Zaia v NSW Health (Western Sydney LHD)
[2024] NSWPICMP 76
•16 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zaia v NSW Health (Western Sydney LHD) [2024] NSWPICMP 76 |
| APPELLANT: | David Zaia |
| RESPONDENT: | State of New South Wales (South Western Sydney Local Health District) |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 16 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether psychiatric condition appellant suffered in 2013 was a pre-existing condition or part of the injury that was referred to the Medical Assessor (MA) to assess; whether MA erred by making a deduction under section 323(1); whether MA applied incorrect criteria with respect to his assessment of appellant’s impairment in social functioning; Appeal Panel held that MA applied correct criteria when assessing appellant’s impairment in social functioning but erred by making a deduction under section 323(1); Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 October 2023 David Zaia, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 (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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with the State of New South Wales, the respondent, working in administration in the Outpatient’s Department of the South Western Sydney Local Health District. He was subsequently promoted to the position of cashier.
The appellant suffered a psychological injury in his employment with the respondent. On 26 August 2022 his solicitor wrote to the respondent’s insurer advising it that the appellant claimed, firstly, compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% whole person impairment (WPI) that the appellant said had resulted from his injury and secondly, weekly payments of compensation from 8 February 2021under s 37 of the 1987 Act for. The appellant’s solicitors advised that the appellant relied on a medico-legal report of Dr Ben Teoh dated 5 August 2022, which the appellant’s solicitors attached to its correspondence to the insurer. In his report Dr Teoh, whom the Appeal Panel notes is a consultant psychiatrist, noted that he had examined the appellant on 29 July 2022 and advised he diagnosed the appellant had Chronic Adjustment Disorder with Mixed Anxious and Depressive Mood. Dr Teoh further advised he assessed the appellant had 19% WPI from his injury.
On 9 December 2022 the respondent’s insurer provided written notice to the appellant under s 78 of the 1998 Act that it denied liability for the claims of compensation he had made. With respect to his claim for compensation for permanent impairment from his injury it advised him that it relied upon report of psychiatrist Dr Nabil Malik dated 19 November 2022, wherein Dr Malik advised that he had examined the appellant on 27 October 2022 and had assessed his permanent impairment from his injury was 7% WPI.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claims for compensation. In the Application to Resolve a Dispute that the appellant filed to initiate those proceedings he particularised the injury he suffered in the following terms:
“Psychological
The Applicant worker sustained a psychological injury during the course of his employment working with Western Sydney Local Health District, where he was positioned at Westmead Public Hospital. He commenced working with the employer around 2006. During this time his role included administration duties, working in the Women’s Health Clinic and also working as a cashier.
During his employment (sic: with) the respondent employer, the Applicant endured derogatory and racist remarks by his supervisor and another colleague.
In February 2019, the Applicant sustained an injury caused by an accident unrelated to the work injury, which required surgery. The Applicant eventually returned to work with restrictions following surgery. Due to his inability to fulfil his normal role, the bullying and harassment intensified.”
The matter was referred to a Commission Member, namely Ms Dianna Benk, who held a conference with the parties on 13 July 2023. On that occasion the appellant discontinued his claim for weekly payments of compensation. With consent of the parties, Member Benk remitted the matter to the President of the Commission so that it could be referred to a Medical Assessor to assess the degree of the appellant’s permanent impairment from the psychological injury he suffered. A delegate of the President duly issued a referral to the Medical Assessor and, in response to that, the Medical Assessor examined the appellant on 14 September 2023 and, as noted earlier issued a MAC on 29 September 2023. In that he certified he assessed the degree of the appellant's permanent impairment from his injury was 12% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the issues raised in the appeal relate to the Medical Assessor’s rating of the appellant’s impairment in the psychiatric impairment rating scale (PIRS) for social functioning and the deduction the Medical Assessor made under s 323(1) of the 1998 Act for the proportion of the appellant’s permanent impairment that the Medical Assessor considered was due to a pre-existing condition. These issues can be dealt with by the Appeal Panel based on the material before the Appeal Panel. There is simply no need for the Appeal Panel to re-examine the appellant as no further useful clinical data relating to the issues raised in the appeal would be obtained by doing so.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor made an error by making a deduction under s 323 of 10% of the permanent impairment he assessed the appellant had for a proportion of the appellant’s impairment that the Medical Assessor concluded was due to a pre-existing condition. The appellant noted that pre-existing condition was a condition that he had experienced in mid 2013. The appellant further noted that the Medical Assessor relied upon entries that had been made in the clinical records that were before the Medical Assessor to conclude that he had earlier suffered a psychiatric condition. The appellant submitted that the proceedings before the Commission relate to a psychological injury that was caused as a result of bullying and harassment in his work place over a period of time with the date of the injury being deemed to have occurred on 28 June 2020. The appellant submitted that the onset of his psychiatric injury in 2013 is not a previous injury or pre-existing condition but “one and the same injury that forms parts of his claim” that is subject of proceedings in the Commission, and consequently the Medical Assessor ought not have engaged s 323 (1) of the 1998 Act.
The appellant also submitted that the Medical Assessor applied incorrect criteria to assess his impairment in the PIRS for social functioning. The appellant noted Dr Teoh rated his impairment as class 3 and explained his rating on the basis that “he has a strained relationship due to irritability and lacking communication”. The appellant noted that his wife had given birth to their child on 25 May 2023, which was subsequent to the date of Dr Teoh’s report. The appellant said that he “plays a very minor to non-existent role in caring for the child”. The appellant said that “the main and sole carer of the child is the mother”. The appellant submitted that “his interaction with the child plays a major determining factor in his social functioning”. The appellant submitted that his “inability to care for his child should prompt a classification under class 3 at the very least”. The appellant submitted that the Medical Assessor only briefly referred to his relationship and care of his child.
In reply, the respondent submitted that the appellant did not disclose a pre-existing condition to various doctors who had examined him and whose reports were in the evidence before the Medical Assessor. The respondent noted that the Medical Assessor concluded the appellant had experienced a psychosis in 2013, which was a different diagnosis from the diagnosis he made of the appellant’s injury, which was Adjustment Disorder with Mixed Anxiety and Depressive Mood. The respondent submitted that in that circumstance the Medical Assessor appropriately made a deduction for a pre-existing condition.
With respect to the Medical Assessor’s assessment of the appellant’s impairment in the PIRS category of social functioning, the respondent highlighted that Dr Malik had rated the appellant’s impairment as class 2 on the basis that there was “strain in existing relationship… but (the claimant’s) wife has been supportive, but they are still struggling”. The respondent noted that the Medical Assessor explained that he had rated the appellant’s impairment in the PIRS category of social functioning as class 2 on the basis that the appellant is suspicious of his wife and feels judged by her and that his wife is frustrated by his reluctance to socialise, but otherwise his relationship with her is in fact supportive. Further, the respondent highlighted the Medical Assessor explained that the appellant has regular social contact with his extended family.
The respondent submitted the Medical Assessor provided detailed reasons for his rating of the appellant’s impairment and submitted the Medical Assessor was entitled to assess the appellant’s impairment in this category as class 2. The respondent noted that a mere difference of opinion between medical examiners is not sufficient to establish the application of incorrect criteria.
The respondent submitted the appellant did not provide any objective or new evidence with respect to the appellant’s relationship with his child that would support a change in the Medical Assessor’s rating of the appellant’s impairment in the category of social functioning.
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.
Section 323 deduction
The Medical Assessor obtained the following history regarding the events that occurred in 2013 that then triggered a psychiatric illness for the appellant:
“Mr Zaia said that in 2013 he had problems in Revenue where he felt he was being persecuted. He gave a confusing account of events at work when he was moved from Revenue to cashiers. He said ‘The emails were happening from back then. They were pushing me, trying to make me make mistakes. Nitpicking my work and I had to double check everything. They were putting me under pressure. The way I was spoken to’. I noted that his general practitioner had noted symptoms of psychosis, including persecutory thoughts, and prescribed him antipsychotic medication. He was unable to elaborate on this further. He claims to have stopped taking antipsychotic medication when he moved to Cumberland from Westmead some months later. He explained it was a large department with different sections, and he was moved from Revenue to the cashier's department. The offending managers were there daily, and he had many dealings with the cashier's manager. After he was moved to Cumberland Hospital away from Westmead, everything improved. I note this coincided with the period he was on antipsychotic medication. There was a restructuring around 2016/2017 when they were returned to Westmead and back with the same staff from Revenue in 2013. He said before that they were in Cumberland Hospital.
He denied treatment for mental health problems before 2013. There was no mental health treatment between 2013 and 2020. He denied any psychiatric hospitalisations, deliberate self-harm or suicide attempts.”
The Medical Assessor noted that there was very little collateral information or detail available regarding the events that occurred in 2013. The Medical Assessor noted that the appellant was a vague historian with respect to this incident. The Medical Assessor noted that it appeared that what occurred in 2013 resolved with treatment.
The documentary evidence relating to what occurred in 2013 is contained within the clinical records of the appellant’s general practitioner. The Medical Assessor detailed the entries within those records relating to this issue within Part 10c of the MAC. In the Appeal Panel’s view those entries reveal that due to work stressors to which the appellant was subjected around 25 August 2013 he suffered a mood and anxiety disorder which was relatively severe at the time but resolved within a short time.
The Appeal Panel also notes that the particulars the appellant provided within the Application to Resolve a Dispute relating to the occurrence of his injury were, in substance, that he was exposed to stressors in his workplace from the time he commenced his employment in 2006 which he perceived to be derogative and racist and amounted to bullying and harassment. The respondent did not in its Reply it filed with the Commission seek to challenge those particulars.
Given that, and noting too that the nature of the psychiatric condition the appellant suffered in 2013 was the same as that with which he now suffers, that is a mood and anxiety disorder, the Appeal Panel agrees with the appellant’s submission that the Medical Assessor was wrong to conclude that what occurred in 2013 was a discrete and separate injury from the injury that was referred to the Medical Assessor for assessment. The appellant has, in substance, the one psychopathology arising from stressors to which he was subject in his workplace over the course of years, which abated for a period of years following treatment in 2013.
Simply put there was no pre-existing condition or previous injury and hence the Medical Assessor was wrong to engage s 323 (1) of the 1998 Act.
Social functioning
The Medical Assessor recorded that the appellant had a three month old son. The Medical Assessor also recorded that the appellant reported “he is happy to have a son, but hates that he is unable to help with his son and cannot sing to settle him”. The Medical Assessor noted that the appellant reported “he feels happy looking at his son”.
The appellant said in his submissions that he “plays a very minor to non-existent role in caring for the child” and that “the main and sole carer of the child is the mother”. That accords with the history the Medical Assessor obtained, that is that the appellant is unable to provide any or any substantial help with the care of his son and cannot settle him.
The appellant submitted that the Medical Assessor did not sufficiently consider his interaction with his newborn child. The Appeal Panel rejects that submission, noting that the history the Medical Assessor took accords with the matters to which the appellant specifically referred to in his submissions, that is that his wife is the main carer of their child and that he only plays a minor role.
The reasons the Medical Assessor provided for rating the appellant’s impairment in the PIRS category of social functioning as class 2 were that:
“Mr Zaia is suspicious of his wife and feels judged by her, causing tension and she is frustrated by his reluctance to socialise. Their relationship is otherwise intact and supportive. He has regular social contact with extended family”.
The examples for a class 2 and class 3 impairment provided in Table 11.4 of the Guidelines, which relates to the PIRS category for Social Functioning are:
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
The history the Medical Assessor obtained was that there was tension between the appellant and his wife and that the appellant was reluctant to socialise. The Medical Assessor noted that the appellant has regular social contact with his extended family. These examples in the Appeal Panel’s view, best correlate with the examples provided in Table 11.4 of class 2 impairment.
The Appeal Panel considers that the Medical Assessor took into account all relevant factual matters when assessing the appellant’s impairment in the category of social functioning. The rating he made of the appellant’s impairment in this category was open to him. The Appeal Panel considers that the Medical Assessor has provided adequate explanation for his assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 29 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3064/23 |
Applicant: | David Zaia |
Respondent: | State of New South Wales (South Western Sydney Local Health District) |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Clayton Smith and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological | 28/06/2020 | Chapter 11 | 13% | Nil | 13% | |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0