Bitupave Limited v Annetts
[2023] NSWPICMP 142
•13 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bitupave Limited v Annetts [2023] NSWPICMP 142 |
| APPELLANT: | Bitupave Limited |
| RESPONDENT: | Edward Annetts |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 13 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Assessment of permanent impairment from psychiatric injury; assessment done by means of audio-video link (AVL); Medical Assessor (MA) had no vision of respondent during assessment due to a malfunction of respondent’s camera; whether examination deficient as a consequence of MA having no vision of the respondent; Held – Appeal Panel considered it is imperative that there be visual contact with a worker for at least for some portion of the examination to enable a proper evaluation of a worker’s impairment in all psychiatric impairment rating scale (PIRS) categories; respondent re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 October 2022 Bitupave Limited, the respondent, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Shen Yu Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
29 September 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 for 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 (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
The appellant employed Edward Annetts, the respondent, as a truck driver. On or about
22 February 2019 the respondent suffered a psychological injury as a consequence of being accused by a fellow employee of inappropriate behaviour.Relying on a report of consultant psychiatrist Dr Adesina Adesanya dated 21 May 2020, the respondent’s solicitors, by letter dated 22 May 2020, notified the appellant that the respondent claimed compensation from it of $36,230 under s 66 of the Workers Compensation Act1987 (the 1987 Act) for 15% whole person impairment (WPI) that he contended he had from his injury. Dr Adesanya assessed the respondent had 17% WPI from his injury but considered a proportion of that was due to a pre-existing impairment, arising from post-traumatic stress disorder and unresolved grief, for which he made a deduction of 10% of the respondent’s overall impairment to assess the respondent’s impairment from his injury to be 15% WPI from his injury.
The appellant advised the respondent by letter dated 1 July 2020 that it disputed liability to pay the respondent any compensation for his injury. It advised the respondent that this was because it considered his injury was sustained wholly or predominantly by reasonable action it took “with respect to performance, appraisal and/or discipline and/or transfer”, a consequence of which was that under s 11A of the 1987 Act he was not entitled to compensation. In subsequent letters dated 28 November 2021 and 16 March 2022 it repeated this to the respondent and further advised him that psychiatrist Dr John Roberts had assessed his permanent impairment to be 5% WPI which was less than the 15% required by s 65A and s 66 of the 1987 Act for him to be entitled to compensation.
On 21 April 2022 the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation under s 66 of the 1987 Act. The matter was referred to Member Rachel Homan who on 12 July 2022 determined that the appellant had not established that the respondent’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the appellant pursuant to s 11A(1) of the 1987 Act and remitted the matter to the President of the Commission for referral to a Medical Assessor for assessment of the respondent’s whole person impairment from his injury.
A delegate of the President duly did so. The Medical Assessor carried out an examination of the respondent on 26 September 2022. That examination was conducted via “TeleHealth”. The camera on the device the respondent used for that examination was not functioning with the obvious consequence that the Medical Assessor had no vision of the respondent during the examination. As mentioned the Medical Assessor issued the MAC on
29 September 2022 in which he certified the respondent’s degree of permanent impairment from his injury was 17% WPI.
THE MAC
The Medical Assessor under the heading “Evidence” in the MAC summarised relevant parts of the material the Commission had provided him for the purpose of the assessment of the respondent’s permanent impairment. The Medical Assessor under the heading “History” set out the circumstances by which the respondent suffered injury. The Medical Assessor noted that the respondent’s son died by suicide 20 years ago and that the respondent was “broken hearted” and that persisted for 10 years. The Medical Assessor noted that the respondent had depression following his son’s death that lasted for a few years and that the respondent was sad “on and off” when looking at photos of his son. The Medical Assessor recorded that the respondent denied any interim depressive episodes prior to the injury he suffered while working for the appellant and did not have any psychological interventions or psychiatric treatment other than being on anti-depressants in the past on a low dose.
Under the subheading “Social activities/ADL” the Medical Assessor recorded the following:
“He is currently 68-years-old man living in Yurong Creek, 50km from Wagga Wagga. He lives alone. He is on the old age pension.
His family includes four children, 5 brothers (2 have deceased) and four sisters, his parents have deceased, and he is not currently partnered. He doesn’t have any friends he contacts now. He now enjoys not much, and spends time tinkering in his shed, working on his old motorbike.
Prior to the subject injury, he would cook for himself, and housekeep and do shopping for himself. He would travel independently to far distances and would enjoy. He would enjoy attend concerts or country music festivals, socialising at the hotel for a meal and a few drinks every few weeks with family or friends. He would be in touch with his children via phone ‘all the time’, a couple of times a week. He said his concentration was not too bad, and pretty good. He was working fulltime 5-6 days a week, 8-14 hours a day, as a truck driver and plant operator.
Currently, he goes shopping for himself once a fortnight, and he cooks a meal for himself once a week and enough for a few days, and he then has some Weetbix afterwards, and he showers himself once a week. He said he doesn’t go out at all, and he cannot recall the last time he went out, and he doesn’t attend family gatherings, and I put to him that he had been to a music festival last year, and he acknowledged he went to one in early 2021, though he remained in the van for most of the time, to avoid mixing with people. He doesn’t drive around much these days, but he drives to the nearest shops at Wagga Wagga, almost 50km away. He said he doesn’t keep in touch with his children, but he had earlier had said that he had a contact with his daughter 6 weeks ago, which he had overlooked, and I asked him again about this, and he acknowledged that he had been in touch with her then; and he maintains contact with his siblings once a month, and a sister in town drops in to help with the shopping. He said he doesn’t read much, as he cannot focus, and he watches the news on TV and goes to bed, and he tinkers with his motorbike for an hour or two. He said he doesn’t seem to be making much headway with it. He would like to be able to work, but thinks he would not be able to hold a job as he wouldn’t be able to be near anyone.”
The Medical Assessor recorded the following findings from his mental state examination of the respondent:
“On mental state examination, he attended the assessment via tele-health and his camera was not working, so I cannot comment on his general appearance. He was not forthcoming with his responses and required multiple prompting from reports about his past history, with a pattern of making a positive impression of his mental state prior to the subject injury, and a negative impression following the subject injury. He said his mood remained poor, being down and anxious. His affect was restricted, but not dysphoric or teary, with some sadness when he talked about the death of his son. His speech was articulate, and minimally reduced in prosody, and no reduction in content. He said he was feeling hopeless, with occasional death ideations, but no suicidal ideations. He was alert, and complained of poor attention.”
The Medical Assessor observed that the respondent had undergone cognitive screening with an embedded performance validity test, in response to which the respondent demonstrated sufficient performance and demonstrated borderline impaired rote-learning with average recall and below average performance with recognition and average attentional capacity. The Medical Assessor also observed that the appellant had undergone a performance validity test regarding psychiatric symptoms, which the respondent passed with some suggestion of negative impression management and rare combination of symptoms.
Under the subheading “consistency of presentation” the Medical Assessor commented that the respondent was inconsistent in his responses and replied in the negative about details of his past psychiatric history and alcohol history until the Medical Assessor confronted the respondent with details regarding these matters from other medical reports. The Medical Assessor also observed that there were discrepancies between what the respondent had said in a statement he signed on 20 December 2021 and what he had reported with respect to his current functioning.
The Medical Assessor diagnosed the respondent’s injury as a Major Depressive Disorder with some symptom exaggeration. The Medical Assessor also said that alcohol use disorder is likely.
In the “PIRS Rating Form” attached to the MAC the Medical Assessor recorded his ratings of the respondent’s impairment for “Self Care and Personal Hygiene” as 2, “Social and Recreational Activities” as 3, “Travel” as 2, “Social Functioning” as 3, “Concentration, Persistence and Pace” as 2, and “Employability” as 4.
The Appeal Panel observes that the appellant has challenged the Medical Assessor’s ratings of his impairment in the categories of “Travel” and “Social Functioning”. With respect to Travel the Medical Assessor explained his reasons for his rating was that the respondent “doesn’t drive around much these days, but he drive [sic] to the nearest shops at Wagga Wagga, almost 50 kilometres away”. With respect to the category of “Social Functioning” the Medical Assessor explained his reasons for his rating the respondent’s impairment were:
“He said he doesn’t keep in touch with his children, but he had earlier had said that he had a contact with his daughter 6 weeks ago, which he had overlooked, and I asked him again about this, and he acknowledged that he had been in touch with her then; and he maintains contact with his siblings once a month, and a sister in town drops in to help with the shopping.
He was in a relationship for a couple of years, who had left the scene after the work injury was made.”
The Medical Assessor noted that the median of the scores of his ratings for the respondent’s impairment in the several PIRS categories was 3 and that the aggregate of the scores was 16 which, consistent with Table 11.7 of the Guidelines, converts to 17% WPI.
The Medical Assessor recorded at 8.e. in the MAC that no proportion of the respondent’s impairment was due to a previous injury, pre-existing condition or abnormality, and hence the Medical Assessor’s certification of the respondent’s degree of permanent impairment resulting from his injury as 17% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the respondent should undergo a further medical examination. This is because the Appeal Panel, for reasons it will explain below, found that the MAC contained a demonstrable error and, to enable the Appeal Panel to reassess the medical dispute that was referred for assessment so as to correct the error, the Appeal Panel would need to examine the respondent again. The Appeal Panel appointed one of its members, Medical Assessor Michael Hong, to conduct that examination. Medical Assessor Hong did so on 19 March 2023. His report to the Panel is set out below under Findings and Reasons.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the method by which the Medical Assessor examined the respondent did not constitute a proper examination of him because the Medical Assessor was not able to view the respondent during the examination. The appellant highlighted that the Medical Assessor at various parts of the MAC noted that his failure to view the respondent had an effect of the examination he undertook.
The appellant submitted that in this case it was important that the Medical Assessor sight the respondent given the “concerns” the Medical Assessor had regarding the respondent’s consistency and the accuracy of the history the respondent provided to the Medical Assessor.
The appellant submitted that it was not apparent that the Medical Assessor made any allowance for the significant inconsistencies in the history the respondent provided to the Medical Assessor. The appellant submitted that when rating the respondent’s impairment in the several PIRS categories, the Medical Assessor appears to have relied largely on the history the respondent provided regarding his function in each category “except for instances where he was able to directly contradict the worker’s history”. The appellant submitted it was incumbent upon the Medical Assessor “to make allowance for that inconsistency to ensure that the assessment was accurate”. The appellant submitted that the Medical Assessor was required to ensure that the “ratings described were not based on uncorroborated histories from the worker”.
The appellant submitted that the Medical Assessor’s rating of the respondent’s impairment in the category of Travel as Class 2 was wrong. The appellant submitted that because the respondent had the ability to travel regularly over 50km to Wagga Wagga, being a 100km round trip, his impairment ought to have been rated as Class 1.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in the category of “Social Functioning” as Class 3 and that it ought to have been rated as Class 2 because the respondent was able to enjoy normal and stable relationships with family members. The appellant submitted that whilst the respondent’s relationship with his former partner broke down that was not a consequence of the psychological injury he suffered.
The appellant noted that the Medical Assessor identified that the respondent had depression following the respondent’s son’s death and that the respondent had taken anti-depressants in the past. The appellant noted that the respondent’s qualified expert, Dr Adesanya, had recorded that the respondent had recommenced anti-depressants three years before the occurrence of his work injury and that Dr Adesanya had concluded that the respondent suffered a pre-existing condition of post-traumatic stress disorder with unresolved grief. The appellant also noted that its qualified expert, Dr Roberts, recorded the respondent had a post-traumatic stress disorder relating to a non-related work incident that was aggravated by his employment. The appellant submitted that the Medical Assessor
“provides absolutely no reasons to support the decision to make no deduction – despite clear evidence to support a pre-existing condition and despite the assessor himself having noted issues with respect to the accuracy of the worker’s history.”
The appellant submitted that a one-tenth deduction under s 323 of the 1998 Act should have been applied.
In reply, the respondent submitted that “the appellant’s real complaint is that the Medical Assessor did not give sufficient reasons for the classifications and scores referred to at page 11 and 12 of the MAC”. The respondent submitted that it was a matter for the Medical Assessor to exercise his own judgment with respect to that.
The Appeal Panel observes that the respondent did not make any submissions with respect to the appellant’s submission that the MAC contained a demonstrable error as a consequence of the Medical Assessor’s examination of the respondent being deficient nor did the respondent make any submissions with respect to the Medical Assessor failing to provide adequate reasons for not making a deduction under s 323 of the 1998 Act.
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.
The Appeal Panel accepts the appellant’s submission that the Medical Assessor’s examination of the respondent was deficient because he was unable to view the respondent, and that as a consequence of that the Medical Assessor was unable to assess properly the respondent’s permanent impairment from his injury.
The medical assessor members of the Appeal Panel, who are experts, consider that it is imperative that there be visual contact with a worker for at least some portion of the examination to enable a proper evaluation of a worker’s impairment in all categories of the PIRS by which a worker’s impairment from a psychiatric injury must be rated. In this case, because there was no visual contact between the Medical Assessor and the respondent, the Medical Assessor’s evaluation of the respondent’s impairment in all of the PIRS categories are unreliable and cannot be accepted. Absent the Medical Assessor being able to view the respondent for part of the examination key aspects about the respondent’s presentation on the day of assessment are unknown and hence, as a consequence, it cannot be concluded that the Medical Assessor applied his clinical judgment to all relevant data when evaluating the respondent’s impairment. Having visual and audio connection is a requirement of the Personal Injury Commisson guidelines on telehealth assessments.
The Appeal Panel also considers that the Medical Assessor did not adequately engage with the issue of whether the respondent had a pre-existing condition and whether that contributed to a portion of the respondent’s current permanent impairment. The Medical Assessor said that in response to a standard question posed in the template at 8.e. of the MAC that no proportion of the respondent’s permanent impairment was due to a pre-existing condition. The Medical Assessor otherwise noted in the MAC that the respondent reported suffering depression following his son’s death decades ago that lasted for a few years and that he had been on anti-depressants in the past on a low dose.
It does not matter that a pre-existing condition is asymptomatic at the time a workplace injury occurs. What matters is whether that pre-existing condition contributes currently to a worker’s post-injury impairment in the sense of making a difference to the outcome for the worker with respect to the worker’s impairment.
In this case, as the appellant has submitted, the Medical Assessor really provided no reasons for why the pre-existing condition that the respondent had does not now contribute to his post-injury impairment. That also is a demonstrable error in the MAC.
The Appeal Panel does not accept the appellant’s submission to the effect the Medical Assessor was required to base his assessment only on the corroborated elements of the history the respondent provided. What the Medical Assessor did in this case was use his clinical judgment based on the history obtained, which the Medical Assessor developed both by responses he obtained from his interview of the respondent and by his review of the documentation, and his findings from his examination of the respondent and his review of the relevant parts of the documentation he was provided. The Medical Assessor was cognisant of inconsistencies between what the respondent reported to him during interview and what was contained in the documentation the Medical Assessor had been provided. The Medical Assessor was mindful of those discrepancies when exercising his clinical judgment to assess the respondent’s permanent impairment. Absent the deficient manner in which the Medical Assessor examined the respondent, there would be no error in the MAC as a consequence of the inconsistencies between the history the respondent reported and the other medical information within the material the Medical Assessor was provided. It is a matter for a Medical Assessor to compile a history using his or her clinical expertise and then to apply his or her clinical judgment based upon the history a Medical Assessor obtained as well as the other relevant medical and clinical data.
As indicated above, as a consequence of the MAC containing a demonstrable error by virtue of the deficiency in the manner in which the Medical Assessor carried out his mental state examination of the respondent, the Appeal Panel determined it was necessary for it to examine again the respondent, and it appointed Medical Assessor Hong to conduct that examination which he did on 1 March 2023. His report to the Appeal Panel is as follows:
“HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
He discussed the issues at work, where he was falsely accused by a female co-worker. He had worked at Bitupave as a truck driver/plant operator since 2006. He stopped worked after the accusation on 22 February 2019 and has not performed work since. He is on the Aged pension now.
He described developing depression and anxiety and confirmed the symptoms that he experienced when he was assessed by Dr Shen around a year ago.
I asked him whether he had improved or deteriorated after that assessment. Initially, he said he was worse but later, he said he was not better and generally has been the same.
He said that he has seen the female worker a couple of times in the supermarket, although not for a while and because he does not want to have further issues with her, he started asking his sister to come with him when he goes to the shops. He said he still goes shopping but he does not want to mix with people and he avoids crowded places.
Mr Annetts reported his alcohol intake is variable and this has only been a problem since the accusation at work. He can drink more than 30 cans of beer a week but does not know how long he has been doing this.
· Present treatment:
Mr Annetts is taking Venlafaxine 225 mg. He has not had other treatment after
Dr Shen’s assessment.He has not consulted a psychologist, counsellor or psychiatrist since the work injury.
· Present symptoms:
Mr Annetts described having amorphous depressed moods.
He has reduced enjoyment and motivation.
He described having reduced concentration and memory.
Suicidal ideation occurs occasionally and he has never acted on it.
He gained 5kg in the past 12 months and said he does not know why. I noted his diet is not good.
He reported having sleep problems and sometimes having good sleep.
He feels anxious.
He reported having a low tolerance for frustration. He is not an angry person.
He reported being socially withdrawn.
· Details of any previous or subsequent accidents, injuries or condition:
He reported he suffered depression 22 years ago after his son passed away. Over time, he said he came to accept his son’s decision. He saw a therapist twice and has not consulted other mental health clinicians. His GP prescribed different antidepressant medications, but he does not remember the names. He took a few courses of antidepressant medications. He said that they helped and that with treatment, he could accept things better. He did not think he suffered depression and anxiety anymore before the accusation at work, and could not remember the last time he had psychiatric treatment before the work injury. It is likely he had an Adjustment disorder with anxiety and depressive symptoms, or a Major depressive episode. It was discussed Dr Adesina Adesanya wrote he was on an antidepressant medication at the time of the subject injury and he could not confirm this.
· Social activities/ADL:
Mr Edward Annetts is 68, he is living by himself and has four adult children.
Mr Annetts spends most of the time in the shed. He said he thinks about doing a lot of stuff, for example, fixing the motorcycle but he does not do it. He said he gets confused. He had a few old books about the Australian outback, but he looks at the pictures and then reads the same line three or four times and then gives up. He normally likes to read books and newspapers.
He has seven surviving siblings and said a lot of them live far away. There are only two in town. One sister has been seeing him regularly to help with the shopping. A brother visited him two weeks ago. He said he does not have many friends and nobody comes, and he does not know why. He said if they come, it would be ‘alright’.
He said he does not see his four children regularly. One of the sons calls once a month, but the other son hardly ever calls. He has been seeing his daughter less but could not estimate how often they have contact. I asked him why he has not had much contact with the children, and he said that they are busy with their own families.
Mr Annetts was married previously and had a long-term de facto, and his two previous partners are the mothers of his four children. He has not seen the two ex-partners for a long time. He had a girlfriend for a few years when he was working. After the accusation, she decided to leave him. He stated she believed the accusation against him and did not accept his explanation. He has not had any other partners since.
I asked Mr Annetts about previous hobbies and recreational activities, and noted that he used to enjoy going to a hotel for a meal, going to music festivals and concerts. He said the last time he went was a long time ago, he sat in the van and listened to the music at a festival but did not want to go in and mix with people. He does not remember how long ago this was.
Mr Annetts said he only showers every one or two weeks when he has to go out. Sometimes his sister complains that he does not shower enough. He said he will shower without prompting.
He cooks all his meals and tends to cook enough for three days at a time. He skips meals and does not have a regular eating pattern. He does the housework such as washing up and cleaning. His sister often organises home delivery. He said he cannot carry large items if he is at the shops. He had a shoulder injury sustained in 2017 and is to have a right shoulder reconstruction surgery next week. He cannot lift his arm above horizontal and has a reduced lifting capacity. His legs are fine.
FINDINGS ON PHYSICAL EXAMINATION
Mr Annetts was assessed by audio and video. He was at his solicitor’s office and did not have a support person. I assessed him from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Mr Annetts had a distinct appearance. He had short hair and his beard was trimmed short on the sides, with 2 long upbraided strands in the middle, and he had what looked like a ‘sparrow beard’. He said he maintained his beard and he does not go to a barber.
He engaged well with the video assessment process. He was not flat in affect. He did not smile or laugh and was generally serious. He spoke softly and responded without latency all through the assessment, although his pace was consistently reduced. He was not thought disordered.
At the end of the assessment, I asked Mr Annetts for additional information that he thought may be relevant and he discussed he does not want to be falsely accused and he does not have much of a life anymore.
· consistency of presentation
There was no relevant inconsistency.
Summary:
Mr Annetts reported that his psychological symptoms are very similar to the assessment by Dr Shen. He continues to suffer from chronic depression and anxiety, and drinks to excess, and this is consistent with major depressive disorder and alcohol use disorder. He has not had further psychological/psychiatric treatment after the assessment by Dr Shen. His condition has now become entrenched.
Mr Annetts has a past psychiatric history and reported his pre-existing anxiety and depressive symptoms had remitted. He likely had an Adjustment disorder or Major depressive episode in the past and was successfully treated. He described developing depressive symptoms in the context of a workplace accusation, and his symptoms are consistent with a Major depressive disorder and this has not resolved over time. There is some fluctuation over time. As his treatment is stabilized and his trajectory is well-established, MMI has been reached.
EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a. Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body part/system:
No.
b. Have all body parts/systems stabilized/reached maximum medical improvement?
Yes. Mr Annetts's psychological symptoms are well stabilized with appropriate treatment, and are not likely to alter to a substantial degree in the next 12 months.
c. If not, please list those injuries not yet stable/at maximum medical improvement:
This question is not applicable.
d. If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?
This question is not applicable.
e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes, there was a pre-existing asymptomatic condition which contributes to a proportion of Mr Annetts's current loss of efficiency and impairment.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
Psychological.
g. Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.
No further psychological injury identified.
Table 11.8: PIRS Rating Form
Psychiatric diagnoses
1. Major depressive disorder
2. Alcohol use disorder
3.
4.
Psychiatric treatment
Antidepressant medication
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
2
Mr Annetts has been neglecting his self-care. He said he gained 5kg in the past 12 months as his diet is not good. He only showers when he goes out. He can buy light groceries. He is able to live independently.
Social and recreational activities
3
He used to have an active social life and went to music concerts and festivals.
He stopped attending social gatherings and does not eat out or attend festivals anymore.
He enjoys visits from his family.
Travel
2
He is anxious and prefers to be out with his sister, and can go out on his own.
Social functioning
2
Mr Annetts's relationship with his partner ended as she did not accept his explanation of the workplace accusation, and not because of his psychological injury.
He has distanced himself from his friends, and said the relationship is “alright” when his friends call or visit.
He has also become distant from his siblings and still has a reasonable relationship overall.
His relationship with his children is no longer close, and he explained they are busy. There is no conflict or estrangement.
Concentration, persistence and pace
3
Mr Annetts said he does not read books due to poor concentration. He described significant alcohol consumption which can affect his concentration.
Employability
5
Mr Annetts cannot work as he is isolative and suspicious of people making further accusations against him, and does not engage in any activity consistent with work.”
The Appeal Panel accepts and adopts the report of Medical Assessor Hong. It also accepts and adopts his rating of the respondent’s impairment in the various PIRS categories.
The Appeal Panel observes that Medical Assessor Hong’s ratings of the respondent’s impairments in the categories of “Social Functioning”, “Concentration, Persistence and Pace” and “Employability” differed from the Medical Assessor’s assessment of the respondent’s in those categories.
With respect to the Appeal Panel’s Assessment of the respondent’s impairment in the category of “Social Functioning” the Appeal Panel observes that the respondent’s relationship with his former partner ended not as a consequence of the respondent’s psychiatric illness but rather from her not being satisfied with his explanation regarding the circumstances from which his injury arose. The Appeal Panel also observes that the respondent has been able to retain his relationship with friends and family, although some distance has occurred within these relationships. In the Appeal Panel’s view that equates to a mild impairment.
With respect to the category of “Concentration, Persistence and Pace” the relevant material, which includes the updated history Medical Assessor Hong obtained, indicates that the respondent is unable to read books due to poor concentration. Medical Assessor Hong also observed that the respondent’s pace was consistently reduced during his examination of the respondent. In the Appeal Panel’s view that accords with a moderate impairment in this category.
With respect to the category of “Employability” the Appeal Panel has rated the respondent’s impairment as severe. In the Appeal Panel’s view that is supported by the material which includes the updated history that Medical Assessor Hong obtained that the respondent is isolated, does no activities that could be remunerable, and suspicious of people making accusations against him which excludes his ability to work.
The Appeal Panel notes that the appellant contended that the Medical Assessor erred by rating the respondent’s impairment in the category of “Travel” as mild, which is also how the Appeal Panel rated it. Medical Assessor Hong obtained an updated history that the respondent, whilst he can go out on his own, is nevertheless anxious when he does so and his preference is to go out with his sister. That represents a mild impairment in this category.
The Appeal Panel also considers that the respondent has a pre-existing condition that contributes a proportion of the permanent impairment the respondent has from his current psychiatric illness. Whilst his previous psychological condition may have been asymptomatic at the immediate time of the event that gave rise to his current psychiatric illness, his general practitioner had, as Dr Adesanya noted in his report of 21 May 2020, prescribed him Vexaline for depression shortly before the event. Further, Dr Adesanya obtained a history of the respondent continuing to experience recurring flashbacks, memories, and occasional nightmares and night sweats relating to his son’s death. In the Appeal Panel’s view, the respondent’s prior illness has recurred as a consequence of that event. It consequently contributes to his current psychiatric impairment, in that if he had not suffered his earlier illness, which manifested in anxiety and depressive symptoms and are in many ways similar to his current symptoms, his current impairment would not be as great.
Whilst the Appeal Panel considers part of the respondent’s present permanent impairment is due to his prior condition, it is impossible to determine exactly what that portion is. Consequently, in accordance with s 323(2) of the Act, the Appeal Panel assumes the proportion is 10% which is not at odds with the evidence, as the contribution is a minor one.
For these reasons, the Appeal Panel has determined that the MAC issued on
29 February 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2506/22 |
Applicant: | Edward Annetts |
Respondent: | Bitupave Limited |
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 Shen Yu Tang 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 | On or about 22/2/2109 | Chapt 11 | 19% | 1/10 | 17% | |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0