HER HONOUR: By summons filed on 18 April 2017 the plaintiff, invoking this Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW), seeks to challenge the validity of a statutory assessment made by a Medical Appeal Panel ("MAP") of a secondary psychological impairment suffered by Rachelle Kiely, the first defendant. The assessment was conducted on 15 March 2017. The plaintiff contends that it is affected by legal error.
[2]
The Background to the Proceedings
The plaintiff operates a residential care facility in Lavington for people with an intellectual disability, behavioural disorders or other special needs. In March 2009 the first defendant took up employment in the facility, working as a residential care co-ordinator.
On 19 April 2011 the first defendant was injured whilst at work when she was assaulted by a resident of the facility. The female resident, who weighed some 110 kilograms, became distressed at the unavailability of a particular staff member and, when in an office with the first defendant, began to yell and lunge at her, jabbing a set of keys towards her. Ms Kiely was fearful and tried to get out of the office, but was caught by the resident near the doorway, and pushed with considerable force against a wall. Other staff members came to the first defendant's aid and restrained the resident.
The first defendant injured her right shoulder and her neck, and was left distressed and anxious by the assault. She was sent home from work with advice to see her doctor, which she did on that same day. Ms Kiely was initially prescribed pain killers and advised to do some exercises. She was certified as unfit for work. The first defendant filed a workers' compensation claim.
In early June 2011 the first defendant returned to work, in a different role and working fewer hours, but she found that computer work exacerbated her condition, and she struggled to cope with the workload. She felt stressed and depressed and her shoulder and neck were painful. From time to time in the ensuing months she was unable to work.
As the months passed the first defendant's condition deteriorated. She found her work very stressful, being in conflict with Occupational Health and Safety officers about her hours and conditions of work, and fearful of another assault. Her pain continued. Ms Kiely was unable to work at all for varying periods during April, May, June, and July 2012. In July 2012 her general practitioner certified her as capable of working for no more than 2 hours each day, and referred her to a psychologist.
Later that year, the first defendant ceased working.
There were issues with the workers compensation claim with the insurer denying some aspects of liability. Various medical and psychological investigations were made into the first defendant's condition.
On 13 January 2016 the insurer gave the first defendant a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act"), providing details of the dispute as to liability. The dispute centred on the fact that the first defendant, who claimed psychological injury, had a history of depression and anxiety, with insomnia, for which she had been treated, and which predated the workplace injury by many years.
On 24 October 2016 and following mediation through the Workers Compensation Commission, the parties agreed to refer the first defendant to an Approved Medical Specialist ("AMS") for assessment of the Whole Person Impairment arising out of the primary psychological injury attributed to the workplace incident on 19 April 2011, pursuant to s 66 of the Workers Compensation Act 1987 (NSW) ("the 1987 Act").
The Commission made two further orders:
"3. The parties request that the AMS referral is to draw the attention of the AMS to the admission of the applicant referred to below, and the AMS is to exclude from the assessment made in respect of the injury in Order 1, any impairment or symptoms arising from or attributable to, the secondary psychological condition suffered by the worker as required by Section 65A of the Workers Compensation Act 1987, in addition to any deduction required under Section 323 of the Workplace Injury Management and Workers Compensation Act 1998.
4. The Applicant admits and the parties agree that the applicant, in addition to the primary psychological injury noted in Order 1 above, suffers a secondary/consequential psychological condition as a result of physical injuries sustained on 19 April 2011 within the meaning of Section 65A of the Workers Compensation Act 1997" (p.4 of the affidavit and annexures of Thomas Fitzgerald Murray ("TFM") of 30 May 2017).
There was subsequently an amendment to the referral, although the orders referred to above were unaffected.
On 29 November 2016 Dr Gregory White, psychiatrist and AMS, issued a Medical Assessment Certificate ("MAC") pursuant to s 325 of the 1998 Act, giving his conclusions and reasons.
In the certificate, Dr White set out the history he obtained from the first defendant as to the workplace injury, and her account of her symptoms. She told him that,
"The insurance company have accepted my primary injury but not the second injury… Dr Kenny gave me 18% and so did my lawyer, give me 18%" (p.11, TFM).
Dr White observed that the first defendant appeared to have a good understanding of the distinction between primary psychiatric injury and secondary psychiatric injury as a consequence of chronic pain and physical disability.
The first defendant reported that she suffered chronic pain, which had not responded to treatment, and she felt very frustrated as a consequence. She said that the pain caused her to be "very down" (p.8, TFM).
She complained of nightmares most nights, frequent panic attacks, feeling wary of people and continually fearful, being hyper vigilant with poor concentration and sleep disturbances, and feeling low and worthless.
The first defendant acknowledged having suffered childhood trauma for which she had later seen a psychiatrist, but claimed to have "closure" of that trauma (p.8, TFM). She said that an earlier prescription of the anti-depressant Endep had been for migraines.
Ms Kiely said that her psychiatric symptoms impacted significantly on her day to day life, and that anxiety controlled her life. She estimated that a third of her disability was caused by pain.
Dr White noted that the first defendant described
"significant lowered mood and other depressive symptoms, as a result of both her [Post-Traumatic Stress Disorder], but also to a significant degree secondarily to chronic pain and physical disability, also reportedly precipitated by the abovementioned assault in the workplace in 2011" (p.11, TFM).
He concluded,
"The Whole Person Impairment is 17%.
With regard to apportionment between a primary psychiatric injury and secondary injury related to chronic pain and physical symptoms, it is noted that there is no scientific method of accurately apportioning causation.
However, this examiner has arrived at an approximation of apportionment, using clinical experience and taking into account:
● The physical symptoms
● The psychological symptoms
● This examiner's experience of other individual's in similar situations, including their responses to various interventions, particularly those that relieve physical symptoms of chronic pain
● Ms Kiely's own comments regarding apportionment
● Comments by other independent medical examiners
Therefore, taking into account the above factors and rounding up the final score to a whole number, it is this examiner's opinion that 12% of Ms Kiely's psychiatric disorder can be deemed a result of the primary psychiatric condition, whilst 5% can be deemed related to a secondary psychiatric condition" (p.13, TFM).
The doctor noted that his opinion was in conformity with the opinion of Dr Peter Klug, Forensic Psychiatrist.
As to the relevance of any pre-existing conditions or abnormalities, Dr White said,
"There is no deductible proportion" (p14, TFM).
On 20 December 2016 the first defendant filed an appeal against Dr White's assessment pursuant to s 327 of the 1998 Act. She specified the grounds of appeal as:
"The assessment was made on the basis of incorrect criteria.
The medical assessment certificate contains a demonstrable error."
The appeal documentation was accompanied by written submissions in which it was argued that the AMS had erred in making the Whole Person Assessment by impermissibly assessing secondary psychiatric impairment, and by having regard to his own experience of other individuals in similar situations (the incorrect criteria ground). To assess the secondary psychiatric impairment was also argued to be demonstrable error, particularly in circumstances where the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Fourth Edition ("the Guidelines") forbad it, and the referral document from the Workers Compensation Commission referred only to primary psychological injury (the demonstrable error ground).
On 23 January 2017 the insurer filed a Notice of Opposition to Appeal with written submissions that responded to the first defendant's complaints. In brief, it was argued that a Whole Person Impairment should be recorded by an AMS, who was entitled to have regard to his or her own clinical experience. Specific reference was made to Order 4 of the Workers Compensation Commission of 24 October 2016 (extracted at [11]). It was noted that the first defendant had not challenged Dr White's conclusion that secondary psychological injury contributed 5% of the Whole Person Assessment.
On 7 February 2017 the matter was referred to a Medical Appeal Panel pursuant to s 327(4) of the 1998 Act.
[3]
The Decision of the Medical Appeal Panel
On 15 March 2017 the MAP, having reviewed the matter by reference to the material before it, revoked the MAC issued by Dr White and issued a new MAC assessing the Whole Person Impairment at 15%.
The MAP noted that the parties agreed that the first defendant had suffered both primary and secondary psychological conditions, and that the issue was one involving s 65A of the 1987 Act, and paragraph 1.22 of the Guidelines. It said,
"The objective is to limit the assessment to the impairment due to the primary psychological injury by excluding any proportion due to a secondary psychological condition" ([37], p.47, TFM).
Section 65A of the 1987 Act relevantly provides,
"65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
(4) […]
(5) In this section:
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury."
Paragraph 1.22 of the Guidelines says:
"A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined."
The MAP accepted the insurer's submission that no assessment of the secondary psychiatric and psychological impairments had been made by the AMS, who had rather attempted to exclude the proportion of overall impairment attributable to secondary injury (the incorrect criteria ground).
It did, however, conclude that there was a "problem" with the "factors" taken into account by the AMS to arrive at the degree of impairment excluded. It said (at [44], p.49, TFM),
"The Panel notes the difficulty faced by the AMS in the circumstances of this matter. In attempting to quantify the extent of the assessed impairment to be excluded, the factors relied upon by the AMS cannot provide a reliable outcome. The physical injuries are not relevant to considering the impairment due to the secondary condition; nor is the pain suffered by Ms Kiely; or the experience of other individuals suffering pain. The comments of Ms Kiely taken into account by Dr White compound the unreliability of the outcome arrived at."
The MAP concluded that reliance on irrelevant factors by the AMS had led to a conclusion without scientific rationale, that being a demonstrable error.
Having found such error, the MAP then turned to make its own assessment, noting that the only correction required was to the proportion of impairment to be excluded from the overall assessment.
The MAP observed that the process with respect to secondary conditions is distinct from the application of a "deductible proportion" pursuant to s 323 of the 1998 Act. It described the "quarantining" of impairment due to the primary condition as "challenging" ([49], p.50, TFM). The Panel concluded,
"There is overlap between the primary and secondary symptoms of depression, as noted by the AMS. The PTSD element resulting from the assault injury in 2011 is the major part of the primary impairment, and there is also additional primary impairment from depressive symptoms associated with the assault. The Panel is of the view that this leaves the symptoms of the Adjustment Disorder from the secondary condition due to the physical injuries as a relatively minor factor in the overall impairment. It must be remembered again that Ms Kiely's pain does not equate to assessable psychological/psychiatric impairment, but relates to the physical injuries.
Nevertheless, some of the depressive symptomology associated with the pain from the physical injuries does contribute to the overall impairment. In the Panel's opinion, the picture here is very similar to one in which section 323 of the 1998 Act is applicable, and the deductible proportion of the assessed impairment for a pre-existing injury, condition, or abnormality is difficult to ascertain. In those circumstances section 323(2) would be applicable and a 1/10 deduction would apply provided it was 'not at odds with' the evidence.
In this matter the excluded impairment for the secondary condition is similarly difficult to establish, and the proportion of 1/10 is not at odds with the evidence. Given that this approach is stipulated for assessments involving a pre-existing condition, the Panel has concluded that it is appropriate to 'borrow' the method from section 323 of the 1998 Act. It is on the evidence the best means in this matter to identify the excluded proportion due to the secondary psychological/psychiatric condition.
Using this analogous method, the Panel finds that the primary injury comprises 9/10 of the impairment.
Applying this finding to the overall assessment by the AMS of 17 per cent WPI gives 15 per cent WPI for the primary psychiatric/psychological injury, as reflected in the Panel's new Certificate" ([51] - [55], p.50, TFM).
[4]
The Appeal Against the Decision of the Medical Appeal Panel
In bringing its case for judicial review the plaintiff asserts that the MAP made four errors. The first and second errors contended for are similar, being in the nature of matters considered ultra vires. The third error relates to the use made by the MAP of s 323 of the 1998 Act to resolve the assessment of primary and secondary psychological injury, a use the plaintiff contends was simply not available to it. The fourth error asserts legal unreasonableness.
[5]
The First and Second Asserted Errors
The plaintiff argues that, in considering issues not raised by Ms Kiely on appeal, the MAP acted beyond the powers conferred by s 328 of the 1998 Act.
That provision is in the following terms:
"328 Procedure on appeal
(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.
(2) 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. The Workers Compensation Guidelines can provide for the procedure on an appeal.
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel.
(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel."
The phrase "the grounds of appeal on which the appeal is made" in s 328(2) has been held to mean the grounds of appeal as articulated, together with the submissions filed in support of the grounds: NSW Police Force v The Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [49] ("Police Force v WCC").
The plaintiff complains that, although the first defendant did not take issue with the quantification of secondary psychological injury (at 5%) by Dr White, the MAP considered its correctness, and revised it. Similarly, although the first defendant raised a complaint only with respect to a single factor taken into account by the AMS, being his reference to the experience of individuals in a similar position, the MAP considered the applicability of a range of factors, with respect to which error was found.
The plaintiff submits that in having regard to matters outside the scope of the appeal as brought by the first defendant, it acted ultra vires, and the decision is invalid.
The first defendant submits that the plaintiff's approach to the grounds of appeal is overly restrictive, with "an overly pernickety approach to the appeal panel's reasons" ([7], written submissions of 10 August 2017). It is argued that, properly understood, the MAP found error of the same kind as that raised by the first defendant, and in relation to the same aspect of the decision as she referred to. Further, it is submitted that even if the MAP went beyond the precise complaint made by the first defendant, the result was not affected thereby.
The first defendant argues that, the first error not having been made out by the plaintiff, the second error is incapable of proof because, if the MAP acted within power to find error, it was empowered to correct the error and exercise its own judgment in issuing a further certificate.
[6]
The Third Asserted Error
The plaintiff contends that the MAP erred in purporting to apply the provisions of s 323 of the 1998 Act to the determination of secondary psychological impairment, for the purposes of s 65A of the 1987 Act, in circumstances where s 323 has no application.
The first defendant submits that the MAP's reasons should be construed "beneficially", such that it ought to be concluded that the MAP was not directly applying s 323 of the 1998 Act, but rather, using it as an analogous method of determining the deduction to be made for secondary psychological injury. Noting the difficulty and artificiality of the process of determining whether psychological injury was primary or secondary, the first defendant suggests that the MAP used s 323 as a method of deductibility which best reflected the evidence.
[7]
The Fourth Asserted Error
The plaintiff argues that the decision reached by the MAP was not one which fell within a range of possible acceptable reasons, principally due to those matters referred to in support of the first to third asserted errors. It is submitted that the MAP determined the quantum of secondary psychological injury even though that feature was not an issue in the appeal; found other errors not argued for by the first defendant, acted in contravention of the Guidelines in concluding that the AMS was not entitled to have regard to his clinical experience; failed to properly determine the quantum of secondary psychological impairment; and made inconsistent findings.
The first defendant characterises the fourth asserted error as an attack on the merits of the MAP's decision, rather than a true complaint of legal unreasonableness, which is made with an eye too keenly attuned to error.
[8]
The First and Second Asserted Errors
These errors, or grounds, rely upon consideration of s 328 of the 1998 Act and the grounds raised by the first defendant in the proceedings before the MAP. Section 328 falls within Part 7 of the 1998 Act, being a Part which deals with medical assessment of injury. Section 328 provides, relevantly:
"328 Procedure on appeal
(1) […]
(2) 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. The Workers Compensation Guidelines can provide for the procedure on an appeal.
(3) […]
(4) […]
(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6) […]."
In Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [40], Barrett JA (Gleeson JA agreeing) said:
"Under s 328(2), a Medical Appeal Panel's function is to make a 'review of the original medical assessment', being, however, a review that is 'limited to the grounds of appeal on which the appeal is made' being grounds formulated and advanced by the party concerned within the limits allowed by s 327(1). Inghams notes that the part of s 328(2) confining a review to the grounds advanced by the appealing party was added by the Workers Compensation Legislation Amendment Act 2010 (NSW) in apparent response to the decision of this court in Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116."
See also: Police Force v WCC per Davies J at [45] - [46], [52]; Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 per Beech-Jones J at [29]-[38]; and Ferguson v State of New South Wales & Ors [2017] NSWSC 887 per Campbell J at [12].
It is tolerably clear from the wording of s 328(2) and from the authorities that there are restrictions upon the appellate function of the MAP. It does not conduct an inquiry at large, but is confined to determining "the grounds of appeal on which the appeal is made".
The grounds advanced by the first defendant did not put in issue Dr White's quantification of the secondary injury, although the quantum was revised by the MAP. Nor did the first defendant plead error in the factors taken into account by Dr White other than his reference to his experience of other individuals in a similar situation. Notwithstanding that, the MAP found error in a number of factors taken into account. At [43] of the decision it said,
"The problem the Panel finds is with the factors taken into account by the AMS to arrive at the degree of impairment excluded" (p.48, TFM).
The MAP went on to refer to the physical injuries as being irrelevant to consideration of secondary impairment, as was, it concluded, pain suffered by Ms Kiely or her perception of pain.
These were not matters raised by the first defendant in the grounds as pleaded, and should not have formed part of the MAP's consideration of error. As the plaintiff submits, the appeal decision in this regard was made outside the bounds imposed by s 328(2).
[9]
The Third Error
In making an assessment of the proportion of impairment to be excluded from the overall assessment the MAP observed that there was a degree of overlap between primary and secondary impairment. The difficulty of separating impairment due to the primary condition from secondary impairment was noted. The solution to that difficulty that the MAP adopted was to refer to s 323 of the 1998 Act. It said, at [52] - [54],
"In the Panel's opinion, the picture here is very similar to one in which section 323 of the 1998 Act is applicable, and the deductible proportion of the assessed impairment for a pre-existing injury, condition, or abnormality is difficult to ascertain. In those circumstances section 323(2) would be applicable and a 1/10 deduction would apply provided it was 'not at odds with' the evidence.
In this matter the excluded impairment for the secondary condition is similarly difficult to establish, and the proportion of 1/10 is not at odds with the evidence. Given that this approach is stipulated for assessments involving a pre-existing condition, the Panel has concluded that it is appropriate to 'borrow' the method from section 323 of the 1998 Act. It is on the evidence the best means in this matter to identify the excluded proportion due to the secondary psychological/psychiatric condition.
Using this analogous method, the Panel finds that the primary injury comprises 9/10 of the impairment" (p.50, TFM).
Whilst arguably a convenient means of resolving the difficulty of apportionment of impairment, a process which, it must be noted, is extraordinarily artificial, it was not open to the MAP to utilise s 323 as the methodology adopted by which to determine secondary psychological impairment pursuant to s 65A of the 1987 Act.
Section 65A of the 1987 Act is set out at [30] above. It falls within Division 4 of Part 3 of the Act. Part 3 deals with "Compensation - benefits"; Division 4 deals with compensation for non-economic loss.
Section 323 falls within Part 7 of the 1998 Act, being the part dealing with medical assessments. It provides:
"323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note.
So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.
(5) (Repealed)
Note.
Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies."
Sections 65A and 323 serve different purposes: s 65A deals with compensation; s 323 deals with assessment of impairment. The two provisions are not intended to work together.
In referring to s 323 of the 1998 Act to assess the quantum of impairment to be deducted, the MAP also failed to have regard to the medical evidence upon which the assessment could be made. In evidence before the MAP, and available for this purpose, were reports and opinions from a number of relevant medical practitioners, including Dr Sowden, Dr Mobilia, Dr Todhunter, Dr Swift, Dr Brooder, Dr Kenny, Professor Dennerstein, Dr Samuel, and Dr Klug.
Even were s 323(2) available to assess an appropriate deduction, the provision is not open-ended. It permits a ten per cent deduction to be made in circumstances where it would be "difficult or costly" to make a more specific assessment, the example given in the provision being because of a lack of medical evidence. Here, there was a great deal of evidence to which the MAP could have had regard, and no evidentiary basis upon which to conclude that it would be too difficult or costly for it to do so.
To utilise s 323 of the 1998 for this purpose was an error of law.
[10]
The Fourth Error
This ground may be quickly dealt with, since it is effectively a complaint of legal unreasonableness, based upon the previously particularised errors being made out. For the reasons noted above, I have concluded that the MAP fell into error as the plaintiff submits.
[11]
orders
1. The decision of the Medical Appeal Panel in matter number M1-003761/16 dated 15 March 2017 is set aside.
2. Remit the matter to the third defendant for determination of the first defendant's appeal by a differently constituted Appeal Panel pursuant to s 328(1) Workplace Injury Management and Workers Compensation Act 1998 (NSW); and
3. The first defendant to pay the plaintiff's costs.
[12]
Amendments
14 September 2017 - typographical error in cover sheet
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Decision last updated: 14 September 2017