Affinity Health Pty Ltd v Talbut
[2024] NSWPICMP 459
•12 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Affinity Health Pty Ltd v Talbut [2024] NSWPICMP 459 |
| APPELLANT: | Affinity Health Pty Ltd |
| RESPONDENT: | Keith Talbut |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 12 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment with respect to psychological injury; appellant employer alleged the assessment was made on the basis of incorrect criteria and demonstrable error in the making of assessments under three of the psychiatric impairment rating scale categories because of an inadequate path of reasoning; Held – the Medical Appeal Panel found error and a re-examination was considered necessary; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 November 2023 Affinity Health Pty Ltd, the employer (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 October 2023.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria; and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that the worker undergo a re-examination. However, as a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 22 May 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 2 January 2020 - deemed
· Body parts/systems referred: Psychiatric/psychological disorder
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter,
page and paragraph number in NSW workers compensation guidelinesChapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. Psychological Injury
2/1/20 - deemed
Chapter 11
Guidelines
11.1-11.3
11.4-11.6
Guidelines
11.11,11.12
Table
:11.1,11.2,11.3,11.
5,11.5,11.6
19%
0%
19%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
19%
The assessment was based on his assessment under the Permanent Impairment Ratings Scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
Name
Keith Talbut
Claim reference number (if known)
W5843/23
DOB
xxxx
Age at time of injury
57 years
Date of Injury
2 January 2020 - deemed
Occupation at time of injury
Mental Health Registered Nurse
Date of Assessment
13 October 2023
Marital Status before injury
Married
Psychiatric diagnoses
1.PTSD
2.MDD
3.
4.
Psychiatric treatment
Antidepressants, psychology sessions
GP, Psychiatrist and Psychologist regular follow-ups
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Mr Talbut struggles on a daily basis and doesn’t think about self-care. His wife prompts him to look after self, though he showers every day, may not shave until prompted, may change into same stuff, feels there is no point in grooming. He used to enjoy cooking, but not now as he can’t get the same concentration level. He comforts eats, eats rubbish, has been putting on weight, and eats when he wants to eat. He looks after himself adequately and can manage a minimal level of hygiene.
Social and recreational activities
3
Mr Talbut avoids people, wife has a café and sometimes goes there, not going to club or pubs, not been to school functions, and not been to a marriage or party in a long time. He rarely goes out to such events, and mostly when prompted by his wife. He will not go out without his wife and is not actively involved, remains quiet and withdrawn.
Travel
2
Mr Talbut drives though it’s difficult to get out of house and reported anxiety. He is not patient to drive, drives to wife business which is close by, drives to kids school, but never driven out of town since Jan 2020.
Social functioning
2
Mr Talbut feels like a horrible father, disconnected, not playing his role as a father, got upset talking about this. He is very strict with kids now, and feels sorry for them. He reported tension and arguments with his wife but no periods of separation.
Concentration, persistence and pace
3
Mr Talbut reported poor concentration, unable to read, easily distracted, used to love reading and used to write for journals.
He is unable to read more than newspaper articles and ends up reading same page again and again. He finds it difficult to follow complex instructions , and his wife does most of the paperwork for his work cover.
Employability
5
Mr Talbut is not working and not studying, no capacity to work, and mostly spends time in bed.
Score
Median Class
2
2
2
3
3
5
2.5=3
Aggregate Score Impairment
Total
%
+
+
+
+
+
17
19 %
Pre-existing impairment= 0%
Effects of treatment = 0%
Final WPI = 19%”
The employer appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments he made under three of the PIRS categories, namely social and recreational activities, concentration, persistence and pace, and employability primarily because he has not considered the surveillance footage or the Procare report causing him to make errors as follows:
(a) In assessing a class 3 for social and recreation activities when he should have assessed a class 1 or 2,
(b) in assessing a class 3 for concentration, persistence and pace when he should have assessed a class 1 or 2, and
(c) in assessing class 5 for employability when he should have assessed no higher than class 3.
In summary, the respondent submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that it was not clear that the Medical Assessor had considered all of the evidence before him and the path of reasoning was inadequate. The Appeal Panel was satisfied as to error because the history taken by the Medical Assessor was inadequate and did not support an adequate path of reasoning of the assessments made under the PIRS categories of social and recreational activities, concentration, persistence and pace and employability. In these circumstances the Appeal Panel was satisfied as to error and considered a re-examination was necessary.
In these circumstances of a finding of error the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Nicholas Glozier was appointed to conduct the re-examination and he reported to the Appeal Panel as follows (emphasis in original):
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W5843/23 |
Appellant: | Affinity Health Pty Ltd |
Respondent: | Keith Talbut |
Date of Determination: | 22 May 2024 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 22 May 2024 |
1. The worker’s medical history, where it differs from previous records
Mr Talbut reported the same treatment as he did to the AMS. He sees a psychiatrist, Dr Saker, every few months. They have discussed TMS and also looked at the emerging repurposed medications for Post-Traumatic Stress Disorder. However he is unable to afford the latter and would not be able to attend the clinic regularly enough to do the former. He has not used cannabis oil for over a year because he could not afford it and it was not reimbursed. He is prescribed Duloxetine 90mg and Prazosin 8mg nocte, the latter of which has had some effect on reducing the frequency and severity of his nightmares. He continues in regular two-weekly therapy with his long-term psychologist Mr Granger. He described exposure-focused therapy, looking at management techniques for stress, arousal, triggering etc. Again they have considered EMDR but his attendance could not be guaranteed. He alternates between face-to-face treatments at Maitland and videolink, depending on his condition.
Two weeks ago he had a spinal nerve decompression. This was consequent to an L3-L5 spinal fusion in 2018 for a back injury and ongoing neuropathic pain. He said this has improved his pain somewhat. He continues to be quite limited in how far he can walk and other lower body physical activities but it does not affect his upper body. He takes half an Amitriptyline 25mg a few times a week if the pain is bad and he cannot sleep. He uses heat pack and ice but otherwise reports no analgesia. He does not have any physiotherapy, hydrotherapy or other interventions. He reports no chronic medical conditions, sleep apnoea or any medical interventions. He does not use any complementary treatments. He says he has some mindfulness tapes but does little to address and improve his wellbeing due to motivation and anergia. He will occasionally get the dog out briefly for a walk. He says his diet is poor, often comfort-eating and reports a long-term weight gain such that he is now over 120kg. He does not microdose or use any other psychotropic medications. He is a teetotaller.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Talbut reported that there has been no change in his condition or symptoms. He continues to reside with his wife Kirsten and their four children, aged between 3 and 17. The eldest are at school and the youngest, George, goes to day care but when he does not, Kirsten at home. She continues to own the café but he says it is up for sale. She has staff who will open up the shop and maintain much of the running of it. He has a brother in Morisset who he occasionally sees but otherwise has no family contact. He reports that his friends have all fallen away over the years after him having been well-engaged in the community and at work, that no-one contacts him, and he does not contact others. He says he does not trust anybody, almost even his clinicians, and remains highly suspicious, which he says was compounded by the surveillance.
He reports a variable sleep pattern depending upon his mental state, e.g. at times going to bed at 7pm or 8pm or at other times much later at 2am, proportional to his arousal and mood. He wakes 2-3 nights a week with a nightmare, panicky, bolt upright, sweaty and generally cannot return to sleep. He will then get up and have a cup of tea or may go to the garden. As such, several nights of the week he has a significantly reduced duration. The kids get up at 6am and Kirsten is up at 5am. She does most of the childcare and will only go to work after the kids are at school and daycare. At times he is able to take them to school but the eldest is now able to drive. He can take Joe to soccer practice at times but may also rely upon Phoebe. When driving he said he is ‘a nervous wreck.’ Once he is in the car he says it is not too bad but he finds it difficult to get out of the house, and so leaves through the back because the light at the front somehow ‘disturbs me.’ He does not go to the café almost at all now primarily due to his difficulty leaving the home, distrust of people, intolerance of significant numbers of people and avoidance of potentially being triggered into panic. If Kirsten is not around he does little at home apart from some basic chores. At times he is so anergic he does not even do these, which leads to tension with his wife who he says has been tolerant over the years. Due to his anger and irritability she reports that the children can be scared of him and he feels disconnected from them and protecting them from his condition and moods.
The family have not been on any holidays for a considerable period of time, although Kirsten will occasionally take them to the beach during the holidays. He did nothing for his wife’s birthday yesterday but can at times go to family dinners or in the café with the family present. If these are crowded he finds it hard, and at times ‘escapes,’ leaving the place and sits in the car. He can go to the local shops. He has tried larger centres with various success. However he had a major panic attack in February this year where he saw police officers getting out of the car and was unable even to leave his car. Police in all situations, and even to a large extent on media, will cause arousal, at times panic, and he avoids them. The same is also true of places with significant numbers of people.
He says he really does not use his phone or computers and had to be helped to use the Teams app by his wife. He does not game or use social media and says that Kirsten has taken over the paperwork and budgeting. He gets frustrated and cannot focus on this for significant periods of time, losing track. He reports no productive function apart from the limited involvement within the family.
He is very wary of possible further surveillance with a high level of suspicion that it may have occurred again. He is ‘livid about what happened’ with his wife, family and himself being followed for seven days. He said that for most of that week, ‘6 of the 7 days’, he did not leave the house or even bed at times. He is aware he was filmed on the one day that he was out. He said that his wife had asked him to go and see a neighbour who had been diagnosed with cancer due to his nursing background, and he dropped in at the café on the way. He said he was filmed giving a glass of water to his next-door-neighbour who was a client at the time and whom he can feel comfortable with. He said otherwise throughout that week there was no function or him leaving the home. He reported that when his wife started the business they used their joint bank account which is why his name is on some of the documentation and that there were times when he was at the café some years ago, this is now not the case, and he rarely, if ever, goes there. It is a small community so people would know that it is owned by his wife. He says that she was the one who was posting and he has no social media presence. I note in the surveillance report this is the only indication of any online activity.
3. Findings on clinical examination
Mr Talbut was casually-dressed, unshaven and slightly unkempt. He was attentive and addressed the issues within the appeal and was obviously aware of these and what had happened. Although he had a restricted affect, he displayed no significant anxiety nor any irritability throughout although suggested he was controlling this. At times he was faltering in his responses and at times seemed to lose track. There was no formal thought disorder. He reports a pervasive anger, dysphoria and anhedonia, not even enjoying being with his children whom he feels disconnected from. He does not feel sad per se but rather more numb and unable to experience positive affect or emotional bonds with his children. He described a reduced motivation, degree of anergia, and at times short sleep duration with some onset insomnia. He has regular nocturnal panics of traumatic memories and can experience these during the day. These are all police-related or due to his intolerance of crowds. He avoids police-related triggers which can precipitate high levels of arousal and panic attacks with full physical features but no dissociation. He is somewhat hypervigilant and has developed a sense of distrust, paranoid and estrangement. He describes levels of frustration that interfere with his ability to focus or complete tasks for a long time. He feels as though he is losing hope and really cannot see any future for himself or things changing: ‘I feel dead although I know I’m not.’
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Mr Talbut provided a very similar description of his symptoms and function as that to the MA. He is aware of the surveillance, had addressed this in a statement, and continued to address this in the same consistent fashion. He explained his attendance at the café for one day, providing a glass of water to a table where his neighbours were sat and interacting with them. He also acknowledged he can go to the local shops, has tried shopping centres and can drive on his own. He reported this can be variable and noted the number of days where there was no observable function. The only recent contemporaneous treating clinician documentation is that letter from Mr Granger dated 3 July 2023. This confirms the very limited attendance face-to-face even at Maitland, with treatment primarily through telehealth due to the avoidance and limitations. He confirms the symptoms reported by Mr Talbut as far as they are reported.
Mr Talbut continues to meet the diagnostic criteria for a Post-Traumatic Stress Disorder with significant symptoms in all four symptom domains, as well as having experienced Criterion A events and having associated distress and impairment. His mood symptoms would best be subsumed under this rather than necessarily constituting a separate disorder.
Classes:
Social and recreational activities
The activities revealed in the surveillance of attendance at the café on 1 day out of 6, and the ability to interact with someone, does not necessarily indicate significant social activities. He has explained that this was his neighbour. Otherwise he reports only going out with his family for family events, at times not doing these, not going on holiday and withdrawal from many other activities, both due to his psychological and physical state. He will at times take his son to training but is not involved in this in any way.
Concentration, persistence and pace
He reports becoming easily frustrated with paperwork, such that he loses focus and is distractible. He finds it difficult to read or even watch television for periods of time. There were lapses and faltering focus within the assessment although he was able to recall and address aspects of the surveillance.
He reports v Employability
ariable function day-to-day with many days of having almost no function and even when up and out of bed doing little around the home it causes tension. Beyond taking his children to school, some shopping and intermittent attendance at his clinicians, he reports not leaving the home nor any significant capacity to use IT working from home.
I recommend to the Panel in its considerations that the assessment confirms the classes assigned by the MA.
[IMAGE UNABLE TO RENDER]
Signed: Professor Nicholas Glozier
Date: 22 May 2024”
The Appeal Panel considers that the examination undertaken by Medical Assessor Nicholas Glozier was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Nicholas Glozier has provided in his report to the Appeal Panel, including the history as to the respondent’s ability to function in the PIRS categories that have been challenged on appeal, namely social and recreational activities, concentration, persistence and pace and employability. The Appeal Panel notes that Medical Assessor Nicholas Glozier had clear regard to the other evidence before him, has not relied on self -report alone and has used his clinical expertise on the day of assessment to make recommendations to the Appeal Panel about the assessments of the contested PIRS categories. The Appeal Panel also notes Medical Assessor Nicholas Glozier’s findings on clinical examination of the respondent and his diagnosis made after clinical examination of the respondent, namely that the respondent worker continues to meet the diagnostic criteria for a post-traumatic stress disorder with significant symptoms in all four symptom domains, as well as having experienced Criterion A events and having associated distress and impairment.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5
Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The Appeal Panel adopts the findings of Medical Assessor Glozier on re-examination as follows:
“The activities revealed in the surveillance of attendance at the café on 1 day out of 6, and the ability to interact with someone, does not necessarily indicate significant social activities. He has explained that this was his neighbour. Otherwise he reports only going out with his family for family events, at times not doing these, not going on holiday and withdrawal from many other activities, both due to his psychological and physical state. He will at times take his son to training but is not involved in this in any way.”
The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or class 3 for social and recreational activities.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| Class 2 | Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. |
| Class 3 | Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
The Appeal Panel adopts the findings of Medical Assessor Glozier on re-examination as follows:
“He reports becoming easily frustrated with paperwork, such that he loses focus and is distractible. He finds it difficult to read or even watch television for periods of time. There were lapses and faltering focus within the assessment although he was able to recall and address aspects of the surveillance. “
The Appeal Panel considers that based on these findings, the best fit is a moderate impairment or Class 3 for concentration, persistence and pace.
In respect of Employability, Table 11.6 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job. |
| Class 2 | Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
| Class 4 | Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. |
| Class 5 | Totally impaired: Cannot work at all. |
The Appeal Panel adopts the findings of Medical Assessor Glozier on re-examination as follows:
“He reports variable function day-to-day with many days of having almost no function and even when up and out of bed doing little around the home it causes tension. Beyond taking his children to school, some shopping and intermittent attendance at his clinicians, he reports not leaving the home nor any significant capacity to use IT working from home.”
The Appeal Panel considers that the best fit is totally impaired at class 5.
What this means is that the classes assessed by the Appeal Panel are in accordance with the classes assessed by the Medical Assessor for the contested PIRS categories of Social and Recreational activities, concentration, persistence and pace and employability. This means that the MAC will be confirmed.
For these reasons, the Appeal Panel has determined that the MAC issued on
26 October 2023 should be confirmed.
0