Berry v Essential Energy
[2022] NSWPICMP 243
•7 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Berry v Essential Energy [2022] NSWPICMP 243 |
| APPELLANT: | Craig Berry |
| RESPONDENT: | Essential Energy |
| APPEAL PANEL: | Member Catherine McDonald Dr Nicholas Glozier Dr Michael Hong |
| DATE OF DECISION: | 7 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; use of diagnosis in the assessment of permanent impairment; NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 paragraphs 11.4 and 11.6; application of the Psychiatric impairment rating scale (PIRS); Jenkins v Ambulance Service of NSW; Ferguson v State of NSW; Parker v Select Civil Pty Ltd; MAP confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 March 2022 Craig Berry lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Bench, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 February 2022.
Mr Berry 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,
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 the WorkCover Medical Assessment Guidelines 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Berry was employed by Essential Energy as a linesman. He claims compensation in respect of a psychological injury deemed to have been suffered on 14 September 2020. The cause of the injury was said to be bullying and harassment.
The Medical Assessor assessed 7% whole person impairment (WPI). He deducted one-tenth under s 323 of the 1998 Act but allowed 2% for the effects of treatment.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for Mr Berry to undergo a further medical examination because the assessment by the Medical Assessor was open to him and does not disclose error.
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.
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.
In summary, and in submissions prepared by his solicitor, Ms Jackson, Mr Berry submitted that the assessment by the Medical Assessor that he suffered sub-syndromal symptoms of post-traumatic stress disorder (PTSD), as a result of witnessing a death by suicide at work in 2018, could not be reconciled with his reported symptoms. Mr Berry said that the Medical Assessor did not explain how that incident impacted on his assessment and the failure to explain whether the injuries were assessed separately or together was a demonstrable error.
Mr Berry also argued that the Medical Assessor applied incorrect criteria and made a demonstrable error in assessing him in class 2 for Self-Care and Personal Hygiene because he does not live independently but lives with his mother and siblings “which is the qualifier for class 3”. He said that class 3 was the best fit for the activities he described.
Mr Berry also said that the Medical Assessor applied incorrect criteria when assessing social and recreational activities because he took into account that he is using his welding skills to build a camper trailer and that is not the kind of activity contemplated by the category. He said that the Medical Assessor also took that activity into account when assessing Concentration, Persistence and Pace which negatively affected the rating awarded. He also said that he told the Medical Assessor that he experiences panic attacks before he goes on dates and feels drained afterwards. He conceded that he goes on dates but struggles to do so and that in any event “his date would be classified as a close friend”. He said that the fact that he was unable to continue to play football and didn’t feel comfortable around people supported the contention that his impairment is moderate. He goes to the gym with family or alone and said that his impairment was “better suited” to class 3.
In reply, Essential Energy submitted that the symptoms which Mr Berry reported were consistent with the Medical Assessor’s comment that he did not meet the criteria for a diagnosis of PTSD. It noted that a worker may present withy symptoms consistent with multiple diagnoses but not meet the criteria for a particular diagnosis under DSM V. It noted that the diagnoses by the psychiatrists who have assessed Mr Berry differ. It submitted that Mr Berry has not demonstrated error with respect to the event in 2018, noting that he had failed to disclose it to other assessors.
Essential Energy said that a difference of opinion as to whether a worker should be assessed in class 2 or 3 was not an error when both classes are reasonably available, citing Parker v Select Civil Pty Ltd (Parker)[1].
[1][2018] NSWSC 140.
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[2] 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.
[2] [2006] NSWCA 284
The MAC
The Medical Assessor prepared a careful and detailed MAC and set out a thorough history relating to the injury and the commencement of treatment. As part of that history the Medical Assessor said:
“The applicant further noted having witnessed an individual commit suicide at his workplace in 2018. He was the first on the scene when an individual drove into a tree and was killed instantly. He noted, ‘I re-live that a fair bit’. He reported having nightmares. He would awaken with nausea and heart racing. He denied any other re-experiencing phenomena. He reported being hypervigilant, being fearful of seeing another accident, especially when driving. He had a loss of enjoyment of driving. He was not aware of any avoidance associated with such.”
The Medical Assessor described Mr Berry’s present symptoms:
“The applicant reported being fully compliant with his medications. He described his recent mood as ‘low ... I find it hard to get out of bed’. His sleep is improved with mirtazapine. ‘I have broken sleep every night’. He sleeps approximately five hours per night. He awakens with nightmares. He described his energy as ‘flat ... drained ... I'm dating, and after a date, I'm exhausted, absolutely drained ... and sick at times. Mentally exhausted, I guess. I try to go to the gym four to five times per week. That's been helping’. His libido is ‘better than it was six months ago, eight months ago’. His appetite is ‘not too bad’. He noted, ‘my weight has improved’. He is now ten kilograms higher than his pre-morbid weight however noted ‘I'm in healthy shape’ having been attending the gymnasium frequently. He continues to have nightmares three to four times per week of the bullying and harassment at Essential Energy. He has an occasional nightmare of the suicide ‘maybe once a week. Not as much as the actual being back at work nightmares’. He last experienced suicidal ideation one month prior to the clinical evaluation when he had thoughts of causing a deliberate motor vehicle accident. He denied having any plan or intent. He noted the most significant protective factors are the relationships with his sons, as well as his mother, sister and brother. Following the evaluation, he will ‘have a rest’ prior to going for a walk on the beach. On the weekend following the evaluation, he is intending on taking his son and siblings motorcycle riding. He is planning on attending a dental appointment and psychologist appointment in the week following the evaluation.
The applicant's anxiety remains ‘high’. He continues to have panic attacks ‘normally when I go on a date’. He last had a panic attack six days prior to the clinical evaluation, at the time of his last date.”
The Medical Assessor noted that Mr Berry initially denied any past psychiatric history but agreed that he had suffered anxiety since 2012 and was treated with medication. He agreed that he had been significantly affected when his father died though denied that it had was a factor in his failure of part of his apprenticeship.
The Medical Assessor recorded a detailed history of Mr Berry’s social activates and activities of daily living. After describing his mental state examination, the Medical Assessor summarised the injury and diagnoses:
“The applicant is a thirty-nine year old male who was subjected to bullying and harassment in his employment at Essential Energy as an apprentice lineman. He noted as a result of the bullying and harassment having developed significant difficulties with regard to depressed, anxious and irritable mood, lethargy, impaired libido, decreased appetite and weight loss, insomnia, poor concentration and panic attacks. At its worst, he had suicidal ideation. The applicant's depressive symptoms have been present for greater than two years. In this context, he meets diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition for Persistent Depressive Disorder with anxious distress.
The applicant reported the death of his father in 2017 was a significant emotional blow. He acknowledged having two weeks off work as a result of same. The collateral materials presented for review would appear to uphold the applicant's contention that such may well have provoked a temporary aggravation of his depression and anxiety however, could not have been seen to be the cause as such. The only other stressor would appear to be the separation from his partner, which he attributed to the work injury. I accept the work injury was at least a significant contributing factor to the separation. It is the evaluator's opinion the applicant's Persistent Depressive Disorder with anxious distress was caused by the work injury.”
The Medical Assessor made a detailed summary of the other medical evidence in the file. He contrasted the history he obtained with the opinion of Dr Rastogi who assessed Mr Berry at the request of his solicitors, noting an increase in social and recreational activities since her report.
When discussing the other medical evidence, the Medical Assessor said:
“The TAL Attending Doctor Statement completed by Dr Armitage, dated 3 July 2021, noted the applicant suffered from Major Depressive Disorder and Posttraumatic Stress Disorder. (Comment: As per the applicant, the work-related injury involved bullying and harassment. There was no physical violence. The death by suicide of the individual in 2018 would meet Criterion A for Posttraumatic Stress Disorder. On the other hand, as per the applicant's report, he has some attenuated, sub-syndromal symptoms of Posttraumatic Stress Disorder, and such would be best-considered part of his Persistent Depressive Disorder with anxious distress.) Dr Armitage opined the applicant was unfit for employment now or in the future, ’the Posttraumatic Stress Disorder is too severe’.” (Emphasis in original).
When assessing Mr Berry in class 2 for Self-Care and Personal Hygiene, the Medical Assessor said:
“The applicant is living with his mother and siblings in Sandstone Point. He is showering ‘once a day ... sometimes I miss a day’. He brushes his teeth, ‘once a day or sometimes I miss a day’. When asked as to when he changes his clothes, ‘sometimes I wear the same clothes for a couple of days in a row’. He cooks once or twice per week for the family, otherwise relying upon meals prepared by his mother or siblings. He will engage in some mowing, laundry or ‘vacuuming sometimes’. As such, it is evident the applicant would be able to live independently. This is most consistent with a mild impairment.”
The Medical Assessor assessed Mr Berry in class 2 for Social and Recreational Activities and said:
“The applicant noting having recently had a weekend away with his mother to Townsville and Mackay, ‘we drove around and had a look’. He attends a gymnasium
four to five times a week, ‘most of the time by myself ...sometimes with my brother or sister’. He does weights and occasional cardio workouts. He enjoys walking on the beach. He is currently ‘building ... tinkering in the garage’. He is building a camper trailer. He has welding skills from his time as a boilermaker. He enjoys motorcycle riding. He has gone dirt bike riding twice in the past two weeks. He is currently dating. ‘Sometimes I have one every week, one every two weeks, I guess’. He will usually go out for a coffee or a drink at a hotel. He will occasionally go out to dinner. His last date was on the Friday prior to the evaluation. He had joined a football club for the 2021 season however played one game and injured himself. He did not return as ‘I didn't feel comfortable around people’. He noted he and his mother or siblings will go out to dinner, ‘sometimes we go camping’. He stated he is no longer a member of any clubs or associations. Given the applicant partakes in a range of social and recreational activities on an independent basis outside the family home, this is most consistent with a mild impairment.”
Diagnosis
As Essential Energy noted, Mr Berry had not disclosed that he witnessed a death in 2018 to other assessors. It is not mentioned in his statement dated 26 October 2021 which was prepared to support his claim for permanent impairment compensation nor was it referred to in Dr Rastogi’s report. The event is not relied on in the Application to Resolve a Dispute.
Mr Berry told the Medical Assessor that PTSD had been diagnosed by his psychologist, Ms Smith, but there are no notes from Ms Smith in the file.
The earliest history of the 2018 event is in Dr Choudhary’s report dated 20 July 2021 where it is mentioned almost in passing. Dr Choudhary did not diagnose PTSD.
Mr Berry began to see his current general practitioner, Dr Armitage, in May 2021. Though she diagnosed PTSD, the extent of the history in her notes to support that diagnosis is that Mr Berry “was working on high power lines and bad environment and saw some bad things”.
Dr Majumdar, who saw Mr Berry at the request of Essential Energy in July 2021, did not obtain a history of the 2018 event but recorded that Mr Berry has seen some unsafe practices.
No assessor whose report appears in the Commission’s file diagnosed PTSD.
The Guidelines provide in paragraph 11.4 that an impairment rating for a psychiatric injury “must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based”. It is not uncommon for different assessors to make different diagnoses or for a worker to be diagnosed with a number of conditions.
Paragraph 11.6 sets out the use to be made of the diagnosis in the assessment of permanent impairment:
“It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI).”
The MAC shows that the Medical Assessor accepted Mr Berry’s history of the event in 2018. He considered whether PTSD was an appropriate diagnosis and, in the exercise of his clinical judgement, determined that Mr Berry did not meet the diagnostic criteria. It is important to remember that the diagnostic criteria in DSM V for PTSD are strict and that PTSD cannot be diagnosed unless all the criteria are fulfilled.
Mr Berry argued that it was unclear whether the Medical Assessor had assessed the sub-syndromal PTSD symptoms with the injury arising from “bullying and harassment”. The Medical Assessor was not required to separate the symptoms arising from each of those conditions. An injury can cause more than one diagnosis and several injuries can result in just one diagnosis. His task was to identify that the accepted injury caused one or more diagnoses and to use them as one of the factors in assessing the severity and likely duration of the impairment arising from the injury. The diagnosis he reached was persistent depressive disorder with anxious distress.
The Medical Assessor was required to assess Mr Berry on the day he presented for assessment[3] and to assess the “behavioural consequences of psychiatric disorder” under the Psychiatric Impairment Rating Scale (PIRS). The MAC reveals that he did so.
[3] Guidelines paragraph 1.6.
The PIRS
Before considering Mr Berry’s submissions with respect to the two impugned scales, we consider that it is important to bear some general principles of assessment in mind.
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
Paragraph 11.12 says that the classes “range from 1 to 5, in accordance with severity”. Class 1 of each of the scales in the PIRS is appropriate where there is “[n]o deficit, or minor deficit attributable to normal variation in the general population”. The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment, moderate impairment. What follows in each class are examples which demonstrate the level of impairment.
In Jenkins v Ambulance Service of NSW[4] (Jenkins) Garling J said:
“The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.
There are a number of reasons for this. First, the submission pays no heed to the importance, to which I have referred, of clinical assessment and judgment, both of which are required in formulating an opinion.
Secondly, as clause 11.7 of the WorkCover Guides records, there is an expectation that the psychiatrist will provide a rationale for the rating which is assigned. That rating is said to be: ‘… based on the injured worker’s psychiatric symptoms’.
But the activities (or perhaps lack of them) listed in the various tables go beyond symptoms. Those examples attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described.
Next, the submission pays insufficient attention to the words in clause 11.13 of the WorkCover Guides. The words require the AMS to use the standard form when scoring the PIRS. It specifically then provides that the examples of activities are ‘examples only’. It then enjoins the AMS to take account of a person’s cultural background and to consider the individual’s activities that are usual ‘… for the person’s age, sex and cultural norms’.
...
In my opinion, it is to misread the WorkCover Guides to require, as the plaintiff’s submissions would, that the AMS can only proceed either by using the examples in the tables solely as the basis for a rating, or as the minimum basis for a rating.
I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[4] [2015] NSWSC 633 at [57]-[65].
In Ferguson v State of New South Wales[5] (Ferguson) Campbell J said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”[6]
[5] [2017] NSWSC 887.
[6] At [24].
Harrison AsJ cited Ferguson in Parker and said[7]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
Self-Care and Personal Hygiene
[7] At [70]-[71].
The submissions made on behalf of Mr Berry with respect to this scale are in the nature of the submissions which were not accepted in Jenkins, Ferguson and Parker. The use of “qualifier” exemplifies the misunderstanding which underpins them. The Medical Assessor was required to assess the severity of Mr Berry’s impairment, not to apply the examples as criteria.
Class 2 is relevant for mild impairment and the examples of activities are:
“Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
The examples in the PIRS direct the assessor to consider a worker’s ability to live independently, as one of the factors used to assign a class, not as the sole basis of classification. The fact that Mr Berry does live with others does not mean that he is not able to live independently. The history provided to the Medical Assessor is consistent with his ability to do live independently should he choose to do so. The activities he performs could be said to be consistent with living in a household of adults, sharing the responsibility to prepare meals and clean. Mr Berry undertakes a range of self care activities, including regular gym attendance, reducing his weight, showering almost daily and cooking meals, that would be considered within the normal variation of the population.
Notably, the assessment made by the Medical Assessor is the same as that made by Dr Rastogi.
Assessment in class 2 for Self-Care and Personal Hygiene was an appropriate exercise of the Medical Assessor’s clinical judgement.
Social and recreational activities
Mr Berry described a broad range of social and recreational activities at home and outside the home. As the Medical Assessor noted, he gave a history of a wider range of activities than he told Dr Rastogi about almost a year before.
This scale assesses the degree of a worker’s participation in social and recreational activities and the extent of his interaction with others. The examples for assessing a mild impairment in class 2 are:
“Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
The examples for assessing a moderate impairment in class 3 are:
“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.”
While the Medical Assessor did consider some activities under this scale which might also be considered under another scale, he listed a wide range of activities which are solely relevant to the assessment of social and recreational activities.
When Dr Rastogi assessed Mr Berry in March 2021, he was living near Bathurst with his son. He had become reclusive and socially withdrawn, avoiding activities. At that time, Dr Rastogi assessed Mr Berry in class 3.
The file discloses that since moving to Queensland, Mr Berry has become more socially active. The Medical Assessor described several recreational activities that Mr Berry undertakes with different people and his rating was not based on a single activity. He joined a football club and he ceased participating when he suffered an injury, not primarily because of his psychiatric injury. Dr Armitage recorded on 11 June 2021 that he had hurt his back and a CT scan was carried out on 9 July 2021. He told the Medical Assessor that he did not return to football because he did not feel comfortable being around people and the Medical Assessor took that history into account in assessing a mild impairment.
The most significant activity relevant to this scale is that Mr Berry said that he was “dating”. It is not clear whether he meant that he was seeing one person or went out with different people. The way he described the activity to the Medical Assessor does not provide a basis for the submission that “his date would be classified as a close friend”, and indeed many dates would be the start of a friendship. He described going out for coffee, a drink at a hotel or dinner. Though he said he felt nervous before going and exhausted after, the fact is that Mr Berry is able to go out to a variety of locations on a weekly or fortnightly basis. The outings are reasonably frequent.
Based on the facts elicited by the Medical Assessor, it was open to him to assess Mr Berry in class 2 for social and recreational activities.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 February 2022 should be confirmed.
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