Citation: Mark v Secretary, Department of Communities and Justice  NSWSC 306 and  NSW 616
The Supreme Court has held that when determining a Worker’s permanent impairment for lump sum compensation, a deduction can be made under section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 (WIMA) if that Worker has an asymptomatic pre-existing psychological condition.
Notably, this contradicts Guideline 11.10 of the Workers Compensation Guidelines which does which does not permit a deduction to be made from the assessment of impairment where an asymptomatic pre-existing injury or condition contributes to the degree of permanent impairment assessed.
It was ultimately decided that Guideline 11.10 of the Workers Compensation Guidelines is inconsistent with section 323(1) of the WIMA and invalid in terms of considering any contribution made to the impairment by an asymptomatic pre-existing condition.
The Plaintiff, Marks, brought a claim under section 66 of the Workers Compensation Act 1987 (NSW) (“WCA”) for lump sum compensation against the First Defendant, Secretary, Department of Communities and Justice for his deemed psychological injury sustained in the course of his employment.
The Plaintiff had been working in the Office of the NSW Sheriff since 2015 and claimed to be subjected to harassing behaviour and vilification which ultimately led to him developing a psychological injury, namely, Post-Traumatic Stress Disorder (PTSD).
After initially denying liability, the First Defendant accepted his claim on 2 October 2018.
In accordance with section 323 of the WIMA, the Plaintiff was assessed by an Accredited Medical Specialist (AMS) to determine his degree of whole person impairment (WPI).
The Plaintiff provided two statements, which noted that he had worked as a Firefighter for Fire Rescue New South Wales prior to his employment with the First Defendant. The statement also disclosed that he had previously experienced PTSD, however, by reason of a confidentiality agreement, he was precluded from disclosing the details which led to this injury for his employer at the time.
On 24 October 2019, AMS Dr Wasim Shaikh provided a medical assessment certificate (MAC) diagnosing the Plaintiff with Major Depressive Disorder. In applying a 2% uplift for treatment, the doctor found that the Applicant had a total of 21% WPI.
Notably, Dr Shaikh declined to make any deduction under section 232(1) of the WIMA for a pre-existing condition, stating:
“Whilst there is evidence of past PTSD, his mental health was seemingly stable prior to the nominated work issue.” 
The First Defendant sought a referral for a further medical assessment on the basis that another employer and insurer failed to comply with directions to produce documents from a previous claim for compensation for a psychological injury.
Additional material was provided to Dr Shaikh which indicated that the Plaintiff had made a similar claim for workers compensation in 2011 whilst he was employed by the New South Wales Police Force.
The basis for this claim was that the Plaintiff had been, or perceived to have been, threatened by another police officer with a gun. A previous AMS, Dr Lana Kossof, diagnosed the Plaintiff with PTSD and assessed him at 22% WPI. Dr Kossof was of the opinion that his PTSD condition was chronic and unlikely to significantly improve.
The Plaintiff provided yet another statement on 31 January 2020, alleging that he had made a full recovery from his PTSD prior to commencing employment with the First Defendant.
The First Defendant contended that a deduction as per section 323(1) of the WIMA ought to be made to account for his earlier condition.
Section 323(1) of the WIMA provides:
(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 (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
On 14 April 2020, Dr Shaikh issued his second MAC maintaining his original opinion. He did not believe that there was evidence to suggest that the Plaintiff was receiving treatment for his PTSD nor that he had experienced anything to provoke it.
As per section 327 of the WIMA, the First Defendant appealed the MAC on the grounds that it contained a demonstrable error. These errors were particularised in the following submissions provided to the Appeal Panel:
- The failure to engage with the historical medical evidence, including the medical assessment certificate of Dr Lana Kossff, AMS, dated 17 January 2001
- Failure to obtain a detailed history of the worker’s symptomatology and level of functioning following his PTSD injury… so as to delineate, when assessing impairment using the PIRS, between disabilities flowing from the earlier injury and those alleged to arise due to the injury the subject of this claim; and
- Failure to have regard to the evidence of the worker’s significant pre-existing psychiatric condition when considering the application of s323 of the WIMA.
The Appeal Panel was of the view that there was a demonstrable error in the AMS’ assessment, namely, the doctor failed to consider the documentation relevant to a previous diagnosis of PTSD. Further, the Appeal Panel noted that the AMS applied the “wrong test” by considering the fact that the Plaintiff was asymptomatic prior to the injury in question was “determinative” of whether a section 323(1) deduction should be made.
The Appeal Panel revoked the MAC and assessed the Plaintiff at 19% WPI, which did not adopt the 2% uplift for treatment. A deduction of 25% representing the proportion of the permanent impairment attributable to his previous condition was applied, amounting to an assessment of 14% WPI.
The Plaintiff sought a judicial review of the Appeal Panel’s finding. The matter was heard in the Supreme Court before Simpson AJ.
Regarding the inconsistency between section 323(1) of the WIMA and Guideline 11.10 of the Workers Compensation Guidelines, Simpson AJ confirms that it is a matter of assessing whether any proportion of the impairment assessed is resulting from a pre-existing condition.
Simpson AJ highlights that the Plaintiff’s submission did not address whether a pre-existing condition, regardless of whether it is asymptomatic at the time of injury with respect to the assessment being undertaken, contributed to the degree of impairment.
He notes that section 323(1) of WIMA must be constructed by requiring a deduction from the assessment of degree of permanent impairment that is due to a previous injury or pre-existing condition, albeit the Plaintiff is symptomatic at the time of injury. Guideline 11.10 of the Workers Compensation Guidelines do not allow for deductions to be made for the assessment of impairment for asymptomatic conditions. Therefore, 11.10 of the Workers Compensation Guidelines is inconsistent with section 323(1) of WIMA.
The Plaintiff argued that the Workers Compensation Guidelines should prevail over the legislation, to which Simpson AJ disagreed and found that there was no authority to propose that the Workers Compensation Guidelines take precedence over the legislation.
He concludes that Guideline 11.10 of the Workers Compensation Guidelines was inconsistent with section 323(1) of the WIMA and therefore invalid.
Lesson for employers
In matters where a worker has a pre-existing injury or condition that is asymptomatic and subsequently develops another injury, the earlier injury may be deducted pursuant to s323(1) WIMA as part of the process of assessing the worker’s permanent impairment.
This confirms that the medical evidence must be examined objectively, notwithstanding the workers own opinion that they have recovered from a previous injury. Requests for clinical records should always be made to ascertain a full medical history.
 Mark v Secretary, Department of Communities and Justice  NSWSC 306 .
 Ibid 24.
 Workplace Injury Management and Workers Compensation Act  s 323(1).
 Above n 1, 29.
 Ibid, 33.
 Mark v Secretary, Department of Communities and Justice  NSW 616, 15.
 Ibid 22.