Anbardan v Telstra Business Technology Centre
[2024] NSWPICMP 656
•16 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Anbardan v Telstra Business Technology Centre [2024] NSWPICMP 656 |
| APPELLANT: | Brittany-Jaymes Samson-Anand Anbardan |
| RESPONDENT: | Telstra Business Technology Centre |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 16 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged assessment was made on the basis of incorrect criteria and demonstrable error under three of the psychiatric impairment rating scale (PIRS) categories of self care and personal hygiene, concentration, persistence and pace, and travel; Held – Medical Appeal Panel found error in the ratings for self-care and personal hygiene, and travel; a re-examination was considered necessary; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 May 2024 the worker Ms Brittany-James Samson-Anand Anbardan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 April 2024.
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 requested that she undergo a re-examination by a Medical Assessor who was also a member of the Appeal Panel. 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 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: 23 October 2018 (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 guidelines
Chapter, 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. Psycho-logical
23 OCTOBER 2018 (DEEMED)
11
page 55-60
14
9
0
9
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
+1% treatment uplift
=10%
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
Brittany-Jaymes Samson-Anand-Anbardan
Claim reference number (if known)
W3315/22
DOB
18/11/1981
Age at time of injury
37-year-old
Date of Injury
23 OCTOBER 2018 (DEEMED)
Occupation at time of injury
Telstra Business Technology Centre
Date of Assessment
22/3/2024
Marital Status before injury
not married
Psychiatric diagnoses
1. Major depressive disorder
2. PTSD
3.
4.
Psychiatric treatment
Psychologist
Psychiatrist
Medications
No psychiatric admission
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Social and recreational activities
3
She used to have an active social life and went out with her friends regularly. She does not have social and recreational activities now, and engages in some solitary recreational activities.
Travel
2
Ms Samson-Anand-Anbardan has anxiety and avoids driving now, and generally stays at home most of the time.
Social functioning
2
She is anxious and socially avoidant, and ceased contact with most of her friends.
She maintains contact with some friends, by phone or text.
Her mother and siblings are in Perth and she talks to them regularly, but not as much over time. She said she has not seen them since the COVID pandemic.
The relationship with her father is good overall.
Concentration, persistence and pace
2
Ms Samson-Anand-Anbardan reported having reduced concentration.
She spends time scrolling on the phone, and focus for 1 to 2.5 hours on sudoku, then takes a break and come back to it. She prefers difficult jigsaw puzzles.
Her mental state examination is consistent with 2.
Employability
5
Ms Samson-Anand-Anbardan has not worked since the subject injury and is highly anxiety and has high interpersonal sensitivity, and these render her incapable of work.
Score
Median Class
2
2
2
2
3
5
=2
Aggregate Score Impairment
Total
%
+
+
+
+
+
16
9
Pre-existing injury
Nil
Treatment effects
There has been mild substantial elimination of impairment with treatment, and without treatment her overall impairment would be greater.
1
Final WPI
10”
The worker appealed. There was no appeal from either party about the 1% allowance for treatment effects or in respect of the nil deduction under s 323. The appeal concerned three of the PIRS categories.
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 self-care and personal hygiene, concentration, persistence and pace, and travel as follows:
(a) in assessing a class 2 for self care and personal hygiene when he should have assessed a class 3;
(b) in assessing a class 2 for concentration, persistence and pace when he should have assessed a class 3, and
(c) in assessing class 2 for travel when he should have assessed class 3.
In summary, the respondent employer Telstra Business Technology Centre (the employer) 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.
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 Medical Assessor assessed a class 2 with the following reasoning:
“Ms Samson-Anand-Anbardan reported having reduced concentration.
She spends time scrolling on the phone, and focus for 1 to 2.5 hours on sudoku, then takes a break and come back to it. She prefers difficult jigsaw puzzles.
Her mental state examination is consistent with 2.”
The Medical Assessor had conducted a mental state examination and recorded his findings as follows:
“Ms Samson-Anand-Anbardan was assessed by video. She was alone and her father was also at home during the assessment. I assessed her from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Her hair was tied back. There was no psychomotor slowing or abnormal movements. She was mildly restricted in her affect range and laughed at times. She spoke spontaneously and was not thought disordered. She gave long answers, and listened to all my questions carefully then gave considered responses, and maintained good concentration throughout the assessment, which took 50 minutes today. I previously assessed her for 1 hour in 2023.
At the end of the assessment, I asked for additional information that he thought may be relevant and she asked me how long it would take for my report to be completed, and I discussed it would be similar to my last assessment.”
He explained further in reference to Dr Chow’s assessment as follows:
“In terms of concentration, persistence and pace, he noted she does not read anymore. In my assessment, she reported improvement with treatment, and can focus on intellectually demanding tasks more than 30 minutes now, therefore I rated 2.”
The Appeal Panel can discern no error in the assessment of a mild impairment for concentration, persistence and pace. It is based on the correct application of criteria in the Guides and is based on adequate history taking, in conjunction with the use of his clinical expertise to assess the appellant’s concentration, persistence and pace in a mental state examination conducted by the medical assessor on the day of examination and is adequately reasoned having due regard to the other medical opinion before him.
In respect of the ratings of class 2 or mild impairment for self care and personal hygiene and travel, the Appeal Panel is satisfied as to error. This is because the Medical Assessor’s reasons given in each category are inconsistent with the ratings provided. That is the Medical Assessor determines a class 2 i.e that she does not need prompting with self-care and personal hygiene but records a history that she requires prompting by her father to shower and brush her teeth more than twice a week. He also records a history that she does not do chores. Conversely he states that “she can maintain sufficient nutrition and hygiene without prompting, and a rating of 3 cannot be supported”. He also records that “she stays home most of the time, avoids driving and suffers anxiety with travel” but does not indicate if she does travel, and if so, how. Elsewhere in the MAC he describes her as “housebound”. Dr Rastogi’s clinical notes indicate only telehealth consultations since late 2023. The Appeal Panel was satisfied that the ratings given for self-care and personal hygiene and travel did not correlate with the history recorded and that the reasoning provided for the rating of these categories not sufficient to support those ratings.
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):
“REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W3315/22 |
Appellant: | Brittany-Jaymes Samson-Anand Anbardan |
Respondent: | Telstra Business Technology Centre |
Date of Determination: | 7 August 2024 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 7 August 2024 |
1. The worker’s medical history, where it differs from previous records
I explained the bounds of confidentiality, process and potential issues surrounding information in an Appeal Panel Certificate to Ms Anbardan and she understood this.
She described a very similar medical history. She continues to consult her psychologist, Dr Stevens. Although she was doing the EMDR face-to-face when he had a clinic in the eastern suburbs, he has now relocated entirely to the Blue Mountains and she only sees him through telehealth. She said her father drove her every time when she was seeing him at Edgecliff.
She does not do EMDR any more. It was difficult to understand exactly what the therapy is at the moment but she described ‘dealing with other things’ that were not dealt with in the EMDR. However she said that since the EMDR has stopped she has had an increase in her level of flashbacks and re-intrusive memories, that has impacted upon her concentration. She described some techniques e.g. anchoring, that she uses when she becomes more aroused and anxious with these flashbacks.
She sees Dr Rastogi every three months, the last possibly in June. She believes all of these have been by telehealth.
She takes Venlafaxine 225mg nocte as it makes her somewhat fatigued. She uses 8mg of Circadin but feels that this is not having much of an effect on her sleep. She also takes Tamoxifen for her previous breast cancer and has been taking Oroxine on a long-term basis.
On asking about any other aspects or activity she does for her wellbeing, the response was ‘not much.’ She eats two or three times a day, depending almost entirely on what her father cooks. He is an ex-chef and so prepares quite healthy and varied meals. She does not snack or comfort-eat. She says she currently has no idea of her weight. She drinks alcohol very rarely, does not smoke as she used to, nor use any illicit drugs. She does almost no physical activity. She said the only thing she might do is of a very occasional walk of her dog, again with her father; otherwise he will walk the dog most days. She particularly does not like doing this because people will be around which makes her anxious and scared. She does no mindfulness, relaxation or use any vitamins or complementary therapies.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Anbardan reported that she sees her father as her carer. She said that he does all of the cooking and most of the household chores, although yesterday she ‘sorted out some of my clothes.’ She said she is now ‘a pig’ and her father prompts her to wash and shower every few days and will also prompt her even to do her teeth as she will forget and neglect these basic activities. However she has not had any skin or teeth problems as a result. She is due to go to the Eye Hospital to have the tear duct tube removed and said her father will take her for that. She has been avoiding this as it was meant to have been removed last year. She does report some safety behaviours e.g. making sure the windows and doors are always locked. She no longer does anything to her hair or wears makeup.
She describes each day as ‘groundhog day.’ Although she takes her medication a couple of hours after dinner, she will then spend some time continuing to lie in bed not sleeping, only falling asleep in the early hours of the morning. She has a broken sleep, frequently disturbed by nightmares where she will wake somewhat aroused. She will sleep through until the late morning or early afternoon and in fact on calculating her hours, she actually gains a normal sleep duration but with a delayed phase and broken pattern. It is hardly surprising that her hypnotics do not work when she is taking them so early with such a delayed phase.
When she gets up she will have something to eat if her father has cooked it and then finds it hard to describe what she does during the day. She says she has no idea how the hours go. She might do a few basic chores, play with her dog, or do some fairly mindless things on her phone. She does not particularly watch television. She has stopped doing some of the games and reading that she was doing earlier on this year because she said that she finds it harder to focus again. She really has no social contact with anybody and said that all of her friends have ‘dropped off’ over time. She did not seem particularly perturbed by this and prefers not to see people. They will occasionally contact her for birthdays and Christmases etc. She will very occasionally go out with her father e.g. the last time to an Indian food market which is a hobby of his. However she does not go out without him and spends the vast majority of her time at home. Again in the evenings she can’t describe any specifc activities but may be on her phone in a distracted fashion. She does not follow any Facebook or other social media but may play with her dog. She will doze during the day.
She appears to have little motivation and could not describe any sense of how she might move on or change. She described her life as something that she would not want but neither any apparent significant motivation beyond attending her psychologist to change any of her behaviours or activities. She said she only leaves home now with her father. She helped her dad in the shopping centre about a month ago but does not like to go anywhere on her own because she feels anxious and aroused.
She has not seen her mother, brother and sister in Perth since January 2020 but will have approximately monthly contact with them.
3. Findings on clinical examination
Ms Anbardan was slightly unkempt sitting in her bedroom. She had a fairly flat, restricted affect with only mild reactivity. She was a somewhat discursive speaker and alternated between providing significant details in answers and clarifying things, and occasions when she had some issues remembering, e.g. her psychiatrist’s name. She described her mood as ‘not great’ but not pervasively miserable. She does little that she could enjoy, likes being with her dog, although has limited interest in anything else. The predominant presentation was of avoidance, withdrawal, amotivation and anergia. She described physical arousal and anxiety in any social or demanding situations but has not had any full-blown panic attacks for a long time as she is so avoidant. She has frequent re-experiencing phenomena, more at night than during the day, which have a full re-experiencing quality and possibly with some slight dissociative components.
4.Results of any additional investigations since the original Medical Assessment Certificate
She did report having had a sleep study in February in Bankstown but we did not have these results and they would not alter the findings of this assessment.
Signed: Professor Nicholas Glozier
Date: 7 August 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 in which the Appeal Panel found error, namely self care and personal hygiene and travel.
In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:
“Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4
Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5
Totally impaired: Needs assistance with basic functions, such as feeding and toileting.”
On the basis of the history taken by Professor Glozier and consistent with the other evidence, the Appeal Panel considers it would be extremely unlikely that the appellant could live unsupported, with her father supporting her in almost all of the aspects of her self-care, prompting her frequently for even basic tasks like brushing teeth and showering, and doing all the cooking and food preparation. This is consistent with a moderate impairment or class 3 for self-care and personal hygiene.
In respect of Travel, Table 11.3 of the Guides provides as follows:
Table 11.3: Psychiatric impairment rating scale – travel
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2
Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3
Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4
Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5
Totally impaired: may require two or more persons to supervise when travelling.
The Appeal Panel considers that consistent with the findings of Professor Glozier on re-examination and with the other evidence that was before the Medical Assessor and hence is before the Appeal Panel, that the appellant does not leave home without her father. She reported this to Professor Glozier in a very consistent fashion. This is consistent with a rating of class 3 or moderate impairment for travel.
The scoring therefore becomes as follows:
Score
Median Class
2
2
3
3
3
5
=3
Aggregate Score Impairment
Total
%
2
4
7
10
13
=
18
= 22
For these reasons, the Appeal Panel has determined that the MAC issued on
5 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3315/24 |
Applicant: | Brittany-Jaymes Samson-Anard Anbardan |
Respondent: | Telstra Business Technology Centre |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Pane revokes the Medical Assessment Certificate of Medical Assessor Michael Hong 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 NSW workers compensation guidelines | Chapter, 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. Psycho-logical | 23 October 2018 (Deemed) | 11 pages 55-60 | 14 | 0 | ||
| Total % WPI (the Combined Table values of all sub-totals) | +1% treatment uplift | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0