BFK v Secretary, Department of Education
[2023] NSWPICMP 108
•27 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BFK v Secretary, Department of Education [2023] NSWPICMP 108 |
| APPELLANT: | BFK |
| RESPONDENT: | Secretary, Department of Education |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the assessment under three categories under the Psychiatric Impairment Rating Scale (PIRS) namely, self-care and personal hygiene, social functioning and concentration, persistence and pace; the ratings in all classes were open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 November 2022 BFK (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 October 2022.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).
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 did not request a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
In addition, the Appeal Panel notes the decision of the delegate as follows:
“I note the Medical Assessor’s comments on page 6 of the MAC concerning the report of Dr Lotz dated 11 July 2022. The report was not placed before the Medical assessor in error although the statement of BFK responding to the report was. It is appropriate that the report be placed before the Medical Appeal Panel (as well as the statement of BFK ) on the basis of procedural fairness.”
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):
· the degree of permanent impairment of the worker as a result of an injury (s319(c))
· whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
· whether impairment is permanent (s319(f))
· whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
· Date of injury: 20 January 2022 (deemed)
· Body parts/systems referred: Psychiatric/psychological
· 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) |
| Psychiatric | 20 January 2022 (deemed) | Chap 11, p 54-60 | n/a | 7% | 1/10th | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
The assessment was based on his assessment under the Permanent Impairment Rating Scale (PIRS) as required by the Guides as follows:
Table 11.8: PIRS Rating Form
| Name | BFK | Claim reference number | W3428/22 |
| DOB | Xxxxxxxxxx | Age at time of injury | 40 years |
| Date of Injury | 20 January 2022 (deemed) | Occupation at time of injury | Teacher |
| Date of Assessment | 27 October 2022 | Marital Status before injury | Married |
| Psychiatric diagnoses | Persistent depressive disorder with an ongoing major depressive episode and anxious distress | ||
| Psychiatric treatment | Medication | Past psychotherapy | |
| Is impairment permanent? | Yes | ||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-Care and personal hygiene | 2 | BFK readies herself for work five days a week but is less attentive to hygiene, showering or bathing only about three times each week. She is comfort-eating and has gained weight over the last few months, putting control of her diabetes at risk; she is now in the morbidly obese range. However, I note that she weighed 135 kg in 2014 compared with 115 kg now. She contributes to housework, including cleaning and cooking. Although she feels dependent on her husband, she would be capable of independent living. | |||||||||
| Social and recreational activities | 3 | BFK has curtailed most social and recreational activities. She recently went out for dinner for her daughter’s birthday, although she found it stressful. She also has occasional family outings to the Gold Coast and has had a holiday this year to Stradbroke Island. She no longer sees her friends. | |||||||||
| Travel | 2 | She is independent with local travel and can take longer journeys but only with her husband’s support. | |||||||||
| Social functioning | 2 | Her relationship with her husband had been strained but has now improved. She described him as very supportive and caring toward her. She gets on well with her children and mother. Her estrangement from her siblings predates any work injury. She had a small circle of friends but no longer sees them. | |||||||||
| Concentration, persistence and pace | 2 | She has subjective problems with attention and memory. She no longer reads for pleasure. She watches television series, which she “binges” with her family. She can generally follow the storylines, although sometimes she loses focus. She crochets for an hour a day and has no other projects or hobbies. There were no apparent difficulties in attention or cognition during my 80-minute interview. | |||||||||
| Employability | 2 | BFK is working full-time as a teacher’s aide, a position less responsible and demanding than her previous role as a primary school teacher. She has maintained employment since leaving the Department of education. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 2 | 3 | = 2 | |||||
| Aggregate Score Impairment 13 | Total | 7 % | |||||||||
The worker appealed.
In summary the appellant submitted that the Medical Assessor erred in his assessment under three categories as follows:
(a) Self-care and Personal Hygiene when he assessed a Class 2 and a Class 3 should have been assessed;
(b) Social Functioning when he assessed a Class 2 and a Class 3 should have been assessed, and
(c) Concentration, Persistence and Pace when he assessed a Class 2 and a Class 3 should have been assessed.
In summary, the Secretary, Department of Education (the respondent) 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 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 Medical Assessor took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The Medical Assessor recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
BFK worked as a primary teacher for the Department of Education from 2005 until she medically retired in October 2018.
She had no problems in the workplace until 2014 when she took a position at Lismore Public School. There, she felt harassed, constantly watched and judged by the principal, who commented that he had better-qualified teachers who deserved a position before her. Allegations were made about her behaviour that she asserts were unfounded.
In early 2017, she sought a transfer to Southern Cross High School at Ballina, where she continued to feel unwelcome. Her tenure there lasted only a few months before she was given a nominated transfer (determined by the principal based on the school’s need) to Byron Bay High School. At Byron Bay, she replaced a popular local teacher, and there was a backlash from parents. She continued to feel harassed by the principal and took WorkCover to leave for mental health reasons for the rest of 2017.
BFK believes problems transferred from school to school because of the local network of gossiping principals and teachers.
She had a return to work at Mullumbimby Public School. The Employee Performance and Conduct Directorate investigated formal complaints about her performance.
These events took a toll on BFK ’s mental health, and she sought support from her general practitioner.
· Present treatment:
Treating clinician:
ogeneral practitioner Dr Ross Wylie
Psychiatric medications:
ovenlafaxine 300 mg each morning
oquetiapine 300 mg each night
BFK has consulted a psychiatrist, Dr Mark Scurrah, and psychologists,
Ms Jill O’Brien and Ms Caroline Raphael, but not in the last couple of years.She had a brief stay In the Mental Health Unit at Lismore Base Hospital in 2017 after a suicide attempt by drug overdose.
· Present symptoms:
BFK ’s mood fluctuates, reactive to circumstances. She is teary at times but takes pleasure in her family, especially her children.
She is frequently anxious, especially when away from home attending her workplace.
She has subjective problems with concentration and memory. For example, she said, ‘we have to report incidents; if I don’t do it within 30 minutes, I struggle to recall what happened’.
She is irritable and prone to anger.
She denied recent thoughts of suicide but said, ‘I think that maybe it would be easier for everybody if I wasn’t here; I thought how easy it would be to have an accident in the rain’. Despite these thoughts, she has no plans or intention to act on them.
She goes to bed at about 10 PM but may take up to 2 hours to fall asleep. She often wakes through the night and occasionally has distressing dreams.
She tends to overeat and makes poor food choices, which has led to recent weight gain.
· Details of any previous or subsequent accidents, injuries or conditions:
BFK said, ‘I have always had some form of depression; I was bullied severely in high school about my weight’.
In 2007, she had postnatal depression. In 2009 and 2012, she had discrete episodes of depressed mood, the latter following a miscarriage at 25 weeks gestation.
She commenced fluoxetine in 2007 and remained on it until it was changed to venlafaxine.
· General health:
BFK has type II diabetes with peripheral neuropathy and autonomic instability.
In June 2022, she was admitted to the hospital for about ten days with bacteraemia and spent three days in intensive care.
Her medications include insulin, empagliflozin/linagliptin, metformin, dulaglutide, pregabalin and fludrocortisone.
BFK had reduced her weight and 98 kg, but over the last eight weeks, it has rebounded to 114.9 kg; at 169 cm, her BMI is 40.2, in the morbidly obese range.
She does not smoke cigarettes and rarely drinks alcohol.
· Work history, including previous work history if relevant:
Her mother raised BFK in Coffs Harbour with an older brother and sister and a twin brother. She recalls a ‘difficult family’; her older brother abused alcohol and drugs, and her sister had conduct problems; she was exposed to violence and physical abuse from the brother. She didn’t know her father.
She completed high school and a Bachelor of Education (Primary). After university, she went straight to teaching.
From 2005 until 2014, she worked at Burke and Coonamble.
After her medical retirement from the NSW Department of Education, she did shift work for a BP outlet for two months. She then worked four days a week, two days on the Gold Coast and two days in Ballina, doing reception work for Neurosensory. She followed this with 18 months of work doing NDIS support for Northcott.
She now works full-time at Biala, a special education school, as a teacher’s aide.
· Social activities/ADL:
BFK lives with her husband, 15-year-old son and 9-year-old daughter.
BFK rises early and assists in readying her family for work and school. Her husband usually prepares coffee and brings her medication.
She showers or bathes three times a week, washing her face on other days. She rarely wears make-up to school.
Her husband is mainly responsible for running the house, but she assists with chores such as regular cooking, cleaning the toilets weekly and the showers every three weeks.
BFK has always been family-oriented and has never had a wide circle of friends. However, before becoming unwell, she had regular contact with a couple for boating, fishing and dinners. She no longer sees this couple and has given up these activities. She rarely goes to a restaurant or café. The family recently went out for her daughter’s birthday, an outing that BFK found challenging. Her husband walks on the beach and goes fishing with their daughter, but BFK does not participate.
She is independent with local travel, but her husband will drive on longer journeys. They occasionally go to the Gold Coast for the day and took a trip to Stradbroke Island early in 2022, a journey that takes about 3 ½ hours each way (according to Google Maps). They had a family trip to New Zealand in 2017.
BFK feels anxious when leaving the local area.There had been relationship problems with Ian, but things have improved. She said, ‘the relationship is much better; he is a big support for me; I would be lost without him’. She mentioned her guilt about leaving so much of the family management to him.
She has continued good relationships with her children and regular phone contact with her mother, who visits from Coffs Harbour four times a year.
She is estranged from her siblings, predating her workplace injuries, for reasons unrelated to her current circumstances.
She no longer has contact with her small group of friends.
She has given up reading for pleasure.
She watches television with her family shows such as American Horror Story, Game of Thrones, Brooklyn Nine-Nine and Elementary. Her attention wanders, and sometimes, she disengages.
She crochets for about an hour a day but has no other hobbies or projects. She donates some of her crochet projects to the local neonatal intensive care unit.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“I assessed BFK for 80 minutes in her home by video link; the connection quality was adequate to do a comprehensive assessment. We briefly lost video contact (but not audio), which was restored after about 10 minutes and did not affect the assessment.
She presented as an overweight woman, casually attired and well-groomed, wearing glasses with her hair pulled back.
She described a low mood with pervasive anxiety; Her affect was reactive and congruent with the interview content. She briefly lost her composure discussing her circumstances.
There was no evidence of any disorder of thought-form or perception.
She gave a comprehensive history without apparent attentional or cognitive difficulties.
At the end of the interview, when asked if she had anything else to add, she agreed that we had covered everything and added, ‘everything has affected my family and me; my husband says that I am not the woman he married; I am worried that what I am going through is being passed on to my children’.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
o Persistent depressive disorder with an ongoing major depressive episode and anxious distress
BFK has long-standing problems with mood and anxiety, warranting a diagnosis of persistent depression. She continues to meet the criteria for a major depressive episode.
· consistency of presentation
I found no inconsistencies in BFK ’s presentation.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The appellant complains that the Medical Assessor has erred in respect of three of the categories assessed, namely Self-Care and Personal Hygiene, Social Functioning, and Concentration, Persistence and Pace.
The Panel cannot interfere with these ratings absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Panel will deal with each of the categories complained about on appeal in turn.
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.
The Medical Assessor rated mild impairment or Class 2 with the following reasoning:
“BFK readies herself for work five days a week but is less attentive to hygiene, showering or bathing only about three times each week. She is comfort-eating and has gained weight over the last few months, putting control of her diabetes at risk; she is now in the morbidly obese range. However, I note that she weighed 135 kg in 2014 compared with 115 kg now. She contributes to housework, including cleaning and cooking. Although she feels dependent on her husband, she would be capable of independent living.”
The Medical Assessor has to make an independent assessment. He had regard to the opinion of Dr Canaris, the independent medical expert (IME) qualified on behalf of the appellant. He noted that his assessment of Class 2 for Self Care and Personal Hygiene and indeed for all of the categories complained about on appeal were the same as originally assessed by Dr Canaris in his first report dated 31 March 2021 after Dr Canaris had the benefit of assessing the appellant. The Medical Assessor noted that Dr Canaris then increased his ratings in a supplementary report dated 9 December 2021 produced after
Dr Canaris had regard to a written statement of the appellant but without any further examination of the appellant. The Medical Assessor commented as follows:“IME psychiatrist Dr Christopher Canaris, 31 March 2021, diagnosed a persistent depressive disorder and determined a 6% WPI (classes 2, 3, 1, 2, 2, and 2) before deducting one-tenth for the pre-existing condition, arriving at a final 5% WPI.
Dr Canaris revised his opinion in a supplementary report on 9 December 2021 without re-examining BFK , relying on her written statement. On this occasion, he suggested a 17% WPI (classes 3, 3, 2, 2, 3, and 3); after the deduction, this was a 15% WPI.
Dr Canaris appears to have taken the unusual step of revising his opinion based on
BFK ’s written statement of 27 July 2021. He wrote:Your client’s depiction of her functioning is significantly worse than appeared to be the case when I interviewed her. I am not sure whether this is because I misunderstood her, because her condition has deteriorated, or because she was putting a good face onto her presentation when we spoke. I note in this context that I had interviewed by Zoom which has its limitations.
The contents of her statement suggested she would score as follows on the PIRS.
Generally, an independent medical examiner places weight on his examination because he has the opportunity to interview the worker and follow up on lines of enquiry. Dr Canaris’s reasoning is unclear as he appears to have cut-and-paste
BFK ’s statement without providing further comment.BFK provided a supplementary statement on 18 September 2022, in which she critiqued the report of IME psychiatrist Dr Trevor Lotz of 11 July 2022. I have not been provided with Dr Lotz’s account, but I have noted BFK ’s comments regarding her activities.
My assessment of BFK accords with Dr Canaris’s original report, except that I found a mild impairment in travel, whereas he considered no impairment existed. Although BFK is independent with local travel and occasionally travels further afield, the longer trips are only done with support and cause anxiety for her.”
The Medical Assessor is entitled to rely on his clinical findings on the day of examination. He has had proper regard to the evidence and the self reporting of the appellant. However he must make a clinical judgment using his own clinical expertise as to which of the classes is a best fit. Reasonable minds may differ as to the correct class but there is no error shown and an assessment has been made on the basis of correct criteria. The worker bathes regularly if not frequently, there is no evidence of lack of self-care in the MAC or at work, helps care for her children, and undertakes household chores. The panel can discern no error in the Class 2 rating.
In respect of Social Functioning, Table 11.4 of the Guides provides as follows:
Table 11.4: Psychiatric impairment rating scale – social functioning
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4
Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5
Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
The Medical Assessor assessed Class 2 with the following reasoning:
“Her relationship with her husband had been strained but has now improved. She described him as very supportive and caring toward her. She gets on well with her children and mother. Her estrangement from her siblings predates any work injury. She had a small circle of friends but no longer sees them.”
The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3.
The assessment by the Medical Assessor accords clearly with Class 2. A mild impairment is the best fit, as whilst there has been strain in the appellant’s relationship with her husband, the relationship remains intact and he is supportive. While there has been some loss of friendships, this is also consistent with the criteria for Class 2. The appeal panel can discern no error in the Class 2 rating.
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 Class 2 or mild impairment with the following reasoning:
“She has subjective problems with attention and memory. She no longer reads for pleasure. She watches television series, which she “binges” with her family. She can generally follow the storylines, although sometimes she loses focus. She crochets for an hour a day and has no other projects or hobbies. There were no apparent difficulties in attention or cognition during my 80-minute interview.”
The appellant submitted that a moderate impairment or Class 3 should have been assessed.
Assessment cannot be based on self-report alone. This category is one where the Medical Assessor can make a direct assessment of the level of impairment, and report this in the mental state examination. The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise. He has assessed the appellant over a period of 80 minutes and has appropriate regard to her self-reporting as well as the other evidence before him. The Medical Assessor is entitled to rely on his clinical findings on the day of examination and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of Class 2 which is the best fit.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 October 2022 should be confirmed.
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