BGS v The School Photographer Pty Ltd
[2023] NSWPICMP 282
•20 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BGS v The School Photographer Pty Ltd [2023] NSWPICMP 282 |
| APPELLANT: | BGS |
| RESPONDENT: | The School Photographer Pty Ltd |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Professor Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 20 June 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 and recreational activities and social functioning; the rating in the class of self-care and personal hygiene was open to the Medical Assessor (MA) but the ratings in the classes of social and recreational activities and social functioning were not was not open to the Medical Assessor; inadequate history and reasoning by the MA; re-examination considered necessary; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 November 2022 Ms BGS (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 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):
· deterioration of the appellant’s condition that results in an increase in the degree of permanent impairment pursuant to section 327 (3)(a) of the 1998 Act;
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against), and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error. Because the Appeal Panel found error, the Appeal Panel’s power to require a re-examination was enlivened. Absent a finding of 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.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) Allied Health Recovery request dated 18 October 2022.
The School Photographer Pty Ltd (the respondent) objects to the admission of the additional evidence.
The Appeal Panel determines that the evidence should not be received on the appeal because the evidence predated the Medical Assessment Examination on 31 October 2022. This means the evidence in this document which records the appellant’s symtomatology as at 18 October 2022 was available to the appellant to give as history to the Medical Assessor. A document that predates an examination cannot be evidence of deterioration since examination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The 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
It is noted that the delegate’s decision refers to the respondent employer not having filed a notice of opposition. The Appeal Panel notes there is a notice of opposition included with the papers referred to the Appeal Panel.
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 5 November 2019 (deemed)
· Body parts/systems referred: Psychiatric disorder
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. Psychiatric disorder
5 November 2019
Chapter 11, page 54
Chapter 14, pg 361-365
5
0
5
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
5%
The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
Name
BGS
Claim reference number (if known)
W4566/22
DOB
[redacted]
Age at time of injury
39
Date of Injury
5 November 2019
Occupation at time of injury
Administration Officer
Date of Assessment
24 October 2022
Marital Status before injury
Single
Psychiatric diagnoses
1.Adjustment Disorder
2.
3.
4.
Psychiatric treatment
Psychology
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
She said she takes showers irregularly and her hygiene is not as good as before, and she skips meals, and she cooks for herself but not as good quality food.
Social and recreational activities
1
She has been able to go out to meet with family and friends. She goes to her mother’s place, or her best friend’s place or go have a coffee. She said she is mostly not at home, to avoid being with her housemate who has her boyfriend around a lot.
Travel
1
She drives to her mother’s place and her best friends and she has been doing the shopping herself sometimes, though she also orders her items online.
Social functioning
1
She has maintained a good relationship with her ex-husband, and her best friend and all her family members.
Concentration, persistence and pace
3
Her concentration and focus is poor and so is her short-term memory. She is no longer able to read a book, and she doesn’t watch TV or read the newspaper, though she spends time watching Netflix and Instagram for hours.
She demonstrated impaired learning of verbal information, impaired recall of verbal information, with average recall of visual information, low average attentional capacity
Employability
3
She said she has tried looking for work with her rehabilitation consultant, but said that the consultant suggested she become a ticket officer, which made her feel fearful and at risk of being abused even more, which turned her off even more. She has been considering doing a Business Management Course, but she feels she cannot focus enough to concentrate.
Score
Median Class
1
1
1
2
3
3
=1.5 =2
Aggregate Score Impairment
Total
%
+1
+1
+1
+2
+3
3
11
5
The worker appealed.
In summary the appellant submitted that the Medical Assessor erred in his assessment under three of the PIRS categories, as follows:
(a) in respect of self care and personal hygiene when he assessed a Class 2 and a Class 3 should have been assessed;
(b) social and recreational activities when he assessed a Class 1 and a Class 3 should have been assessed, and
(c) social functioning when he assessed a Class 1 and a Class 3 should have been assessed.
There was no complaint on appeal about the assessments of Class 1 for travel, Class 3 for concentration persistence and pace and Class 3 for employability.
In summary, the respondent submitted that the Medical Assessor did not err 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 Panel cannot interfere with the ratings ascribed by the Medical Assessor to the categories of self care and personal hygiene, social and recreational activities, and employability absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be error or assessment on the basis of incorrect criteria.
In respect of self care and personal hygiene, Table 11.1 of the Guidelines 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 assessed Class 2 with the following reasoning:
“She said she takes showers irregularly and her hygiene is not as good as before, and she skips meals, and she cooks for herself but not as good quality food.”
The appellant submitted a Class 3 should have been assessed. However the Appeal Panel can discern no error as Class 2 is the best fit.
The appeal panel considered that the reasoning of the Medical Assessor was adequate to explain his determination of a class to rating for self-care and personal hygiene and that this finding was open to him.
The Appeal Panel was satisfied that there was error in respect of the assessments for social and recreational activities and social functioning.
The Appeal Panel was satisfied that the Medical Assessor had erred and considered that it was necessary for the worker to undergo a re-examination by a Medical Assessor member of the Appeal Panel.
The Medical Assessor found no impairment in social and recreational activities or social functioning. The explanation for this determination was brief and it was difficult to discern the line of reasoning. The Medical Assessor provided a brief summary of other medical opinions and asserted that he had “taken account” of them. He has not provided adequate reasons for why his opinion differs. The panel felt that there was insufficient information in the Medical Assessor’s report to support his reasoning that the appellant was unimpaired in the latter two categories, and therefore re-examination was necessary.
Dr Douglas Andrews of the Panel was requested to undertake a re-examination which he undertook and reported to the Panel as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W4566/22 |
Appellant: | BGS |
Respondent: | The School Photographer Pty Ltd |
Date of Determination: | 28 April 2023 |
Examination Conducted By: | Dr Douglas Andrews |
Date of Examination: | 28 April 2023 |
1. The worker’s medical history, where it differs from previous records
BGS continues to live in rental accommodation, shared with a female housemate, in Wollongong.
She hasn’t worked in any capacity, paid or voluntary, since the deemed date of injury, 5 November 2018.
She is on no medication; she had a brief self-initiated trial of escitalopram but had side effects such as gastrointestinal upset, jitteriness and distressed thinking. She has a long-standing mindset against taking medication, having been raised in a ‘natural’ family and would avoid other medication trials.
She sees her psychologist every 2-3 weeks by video link. Her psychologist encourages activity and otherwise offers supportive psychotherapy.
She doesn’t have an ongoing association with a psychiatrist.
She has never been hospitalised or attended any mental health programs.
2. Additional history since the original Medical Assessment Certificate was performed
BGS’s condition was unchanged from the time of assessment by the MA in October 2022. Last week, she strained her back, limiting her physical activity somewhat.
Current symptoms:
BGS has a pervasively low mood with a diurnal variation. She is often teary and easily upset. She has negative, self-critical cognitions with guilt about her circumstances.
She has subjective difficulties with concentration, attention, and memory and often loses her train of thought in conversation.
She has frequent thoughts of suicide and has contemplated causing her death by motor vehicle accident. She has never acted on these thoughts and considers her dog and family protective factors.
She is usually in bed by about 8:30 PM and falls asleep quickly under the influence of alcohol. She wakes at about 2:30 AM and will lay awake through most of the night. Some time she sleeps for an hour or so in the morning before rising at about 11 AM.
Her appetite is reduced and she has lost weight.
She has absent libido.
Health:
BGS has ovarian cysts, which cause pain and abdominal cramping.
She is a non-smoker.
She drinks excessively, sometimes as much as a bottle of wine a night, without taking days off.
She has lost her appetite, and her weight has reduced from 60 kg to 52 kg; at 165 cm, her BMI is 19.1, slightly underweight.
Activities of daily living:
BGS lives independently and does laundry, cleaning and meal preparation. However, her flatmate assumes most responsibility for these chores, and her mother and sister often help when they visit. She showers and changes into clean clothes about three times a week.
Before becoming unwell, she had a circle of about six close friends and had frequent social contact with her family, including cousins. She enjoyed social get-togethers and activities such as hiking, swimming and gardening. She now rarely sees her friends, although they have occasional contact by text message. Her mother and sister live about an hour’s drive away, and she visits them every couple of weeks, and they often visit her house. When she visits, her mother invites some cousins over and prepares a meal. BGS is inclined to be withdrawn during family get-togethers. She occasionally goes to a café with her mother and sister at their insistence. At family gatherings, she is inclined to over-drink to manage her anxiety.
She is independent with local travel and on longer distances to familiar places. She usually avoids going out, except to her mother’s house, choosing to see her doctor and psychologist by video link.
She has close and loving relationships with her mother, sister and brother (although she sees him infrequently because he is a teacher in Thailand) and cousins. She has not lost any friends but has disengaged from them and rarely sees them.
She has given up reading and has no hobbies or projects. She occasionally watches TV but without close engagement. She said, ‘I usually just sit and pat my dog.’
Summary:
The MA had diagnosed an ‘adjustment disorder’, whereas Dr Canaris diagnosed ‘persistent depressive disorder (dysthymia) with a persisting major depressive episode and anxious distress’, and Dr Shan offered a ‘chronic Adjustment Disorder with mixed depression and anxiety.’
BGS has been unwell for more than four years and continues to have severe symptoms of depression and anxiety, with melancholic features such as fatigue, early morning wakening and weight loss.
My diagnoses accord with Dr Canaris: a persistent depressive disorder with an ongoing major depressive episode and anxious distress.
BGS had appealed based on errors in the following categories, with the MA’s ratings:
·self-care and personal hygiene –Class 2
·social and recreational activities –Class 1
·social functioning – Class 1
The panel found no error in the determination of the impairment in self-care and personal hygiene and left the MA’s decision undisturbed.
Based on my examination today and my reading of the available documents, BGS PIRS class ratings are:
Social and recreational activities – Class 3
BGS rarely goes out socially except to visit her mother, who will arrange small family gatherings when BGS visits her. She is in a safe environment and has considerable support from her mother and sister. Even so, she remains withdrawn and drinks excessive alcohol to cope. She may go to a café at her mother’s insistence but would not go without her. She no longer sees friends.
Social functioning – Class 2
BGS has remained well-connected within her family but has disengaged from her friendship group.
3. Findings on clinical examination
I examined BGS by video link in her home; the connection quality was adequate to do a comprehensive assessment over about 70 minutes. She was on her own and presented as a slim woman, casually attired and mildly unkempt.
She was anxious and emotional during the interview, frequently crying but able to respond appropriately and warmly. Her affect was somewhat limited.
There was no evidence of any disorder of thought-form, perception, or other psychotic phenomena.
She was sometimes slow in responses and needed questions to be restated. She was imprecise about details and event sequences.
She acknowledged thoughts of suicide without plans or intent.
4. Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.”
The Appeal Panel adopts the findings and the report of Dr Andrews.
This means that the calculations become as follows, noting that the assessments of travel (Class 1), concentration, persistence and pace (Class 3) and employability (Class 3) in the classes were not the subject of appeal, and the assessment of self-care and personal hygiene at Class 2 was confirmed:
Self care and personal hygiene – Class 2;
Social and recreational Activities – Class 3;
Travel – Class 1;
Social functioning - Class 2;
Concentration, persistence and pace Class 3, and
Employability - Class 3.
In ascending order, the classes are as follows:
1,2,2,3,3,3 which gives an aggregate score of 14 with a median of 3 which equates to 7% whole person impairment (WPI).
Accordingly, the Appeal Panel will revoke the MAC and issue a new MAC in accordance with this statement of reasons.
For these reasons, the Appeal Panel has determined that the MAC issued on
31 October 2022 should be revoked. A new MAC is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4566/22 |
Applicant: | BGS |
Respondent: | Allied Health Recovery Request |
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 Yu-Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric disorder | 27 November 2017 (deemed) | Chapter 11, page 54 | Chapter 14, | 7 | 0 | 7 |
| Total % WPI (the Combined Table values of all sub-totals) | 7 | |||||
0
2
0