The applicant is a 34-year-old event health services manager who was employed by St John's Ambulance Services from 2017.
The applicant has accepted claims for an "acute stress disorder" suffered as a result of a high-speed rollover motor vehicle accident which occurred in the course of her employment on 24 June 2020. The applicant also has accepted claims for compensation for further psychological injuries, secondary to medication prescribed for anxiety which arose as a result of various work stressors impacting on her from 1 January 2021.
The applicant was made redundant in January 2022. The respondent rejected a further application for compensation for income support and medical expenses on the basis that she was not a seriously injured worker for the purposes of the Return to Work Act2014 (RTW Act). The applicant challenges that decision.
The applicant has undergone a s 22 assessment process with a permanent impairment assessment (PIA) provided by Dr Ford, consultant psychiatrist. Dr Ford assessed the applicant's permanent impairment as 45% WPI and declined to make any deduction for pre-existing or non-related impairments.
The respondent contends the assessment by Dr Ford was not in accordance with the Impairment Assessment Guidelines (IAG). By its Statement of Issues and Contentions, a number of criticisms were alleged with the way in which the assessment was carried out by Dr Ford, including the failure to make a deduction for pre-existing or non-related impairment.
The respondent sought that the matter be referred to an Independent Medical Adviser (IMA) pursuant to s 121 of the RTW Act.
The matter was listed for trial scheduled to commence on 3 February 2025. In early December 2024, the parties indicated that the applicant agreed the matter should be referred to an IMA. The trial dates were vacated and directions hearings conducted for the terms of such referral to be determined.
Subsequently, it became apparent that the parties were not ad idem as to the nature and extent of any such IMA referral.
It is the respondent's contention that, it being accepted that the assessment of Dr Ford was non-compliant, the referral to an IMA should be at large for the entire PIA to be performed afresh.
For her part, the applicant contends that the only non-compliant issue related to the question of deduction and accordingly the principal assessment of 45% should stand, with the IMA simply considering the level of any deduction for pre-existing or unrelated impairments.
This dispute as to the terms of any referral has come on for determination by me by way of a ruling. The parties accept that the final form of the question or questions to be referred is to be determined by me following submissions from the parties: s 121(2)(e) of the RTW Act.
[2]
The applicant submits that, by use of the expression "any" question in s 121, it is contemplated that there is no need for the whole of the PIA to be reassessed. Rather, a discrete issue can be referred. Reliance is placed upon the decision in Brooks v Return to Work SA.[1]
Any referral to an IMA should be limited to the issues with compliance identified in the respondent's challenge to the assessment.
[3]
The respondent contends that, the applicant having conceded that the report of Dr Ford was non-compliant, it is inappropriate for the applicant to seek to rely upon aspects of that report and limit the referral of any medical question to the matters of deductibility. The respondent's challenge to the PIA, as articulated in its Statement of Issues and Contentions, was not limited to the question of deductibility.
[4]
I consider the factual circumstances in Brooks to be quite distinct from the circumstances here.
In Brooks, there was no challenge to the assessments made by the assessor. Rather, the assessor felt unable to determine the question of deduction. Thus, the issue fell to be determined by the Tribunal in the absence of any assistance from the assessor. In those circumstances, the Tribunal sought the assistance of an IMA.
Both parties were invited to address me on whether the reasons for decision by me in the matter of Eves v Return to Work Corporation of South Australia[2] were applicable.
[5]
The object of the IMA provisions in the RTW Act is to provide a process by which the Tribunal can obtain the medical evidence it needs to determine the issues before it.
[6]
In this matter, both of the compensable impairment assessments - one for each knee - are impugned as non-compliant. The fact that each assessment involves a two stage process - overall impairment, then deductibility for previous impairment - does not change that.
[7]
I consider it would offend the "one assessment" principle if the two stages in the assessment were undertaken by different practitioners. This situation is quite different from that addressed in Adom, where there were potentially a number of distinct assessments, with only an aspect of one assessment impugned.
[8]
In those circumstances, once his assessment has been determined to be non-compliant, it is not appropriate to rely upon some aspects of Dr D'Onise's assessments but not others. The entirety of the knee assessments needs to be considered by an IMA. There should only be one mind assessing the compensable impairment by reference to the total impairment and the pre-existing impairment.[3]
[9]
The applicant contended that the question of deductibility in that case involved a physical injury where the deductibility was inextricably linked to the overall impairment assessment. It was submitted that the same considerations do not apply in respect of a psychological injury.
For its part, the respondent contended that insofar as the decision in Eves was based upon the one assessment principle, that principle no longer applied by virtue of the amendments to s 22(10) of the RTW Act.
Contrary to the submissions made by the parties, I do consider my reasoning in Eves to be apposite to the facts of this case.
Firstly, the question of deductibility is an inextricable part of the assessment process of whole person impairment for psychological injury. So much is evident by a brief consideration of the IAG. Clause 16.8 of the IAG sets out a flowchart of the assessment framework culminating in the "final rating (deduct pre-existing or non-relevant impairment)". Thus it is apparent that the question of deduction is an inextricable component to the overall assessment.
In relation to the respondent's contention that the one assessment principle no longer applies, I consider that to be erroneous. The original expression of the one assessment principle was made by Gilchrist DPJ in Abraham v Return to Work SA.[4] At [36]-[42], his Honour made it clear that the source of that principle was not s 22(10) of the RTW Act, but rather the wording of section 58(9) of the RTW Act and clause 17 of the IAG, neither of which have been the subject of amendment.
Thus I consider the one assessment principle continues to apply to PIA.
To have one assessor determine the overall impairment for a psychological condition and another assessor to determine the level of any deduction therefrom for pre-existing or non-relevant impairments, would offend the one assessment principle.
Accordingly, once it has been conceded that the PIA was non-compliant with the IAG, where only one impairment is being considered the inevitable result is that the entire assessment must be re-undertaken to enable the court to determine the compensable whole person impairment.
Both parties sought the opportunity to consider their position once I had made a ruling in relation to this issue. Accordingly, I give the parties liberty to apply before making any final or further orders.