Alder v Buckland Convalescent Hospital
[2023] NSWPICMP 191
•8 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Alder v Buckland Convalescent Hospital [2023] NSWPICMP 191 |
| APPELLANT: | Megan Alder |
| RESPONDENT: | Buckland Convalescent Hospital |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 8 May 2023 |
| DATE OF AMENDMENT: | 13 June 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred with respect to his rating of appellant’s impairment in psychiatric impairment rating scale (PIRS) category of employability; whether MA erred by not making section 323 deduction; Held – the Medical Assessment Certificate (MAC) contains errors; the Appeal Panel has determined that the MAC issued on 22 November 2022 should be revoked a new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 December 2022 Megan Alder, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
10 November 2022.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as an administrative assistance at the Buckland Convalescent Hospital, the respondent, on 6 January 2017. Due to events that occurred within her workplace, she suffered a psychiatric injury. Her last date of employment was
4 September 2019.At the request of her solicitors, psychiatrist Dr Richa Rastogi examined the appellant on
23 November 2021 and in a report of that date to her solicitors Dr Rastogi advised she assessed the appellant had 22% whole person impairment (WPI) from her injury. Relying on that report, the appellant’s solicitors wrote to the respondent’s insurer on 20 December 2021 advising it that the appellant claimed compensation of $58,000 under s 66 of the Workers Compensation Act1987 (the 1987 Act) for 22% WPI from her injury.The respondent’s solicitors thereupon organised for the appellant to be examined on
28 March 2022 by psychiatrist Dr Graham George. In a report dated 1 April 2022 he advised the respondent’s solicitors that he assessed the appellant had 19% WPI from her injury but he considered that a proportion of her permanent impairment was due to a pre-existing condition, namely a persistent depressive disorder, and that he “would make a 10% deduction” on account of that, resulting in her permanent impairment from her injury to be 17% WPI.The respondent’s solicitors also requested Dr George advise on whether the appellant’s condition had reached maximum medical improvement and, with respect to that issue, the respondent’s solicitors drew to Dr George’s attention that Dr Rastogi had recommended extensive further treatment for the appellant including hospital stays. In response, Dr George advised, “I would only pass comment on this after psychometric evaluation has taken place”.
Following receipt of that report from Dr George, the insurer wrote to the appellant on
26 May 2022 advising her that based on Dr George’s report it considered the degree of her permanent impairment from her injury was not capable of being assessed currently because maximum medical improvement had not been reached. It is implicit from the content of that correspondence that it declined to meet the claim the appellant had made for compensation to be paid for her under s 66.The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim. The matter was referred by a delegate of the President to the Medical Assessor. He examined the appellant on 7 November 2022 and, as said, issued the MAC on 9 December 2022. In that he certified the appellant had 15% WPI from her injury.
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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient to enable it to determine the appeal.
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.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal relates to the Medical Assessor’s assessment of her impairment in the psychiatric impairment rating scale (PIRS) category of “employability”. The Appeal Panel notes too that prior to the appellant lodging her appeal, the respondent requested the Commission to refer the matter back to the Medical Assessor, under s 329(1) of the 1998 Act, so that he could reconsider whether any deduction ought to be made under s 323(1) of the 1998 Act for any proportion of the appellant’s permanent impairment that was due to a pre-existing condition. The delegate of the President who determined under s 327(4) of the 1998 Act that at least one of the grounds for appeal has been made out on the face of the application, and who constituted the Appeal Panel, also determined that the Appeal Panel should deal with the respondent’s request for reconsideration as “an appeal in itself”. The Appeal Panel shall abide that determination.
Relevant to the Medical Assessor’s assessment of the appellant’s impairment in the category of Employability, the Medical Assessor noted that the appellant had not worked since
4 March 2019. He also noted that the last time the appellant had driven, she almost drove through a red light. He noted that the appellant drives with a support person. The Medical Assessor noted that the appellant has poor concentration and gets distracted easily, but can force herself to pay attention with effort but needs to re-read things. The Medical Assessor noted that the appellant does not want to return to work and that she considered she would struggle with being around loud noises and with her concentration. The Medical Assessor considered the appellant has some capacity for concentration, with reduced pace, and rated her impairment in the category of employability as moderate, which is Class 3.Relevant to the issue of whether a deduction should be made under s 323(1) of the 1998 Act, the Medical Assessor answered “yes” in response to a standard question at part 8e of the form approved for a MAC, that question being “is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?”. The Medical Assessor identified at Part 8f of the MAC that those pre-existing conditions were “pre-existing major depressive disorder, anorexia, and OCD”. The Medical Assessor said at Part 11b of the MAC that the appellant’s major depressive disorder pre-disposed her to having further episodes of major depressive episodes under sufficient levels of stress. At Part 11c, in contradiction to what he had said at Part 8e, the Medical Assessor said “there is no deductible proportion”.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
With respect to the issue of the Medical Assessor’s assessment of the appellant’s impairment in the PIRS category of employability, the appellant submitted that the Medical Assessor’s finding that she has a moderate impairment is inconsistent with the evidence, specifically that she has not worked since March 2019, has poor concentration, would struggle with loud noise and has an impaired ability to drive. The appellant submitted that the test of whether she has impaired function in employability is not whether she wants to return to work but whether she is able to work. The appellant submitted that on consideration of the totality of the evidence a finding that she has no capacity for employment should have been made.
In reply, the respondent submitted that the Medical Assessor did not rely solely on the appellant’s desire not to return to work but rather his finding that the appellant was able to work at a modified pace. The respondent submitted that the Medical Assessor was not required to make an assessment regarding the appellant’s capacity for work but rather the Medical Assessor was required to form an opinion regarding “the appellant’s employability in the context of an impairment rating”. The respondent highlighted that the Medical Assessor formed the opinion that the appellant has some capacity for concentration with reduced pace. The respondent submitted that the Medical Assessor relied on the history he obtained, which was not at odds with the totality of evidence. The respondent submitted that the appellant was cavilling with the clinical judgment of the Medical Assessor.
With respect to the issue of whether the Medical Assessor erred by not making a deduction under s 323(1) of the 1998 Act the respondent highlighted that the Medical Assessor at Part 8e of the MAC indicated that there should be a deduction in the assessment of the appellant’s permanent impairment from her injury for a proportion of her permanent impairment that is due to a pre-existing impairment. The respondent submitted that the Medical Assessor “made an obvious error when finalising his assessment of impairment at page 15 of the MAC as there was no deduction applied”. The respondent submitted that there was “ample medical evidence to support a substantial deduction”. The respondent submitted that to assume the proportion of the appellant’s permanent impairment that was due to a pre-existing condition was one-tenth, in accordance with s 323(2) of the 1998 Act, would be at odds with the available evidence.
In response to those submissions, the appellant noted that there was no dispute that she suffered from pre-existing major depressive disorder, anorexia and OCD. She submitted that the existence of a pre-existing condition is not of itself sufficient to justify a deduction being made under s 323 and that what is required is that the pre-existing condition be a contributing factor causing her permanent impairment. The appellant highlighted that the Medical Assessor found that her pre-existing condition pre-disposes her to further episodes but the Medical Assessor did not express an opinion in the MAC that any proportion of her current impairment is due to her pre-existing condition.
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.
Employability
The Appeal Panel considers that the Medical Assessor made an error with respect to his assessment of the appellant’s impairment in the PIRS category of employability. Keeping in mind the impairment the Medical Assessor found the appellant had in the category of Concentration, Persistence and Pace and in the category of Travel, the Appeal Panel considers that the Medical Assessor did not cogently explain how it is that the appellant could work in any employment. He noted that the appellant had some capacity in concentration with reduced pace, but did not explain how that would enable her to work in any employment. He noted she has ongoing symptoms of sleep disturbance and low levels of energy, can “only concentrate on TV for short periods”, has to “reread things”, demonstrated objective working memory impairment, no longer drives, rarely leaves home, and walks as far as down the street on her own which in total would seem to preclude the capacity to for part-time work on the open job market.
The Appeal Panel notes that in order to find error in a Medical Assessor’s rating of a worker’s impairment in any of the PIRS categories, the Appeal Panel must be satisfied that the opinion formed by a Medical Assessor was not available to be made based on the evidence that was before the Medical Assessor, which includes the history the Medical Assessor obtained and the Medical Assessor’s findings from examination. Further, a Medical Assessor is entitled to give pre-eminence to the findings that he or she made from his or her examination of a worker. In other words, in order for an Appeal Panel to find error, there must be an error in the exercise by a Medical Assessor of the Medical Assessor’s clinical judgment- a mere difference of opinion between what an Appeal Panel might form, or other assessor’s looking at the same material might reasonably form, and that which the Medical Assessor formed is not sufficient to establish error.[1]
[1] See Coenradi v Gogeo Group Aust Pty Ltd [2022] NSWSC 864 at [135]-[136]; Ferguson v State of NSW [2017] NSWSC 887 at [23]-[24].
In this matter, the Appeal Panel considers that relevant evidence with respect to the appellant’s impairment in the category of employability included the appellant saying in a statement she signed on 14 July 2022, which is less than four months prior to the Medical Assessor examining her, that she is forgetful, needs to re-read emails, can have a panic attack after having to concentrate, experiences wandering of her mind when she tries to read books, and loses concentration when she watches television. Further relevant evidence includes her treating psychiatrist, Dr Paul Theiring, who in a report he provided the appellant’s solicitors on 20 April 2022 details he had been seeing the appellant on a monthly basis since September 2022, noting that the appellant has continuing agoraphobia and social anxiety and experiences episodic panic attacks and rarely leaves her house.
The Appeal Panel considers that when regard is had to all the evidence it was not open to the Medical Assessor to conclude that the appellant’s impairment in the category of employability was moderate and the Medical Assessor ought to have rated it as being total. That is how the Appeal Panel rates her impairment in this category.
Section 323 deduction
The Appeal Panel also considers that the Medical Assessor erred by not making a deduction under s 323(1) of the 1998 Act for a proportion of the appellant’s permanent impairment that is due to her pre-existing condition.
The Appeal Panel observes that the Medical Assessor’s finding at Part 8e of the MAC and his finding at Part 11c of the MAC contradict each other. That is to say, in the former the Medical Assessor indicates that a proportion of the appellant’s permanent impairment is due to pre-existing conditions of major depressive disorder, anorexia and OCD but in the latter he says there is no deductible proportion.
As earlier stated, the parties agreed that the appellant had a pre-existing major depressive disorder, OCD and anorexia nervosa. As the appellant noted in her submissions, the question is whether a proportion of her permanent impairment is due to those conditions. It will be so if her permanent impairment from her injury is causally related to her pre-existing condition. That will be the case if her pre-existing condition makes a difference to the outcome for the appellant.[2]
[2] Cole v Welanine Pty Ltd [2010] NSWSC 78; Ryder v Sundance Bakehouse [2015] NSWSC 526; Pereira v Siemens Ltd [2015] NSWSC 113.
The Appeal Panel observes from the report of Dr Thiering dated 20 April 2022 that he obtained a history of the appellant having a lifelong history of anxiety and depression and having suicidal attempts in 2014. Dr Thiering also noted the appellant experienced previous trauma, specifically sexual abuse as a teenager which led to anorexia nervosa and OCD and also more recently being in a motor vehicle accident and being the victim of a hold up.
Dr Thiering considered that that prior trauma “sensitised her nervous system to the recent experiences” in her workplace with the respondent. Dr Thiering considered that the appellant’s “pre-existing vulnerabilities” were linked to the psychological injuries the appellant suffered in her employment with the respondent.The Appeal Panel further observes that the appellant consulted psychiatrist Dr Alice Dwyer on 22 December 2014 and that in a letter Dr Dwyer wrote to the appellant’s general practitioner advised she that the appellant was experiencing a depressive and anxiety episode from a multitude of stressors including changing her job, experiencing bullying and her being a “peace maker” with respect to conflicts in the family. Dr Dwyer noted that the appellant reported having a short fuse and acting impulsively. Dr Dwyer reported the appellant having “a lifelong history of anxiety”. Dr Dwyer noted that the appellant’s psychiatric history was “notable for the lack of sustained curative therapeutic relationship despite the various diagnoses she reports”. Dr Dwyer noted that the appellant developed agoraphobia and OCD after a sexual assault when she was 14.
The symptoms the appellant has experienced subsequent to her work injury are very similar to those she experienced beforehand. That is, many aspects of her current impairment presented before her injury. The likelihood is, it seems to the Appeal Panel, that her pre-existing condition explains in large part her present presentation injury. In other words, both her pre-existing conditions and the events to which she was exposed in her workplace, were the cause of her injury. Given that, the Appeal Panel considers that the appellant’s permanent impairment from her injury is causatively related to her pre-existing condition and that a proportion of her permanent impairment is due to her pre-existing condition.
It is invariably the case that it is difficult to determine precisely the extent to which a pre-existing psychiatric condition contributes to a worker’s post-injury impairment. However, in this case the Appeal Panel considers that s 323(2) cannot engaged because, noting the similarity between the appellant’s psychological symptoms in the past and her present psychiatric symptoms, and the contribution her pre-existing conditions have in her current presentation, to assume that the proportion to which her pre-existing conditions contribute to her current impairment is 10% would be at odds with the evidence. In other words, the contribution that her pre-existing major depressive disorder, agoraphobia and OCD contribute to her current impairment is more than 10% based on the evidence that is before the Appeal Panel.
Because there is always difficulty in determining precisely what the contribution a pre-existing psychiatric condition has to a work place psychiatric injury suffered by a worker, necessarily there is a level of arbitrariness in determining the deduction to be made under
s 323(1) in the circumstance where an Appeal Panel cannot make an assumption regarding what the proportion is pursuant to s 323(2). In this case, the Appeal Panel considers that the greater proportion of the appellant’s present permanent impairment is due to the events that she experienced in her workplace, which precipitated her present symptoms, and consequently whilst there must be a deduction under s 323(1) that deduction must be modest to account for her workplace encounters contributing the greater part of her present permanent impairment. In the circumstances, the Appeal Panel considers the deduction to be made under s 323(1) should be one-fifth.
Conclusion
Because the MAC contains errors the Appeal Panel has determined that the MAC issued on 22 November 2022 should be revoked a new MAC issued.
The Appeal Panel observes however, that if the appellant’s impairment in the PIRS category of Employability is rated as Class 5 then the aggregate score impairment increases to 17 whilst the median class score remains as 3. Consistent with Table 11.17 of the Guidelines, that converts to 19% WPI. When a deduction of one-fifth is made under s 323(1), then that reduces to 15% WPI. In other words, whilst the Appeal Panel considers that the MAC does contain a demonstrable error, when the errors are corrected the appellant’s WPI will nevertheless be assessed to be the same as that which the Medical Assessor assessed it to be, that is 15%.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | M1-W4430/22 |
Applicant: | Megan Alder |
Respondent: | Buckland Convalescent Hospital |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Yu-tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological | Chapt 11 | 19% | 1/5 | 15% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
6
0