Johnson v NSW Workers Compensation Commission

Factual Background

1. The following factual background appears from the Statement of Reasons of the Panel and is included here to provide a general context against which the issues are to be understood.
2. The plaintiff sustained a psychological injury during the course of her employment with NSW Education on 30 April 2014 ("NSW Education injury"), when she was abused, threatened and physically assaulted by a student.
3. On 3 August 2016, the plaintiff's solicitor served a Notice of Claim on NSW Education claiming lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 ("the 1987 Act").
4. On 9 June 2017, the AMS provided his first Medical Assessment Certificate in which he assessed the plaintiff as suffering from a whole person impairment of 19%, as a consequence of the NSW Education injury.
5. On 7 November 2017, NSW Education lodged an application for reconsideration of the Medical Assessment Certificate of 9 June 2017.
6. On 5 February 2018, an arbitrator of the Workers Compensation Commission referred the medical dispute back to the AMS for reconsideration pursuant to s 329(1)(b) of the 1998 Act.
7. It was referred back for reconsideration when it became apparent that for three discrete periods between 20 July 2016 and 30 March 2017, the plaintiff had worked for Aboriginal Hostels Ltd ("Hostels") and had sustained a psychological injury on 30 March 2017, for which a claim had been made on ComCare.
8. Seized with this information, the AMS provided the AMS Certificate of 11 April 2018, to which I have earlier referred.
9. At the request of NSW Education, the Proper Officer of the Workers Compensation Commission referred the dispute to the Panel because, as the plaintiff conceded, the AMS Certificate contained a demonstrable error. That demonstrable error was the erroneous application of s 323 of the 1998 Act to the whole person impairment, with the consequence that a deduction was made from the basal whole person impairment, when no such deduction could lawfully be made.
10. The Panel admitted fresh evidence and determined that it was not necessary for the plaintiff to undergo a further medical examination.
11. In its certificate of 18 July 2018, the Panel recorded that the expert evidence put before it by the plaintiff contained a number of expert opinions of psychologists and psychiatrists which addressed the effects of the injury which the plaintiff sustained when employed by NSW Education. In short, the Panel recorded the following: 1. a psychologist, Ms Bell, found that the plaintiff suffered from a severe depression, anxiety and stress in May 2014; 2. a psychologist, Ms Agatha Conrad, diagnosed post-traumatic stress disorder; 3. a psychiatrist, Dr Murphy, diagnosed an acute stress disorder in June 2014; 4. a psychologist, Ms Jodie Kerr, reported in 22 January 2016, that the plaintiff had symptoms of post-traumatic stress disorder; and 5. a psychiatrist, Dr Teoh, reported in July 2016 that he diagnosed chronic adjustment disorder with mixed depressed and anxious mood;
12. The Panel also recorded the opinion of a psychiatrist, Dr Abeya, who found in June 2018, that the plaintiff had developed a post-traumatic stress disorder with secondary depressive symptoms consistent with a major depressive disorder.
13. The Panel noted that evidence was adduced by NSW Education, which recorded that the plaintiff alleged that she had suffered an injury subsequent to her employment with NSW Education whilst working with Hostels, and that she reported symptoms or injuries during February 2017. She sought treatment for her condition on 30 March 2017. A three week medical certificate, issued at that time by a general practitioner, recorded a diagnosis of adjustment disorder with mixed anxiety and depressed mood.
14. The Panel recorded the diagnosis made by the AMS when he examined the plaintiff, in the following terms: "[The plaintiff] now presents with evidence of assisted depressive disorder which appears to be a direct consequence of the indexed trauma. She has some 'cross-cutting' features of PTSD but this full syndrome is no longer present. Her injuries appear to have stabilised sufficiently for an evaluation of whole person impairment."
15. The Panel noted that the AMS Certificate recorded that the plaintiff had "… developed symptoms of an acute distress disorder that evolved into a post-traumatic stress disorder".
16. The Panel noted that ultimately the AMS recorded this conclusion: "… I remain of the view that [the plaintiff] presents with a persisting or chronic post-traumatic stress disorder that, in all probability, was exacerbated in the subsequent employment with Aboriginal Hostels Ltd."
17. The Panel recorded the submissions made by both the plaintiff and NSW Education. It then moved on to record its findings and reasons, which extended over 40 paragraphs.
18. The Panel noted the contents of Clause 1.6 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Fourth Edition 1 April 2016 ("the Guidelines"). In particular, the Panel's Certificate noted that the assessment of permanent impairment involved clinical assessment of the claimant to determine "… the degree of permanent impairment that results from the injury".
19. A statement to similar effect is to be found in Clause 1.6 of the Guidelines.
20. The Panel went on to consider the AMS Certificate and determined that it was erroneous because he had failed to correctly apply s 323 of the 1998 Act, because the AMS wrongly made a deduction for the effects of a subsequent injury.
21. The Panel went on to state what it regarded its obligation to be. It said: "110. The next matter to consider is the question of apportionment between the subject work injury and the psychological injury sustained by [the plaintiff] whilst in the employ of Aboriginal Hostels Ltd."
22. The Panel then recorded this statement, which is of importance having regard to submissions which I will later identify. It said: "111. There is no dispute that [the plaintiff] suffered a psychological injury in the employ of [NSW Education]. She was diagnosed as suffering from post-traumatic stress disorder and/or an adjustment disorder with mixed depressed and anxious mood as a result of the work assault. Dr Teoh assessed 17% whole person impairment, but his examination was undertaken some two weeks prior to the respondent gaining employment with [Hostels]."
23. The Panel then went on to consider, again, the evidence with respect to the plaintiff's condition and difficulties as a consequence of the injuries she sustained at Hostels.
24. At [126], the Panel recorded this: "126. [NSW Education] does not take issue with the whole person impairment assessed by the AMS. In the Panel's opinion, it was open to the AMS to assess the degree of the [plaintiff's] whole person impairment in the manner that he did, and this discloses no error on his part. The Panel is satisfied that the [plaintiff] has been properly assessed as having 19% whole person impairment as a result of the cumulative effect of [the] two work injuries."
25. It is appropriate to set out the balance of the decision: "130. The evidence confirms that the respondent suffered a psychological injury at the appellant as a result of a minor assault. It was thought that this injury was incapacitating, and yet she was able to secure employment with the Aboriginal Hostels Ltd. 131. The respondent worked for the Aboriginal Hostels Ltd for 10 months, not a matter of days or weeks. It was not a failed work trial. She was employed in a far more confronting position. She had interpersonal issues with the CEO and her services were terminated because she stood up for herself, not because she was suffering from any chronic psychological disorder. 132. The respondent was mentally strong enough to initiate legal proceedings in the Fair Work Commission. She succeeded in her claim and was reinstated. She eventually ceased work in March 2017 and was certified as unfit by Dr Rahman as a consequence of being exposed to highly traumatic events that comprised aggressive behaviour and threats to her life. The number and nature of events, and degree of threat to the respondent at Aboriginal Hostels Ltd are recorded as far greater than those at the original employer. 133. The Panel considers that the injury sustained by the respondent in 2014, when she was employed by the appellant, contributes only a minority of the level of the respondent's whole person impairment when compared to the significant traumatic psychological injury sustained by the respondent in the employ of Aboriginal Hostels Ltd in early 2017. 134. Accordingly, the Panel is satisfied that the respondent's injury at the appellant contributes at most one third to the degree of respondent's whole person impairment, or 6% whole impairment."

Issues

1. The plaintiff submitted that there were two errors apparent in the Panel's decision contained in the Panel Certificate.
2. Counsel for the plaintiff submitted that the errors were as follows: 1. that it did not comply with the Guidelines because it did not express a view about the diagnosis of the plaintiff's condition giving rise to the whole person impairment ("the diagnosis issue"); and 2. that the Panel failed to identify the relevant legal principle that it was applying in respect of the task upon which it was engaged in in undertaking the reassessment of the whole person impairment of the plaintiff ("the apportionment issue").

The Diagnosis Issue

1. Counsel for the plaintiff submitted that in order to discharge its obligations under the statute, the Panel had to commence with an explicit statement of its diagnosis of the plaintiff's condition, and in failing so to do, it fell into error. He submitted that the identification and statement of the diagnosis was "absolutely indispensable to the consideration of the effect of a second injury".
2. In aid of this submission, counsel drew attention to Clause 11.4 of the Guidelines, which is in the following, apparently mandatory, terms: "11.4 The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based."
3. It may be noted that Clause 11.6 of the Guidelines contains, in part, the following: "11.6 The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used."
4. Counsel for the plaintiff also submitted that unless a diagnosis was made and explicitly stated, it is not possible to understand the conclusions and findings of the Panel. Nor is it possible to understand the basis upon which the Panel reached their assessment of whole person impairment.
5. On this issue, counsel for NSW Education accepted that there was no explicit reference in the Panel's reasons to a specific diagnosis of a psychiatric injury or condition but submitted that in the circumstances of this case, it was unnecessary for the Panel to have specifically mentioned that diagnosis. Counsel for NSW Education submitted that this was so because there was no dispute when the matter came before the Panel, and there is no dispute before the Court, with respect to the extent of the plaintiff's whole person impairment being 19%. Accordingly, Counsel submitted there was no reason for the Panel to arrive at, and then set out, a formal diagnosis.
6. By reference to the Clause of the Guidelines relied upon by the plaintiff, counsel for NSW Education submitted: "Now, as your Honour has also identified today, there was no dispute between when the matter came before the Panel and no dispute before your Honour today with respect to the extent of that 19% whole person impairment, so that element of what was before the Panel was not something that the Panel needed to specifically deal with, in that they accepted the 19% impairment. So once that has been dealt with, that particular paragraph has no relevance to what the Panel needs to do."
7. Counsel for NSW Education agreed that it was open to the Court to infer by reason of the Panel's acceptance of the plaintiff's whole person impairment of 19% that the diagnosis reached by the AMS of chronic post-traumatic stress disorder, was that which the Panel accepted and relied upon.

The Apportionment Issue

1. Counsel for the plaintiff submitted that in order to recover compensation pursuant to s 66 of the 1987 Act, the plaintiff had simply to demonstrate that her impairment resulted from, or was materially contributed to by, the NSW Education injury.
2. He submitted that the Panel accepted that the plaintiff's impairment resulted from that injury. Counsel pointed to [111] and [133] of the Panel's Certificate, which are set out above at [30] and [33] respectively, as evidence of that conclusion. He also submitted that the ultimate finding of 6% whole person impairment itself indicated that the Panel had reached the conclusion that the NSW Education injury had caused or materially contributed to the plaintiff's whole person impairment, although he submitted that the numerical value of 6% was erroneous.
3. Counsel submitted that the fact of the Panel's finding that the plaintiff's impairment resulted in part from another subsequent injury did not affect a conclusion that the plaintiff had satisfied the requirements of s 66 to recover compensation. This is the case unless the employer was able to show that the subsequent injury was of such a kind that it broke the causal link between the original injury and the impairment from which the plaintiff suffered at the time of the Panel's assessment.
4. Counsel for the plaintiff then went on to submit that the effect of what the Panel had done, contrary to legal principle, was to undertake an apportionment exercise and that it had determined that the first injury (that for which NSW Education is responsible) caused about one-third of the plaintiff's impairment and the second injury (being that for which Hostels was responsible) accounted for about two-thirds of the plaintiff's impairment.
5. Counsel submitted that what was in fact required was not an exercise of apportionment but rather attention to principles of the kind set out in a number of cases, including Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396; (1999) Aust Torts Reports 81-531 at [22], and recently the decision of Harrison AsJ in Nicol v Macquarie University [2018] NSWSC 530 at [140]ff.
6. The plaintiff called in aid the remarks in Nicol, where her Honour found that the principles applicable in that case, were those where a second and subsequent injury caused greater damage because of the existence of an earlier injury.
7. At [144] and [145], Harrison AsJ said: "144. I accept that the decision on causation of Mr Nicol's depression is essentially a medical opinion, but the Appeal Panel's decision must nevertheless be made in accordance with the statutory requirements, including 9A(1) of the Workers Compensation Act. The Appeal Panel did not specifically set out the statutory requirements of s 9A(1). The language used by the Appeal Panel also indicated that the new injury caused Mr Nicol's symptoms to recur, yet made no reference to any novus actus that broke the chain of causation from Mr Nicol's earlier injury sustained at Macquarie University. 145. The characterisation of the new injuries causing symptoms to recur suggest that the new injury and prior injury are linked. … It does not follow that the aggravation alone results in a new injury unless the causal chain has been broken."
8. With respect to this apportionment issue, NSW Education submitted that it was open to, and appropriate for, the Panel to determine the whole person impairment attributable to the injury in the manner in which it did because s 319(c) of the 1998 Act requires the Panel (or an AMS) to assess the degree of permanent impairment of the plaintiff (or any worker) that resulted from an injury.
9. Counsel drew attention to the provisions of the Guidelines, in particular Clause 1.6 which provides that assessing permanent impairment involves clinical assessment and a determination of whether the "… degree of permanent impairment … results from the injury".
10. Put differently, counsel submitted that the statutory task of finding a causal link included the task of apportionment and that was the task upon which the Panel correctly embarked and completed in the Panel's Certificate.

Discernment

1. On the diagnosis issue, I accept the plaintiff's submission that a certificate, whether of an AMS or else of an appeal panel, which finds the existence of an identifiable percentage of whole person impairment of a claimant must set out the medical condition which is the cause of that impairment. This may well be a straightforward task and readily apparent where there is an identifiable physical injury with obvious sequelae.
2. In the case of a claimant who is suffering a psychiatric or psychological condition, I am satisfied that a certificate must clearly identify the condition which has been diagnosed, and which gives rise to the whole person impairment. Ordinarily, this would be done by reference to any one of the recognised diagnoses to be found in the Diagnostic and Statistical Manual of Mental Disorders 5th Edition ("DSM-5"), or other recognised diagnosis to be found in widely accepted publications such as the International Statistical Classification of Diseases and Related Health Problems ("ICD-10"). In a small minority of cases, it may be possible to identify the condition of which the AMS or Panel was satisfied not because it appears to be stated by reference to such a diagnosis, but rather because the basis of the conclusion can be seen to be clear, and no alternative conclusion is rationally available.
3. Unless a Certificate shows the injury or diagnosed condition in the way described, then the basis of any conclusion as to whole person impairment will not be exposed. In such a case, it is unlikely that the reasons which an AMS or an appeal panel are required to provide will be satisfactory. Neither the claimant nor the employer will be able to discern the rationale for the ultimate conclusion as to percentage impairment. It will be an intellectually arid field of enquiry.
4. As well, it seems to me that Clause 11.4 of the Guidelines also require that the diagnosis be clearly articulated in the Certificate.
5. The Panel did not explicitly set out its diagnosis of the plaintiff's condition which was the basis of its determination of whole person impairment.
6. However, in the unusual circumstances of this case, I am satisfied, as submitted by counsel for NSW Education, that it can be readily inferred that the Panel must have determined that the plaintiff was suffering from a chronic Post-Traumatic Stress Disorder as a result of the NSW Education injury. I draw this inference from the absence of any challenge by the parties to the assessment by the AMS of the condition of the plaintiff and the whole person impairment of 19%, and from the acceptance by the Panel of the correctness of that assessment.
7. This inference which arises from [69]-[73] of the Panel's Certificate is confirmed by what appears at [126] of the Panel's Certificate, which is set out at [32].
8. It follows from this conclusion that I am not satisfied that the plaintiff has demonstrated that, in respect of this issue, error has been established.
9. However, I am satisfied that the plaintiff has demonstrated error in the Panel's Certificate on the apportionment issue.
10. As set out in [25] above, the AMS concluded that the plaintiff's chronic condition caused by her NSW Education injury was exacerbated by the later Hostel injury. Although the Panel found error in the AMS Certificate, that error arose because of the incorrect use by the AMS of the mechanism provided for in s 323 of the 1998 Act. Instead of applying s 323 according to its terms (which relate to a pre-existing condition) the AMS had applied those provisions to the subsequent Hostels injury. At no time did the Panel in its reasons depart from the diagnosis of the plaintiff's condition, or the extent of the assessed whole person impairment.
11. Rather, as [110] of the Panel's Certificate shows, the Panel considered: "… the question of apportionment between the subject work injury and the psychological injury sustained … whilst in the employ of [Hostels]."
12. The Panel's ultimate determination of 6% whole person impairment was the end result of the consideration and determination of this question.
13. It is significant that the Panel did not conclude that the later injury was of a kind or nature that severed the causal chain between the NSW Education injury and the plaintiff's impairment. If it had come to such a conclusion, then it was obliged to find that there was no impairment as a result of the NSW Education injury. However, to the contrary, it concluded that the plaintiff's impairment resulted from the NSW Education injury and the later Hostels injury.
14. The task required by ss 9 and 9A of the 1987 Act is for a determination to be made about whether the relevant employment was a substantial contributing factor to the injury. If it was, then the AMS or the Panel is to assess the permanent impairment, by a clinical assessment of the claimant, as they present on the day of the assessment having regard to the matters set out in Clause 1.6 of the Guidelines. That task does not involve any process of apportionment between injuries.
15. Section 323 of the 1998 Act provides an exception to that general approach, but only in the limited circumstances which that provision contemplates. Here those provisions did not apply.
16. For these reasons, I am satisfied that the Panel's Certificate contained an error on the face of it, and the plaintiff is entitled to succeed on her claim.
17. It follows from this conclusion that, in accordance with the law and in the circumstances which applied at the time the Panel made its assessment, the correct decision which it ought to have reached was that the whole person impairment of the plaintiff was 19% and not 6%.
18. As this is a significant difference in outcome for the plaintiff, and neither party suggested otherwise, it is appropriate as a matter of discretion for the Court to grant the relief sought.
19. No submission was made that the ordinary rule for costs ought to be varied. Costs ought to follow the event.

Orders

1. I make the following orders: 1. Pursuant to s 69 of the Supreme Court Act 1970, the decision of the second defendant made on 18 July 2018 is quashed. 2. Order that the matter be remitted to the first defendant to be dealt with in accordance with law. 3. Third defendant to pay the plaintiff's costs of these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2019