Blacktown City Council v Lelov
[2023] NSWPICMP 692
•20 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Blacktown City Council v Lelov [2023] NSWPICMP 692 |
| APPELLANT: | Blacktown City Council |
| RESPONDENT: | Tony Lelov |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 20 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment of respondent from psychological injury; whether Medical Assessor made an error with respect to deduction under section 323(1) and with his ratings of respondent’s impairment in several Psychiatric Impairment Rating Scale (PIRS) categories; Appeal Panel held Medical Assessor did not make an error with deduction he made under section 323(1) and with his ratings under PIRS; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 October 2023 Blacktown City Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, 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 (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).
RELEVANT FACTUAL BACKGROUND
Tony Lelov, the respondent, commenced employment as a gardener with the appellant in 2016. In an earlier proceeding in the Personal Injury Commission (Commission) it was found that events that occurred on 3 September 2016 and between through October 2020 and 29 November 2020 in the course of the respondent’s employment with the appellant caused the respondent to suffer a psychological injury in the form of an aggravation or exacerbation of an existing psychiatric illness, namely bipolar affective disorder.[1]
[1] Lelov v Blacktown City Council [2022] NSWPIC 93 at [56]-[93].
On 16 February 2023 the respondent’s solicitors wrote to the appellant’s solicitors advising them that the respondent claimed compensation from the appellant under s 66 of the Workers’ Compensation Act 1987 (the 1987 Act) for 22% whole person impairment (WPI) the respondent alleged resulted from his injury. The appellant’s solicitors further advised that the respondent relied on a report of Dr Canaris dated 21 October 2022 in support of his claim. Dr Canaris had assessed the respondent had 22% WPI from his injury. The appellant’s solicitors provided the respondent’s solicitors with a copy of Dr Canaris’ report.
It would seem that the appellant’s solicitors attempted to arrange for the appellant to be examined by a consultant psychiatrist to provide a forensic medical legal report to enable them to respond to the respondent’s claim but were unsuccessful in that regard prior to the respondent initiating proceedings in the Commission seeking determination of his claim for compensation under s 66 of the 1987 Act.
The matter was referred to a Commission member who on 7 June 2023, and with the consent of the parties, remitted the matter to the President of the Commission to be referred to a Medical Assessor. That referral was duly made on 7 June 2023 and amended on 8 June 2023 by a delegate of the President.
The Medical Assessor examined the respondent in response to that referral on 31 August 2023 and, as noted above, issued a MAC on 12 September 2023. In that he certified the respondent’s degree of permanent impairment was 22% WPI. He also certified that 20% of that permanent impairment was due to the respondent’s pre-existing bipolar affective disorder, which he deducted from the respondent’s overall permanent impairment of 22% WPI such that he certified that the degree of the respondent’s permanent impairment from his work injury was 18% 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 it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[2]
[2] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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 appellant’s appeal relates to, firstly, the Medical Assessor’s ratings of the respondent’s impairment in the Psychiatric Impairment Rating Scale (PIRS) for social and recreational activities, social functioning, travel, and concentration persistence and pace (CPP), and, secondly, the Medical Assessor’s finding regarding the proportion of the respondent’s permanent impairment that was due to a pre-existing condition.
The Medical Assessor provided the following summary and opinion of the appellant’s injury:
“Mr Lelov is a middle-aged gentleman living independently at his studio apartment in Northmead. He separated from his wife in 2019, with the couple formally filing for a divorce in 2023.
Mr Lelov provided me with a history of his struggle with bipolar affective disorder since 2016-2017.
The diagnosis of chronic lymphocytic leukaemia seems to be the major stress contributing to the development of bipolar affective disorder. Mr Lelov had struggled with workplace issues, although it appears to have had limited impact on his mental health or general functioning then.
Mr Lelov struggled with his relationship stressors with his wife from around 2018 onwards. The couple decided to separate in early 2019. He also experienced other stressors, including his mum's cancer diagnosis in early 2020. Mr Lelov received ongoing input from treating psychiatrist, Dr Jayalath from early 2018. He continued to comply with psychotropic medication as advised by the psychiatrist. He had required one inpatient psychiatric admission in 2016.
Mr Lelov has experienced worsening mental health since being informed about misconduct allegations in September 2020. He made a decision to stop work in October 2020 due to ongoing mental health stressors. Mr Lelov’s presentation since then indicates him experiencing fluctuating mental health with predominant depressive symptoms. He had continued to struggle with family dynamics, including his interaction with his family, especially his wife.
Mr Lelov’s recent presentation indicates he is struggling with biological and psychological symptoms of depression despite ongoing compliance with psychotropic treatment. The relationship stressors and rumination about past work issues remain the main contributing factors to his recent presentation. I was not able to elicit an addiction history, family history or any criminal history. Mr Lelov has continued to receive ongoing specialist input for chronic lymphocytic leukaemia since 2016.
Overall, as per the review today, I am of the opinion that Mr Lelov’s presentation/symptoms satisfy the criteria of bipolar affective disorder. While he may have experienced hypomanic symptoms before 2018, his presentation since 2020 predominantly indicates that him experiencing major depressive disorder episodes.”
The Medical Assessor’s rating of the respondent’s impairment in the PIRS categories that the appellant has challenged, and the Medical Assessor’s reasons for those ratings, were as follows:
Social and recreational activities
3
Mr Lelov told me “I am isolating myself”. He told me that apart from 1 close friend, he does not like to associate with anyone. He avoids going to any social events. He feels anxious in any social setting.
Travel
2
Mr Lelov avoids driving although is able to drive locally. He is able to shop locally although limits such trips as much as possible.
Social functioning
3
Mr Lelov told me that he has lost touch with most of his friends. He provided care for his mum in early 2020.He separated from his partner in 2019. Couple completed divorce in 2023.
Concentration, persistence and pace
3
Mr Lelov is struggling with his concentration. He does struggle with his motivation and energy daily. He is avoiding any tasks requiring sustained concentration “I get flustered after a short while and tend to give up the task”.
The Medical Assessor’s rating of the respondent’s impairment in the other PIRS categories of self-care and personal hygiene, and employability were 2 and 5 respectively. The Medical Assessor noted that median of his class scores for the respondent for all the PIRS categories was 3 and the aggregate of his scores was 18, which converted to 22% WPI.
The Medical Assessor within Part 8 of the MAC and also within the PIRS rating form in the MAC indicated that the respondent’s pre-existing bipolar affective disorder contributed to the respondent’s permanent impairment. The Medical Assessor considered that the proportion of the respondent’s permanent impairment that was due to that pre-existing condition was 20%. He said that that pre-existing condition and “non work factors were a major contributing factors [sic] to his presentation”. The Medical Assessor also said in the PIRS rating form that “Mr Lelov has struggled pre-existing condition i.e. bipolar affective disorder in relation to stressors which are major contributing factors to his presentation”.
The Medical Assessor noted that 20% of the 22% WPI he assessed the respondent had equated to 4.4% WPI which rounded to 4% WPI. He subtracted that from the 22% WPI, in accordance with s 323 (1) of the 1998 Act, and certified the respondent’s degree of permanent impairment from his psychiatric injury was 18% WPI.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant referred to the Medical Assessor’s opinion that the respondent had struggled with bipolar affective disorder since 2016 and 2017 and referred to the Medical Assessor’s finding that relationship stresses added to the respondent’s presentation. The appellant also referred to various parts of the respondent’s general practitioner’s (GP) clinical records wherein was noted that the respondent had shouted at his daughter, had anhedonia low mood and was getting angry quickly, had an argument with his wife, had a hypomanic episode, and had discharged himself from the Hills Clinic.
The appellant submitted that the available treating evidence established that the respondent suffered significantly from the effects of bipolar affective disorder, which included two hospital admissions and the breakdown of his marriage prior to the incidents in his workplace that led to his injury. The appellant submitted that the Medical Assessor did not consider the relevant material relating to the proportion of the respondent’s permanent impairment that was due to his pre-existing condition.
With respect to the Medical Assessor’s rating of the respondent’s impairment in the PIRS category of social and recreational activities, the appellant referred to the following entries in the GP’s clinical records:
(a) an entry on 28 March 2022 that the respondent was starting a salsa class;
(b) an entry on 19 May 2022 that the respondent wanted an STI check because he wanted a new sexual partner, and
(c) an entry on 8 November 2022 that the respondent had a new sexual partner in the last three months.
The appellant submitted that the respondent is able to participate in recreational activities without prompting or support and is able to engage independently in building new social relationships. The appellant submitted that the appropriate rating in social and recreational activities is class 2 and that the Medical Assessor by rating the respondent’s impairment as class three based his assessment on incorrect criteria and made an error.
With respect to the Medical Assessor’s rating of the respondent’s impairment in the PIRS category of social functioning, the appellant highlighted that the respondent’s relationship with his children and his wife had deteriorated prior to the events in the respondent’s workplace that led to the respondent’s injury. The appellant submitted there was no evidence that indicated the respondent’s relationship with his wife and children deteriorated as a consequence of his employment with the appellant. The appellant submitted that the appropriate rating was class 2 and the Medical Assessor by rating the respondent’s impairment as class 3 based his assessment on incorrect criteria and made an error.
With respect to the Medical Assessor’s rating of the respondent’s impairment in the PIRS category of travel, the appellant submitted that the evidence before the Medical Assessor did not support a class 2 rating. The appellant referred to the history that Dr Canaris obtained and set out in his report of 21 October 2022 that the respondent had driven on his own to see him. The appellant submitted that the appropriate rating was class 1 and that the Medical Assessor by rating the appellant’s impairment as class 2 based his assessment on incorrect criteria and made an error.
With respect to the Medical Assessor’s rating of the respondent’s impairment in the PIRS category of CPP, the appellant submitted that the Medical Assessor did not take into account the respondent’s bipolar medication and its effect on the respondent’s CPP.
The appellant submitted that the Medical Assessor should have called for “treating materials” to assist him “in providing a clearer background of the respondent’s workers’ relevant psychological health history”.
In reply, the respondent submitted that the Medical Assessor considered all evidence that was relevant to the PIRS categories had been challenged. The respondent also submitted that with respect to the Medical Assessor’s rating of his impairment in the PIRS category of social functioning the Medical Assessor in addition to considering his relationship with his wife and children considered his other relationships.
The respondent submitted that the Medical Assessor by making a deduction of 20% under s 323(1) of the 1998 Act made a significant deduction for the extent to which his existing bipolar affective disorder contributed to his permanent impairment from his work injury. The respondent submitted that the Medical Assessor had regard to the clinical records relating to his psychiatric illness prior to his work injury. The respondent submitted that the deduction the Medical Assessor made under s 323 was open for him to make and did not constitute an assessment made on the basis of incorrect criteria and did not demonstrate error.
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.
PIRS categories
An assessment of a worker’s impairment resulting from a psychiatric injury is, in accordance with paragraphs 11.11 and 11.12 of the Guidelines, done by reference to the effect the worker’s injury has in six categories of activity and function. Together these comprise the PIRS. Each PIRS category is divided into five classes, ranging from Class 1 to Class 5. Class 1 relates to a circumstance where the worker has no psychological deficit in the particular category, or a minor deficit attributable to the normal variation in the general population. Class 5 relates to the circumstance where the worker is totally impaired. A Medical Assessor must rate the worker’s impairment in each PIRS category by reference to one of these classes.
A Medical Assessor when rating a worker’s impairment by reference to the PIRS must rate the worker’s impairment at the time the assessment is done. The assessment must be based on the information available to the Medical Assessor, which includes the history the Medical Assessor has obtained at the time of examination and also the clinical observations the Medical Assessor made of the worker during the Medical Assessor’s mental state examination of the worker. The Medical Assessor is entitled to give pre-eminence to the history she or he has obtained and to his or her clinical observations when rating the worker’s impairment.[3]
[3] Ferguson v State of NSW [2017] NSWSC 887 at [23].
To establish that a Medical Assessor has rated a worker’s impairment incorrectly in a PIRS category there must be more than a difference of opinion on the subject matter about which reasonable minds might differ.[4]
[4] Parker v Select Civil Pty Ltd [2019] NSWSC 140 at [66]; Coenradi at [136].
What all this means, in this matter, is that for the Appeal Panel to be satisfied that the Medical Assessor erred with respect to his classifications of the respondent’s impairment in the several PIRS categories about which the appellant contends there is error or the application of incorrect criteria, the Appeal Panel must be satisfied that it was not open to the Medical Assessor to make the ratings he did based on the material before him. Saying that slightly differently, the Appeal Panel must be satisfied that the material before the Medical Assessor does not support the Medical Assessor’s ratings. It is not sufficient to find error that the Appeal Panel may have a different opinion.
The Appeal Panel considers that the Medical Assessor based his assessment on correct criteria given that the Medical Assessor assessed the respondent’s impairment by reference to PIRS and classified the appellants in each of the PIRS category within the ranges of one to five. In other words, he assessed the respondent’s impairment in accordance with paragraph 11.11 and 11.12 of the Guidelines and then measured the appellant’s WPI based on the ratings he made and by reference to the instructions of paragraphs 11.13 to 11.20 of the Guidelines.
The Appeal Panel also considers that the Medical Assessor did not make any error with respect to his ratings in the several PIRS categories the appellant has challenged. The Medical Assessor considered all the evidence that was before him, including the clinical material. The Medical Assessor said as much in the MAC in that he said that his assessment was based his clinical assessment of the respondent and the information available from the attached documents. That evidence included the clinical records, which included entries relating to the respondent’s psychopathology. Indeed the Medical Assessor made specific reference to relevant parts of that.
With respect to social and recreational activities, the Appeal Panel considers the fact that the respondent informed his GP in May 2022 that he wanted a new sexual partner and informed his GP on 8 November 2022 that he had a new sexual partner in the prior three months, is not a relevant factor to consider in terms of rating the appellant’s impairment in this PIRS category. It is more appropriately considered in the category of social functioning. This information cannot be construed further than indicating an episode of sexual activity in the three months prior to November 2022 and neither indicates a new relationship of any sustained duration nor a regular recreational activity. Further, the fact that the appellant informed his GP on 28 March 2022 about starting a salsa class does not render the Medical Assessor’s rating wrong. The Appeal Panel observes this was around five months prior to the Medical Assessor’s examination of the respondent.
The Appeal Panel notes that the Medical Assessor’s rating was based on the respondent isolating himself, not associating with anyone other than one close friend and avoiding social events and feeling anxious in social settings. That was the history the Medical Assessor obtained at the time of examination. That history was obtained in the context of the Medical Assessor having reviewed the relevant clinical data within the evidence that was before him (again noting that the Medical Assessor said that his assessment was based upon that material). As said, the Medical Assessor was entitled to give pre-eminence to his clinical observations formed at the time he conducted his examination of the respondent. Those observations were informed in the context of the material to which the Medical Assessor had regard, which included the historical material relating to the respondent’s function.
The Appeal Panel can also discern no error with respect to the Medical Assessor’s rating of the respondent’s impairment in the category of travel. The example provided in Table 11.3 of the Guidelines for a class one rating is that a worker can travel to new environments without supervision. The example provided for a class two impairment is that a worker can travel without a support person, but only in familiar areas such as local shops, visiting a neighbour.
The Medical Assessor explained that he rated the respondent’s impairment in the category of travel as class 2 because the respondent avoids doing other than local driving and limits his trips as much as possible. The Medical Assessor is required, as said, to rate the respondent’s impairment at the time the assessment is done. The fact that the respondent drove on his own in October 2022, to attend his appointment with Dr Canaris, which was some nine months before the Medical Assessor carried out his examination, does not in the Appeal Panel’s view upset the Medical Assessor’s rating of the respondent’s impairment in travel. The Appeal Panel notes that Greystanes is approximately 20 kilometres from the respondent’s residence, and arguably could be considered within in the respondent’s local area. In any event, that trip was undertaken as said, nine months before the assessment was done. Based on the reasons the Medical Assessor provided and the matters he set out in the PIRS rating form, the Appeal Panel considers it was open to the Medical Assessor to make the assessment he did.
The Appeal Panel also considers the Medical Assessor did not make any error with respect to his rating of the respondent’s impairment in the category of social functioning. As said, the Medical Assessor was required to assess the respondent’s impairment from his psychiatric illness at the time the assessment was done. Hence, all impacts upon the respondent’s functioning in the area of social functioning that were due to the respondent’s bipolar affective disorder had to be considered, including any impact that happened before the events which gave rise to the respondent’s workplace injury, such as strain with his relationships with his family and any separation from members of his family. To the extent that his psychiatric illness affected those relationships before his workplace injury is relevant to the consideration of the proportion of the permanent impairment from his injury attributable to a pre-existing condition, especially given his injury is an aggravation or deterioration of his bipolar affective disorder. The assessment of the respondent’s degree of permanent impairment subsequent to his injury must take account of that. If it were otherwise, that is the events that occurred due to his psychiatric illness prior to the onset of his work injury were to be excluded when assessing his permanent impairment, and then a deduction made under s 323(1) for the extent to which his pre-existing illness contributed to his permanent impairment from his workplace injury, then the respondent would be penalised because, in effect, this matter would be ignored when assessing his permanent impairment following his injury but regarded when making a deduction under s323(1) for matters which preceded his injury but still now affect him.
In any event, noting that the Medical Assessor’s assessment of the respondent’s impairment in social functioning was based on the respondent losing touch with most of his friends there is sufficient justification for the Medical Assessor’s rating of class 3. It is not devoid of support based on the material that was before the Medical Assessor.
The Appeal Panel considers the appellant’s complaint about the Medical Assessor’s assessment of the respondent’s impairment in CPP is also without merit. It is clear to the Appeal Panel that the Medical Assessor took into account the medication the respondent was taking. It is clear because the Medical Assessor detailed that within the MAC. As has been said repeatedly, the Medical Assessor was required to assess the respondent’s impairment at the time the assessment was done. Given he was taking those medications at the time the assessment was done, the Medical Assessor was required to take this into account when rating the respondent’s impairment in the category of CPP. For the reason the Medical Assessor explained in the PIRS rating form the assessment he made was open to be made and hence there is no error in it. He took into account all relevant matters.
Section 323
As the Appeal Panel has said above, the Medical Assessor took into account the clinical records that were available. The Medical Assessor said in the MAC that his assessment was based on the information contained within the documents. The Medical Assessor set out relevant parts of the clinical material within the mac.
It is obvious from what the Medical Assessor said in the MAC, that he was cognisant of the fact that the respondent struggled with his illness of bipolar affective disorder prior to his injury. Further, the Medical Assessor noted that due to other stressors in the respondent’s life prior to the incidents that occurred in his workplace that resulted in his workplace injury, there had been a worsening of his illness.
The Medical Assessor expressed his opinion in the MAC that to assume in accordance with s 323(2) of the 1998 Act that the deductible portion for the purpose of s 323(1) is 10% would be at odds with the evidence. That evidence was detailed by the Medical Assessor in the MAC, being the evidence that established that the respondent was afflicted with bipolar affective disorder before his injury and that there had been a deterioration in that illness prior to his workplace injury.
The Appeal Panel notes that there is no challenge to the Medical Assessor not applying the assumption under s 323(2), rather the challenge is the extent of the deduction the Medical Assessor made under s 323(1).
The Appeal Panel considers that the injury the respondent has suffered, being the aggravation and deterioration of his existing bipolar affective disorder, makes it difficult to assess with any precision the extent to which that pre-existing illness contributes to the respondent’s impairment following the injury. Different clinicians will likely have different opinions regarding this, but to repeat, it is not sufficient that the Appeal Panel may come to a different view on this than the Medical Assessor, to find error in the Medical Assessor’s assessment.
In this case, as the respondent submitted, the deduction the Medical Assessor made was significant. Other clinicians may have made a greater deduction. It is germane to note that Dr Canaris made a one-tenth deduction. That indicates that this a range of opinions about this matter, depending upon the clinician determining the issue.
In the Appeal Panel’s view it was open to the Medical Assessor to form the opinion based on the material he set out in the MAC that the contribution that the respondent’s pre-existing illness contributed one-fifth of his overall impairment following from his injury. The Medical Assessor was cognisant of the fact that the respondent was experiencing symptoms, with some degree of impairment at the very least in social functioning, from his existing psychiatric illness at the time of the events that gave rise to his work injury and had been experiencing symptoms for some years and that this had affected his function. The Medical Assessor was cognisant that the respondent’s injury aggravated his illness and resulted in its deterioration. The Medical Assessor’s assessment that the deductible proportion was one-fifth was not devoid of support from the material before the Medical Assessor.
Documents
The appellant did not specify exactly what clinical material that it considers the Medical Assessor ought to have obtained to make his assessment. The respondent had put into evidence the records of the respondent’s GP and his treating psychiatrist. The Medical Assessor had regard to that information in making his assessment. The material that was available to the Medical Assessor enabled him to make a diagnosis of the respondent injury. The material before the Medical Assessor enabled him to assess the respondent’s permanent impairment.
The Appeal Panel considers that there is no error in the MAC as a consequence of the Medical Assessor not calling for further material.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 September 2023 should be confirmed.
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