Zelinsky v University of Sydney
[2023] NSWPICMP 541
•30 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zelinsky v University of Sydney [2023] NSWPICMP 541 |
| APPELLANT: | Catherine Zelinsky |
| RESPONDENT: | University of Sydney |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 30 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred with respect to ratings of appellant’s impairment in psychiatric impairment rating scale categories of travel and employability; whether MA erred with respect to the diagnosis he made of the appellant’s injury; whether MA erred by not applying paragraph 1.32 of the Guidelines; whether MA erred by making a deduction under section 323(1); Appeal Panel held MA erred by not applying paragraph 1.32 of the Guidelines, but not with respect to the other matters; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 August 2023 Catherine Zelinsky, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
19 July 2023.The appellant relies on the following grounds for 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 for 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
In June or July 2016 the appellant commenced employment as a project manager with the University of Sydney, the respondent, working in the Science Faculty. Due to incidents that occurred in her employment until the end of 2017, she suffered a psychological injury.
At the request of her solicitors she was examined on 27 September 2022 by consultant psychiatrist Dr Christopher Canaris, who in a report of the same date advised he diagnosed the appellant’s injury was persistent depressive disorder (dysthymia) with anxious distress and that the appellant had 21% whole person impairment (WPI) from her injury, which included 2% WPI for the effects of treatment.
Dr Canaris detailed a history in his report that included the appellant having had postnatal depression and having “been on Zoloft (sertraline) 100 mg daily for many years in the setting of ‘a couple of still births’ some 29 and 32 years ago”. Dr Canaris expressed the view that the appellant’s prior depression, which he observed had been “in stable remission”, had “re-emerged in the setting of a very difficult workplace situation”. Dr Canaris, notwithstanding that he considered the appellant’s prior depression had been in stable remission and had re-emerged due to the workplace incidents to which the appellant was exposed, did not make any deduction when assessing the appellant’s permanent impairment from her injury for any proportion of that impairment that was due to her prior depression. His reason for that was that “although there is evidence of previous psychiatric illness, there is no evidence of any pre-existing impairment”.
Relying on that report of Dr Canaris, the appellant’s solicitors wrote on 14 October 2022 to the respondent’s insurer notifying it that the appellant claimed compensation from it under
s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $53,810 for 21% WPI from her injury.The insurer had previously had the appellant examined by consultant psychiatrist Dr Clayton Smith on 22 November 2018 and 31 August 2022. In a report dated 22 November 2018
Dr Smith advised the insurer that his diagnosis of the appellant’s injury was adjustment disorder with anxious mood. In a report dated 31 August 2022 Dr Smith advised that he considered the appellant’s adjustment disorder with anxious mood had resolved. He noted that the appellant had been left with residual fatigue and cognitive symptoms that he observed Professor Cohen had diagnosed as chronic fatigue syndrome. Dr Smith further advised that the appellant had “no whole person impairment from a psychiatric disorder”.On 31 October 2022 Dr Smith further reported to the respondent’s solicitors, following his review of the report of Dr Canaris dated 27 September 2022, that he could not assess WPI because he had “concluded there was no psychological injury causing whole person impairment”.
On 16 December 2022 the insurer wrote to the appellant notifying her under s 78 of the 1998 Act that it disputed it was liable to pay compensation to her for her psychological injury. It advised her that she was not eligible “for permanent impairment lump sum compensation” because her injury had not resulted in at least 15% permanent impairment which, by virtue of s 65A(3) of the 1987 Act, her permanent impairment was required to exceed in order for her to be entitled to compensation for permanent impairment from her injury. It further advised her that it considered she was not entitled to weekly payments of compensation or compensation for the cost of any medical or related treatment of her injury. It advised her that Dr Smith had concluded that the effects of her injury had resolved. It provided her with copies of Dr Smith’s reports dated 22 November 2018, 31 August 2022 and
31 October 2022.The appellant then instituted proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation for her impairment from her injury as well as a claim for weekly payments of compensation she had also made.
On 20 March 2023 a delegate of the President of the Commission referred the matter to the Medical Assessor.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal relates to, firstly, the Medical Assessor’s rating of her impairment in the Psychiatric Impairment Rating Scale (PIRS) categories of travel and of employability, secondly, the diagnosis the Medical Assessor made of her injury, thirdly, the Medical Assessor not making any adjustment under paragraph 1.32 of the Guidelines to his assessment of her permanent impairment, and lastly, the Medical Assessor finding that a proportion of her permanent impairment was due to her pre-existing condition and making a deduction under s 323(1) of the 1998 Act on account of that.
The history the Medical Assessor obtained relevant to those matters included that the appellant had felt depressed occasionally in the past week, that the appellant had variable sleep difficulties with initial insomnia and that the appellant had poor concentration. The Medical Assessor also recorded that the appellant had experienced depression after losing her baby when in her 20s and that she had post-natal depression after subsequently losing another baby.
The Medical Assessor noted that the appellant took sertraline at a dosage of 50mg for 30 years without an issue but when she then tried to come off it she became anxious and reactive. The Medical Assessor noted that the appellant had increased her dosage to 100mg following a subsequent divorce.
The Medical Assessor noted that approximately 12 months ago the appellant consulted a psychiatrist to change her medication to venlafaxine at a dosage of 187.5mg daily and that the appellant found this reduced her symptoms and improved her energy. The Medical Assessor noted that the appellant can now do things again compared to before.
The Medical Assessor detailed the appellant’s employment history in the MAC and noted that since ceasing her work with the respondent, the appellant had worked as a volunteer COVID-19 checker at an aged care facility but struggled to cope with that and made errors and became stressed about that.
The Medical Assessor observed during his examination of the appellant that she had some emotional reactivity and became teary at times but at other times was able to laugh. The Medical Assessor reported that the appellant said that she is occasionally depressed and less anxious and is concerned with her memory.
The Medical Assessor, under the heading “Summary”, provided the following diagnosis of the appellant’s injury:
“Major Depressive Disorder, remission, though she has residual fatigue and amnestic symptoms
generalised anxiety disorder, remission.”
The Medical Assessor completed the PIRS rating form contained within the prescribed form for the MAC, in which he set out his ratings of the appellant’s impairment in the several PIRS categories and his reasons for his ratings. Within his reasons he also briefly detailed the ratings that Dr Canaris had made of the appellant’s impairment in the PIRS categories. With respect to the Medical Assessor’s ratings of the appellant’s impairment in the PIRS categories that the appellant has challenged, the Medical Assessor’s ratings of her impairment and his reasons for them, and his observations of how Dr Canaris rated the appellant’s impairment, were as follows:
Travel
1
Dr Christopher Canaris reported Travel = 2.
The Psychological Functional Assessment report
found she had no difficulty driving on her own to
appointments and parents.
She said she can drive alone, including to the shops,
to the Blue Mountains, and she can drive to new
places alone, so long as she has the GPS.
Since she has retained the capacity to travel to new
places or distant places, reliant on the GPS, which can
be viewed as being part of the normal variation of the general population, she has minor impairment.
Employability
4
Dr Christopher Canaris reported Employability = 5.
The Psychological Functional Assessment report
found she was participating in a return to work
program and was also the main support for her
parents and a friend diagnosed with cancer.
Since leaving work, she had worked as a volunteer for
an Aged Care facility as a COVID checker, from the
end of 2020 for six months. She struggled to cope as
she found it challenging, as she continued to make
errors and became stressed over this.
She has not returned back to work or retrained or
studied. She said this was due to her cognitive
function becoming poorer, with sequencing of tasks
and comprehension.
She has had three lessons in golfing now. She also
has been gardening for hours.
There has been some improvement with her level of
concentration (but not amnesia), and persistence, so
she may be able to undertake sporadic work and less
cognitively complex work, so she has severe
impairment.
The Medical Assessor’s ratings of the appellant’s impairment in the other PIRS categories of self-care and personal hygiene, social and recreational activities, social functioning, and concentration, persistence and pace were, respectively, 2, 2, 2 and 3. The Medical Assessor noted that the median of his scores was 2 and that the aggregate of his scores was 14, which converted to 7% WPI.
The Medical Assessor, in answer to the standard question “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?”, said “She has had a previous history of a depressive disorder, which was adequately treated with sertraline, but with recurrence of symptoms on attempts to cease sertraline”.
The Medical Assessor also said at 11.a. of the MAC that the appellant had a pre-existing condition of a major depressive disorder. The Medical Assessor indicated that this pre-existing condition directly contributes to the appellant’s WPI resulting from her injury. He provided the following explanation for that:
“She has had a previous depressive disorder, which may have recurred when she has attempted to wean off antidepressants prior to the subject injury. This is suggestive of a previous depressive disorder that is in keeping with a Major Depressive Disorder and was quiescent following successful treatment until the subject injury. However, her prior depressive disorder can be seen to have recurred as a consequence of the subject injury. It consequently contributes to her current psychiatric impairment, in that if she had not suffered her earlier depressive disorder, her current impairment would not be as great.”
The Medical Assessor made a deduction of one-tenth under s 323(1) of the 1998 Act when assessing the degree of the appellant’s permanent impairment from her injury for the proportion of the appellant’s permanent impairment he considered was due to her pre-existing condition. The Medical Assessor said that “the extent of the deduction is difficult or costly to determine” so in accordance with s 323(2) he assumed the deductible proportion was one-tenth.
The Medical Assessor did not make any adjustment in accordance with paragraph 1.32 of the Guidelines for the affects of treatment the appellant has had. It is not apparent from the content of the MAC that the Medical Assessor considered that.
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. Whilst the Appeal Panel found for reasons explained below the MAC did contain a demonstrable error the Appeal Panel was able to correct that error based on the material before it.
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 erred by rating her impairment in the PIRS category for travel as Class 1 because Class 2 “is a more appropriate class”. The appellant submitted that her reliance on GPS “is not for navigation alone but more so for support arising from her work related psychological condition”. The appellant submitted that her reliance on the GPS is “akin to reliance on a support person when needing to travel”. The appellant further submitted that the Medical Assessor placed too much weight on a psychological function assessment report dated 18 June 2020 and submitted that the report was of little or no utility given its date. The appellant submitted that the Medical Assessor ought to have preferred the expert opinion of Dr Canaris over the psychological function assessment report.
The appellant submitted that the Medical Assessor erred by not rating her impairment in the PIRS category of employability as Class 5. The appellant submitted that the Medical Assessor again placed excessive weight on the psychological function assessment report dated 18 June 2020. The appellant submitted that the overwhelming evidence before the Medical Assessor was that she could not work at all as a result of her injury. The appellant noted that the opinion of an assessor that conducted a psychological function assessment on 11 May 2022 was that she does not currently have capacity to work in paid employment.
The appellant submitted that the Medical Assessor erred by not providing an explanation as to how he made his diagnosis of her injury and by not providing an explanation as to whether she had achieved partial or full remission of the conditions he diagnosed.
The appellant submitted that the Medical Assessor erred by not considering paragraph 1.32 of the Guidelines.
The appellant submitted that the Medical Assessor erred by making a deduction under
s 323(1) for a proportion of her permanent impairment that was due to a pre-existing condition. The appellant noted that the Medical Assessor took a history that she was asymptomatic at the time she commenced her employment with the respondent. The appellant submitted that there was no evidence that she had a “pre-existing impairment”. The appellant submitted that in the absence of any evidence of her having a pre-existing impairment, the Medical Assessor erred by “hypothesising” that her impairment now would not be as great had she not suffered from her earlier depressive disorder.In reply, the respondent submitted that the history the Medical Assessor obtained with respect to the appellant’s ability in travel was largely consistent with the history that Dr Smith obtained. The respondent submitted that the use by someone of a GPS when travelling to unfamiliar environments is something that a vast majority of the general population do. The respondent submitted that the Medical Assessor’s rating of the appellant’s impairment in travel was “entirely appropriate”.
The respondent submitted the history the Medical Assessor obtained demonstrated the appellant has an ability to participate in a rehabilitation process and undertake part time work on a voluntary basis. The respondent observed that the Medical Assessor found that the appellant had some improvement in her level of concentration recently. The respondent noted that when Dr Smith examined the appellant, he indicated the appellant should engage in a programme of capacity building and job seeking within reported limitation and recommended a graded return to work of four hours a day three days a week.
The respondent submitted that the Medical Assessor provided adequate reasons for his classification of the appellant’s impairment in employability.
The respondent submitted that the symptoms which the Medical Assessor recorded the appellant suffered and his findings from his examination of the appellant supported the diagnosis he made of the appellant’s injury.
The respondent submitted that the Medical Assessor considered the effect of the appellant’s treatment in that he noted that the appellant had responded well to venlafaxine.
The respondent submitted that the Medical Assessor’s decision to make a deduction under
s 323(1) was correct.
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.
PIRS Classifications
Table 11.3 of the Guidelines relates to the PIRS category for travel. The examples provided in that for a Class 1 and Class 2 impairment are:
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2
Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
The Appeal Panel considers that the matters upon which the Medical Assessor relied to rate the appellant’s impairment in this category as Class 1 correlate best with the examples provided for that class, rather than Class 2. The Appeal Panel does not accept the appellant’s submission that using a GPS to assist her to travel to new areas is akin to her being unable to travel without a support person. In the Appeal Panel’s view, most if not all people standardly rely upon a GPS when travelling to new places. The fact that the appellant does so does not indicate any deficit in her capacity to travel. The history the Medical Assessor obtained indicates that the appellant is able to travel to new places by herself.
In the Appeal Panel’s view, the Medical Assessor, by recounting part of what was found in the psychological functional assessment of 18 June 2020 was highlighting relevant aspects of the history of the appellant with respect to travelling. There was no error in the Medical Assessor doing so. That was just part of the process of his obtaining a relevant medical history as part of this assessment of the appellant’s impairment. It is of course the case that an assessment of a worker’s impairment must be done at the time of assessment, but that does not mean a Medical Assessor is to disregard historical circumstances when establishing what current capacity a worker has with respect to the conduct or area of activity in regards to which a worker’s impairment is being assessed. Here, the fact that the appellant could, in 2020, drive herself to appointments and to her parents indicates that she then only had no deficit in travel or a minor deficit, which is consistent with her current impairment in that she is able to drive alone to shops, to the Blue Mountains and relying on GPS to drive to new places.
The Appeal Panel also observes that Dr Smith when he examined the appellant on
31 August 2022 obtained a history of the appellant having recently travelled to Tasmania and to Uluru and to the Blue Mountains.It does not matter that Dr Canaris, who obtained a history of the appellant having been able to drive from Cronulla to his rooms in Ashfield using a “satnav”, rated the appellant’s impairment as Class 2 in travel. In order that an Appeal Panel can find error with a rating a Medical Assessor has made there must be more than a difference of opinion on the subject matter that which reasonable minds might differ.[1] The Appeal Panel must, in other words, be satisfied that it was not open to the Medical Assessor to make the rating that he did based on the material that was before him.
[1] Parker v Select Civil Pty Ltd [2019] NSWSC 140 at [66]; Coenradi v The GEO Group Aust Pty Ltd [2022] NSWSC 864 at [136].
In this case, as said the Appeal Panel considers that it was open to the Medical Assessor to rate the appellant’s impairment as Class 1, for the reasons he detailed in the PIRS rating form, and the fact that Dr Canaris rated it as Class 2 based on similar matters, merely indicates a difference of opinion between clinicians. It does not demonstrate error.
The Appeal Panel considers that the Medical Assessor when rating the appellant’s impairment in employability took into account irrelevant matters by having regard to the fact that the appellant had three lessons in golf and is able to garden for hours. Those activities are in the nature of recreation. They are not relevant to the appellant’s capacity in employment. However, even if those irrelevant matters are disregarded, the Appeal Panel still considers that the appellant’s impairment in employability is severe and not total. In other words, the Appeal Panel, upon correcting the error the Medical Assessor made, still rates the appellant’s impairment the same.
The examples for a Class 4 and Class 5 impairment provided in Table 11.6, which relates to the PIRS category for employability, are:
Class 4
Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5
Totally impaired: cannot work at all.
The Appeal Panel notes from the psychological function assessment report dated
11 May 2022 that the assessor who prepared that report established that the appellant was then undertaking voluntary employment of one hour a week assisting an elderly gentleman. The assessor found that prior to that, the appellant had worked as a volunteer for one day a week up to four hours as a COVID-19 concierge in an aged care facility which came to an end upon the implementation of COVID-19 lockdown orders. The assessor observed that during this period of the appellant’s volunteer work, the appellant had difficulty and made mistakes with the tasks that she had to perform. That accords with the history the Medical Assessor obtained directly from the appellant.The Appeal Panel notes that the appellant’s general practitioner on 24 January 2023 signed a certificate of capacity indicating that the appellant would have capacity to work as a volunteer for three to four hours a day, three days a week.
The Appeal Panel also notes that the Medical Assessor found from his examination of the appellant that she was able to engage throughout the duration of the assessment and that she was cognitively intact during the process. The Medical Assessor recorded that the appellant did have poorer cognitive function since the time of her injury. The Medical Assessor recorded that the appellant had some improvement with her concentration and persistence.
The Appeal Panel observes that the appellant is able to drive relatively long distances on her own, which necessarily entails some level of concentration and persistence. The fact that she is able to do that, and keeping in mind that she was able to engage for the duration of the Medical Assessor’s assessment of her with intact cognition, indicates to the Appeal Panel that the appellant would be able to perform some remunerative work for a few hours a week although with erratic attendance and with reduced pace. That is consistent with the appellant currently undertaking one hour a week of volunteer work and having recently undertaken four hours a week but with difficulty and making errors.
In other words, the Appeal Panel considers the appellant’s impairment in employability is severe, but not total. The Appeal Panel does not consider the appellant cannot work at all, but she does have a substantially reduced ability to undertake remunerative work. Consequently, the Appeal Panel would rate the appellant’s impairment as Class 4.
Diagnosis
The Appeal Panel also considers that it was open to the Medical Assessor to make the diagnoses of the appellant’s injury that he did. The Medical Assessor recorded that the appellant was currently suffering symptoms from her injury in that she had poor concentration and had been occasionally feeling depressed and had sleep difficulties. Further, the ratings the Medical Assessor made of the appellant’s impairment in the PIRS categories also indicates that she had residual depressive symptoms at the time of assessment. In the Appeal Panel’s view a diagnosis of major depressive disorder and generalised anxiety disorder, both in partial remission, is a valid diagnosis. When the MAC is read as a whole, the Medical Assessor identified the features necessary for this this diagnosis to be made. The fact that some psychiatrists might arrive at different diagnoses does not demonstrate error on the part of the Medical Assessor. That may be due in part to a misapplication of diagnostic criteria by other assessors or it may merely be an expression of opinion in which reasonable minds might differ.
In any event, whether the Medical Assessor could have made a different diagnosis of the appellant’s illness and injury did not affect his assessment of the appellant’s permanent impairment and this is because he assessed the appellant’s impairment by reference to the effect the appellant’s psychiatric injury had on her functioning. It is the role of the Medical Assessor to determine the diagnosis or diagnoses and then assess the impairment that results. These are different things and the impairment level is not a direct function of the diagnosis.
The Appeal Panel consequently considers that the MAC does not contain a demonstrable error on account of the diagnoses the Medical Assessor made of the appellant’s injury.
Treatment
The Appeal Panel accepts the appellant’s submission that the Medical Assessor did not turn his mind to whether paragraph 1.32 of the Guidelines ought to be applied when assessing her permanent impairment. The fact that the Medical Assessor failed to indicate at all whether or not an adjustment ought to be made in accordance with paragraph 1.32 of the Guidelines is consistent with the Medical Assessor having overlooked it.[2] The Medical Assessor’s failure to consider whether paragraph 1.32 of the Guidelines ought to be applied when assessing the appellant’s permanent impairment was an error, such that the MAC contains a demonstrable error.
[2] Peachey v Bildorm Pty Ltd (Quality Siesta Resort Pty Ltd & Quality Hotel) [2020] NSWSC 781 at [49]-[50].
Paragraph 1.32 of the Guidelines reads as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
The Appeal Panel considers that the appellant has achieved a substantial elimination of her permanent impairment as a consequence of the treatment she has had for her injury in the form of venlafaxine 187.5mg daily. The Appeal Panel also considers that if the appellant were to cease that treatment there would be an increase in her permanent impairment to what it was prior to her commencing that medication. In such a circumstance there ought to be an increase in the appellant’s percentage of WPI based on the ratings of her impairment in the PIRS category. In the Appeal Panel’s view her impairment ought to be increased by 1% WPI on account of the effectiveness of her treatment for her injury.
Section 323
The Appeal Panel considers that the Medical Assessor was correct to make a deduction under s 323(1) of the 1998 Act for a proportion of the appellant’s permanent impairment from her injury that he considered was due to a pre-existing condition. The appellant had a pre-existing condition, specifically a major depressive disorder. The onset of that condition was around 30 years prior to her suffering her work injury. Her injury had been successfully treated by the appellant taking sertraline. The appellant was not suffering symptoms from her psychiatric condition prior to being exposed to the incident in the workplace with the respondent that precipitated her present injury. Her injury, as the Medical Assessor found, recurred as a consequence of her work injury.
The appellant submitted that there was “no evidence” that she had “a pre-existing impairment”. That is indeed the case, but that is irrelevant in terms of whether a deduction is to be made under s 323(1) of the 1998 Act. What is relevant is whether the pre-existing condition contributes to the appellant’s current impairment in the sense that it makes a difference to the outcome for her in terms of her permanent impairment. In other words the relevant question is whether the degree of her permanent impairment would not have been as great as it currently is without her pre-existing condition. If it would not, then a deduction must be made under s 323(1) of the 1998 Act.[3]
[3] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45].
The Medical Assessor found that had the appellant not suffered a pre-existing major depressive disorder then her current impairment would not be as great. The Appeal Panel agrees with that conclusion. That is the Appeal Panel considers that the appellant’s current permanent impairment is due in part to her pre-existing condition of major depressive disorder because without her having that pre-existing condition the severity of her current illness would not have been as great and consequently her impairment from her injury would not have been as great.
The Appeal Panel also considers the Medical Assessor was correct to assume in accordance with s 323(2) of the 1998 Act that the deductible proportion for the purposes of (1) was to be 10% because it would simply be too difficult to determine precisely the extent to which her permanent impairment is due to a pre-existing condition, and further to make an assumption is not at odds with the evidence.
As said, the Appeal Panel has found an error in the MAC in that the Medical Assessor did not consider whether Paragraph 1.32 ought to have been engaged. Otherwise, the Medical Assessor has not made any error and has made his assessment based on the correct criteria. Correcting that error results in the appellant having 7% WPI from her injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 July 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: | W873/23 |
Applicant: | Catherine Zelinsky |
Respondent: | University of Sydney |
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 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) |
| Psychiatric | 18/09/2018 | Paragraph 1.32 and Chapter 11 | - | 8% | 1/10 | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
0
5
0