Bailey v Youthconnections.com.au
[2024] NSWPICMP 709
•10 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bailey v Youthconnections.com.au [2024] NSWPICMP 709 |
| APPELLANT: | Jessalynn Bailey |
| RESPONDENT: | Youthconnections.com.au |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 10 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; worker challenges assessments of the psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, and social functioning; Held – no demonstrable error or application of incorrect criteria found in assessment of the two PIRS categories; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 July 2024 the appellant, Jessalynn Bailey, 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 June 2024.
The appellant relies on the following grounds 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 ground(s) 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).
RELEVANT FACTUAL BACKGROUND
Ms Bailey sustained a psychological injury in the course of her employment as a support worker with the respondent, Youthconnections.com.au, as a result of threatening and abusive behaviour by a client and subsequent harassment by officers of the respondent.
Ms Bailey states that she commenced employment with the respondent on 9 March 2021 and that she initially enjoyed her job. She states that it was in late 2020 that she began to experience the abusive behaviour of a client.
Ms Bailey states that she resigned her employment with the respondent on 6 April 2022 due to her psychological injury and has not worked since.
Ms Bailey has had treatment from Dr Moisey, psychiatrist, and also psychological counselling.
Ms Bailey made a claim for a lump sum payment for 22% whole person impairment (WPI) based upon an assessment made by Dr Glen Smith, forensic psychiatrist, in a report dated 23 March 2023.
The allocation of classes in the psychiatric impairment rating scale (PIRS) categories made by Dr Smith which are the subject of the appeal filed by Ms Bailey in this matter are as follows:
Self care and personal hygiene Moderate impairment Class 3
Social functioning Moderate impairment Class 3
The reasons given by Dr Smith for class 3 for self care and hygiene are that Ms Bailey is incapable of living independently. He states that Ms Bailey does not shower daily because she says she just wants to sleep all day. He states that she assists with her children in the morning and then returns to bed.
The reasons given by Dr Smith for class 3 for social functioning are that Ms Bailey reported that the relationship with her partner broke down and she has lost friends.
Dr Smith diagnosed Ms Bailey as having post-traumatic stress disorder, major depressive disorder with anxious distress, and attention deficit hyperactivity disorder (ADHD). He also recorded Ms Bailey having a pre-existing history of anxiety or depressive symptoms and ADHD, and made a one-tenth deduction for pre-existing impairment.
Dr Modem, consultant psychiatrist, provided a report dated 11 August 2023 at the request of the respondent and in response to the applicant’s claim for lump sum compensation.
Dr Modem made an assessment of 19% WPI, with no deductions for pre-existing conditions. The allocation of classes in the PIRS categories made by Dr Modem relevant to this appeal are as follows:
Self care and personal hygiene Mild impairment Class 2
Social functioning Mild impairment Class 2
The reasons given by Dr Modem for class 2 for self care and hygiene are that Ms Bailey could look after herself and is independent with her activities of daily living, even though
Dr Modem also records that Ms Bailey spends a lot of time in bed and showers twice a week.The reasons given by Dr Modem for class 2 for social functioning are that there is no reported strain on existing relationships and Ms Bailey has friends and family who visit her and who are supportive.
Dr Modem had made a diagnosis of adjustment disorder with mixed anxiety and depression in a previous report dated 27 October 2022, but he considered that Ms Bailey’s condition had evolved into post-traumatic stress disorder when writing his report dated 11 August 2023.
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 worker to undergo a further medical examination because there was sufficient material to determine the issues which are the subject of the appeal.
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.
Medical Assessment Certificate
The Medical Assessor examined Ms Bailey by video on 7 June 2024. The Medical Assessor records that Ms Bailey appeared drowsy and distressed. He found Ms Bailey to be dysthymic with restricted affect. The Medical Assessor found Ms Bailey to be well-oriented to time, place and person, and she had reasonable insight into her issues.
The Medical Assessor made a diagnosis of major depressive disorder, but he did not consider that Ms Bailey met the criteria for post-traumatic stress disorder.
The allocation of classes in the PIRS categories made by the Medical Assessor were as follows:
Self care and personal hygiene Mild impairment Class 2
Social and recreational activities Moderate impairment Class 3
Travel Mild impairment Class 2
Social functioning Mild impairment Class 2
Concentration, persistence and pace Moderate impairment Class 3
Adaptation Severe impairment Class 5The Medical Assessor made an assessment of 19% WPI, and then made a one-tenth deduction for pre-existing conditions of ADHD, anxiety and depression. The final assessment of WPI is 17%.
Ms Bailey submits that the Medical Assessor has erred in the assessments of the PIRS categories for self care and personal hygiene, and social functioning. The reasons provided by the Medical Assessor in selecting those classes are set out in the MAC as follows:
· Self care and hygiene: “Ms Bailey’s care is not great. She showers every two days, and she is not motivated to do house chores. She does not have a routine. She is struggling to be a mom at this stage. She is supported by her stepfather who comes and takes her kids to school. They get dropped home as well. She mostly orders food online and is not cooking as much as she used to. She does online shopping mostly as well as she is anxious to go out and buy things from the shop.”
· Social functioning: “Ms Bailey’s kids keep asking her if she is okay. She is not in a current relationship. The last time she was in a relationship was at the time of the injury, but it was a struggle. She has friends and family who visit her and are supportive. She is not actively participating establishing and maintaining any relationships. She has a good relationship with her stepfather and she receives support from him who assists her with her children’s activities such as picking and dropping them from school and other activities. She does not see her siblings as often. However, she never had a good relationship with them nor with her mum. Her relationship with her previous partner ended after the injury. However, there were other factors as well such as he was going into psychosis and using drugs. Ms Bailey was quite busy, was on call, and was doing long days at times.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions
Ms Bailey submits that the Medical Assessor made a demonstrable error and used incorrect criteria in his assessment of mild impairment for self care and hygiene. She submits that class 3 should be the correct category because Ms Bailey does not prepare her own meals, does not shower daily, and should have the assistance of a family member or community nurse to foster better health and personal hygiene.
Ms Bailey submits that there is an error in classing her impairment in social functioning as mild. She refers to her statement dated 31 January 2024 wherein she states that it was the stress of her job with the respondent, such as phone calls being made to her late at night, which caused her relationship to break down. Ms Bailey also refers to her evidence that she is not able to connect with her children, and that her children have noticed this and that this is disheartening.
The respondent’s submissions
The respondent submits that the Medical Assessor was entitled to allocate the classes in the MAC based on the history/functioning which was disclosed by Ms Bailey and recorded by the Medical Assessor at the time of his clinical examination. The respondent refers to Parker v Select Civil Pty Limited [2018] NSWSC 140 (Parker), wherein Harrison AsJ said that a difference of opinion on the subject matter is not sufficient to establish incorrect criteria.
The respondent also refers to Ferguson v State of New South Wales [2017] NSWSC 887, wherein it was stated that an Appeal Panel must be satisfied that it was not open to the Medical Assessor to rate an impairment based upon the material before that Medical Assessor.
The respondent submits that the Medical Assessor was entitled to allocate class 2 for self care and hygiene because the details recorded by the Medical Assessor suggests that
Ms Bailey is still performing some degree of independent meal preparation, and that assistance is not required from members of the family to ensure that Ms Bailey has a minimum level of hygiene or nutrition.The respondent submits that in relation to social functioning, the Medical Assessor was entitled to allocate a class 2 based upon the history provided to him.
The respondent submits that details recorded by the Medical Assessor do not support
Ms Bailey’s previously established relationships being severely strained due to the effects of her work injury. The Medical Assessor records that Ms Bailey has friends and family who visit her and who are supportive, and records that Ms Bailey retains full-time custody and primary care of her children.The respondent submits that the Medical Assessor records that the strain on Ms Bailey’s relationship was due to her partner’s requirement to look after her children and her partner’s own mental health issues, and that it was not the effects of the work injury which caused a strain on that relationship.
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 Appeal Panel has considered the assessment of the two PIRS categories which have been challenged by Ms Bailey.
Self care and personal hygiene
The Medical Assessor places Ms Bailey in class 2 for self care and personal hygiene, which is set out in the Guidelines as follows:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.”
Class 3 in the Guidelines for self care and personal hygiene is as follows:
“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.”
The Appeal Panel concludes that the Medical Assessor’s assessment of class 2 for self care and hygiene does not contain a demonstrable error or is based upon incorrect criteria.
The Medical Assessor records that Ms Bailey’s personal care is not great, but that she does shower every two days.
The Medical Assessor records that Ms Bailey does not have a routine, and that she struggles to be a mother, but both Dr Smith and Dr Modem record that she is able to assist her two children in the morning. Although her stepfather provides assistance by taking the children to school, the details recorded by the Medical Assessor, and also by Dr Smith and Dr Modem, do not indicate that Ms Bailey is dependent upon her stepfather in the care of her children, and moreover not for aspects of her own self care and hygiene. His assistance is helpful but not crucial to the care Ms Bailey provides to her children.
The Medical Assessor records that Ms Bailey is not cooking as much as she used to, but she is nonetheless still providing meals for her children.
The details recorded by the Medical Assessor do not indicate that Ms Bailey needs prompting to maintain her personal hygiene. Ms Bailey is able to prepare meals and provide care for her children. The Appeal Panel is satisfied from a review of the available material that Ms Bailey is capable of living independently and can adequately look after herself.
The Appeal Panel therefore considers that there is no error or the use of incorrect criteria in the exercise of the Medical Assessor’s clinical judgment to rate Ms Bailey’s self care and personal hygiene as mild impairment.
Social functioning
The Medical Assessor places Ms Bailey in class 2 for social functioning, which is set out in the Guidelines as follows:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Class 3 in the Guidelines for social functioning is as follows:
“Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Appeal Panel concludes that the Medical Assessor’s assessment of class 2 for social functioning does not contain a demonstrable error or is based upon incorrect criteria.
The Medical Assessor records that Ms Bailey has friends and family who visit her and that she has a good relationship with her stepfather. Those details are also recorded by
Dr Modem. Dr Smith merely records that Ms Bailey has lost friends, and he does not refer to any strained relationships other than with Ms Bailey’s partner.Ms Bailey states in her statement dated 31 January 2024 that “I feel completely withdrawn and isolated from the people around me”, but the details recorded by the Medical Assessor and Dr Modem are that she nonetheless has friends and family who visit her and are supportive. That is not indicative of Ms Bailey having relationships which are severely strained, and which warrant the application of class 3.
Ms Bailey’s evidence that she is not able to connect with her children and that this is disheartening for her does not reach the level of a severely strained relationship.
Ms Bailey’s claim that there has been an error or the application of incorrect criteria in the category of social functioning appears to be primarily based on her claim that the relationship with her partner came to an end as a result of the effects of her psychological injury.
Dr Smith does not record any details of the breakdown of the relationship between Ms Bailey and her partner. Both Dr Modem and the Medical Assessor record, on the basis of
Ms Bailey’s self-report, that this relationship was good, but that the breakdown occurred due to Ms Bailey working “ridiculous hours” and her partner having to look after her children.
Dr Modem places the breakdown of the relationship at the beginning of 2022.Dr Modem does not record any details regarding Ms Bailey’s partner, but the Medical Assessor records that her partner was going into psychosis and using drugs, and that this was a factor in the eventual breakdown of the relationship.
The contemporaneous notes from Ms Bailey’s treating psychiatrist record that this relationship had a different quality, and there were problems of a different temporal pattern and causation relating to the partner’s behaviour. Dr Moisey’s report dated
10 November 2021 observes:“(she is) now working at Youth Connections. It’s the same role…which she is enjoying and in fact thriving.
With the stability in her life, she had decided to allow someone into her life.
Unfortunately, he violated her trust, and it has been a retrigger and has set her trauma back. She has fortunately contacted Victims of Services to re-engage with counselling.”
The Appeal Panel notes that this was a new relationship after what was described by
Dr Moisey as “more than decade of domestic violence”, and which had commenced from January 2021.The relationship between Ms Bailey and her new partner may have ended after her injury, but the Appeal Panel considers that the Medical Assessor has properly concluded that the breakdown of this relationship predated the psychiatric disorder resulting from her work injury, and the breakdown had different causes.
Ms Bailey’s relationships are not severely strained, other than with her ex-partner. She otherwise has the ongoing care of her two children.
The Appeal Panel considers that there is no error or the use of incorrect criteria in the exercise of the Medical Assessor’s clinical judgment to rate Ms Bailey’s social functioning as mild impairment.
Conclusion
For these reasons, the Appeal Panel has determined that the MAC issued on 26 June 2024 should be confirmed.
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