Section 323 deductions and WPI thresholds

  • Newsletter Article
  • Published 18.05.2021
State of New South Wales (Hunter New England Local Health District) v Fred (NSWPICMP 2021)
LINK TO DECISION

Key Takeaways

A MAP has determined that an AMS has erred in failing to apply a deduction for pre-existing condition under s323 of the 1998 Act. A deduction of 1/10th was subsequently applied, reducing overall assessment of WPI from 22% to 20%. 

This decision highlights the importance of obtaining a complete clinical history when a worker makes a WPI claim, as it may ultimately influence whether the worker reaches a relevant threshold (i.e. 11%, 15% or 21%WPI). 

Brief Facts 

The worker developed a primary psychological injury in the course of her employment as a midwife at John Hunter Hospital with the deemed date of injury being 26 September 2017. 

On 9 December 2020, Dr Ash Takyar (the AMS) examined the worker and assessed 22%WPI in respect of her primary psychological injury. The AMS took a history of prior non-work related depression, dating back to around 2000. The worker was on medication for around 10 years and consulted a psychologist intermittently. Notwithstanding the worker’s prior depression, the AMS did not apply any deduction under s323 of the 1998 Act. 

On 4 February 2021, the State of NSW (Hunter New England Local Health District) (the Appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The Appellant submitted that despite recording a history of significant pre-existing psychological symptomology, the AMS failed to apply a deduction under s323 of the 1998 Act. The Appellant submitted that meant that the assessment was made on the basis of incorrect criteria and/or the MAC contained a demonstrable error. 

The worker prepared submissions in response indicating that the Appellant had not pointed to any evidence of symptomology which would support or justify or require a deduction under s323 or how any pre-existing condition would make a difference to the outcome in terms of degree of impairment resulting from the work injury. The Appellant did not provide any evidence that any pre-existing condition affected functioning prior to the work injury. 

The Registry was satisfied that at least one of the grounds of appeal under s327(3)(d) was capable of being made out, therefore referring the appeal to a Medical Appeal Panel (the MAP). 

Determination of Appeal Panel 

The MAP provided a useful summary of authorities relevant to deductions under s323 of the 1998 Act. The MAP drew particular attention to the finding of Garling J in Pereira v Siemens Ltd (NSWSC 2015), which details the steps to be taken by a decision maker in respect of s323, as follows: 

  • a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s323; 
  • assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person impairment; and 
  • whether the worker had any previous injury, or any pre-existing condition or abnormality, which has caused or contributed to the assessed whole person impairment. This requires an enquiry into whether there are any other causes of the whole person impairment which reflect a difference in the degree of impairment (see Ryder v Sundance Bakehouse (NSWSC 2015)

The MAP considered the worker’s own reporting of prior symptoms, as well as all medical evidence detailing her clinical history, before stating [at 41-42]: 

The Appeal Panel was satisfied that [the worker] had a pre-existing condition, namely, depression and anxiety and that this condition did not fully resolve. [The worker] had two prior episodes of significant psychological illness or conditions before the work injury which related to events between April 2015 and 26 September 2017. Since the two prior episodes of psychological illness [the worker] had to continue on Cipramil to help her manage symptoms of depression and anxiety and to prevent remissions. [The worker] also continued to see a psychologist regularly and said in her statement that when she moved to Newcastle, where she commenced employment with the appellant, she began to see Jenifer Thompson once every couple of months. 

In circumstances where [the worker] clearly had prior episodes of depression and anxiety and continued to take Cipramil and saw a psychologist regularly, the Appeal Panel considered that the AMS failed to provide adequate reasons for concluding that no proportion of the current WPI due to a pre-existing condition.
 

The MAP applied a 1/10th deduction under s323, thus reducing the worker’s assessment from 22%WPI to 20%WPI.

Implications

This decision highlights the importance of obtaining a complete clinical history when a worker makes a WPI claim. This can be done by obtaining a complete copy of the clinical records of all treating doctors, as well as direct questioning to the current treating doctor regarding a worker’s prior history. 

The decision also highlights the importance of thoroughly reviewing MAC’s to consider whether adequate consideration has been given to any pre-existing symptomology. As in this case, it may be the difference between assessments of 21% or above, which carry significant statutory rights.   

Craig Bell

Partner

P: 02 8257 5737

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Sean Patterson

Senior Associate

P: 02 8257 5753

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