BEZ v Legal Aid Commission of NSW
[2023] NSWPICMP 187
•8 May 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BEZ v Legal Aid Commission of NSW [2023] NSWPICMP 187 |
| APPELLANT: | BEZ |
| RESPONDENT: | Legal Aid Commission of NSW |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 8 May 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury; assessment under psychiatric impairment rating scale (PIRS); past psychological conditions; need for detailed and careful history and identification of relevant vulnerability; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 February 2023 BEZ 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 25 January 2023.
BEZ 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 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.
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
BEZ was employed by the Legal Aid Commission of NSW (Legal Aid) as a veterans’ advocate and was classified as an Advocate Clerk Grade 6/7. On 21 July 2016 she was assaulted by another advocate in a meeting with a client after a hearing at the Veterans’ Review Board, when he struck her with a walking stick. BEZ reported the incident to Human Resources but felt that she was not taken seriously.
BEZ continued to work. She and the other advocate were required to attend a “mediation process” at which he apologised but she felt that no one at Legal Aid was taking the issue seriously. BEZ expected an independent investigation but none occurred and an internal investigation was informal and, she felt, unprofessional. Her requests for a transfer were refused and the temporary contract of the other advocate was renewed. BEZ felt isolated and marginalised and her anxiety and depression continued to worsen and she was incapacitated for work for two months in early 2017. A return to work plan was unsuccessful and she ceased work in May 2017. BEZ did not return to work and eventually resigned. A return to work with another organisation was not sustainable.
BEZ agreed to accept compensation in respect of 20% whole person impairment (WPI) under s 66 of the Workers Compensation Act 1987 (the 1987 Act) by a complying agreement dated 21 October 2020. In the current proceedings, she sought assessment to determine if the degree of permanent impairment was more than 20% for the purpose of s 39 of the 1987 Act.
Using the Psychiatric Impairment Rating Scale (PIRS) the Medical Assessor assessed 22% WPI. He deducted one-tenth under s 323 of the 1998 Act because a previous psychological injury was a significant vulnerability factor and contributed to the impairment.
PRELIMINARY REVIEW
We 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, we determined that BEZ should undergo a further medical examination because the Medical Assessor’s path of reasoning in respect of the s 323 deduction is unclear.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Dr Blom of the Appeal Panel conducted an examination of the worker on 21 April 2023 and reported to the Appeal Panel. His report is attached to these reasons.
The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary and in submissions prepared by her solicitor, Mr Watson, BEZ submitted that the Medical Assessor erred in his assessment of self-care and personal hygiene by placing her in class 2. She said that the evidence showed that she suffered a moderate impairment and should be assessed in class 3 because her statement and the reports of other doctors show that she requires prompting by her husband to do things.
BEZ submitted that there was no relevant pre-existing injury or impairment and that the only history was when she saw a psychologist as a mandatory part of her treatment program when she had a mastectomy. She said there should be no deduction under s 323.
In reply and in submissions prepared by its solicitor Ms Cook, Legal Aid submitted that the Medical Assessor had not erred in his assessment of self-care and personal hygiene.
The Department submitted that it was open to the Medical Assessor to apply his clinical judgement in characterising the impact of any past physical health conditions on her mental health. It noted the history in Dr Smith’s report about previous anxiety and depression requiring medication, BEZ’s statement that she sought help about the impact of a mastectomy and oophorectomy on her mental health, Dr Allan’s history of adjustment-type symptoms around the time of that surgery and the note made by Mr Stansfield, psychologist about a history of childhood trauma and that BEZ has had a series of serious medical issues and considers herself a person with a disability. The Department noted the decision of Simpson AJ in Marks v Secretary of Communities and Justice (No 2)[1] (Marks No 2) and said that it is not necessary for a condition to be symptomatic for a deduction to apply. Legal Aid said that the Medical Assessor had obtained a history of a vulnerability factor in the form of trauma in early life and explained how it affects her current impairment.
[1] [2021] NSWSC 616.
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.
Self-care and personal hygiene
The Medical Assessor said:
“She does some housework, such as cleaning up the bathroom. She does some cooking and her husband does most of it. She said she might cook once a week, but only prepare simple food, such as fish and chips from frozen meals. She said she tried to help with the Christmas decorations in December last year for her son’s sake and her husband did most of it.
She said her diet is not healthy. Sometimes she will binge on junk food, such as chocolate and chips and not tell her husband. She also said eating chips improves her nausea and makes the IBS better.
In the past she loved cooking, but now she said that even when she makes rice, she will make mistakes.”
The Medical Assessor compared his assessment to those of the other examiners. He said:
“In terms of WPI assessment, the main difference is in the category of self-care and personal hygiene. I note that there has been some fluctuation and in some of the other reports, she presented as being more impaired. In my assessment, in the last one year she has been managing her self-care and does not require assistance or prompting and, therefore, I rated at 2.”
In the PIRS Table the Medical Assessor said:
“BEZ reported neglecting her self-care. She said she showers most days, but not daily. She skips meals, sometimes not eat for a whole day, sometimes binge eats and has junk food, and hides it from her husband. She and her husband order grocery [sic] online. She buys alcohol online for herself. She cooks may be once a week for 2 meals, but only prepares simple foods. She does some household chores, e.g. clean the bathroom. She is capable of independent living without regular support and does not need prompting with her self-care.”
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.”
The important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. Rather than providing criteria for assessment, what follows in each class are examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW[3] Garling J said:
“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.”
[3] [2015] NSWSC 633 at [65].
The examples on in the PIRS for assessment in class 2 – mild impairment are:
“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.”
The examples on in the PIRS for assessment in class 3 – moderate impairment are:
“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 Medical Assessor was required to exercise his clinical judgement in assessing BEZ under the PIRS. Campbell J considered the categorisation of impairment in Ferguson v State of New South Wales[4] (Ferguson) and 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’…”
[4] [2017] NSWSC 887 at [24]-[25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[5]
“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…”
[5] [2018] NSWSC 140 at [70]-[71].
The history that BEZ requires the prompting of her husband to shower is in BEZ’s statement and the reports of Drs Smith and Allen. It does not form part of the history the Medical Assessor obtained. His reference to that example in his PIRS table shows that he was alert to the relevance of it. It is, however, only one example of the kind of behaviours which might be observed in someone with moderate impairment.
The fact that Drs Smith and Allan assessed BEZ in class 3 does not bind the Medical Assessor to agree. He was required to assess BEZ as she presented on the day of the examination.[6] The Medical Assessor clearly explained why he differed from the other assessors.
[6] Guidelines paragraph 1.6.
In State of New South Wales (NSW Department of Education) v Kaur[7] (Kaur) Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[7] [2016] NSWSC 346.
The Medical Assessor gave clear reasons for his assessment and explained why he differed from the other assessors. Another assessor may have assessed BEZ in class 3 but it is a matter on which reasonable minds may differ. The Medical Assessor’s assessment for self-care and personal hygiene does not disclose an error.
Section 323
In Cole v Wenaline Pty Ltd,[8] Schmidt J considered a case in which the medical members of an appeal panel found that a deduction under s 323 was warranted because surgery had been undertaken as a result of a previous injury some years before. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[9]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”[10]
[8] [2010] NSWSC 78.
[9] At [29]-[30].
[10] At [38].
In Ryder v Sundance Bakehouse[11] Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[11] [2015] NSWSC 526 at [45].
In Marks No 2, a case dealing with a psychological injury, Simpson AJ said:[12]
“It was contended (correctly) that it is not every case in which a pre-existing condition can be identified that will result in a deduction under s 323(1). It is always a matter for assessment whether any proportion of the impairment assessed is due to such a pre-existing condition. So much is uncontroversial and has long been recognised: see Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Cole v Wenaline Pty Ltd [2010] NSWSC 78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254; Ryder v Sundance Bakehouse [2015] NSWSC 526.
The more important question, … , is whether a pre-existing condition, notwithstanding that it is asymptomatic at the time of the injury in respect of which the assessment is undertaken, may, nevertheless, contribute to the degree of impairment. In respect of physical injuries, it has long been held that it can: Government Cleaning Service v Ellul (1996) 13 NSWCCR 344; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liquidation) [2013] NSWSC 365 at [91] and [95].
In the light of this consistent line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to ‘previous injury … or … pre-existing condition or abnormality’, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury. As noted in the preliminary reasons, the cases which have previously considered this question all related to physical injury. However, … , s 323(1) does not distinguish between physical and psychiatric or psychological injuries. It applies to all injuries equally.”
[12] At [15]-[17].
With respect to s 323 the Medical Assessor said:
“Regarding the past psychiatric history, BEZ initially said ‘there wasn’t much’. On specific enquiry, she said that when she had a mastectomy she was seeing a psychologist as it was a mandatory part of the treatment program. This was between 2007 and 2009. The psychologist then told her she was fine.
She reported she had a lot of physical health issues. She couldn’t allow people to touch her, which interfered with having medical procedures. She was recommended to take antidepressants after her surgery, but didn’t tolerate it and reported that she had trouble with a lot of medications, due to side effects, even taking antibiotics are problematic for her. She has not taken any psychiatric medication since maybe 2008; she took psychotropic medications again after her work injury.”
And:
“She confirmed she had felt mistreated growing up and there is evidence of trauma in early life. She said that it doesn’t bother her anymore because her husband has always been very good to her and she could leave her childhood issues in the past.”
The Medical Assessor summarised his diagnosis:
“BEZ has suffered previous depression and anxiety symptoms and received treatment from a psychologist and took psychiatric medications. She has some physical symptoms, reportedly with a psychological element, for example, chronic fatigue syndrome and irritable bowel symptoms, and reported being well for many years before the subject assault.
…
I also made a Section 323 deduction, as there is significant amount of evidence of a previous psychological injury, with similar psychological symptoms and some of her impairment is similar. This is overall a small contribution to her current impairment.”
In the part of the MAC which specifically deals with s 323, the Medical Assessor said:
“My view is that there is a pre-existing contribution, the previous psychological injury is a significant vulnerability factor, and contributes to her current psychiatric impairment. There is a greater impairment as a result of the earlier injury as some of her current psychological symptoms and impairment are similar to her previous injury.”
The Medical Assessor did not clearly identify the previous psychological injury or condition which he said was a significant vulnerability factor and which contributed to BEZ’s condition. The file suggests a number of conditions - including childhood trauma, other medical conditions, depression at the time of a mastectomy and oophorectomy and vicarious trauma – which might be relevant.
BEZ saw Mr Stansfield who reported on 12 August 2016. The reference to “VCT” and “Alleged Act of Violence” suggest that he saw her in connection with an application to the Victims Compensation Tribunal. He recorded:
“She has a history of childhood trauma. She has had one other traumatic incident in her life when she was harmed at a sporting event. She has had a series of serious medical issues in the past, and considers herself a person with a disability.
She has worked at Legal Aid as an Advocate since 1983 and also believes she has experienced vicarious trauma resulting from working with returned soldiers with PTSD.”
Dr Allan saw BEZ at the request of her solicitors and reported on 5 May 2020. He said:
“BEZ described some mild adjustment-type symptoms in around 2008 around the time of her mastectomy and oophorectomy. She had some psychological treatment and was prescribed an antidepressant for approximately twelve months, although she recalls only mild psychological distress during that period. From the history provided, she does not appear to have experienced any significant impairment as a result of any psychological distress around her health difficulties in 2008.”
In his report to the Department’s insurer dated 5 August 2020, Dr Smith said:
“BEZ reported a previous history of anxiety and depressive symptoms and she had taken mirtazapine for around two years. She also reported problematic alcohol consumption contributing to her depressive symptoms Due to these non-work-related factors, I have deducted 10% from the PIRS for a final PIRS of 19.8%, rounded to 20%.”
Those disparate comments warranted careful consideration. In order to grapple with the question of whether there should be a deduction under s 323, it was necessary for the Medical Assessor to obtain a detailed history from BEZ, exploring in detail the aspects of her past medical history which might have led to a psychological condition. The evidence suggests that she was treated with psychotropic medication for a period of two years, which is an extended period. The Medical Assessor was required to clearly identify which previous condition was the vulnerability factor that he identified. As Campbell J said in Kaur, he was required to explain his path of reasoning in sufficient detail.
The Medical Assessor’s reasoning was not clear so that a re-examination was required. Dr Blom undertook that examination and explored BEZ’s past history in detail. He determined that no s 323 deduction was warranted. We agree and adopt his findings.
For these reasons, we have determined that the MAC issued on 17 January 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
Medical Appeal Panel Re-Examination - Matter No. M1- W5944/ 22
Background.
The worker, BEZ, was originally assessed by Dr. Michael Hong, Medical Assessor on 25th January, 2023. Subsequently the worker appealed the decision on two grounds. Following review of the documentation, the Medical Appeal Panel ordered a re-examination of the worker to further assess details of her pre-existing condition (the second ground of appeal), for which Dr. Hong had deducted the statutory amount of 10%. The worker was re-examined by Dr Graham Blom on 21st April, 2023.
Assessment.
BEZ was seen via the Teams application. At the time of interview, she was alone. She was able to manage the application unaided.
At this interview BEZ continued to display the wide range of symptoms that Dr. Hong had outlined in his medical assessment.
· She said that she continued to experience a depressed mood “all of the time”.
· She reported an absence of pleasure.
· She complained of substantial difficulties with her concentration and memory.
· She has completely lost her confidence.
· She continues to experience periods of suicidality, although was not suicidal at this session.
· She has gained a considerable amount of weight, in excess of 20Kgs due to lack of activity and over-eating.
· She continued to experience panic attacks and anxiety.
· She continued to experience significant irritability resulting in ongoing conflict with her husband.
BEZ continues to consume very high amounts of alcohol. She said that she would drink on average 4 small bottles of beer/day as well as one bottle of red wine, this equates to approximately 14 to 15 standard drinks per day. She says that she drinks every day and was unable to nominate the last day that she did not drink. She acknowledged experiencing craving on a regular basis but denied morning tremor or other withdrawal symptoms. Having said this she did acknowledge that recently she has begun sometimes drinking in the morning.
Mental State Examination.
BEZ presented as a vague historian who had substantial difficulties remembering past material. She did not appear intoxicated at the time of interview. She struggled with dates and time periods. She was particularly vague around the period where she was treated for apparent breast cancer. I do not believe that this in anyway represented an attempt to deceive, evade or prevaricate. Rather I believe that it reflects BEZ’s lifelong coping strategy, which involves considerable use of denial, compounded by her current severe disorder. Memory deficits are consistent with significant depression and associated substantial alcohol abuse.
BEZ was dishevelled, easily distracted and over inclusive in her history.
She was clearly depressed with some flattening of affect. She presented with significant levels of distress at various times during the interview.
There was no evidence of psychosis, specifically formal thought disorder, hallucinations or delusions.
Her cognitive function was consistent with my diagnosis.
Diagnosis.
I concur with Dr. Hong’s diagnosis. At the time of my interview, I believe that BEZ continues to meet the diagnostic criteria for
· Major Depressive Disorder - chronic, severe.
· Alcohol Abuse Disorder. It is possible that BEZ in fact currently suffers from a dependency disorder but as she has not had any days free of alcohol it is difficult to be certain of this diagnosis.
Pre-Existing Injury.
I spent considerable time reviewing the various previous conditions raised both by Dr. Hong and in the medical reports of the Independent Medical Examiners as well as her various treating psychologists.
BEZ confirmed that she had had a difficult childhood, in that her mother was emotionally abusive and at times violent towards her. She described being slapped and hit with objects such as a belt or a wooden spoon, by her mother, on multiple occasions. She denied developing any psychological symptoms from this and at no time required treatment by a psychologist, general practitioner, child psychiatrist, or school counsellor. She confirmed material from the documentation in which she said she was able to “put this behind her” following initiating the relationship with her husband at around the age of 18. She described her husband as sensitive, kind and caring towards her. She also described actively attempting to “forget” this ill treatment and said that this coping mechanism was extremely helpful to her.
There was a mention of so-called “vicarious trauma” in the note of one of the treating psychologists that BEZ consulted - Mr Charles Stansfield. On reviewing this with BEZ it was clear that she was speaking to the psychologist in a somewhat hyperbolic manner. While she sometimes found the stories of the veterans, whom she assisted in her work as a veteran’s advocate, distressing and difficult at no time did she develop any actual symptoms. Specifically, she did not develop any symptoms of post-traumatic stress disorder, nor did she require treatment by psychologist or psychiatrist or other medical practitioner. She was able to continue her work unimpeded.
In the late 1990s BEZ developed glandular fever on two separate occasions. Following each of these episodes of glandular fever she developed a chronic fatigue syndrome, which was diagnosed by her general practitioner. She described symptoms of excess fatigue, increased somnolence and some degree of “brain fog”. She denied any other psychiatric or psychological symptoms. She did not require any form of psychological or psychiatric treatment. She continued working throughout this, although she did acknowledge that she occasionally missed workdays because of the level of her fatigue and for a period worked reduced hours.
In about 2007 BEZ developed severe, daily menorrhagia, most likely related to the insertion of an IUD. Subsequently she also developed adenomyosis. As a result, she initially had the IUD removed and then later because the menorrhagia had not settled underwent a hysterectomy. Soon after this she underwent assessment for breast cancer. It appears that this was necessitated because she has a strong family history of breast cancer and had herself developed a breast lump. BEZ was very vague about this. I do not believe that this was due to any attempt at evasion or deception but reflected a combination of BEZ's coping style as well as the impact of her current illness on her memory. BEZ acknowledged that she actively tried to deny what was happening during this period, but from her description it seems clear that she was diagnosed with breast cancer. She said that her husband has confirmed this, but she denies ever having been told this directly. Nevertheless, over a period of approximately six to eight months she underwent oophorectomy, and then bilateral mastectomy. Following the bilateral mastectomy, she had “expanders” placed into her chest wall so that she would be able to subsequently have breast implants inserted. Over a period of about 6 to 8 months these were gradually enlarged. During this period she experienced considerable pain as a result of this process. Subsequently in about July, 2009 she had bilateral breast implants inserted.
BEZ said that as part of the programme for treatment of her breast cancer she was advised to undertake psychological treatment. She denies quite adamantly experiencing any significant psychiatric or psychological symptoms during this time, although this may to some degree be a reflection of her denial. She did acknowledge occasional difficulties with sleep associated with the pain in her chest and the use of a considerable amount of pain relief. She certainly acknowledged distress at the process of multiple operations over a relatively brief period of time. Nevertheless, she was very clear that during this period she continued to look after her child who by this time was about eight or nine years of age, manage her house and work full time in a demanding and difficult job. She denied symptoms such as loss of concentration or memory, loss of motivation or energy. She knowledge that she was distressed but denied persistent depressed mood. She said she never experienced feelings of hopelessness, despair or suicidal ideations. During this time, she was working still as an advocate for veterans applying for assistance from the government. She said that this involved her reviewing complex cases as a daily routine. She had to enter written submissions for veterans to both the Veterans Review Board and at times the Administrative Appeals Panel. At times she also made presentations to both of these boards. Despite the difficulties that she has in remembering this period I believe that it is reasonably clear that she was not suffering from a major depressive disorder nor significant anxiety. She also denied any excessive or increased use of alcohol during this period.
She was referred to a General practitioner and initiated an antidepressant medication. She recalls being somewhat perplexed as to the reason for this but underwent the process as this was what her psychologist recommended. She remained on the antidepressant for approximately 12 months to two years. She had no difficulties ceasing the medication which occurred following the last surgical procedure that she underwent.
Impression.
Despite BEZ's significantly limited memories of the period around 2007 through to 2009 I do not believe there is sufficient evidence to suggest that she suffered from a significant Depressive disorder or Anxiety disorder. She does not describe any symptoms consistent with this and it is notable that she continued working in a demanding job which required high levels of concentration, focus and memory. I expect it also required ongoing significant motivation and energy. At the same time she continued to care for her child and manage the household she said. Her husband also had full time work at this time. From my review of the documentation and particularly my interview with BEZ I believe that it is likely that she suffered from a mild to possibly at times moderate adjustment disorder related to the significance of both the diagnosis that she had received and the significant, disfiguring surgery that she subsequently underwent. I do not believe that her symptoms, or presentation were similar to the current presentation. For all of these reasons, I do not believe that a deduction for pre-existing injury is warranted.
I believe the Medical Assessment Certificate should be revoked and the 10% deduction removed.
Dr Graham Blom
21 April 2023
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5944/22 |
Applicant: | BEZ |
Respondent: | Legal Aid Commission of NSW |
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 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 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 | 21 July 2016 | Chapter 11, pp 55-60 | N/A | 22 | 0 | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
13
0