Pre-existing Conditions – How they can impact the assessment of permanent impairment

Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334

The Employer sought a judicial review of the Medical Appeal Panel (MAP) decision under Section 69 of the Supreme Court Act 1970 (NSW).

Background

The Worker was employed as a Corrections Officer for the Department of Communities and Justice. In January 2018 she witnessed an armed hold-up while she was eating in a restaurant. She sought medical treatment following that incident and was certified as being unfit for work for three months. She claimed that, when she returned to work, she had a significant increase in her workload and her manager was dismissive of her complaints surrounding her workload. On 15 June 2018, she ceased work, alleging that she had suffered a psychological injury as a result of an excessive workload, bullying and harassment. She lodged a claim for workers compensation in relation to her perception that she had been mistreated at work.

History of Litigation

The Worker filed an ARD claiming lump sum compensation and weekly benefits. By consent, the lump sum claim was referred to a Medical Assessor (MA). Relevantly, the Employer argued that there should be a deduction for any pre-existing condition resulting from the armed hold-up she witnessed but the Employer’s evidence did not give any such deduction.

The MA assessed her as having 17% WPI. The MA recorded a history which differed from that recorded by other assessors. In particular, he recorded that the bullying and harassment pre-dated the armed hold-up. The MA made mention of the hold-up experience, however, did not mention the symptoms that followed this incident. He made no deduction under Section 323 of the 1998 Act, as he noted that there was “no deductible proportion”.

The Employer lodged an Appeal against the Medical Assessment Certificate (MAC) due to failure to make a deduction under Section 323 of the 1998 Act. The MAP determined that the MA failed to consider whether the incident at the restaurant materially contributed to the Worker’s impairment and did not provide reasons for his decision. The MAP concluded that it was difficult to determine the pre-existing impairment using the PIRS assessment and provided a 1/10^th deduction (2% WPI). A new MAC was issued and this reduced the assessment from 17% WPI to 15% WPI.

Supreme Court Review

The Employer lodged an Application for Judicial Review of the MAP decision pursuant to Section 69 of the Supreme Court Act 1970 (NSW). The Employer alleged that the MAP had erred in its deduction under Section 323. In particular, the Employer alleged that the MAP had fallen into error when it attempted to assess the impairment for the non-work injury under the Psychiatric Impairment Rating Scale (PIRS) rather than determining what proportion of the current impairment was related to that incident.

Determination

The Court confirmed that a conclusion reached by a MA or MAP must normally be reached on the evidence presented concerning the actual consequences of the earlier and later injuries (unless the assumption provided for in Section 323(2) applies).

The Court confirmed that, when considering if a workplace injury was caused by an exacerbation or acceleration of a pre-existing condition, the assessor must consider: –

1. Whether the pre-existing condition contributed to the impairment; and
2. If it did, what proportion of the impairment was due to the pre-existing condition.

The Court held that the MAP did not determine what proportion of the Worker’s pre-existing PTSD condition contributed to her impairment. The MAP did not focus on the proportion of the Worker’s impairment which was due to her PTSD, but rather on whether the impairment produced by the PTSD could itself be measured. This constituted a jurisdictional error.

Conclusion

The Court set aside the MAP decision and remitted the matter to the PIC for re-determination.

Implications

This decision highlights that when giving a deduction under Section 323 for pre-existing injuries, assessors are to focus not on whether the pre-existing injury/condition would lead to an assessable impairment, but instead on whether any of the current impairment is due to the pre-existing condition. In psychological injury cases, this means the assessor is not required to apply the PIRS to the pre-existing condition. Instead they are required to undertake a PIRS assessment based on current functioning, and then consider whether any proportion of that impairment was caused by the pre-existing condition.

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