Quintiliani-Johns v Secretary, Department of Education (NSWSC 2024)

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Key Takeaways

It is imperative that an IME, who is briefed to examine a worker to assess the worker’s WPI for a psychological injury, is provided with as much detail as possible about the worker’s pre-existing psychological condition(s) (if applicable) in order for the IME to make a deduction for the pre-existing condition(s) pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Legislation

Section 323 of the 1998 Act includes:

(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 … 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 …

(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.

Brief Facts

The worker commenced proceedings in the PIC claiming lump sum compensation for her accepted work-related psychological injury.

The worker was referred to and examined by a medical assessor (MA) who assessed the worker with an overall 9% WPI. Against that overall assessment, the MA deducted 50% for the worker’s pre-existing psychological condition (bipolar disorder type 1) leaving the worker with a work-related 4.5% WPI which was rounded up to a non-compensable 5% WPI.

In reference to the provisions in s323(2) of the 1998 Act, the MA concluded that determining the extent of the deduction was difficult or costly thus suggesting a 10% deduction would be appropriate however the MA ended up making a 50% deduction because he took the view a 10% deduction would be at odds with the evidence.

The worker appealed the MAC on numerous grounds including that the deduction for the worker’s pre-existing condition should have been 10% on the basis that the extent of the deduction was difficult or costly to determine and a 10% deduction was consistent with evidence.

The Medical Appeal Panel (MAP) dismissed the worker’s MAC appeal.

The worker applied to the Supreme Court for a judicial review of the MAP’s decision. One of her grounds of appeal was that the MA misapplied s323 of the 1998 Act and the Guidelines and that a correct application of that section and the Guidelines would have resulted in a deduction of 10%.

Decision

In her decision, Justice Mitchelmore:

• noted that guidelines have been made with respect to calculating deductions for pre-injury conditions (the current version being the New South Wales Guidelines for the Evaluation of Permanent Impairment re-issued by SIRA on 1 March 2021 (the Guidelines).
• noted that, with respect to deductions for physical injuries, the Guidelines have adopted the guidelines issued by the American Medical Association. However, the Guidelines include a separate chapter (chapter 11) with respect to deductions for psychological injuries.
• explained the appropriate steps for assessing WPI for a psychological injury (via chapter 11 of the Guidelines) to be as follows:
  • calculate the worker’s level of WPI for any pre-existing condition by using the PIRS method (the same method used to calculate the worker’s overall WPI). If it is too difficult or costly to determine the level of pre-existing WPI, then it is to be assumed the deduction is 10% unless that assumption is at odds with the evidence.
  • calculate the worker’s current/overall level of WPI.
  • Subtract the worker’s level of pre-existing WPI from the worker’s current/overall level of WPI to obtain the worker’s level of work-related WPI.

Ultimately, Justice Mitchelmore quashed the MAP’s decision because the MAP ‘adopted the same erroneous approach as the MA, focusing on the contribution to the current injury by the pre-existing bipolar disorder’. Neither the MA nor the MAP assessed the worker’s pre-existing level of WPI using the PIRS method. ‘In asking itself the wrong question in this regard, the Appeal Panel made a jurisdictional error; it may also be characterised [as] an error of law on the face of the record’.

Implications

A worker must have been working in order to suffer a work-related psychological injury. It flows from that obvious statement that a retrospective assessment of a worker’s level of WPI (using the PIRS method) for the period immediately before the worker suffered the work-related injury is likely to be nominal even if the worker had a significant pre-existing psychological condition.

It flows from the above that it will more often than not be the case that retrospectively assessing a worker’s pre-existing level of WPI will be too difficult or costly to determine in which case the assessor is to assume the deduction is 10% unless that assumption is at odds with the evidence.

The Quintiliani-Johns decision highlights the importance of thoroughly briefing an IME about a worker’s pre-existing issues. The IME needs to be made aware of the correct method for determining a worker’s level of pre-existing WPI including the role of the s323(2) provisions specifically that ‘If the extent of a deduction under this section will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed … that the deduction … is 10% of the impairment’. It is also of the utmost importance to bring to the IME’s attention to the fact that he/she does not need to accept the ‘assumed’ 10% deduction if that ‘assumption is at odds with the available evidence’.