathology which is nonsensical;
(d) the MA failed to give adequate reasons, and
(e) the MA erred in his assessments with respect to the PIRS categories of Travel and Concentration, persistence and pace (cpp).
In reply, State of New South Wales (Fire & Rescue NSW) (the respondent) submits that no substantial errors were made except for some minor errors which are capable of correction since they do not alter the overall primary assessment.
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 MA for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a deemed date of injury of 13 December 2018.
The MA obtained the following history:
“Mr Wright was employed as a retained fire-fighter by Fire & Rescue NSW, commencing this work in 2008. He was also employed as a police officer during this time until resigning in May 2016.
In April 2018 Mr Wright transferred to Bowral station. Mr Wright became aware of difficulties in relationships between colleagues shortly after taking his position at Bowral. He had concerns about the performance and behaviour of a senior colleague.
On 13th December 2018 Mr Wright attended an urgent meeting with colleagues and was informed that the captain and deputy captain had been suspended from duty for reasons which were unclear, and an investigation was planned. Colleagues that Mr Wright had concerns about were promoted to senior positions in the interim. Mr Wright describes developing anxiety-based symptoms following this meeting and on 19th December he completed an injury notification form. Mr Wright met with his treating psychiatrist, Dr Taylor, on 20th December and a medical certificate was provided. The following day Mr Wright met with GP, Dr A Cao, and a Workcover certificate issued. At this time Mr Wright was feeling anxious, angry, frustrated and experiencing muscle tension and recurrent headaches. His sleep was disturbed. He recalls feeling that the circumstances with NSW Fire and Rescue brought back to mind some of the difficulties that he had experienced when with NSW Police Force.
Mr Wright continued under the care of treating psychiatrist Dr Taylor until 2020 and prescribed the mood stabilising medication lamotrigine. He did not return to work with Fire & Rescue NSW.”
The MA then set out details of his present treatment and said:
“Mr Wright had no specific treatment for a mental health problem from February 2024 until a new GP commenced him on the antidepressant medication sertraline three weeks ago. He is currently taking 150mg daily of this medication. He was referred to a psychologist and they have met on one occasion so far.”
Present symptoms were noted as follows:
“Mr Wright describes low mood most of the time though ‘it can go up and down like a yoyo’ depending on what is happening each day. He described it as often ‘zero out of ten’. His mood tends to be worse in the morning though is complicated by abstinence effects from alcohol. He has low energy and motivation and has to push himself to attend work. He has some passive suicidal ideas though has never developed active intention to end his life.
Mr Wright can get some enjoyment from time with family and close friends or with his horse which he visits daily. He likes to work alone and feels that he has withdrawn socially in recent months. His appetite for food is changeable though his weight stable. He feels that his concentration is reduced though notes that a high degree of concentration is necessary for his work delivering and unloading landscape supplies to various locations. He reads the newspaper online and occasionally novels or non-fiction books. Mr Wright uses alcohol as a hypnotic and has frequent middle insomnia with occasional nightmares.
Mr Wright describes periods of increased anxiety during which he will notice his heart racing, will have excessive anxious thoughts about a range of matters, fear for the future, headaches and nervous tension. These episodes can be precipitated by any stressor, and sometimes occur spontaneously.
Mr Wright drinks alcohol every day. He usually goes to a local pub when he has finished work and fed his horse. He said he will ‘have a couple’ in the pub and then often a couple more drinks at home in the evening. He may have a binge of alcohol on the weekend when he does not work. Mr Wright is concerned about his use of alcohol as he is aware that it adversely affects his mood, increases anxiety, and makes how he feels in the morning worse. He believes that it helps his sleep. He has discussed his use of alcohol with his new psychologist and hopes to have some assistance in reducing this.”
When asked to provide “Details of any previous or subsequent accidents, injuries or conditions” the MA said:
“Mr Wright has had contact with health professionals with regards to his mental health since 2011. Mr Wright was a police officer employed by NSW Police Force at that time and a Workcover claim was made in 2012 indicating a psychological injury in the workplace. He was diagnosed as having developed a major depressive disorder by psychiatrist Dr White and received treatment for this. Mr Wright continued with treatment for a mood disorder which was viewed by psychiatrist Dr Taylor as a bipolar disorder type II rather than a major depressive disorder. He was treated with the mood stabilising medication lamotrigine as well as antidepressant medication. Mr Wright stopped meeting with Dr Taylor in 2020 or 2021 when Dr Taylor retired.
Mr Wright injured a rib at work in May 2024. He has had some physiotherapy for this and believes that he is making a good recovery.”
The MA added:
“Mr Wright worked initially as a printer. He joined the Royal Australian Navy, though left after a short period. He completed a degree in theology and worked as a minister. Between 2000 and 2016 Mr Wright was employed as a police officer by NSW Police Force. He worked mostly in rural areas. He worked for Fire & Rescue NSW from 2008 until 2019.
Mr Wright has been working as a truck driver for a wholesale landscape supplies company since September 2023. He works full-time with an occasional day off for health reasons.”
He then turned to consider the impact of Mr Wright’s injury on his social activities and activities of daily living (ADL’s) and said:
“Mr Wright has lived alone since moving out of accommodation he shared with his partner and her two teenage daughters five months ago. He visits his partner most weekends. They have been in a relationship for the last 5 years.
Mr Wright wakes around 0600 with an alarm. He will have a cup of tea and may have some toast for breakfast, though sometimes eats nothing. He has a shower and dresses for work. He packs a lunchbox and goes to work. He may buy a sandwich or fruit to eat during the day at a local shop. From Monday to Friday, he delivers landscape supplies with a large truck. He describes this as requiring a high level of concentration to avoid possible hazards and ensure deliveries are positioned correctly. Mr Wright finishes work at 1500. He then will visit his elderly horse to feed her and then go to a local pub. He usually will have ‘a couple of drinks’ and may place small bets on the dogs or horses. After returning home Mr Wright may cook himself a meal, though sometimes will not eat, or may have something to eat in the pub. He has a subscription to The Australian newspaper which he may read, listen to music or go on social media. At the weekend Mr Wright may meet with his partner and occasionally go out for something to eat or drink together. He describes generally ‘vegging’ over the weekend though may do shopping for groceries and some tasks around the house or garden.
Mr Wright’s children are both students in Canberra. He is in daily contact with his son and with his daughter every few days. He travels to Canberra for short visits a few times during the year. Mr Wright’s parents and sister live in Milperra and they meet once or twice each year.”
Findings on mental state examination were reported as follows:
“Mr Wright joined the interview from his home. He explained that he had taken the day off work to attend the appointment He was casually dressed in a white t-shirt and was unshaven. He managed the interview well and communicated effectively. Mr Wright acknowledged feeling anxious about the interview and he appeared anxious objectively with facial muscle tension and rubbing of his forehead at times. He appeared fatigued and described this subjectively, particularly towards the end of the one-hour interview. Mr Wright described his mood as depressed and this was the objective assessment. He denied every experiencing active suicidal thoughts though had some passive ideas such as that he would prefer to not wake up. His thought form was normal. There were no abnormal beliefs in the form of delusions or abnormal perceptions. Mr Wright was of the opinion that he had suffered ‘a breakdown’ in 2011 and suffered mental health problems since that time. Mr Wright was fully alert and orientated and attended adequately for the purposes of the interview. I did not carry out a formal cognitive assessment.”
In summarising the injuries and diagnoses, the MA said:
“Mr Wright is a 52-year-old father of two young adult children who currently lives alone. He works full-time delivering landscape supplies. He has had problems with his mental health since 2011 with mood and anxiety symptoms which cause impairment in function. The degree of symptoms has varied over this period. Mr Wright is best categorically diagnosed as having a persistent depressive disorder (dysthymia) with anxious distress which is comorbid with an alcohol use disorder.”
The MA assessed 13% WPI from which he deducted 15% for the pre-existing condition, leaving a total of 0% WPI.
He then turned to consider the other medical opinions and material before him and said:
“Treating Psychiatrist Letter, Dr B White, 29 July 2012.
Dr White makes a diagnosis of major depressive disorder brought on and aggravated by stresses at work as a police officer.
Treating Psychiatrist Letter, Dr P Jones, 23 February 2016.
Dr Jones notes the onset of depressed mood in 2011 and ongoing mood-related symptoms. Dr Jones makes a diagnosis of major depressive disorder and advises on treatment.
Medicolegal Report, Dr R Hampshire, 26 April 2016.
Dr Hampshire makes a diagnosis of adjustment disorder with depressed mood, recurrent panic attacks, and increased use of alcohol. At this time, Mr Wright is suspended from his role as a police officer. Dr Hampshire carries out a whole person impairment assessment using the psychiatric impairment rating scale (PIRS) and calculates a score of 17% which was attributed to psychological injury sustained when employed as a police officer.
Medicolegal Report, Dr A Dinnen, 3 August 2017.
Dr Dinnen describes symptoms of anxiety and depression from 2011 and that these impair Mr Wright’s ability to work as a police officer. These symptoms were a reason for Mr Wright ceasing work and resigning from the NSW Police Force in May 2016.
Treating Psychiatrist Letter, Dr J Taylor, 27 November 2017.
Dr Taylor gathers a history from Mr Wright of mood problems since 2011. There are periods of depressed mood as well as hypomanic episodes with typical symptoms. A diagnosis of bipolar disorder type II is made. Mr Wright is advised to start the mood stabilising medication lamotrigine.
Medicolegal Report, Assoc/Prof M Robertson, 20 April 2018.
This assessment relates to a psychological injury deemed to have occurred on 31 May 2012 when Mr Wright was employed by NSW Police Force. Assoc/Prof Robertson describes problems between Mr Wright and senior colleagues when a police officer, and three Workcover psychological injury claims in 2010, 2011 and 2012 arising. Mr Wright is described as having a number of mood and anxiety-related symptoms at the time he left the NSW Police in May 2016 and was prescribed several psychotropic medications for these. Assoc/Prof Robertson considers other medical reports, including the possibility of bipolar disorder, and makes a diagnosis of persistent depressive disorder in the course of bipolar disorder type II. Assoc/Prof Robertson believes that Mr Wright has developed a work-related aggravation of his pre-existing mood disorder.
Assoc/Prof Robertson carries out a whole person impairment assessment using the psychiatric impairment rating scale (PIRS) and calculates a score of 17%. From this, a 1/10 deduction is made for the pre-existing bipolar disorder giving a final score of 15%.
I note Assoc/Prof Robertson’s consideration of the bipolar disorder type II versus persistent depressive disorder. In my opinion there is not adequate evidence to make a diagnosis of bipolar disorder and prefer the diagnosis of persistent depressive disorder. I note that the assessment of impairment is similar to that of Dr Hampshire in April 2016, Dr George later in 2018 (below) and assessment now. All assessments have been with the psychiatric impairment rating scale (PIRS).
Medicolegal Report, Dr G George, 28 August 2018.
Dr George makes a diagnosis of bipolar disorder type II which he believes has been exacerbated by the workplace. He carries out a whole person impairment assessment using the psychiatric impairment rating scale (PIRS) and calculates a score of 15%. There is no deduction for a pre-existing condition.
As above, in my opinion there is not adequate evidence to make a diagnosis of bipolar disorder and I prefer the diagnosis of persistent depressive disorder with co-morbid alcohol use disorder. I note similarity of impairment assessment between this assessment and my own and that of Assoc/Prof Robertson. This assessment by Dr George was 4 months before the currently assessed psychological injury and provides evidence of pre-existing impairment, in combination with the assessment by Assoc/Prof Robertson carried out in April 2018.
Medicolegal Report, Dr M Atherton, 10 January 2019.
Dr Atherton summarise background history, current health problems and mental state examination. Dr Atherton believes the most appropriate diagnosis is of an adjustment disorder with depressed mood and anxiety comorbid, major depressive disorder of moderate severity, with a moderate alcohol use disorder. Dr Atherton does not believe the diagnosis of bipolar disorder is correct.
Medicolegal Report, Dr J Lam-Po-Tang, 9th March 2019.
Dr Lam-Po-Tang’s opinion is that Mr Wright’s mood disorder is best categorised as major depressive disorder rather than bipolar disorder. I agree.
Medicolegal Report, Dr J Taylor, 26 May 2020.
Dr Taylor confirms his diagnosis of bipolar disorder type II, and that this has responded to treatment. He believes Mr Wright’s mental health is stable.
Medicolegal Report, Dr B Teoh, 27 July 2020.
This assessment relates to the psychological injury deemed to have occurred on 13 December 2018. Dr Teoh describes relevant background the workplace situation and development of symptoms. He gives a diagnosis of major depressive disorder and believes that Mr Wright has reached maximal medical improvement. Dr Teoh carries out a whole person impairment assessment using the psychiatric impairment rating scale (PIRS) and calculates a score of 17% with no adjustment for a pre-existing condition.
I disagree with Dr Teoh with respect to the presence of a pre-existing condition. There is clear evidence of a pre-existing condition before the workplace injury deemed to have occurred on 13th December 2018.
General Practitioner Notes, Dr A Cao, Dr Sparkes.
On 21 December 2018, Dr Cao notes the work situation and that Mr Wright has developed anxiety symptoms. The notes by Dr Sparkes earlier in 2018 describe financial, family and workplace stressors. Dr Sparkes entry of 13 November 2017 gives background information including a possible history supportive of bipolar disorder.
Medicolegal Report, Dr J Lam-Po-Tang 2 February 2024.
At this assessment Dr Lam-Po-Tang gives a diagnosis of persistent depressive disorder which he believes is an exacerbation of the pre-existing major depressive disorder. The exacerbation has been caused by the workplace incident deemed to have occurred on 13th December 2018. Dr Lam-Po-Tang believes that Mr Wright has not reached maximal medical improvement as his condition is not well stabilised with a marked deterioration in late 2023.
In my opinion, Mr Wright’s has reached maximal medical improvement. Though there is some variation in symptoms over the long term, assessment of Mr Wright’s level of impairment has been similar over the last 8 years. In my opinion Mr Wright’s condition is well stabilised and is unlikely to change substantially in the next year with or without treatment.”
The MA added:
“The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Mr Wright has had problems with his mood since 2011. He has received treatment for this since that time and been assessed by several psychiatrists. Mr Wright’s psychiatric condition has either been diagnosed as a bipolar disorder type II or major depressive disorder – now persistent depressive disorder due to the length of time Mr Wright has suffered from the condition. Impairment assessments carried out in April and August 2018 by Assoc/Prof M Robertson and Dr G George respectively detail Mr Wright’s health and impairment before the workplace injury deemed to have occurred on 13th December 2018. At both assessments Mr Wright had ongoing mood and anxiety symptoms which were causing impairment. The PIRS scores of Assoc/Prof Robertson and Dr G George are similar. Attached to this report is a PIRS worksheet based on these assessments and other available information. This leads to a pre-existing impairment score of 15%. Assessment of Mr Wright using the PIRS score now leads to a whole person impairment of 13%.”
The appellant’s submissions
These are as follows:
(a) a legal error will occur when a MA applies the PIRS in departure from the evidence before the MA. (Tagg v Racing NSW [2023] NSW SC 1547.)
(b) a Class 2 in the category of Travel is appropriate as whilst the appellant worked as a truck driver, this is an essential element of that work. Travel is otherwise very limited. Indeed, he has not travelled outside his region this year;
(c) a Class 3 in the category of cpp is appropriate. As the MA noted, he had only occasionally read books for pleasure;
(d) being able to read material on Twitter as an example suggests limited duration concentration given that tweets are generally small pithy statements, not lengthy tomes;
(e) whilst he can drive a truck, the concentration required for that is fatiguing, and it must be noted that he became a truck driver after working in a much more stressful context;
(f) the mood problems referred to by the MA go back to 2011 when the appellant was employed by the NSW police;
(g) s 323 does not apply to disease injuries.
(h) the MA determined that WPI pre-injury was 15% and is now 13%. That is nonsensical. Even treating the present injury as an aggravation only, an aggravation by definition must make a condition worse, not better;
(i) if the MA is correct in saying that the deduction for pre-existing pathology is greater than the totality of pathology, then that means that the injury sustained was curative, not injurious, and
(j) the MA failed to give adequate reasons in making an s 323 deduction.
The respondent’s submissions
The respondent’s submissions are extensive, but given the nature of the dispute, it is appropriate to set them out in some detail.
(a) the MA correctly applied Class 1 with respect to travel.
(b) Table 11.3 of the Guidelines provides that with respect to travel, Class 1 applies where there is “No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
(c) the MA recorded that the appellant worked fulltime driving trucks, delivering landscaping supplies at various venues. He noted that the appellant was able to drive independently including to new environments. He also recorded that the appellant travelled to Canberra to visit his children a few times a year and visited his parents and sister in Milperra once or twice a year. This is consistent with Class 1.
(d) As recorded by the MA, the appellant’s travel is not limited to familiar areas. This is not disputed by the appellant.
(e) The MA correctly applied Class 2 with respect to cpp.
(f) Table 11.5 of the Guidelines provides that Class 2 applies where there is “Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
(g) The MA recorded that the appellant described being able to maintain concentration in his work which involved driving a heavy vehicle and offloading landscape supplies. He noted that the appellant was able to concentrate adequately to drive up to two hours to Canberra. The appellant also read the newspaper most days as he had a subscription to “the Australian”, and occasionally read books for pleasure. The MA recorded that the appellant typically read for 30 minutes. This is consistent with Class 2.
(h) Class 3 applies where there is “Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.” Based on the history taken by the MA, the appellant reads books in addition to newspaper articles and is able to drive a heavy vehicle.
(i) The Parties do not have the jurisdiction to direct how an MA should conduct an assessment of permanent impairment. Pursuant to Painter v Bi-Lo Pty Ltd [2009] NSW WCC MA351, “The assessment of the appellant by the AMS is a matter for his expertise. His conclusions, his diagnoses, the accuracy of measurements taken, and the interpretation of findings on examination, are all matters within the domain of the AMS”.
(j) The MA correctly made a deduction for pre-existing pathology pursuant to s 323. The injury/ies sustained by the appellant in the course of his employment with NSW police is separate and distinct to the injury sustained in course of his employment with Fire and Rescue NSW deemed to have occurred on 13 December 2018.
(k) The history recorded by the MA was that the appellant commenced employment with Fire and Rescue NSW in 2008 and was also employed as a police officer during this time until resigning in May 2016. He reported that the appellant had contact with health professionals with regards to his mental health since 2011 and made a claim for workers compensation in relation to psychological injury which he alleged he sustained in the course of his employment with the NSW Police Force. In relation to his employment with Fire and Rescue NSW, the MA indicated that the appellant did not start having difficulties until shortly after transferring to Bowral Fire Station in April 2018. The appellant has not disputed the history recorded.
(l) The MA recorded that “He has had problems with his mental health since 2011 with mood and anxiety symptoms which cause impairment in function [sic]. The degree of symptoms has varied over this period.”
(m) The respondent notes the decisions of State Government InsuranceCommission v Oakley (1990) 10 MVR 570 (Oakley) and Secretary, NewSouth Wales Department of Education v Johnson [2019] NSWCA 321 (Johnson) in which three categories of injury were identified where an earlier injury is followed by a later injury.
(n) In Johnson Emmett JA stated (at [70]):
“The question for determination by the Appeal Panel was the degree of permanent impairment now suffered by the Worker as a result of the First Injury. That question was one of fact and the Appeal Panel’s reasoning was consistent with conventional principles of causation. There are three possible categories where an earlier injury is followed by a later injury, as follows:
• Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
• Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
• Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
(o) In that matter, the worker had sustained two psychological injuries with two different employers. Emmett JA noted that there had been:
• no finding that the second injury resulted in greater permanent impairment than would have been sustained by the Worker if she had not sustained the first injury.
• No finding that the current level of permanent impairment suffered by the Worker was the result of aggravation of the first injury by the second injury.
• No finding that the incident while employed by the second employer occurred only because of the first injury.
(p) Rather, Emmett JA noted that the findings demonstrated that the second injury resulted from the subsequent incident that occurred while the worker was employed by the second employer and the second injury would have occurred even if the first injury had not occurred, such that the second injury and first injury were causally independent of each other. In those circumstances, Emmett JA held that it was necessary for the Appeal Panel to assess the extent of continuing permanent impairment of the Worker that was attributable to the first injury.
(q) The decision in Johnson was upheld in Slade v Insurance Australia Ltd(T/As NRMA Insurance) [2020] NSWSC 1031. It was found (at [113]) that:
“A necessary part of the assessor’s task was to consider, in the light of the medical evidence, into which of the three Oakley categories Ms Slade’s case fell and then to determine the extent of the relevant causal connection between the WPI at the time of the assessment and the 2015 motor accident.”
(r) The principles set out in Johnson, have been correctly applied by the MA. Having regard to the medical evidence, the MA concluded that the appellant had pre-existing problems with his mood since 2011. He noted that this earlier psychiatric condition had either been diagnosed as Bipolar Disorder Type II or Major Depressive Disorder. At the time of his assessment with the appellant, he diagnosed Persistent Depressive Disorder with Anxious Distress and Alcohol Use Disorder. The MA then determined the extent of the relevant causal connection between the WPI at the time of the assessment and the pre-existing psychological condition by providing two separate PIRS assessments. He deducted the assessment for the early injury from his assessment of the subject injury.
(s) The MA did not err in making a deduction for pre-existing impairment.
(t) The MA has correctly calculated the deduction for pre-existing pathology.
(u) Paragraph 11.10 of the Guidelines provides as follows:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
(v) In accordance with the above, the MA assessed the appellant’s pre-existing impairment based on a PIRS table. He specifically considered the impairment assessments of Associate Professor M Robertson and Dr G George which were carried out in April 2018 and August 2018, respectively. He noted that these assessments detailed the appellant’s health and impairment before the workplace injury deemed to have occurred on 13 December 2018.
(w) The Guidelines do not specify that the pre-existing impairment must be less than the current impairment.
(x) The MA has provided adequate reasoning as to the basis for his deduction of WPI.
The respondent added:
“There are two minor errors within the MAC that should be corrected for completeness.
On page 11 of the MAC the median score is recorded as 2. However, the respondent considers the median score is 3, rounded up from 2.5. The respondent notes this does not alter the overall assessment of WPI.
At page 8 of the MAC the MA refers to a 15% deduction. The Respondent considers the deduction should be expressed as a 100% deduction, in accordance with the MA’s assessment of the pre-existing impairment.”
Discussion
To begin with, we note and agree with the respondent’s submission outlining the minor errors.
We also agree with the thrust of the respondent’s thorough and comprehensive submissions for reasons set out below.
The appellant’s submissions are misguided.
The terms of the referral were for assessment of the appellant’s injury with the respondent on a deemed date of injury of 13 December 2018, and what, if any proportion is deductible due to the contribution to that impairment arising from a pre-existing condition
As the respondent pointed out, paragraph 11.10 of the Guidelines identifies how to undertake that task. It states:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level… “
Paragraph 1.27 of the Guidelines states: “The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury.”
That paragraph directs the MA to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury. In this instance, the referral records the date of injury as 13 December 2018, although in the referral to the MA this is a deemed date. All the evidence before the MA, including the appellant’s statements indicate that this injury arose due to events that occurred in 2018 after transfer to Bowral in April 2018. In all the clinical evidence and numerous reports there is no mention of any symptoms associated with employment by NSW Fire and Rescue prior to then. The MA had evidence from contemporaneous records of the degree of impairment in the month of transfer
It must be noted that “Pre-existing impairment is calculated using the same method for calculating current impairment level.”
The MA assessed the current whole person impairment as15% WPI.
He added:
“Impairment assessments carried out in April and August 2018 by Assoc/Prof M Robertson and Dr G George respectively detail Mr Wright’s health and impairment before the workplace injury deemed to have occurred on 13th December 2018. At both assessments Mr Wright had ongoing mood and anxiety symptoms which were causing impairment (our emphasis). The PIRS scores of Assoc/Prof Robertson and
Dr G George are similar. Attached to this report is a PIRS worksheet based on these assessments and other available information. This leads to a pre-existing impairment score of 15%. Assessment of Mr Wright using the PIRS score now leads to a whole person impairment of 13%.”In other words, Mr Wright’s degree of impairment at the time of assessment by the MA was very similar to that at the time of transferring to Bowral, where the injury occurred. He continues to have the same chronic depressive condition, termed a Persistent Depressive Disorder by the MA and other clinicians over the years.
However all the evidence from the numerous assessments over several years prior to the date of injury indicates that although the severity of this chronic depressive condition and associated impairment have fluctuated a little over the years such that it at times may present as recurrent Major Depressive Episodes, he still has the same condition and impairment, that have never remitted over the past decade or so and remain continuously symptomatic.
In short, Mr Wright has the same condition and the same impairment as previously. His pre-exiting condition may have been temporarily more symptomatic and possibly impairing for a time following the subsequent subject injury deemed to have occurred in December 2018, but continued to be treated and as of the time of assessment by the MA there was no substantive change in his overall impairment.
The Appeal Panel has considered the respondent’s reference to the case of Johnson.
As pointed out:
“Emmett JA noted that the findings demonstrated that the second injury resulted from the subsequent incident that occurred while the Worker was employed by the second employer and the second injury would have occurred even if the first injury had not occurred, such that the second injury and first injury were causally independent of each other (our emphasis). In those circumstances, Emmett JA held that it was necessary for the Appeal Panel to assess the extent of continuing permanent impairment of the Worker that was attributable to the first injury.”
The appellant’s submissions in Ground 2 focuses on the concept of a disease injury, or the aggravation thereof, in terms of causation. The MA diagnoses a current persistent depressive disorder and does not dispute that the injury occurred or make any assertions about its causation.
As the appellant notes, the injury is a “continuation” or “aggravation” of a “disease process”, one that for many years had such severe and impairing symptoms that it already constituted a repeatedly diagnosed pre-existing condition.
The Panel considered whether Johnson and the Oakley principles were potentially relevant, that is, whether his pre-existing psychiatric injury and the subject injury, are the same injury or two separate injuries, and whether the chain of causation has been severed. This is ultimately a legal determination and has not been referred to the MA. The Appeal Panel makes no finding in this regard and neither does the MA address causation
The Appeal Panel assessed the contribution from the appellant’s pre-existing psychiatric disorder to the current impairment as 100% deduction, as he has the same overall impairment after his subject injury. Even though he has developed a psychological injury as a result of the subject employment, there is no evidence of increased ratings in any of the current PIRS categories as a result of his psychological injury from the subject employment.
To put it another way, all of his current psychiatric impairment is consistent with his pre-existing psychological injury impairment as documented in the previous independent medical examiner (IME) reports. This is consistent with Cole v Wenaline Pty Ltd (2010) NSWSC 78, Ryder v Sundance Bakehouse [2015] NSWSC 526 and other authorities dealing with the correct approach to s323.
The MA assessed 0% impairment in respect of the 2018 injury on the basis that the present impairment assessment was less than his previous assessment.
Finally, as regards the MA’s assessments in respect of the categories of Travel and cpp, we see no errors for the following reasons.
There is no statement from the appellant regarding his function in these areas since 2018.
As regards Travel, Class 1 applies where there is “No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
There is no suggestion that Mr Wright requires supervision or a support person.
As the MA noted:
“Mr Wright works full-time driving a truck as he delivers landscaping supplies at various venues in the area. He can drive independently including new environments with no supervision. He has not travelled outside of his region this year.”
Just because he has not travelled “outside of his region this year” doesn’t mean this is due to an injury related impairment, and he has done so since the 2018 injury. There is no evidence he has more than a minor deficit in impairment in travel as a result of his psychological injury. The Appeal Panel can find no error in the MA’s rating.
As regards Concentration, persistence and pace, the appellant submitted that a Class 3 rating was appropriate.
The descriptor for a Class 3 reads:
“Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In addition, the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria, must be considered.
Again, there is no suggestion that Mr Wright is unable to follow complex instructions or follow operating manuals or plans.
As the MA noted:
“Mr Wright describes being able to maintain concentration in his work which involves driving a heavy vehicle and offloading landscape supplies at different venues. He can become fatigued at the end of the day. He is able to concentrate adequately to drive two hours to visit his children in Canberra. He reads a newspaper most days as he has a subscription to ‘The Australian’, and occasionally reads books for pleasure. He will typically read for approximately 30 minutes. He can do tasks online and spend time reading material on Facebook or Twitter.”
It must also be remembered that the task of an MA as set out in Chapter 1.6 of the Guidelines is to make a clinical assessment of the claimant “as they present on the day of assessment…”
Given the history obtained by the MA at the time of his assessment, we cannot see that a Class 3 rating is appropriate, particularly given the nature of Mr Wright’s current work and the long distance driving he does on occasions. He can engage in intellectually demanding tasks, and read a book for approximately 30 minutes and there is no evidence he is unable to read more than newspaper, in terms of complexity of reading material, therefore the Appeal Panel confirmed a rating of 2 is correct.
In total the current impairment associated with the injury has been correctly ascertained by the MA.
It is entirely possible to have an injury which temporarily leads to increased symptoms and/or impairment, which may then revert over time to the impairment that predated the injury arising from a pre-existing condition. This may have occurred, but the Appeal Panel does not want to substitute its views for that of the MA who did not assert this.
In this case he has identified the symptomatic pre-existing condition, and then used the methods in the Guidelines (Paragraph 11.10) to calculate the pre-existing impairment, subtract this pre-existing WPI from the current WPI to determine the percentage of permanent impairment directly attributable to the subject work-related injury, and clearly explained his reasoning and the process followed (Ground 4).
It is not illogical that in 2024, six years after a pre-existing impairment was contemporaneously ascertained, and five years after an injury, that, with treatment and the passage of time, the current impairment may be less than that calculated in 2018.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 August 2024 should be confirmed.
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