Double Dipping? Primary vs Secondary Psych Injuries

Shrestha v RSL Care RDNS Limited [2020] NSWWCCMA 158

The Appellant claimed lump sum compensation for 26% WPI in respect of a psychological injury as a result of an assault at work on 7 March 2019.

The Respondent disputed the claim and the matter was heard before Arbitrator Isaksen. Arbitrator Isaksen determined that the Appellant had suffered both a primary psychological injury (PTSD) and secondary psychological injury (Major Depressive Disorder) as a result of the assault at work. The Arbitrator expressed the view that most of the Appellant’s symptoms resulted from his secondary psychological injury. The matter was referred to an AMS to assess permanent impairment in respect of the primary psychological injury.

Dr Roberts (AMS) issued a Medical Assessment Certificate (MAC) on 28 May 2020 which assessed 0% WPI as a result of the primary psychological injury. The AMS considered the Appellant suffered a primary psychological injury in the form of an adjustment disorder and some months following the assault, he developed a secondary psychological injury in the form of a major depressive disorder. The AMS found the symptoms of the secondary psychological injury subsumed those of the primary psychological disorder. He considered the primary psychological injury did not contribute to the Appellant’s WPI.

Grounds of Appeal

The Appellant lodged an Appeal arguing that the AMS erred in:

  • Failing to assess total impairment and then make a deduction on account of the secondary psychological injury;
  • Finding that symptoms of primary psychological injury were subsumed by the secondary psychological injury;
  • His application of the Psychiatric Impairment Rating Scale (PIRS).

Medical Appeal Panel Decision

In respect of Ground 1, the MAP noted that the Supreme Court in Mercy Connect Limited v Kiely [2018] found that:

“the statutory scheme creates a two-step approach in assessing the degree of WPI for psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted…leaving the primary psychological injury remaining”

The AMS failed to calculate the aggregate WPI attributable to the primary and secondary psychological injury and make a deduction for the latter. The MAP determined that the omission demonstrated error on the face of the certificate.

The MAP upheld Ground 2 of the Appeal, noting that the symptoms of the Adjustment Disorder had persisted despite the onset of Major Depressive Disorder. The AMS had a duty to identify what symptoms of Adjustment Disorder persisted following the onset Major Depressive Disorder and to assess whether they contributed to the overall impairment. The MAP found that the AMS did not undertake this task and by doing so failed to give adequate reasons as to why the symptoms of the primary psychological injury were subsumed by the secondary psychological injury.

Grounds 3 and 4 were also upheld, with the MAP stating that it was not possible to reconcile the finding expressed on the PIRS form. The PIRS form found that the impairment resulting from “Adjustment Disorder with Mixed Anxiety and Depress (sic) mood” was permanent, with the assessment in respect of each of the six rating scales that there was “no ongoing impairment attributable to this condition”. This contradiction demonstrated an error of reasoning. The AMS also failed to apply the criteria for each scale to the impairment resulting from both the primary and secondary psychological injury, in accordance with the principle in Kiely.

The Appellant was referred to Dr Morris of the MAP who diagnosed Major Depressive Disorder with Anxious Distress with melancholic features. Dr Morris considered this condition was clearly undertreated. Dr Morris agreed with the AMS in that it was likely that the Appellant had an Adjustment Disorder between the period of March 2018 and September 2018 and had since then developed Major Depressive Disorder which was secondary to the effects of the physical injuries and pain he was experiencing. Dr Morris obtained a history of the Appellant’s functioning in the period between March and September 2018 which included full-time work with decreased concentration affecting his work performance, decreased involvement in household chores and social and recreational activities (due to his pain), plus a strained marital relationship.

Dr Morris considered the Appellant’s previous symptoms of Adjustment Disorder (March to September 2018) had been greatly increased by the severity of his symptoms of Major Depressive Disorder, such that it was impossible to discriminate between them with precision. Having regard to the Appellant’s psychological functioning prior to the onset of symptoms of the secondary psychological disorder, Dr Morris considered that about 90% of the Appellant’s current symptoms resulted from his secondary psychological disorder.

Using the PIRS, Dr Morris assessed there to be a 41% WPI resulting from a combination of primary and secondary psychological injuries. He considered that 36.9% WPI resulted from the Appellant’s secondary psychological injury. Overall, he assessed 4% WPI (rounded) as a result of the primary psychological injury. Dr Morris considered that if the Appellant had been assessed prior to the onset of symptoms resulting from his secondary psychiatric disorder his WPI assessment would have been similar to the one he provided.

The MAP adopted the assessment of Dr Morris and issued a new MAC for 4% WPI.

Under Section 65A of the Workers Compensation Act 1987 the Appellant was not entitled to lump sum compensation as his degree of impairment was not at least 15% WPI.

Implications

This decision confirms that when a primary and secondary psychological injury are suffered as a result of the same event an assessor must initially calculate the entire degree of psychological injury resulting from both the primary and secondary injury. The secondary psychological injury must then be deducted in accordance with Section 65A of the Workers Compensation Act 1987 which states that compensation is not payable for a secondary psychological injury. Failure to assess the entire degree of psychological injury and apply the deduction results in an appealable error.

In undertaking this exercise, the assessor should have regard to any evidence of the worker’s functioning prior to the onset of the secondary psychological condition.

Should you have any questions about a particular workers compensation mater, please telephone our workers compensation team on either (02) 4929 9333 or (02) 8297 5900.